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Alert letters- guilty even if proven innocent This article has been written by Dr Sushant Varma who has experienced the injustice of an alert letter first hand. Here, Dr Varma presents all documentation to assist any doctor who has the misfortune of an alert letter. As we point out, there are many doctors who are far more dangerous without alert letters issued. No reason has been given for this to date. Sushant examines the legality of the alert letter and presents some interesting case law to support his arguments. Alert As a doctor who has been fighting the system for almost five years, I am only too aware of how damaging alert letters can be. As a pre-registration house officer, an alert letter was sent out against my name. What is an Alert letter? This Department of Health document summarises the catastrophic “ Alert letter”. An alert letter is the way in which all NHS bodies are made aware of
a doctor or As the reader will observe – there is no criteria or definition of “ risk to the public”. For instance, a doctor can be hated by his medical director and can be reported for an alert letter for simply changing his name by deed poll or even matters that are even more frivolous. The criteria used is subjective i.e. it simply depends on what the person – your medical director perceives as a risk to the public. For instance, leafleting the problems in a Trust may be considered a “ risk”. As bizarre as it may sound, using an email address with the word “ grim reaper” was once perceived as a “ risk to the public”. The conclusion here is that the instigation of an alert letter is open to interpretation. The spectrum of discretion used is extremely wide – so wide that it is open to abuse. There is no accountability for the abuse of alert letters. The problem with alert letters is this – very little information is available regarding it. Case law is not publicised to the general public or doctors. It has never been assessed by parliament as to its legality following the Human Rights Act 1998. Moreover, it is open to use and abuse by a legion of NHS Managers and Employers who have a taste for victimising a junior doctor. For instance, Mr Robert Phipps – whistleblower to Bradford Royal Infirmary had an alert letter issued. Professor Rod Griffiths a Retired Director of Public Health West Midlands admitted to the General Medical Council that an – alert letter was open to him regarding a whistleblower. A veiled threat used to dissuade the whistleblower from making a valid complaint against him to the General Medical Council. When the whistleblower asked him what grounds he had to issue an alert letter, there was no reply. It should be noted that this documentation was written by Ms Zahida Ramzan Asgar solicitor to the Department of Health. Professor Griffiths is currently subject to Fitness to Practise procedures at the General Medical Council. This is simply an example of the easy abuse of alert letters to “ shut doctors up”. Alert letters were really invented to prevent the next Dr Harold Shipman. Our question is – will the alert letters really prevent the next Dr Shipman or are there so many flaws that the next killer will slip through the net. In 2004, the Department of Health issued a document instigating a review of the Alert letter system. Abuse of human rights In theory that sounds like a good idea to theoretically protect the public but this is open to abuse. The NHS is not a perfect institution but haunted by discrimination, vindictive employers and arrogant consultants. An alert letter therefore is a dangerous commodity in the wrong hands. Not only do alert letters stop you getting work in the NHS if you apply for other work employers ask you “Why is a doctor applying for this job?” When you say, “I have been accused of misconduct” they show you the door. If you read A Blot on the NHS 2 one year on (date checked 1 March 2006) you will see how these alert letters breach human rights.. “A dramatic extension of the abuse is the recent introduction of the grey warning letters. These are sent out by the employers to any prospective employer or place of work (e.g., private hospitals) of any suspended doctor (or nurse). Thus the accused is prevented from practising his profession that is his Human Rights are being breached. The accused person has not had a fair trial, in fact no trial at all, his case has not been heard by an independent tribunal and he can be in this state of limbo for years Any private practice income will be lost and even if he is cleared it will take many years to make up the deficit. There has been no suggestion of compensation even if it is admitted that the hospital trust had made a mistake. It is claimed that these are sent out only when there is a potential threat to patients. This is not true The Department of Health has no means of ensuring that its instructions in this matter are being followed. One doctor had to threaten legal action to force the private hospital to withdraw their block on his work as the suspension related to an allegation of neither personal nor professional misdoing (he was subsequently cleared of that charge). Other suspended doctors have also found that they are denied the right of private practice even though the allegations against them have no bearing on their clinical abilities. Fundamental to this problem is that the doctor is not innocent until proven guilty. He may be denied the right to work or earn his living merely because some administrator has been panicked by a false allegation. It is of course open season for any person with a grudge. One leading Queen’s Counsel has already stated that these grey letters are contrary to the Human Rights Act. The Department of Health promised to look into the matter again. Since then the silence has been deafening, but the abuses carry on. Regrettably the General Medical Council appears to be heading down this same path, blocking a doctor from earning his living following untested allegations e.g., refusing certificates of good standing. The driving force behind this is political, as politicians panicked by hysterical media response to the tragedy at Bristol, lash out at everyone and trampled on his or her traditional rights, liberty and freedoms. It is claimed that this is to protect the public but even the most hardened criminal, bank robber, murderer, etc. is not denied the right to earn his living (and freedom to commit mayhem against the public) until detailed charges are heard in a properly appointed court." What happens if you are cleared? It is the also the experience of the Society of Clinical Psychiatrists suspended doctors group that if a doctor has an alert letter issued then it will be almost impossible for him/her to find work in the NHS ever again- even if the letter is withdrawn. Are they legal? I have always felt that they are illegal as they presume that you are guilty even if proven innocent. My view has been endorsed by Lord Lester QC in his opinion on Alert letters provided to the Department of Health [1] Public safety has to come first- nobody will ever question that but as the table below shows there are already mechanisms in place to ensure public safety. Before an NHS employer takes on a health professional by law they have to check with that person’s regulatory body. In theory before you go before a regulatory body you should have your chance to put your case forward. It seems this right as been removed from UK doctors. There are four court judgments that have a profound impact on alert letters. Rupert Massey vs. United Kingdom In this case a convicted paedophile was awarded damages because the authorities took too long. The BBC news article is here The judgment of the case of Massey vs. United Kingdom European Court of Human Rights 16 November 2004 is here Alert letters can be in force for years and you can use this judgment to claim damages! The Belmarsh Prisoners The relevance of the Belmarsh Prisoners to the issue of Alert letters is shown below. On 16 December 2004 the house of Lords ruled on the Belmarsh Prisoner’s case it was ruled that Detaining foreign terrorist suspects without trial breaks human rights laws" It was quoted that Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. Compare this to what the SCP have written about suspended doctors. The hyperlink to the BBC news article is here. This is a comparator and you can see the similarities. The main feature is that there is already a pre-existing mechanism to ensure public safety.
The formal judgement is here just bear in mind that it is 100 pages long! The Ahmet judgment The Ahmet judgment throws a completely different light on the validity of alert letters completely. This is a landmark case where alert letters were considered in detail. In this case a nurse had an alert letter quashed on the grounds that his regulatory body- who are responsible for public safety did not form an Interim orders panel. Here is an extract from the judgment. "1 An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity. 3 Alert letters are not intended to be issued in circumstances
where an individual practitioner is being considered by their NHS employer."
Paragraph 3 has a footnote at the end in bold type: The document continues: 5 However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met. 6 In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (e.g. the General Medical Council) as a matter of urgency, by the initiating organisation..... Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required..... 7 In summary, the alert letter is a measure to reduce the risk of an unsafe or poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body has taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch. 11 This HSC [Health Service Circular] directs NHS bodies to put systems in place to implement and manage the new system for alert letters from 1 January 2003. These requirements are mandatory for NHS organisations..... 17 Of particular importance is the need to ensure that cases
in which alert letters have been issue are monitored and that letters
are rescinded as soon as appropriate..... " 26 The RDPH considers the representations from the organisation [the employer or former employer] and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession..... 27 The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency..... 29 Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration. 30 Following receipt of any representations, if the RDPH decides
that the individual does not in fact pose a serious potential or actual
risk to patients or staff, then the alert letter must be formally cancelled.
The RDPH's decision to cancel or not must be notified to the initiating
organisation within 7 working days of receipt of the representations by
the RDPH. The individual must be notified of the RDPH's decision by the
initiating organisation." 31 So far as is reasonably practical the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn..... While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant. 37 If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn - there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge 20 The NMC's proceedings are governed by the Nurses, Midwives
and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993.
It is not necessary to trace the rather complex history of the statutory
instruments by which these rules still apply. These rules apply to the
NMC notwithstanding that it did not exist in 1993. The parties happily
agree that these are the relevant rules. Rule 3 (1) and (3) read as follows:
The wording of Rule 3 (1) (b) (i) is not identical to the test laid down in Circular 2002/011 for the issue and maintenance of an alert letter, but its effect is very similar. If a registered nurse against whom a complaint has been made to the NMC poses a serious actual or potential risk to the safety of patients, the PPC may be expected to take the view that it is necessary to suspend his registration as an interim measure for the protection of the public. Conversely if the PPC, having considered the material submitted to it, declines to direct the practitioner to show cause under Rule 58 of the rules why he should not be subject to interim suspension, that does suggest that in the view of the committee on the material then available to it the practitioner does not appear to pose a serious actual or potential risk to the safety of patients. That outlines the procedure to be followed. However in addition the requesting NHS trust must review the situation on a monthly basis and inform the Department of Health of the result of the review. To my mind there are several scenarios that can arise.
In which case shouldn’t alert letters be outlawed immediately? The control orders judgment This is another nail in the coffin for alert letters. Click here and read Judge quashes anti-terror orders BBC news 28 June 2006. The judgement of the case of the Secretary of State for the Home Departments JJ; KK; GG; HH; NN;LL 28 June 2006 is here.
A new system It follows then in light of Ahmet these alert letters should be outlawed. My view is that if an NHS trust feels that a particular professional is an immediate risk to the public then the regulatory body that has the responsibility for protecting the public should form an interim panel immediately, hear both sides and decide what to do in exactly the same way as the Belmarsh prisoners or the same way a suspected criminal is awarded bail under certain conditions. The current system is open to abuse for any medical director who has a grudge. In my case, I believe this was the case. Under the current system the DoH only really hears one side of the story. You can appeal but you have to appeal to the DoH, which will only listen to the accusing medical director. So what do you do if you are subject to an alert letter? It is important to read the documents at the Department of Health regarding the issue of alert letters. These documents are 1. Health Service Circular (2002/011) 3. Health Service Circular (97/36) 4. An example from a Trust regarding their procedure The plan is very simple and I have learned this from bitter experience. It is important to familiarise yourself with the documentation regarding alert letters within the Trust etc. Employers have a duty to inform you of the procedure taken. If there is reluctance, every person can obtain the alert letter procedure by making a Freedom of Information Act 2000 request. Moreover, your own file can be obtained from the Trust and Department of Health under the Data Protection Act 1998. Anyhow, the first action should be to write to the Department of Health inviting them to withdraw the alert letter within 21 days. In your letter tell them that any failure to withdraw it within 14 days WILL result in an application to the Administrative Court for appropriate relief by way of judicial review and this will include a claim for damages. At the same time get your Department of Health personal file under the data protection act. They can’t refuse to give it to you. You will have to send a separate letter to the Department of Health in London. Make sure you send your letters by recorded delivery so you can prove when you send them. On the same day write to your regulatory body and instruct them to make a decision within 21 days but to take into account the representations you have made (or make enclosed with your letter). Tell them that any failure to make a decision within 21 days will result in an application to the Administrative Court for appropriate relief by way of judicial review to force them to make a decision. They won’t comply and so you will have to send the Department of Health a Pre-Action Protocol letter and give them 14 days. At the same time send a Pre Action Protocol letter to your regulatory body. Again they won’t comply so you will then need to initiate judicial review proceedings. It is important to seek legal advice prior to commencing this. Direct Access advice can be obtained from a barrister and one of the firms that do this is www.outertemplechambers.com. Alternatively, the law society has a list of solicitors you may wish to choose from. You can download the form from the Court service website. You will need a form N461 and depending if you are a training grade doctor you may need to do an emergency JR. It is very important to write to your defence body and/or your trade union, and/or your legal cover on your home contents buildings insurance (if you have it) to see if they will fund this. They probably won’t but then you can approach the Legal Services Commission and get it on legal aid. Legal aid is only there if nobody else will fund a legal claim. Once you show them the letters it helps a great deal. My lawyers decided to judicially review my alert letter. We lost (16 January 2004) but then something happened a year later. On 10 March 2005 I got my GMC personal file. When I got it I found out that the Department of Health had withheld information that if we had known at the time would have had a profound impact on the outcome of that judicial review.
Ironically on 1 October 2006 I emailed the Department of Health solicitors. One of the questions I asked was “Can you also confirm that the documents that were disclosed in the above named judicial review were a full and honest disclosure of documents?” At the time of writing – 11 November 2006 (42 days later) I have still to receive a reply! It is therefore extremely important to check the procedure used and whether it is indeed the correct procedure. It is also important to remember that solicitors at the Department of Health often have difficulty in presenting an accurate representation of the facts. For everyone’s own information, Ms Zahida Ramzan Asgar is a solicitor for the Department of Health in my case. People who didn’t have alert letters I felt it was important to show examples of doctors who have not had alert letters simply to provide an overview of the inconsistencies in the Department of Health’s workings. The hypothesis here is this – is the next Harold Shipman going to be prevented? These are individuals who do not have alert letters. The potassium case. A junior doctor at a Liverpool hospital caused the death of a patient when she was given an injection by mistake. A patient died after potassium chloride was injected straight into her blood stream instead of through a drip Drs Layman and Screiber offered `magic potions' to a pensioner with breast cancer were found guilty of acting irresponsibly but will be allowed to continue in practice. They were not interim ordered either. Mr. Charles Redman, a consultant gynaecologist and registered sex offender was allowed to return to work until the GMC have dealt with his case. Dr Herbert, went out one night got drunk and was accused of causing the death of a member of the public. Dr Reed, a North Yorkshire GP who carried out a number of violent attacks while drunk was banned from drinking by the General Medical Council (GMC). Dr Satya Prasad was found guilty of fraudulently using £23,000 of a government grant to buy himself a luxury car. By comparison these are the allegations I faced when I had my alert letter.
News Just In On 11 October 2006 I asked the DoH solicitors if the disclosure of document was "full and honest" disclosure of documents. As you can see from the above they withheld information. However today, 30 November 2006, the DoH has come back to me saying "I can confirm that a full disclosure of documents was made." Perhaps I should tell the Court of Appeal about this? Conclusion In conclusion these grey warning letters should be outlawed with immediate effect as they violate the human rights of a doctor and fail to protect the patient. The implementation of the alert letter is haphazard, disorganised and inconsistent. Moreover, we are uncertain as to how many doctors have alert letters issued against them illegally thereby assassinating their careers. An alert letter simply means a career crucifixion – that is the cumulative effect. As I have shown, an alert letter was issued against me for frivolous reasons. I have never been responsible for the death of a patient yet I will possibly never be able to work again. During the years of wilderness, your colleagues do not support you, your lawyers fail you and it is up to you to fight through the system to achieve justice. I still continue to fight – for a principle and for a reason – pre registration house officers should be trained not victimised thereby ruining their livelihoods. The system though is set against any junior doctor. Moreover as noted above, alert letters are often used to silence whistleblowers. There has been no proper review of the alert letter system in line with the human rights legislation. Lord Lester has already questioned the validity of such an alert letter. We are questioning the validity of its existence. The Ahmet judgment makes the situation of alert letters crystal clear yet there has been no action taken. No matter what the doctor is accused of, it is important for the authorities to follow procedural integrity to maintain that doctor’s human rights. Dr Harold Shipman’s human rights have always been maintained – mine as a pre registration house officer has been violated and overlooked. I am listed as a doctor with an alert letter but those who harm patients are free to seek work in many NHS Institutions. It is extremely important for any doctors who have alert letters to challenge them within a court of law. The alert letter currently continues without adequate policing or implementation – a fundamental abuse of human rights. Related Links Lord Lester comments on Alert Letters Article 6 – Department of Health Article The Queen of the Application of Dr D and The Secretary of State for Health NB Additional Material by Dr Rita Pal (rita@ritapal.com)
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