42. Investigations of Clinical Practice

42.1  The purpose of this clause is to address performance concerns relating to clinical practice and its impact on patient safety arising out of a complaint or concern about a practitioner. It is not intended for use where the complaint or concern, on the face of it, does not reflect adversely on the practitioner’s clinical competency.

42.2  On becoming aware of a complaint or concern the employer shall promptly make preliminary enquiries to determine whether a more formal and detailed investigation is warranted.

42.3  As part of these preliminary enquiries, the employer shall advise the employee of the complaint or concern and that it is undertaking a preliminary inquiry to determine whether a more formal investigation might be warranted. At this time the employer shall give the employee written advice of the concern and where applicable, a copy of the complaint and advise them of the identity of the complainant or person who brought the particular concern to the notice of the employer.

42.4  When it has completed its preliminary inquiries but before making a final determination to proceed with a formal investigation, the employer shall give the employee reasonable time to comment on its proposal to undertake a formal investigation. Alternatively, at this stage in the process the employer may decide not to investigate the concerns further itself and refer them to the appropriate external professional body.

42.5  If the employer decides to proceed with its own formal investigation, it shall investigate fairly, thoroughly and as quickly as reasonably possible the complaints or concerns it may have that raise serious questions about the employee’s standards of clinical practice. The employer must closely consult the employee on the terms of reference for the investigation and who the investigator or investigators will be.

42.6  The employer shall ensure the investigation is undertaken as sensitively as reasonably possible with respect to the employee and encourage the employee to seek appropriate professional and other support throughout the process.

42.7  Pending the outcome of this investigation, if the employer believes on reasonable grounds that the nature of the complaint or concern raises a serious and ongoing risk of harm to a third party should the employee continue to practice without restriction, after consulting the employee, it may impose restrictions on the employee’s clinical practice.

(a)  Such restrictions shall be kept to the absolute minimum consistent with the need to avoid the serious and ongoing risk of harm to a third party.

(b)  Unless otherwise agreed, the restrictions shall continue until the completion of the investigation.

(c)  During the period of the restrictions, the employee shall continue with their other duties and receive full pay for all duties they would otherwise have undertaken.

42.8  If the investigation is not completed within three months from the date when the investigator(s) begins the investigation, or the employee believes the investigation is being unreasonably delayed by actions of the employer, following a written request from the employee, the employer shall refer the employee’s restriction of practice to a panel of up to three senior medical or dental practitioners, none of whom shall be employees of the employer.

(a)  The employee whose practice is under investigation has the right to nominate at least one member of this panel.

(b)  The panel shall review the need for the restrictions and recommend that they be continued, varied or lifted.

42.9  The employer shall meet the costs of conducting these investigations and reviews, other than the employee’s own costs. The employer shall also grant the employee reasonable leave on full pay to seek advice, prepare their response and present it to the investigation.

42.10  The employer and the affected employee may agree to vary any of the provisions of this clause.

42.11  The parties acknowledge that for the purposes of employment law any decision to impose, extend or vary restrictions on an employee’s practice is ultimately a decision of the employer.