Independence in disciplinary proceedings against doctorsBMJ 2012; 344 doi: https://doi.org/10.1136/bmj.e548 (Published 24 January 2012) Cite this as: BMJ 2012;344:e548
All rapid responses
It is not difficult to agree with De Haviland's view(3rd Feb.) that "abuse of authority can occur under whatever procedure is in force". Similarly, some people commit unlawful discriminatory acts despite the existence of stringent laws to deal with such conduct. It is also a fact, unlawful acts similar to what Dr Michalak was subjected to, happened during previous HC90(9) procedure; there is no clear evidence that it is now worse as a result of current MHPS procedure.
As was the case under the previous procedure (irrespective of having a legally qualified Chair), it is still possible to challenge the composition of a disciplinary panel on the ground of actual or perceived bias. Injunctions to restrain/challenge disciplinary proceedings are also now well known .In the instant case , the Court of Appeal appears to have confirmed that MHPS “is not unfettered and will be restrained by injunction in circumstances where it is inappropriate to invoke such procedures”. The key feature of the MHPS is the involvement of the National Clinical Assessment Authority (NCAA) to reduce the need to resolve problems through formal disciplinary proceedings;hence, there may be many doctors who would have benefited from such process which was not available under the previous HC90(9). Moreover, there is no hard evidence that the MHPS has grossly disadvantaged the majority or even a significant sample of doctors who were facing disciplinary charges. The main thing is to ensure that appropriate procedures under MHPS are followed at every level rather than attempting to return to a system which did not offer the key benefits available under the MHPS.
Competing interests: Have responded to this topic earlier.
It is correct that the lack of independence in MHPS is only part of the problem. There were procedural abuses under HC90(9). Abuse of authority can occur under whatever procedure is in force if the managers involved misconduct themselves.
However, what specifically happened to Dr Michalak would not have been possible if there was independence in proceedings.
Dr Michalak's seems to be the most serious case ever reported. Hence the record damages - including exemplary damages for oppressive and unconstitutional acts by servants of the Government.
Though there was supposed to be an independent member of the panel that dismissed Dr Michalak, in the course of the Tribunal it emerged that the "independent" person was a close associate of the Medical Director. In fact it transpired that the "independent" member of the panel had actually recommended the Medical Director for his post at the respondent Trust. There was no independence in the proceedings taken against Dr Michalak.
Similarly the Case Investigator was a private individual with a medical degree but who had not treated a patient for 25 years. That person had been made redundant in March 2005 and was paid £600/ day from November 2005 to investigate Dr Michalak. She earned a staggering £60,000 doing so. Financial motivation was proposed as one reason for perpetually extending the investigation into Dr Michalak once the investigator realised the original allegations would be very difficult to prove. In the end the original allegations were disproven and Dr Michalak was sacked for a host of made up reasons, none of which could be supported by any actual events.
Under HC90(9), the independence came in the form of a legally qualified Chair who was often a QC - not a doctor who is friends with the medical director.
What is paramount if there is to be no repetition of these events is for doctors to revert to an independent system. Doctors do not know what was given up until after they find themselves in difficulty.
Competing interests: I declare no competing interests but I am Dr Michalak's husband. I am not a doctor and not subject to MHPS.
The fact that Dr Julian De Havilland is the husband of Dr Eva Michalak was unfortunately inadvertently omitted from this print letter (BMJ 2012;344:e548).
This fact is made clear in the full response, and there is consequently no confusion with competing interests given as "None declared." I used this competing interests statement for the letter in the print journal as is usual practice. However, I forgot to add that Dr De Havilland is the husband of Dr Michalak to the shortened response for print, although I had intended to do so.
I apologise for the confusion caused.
Competing interests: I processed Dr De Havilland's rapid response for publication as a letter in the print journal
De Havilland writes that the BMA declined to support Dr Michalak’s discrimination claims before the employment tribunal.
Many will know that in 2004 the BMA paid £130,000 to settle claims brought by five Indian doctors after refusing to support their racial discrimination claims against their employers . Two years earlier the BMA had been found guilty of indirect racial discrimination for its failure to support another Indian doctor's claim, although this was overturned on appeal . So the BMA has something of a track record when it comes to declining to support discrimination claims.
However, De Havilland's argument that had the BMA not "negotiated away rights of independence" then Dr Michalak could not have been subjected to unlawful discrimination or the degree of harassment could have been minimised, is a rather tenuous one. Similarly, the implicit suggestion  that previous HC(90)9 procedure provided a superior level of independence and protection to doctors is highly arguable. With regard to current MHPS procedure and professional panels, the High Court too has confirmed  that if "the alleged misconduct relates to matters of a professional nature or an investigation identifies issues of professional conduct the case investigator must obtain appropriate independent professional advice. The document continues by stating that where a case involving issues of professional conduct proceeds to a hearing under the Trust's disciplinary procedure the panel must include a member appointed by the Local Negotiating Committee who is medically qualified and who is not employed by the Trust".
Competing interests: Have brought claims of race discrimination against the BMA in the past and reached financial settlements. Ex-BMA member.
Dr De Havilland's letter detailing the results of the appalling and dishonest behaviour of some of Dr Michalak's former colleagues makes an important point which was that Dr Michalak was denied an independent method of appeal, other than the employment tribunal, and suggest that such rights had disappeared with some degree of involvement of the BMA at an earlier time.
Dr De Havilland, a scientist and not a lawyer, represented Dr Michalak at the tribunal and the published proceedings make the skill and detail of his efforts very clear with a comment to the effect that his advocacy abilities and mastery of relevant detail would be an example to many of those whose practice is law.
Dr De Havilland states no conflict of interest, which is a personal judgement. Does the editor of the BMJ feel that Dr De Havilland's position as husband of Dr Michalak might be of interest to readers? Is it possible as editor that she is even unaware of any perceived conflicts of interest?
Competing interests: No competing interests