NHS England keeps a medical performers list of the GPs who provide NHS primary care services in England. Its own framework explains the purpose of the powers attached to the list. They exist to make sure performers are fit for purpose and suitable to undertake that work. Under the National Health Service (Performers Lists) (England) Regulations 2013, NHS England can attach conditions to your inclusion, suspend you or remove you. The regulations, rather than an employer's policy, set the procedure. It runs alongside anything the GMC does, and its deadlines are short. This guide covers conditions, performers list suspension and removal, and the route of appeal.

Who decides

NHS England's Framework for managing performer concerns, dated 11 February 2022, explains the decision making structure. A Performance Advisory Group considers concerns about a named performer and decides the course of action. That can include an investigation, or voluntary undertakings where the concern is low level and you accept it. Only the Performers Lists Decision Panel has delegated authority to act under the regulations. Its terms of reference give it four voting members:

  • a lay chair
  • a practitioner from your discipline
  • an NHS England senior manager responsible for patient safety
  • the medical director for the NHS England team or a nominated deputy.

All four must be present. The framework says a legal representative or an advocate may accompany you.

Conditions and removal: 28 days to respond

Regulation 10 allows NHS England to impose conditions to prevent prejudice to the efficiency of services or to prevent fraud. Regulation 14 gives it power to remove you in an efficiency case, a fraud case or an unsuitability case. It can also remove you after a conviction carrying a prison sentence of over six months. Removal is mandatory in some situations, for example where you are no longer registered with the GMC.

Before imposing conditions or removing you, NHS England must give you notice of the allegation and of the action it is considering. It must then give you the opportunity to make representations within 28 days. You may also ask for an oral hearing within the same period. NHS England must notify its decision within seven days of making it, with reasons and the facts relied on. Regulation 15 lists the matters the panel must weigh. They include the nature of the event and the time since it occurred. They also include action already taken by the GMC or the courts, and the relevance of the event to your work.

Use those 28 days for representations that answer each allegation, attach evidence of remediation and propose workable conditions.

Suspension

Regulation 12 allows NHS England to suspend you where it is satisfied that this is necessary to protect patients or the public. It may also do so where it is satisfied that suspension is otherwise in the public interest. That can happen while it decides whether to remove you or impose conditions. It can also happen while NHS England awaits the outcome of a criminal or regulatory investigation. Before suspending you, NHS England must give you notice and the chance to put your case at an oral hearing, on at least two working days' notice.

NHS England may also suspend with immediate effect. In that case, the regulation as amended on 18 September 2023 requires NHS England to review its decision before the end of the next working day. If it does not, the suspension lapses. The 2022 framework, written before that amendment, still describes a review within two working days, so rely on the regulation. Regulation 12(1A) deals with the case where the GMC has imposed an interim suspension order. NHS England must then suspend you from the list for as long as the order lasts.

Some suspensions last while NHS England decides, or while it awaits an investigation or another body's decision. Such a suspension must be for a specified period of no more than six months in aggregate. To keep a suspension that awaits an investigation or decision in place beyond six months, NHS England needs an order from the First-tier Tribunal.

Suspension carries no appeal to the tribunal. Instead, your route is a review under regulation 16, which NHS England must carry out if you ask in writing. The review cannot take place until three months have passed since the decision, and then no more than once every six months. On a review, NHS England may maintain or vary the suspension, allow you to practise under agreed conditions, or remove you.

Payments during suspension fall under regulation 13. Since 18 September 2023 you must apply for them within 90 days of the decision to suspend you. You must make any request to reconsider a payment decision within 28 days. So diary the 90 days on the day the suspension letter arrives.

Appeal to the First-tier Tribunal

Regulation 17 gives you a right of appeal against a decision to impose or vary conditions or to remove you. The appeal is by way of redetermination, and the tribunal may make any decision that was open to NHS England. NHS England's notification must tell you that you must bring the appeal within 28 days beginning with the date of notification. A removal does not take effect until that period has expired or the tribunal has decided any appeal.

Appeals go to the Primary Health Lists jurisdiction of the First-tier Tribunal on form T170. The government's guidance says a panel of a judge, a specialist member and a member with health service experience hears the case. It adds that the hearing is normally in public. According to the same guidance, the tribunal sends its decision within ten days of the end of the hearing, and each side usually pays its own costs.

Where MHPS fits

If you also hold a salaried or hospital post, your employer will apply Maintaining High Professional Standards to that role. Meanwhile NHS England applies the regulations to your list status. The two processes run on different rules and different timetables. Even so, a statement made in one can be read in the other. I treat them as one case with one set of facts.

The 2013 Regulations cover the medical, dental and ophthalmic performers lists, so a dentist or an optometrist facing conditions, suspension or removal follows the same route, and our pages for dentists and optometrists and dispensing opticians cover their regulators.

Eloquia acts on performers list cases on our inquests and NHS disciplinary track, preparing your response, representing you at the panel and advising on appeal, on a fixed fee quoted once we have seen the papers, stated plus VAT and including a specialist barrister from the outset.

If NHS England has sent you a notice of proposed action, count 28 days from the date of that notice. Ask for an oral hearing in writing within that period, and start your written representations now.

Sources

  1. National Health Service (Performers Lists) (England) Regulations 2013, regulation 10: Conditions
  2. Performers Lists Regulations 2013, regulation 12: Suspension (as amended)
  3. Performers Lists Regulations 2013, regulation 13: Payments during suspension
  4. Performers Lists Regulations 2013, regulation 14: Removal from a performers list
  5. Performers Lists Regulations 2013, regulation 15: Criteria for a decision on removal
  6. Performers Lists Regulations 2013, regulation 16: Reviews
  7. Performers Lists Regulations 2013, regulation 17: Appeals
  8. NHS England, Framework for managing performer concerns (11 February 2022)
  9. GOV.UK, Appeal to the primary health lists tribunal