NHS England » Policy on managing the NHS Performers Lists (England)

1. Policy statement

This document sets out the processes that must be followed by NHS England teams when managing performers included on the NHS Performers Lists (England). Please refer to Policy for managing applications to join the England performers lists for the policy covering how NHS England manages applications to join one of the lists.

2. Scope

The scope of this policy is the management of medical, dental, and ophthalmic and ophthalmic medical performers (performers) who are included on an NHS Performers List (England) (the list(s)) in accordance with The National Health Service (Performers Lists) (England) Regulations 2013, as amended (the Performers Lists Regulations).

The Performers Lists Regulations provide a legal framework for managing medical, dental and ophthalmic performers who undertake clinical work under the provisions of an NHS primary care contract and entrust the responsibility for managing the lists to NHS England.

The various NHS primary care contracts require performers to be included on a list in addition to being included on the register of their respective professional regulator. For doctors and ophthalmic medical practitioners this is the General Medical Council (GMC), for dentists the General Dental Council (GDC) and for ophthalmic performers the General Optical Council (GOC). These regulators govern whether the registrant is fit to practise by confirming that they have the required qualifications, knowledge and skills to be a member of that profession.

In addition to being fit to practise, performers working in primary care must be able to demonstrate that they are safe and able to work independently in that setting. This is commonly referred to as being fit for purpose. Unless the contract for the delivery of services sets out an exemption, performers must also apply to join a list after they have been included on the professional register and must have received confirmation from NHS England that they are considered suitable to be included on that list before they start work in primary care.

Once included on a list, performers are required to notify NHS England of material changes to their circumstances and of any changes that arise that might affect their inclusion on that list. Likewise, NHS England has a responsibility to assess any information that it receives regarding performers included on the lists and, where necessary, to take action to ensure that it protects patients and the public from harm.

This document covers the processes by which NHS England:

administers the lists to ensure that the details of those included on them are up to date
manages concerns that arise to ensure that those included on the lists continue to be fit for purpose and safe to perform primary care services

The term performer is used throughout this document to mean the medical, dental, ophthalmic or ophthalmic medical performers included on the lists for the provision of NHS primary care services. Where the Performers Lists Regulations are quoted, the term practitioner is used.

3. Ensuring equality and fairness

3.1 Equality duties

The Equality Act 2010 prohibits unlawful discrimination in the provision of services (including healthcare services) on the basis of “protected characteristics”. The protected characteristics are:

age
disability
gender reassignment
marriage and civil partnership
pregnancy and maternity
race
religion or belief (which can include an absence of belief)
sex
sexual orientation

Unlawful discrimination can also occur if a person is put at a disadvantage because of a combination of these factors.

3.2 Unlawful discrimination

There are broadly 4 types of discrimination in the provision of services that are unlawful under the Equality Act:

direct discrimination occurs when services are not available to someone because they are, for example, not married, over 35, a woman. Apart from a few limited exceptions, direct discrimination will always be unlawful, unless it is on the grounds of age and the discrimination is a proportionate means of achieving a legitimate aim
indirect discrimination occurs when NHS England applies a policy, criterion or practice equally to everybody but this has a disproportionate negative impact on one of the groups of people sharing a protected characteristic, and where the complainant cannot themselves comply. Requirements for people to behave in a certain way will amount to indirect discrimination if compliance is not consistent with reasonable expectations of behaviour. Indirect discrimination is not unlawful if it is a proportionate means of achieving a legitimate aim
disability discrimination occurs if a person is treated unfavourably because of something “arising in consequence of their disability”. This captures discrimination that occurs not because of a person’s disability per se (for example, a person has multiple sclerosis) but because of the behaviour caused by the disability (for example, use of wheelchair). Disability discrimination is not unlawful if it is a proportionate means of achieving a legitimate end
a failure to make “reasonable adjustments” for people with disabilities who are put at a substantial disadvantage by a practice or physical feature. The duty also requires bodies to put an “auxiliary aid” in place where this would remove a substantial disadvantage (for example, a hearing aid induction loop)

3.3 Public sector equality duty

As well as these prohibitions against unlawful discrimination, the Equality Act 2020 requires NHS England to have “due regard” to the need to:

eliminate discrimination that is unlawful under the Equality Act
advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it
foster good relations between people who share a relevant protected characteristic and persons who do not share it

4. NHS England

NHS England is an NHS arm’s length body established by Parliament and charged with the stewardship of the NHS. It operates under a democratic mandate from government, and its mission, with its partners, is to improve health and secure high-quality healthcare for the people of England.

The Professional Standards teams (the team(s)) in NHS England’s Medical Directorate provide leadership and management on behalf of the national medical director in relation to NHS England’s statutory functions in respect of all performers included on the Performers Lists.

4.1 Performers List Regulations and Responsible Officer Regulations

For performers, the functions are derived principally from the Performers Lists Regulations and The Medical Profession (Responsible Officers) Regulations 2010, as amended (doctors only), which are statutory instruments for which NHS England has responsibility. They provide a platform for NHS England to provide clinical and managerial leadership for clinical professionals to achieve high professional standards and, importantly, provide authority to enable action to be taken to protect patients and members of the public when necessary.

While NHS England is a single organisation, these functions are operationally managed by regional teams. To ensure equity and consistency these teams are required to comply with the processes set out in this policy.

4.2 NHS England’s Workforce, Training and Education Directorate

On 1 April 2023, the Department of Health and Social Care (DHSC) arm’s length body formerly known as Health Education England (HEE) was re-established under the umbrella of NHS England and formed NHS England’s Workforce, Training and Education Directorate. Its function is to plan, recruit, educate and train the health workforce, to ensure that the workforce of today and tomorrow has the right skills, values and behaviours, in the right numbers, at the right time and in the right place.

The directorate has expertise in the assessment of competence and in devising educational and clinical support plans, and its advice should be sought in appropriate cases where the concern raised suggests that educational and/or clinical assessment or remediation is required.

4.3 Prescribed person

Prescribed persons are organisations and individuals that a worker may approach outside their workplace to report suspected or known wrongdoing. Prescribed persons have usually been designated as prescribed persons because they have an authoritative or oversight relationship with their sector, often as a regulatory body or professional bodies that are prescribed by government to hear concerns and that are deemed responsible for certain sectors/industries and/or issues.

All primary care organisations should have Freedom to Speak Up guardians in place who are there to support their workers to speak up about concerns they have at work. The leaders of primary care organisations are responsible for ensuring that their organisation has a clear policy for speaking up that provides a range of channels to speak up through.

NHS England is a prescribed person for primary care organisations.

Where staff have concerns, NHS England encourages them to speak up using the internal channels available to them and at an early stage. However, it is recognised that some staff may feel that they are unable to speak up within their own primary care organisation or they may feel that they have spoken up and that they have been ignored; in those circumstances, they can speak up to NHS England regarding their concern.

4.4 Speaking up

NHS England has an external Freedom to Speak Up policy for NHS workers which sets out that a whistleblower is an individual who works for an NHS organisation and contacts an external body such as NHS England with a concern about that organisation and its services.

This includes any healthcare professionals, non-clinical workers, administrative workers, directors, managers, contractors, volunteers, students, trainees, junior doctors, locum, bank and agency workers and former works. Some may identify as whistleblowers. Most, however, will not describe themselves as whistleblowers when they first make contact to share their concern, they may instead discuss speaking up or say they have some concerns they wish to raise. It is nevertheless important that they are recognised as whistleblowers if they meet the definition. This is necessary because NHS England is a prescribed person under the Public Interest Disclosure Act, further guidance can be found on the GOV.uk website. This provides some legal protection to whistleblowers and requires NHS England to record concerns raised and publish an annual report.

Patients or carers are not whistleblowers although they may describe themselves as such. Where they have concerns, they should be handled according to NHS England’s complaints policy.

Whistleblowing does not apply to personal grievances, including employment issues, which should be dealt with through internal organisational policies. It would generally be applied to issues about the provision of safe care and these types of concerns are sometimes referred to as ‘protected disclosures’ under the Public Interest Disclosure Act 1998.

4.5 Medical director

The Performers Lists are managed on a geographical footprint, and responsibility for the management of performers rests with the medical director system improvement professional standards (MD SIPS) in each team. The MD SIPS is accountable to the regional medical director in the team who in turn is professionally accountable to the national medical director.

The MD SIPS in each team is responsible for reporting and providing a declaration of compliance to the appropriate senior management team that summarises the themes and activity undertaken within agreed timeframes.

4.6 Responsible officer

The GMC requires every licensed doctor who practises medicine in the UK to revalidate to show that they are up to date and fit to practise, and in accordance with The Medical Profession (Responsible Officers) Regulations 2010, as amended, a licensed doctor must establish a connection to a designated body and a responsible officer. The responsible officer is required to ensure that systems are in place to evaluate a doctor’s practice on an ongoing basis, that they are regularly appraised, that processes are in place to investigate and refer any fitness to practise concerns to the GMC and make recommendations to the GMC for revalidation.

Doctors on a Performers List have a connection to NHS England as a designated body. Due to the number of doctors that connect to it, NHS England has appointed multiple ROs to enable doctors to connect to a responsible officer in their geographical footprint. In many cases MD SIPS have a dual role as MD SIPS and RO.

4.7 Regional head of professional standards

The regional head of professional standards (HOPS) is accountable to the MD SIPS in the team who in turn is professionally accountable to the regional medical director.

The HOPS is responsible for the operational management of the professional standards function within their geographical footprint, which includes, but is not limited to, oversight of the Professional Standards Group (PSG) and Performers List Decision Panel (PLDP) arrangements, appointment to roles relevant to the professional standards function, and ensuring that case managers are adequately supervised and supported.

4.8 Case manager

When information is received by a team, one or more members of staff will be responsible for the collation of information, record management and co-ordinating activities associated with the management of the information. This member of staff will be the principal point of contact until the matter has been resolved. They are not part of the decision-making process. This role is often referred to as the case manager.

4.9 Case investigator

If, following the receipt of information, a decision is made that it is necessary to commission an investigation to establish the circumstances and facts of an event or series of events, NHS England will appoint a case investigator. A case investigator will be paid by NHS England but is not necessarily employed by NHS England. The scope of their work is confined to that set out in the terms of reference (ToR). The case investigator is not part of the decision-making process.

4.10 Professional Standards Group

The remit of the Professional Standards Group (PSG), which is convened at a regional level, is to assess information received by NHS England in relation to a named individual on a Performers List in the relevant geography, and to decide if any further action is indicated (as well as applications to join the Performers Lists as described in the NHS England Managing Applications to Join the List policy).

The PSG’s constitution is derived from a pool of trained members with prescribed quoracy and voting rights (see section 10.3 for further details regarding membership). The roles the PSG must include are fixed but the members are not. Appointment to the pool of PSG members will be made, as necessary, by the Regional HOPS and/or MD SIPS/responsible officer. The PSG will be convened as frequently as the activity dictates. There is a standing invitation to the appropriate Local Representative Committee in the geographical area. Other individuals may be asked to attend to provide expertise as necessary.

If the PSG considers that Performers List regulatory action should be considered, it may issue notice as defined in the Performers List Regulations and covered in section 12 of this policy, and the case manager will make arrangements for the case to be considered by the Performers List Decision Panel (PLDP), which has authority to decide if the actions proposed in the notice are to be invoked.

4.11 Performers List Decision Panel

The remit of the Performers List Decision Panel (PLDP) is to consider information received by NHS England in relation to a named individual applying to or included on a Performers List. PLDPs and their constitution are derived from a pool of trained members with prescribed quoracy and voting rights. The roles of the PLDP members are fixed but the members are not (see section 15.3 for further details regarding membership). Appointment of PLDP members will be made, as necessary, by the Regional HOPS and/or MD SIPS/RO. The PLDP will be convened as frequently as the activity dictates.

Matters may be referred to the PLDP directly by the responsible officer, the MD SIPS or the PSG. The PLDP can take any action that the PSG can and is the only group with delegated authority to decide to invoke the regulations after appropriate notice as set out in the regulations has been served.

4.12 National case management system

All information relating to a performer included on a Performers List must be stored in the national case management system (CMS). The CMS should support NHS England’s staff to manage cases in a timely and robust manner and provide management information to the NHS England Board.

5. Other organisations

To manage concerns effectively, it may be necessary for NHS England to liaise with other organisations. Such organisation may include, but are not limited to, the following:

5.1 National professional regulators

Doctors, dentists and ophthalmic performers are regulated professionals and by law are required to be included on the appropriate register when working as such. The regulator of the profession is required to maintain the register of professionals who they have confirmed are qualified to meet the regulator’s standards.

The regulators set standards of competence and conduct relevant for the registered professionals and hold registrants to account if they do not meet the requirements set out. Where necessary they make decisions as to whether the professional is fit to practise with or without restrictions. The registers are a matter of public record.

5.2 Police

In circumstances where NHS England receives information that indicates possible criminal activity, it must inform the police accordingly. The police may also contact the professional regulator, the local authority or NHS England directly to seek information regarding an interest that they are pursuing.

5.3 NHS Counter Fraud Authority

The NHS Counter Fraud Authority is a health authority sponsored and accountable to the DHSC Anti-Fraud Unit. It is charged with identifying, investigating and preventing fraud within the NHS and the wider health group.

5.4 Local authority designated officer

The role of the local authority designated officer (LADO or designated officer) is set out in Working together to safeguard children (2018) (Chapter 2 Paragraph 4), and is governed by the local authority duties under section 11 of the Children Act 2004. The LADO is responsible for managing allegations against adults who work with children. The LADO does not conduct investigations directly, but rather oversees and directs them.

5.5 Care Quality Commission

The Care Quality Commission (CQC) is an independent regulator of healthcare services, and providers of primary care general practice and dental services are required to register with the CQC. The CQC requires each provider to have a registered manager who is responsible for the supervision of the regulated activity stated in the provider’s CQC registration. The CQC has responsibility for monitoring, inspecting and reporting its findings. CQC outcome reports are a matter of public record.

5.6 NHS Resolution Practitioner Performance Advice Service

NHS Resolution is an arm’s length body of DHSC. One of its main functions is the Practitioner Performance Advice Service (PPA), which provides expertise to the NHS on resolving concerns fairly in relation to doctors, dentists and pharmacists. Its remit includes the ability to undertake clinical performance and behavioural assessments where it is considered that would add value to the management of the presenting concern. There is no minimum threshold for seeking advice and members of staff are encouraged to make contact with the PPA as early as possible.

The PPA provides telephone and written advice relating to the management of a case. It can also provide advice on action plans and draw up return to work plans.

On behalf of the Secretary of State, it has responsibility for advising, monitoring and reporting on doctors and dentists who are the subject of a suspension or exclusion; as well as considering applications for withdrawal from a Performers List where the regulations require this.

Performers included on a Performers List must co-operate with an assessment by the PPA where appropriate and requested to do so by NHS England.

In addition, the PPA function is responsible for the management of the Healthcare Professional Alert Notices (HPANs) system. This is a system where NHS Resolution issues notices to inform NHS bodies and others about health professionals who may pose a significant risk of harm to patients, staff or the public.

5.7 Local representative committees

Each professional group has a Local Representative Committee (LRC) that represents the interest of the profession in a geographical footprint. The LRCs interact and work with their respective national representative committee.

It is important for performers to have confidence in NHS England’s management of the Performers Lists, and proactively engaging the LRCs in the processes enables NHS England to demonstrate fairness, openness and transparency. It also enables LRCs to add value to discussions and provides opportunities for performers to be signposted to pastoral support and local schemes overseen by or known to LRCs.

5.8 Integrated care boards

Integrated care boards (ICBs) are statutory bodies responsible for the delivery of many NHS services, including planning, commissioning and funding primary care in their geographical area. Where appropriate, the MD SIPS should work with the ICBs in their region to ensure that they are aware of any issues that might affect the safe and effective delivery of primary care services in their region, and have appropriate arrangements in place to share information.

5.9 First Tier Tribunal

Some decisions made by NHS England under the Performers Lists Regulations provide the performer with a right of appeal to the First Tier Tribunal (Primary Health Lists) (FTT). The FTT is an independent tribunal service and appeals to it are re-determinations of the original NHS England decision, in so far as the FTT can make any decision that NHS England could make. Appeals are heard in public, and the decisions made by the FTT are a matter of public record.

NHS England must implement decisions of the FTT, although in certain circumstances the performer must confirm that they are prepared to be bound by the FTT decision before NHS England implements it.

6. Managing concerns

When a concern arises about a performer’s practice it presents a 3-fold opportunity. These are to protect patients, support professional behaviours by the performer, and improve quality in the delivery of care. The resolution of concerns can be achieved through compassionate and early engagement, supported reflection, and learning by all involved in an open, fair and effective manner. To realise all 3 requires skillful and timely communication, emotional intelligence and a commitment to successful resolution by all parties.

The immediate response to a concern can set the direction for that which follows. Engagement of the performer as a professional participant is a key factor for successful resolution within local processes. Another key factor is to distinguish common variation of practice from those that veer significantly from accepted standards and respond accordingly.

6.1 Definition of a performance concern

A performance concern within the context of this policy relates to any aspect of a performer’s conduct, performance or health that may or may appear to:

present a risk to patient safety
undermine the efficiency of primary care services
undermine patient and public confidence in the NHS
represent a financial risk to the organisation or services
represent a significant departure from accepted guidelines and/or professional standards

Concerns may arise from a variety of sources and may present themselves in several ways, including but not limited to poor clinical performance, management or administration that compromises patient care, breaching professional boundaries with patients, colleagues or staff, not complying with professional guidelines, or criminal acts.

There may be single or multiple underlying causes for underperformance, but it is essential that any concerns are acted on promptly, fairly and proportionately. Most concerns are capable of being resolved locally, through which support and remedial actions can be quickly deployed without the need to resort to formal action under the Performers Lists Regulations. The earlier a concern is identified and addressed, the more likely it is that a satisfactory and successful outcome will be achieved. It is important therefore for all organisations to have effective processes in place to identify and manage concerns at the earliest opportunity.

6.2 Conflict of interest and perception of bias

A conflict of interest can be defined as a set of circumstances in which a reasonable person would consider that an individual’s ability to apply judgement or act, in the context of managing the Performers Lists, could be impaired or influenced by another interest they hold. The conflict of interest may be actual (a material conflict between one or more interests) or potential (a possibility of a material conflict between one or more interests in the future).

In addition to actual or potential conflicts, a member of staff may have interests that they do not consider a conflict, or they may have a bias that favours someone or something that others perceive to be a conflict or perception of bias. The test in English law for establishing bias is as set out in the 2002 decision Porter v Magill, which states “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias”.

Independence and the absence of bias are fundamental tenets of any decision-making process, and all staff involved in the management process for the Performers Lists must be able to demonstrate their independence and the absence of bias.

6.3 Consideration of concern at first presentation

When information received by NHS England indicates that there may be a performance concern, NHS England’s first consideration must be whether, if the information received is proved to be true, it creates an immediate risk to patients or members of the public.

A risk assessment should be undertaken using the NHS England risk matrix tool to establish the potential risk to patient safety. Should an immediate risk be indicated, the matter must be referred to the MD SIPS or delegated officer for consideration as to whether an immediate suspension from a Performers List is warranted.

At this stage, NHS England may wish to take advice from the PPA as part of its consideration.

During the first stage of consideration, NHS England must consider the nature of the concern and, based on its initial presentation, assess whether the concern relates to a conduct, capability or health matter as set out below.

These descriptions are based on the Department of Health guidance Maintaining High Professional Standards in the Modern NHS, 2005 [ARCHIVED CONTENT] Maintaining high professional standards in the modern NHS : Department of Health – Publications (nationalarchives.gov.uk) Concerns may fall within more than one category, and as the presenting issues are clarified the assessment of the issue may change. The categorisation of the issue being reviewed is an iterative one, as is the risk assessment of the case, and NHS England must ensure that a record of associated changes and the rationale for the changes is maintained and stored on the CMS.

6.4 Conduct

Misconduct can cover a very wide range of behaviour and can be classified in a number of ways, but it will generally fall into one of four distinct categories:

a refusal to comply with reasonable requirements of the commissioner or employer
an infringement of the commissioner or employer’s requirements including conduct that contravenes the standard of professional behaviour required of the performer
criminal offences within the workplace and some criminal offences outside the workplace
willful, careless, inappropriate or unethical behaviour likely to compromise standards of care or patient safety or create serious dysfunction to the effective running of a service

Failure to fulfil Performers List obligations may also constitute misconduct. For example, not making timely or honest declarations to NHS England may come into this category. Where the allegation relates to an employment issue and the employer’s code of conduct, the matter should in the first instance be considered by the employer, and NHS England should be notified that this is the case.

6.5 Allegations of criminal acts

In the event that NHS England becomes aware of an allegation of criminal behaviour, it must report this to the police or if appropriate the NHS Counter Fraud Authority and must only proceed with its own investigation when it has established with the relevant authority that proceeding with it will not impede a criminal investigation.

There are some criminal offences that, if proven, could render a performer unsuitable to remain included on a Performers List. In this event, even if NHS England is requested to pause its investigation, it will need to consider whether the performer poses a risk to patients and/or members of the public such as to merit consideration of suspension from a list while the allegations are being investigated by the third party. In the event that the criminal charges are dropped or do not lead to a conviction, NHS England must also consider the case to determine if the issues raised question the performer’s suitability to remain on a list.

Where criminality is admitted by the performer, NHS England must proceed to consider whether the performer is suitable to remain on a list regardless of whether or not parallel proceedings by the police, court or regulator are still underway.

Communication and information sharing are key in such circumstances for NHS England to make an informed decision regarding its next steps. A clear audit trail of communication between agencies must be maintained, particularly in relation to any agreement as to the extent to which an NHS England case can proceed where there is an ongoing investigation by a different agency.

In all cases involving allegations of criminal acts, NHS England must ensure that other parties involved in the investigation are aware of NHS England’s responsibilities in relation to the performer and, if possible, work with the authority to ensure that the interests of both parties are met.

6.6 Capability

A capability issue is described as a failure by a performer to deliver an adequate standard of care (or management) through lack of knowledge or ability. A capability issue may be repetitious in nature and may present as an inability by the performer to remedy the issue despite earlier remedial action being put in place.

Examples of concerns about capability are:

a lack of up-to-date knowledge or skills that compromise patient care
an inability to communicate effectively
an inability to work effectively within the team
an inability to perform the services required of them

6.7 Health

There are many factors that can affect a performer’s health, and there are several organisations that provide confidential advice and support to enable the performer to return to good health. Where health issues are not managed and they affect the performer’s ability to deliver an adequate standard of care (or management), the performer has a professional responsibility to seek help and to cease working until such time as they are fit enough to resume work.

NHS England (or the employer) should ensure that the performer has access to occupational health services, is signposted to appropriate support and treatment services, and assure itself that the performer’s ill health does not present a risk to patients that the performer does not recognise. In some circumstances it may be necessary to refer the performer to their professional regulator for consideration under their confidential health procedures.

Depending on the nature and seriousness of the health issue, NHS England may wish to take advice from the PPA to help them decide the appropriate course of action.

Health issues are a common component of concerns and are frequently unrecognised. Where health issues are present, actions to address a conduct or capability issue are more likely to be effective if the health issue is recognised and treated.

6.8 Situational context

Sometimes concerns might arise due to system or contextual issues. The presenting issues may overlap with system, team and/or contractual issues. Where these issues prevail, the MD SIPS and their teams may need to work with other teams both within and outside NHS England to ensure that issues affecting an individual’s performance are addressed alongside any intervention at individual performer level.

6.9 Fitness to practise

Fitness to practise refers to the standards set by the performer’s professional regulator that are informed by the relevant college or faculty. The standards set out the minimum required for that professional group.

6.10 Fitness for purpose

In addition to being fit to practise, performers working in primary care must also be able to demonstrate that they are safe and capable of working independently in that setting and in accordance with the agreed contract for services. This is commonly referred to as being fit for purpose. Performers who are not exempt under the regulations must apply to join the relevant Performers List after they have been included on the professional register and must receive confirmation from NHS England that they are considered suitable to be included on the list before they start work in primary care.

7. Role of employer/contractor (primary care providers)

7.1 Performers working in a designated body

Most performers included on the Performers Lists are independent contractors who are not employed by the NHS. Their inclusion on the lists is a requirement arising from the NHS contract for services and provides a statutory connection to NHS England for the oversight of their clinical performance, behaviour and, ultimately, suitability to provide NHS primary care services anywhere in England. In addition to their statutory obligation to be included on a Performers List, performers will be in partnership or contract with or be employed by an independent contractor, an independent sector organisation or an NHS trust. The principles of good clinical governance should be evident in each of those respective organisations; however, the day-to-day operational aspects of these will be variable.

7.2 Management of concerns closest to where the performer works

All organisations should have systems and procedures in place to identify and manage concerns arising from the conduct, capability or health of any member of staff who they employ. NHS England supports the principles that when concerns arise about a performer they should be managed as close (in terms of the employment or contracting relationship) to where the issue arose and as soon as possible after the event, as this is more likely to lead to a more timely and effective resolution that protects patients and puts in place safeguards and local support for the performer where necessary.

When information is received by NHS England about a performer included on a Performers List, it will need to consider whether it is appropriate to liaise with the performer and the organisation where the performer is working to establish who is best placed to consider the information received.

If the organisation is an NHS trust, for doctors and dentists the NHS trust should manage the issue under its own local human resources policies and where necessary under the Department of Health guidance Maintaining high professional standards in the modern NHS, 2005. If the performer is working in a different setting and it is agreed that the issue can be managed by the provider organisation, NHS England will signpost the provider to the Practitioner Performance Advice Service for it to secure independent advice on case handling.

There may be circumstances where the performer, the organisation that the performer is working within or NHS England believes that due to local context (for example, conflicts of interest or perception of bias), it would be more appropriate for NHS England to manage the concern. In this event, NHS England will need to agree with the performer the principles for sharing relevant information.

As performers may work in more than one location and as inclusion on a Performers List enables a performer to seek work in any primary care setting, NHS England must ensure that there is a commitment to timely information flows from the provider organisation, and specifically if the provider deems that the issue might affect the performer’s ability to work elsewhere.

Notwithstanding management of the issue at a provider level, if on receipt of information, NHS England considers that the issue raises a question as to the performer’s suitability to remain on a Performers List, it will need to undertake parallel processes to manage the concerns.

8. Maintaining the integrity of the Performers Lists

As part of their undertakings, performers included on the Performers Lists are required as to keep NHS England informed of any material changes to their information, including their contact details and other material information that might affect whether they should remain on a list.

NHS England should also have arrangements in place to validate that a performer included on a list is still undertaking primary care services and, where this is not evidenced, that arrangements are in place to consider whether the performer should remain on the List.

8.1 Declarations and undertakings

While included on a Performers List, performers have a responsibility to comply with specific undertakings and to inform NHS England by way of a declaration when an event happens. The key declarations relate to:

criminal convictions or police cautions in the UK
criminal convictions or police cautions elsewhere that would constitute a criminal offence if committed in England and Wales
involvement at an inquest
investigation or outcome of an investigation by a regulatory body
investigation or outcome of any investigation by the NHS Counter Fraud Authority
investigation by the holder of any list that could lead to their removal

In consideration of any declaration made, NHS England may request from the performer an explanation of the facts giving rise to the matter, relevant dates and any outcome, and copies of any relevant documentation. It may request further information from third parties such as the performer’s current or former employer and/or any regulatory or other body to help it ascertain what action, if any, should be taken.

If the information declared to NHS England raises a concern regarding the performer’s conduct, capability or health, the matter must be considered in accordance with the processes set out within this policy; this includes a risk assessment to determine whether there is an immediate risk to patient safety or the safety of an individual including the performer.

Any information declared to NHS England must be recorded in the CMS, together with a clear audit trail of the actions taken and the reasons for them.

8.2 Evidence of performing services within the preceding 12 months

As of January 2024, the Performers Lists Regulations require practitioners included on the lists to make an annual declaration to NHS England to confirm that they continue to perform primary medical, dental or ophthalmic services. This administrative process is to ensure that the Performers Lists, so far as is reasonably practicable, are current and only include practitioners who are working in NHS primary care services.

If information is received that indicates that a performer has not worked within the primary care setting in the preceding 12 months, NHS England will need to consider on a case-by-case basis whether it is appropriate for the performer to remain on a list. There is no threshold prescribed in the regulations setting out the amount of work that a performer must have undertaken to remain on that list, and as with any other discretionary Performers List regulatory action, each case must be considered on its own merits.

8.3 Scope of work

The scope of work for a performer included on a Performers List is likely to vary during the course of their working life. Provided that the performer continues to perform NHS primary care services safely, they may remain on that list even if they choose to limit their work to a defined clinical area.

Should the performer later choose to widen their scope of work, the performer has a professional responsibility to ensure that they work within the limits of their professional competence. In this event, the performer is expected to seek appropriate advice and support to ensure that they are fit to practise in the intended scope of work. NHS England can signpost and provide advice/support to the performer should this be required.

There is no requirement for the performer to notify NHS England of changes to their scope of work and no information about scope of work will be recorded against their Performers List record.

8.4 Withdrawal from the Performers Lists

If a performer wishes to withdraw from a Performers List, they are required to provide notice to NHS England at least 3 months in advance, unless it is impracticable for them to do so.

NHS England cannot refuse the performer’s request to withdraw from a Performers List unless:

the performer is suspended from that list
NHS England has decided to remove the performer from that list, but its decision has not yet taken effect
NHS England has issued formal notice that it is considering suspending the performer, imposing conditions on their continued inclusion on that List, or removing the performer from that List

If any of these circumstances apply, only the Secretary of State can consent to the performer withdrawing from that list. Consent from the Secretary of State is sought by application to NHS Resolution.

Nothing prohibits a performer from withdrawing from a Performers List if the circumstances above do not apply. If, however, a performer withdraws from that list during the course of an investigation, NHS England must take all reasonable steps to complete the investigation as far as possible; this includes engaging with the performer to seek information and share the outcome of the investigation and, where necessary, referring to the regulator or making an application for a HPAN.

There must be a clear audit trail maintained of the investigation and its outcome, with all documentation and decisions being stored on CMS. In the event of a re-application to join a Performers List, NHS England must give due consideration to these matters as part of its decision-making.

9. Receiving and assessing information

NHS England is committed to ensuring the early and timely resolution of concerns and, where appropriate, indicative timeframes are included in this policy to demonstrate this. The management of concerns can involve multiple parties and, where this is the case, NHS England’s management of the case may be reliant on receipt of timely and complete information from those parties to advance the case. For complex cases, NHS England may need to pause the management of the case while it awaits the actions of a third party. During the management of any concern, the case manager will maintain regular contact with the practitioner so that they are aware of how the management of their case is progressing.

9.1 Identification of a concern

It is important to note that not all information provided to NHS England will constitute a concern for consideration in accordance with this policy; some issues may arise that relate to a practice or service; some issues may constitute a patient complaint; and some issues may constitute employment issues. In such scenarios the concern should be directed to the most appropriate team or body (for example, the employer, commissioner, CQC, relevant NHS complaints team) and the information received must be recorded on the CMS to enable a clear audit trail to be kept.

If, following a review of the information received by NHS England, there is an indication that raises a concern in relation to the conduct, capability or health of a named performer included on a Performers List, at least 2 officers, a discipline-specific practitioner and an MD SIPS nominated member of staff employed by NHS England must review the concern raised. It is important that the reviewers exercise professional curiosity when considering the information, by asking questions about the context and situation, by keeping an open mind and by not taking things at face value.

The reviewers should use the risk assessment tool to make and record their assessment of the concern. This will identify if the information indicates the need to consider immediate action to protect patients and members of the public.

The reviewers should complete the initial assessment of the information ideally within 2 working days of receipt.

9.2 Engaging with the performer

Once a concern has been identified and considered as set out in section 9.1, unless there are exceptional circumstances associated with safeguarding individuals or securing evidence, NHS England must share the information and engage with the performer as soon as practicable.

Consideration must be given to the potential impact on the performer of being informed that a concern has been raised about them, and it follows that consideration must be given as to the method and timing of the communication to the performer to enable them to access advice and support if they wish to.

When sharing the information, the team should also signpost the performer to relevant sources of advice, including their indemnifier, defence organisation, trade union and/or LRC. The process of managing a concern should not be adversarial, and the expectation should be that both parties involved act with professionalism.

Complying with these principles enables the management of a concern to be conducted in a fair, open and transparent manner, and should enable the issue to be resolved at the earliest opportunity.

9.3 Preliminary enquiry

Following receipt of information and/or any response from the performer, it may be necessary to seek further information to enable NHS England to reach an informed view about the concern received. This stage is referred to as undertaking a preliminary enquiry. The preliminary enquiry is likely to be limited to information known to NHS England through its routine collection and storage of clinical governance information such as QOF reports, dental activity information, complaints history or visit reports. NHS England may find that it has historical information relating to the performer and it will be important to establish the relevance of it, if any, in relation to the current concern. Historical issues are unlikely to warrant re-investigation unless new information becomes known. Historical information may, however, be taken into consideration when assessing the current issue as it may identify a pattern.

If the concern was raised by a third party, the preliminary enquiry will need to include any information that was submitted by them, including any additional information provided to NHS England while clarification of the concern was being sought.

Any information collected from any source may exonerate the performer from the allegations made or may increase the level of concern if the allegations were true.

Unless there are exceptional circumstances, the performer should be invited to reflect on the information received and invited to provide any other information that they believe will be beneficial in resolving the issue. NHS England should complete the preliminary enquiry stage, including obtaining a response from the performer, as soon as practicable. With full engagement with the practitioner, this phase should be completed within 15 working days.

9.4 External information gathering

Either on receipt of a concern or on completion of a preliminary enquiry, NHS England may decide that it is necessary to request information from a third party to make a proper assessment of the matters presented. This is different to the preliminary enquiry stage where the information required by NHS England is already readily accessible without the need to defer to someone else.

Additional information from a third party is sometimes necessary to help inform whether an event has occurred and, if it has occurred, the extent to which this event is or is not representative of the performer’s usual practice. Requesting a record view is one example of such further information. While seeking information from a third party, it is incumbent on NHS England to ensure that confidentiality in relation to the performer is maintained at all times and caution must therefore be exercised.

If embarking on a record review, NHS England must confirm to the performer the methodology in relation to the record selection. Information collected during the external information gathering stage may exonerate the performer from the allegations made or may increase the level of concern if it supports the allegations.

Case managers must ensure that any information requested and obtained from a third party is formally logged as such and recorded on the CMS. The log must include all details of the information obtained (for example, number of records, number of pages in each record and whether the document was an original or a copy) and how it was obtained (for example, as a physical document or an electronic document). Where patient details have been redacted, there must be a means of retrospectively identifying who the record relates to. The log must reflect when documents were returned to the third party that submitted them.

Unless there are exceptional circumstances, the performer should be invited to reflect on the information received and invited to provide any other information that they hold that they believe will be beneficial in resolving the issue.

With full engagement with third parties and the practitioner, NHS England should aim to complete the external information gathering stage within 15 days from the decision to seek external information.

9.5 Investigations

Following an assessment of information gathered at the preliminary enquiry and/or external information gathering stages, if there is insufficient evidence or conflicting evidence to enable NHS England to properly establish the circumstances and events relating to the concern that have been raised, and it is considered necessary to establish the facts, NHS England may consider that a formal investigation is required.

An investigation is a defined process bound by agreed Terms of Reference (ToR). The process requires an impartial gathering of facts relevant to the event(s) that are under investigation, including the gathering of witness accounts of what occurred, together with relevant standards, guidance and policies applicable to the circumstances under investigation. An investigation may result in evidence being gathered that exonerates the performer or provides a sound basis for resolution.

The ToR are usually drafted by the case manager and approved by the MD SIPS, delegated officer or chair of the group that decided that an investigation should be commissioned. They must set out the scope of the investigation, the methodology to be applied during the investigation process, the specific questions the investigator should ask to establish the facts, and the timeframe within which the investigation is to be concluded. In most cases, the ToR should be finalised within 5 working days of the decision to commission an investigation.

The appointed case investigator must be trained and have had no prior knowledge of the matters to be investigated. The case investigator must be in good standing, whether this is with their professional regulator, employer or any other authority, and they must be able to confirm that they have no conflicts of interest. The case investigator is not required to be employed by NHS England but must have agreed to abide by NHS England’s governance arrangements referred to in this policy.

The performer must be informed when a decision has been made to investigate and must be provided with a copy of the ToR, together with any information that NHS England plans to share with the investigator. The performer may wish to comment on the ToR and provide additional information to share with the investigator. The ToR do not require approval by the performer.

The performer should be advised to contact their indemnifier, defence organisation, trade union and/or LRC, and provided with contact details for appropriate other support that is available to them.

If during the course of the investigation, new information becomes known that falls outside the scope of the agreed ToR, the case investigator must refer the matter to the case manager who will decide whether or not the ToR should be amended. In the event that it is agreed that the ToR require updating, the revised ToR must be shared with the performer.

The case investigator must have capacity to undertake the investigation as soon as possible. The timescale for undertaking and completing the investigation will depend on the type and complexity of the investigation and the availability of witnesses and access to evidence. The case investigator must keep the case manager updated on the progress of the investigation, and the case manager must maintain regular contact with the practitioner so that they are kept informed of the progress of the investigation.

The case investigator must log any information requested in the same way as set out in section 9.4, and must liaise with the case manager to ensure appropriate record keeping and return of the original documentation where necessary to the sender.

The case manager must share the final draft report with the performer, ideally within 5 working days of receipt of the report, and both parties (NHS England and the performer) must review the document for matters of factual accuracy only. On confirmation of matters of factual accuracy, the case investigator is responsible for finalising the report and providing a final copy to the case manager.

9.6 Assessment of information

Information collected as part of a preliminary enquiry, external gathering of information or an investigation must be considered by either a PSG or a PLDP (depending on the stage of the case). The PSG or PLDP will need to decide what, if any, further action is required.

For decision-making groups to be fully aware of all relevant information, the protected characteristics of the practitioner must remain accessible to those considering the case. PSGs and PLDPs must do everything possible to ensure each case is considered without bias or conflict of interest, and must be able to demonstrate they have given appropriate weight to cultural and other contextual information in their consideration of the case.

Patient-identifiable details should be redacted from the papers prepared for meetings, except for example age, sex and other information that may be relevant to the clinical decision-making in question.

The information presented to the PSG or PLDP must be factual, unambiguous and unbiased. The submission to the PSG or PLDP must include:

key contextual background information
an assessment as to whether the presenting issues relate to conduct capability or health, including whether there are issues that relate to more than one category
a summary of information available from the preliminary enquiry and/or external information gathering and/or the investigation report
a summary of findings from the preliminary enquiry and/or external information gathering and/or the investigation report
the most recent risk assessment including the rationale for the risk score
a clear outline of the issues to be considered by the PSG or PLDP
a summary of case management options for the PSG or PLDP to consider

The PSG or PLDP must consider the information presented and the nature and the severity of the concerns and decide what, if any, further action is warranted.

9.7 Record keeping

A clear audit trail of all discussions and decisions relating to each case must be maintained on the CMS; this includes records of informal discussions, which may be recorded as being informal but nevertheless need to be documented.

An accurate written record must be kept of the proceedings of PSG and PLDP meetings, including the decision and the rationale for that decision. A notetaker must therefore be present throughout the meeting, including during the panel’s deliberations and decision-making. In the case of an oral hearing the notetaker must remain present after the performer, their representative and the case manager have withdrawn.

Digital recordings (a recording device for a meeting in person, or using MS Teams or another digital platform) may only be made with the explicit agreement of all present. If it is proposed to make a recording of an oral hearing, this agreement should be sought well in advance from the performer and their representative. The case manager and other panel members should be made aware that this is the case.

The making of a recording does not replace the need to keep an accurate written record of proceedings and a notetaker should also be present throughout. Any digital recording made solely for the purposes of assisting notetaking should be disposed of on finalisation of the written notes, in accordance with NHS England’s Records Retention and Disposal Schedule.

If it is necessary to retain a digital recording in addition to the written record, it must be stored in accordance with NHS England’s Records Management Policy and may be disclosed to the performer, their representative or another body if so requested.

9.8 Access to legal advice

While managing a case, NHS England officers may wish to access legal advice and can do this via NHS England’s Legal team.

Requests for legal advice must be submitted by completing a legal requisition form, which must be sent to the national Professional Standards team and the Legal team.

The national Professional Standards team will liaise with the Legal team to confirm if a legal opinion is required or to confirm if the query can be resolved from previous legal advice sought or from within the national team. The Legal team or national Professional Standards team will confirm the next steps to the requester.

Where legal opinion is sought, the national Professional Standards team must be copied into any subsequent request for advice on the case and the legal advice provided to enable the central repository of advice to be updated.

The national team will maintain the central repository, anonymised as appropriate and make this available to all teams to access. This ensures that learning is appropriately shared, that NHS England manages concerns in a consistent manner and that legal costs are not incurred unnecessarily.

10. Professional Standards Group

10.1 Purpose

NHS England has established a Professional Standards Group (PSG) to support the assessment and management of concerns relating to performers. The remit of the PSG is to consider information relating to applicants wishing to join the NHS England Performers Lists and performers already on the NHS England Performers Lists, and to make well-reasoned and robust decisions in relation to the information presented so that patients and the public are protected, and performers only work in primary care when they are safe to do so.

The PSG must work in accordance with its ToR, as follows:

10.2 Principles

The principles that the PSG must comply with are that:

patient safety is of paramount importance
concerns are managed in a consistent, fair, open and non-discriminatory way
performers whose performance, conduct or health has given cause for concern are supported to return to a satisfactory standard wherever possible
the resolution of concerns is through appropriate local action and support to remedy issues wherever possible
where health concerns are indicated that appropriate advice is sought from occupational health or other specialist services to help inform appropriate resolution
concerns are resolved and managed with input from the performer
where it is deemed to be necessary, information is shared with, or referrals are made to, other health regulators to protect patients, the performer and the public purse

10.3 Membership, quoracy and voting

The PSG is convened at a team level and its constitution is derived from a pool of trained members with prescribed quoracy and voting rights. The roles required on the PSG are fixed but individual members are not. No member of the PSG is permitted to have had any prior involvement in the matters to be considered at the PSG.

Membership of the PSG will be as follows:

a senior NHS England professional standards manager (normally grade 8c or above or a medical/dental/ophthalmic equivalent, or other deputy as may be required) nominated by the MD SIPS, who will chair the PSG
a discipline-specific practitioner (see Appendix A: Glossary)
an NHS employed member of staff whose primary role is patient safety/quality
a lay member (appointment to this member role is expected to transition to a patient safety partner role as set out in Framework for involving patients in patient safety by 1 April 2025)

All 4 members have a vote and the chair has the casting vote. The PSG is deemed to be quorate even if the lay member is not present.

All members of the PSG other than the MD SIPS/responsible officer will be appointed to their respective roles in line with a competency framework. The skills and attributes that PSG members must demonstrate are set out at Appendix B.

A standing invitation to attend meetings of the PSG will be extended to the Local Representative Committee (LRC) for all performer groups. LRC members are not permitted to vote. An ad-hoc invitation to attend may be extended to others with appropriate expertise, including primary care contracting managers, individuals with an educational or remediation remit and local system colleagues. Such members will not be permitted to vote.

All members of the PSG must be appropriately trained and are required to have signed a declaration that they will comply with specified information governance and General Data Protection Regulation (GDPR) requirements.

All PSG members are required to declare potential conflict of interest or perceived bias at the earliest opportunity. The chair is responsible for assuring themselves at the start of each meeting that there are no conflicts of interest and/or perceived bias before each case is heard. This discussion should be documented, including the agreement on the handling of any conflict of interest or perceived bias.

Arrangements for voting PSG members who are not employed by NHS England are set out in the Members’ Agreement. Other invited members, including LRC representatives, are not covered by this agreement and no payment for attendance will be payable unless by prior agreement with the MD SIPS.

The PSG is not a public meeting and is part of NHS England’s internal clinical governance arrangements.

10.4 Accountability

Members of the PSG are ultimately accountable to their regional MD SIPS through their Regional Head of Professional Standards (HOPS).

10.5 Frequency of meetings

The PSG will be convened as frequently as the activity dictates and with sufficient frequency to ensure minimal delay in consideration of cases.

10.6 Information to be presented to the PSG

The information presented to the PSG must be factual, unambiguous and unbiased. The information presented must also have been shared with the performer. The submission to the PSG must include as a minimum:

key contextual background information
an assessment as to whether the presenting issues relate to conduct, capability or health, including whether there are issues that relate to more than one category
the outcome of the risk assessment
a summary of information available from the preliminary enquiry
a summary of findings from the preliminary enquiry
a clear outline of the issues to be considered by the PSG
a summary of case management options for the PSG to consider

10.7 Consideration of information

The PSG must consider all the information provided to it and must discuss and decide on an appropriate course of action.

In considering the information, the PSG is encouraged to consider to what extent the situation and context, for example environmental or systemic issues, or a performer’s individual factors (such as health, culture, relationships with peers and support structure) contributed to the event or sequence of events that occurred.

Specifically, the PSG must:

consider if the information presented to it indicates that it is necessary to refer the matter to the MD SIPS for consideration of immediate action under the Performers Lists Regulations and, if this is the case, to bring it to their urgent attention; otherwise, it must:
consider whether it has sufficient information from NHS England and the performer to make an informed decision as to what further action, if any, is needed
undertake a risk assessment using the risk assessment tool
where appropriate, request a formal investigation and endorse the ToR for that investigation
where appropriate, refer to occupational health for advice
where appropriate, refer to external agencies for advice and/or assessment; for example, the Practitioner Performance Advice Service and the GMC Employer Liaison Adviser
where appropriate, request that NHS Resolution issues a HPAN
where it considers that local action is required, decide whether matters relating to capability or health are amenable to the consensual drafting of Agreement Terms with the performer
where the matter relates to a conduct issue that has been admitted by the performer or proved through an investigation process by NHS England or a third party, decide whether the matter is amenable to the consensual drafting of Agreement Terms or if action under the Performers Lists Regulations is indicated and, if this is agreed, issue notice of action as set out in the regulations; or in the alternative refer the matter to the PLDP for consideration
where it considers that local action is required due to matters relating to conduct, capability or health, and the matters are not amenable to Agreement Terms and require consideration under the Performers Lists Regulations, to decide if action under the regulations is indicated and, if this is agreed, issue notice of action as set out in the regulations; or in the alternative refer the matter to the PLDP for consideration

If the PSG considers that list action should be considered, it may issue notice of proposed action as set out in the Performers Lists Regulations and section 12 of this policy, and the case manager will make arrangements for the case to be considered by a PLDP.

The PSG is not permitted to make decisions that change the status of the performer on a Performers List; the remit to invoke decisions affecting the status of the practitioner on the list is reserved to the PLDP.

10.8 Record keeping

An accurate written record must be kept of the proceedings of PSG meetings, including the deliberations, decision and rationale for that decision. A notetaker must therefore be present throughout the meeting, including during the panel’s deliberations and decision-making.

10.9 Responsibilities of all PSG members

All PSG members are required:

to prepare thoroughly in advance for meetings by carefully reading and assimilating the information presented in advance
to carefully consider all information presented to the group both in advance and during the meeting
to ask questions and critically evaluate the evidence presented
to discuss with other group members and reach a consensus on the most appropriate outcome
to contribute to reaching decisions that are appropriate, balanced and comply with relevant legislation and policy
to maintain high standards of integrity and support others to achieve these throughout the panel’s deliberations
to maintain competence in relevant skills and knowledge through attending training and appraisal
to declare any interest that may be relevant to the case
to maintain confidentiality in accordance with the statutory duties of the organisation
to demonstrate commitment to equality, diversity and inclusion, with an understanding of unconscious bias and how it may affect decision-making

10.10 Responsibilities of the PSG chair

In addition to meeting the above expectations of all group members, the PSG chair is responsible for:

conducting proceedings in a fair, open and transparent manner and in accordance with the ToR
considering any declarations of interest and taking action to ensure the integrity of the decision-making is maintained
ensuring that all group members contribute to discussion and decision-making, and that where there are differences of opinion, these are discussed and understood
taking overall responsibility for ensuring that decisions are robust and stand up to scrutiny
ensuring that all present are clear on the decision being made
ensuring that a full and accurate record of the discussion and actions agreed is made (including approving the record as accurate)
ensuring that the performer is advised of the decision of the PSG within 5 working days of the PSG The outcome letter must as a minimum include:
- its decision, along with the reasons for that decision
- the information that it was relying on when making the decision
- any actions that it requires the performer or NHS England to progress
- who to contact in NHS England for further advice or information
- information about external organisations that can provide support and advice
if the decision is to issue notice of action under the Performers Lists Regulations, ensure that the notice letter fully complies with relevant paragraphs set out in the regulations

The decision letter, signed by the chair and in PDF format, must be sent to the performer. This could be by electronic means or by post and with options to confirm receipt of delivery and read notices as applicable. The notes of the PSG discussion and actions agreed, and the outcome letter must be stored in the CMS.

11. Agreement Terms

In many cases, and where a performer demonstrates appropriate engagement and insight, concerns may be resolved with support and remedial actions that can be agreed by all parties without the need to resort to formal action under the Performers Lists Regulations. Where this is the case, the performer could be invited to engage with NHS England using the Agreement Terms process.

Agreement Terms are a consensual agreement between NHS England and a performer, which may be used as an alternative to imposing conditions.

Only the PSG or PLDP can decide to offer the performer Agreement Terms following their assessment and consideration of the case.

Agreement Terms should be specific, measurable, achievable, realistic and have a timescale attached to them (SMART), and should be in place for no longer than 6 months without a review.

Agreement Terms should not be used where:

a risk assessment indicates that there is a severe risk to patient safety, and/or
there is a concern regarding a performer’s insight and/or willingness to engage with Agreement Terms

Following a decision made by the PSG or PLDP, the performer will be invited to agree to the Agreement Terms. An agreement will be conferred when the performer has returned their signed Agreement Terms; this must be received within 28 days of the date of offer.

11.1 Process to be applied when the performer does not agree to the Agreement Terms

If a performer does not accept the Agreement Terms or fails to return signed Agreement Terms within the specified timescale, the case must be referred to a PSG or PLDP to confirm that notice should be given to impose conditions on the performer’s continued list inclusion. In this circumstance, the PSG or PLDP must follow the process set out in the Performers Lists Regulations.

11.2 Reviewing progress against Agreement Terms

NHS England must review a performer’s progress at agreed intervals as set out in the Agreement Terms. The review can be conducted by either the PSG or PLDP. NHS England must inform the practitioner that they intend to review their progress and provide them with 28 days to submit evidence that they wish NHS England to consider when undertaking the review. The review will give rise to one of four outcomes:

partially complete
all actions satisfactorily completed as set out in the Agreement Terms
further work required to satisfactorily complete action(s) (further details to be confirmed with the performer)
non-compliance with the Agreement Terms

Following a review, if it is determined that the performer has not satisfactorily completed the actions set out or that they have not complied with the Agreement Terms, the PSG or PLDP must give consideration as to what action may be necessary. This may include issuing notice to take Performers List regulatory action, or the PSG or PLDP may determine that no regulatory action is required, and the matter may be referred to the case manager with a recommendation to continue under revised Agreement Terms.

12. Grounds for Performers List regulatory action

The Performers Lists Regulations provide the authority for NHS England to suspend a performer from a list, to impose conditions on a performer’s inclusion on a list, and to remove a performer from a list. The regulations prescribe the process that NHS England must follow to ensure that this authority is conducted in a fair, open and transparent way.

If NHS England is considering invoking the Performers Lists Regulations, it must first determine the grounds on which it is taking or plans to take action. There are 3 grounds for taking action: efficiency, unsuitability and fraud, and these grounds may overlap. The grounds are not defined in the Performers Lists Regulations. However, the following is an adaptation of the definitions stated in the Department of Health guidance Primary Medical Performers Lists – Delivering Quality in Primary Care – Advice for Primary Care Trusts on List management, SI 2004/585, which sets out:

12.1 Efficiency grounds

These grounds may be used when the inclusion of the performer on a Performers List could be prejudicial to the efficiency of the service that is performed. Broadly speaking, these are issues of competence and quality of performance. They may relate to everyday work, inadequate capability, poor clinical performance, bad practice, repeated wasteful use of resources that local mechanisms have been unable to address, or actions or activities that have added significantly to the burdens of others in the NHS (including other performers).

12.2 Unsuitability grounds

Unsuitability as a ground for action could be relied on where:

it is a consequence of a decision taken by others (for example, by a court or professional body, or the contents of a reference)
there is a lack of tangible evidence of a performer’s ability to undertake the performer role (for example, satisfactory qualifications and experience, essential qualities)

The term is used with its everyday meaning and so provides NHS England with a broad area of discretion. Unsuitability and efficiency grounds may overlap, and in many cases, NHS England may find itself able to take action against a performer under either ground.

12.3 Fraud grounds

Fraud is defined by the Fraud Act 2006 and can occur either to make a gain or to cause loss to another or to expose another to a risk of loss. Fraud can occur by false representation; failure to disclose information; and by abuse of position.

Fraud may involve the misappropriation (or attempted misappropriation) of NHS resources for personal gain or the gain of others.

13. Types of Performers List regulatory actions

The Performers Lists Regulations set out procedures that NHS England must follow if it is considering exercising its powers to impose (or vary existing) conditions on a performer already included on a Performers List; or remove or suspend a performer from a list.

13.1 Mandatory actions

In some circumstances NHS England has no discretion as to the action it must take and therefore no consideration by the PLDP is required. For example, where the performer is no longer included on their professional register, NHS England must remove them from the Performers Lists. In these circumstances when NHS England is mandated to take action, the performer is advised of the action taken and the reasons why. In these circumstances, the performer has no right of representation and although some mandatory actions provide for a right of appeal to the FTT, the case is unlikely to progress to a hearing for this reason.

13.2 Discretionary actions

In other circumstances, NHS England has full discretion to decide on what action it wishes to take. The discretionary actions available to it are:

suspension (noting that this action may be mandatory when invoked under specific aspects of the Medical or Dental Act)
imposition of conditions
varying conditions
review of conditions
review of suspension
removal from a list

13.3 Issuing notice

For all discretionary actions, NHS England is required to follow the procedures set out in the Performers Lists Regulations, which in summary are to give notice to the performer of the action that NHS England is considering taking, the information relied on, and the performer’s right to provide written representation or request an oral hearing within an agreed timeframe. This procedure is commonly referred to as ‘giving notice’.

13.4 Conditions

NHS England may impose conditions on a performer’s continued inclusion on a Performers List on the grounds of efficiency. Conditions provide a means to safeguard patients, the public and the efficiency of the service, and enable the performer to continue working while they engage in a parallel remediation programme or comply with restrictions imposed by NHS England. Conditions imposed must be specific, measurable, attainable, realistic and timebound (SMART) and be directly relatable to the efficiency issues that gave rise to the need for conditions to be imposed.

Conditions cannot be used as a substantive measure in an unsuitability case. The effect of the law is that a performer is either suitable or unsuitable; there are no degrees of suitability. The only exception to this may be where conditions are used as an interim measure as an alternative to suspension.

When considering whether conditions are appropriate, the PSG or PLDP should take into account whether the performer has shown insight into the issues. For example, has the performer, on reflection, recognised or demonstrated that they would act differently if the situation were repeated, and have they demonstrated capacity and capability to remedy the issue. This is not necessarily the same as the performer admitting liability for an error but is a key factor as to the likelihood of conditions being effective.

The performer should understand what is expected of them and by when, to demonstrate their compliance with the conditions. It must be made clear to the performer what the consequences of failing to comply with the conditions are.

If a performer fails to comply with any condition or conditions imposed by NHS England, this may indicate that the grounds for the case have moved from an efficiency case to an unsuitability case.

13.5 Removal from a Performers List

NHS England may exercise its power to remove a performer from a Performers List where it considers that the performer is no longer suitable to remain on that list. The grounds for removal may be for fraud, efficiency or unsuitability, or a combination of these grounds.

Removal from a list does not prejudice a performer’s ability to re-apply in the future. If the performer is subject to a national disqualification, however, this may limit when a performer can apply again to join a list.

14. Suspension from a Performers List

The Performers List Regulations provide the authority for NHS England to suspend a performer from a list when it considers that it is “necessary to do so for the protection of patients or members of the public or that it is otherwise in the public interest”.

A suspension imposed under the Performers List Regulations is not a sanction; it is put in place while NHS England decides what further action, if any, to take. It is a neutral act. A decision to suspend a performer is one of last resort where it is judged necessary to manage risk (if the allegation(s) were proved to be true) while NHS England (or another regulatory body) undertakes an investigation into the matters presented. NHS England acknowledges that the impact on the performer of being suspended is likely to be significant and they may not perceive it as a neutral act. While the performer is suspended, the case manager must keep the performer updated on the progress of their case and must keep the suspension under constant review to ensure that the suspension remains in place for the minimum period possible.

If the performer’s regulatory body has suspended them from the professional register using its interim proceedings, NHS England must also suspend the performer. If the regulator has found, using its own tribunal proceedings, that the performer was impaired and decides that the performer should be suspended from the professional register for a period of time as a sanction, NHS England must remove the performer from the Performance Lists (except in those circumstances set out in the Providers Lists Regulations where the sanction relates to a health matter).

Where the matters are not within the purview of the professional regulator, it is for NHS England to decide whether it is necessary to suspend while the fact(s) of the event(s) are being established. This decision is based on a risk assessment of the information received and the risk scoring is based on the risk that would arise if the information were true. It is unlikely to be based on evidence at this stage. Nonetheless, suspension should be considered as a last resort, where it is deemed that the risk cannot be managed by any other means.

A performer who is suspended from a list is still treated as being included on that list, although while they are suspended the performer is not permitted to perform any aspect of any primary care services for any patient.

Although the following examples are not exclusive, suspension to protect patients may be thought necessary if there is evidence of sub-standard clinical practice or personal behaviour, or if there are investigations or proceedings involving serious offences such as those involving sex or violence. A public interest justification for suspension might be said to exist if:

allowing the performer continued access to staff or patients might prejudice a major fraud investigation significantly, whether the investigation is being undertaken by NHS Counter Fraud or the police
allowing the performer to continue to perform the services would likely cause serious disruption to the efficient delivery of services to patients

NHS England must ensure that:

any suspension is necessary for the protection of patients or members of the public or is otherwise in the public interest
suspension is used only as an interim, holding measure while investigating or taking other action to effectively manage the issue raised
other action, for example restriction of duties or supervision, has been considered and deemed not appropriate
suspension from a Performer List is kept to the minimum amount of time necessary
the performer is signposted to the relevant support organisations as relevant to the case
a named case manager is appointed to manage the case and the performer is made aware of how to contact the case manager

14.1 Immediate suspension

The Performers Lists Regulations permit NHS England to impose an immediate suspension. This decision can be taken by a fully constituted PLDP or by an NHS England medical director with the agreement of one other NHS England director. Whenever possible, the medical director is encouraged to seek advice from the Practitioner Performance Advice Service (PPA) before taking the decision and, where it is not practical to take advice from the PPA before imposing a suspension, to do so as soon as practicable after the suspension has been imposed.

NHS England must follow the procedure set out in the Performers Lists Regulations and make every effort to notify the performer immediately, signpost them to advice and support from their defence organisation and any other body as appropriate, and provide them with a named contact in NHS England for any clarification or information.

In accordance with the Performers Lists Regulations, the decision to suspend with immediate effect must be reviewed before the end of the next working day following the day on which the initial decision was made. NHS England’s policy is that the review must not take place on the same day that the decision to impose an immediate suspension was taken. The review must be conducted on the next working day following the initial decision and can be undertaken by a PLDP chair and one other PLDP member; or it can be reviewed by a fully constituted PLDP if practicable. No member reviewing the decision shall have had any prior involvement in the matters to be considered. If the decision is not reviewed on the next working day following the initial decision, the suspension will cease to have effect.

Following the review, NHS England must follow the procedure set out in the Performers List Regulations, which includes giving the performer notice of what further action it is considering and on what grounds, and an opportunity to put their case at an oral hearing; and making every effort to notify the performer immediately, signpost them again to advice and support from their defence organisation and any other body as appropriate, and provide them with a named contact in NHS England for any clarification or information.

Where a practitioner does not wish to attend an oral hearing, a PLDP must consider the case on the papers and confirm or revoke the suspension.

If an oral hearing of the suspension does take place, NHS England may, after consideration of any representations, confirm or revoke the suspension, or propose conditions that if agreed to by the performer, would allow them to resume practice subject to those conditions. The Performers Lists Regulations make clear that such conditions are temporary conditions pending a decision or outcome of an investigation or court elsewhere, as set out in Regulation 12(1), and are not substantive conditions imposed after the findings of an investigation. These conditions are not subject to appeal, but the practitioner does have a right of review.

14.2 Notice of suspension

NHS England may, after consideration of the information, decide that there is no necessity to impose an immediate suspension because mitigation is already in place to protect patients and the public interest. An example of this might be that the performer is unable to practise in England as they are overseas or held in custody.

In this circumstance a PSG or PLDP may decide that it wishes to give notice to a performer and provide the performer with the opportunity to put their case at an oral hearing with a PLDP before a decision is reached.

14.3 Mandatory suspensions

Where the performer’s regulatory body (GMC, GDC, GOC) has imposed an interim suspension order, NHS England must suspend the performer from the Performers Lists. NHS England must follow the procedure set out in the Performers Lists Regulations to notify the practitioner and all relevant bodies of the suspension.

Nothing within these regulations prevents NHS England from progressing a case while suspension by the regulator is in place. Unless there are exceptional circumstances that prevent NHS England from undertaking or concluding its own investigation into the matters raised, the case must be considered by the PLDP with a view to determining if the suspension could be replaced by removal from the Performers Lists. In this event, NHS England should ensure that any evidence on which it is relying is shared with the regulator.

Where NHS England progresses its own investigation, evidence gathered during the investigation may suggest that suspension is no longer appropriate, and efforts should be made to share information with the regulator so that it may consider whether its suspension should be lifted.

When the suspension imposed by a regulator under interim orders arrangements ceases, NHS England’s mandatory suspension automatically ceases at the same point. NHS England must therefore keep the case under continuous review and ensure that appropriate local arrangements are in place to mitigate any risk.

14.4 Case management of suspended performers

Suspensions must be kept under continual review with a clear plan for managing the case (with ongoing advice from the PPA) to ensure that performers are not suspended for any longer than is necessary.

Active management by NHS England and timely access to the relevant information relating to the matters that led to suspension will enable a decision to revoke the suspension and replace it with alternative actions at the earliest opportunity. Achieving this may require working with other regulatory bodies, including the professional regulator, the police and NHS Counter Fraud Authority, to ensure that relevant information is shared to enable NHS England to fulfil its statutory functions arising from being the custodian of the Performers Lists.

When a performer is suspended there must be a clear action plan setting out how the matter will be resolved within the agreed time limits. The team must ensure that there is oversight and exception reporting in place to ensure that cases are managed in a timely manner.

14.5 Revoking a suspension

With the exception of suspensions invoked under 12(1)(A), the Performers List Regulations permit NHS England to revoke a suspension with immediate effect where it has evidence that there is no longer a risk to the safety of patients and the public if the suspension is lifted. The performer, along with the persons and bodies set out in these regulations, must be notified if the suspension is revoked.

14.6 Payments to suspended performers

Where a performer is suspended from a Performers List, they may be entitled to receive suspension payments. NHS England must advise the performer that this is the case and signpost them to the relevant Secretary of State Determination, which sets out the process and defines the eligibility criteria. The process set out in the Performers List Regulations and the associated determinations must be adhered to; this includes but is not limited to the following principles:

the performer must make a claim as set out in the Determination within 90 days from the date of suspension
teams must assess the information and, where appropriate, make timely suspension payments where they are satisfied that the performer has provided the appropriate information and met the criteria for a payment to be made
if a practitioner wishes NHS England to reconsider its decision in respect of suspension payments, they must make a request for NHS England to do so within 28 days from the date of NHS England’s initial notification regarding payments
teams must keep suspension payments under continuous review and assure themselves that there has been no change in the performer’s circumstances that would affect the performer’s continued eligibility for suspension payments
if NHS England becomes aware that it has made an overpayment to a performer, it must take steps to recover the payment in accordance with the Determination and NHS England’s associated guidance

15. Performers Lists Decision Panel

15.1 Purpose

The remit of the Performers List Decision Panel (PLDP) is to consider information relating to:

applicants wishing to join the Performers Lists
performers already on the Performers Lists

and to make well-reasoned and robust decisions so that patients and the public are protected, and performers only work in primary care when they are safe to do so.

Except for cases that warrant an immediate suspension from a Performers List, the PLDP is the only panel that has delegated authority from the NHS England Board to invoke discretionary regulations that change the status of the performer on the list.

15.2 Principles

The principles that the PLDP must comply with are that:

patient safety is of paramount importance
there is a consistent, fair, open and non-discriminatory approach to the management of concerns
performers whose performance, conduct or health has given cause for concern are supported to return to a satisfactory standard wherever possible
the resolution of concerns is through appropriate local action and support to remedy issues wherever possible
concerns are resolved and managed with input from the performer
where it is deemed necessary, information is shared with or referrals are made to other regulators to protect patients, the performer and the public purse
where Performers List regulatory action is required, that this is taken in strict adherence to the regulations laid down

15.3 Membership, quoracy and voting

The PLDP is convened at a team level and its constitution is derived from a pool of trained members with prescribed quoracy and voting rights. The roles required on the PLDP are fixed, but the members are not.

PLDP members are as follows:

NHS England chair (who is either the MD SIPS or responsible officer, or is their nominated deputy [grade 8c or above or a medical/dental/ophthalmic equivalent], the HOPS, or an NHS England employed chair who fulfils the agreed criteria set out in the job role)
the MD SIPS or responsible officer (or a nominated deputy/associate medical director or the HOPS)
a discipline-specific practitioner (see Appendix A: Glossary)
an NHS employed member of staff whose primary role is patient safety (appointment to this member role is expected to transition to a patient safety partner role as set out in Framework for involving patients in patient safety by 1 April 2025)

All 4 members need to be present for the PLDP to be quorate. If the PLDP is meeting virtually, all cameras must be switched on unless otherwise agreed by the chair. All members have a vote and the chair has the casting vote, if necessary.

At the chair’s discretion, one or more observers may be invited to attend the PLDP. Observers must not play any part in the proceedings and the practitioner must have been advised of their presence and given the opportunity to object to their attendance. If the practitioner objects, the observer will not be permitted to attend.

All members of the PLDP other than the MD SIPS/responsible officer will be appointed to their respective role on the PLDP in line with a competency framework. The skills and attributes that PLDP members must demonstrate are set out at Appendix B.

All members of the PLDP must be appropriately trained and are required to have signed a declaration that they will comply with specified information governance and GDPR requirements.

The PLDP members may be assisted by an NHS England-employed subject matter expert who is able to provide advice and guidance in relation to the panel’s application of the regulations in relation to the case. The subject matter expert is not a member of the panel and does not have voting rights.

Members may have prior knowledge of the case being considered if they were a member of a previous PLDP. Where that PLDP made a decision and that decision has been invoked, and the case has progressed to a new stage, nothing prevents the member from hearing the case.

No member can sit on a PLDP to invoke the Performers Lists Regulations when they had been involved in the decision-making to give notice.

PLDP members must declare any potential conflict of interest or perceived bias at the earliest opportunity. The chair is responsible for assuring themselves at the start of each meeting that there are no conflicts of interest and/or perceived bias before each case is heard. This discussion should be documented, including the agreement on the handling of any conflict of interest or perceived bias.

The PLDP is not a quasi-judicial proceeding, nor is it a public meeting. It is part of NHS England’s internal clinical governance arrangements.

15.4 Accountability

Members of the PLDP are ultimately accountable to their regional MD SIPS through their Regional HOPS.

15.5 Frequency of meetings

The PLDP will meet as often as required and with sufficient frequency to ensure that cases can be considered in a timely manner. When the PLDP is required to make decisions that would affect a performer’s status on a Performers List, and notice has been issued and at least 28 days have lapsed, every effort should be made to convene a standalone PLDP. This would include decisions relating to the proposed:

suspension from the list; or
first imposition of conditions on continued inclusion on the list when these are not a mirroring of conditions imposed by the regulator; or
review or varying of existing conditions when the proposal is to increase the restrictions or remediation already in place; or
removal from the list in relation to cases of misconduct, lack of capability or ill health cases

A standalone PLDP will enable the performer (where oral representation has been requested) to make representation to the PLDP. Regardless of whether the practitioner is present or otherwise, a standalone PLDP will enable the PLDP members sufficient time to critically analyse all the information before them to support robust and proportionate decision-making.

15.6 Record keeping

An accurate written record must be kept of the proceedings of PLDP meetings, including the deliberations, decision and the rationale for that decision. A notetaker must therefore be present throughout the meeting, including during the panel’s deliberations and decision-making. In the case of an oral hearing the notetaker must remain present after the performer, their representative and the case manager have withdrawn.

15.7 Information to be presented to the PLDP

The information presented to the PLDP must be factual, unambiguous and unbiased, and must have been shared with the performer.

The submission to the PLDP must include:

key contextual background information
an assessment as to whether the presenting issues relate to conduct, capability or health, including whether there are issues that relate to more than one category
the outcome of the most recent risk assessment
the initial concern and the subsequent information that has been collected as part of the preliminary enquiry and/or review and/or investigation
any written response from the performer to the information presented, including any written representation if notice of proposed Perfomers Lists regulatory action has been issued
any external advice or guidance sought from the PPA or the GMC employer liaison adviser (ELA) or other party in relation to case management
a clear outline of the issues to be considered by the PLDP and a summary of case management options for the PLDP to consider; or
if a PSG or PLDP has issued notice of proposed Performers List action, a copy of the notice letter sent to the practitioner and all documentation relied on
any written representation provided by the practitioner in accordance with the notice issued by the PSG

15.8 Consideration of information

The PLDP must consider all the information provided to it and must discuss and decide an appropriate course of action.

In considering the information, the PLDP is encouraged to consider to what extent the situation and context (for example, environmental or systemic issues) or a performer’s individual factors (such as health, culture, relationship with peers and support structure) contributed to the event or sequence of events that occurred.

Specifically, the PLDP must:

consider if the information presented to it indicates that it is necessary to consider immediate suspension; otherwise, it must:
consider whether it has sufficient information from NHS England and the performer to make an informed decision as to what further action if any is needed
where appropriate, undertake a risk assessment using the risk assessment tool
where appropriate, request a formal investigation and endorse the Terms of Reference (ToR) for that investigation
where appropriate, refer to occupational health for advice
where appropriate, refer to external agencies for advice and/or assessment; for example, the PPA and the GMC ELA
where appropriate, to request that NHS Resolution issues a Healthcare Professional Alert Notice (HPAN)
where it considers that local action is required, decide whether matters relating to capability or health are amenable to the consensual drafting of Agreement Terms with the performer
where it considers that Performers List regulatory action is required due to matters relating to conduct, capability or health, and the matters are not amenable to Agreement Terms, to decide the grounds on which notice should be given to the performer and the information relied on
where notice has already been served to the practitioner in accordance with the Performers Lists regulations, to decide whether to proceed with the Performers List regulatory actions as set out in the notice

15.9 PLDP initial consideration of the case

Initial consideration refers to a case where NHS England has not issued notice of proposed Performers List action. At initial consideration the PLDP will consider the case based on the papers.

The performer must have been advised that their case is being considered by a PLDP for a decision as to whether any action is required, unless there are exceptional circumstances. On initial consideration of the case, the performer must not be invited to attend the PLDP. A presenting officer (normally the case manager) will normally be in attendance to provide an overview of the case. If requested by the PLDP, they may clarify information contained within the information pack.

Specifically, the PLDP must consider if the information presented to it indicates that it is necessary to consider immediate suspension and, if so, bring it to the urgent attention of the MD SIP. Otherwise, it must:

consider whether it has sufficient information from NHS England and the performer to make an informed decision as to what further action if any is needed
where appropriate undertake a risk assessment using the risk assessment tool
where appropriate request a formal investigation and to endorse the ToR for that investigation
where appropriate refer to occupational health for advice
where appropriate refer to external agencies for advice and/or assessment; for example, the PPA or the GMC ELA
where appropriate to request that NHS Resolution issues a HPAN
where it considers that local action is required, decide whether matters relating to capability or health are amenable to the consensual drafting of Agreement Terms with the performer
where it considers that Performers List regulatory action is required due to matters relating to conduct, capability or health, and the matters are not amenable to Agreement Terms, to decide the grounds on which notice should be given to the performer and the information relied on

If the PLDP decides that notice should be issued to the performer of proposed Performers List regulatory action, a different PLDP will consider the case after the 28-day notice period set out in the Performers Lists Regulations has passed. A decision to give notice of Performers Lists action must follow the procedure set out in the regulations. If the notice is concerned with the imposition of conditions, the PLDP should consider paragraph 12 of this policy to ensure that the proposed conditions drafted are SMART.

15.11 PLDP consideration following notice of proposed Performers List regulatory action

Once initial consideration has determined that Performers List regulatory action should be proposed, and either the PSG or a PLDP has given notice of proposed action to the performer, a new PLDP will be convened to decide whether to proceed with the Performers List regulatory action set out in the notice letter. The new PLDP cannot be held until at least 28 days has lapsed since the notice of proposed action was sent to the practitioner. The constitution of the PLDP and the way the panel arrangements will be managed will vary depending on whether the performer wishes to attend an oral hearing.

16. Oral hearing

When notice has been given to the performer that NHS England is considering taking action under the Performers Lists Regulations, the performer may request an oral hearing. If the request is made within the period set out in the regulations, NHS England must make every effort to hear the performer’s representation as soon as possible, and if feasible within the 28-day period notified. A PLDP will hear the performer’s oral representation before reaching a decision.

16.1 Preparations for an oral hearing

Once a date for the oral hearing has been agreed with the performer, NHS England should check if the performer requires any reasonable adjustments to enable them to fully take part in the proceedings, and it should confirm:

the date, time, venue or electronic platform (for example, MS Teams) and membership of the oral hearing with the PLDP
what reasonable adjustments have been made to enable the performer to fully take part in the proceedings
that the performer may be accompanied by a representative who can support the performer and, if preferred, present their case to the PLDP, noting that any questions posed by the PLDP are to be answered by the performer directly
any provision made to enable the performer to use a private room before and after the PLDP
that both parties must exchange information that they wish to rely on concurrently and within what timeframe and to whom the information should be sent
in the event that additional information becomes available that would assist either party, the latest date that any supplementary information would be accepted and sent to each party. This would usually be 10 days prior to the PLDP
In the event that additional information becomes available, the arrangements for managing that information (for example, the chair with the panel will decide whether or not to admit the new information and may adjourn the PLDP for a short time to enable the information to be reviewed)
where any additional information indicates that a postponement might be required, the request must be made in writing by either party and an agreement reached as to whether the panel needs to be postponed. Such postponements ought to be necessary only in exceptional circumstances and for good reason
who the performer should correspond with if they have any questions about the proceedings or the information pack

16.2 PLDP consideration of case with oral representation from the performer

The PLDP should be conducted as follows:

the PLDP chair will be responsible for ensuring that the proceedings are conducted fairly and in an orderly manner. PLDP members may ask questions at any point so long as they are directed through the chair
NHS England’s presenting officer and the performer will be admitted to the PLDP at the same time
the chair will introduce all persons present and explain the roles of each person
the chair will outline the proceedings to both parties
if the performer is unaccompanied, the chair will check that the performer is aware that they can be accompanied
the chair will request confirmation that all parties have the relevant documentation
the chair will invite NHS England’s presenting officer to set out the case and will reference the information pack accordingly
the chair will invite NHS England’s presenting officer to clarify any matters arising on which the PLDP requires further clarification
the chair will invite the performer and/or representative to present their case to the PLDP
the chair will invite the performer to clarify any matters arising on which the PLDP requires further clarification
the chair will invite NHS England’s presenting officer to make a closing statement that summarises the key points already noted for the PLDP to consider
the chair will invite the performer and/or representative to make a closing statement that summarises the key points already noted for the PLDP to consider
the chair will ask NHS England’s presenting officer and the performer and/or representative to leave
the PLDP will consider the representation and make its decision, and the decision will be communicated as soon as possible and within 7 days of the date of the decision, as set out in the regulations

16.4 Circumstances when the performer is absent

The PLDP may deal with any matter in a performer’s absence if it is satisfied that it had made adequate arrangements to ensure the performer knew of the arrangements for the oral hearing and had failed to attend without good reason. If a performer’s ill health prevents a hearing from taking place, NHS England will need to consider at what point a referral is made to the occupational health service. After a reasonable period, depending on the nature of the incapacity, it should consider holding a PLDP in the performer’s absence unless there are compelling reasons for further postponement.

16.5 Witnesses

The proceedings leading up to a PLDP hearing should have enabled all relevant parties involved in the management of the case to have contributed to the information presented to the PLDP. It should therefore be rare that a witness is asked to attend in person to give evidence and this should only occur when the chair is satisfied that their attendance will materially add to the decision-making process. As a PLDP is not a legal proceeding, witnesses are not sworn in, and they are not under any legal obligation to attend. If they do attend, it will be to give direct evidence that may be questioned by either party through the chair.

Witnesses will be admitted only to give their evidence and answer any questions and will then withdraw from the hearing.

16.6 Legal advice to the panel

Should the PLDP chair consider that legal advice is needed, this may be requested using the legal requisition process ahead of the PLDP meeting. On the rare occasion that the PLDP has a legal adviser present, the performer is entitled to know what advice has been provided in relation to the PLDP proceedings, and is entitled to respond to that advice. It is important to note that any legal adviser to the PLDP has no voting rights.

17. Decision-making

Having considered the information presented to it, the PLDP will need to make a decision as to whether or not Providers Lists regulatory action should be taken.

With the exception of a suspension case, a PLDP must consider whether it has sufficient information before it to make an informed decision as to whether the case before it is proved or not proved. The test that the PLDP is to apply is the civil test of balance of probability and not the criminal test of beyond reasonable doubt. There may be conflicting information available to the PLDP and, if this is the case, it will need to decide which evidence it prefers and why.

Factors to take into account when deciding which evidence to prefer would include consideration of the source and credibility of the evidence and whether the evidence was a contemporaneous record and, if not, the length of time between the event itself and the record of the event being made.

In considering the information, the PLDP is encouraged to consider to what extent the situation and context (for example, environmental or systemic issues), or a performer’s individual factors (such as health, culture, relationships with peers and support structure) contributed to the event or sequence of events that occurred.

The PLDP is encouraged to take into account any information in relation to the longevity of the issues presented, the repetition of any conduct, capability or health issues, and the extent to which any previous interventions have been deployed and or sustained.

Having decided whether the case is proved or not proved, the PLDP will need to consider whether any action is needed to ensure that the presenting issues are managed appropriately.

17.1 Responsibilities of all PLDP members

All PLDP members are required:

to prepare thoroughly in advance for meetings by carefully reading and assimilating the information presented in advance
to carefully consider all information presented to the group both in advance and during the meeting
to ask questions and critically evaluate the evidence presented
to discuss with other group members and reach a consensus on the most appropriate outcome
to contribute to reaching decisions that are appropriate, balanced and comply with relevant legislation and policy
to maintain high standards of integrity and support others to achieve these throughout the panel’s deliberations
to maintain competence in relevant skills and knowledge through attending training and appraisal
to declare any interest that may be relevant to the case
to maintain confidentiality in accordance with the statutory duties of the organisation
to demonstrate commitment to equality, diversity and inclusion, with an understanding of unconscious bias and how it may affect decision-making

17.2 Responsibilities of the PLDP chair

In addition to meeting the above expectations of all members, the PLDP chair is responsible for:

conducting proceedings in a fair, open and transparent manner
considering any declarations of interest and taking action to ensure the integrity of decision-making is maintained
ensuring that all panel members contribute to discussion and decision-making, and that where there are differences of opinion, these are discussed and understood
when a performer is present and provides oral representation, that the voices of the performer (and when accompanied their representative) and the NHS England presenting officer are heard and considered
taking overall responsibility for ensuring that decisions are robust and stand up to scrutiny
ensuring that all present are clear on the decision made
ensuring that a full and accurate record of the discussion and actions agreed is made (including approving the record as accurate)
ensuring that the performer is advised of the decision of the PLDP in all cases within 7 days of the PLDP meeting. This includes when a decision to issue notice to the performer has been made
if the decision is to issue notice of action under the Performers Lists Regulations, ensuring that the notice letter fully complies with the relevant paragraphs set out in the regulations

The notes of the PLDP discussion and actions agreed, and a copy of the decision letter must be stored in the CMS.

17.3 Decision letter

NHS England decision letters must comply fully with the requirements of the Performers Lists Regulations. These requirements broadly set out the requirement to confirm the decision, the reasons for it, the information relied on and any right of review or appeal. The decision must be sent in writing to the performer within 7 days of the decision being made.

As a minimum the decision letter must include:

the requirements laid down in the Performers Lists Regulations
who was present at the PLDP
who to contact for further advice or information
signposting to organisations available to provide support and advice

The decision letter must also set out any additional information that the PLDP took into account; for example, relevant factors in relation to the performer’s situation and context even if these did not lead to specific Performers List regulatory action. The PLDP may refer to recommendations or referrals that it decided should take place alongside any list regulatory action. In addition, the PLDP may require the performer to comply with an existing undertaking set out in the regulations and, in this event, the decision letter must set out what further action might be taken if the undertaking is not complied with.

NHS England should ensure that the performer is reminded of third-party advice and support services that are available to them, and it should confirm a named contact within NHS England should they wish to seek any clarification or further information about their case.

The letter must be approved and signed by the PLDP chair and sent to the performer in PDF format. This could be by electronic means or by post, and with options to confirm receipt of delivery and read notices as applicable. In addition to the decision letter, NHS England is required to notify persons and bodies set out in the regulations and the performer must be advised of this.

18. Appeals to the First Tier Tribunal

A performer has a right of appeal when NHS England has used its discretion to refuse a performer inclusion to a Performers List, imposed, maintained or varied conditions, or removed them from a list. If the performer wishes to appeal, they must lodge their appeal directly to the First Tier Tribunal (FTT) within the time limit set out in the regulations. The FTT is an independent legally constituted tribunal, and its Directions permit it to make any decision that NHS England could have made.

The information provided to the FTT may be different to the information that was available to the PLDP when its decision was made; hence the decision reached by the FTT may be different to NHS England’s decision.

18.1 Managing the appeal

If a performer lodges an appeal, the FTT will notify NHS England and invite it to respond to the appeal before determining whether it should proceed to arrange a telephone case management hearing (TCMH). TCMHs are arranged by and chaired by a FTT judge, and provide the opportunity for the performer and/or their representative and NHS England to discuss any preliminary matters. The judge will set out the time limit within which parties must exchange all documents that each party intends to rely on. The judge will also set out the number of days that the FTT will set aside to hear the case and the arrangements agreed for hearing the case.

If NHS England does not oppose the appeal, the FTT can proceed to consider the case on papers alone and in that event, it will issue its decision and notify both parties of it.

If the parties are able to resolve the matter between them before the hearing date, the parties can request that the FTT disposes of the appeal and if this is agreed by the FTT the judge will issue a consent order.

18.2 Advice and support available

On receipt of notification from the FTT that an appeal has been lodged with it, the MD SIPS or nominated officer should consider the appeal and decide if legal advice should be sought. If this is the case, the legal requisition form must be completed and must be sent to the legal team and the national team. The performer’s record on the national performers list itself and the CMS must be updated.

It is advised that performers seek support from their defence organisation, although nothing within the proceedings prevents a performer from being a litigant in person.

18.3 Giving evidence at First Tier Tribunal

A tribunal hearing can be held in a court or tribunal building in the relevant local area. The FTT panel is made up of a judge, a specialist with professional experience (for example, a GP, dentist or ophthalmic practitioner) and a lay member with relevant health experience.

Both parties will be invited to make representations to the panel. Witnesses are sworn in and cross-examination is permitted.

The hearing is held in public, although the FTT judge is entitled to require any member of the public to leave and to go into closed session if personal and sensitive information is to be discussed. The judge has the ability to restrict reporting rights.

18.4 First Tier Tribunal decisions

The FTT can make any decision that NHS England can make under the Performers Lists Regulations. In addition, if the FTT finds that one party has acted unreasonably in bringing, defending or conducting proceedings, it can order a party to pay for the other party’s costs.

On conclusion of the FTT hearing, the FTT is required to send a copy of its decision within 10 days.

Where NHS England’s decision is changed on appeal, NHS England must notify persons and bodies set out in the Performers Lists Regulations. Decisions made by the FTT are a matter of public record and are published on the decisions database.

If either party considers that the FTT erred in law when making its decision, either party can make an application to the Upper Tier Tribunal (UTT). Decisions by the UTT are final.

19. Support and intervention

Following an assessment of the concern(s), it may be identified that some form of support or intervention is required to ensure that the performer or the environment within which they work are compatible and safe to deliver patient care. Actions identified may be systemic, organisational, team or individual. They may need formal or informal action. Where there is a need for support or intervention beyond the performer themselves, NHS England should consider referral to other persons or bodies that can provide support or have levers to effect change. Such levers might include a referral to the ICB, or to the PPA for consideration of a team review or to the CQC for consideration of an inspection visit.

Where it is evident that the performer requires support or intervention, NHS England will need to consider specifically what support and intervention might be needed to ensure that the performer is able to maintain or return to safe independent practice. Such actions may be framed within consensual Agreement Terms or imposed using Performers Lists regulatory action. The following support and intervention resources available:

19.1 Assessment and supervision

This may include a referral to the PPA for an assessment of the performer’s clinical performance and/or behaviour; no charge is levied for it.

Regardless of how the assessment is undertaken, the outcome of the assessment may indicate a need for the performer to be supervised for an agreed period of time. If the performer is unable to secure appropriate levels of supervision in the organisation where they are working, they may need to secure a placement in a different location to fulfil the supervision requirements set out.

19.2 Developmental and educational activities

This may include attending educational and learning activities approved by NHS England and the submission of a personal reflection log. These might be skills-based activities – for example, clinical education events – or specialist interventions such as behavioural coaching, or boundaries awareness.

19.3 Personal support

This may include referring the performer to local support schemes such as the Employee Assistance Programme (EAP) or Practitioner Advice and Support Scheme (PASS), or to relevant networks such as First Five or Last Five confidential health programmes or other national support organisations.

19.4 Funding for support and intervention

Performers included on the Performers Lists are independent contractors and they are personally responsible for ensuring that they remain fit for purpose.

Performers who are employed and require some form of support or intervention may receive financial support from the organisation with whom they have an employment contract. Alternatively, some national organisations provide advice and support to performers who are suffering financial hardship; these include the Royal Medical Benevolent Fund and the Cameron Fund.

Where a performer is unable to finance any support or intervention activity and they wish to seek financial support from NHS England, the performer must submit a statement of need to NHS England that articulates their case. In exceptional circumstances and subject to the availability of resources at the time of the statement of need being assessed, NHS England may provide financial support to a performer where the performer match funds the cost of the support and intervention needed to a maximum total cost of £10,000.

20. Management of dissatisfaction

NHS England strives to manage all cases fairly, sensitively and transparently while protecting patient safety and supporting performers.

When something goes wrong, NHS England looks to learn from mistakes, share the learning and change systems and processes where necessary.

An expression of dissatisfaction by a performer regarding the handling of a case and the process followed should in the first instance be directed to the MD SIPS in the team where the case has been managed.

Alternatively, a performer may direct their dissatisfaction to the national team. The national team will seek relevant information from the team where the case has been managed and either respond directly to the performer or liaise with another MD SIPS or nominated colleague from a different team before any response is made. In any event the response will provide an explanation of how the concern raised has been considered, information about who has been involved in the providing the response and where appropriate an apology and/or an outline of what has been done to put things right. The team should aim to respond within 6 weeks of reviewing the relevant information; however, this timescale may vary depending on the complexity of the dissatisfaction and the availability of staff involved.

All learning identified will be shared within the appropriate team and any necessary changes to systems and processes implemented. Where appropriate, learning will also be shared in the appropriate national network. Learning and changes will be reported through the agreed corporate governance arrangements.

21. Management of persistent and unreasonable behaviour

NHS England recognises that there may be occasions when a performer is dissatisfied with either the outcome and/or the management of their case and that despite every effort to resolve the issue raised by using the management of dissatisfaction process or by formal appeal to the FTT or High Court (appeal by way of redetermination against the decision only), the performer continues to make contact with NHS England with an unreasonable expectation that their continued contact will result in a changed outcome.

The performer may, as a result of their continued contact, be considered as making unreasonable or excessive demands in person, by letter or email or by telephone or text. Their behaviour may be abusive or verbally aggressive, or they may threaten actual physical violence towards staff. These actions are likely to be considered as persistent and unreasonable behaviour.

If NHS England is satisfied that the process it has followed to resolve the issue has taken account of the issues presented by the performer and these processes have been conducted in a fair, open and transparent manner, NHS England may need to consider restricting the performer’s contact with members of staff in order to protect staff from the burden created by the performer and the impact on them as the recipient of the behaviour.

NHS England may therefore decide to develop a plan to limit the performer’s contact and to manage any subsequent contact with the performer. This may take the form of:

being clear with the performer that their case has been dealt with appropriately and confirming (reconfirming) the outcome together with any information that the outcome was based on
clarifying (reclarifying) what if any further action is open to the performer
clarifying (reclarifying) if NHS England is unable to take any further action
advising the performer of the NHS zero-tolerance policy
advising the performer that their behaviour is unreasonable and requesting that they change their behaviour

If the behaviour persists, the MD SIPS or their nominated deputy should decide whether it is appropriate for the performer’s contact with NHS England to be restricted. Examples of restrictions might include a single point of contact using an agreed method and/or restricting a telephone call to an agreed length of time. They should decide what action NHS England might take following further contact. Examples might be that NHS England will not take any action regarding the matters already discussed and closed and/or that a telephone call will be terminated after an agreed length of time.

The restrictions should be communicated to relevant staff in their team and a full record maintained and stored in the CMS.

The performer must be informed of NHS England’s decision to restrict contact, what actions NHS England will take if the performer continues to make contact, and the period of time the restriction will remain in place for without a review.

the MD SIP or nominated deputy must review their decision and decide whether the restriction should remain in place and communicate their decision to the performer
the MD SIP or nominated deputy may consider referring the matter to the performer’s regulator if the behaviour continues

None of the above precludes NHS England from referring the performer to the police or another appropriate body.

Teams should ensure that performers are signposted to professional advice and aware of health and wellbeing support services available to them when dealing with the management of persistent and unreasonable behaviour.

22. Governance and oversight

22.1 Data protection

Information gathered while assessing information and managing a concern relating to a performer must be managed with the utmost confidentiality and in strict accordance with NHS England’s Data Protection Policy which includes complying with the requirements of the UK General Data Protection Regulation 2021.

22.2 Subject access requests

Performers are entitled to know what information NHS England holds about them; this includes any form of documented information that has been retained. NHS England must ensure that all information stored about a performer is relevant and in keeping with the current Data Protection Policy. Performers are entitled to request access to any information held by NHS England (a subject access request) and such requests must be handled in accordance with NHS England’s Policy on Managing Personal Data requests.

22.3 Retention of records

Performer records, including those relating to the management of a concern, must be retained in accordance with NHS England’s Corporate document and records management policy.

If in any doubt regional teams should seek advice from NHS England’s Corporate Records Management team before the destruction of any records.

23. Corporate governance

The work of NHS England’s Professional Standards teams, including the management of the Performers Lists and concerns relating to performers on the lists, is overseen by an Assurance Committee, which ensures that there are robust governance arrangements in place to deliver the statutory functions as set out in the NHS Medical Profession (Responsible Officers) Regulations 2010, as amended; and NHS (England) Performers Lists Regulations 2013, as amended, and that this is demonstrated in the routine reporting tools and management information data that is available to the Assurance Committee. In addition, the Assurance Committee is responsible for directing and overseeing the delivery of agreed workplans that support both current and future safe and effective delivery of the statutory functions set out. The Assurance Committee is accountable to a Strategic Oversight Group.

The Strategic Oversight Group provides strategic leadership in relation to the delivery of the statutory functions that NHS England is responsible for, as set out in the NHS Medical Profession (Responsible Officers) Regulations 2010, as amended; and NHS (England) Performers Lists Regulations 2013, as amended. The group is accountable to the NHS England Board and provides assurance to the NHS England Senior Management Team and the Board through its oversight of the functions and the agreed assurance reports.

23.1 Management information reporting including data to support equality, diversity and inclusion (EDI)

To fulfil its oversight function, the Assurance Committee has access to management information relating to the management of performers on the Performers Lists, including management of concerns, imposition of conditions and suspensions. The Assurance Committee may request further information or endorse actions as it deems necessary. Any serious concern raised by the management information data will be reported to the Strategic Oversight Group.

The Assurance Committee should receive quarterly aggregated data relating to the protected characteristics of performers on the lists, along with anonymised data relating to concerns cases, to assess whether any groups are disproportionately represented in management of concerns procedures, and will oversee and endorse actions to try to address any evidence of bias. Data relating to the protected characteristics of performers on the lists will be held in accordance with NHS England’s Privacy Notice, and will not be visible to anyone involved in decision-making processes relating to the Performers Lists.

23.2 Continuous improvement, feedback and peer review

NHS England strives to derive continuous learning from its activities under this policy, and the Assurance Committee will oversee a programme of peer review and observation, in which all teams are required to participate.

NHS England should seek feedback at every opportunity to inform continuous improvement activity. As a minimum, NHS England should seek and act on feedback from:

practitioners at the closure of a case
local representative committees

In addition, panel members will be required to routinely engage in 360 feedback and act on feedback as appropriate.

As part of their continuing professional development, case managers and case investigators should engage in regular supervision that enables them to reflect and learn from their management/investigation of cases.

23.3 Serious incidents and performer deaths by suicide

Occasionally a serious event, including performer death by suicide, occurs during or following management of a concern. Teams are required to notify the national team and the Assurance Committee of any such events and to have a system for significant event reporting and to share any learning.

The management of a concern should always be undertaken in a compassionate manner, and case managers must ensure from the outset that performers are signposted to the range of support available, including LRCs, indemnity/defence organisations, confidential health programmes and any other appropriate support.

It is also recognised that the management of some cases can be traumatic for NHS England staff, and all staff should be reminded of the range of services available to support them, including the EAP, and that support is also available from HR colleagues if necessary.

23.4 Media enquiries

Media enquiries should always be dealt with via the regional Communications team who must notify the national communications team of the enquiry and response.

23.5 Date of next review

This policy is due for review not later than 24 months from publication date or earlier if required as a result of changes in the Performers Lists Regulations.

Appendix A: Glossary of terms and abbreviations

CMS – National case management system
CQC – Care Quality Commission
Days – Calendar days unless working days is specifically stated
DHSC – Department of Health and Social Care
DSP – Discipline-specific practitioner – a clinician of the same profession but not necessarily the same specialty (for example, a doctor with a GMC licence to practise, but not necessarily a GP)
EAP – Employee Assistance Programme
FTT – First Tier Tribunal
GDC – General Dental Council
GMC – General Medical Council
GMC ELA – General Medical Council employer liaison adviser
GOC – General Optical Council
HEE – Health Education England – formerly an arm’s length body in its own rights; since April 2023 part of NHS England
HOPS – Head of professional standards
HPAN – Health Professional Alert Notice
ICB – Integrated care board
LADO – Local authority designated office
LRC – Local representative committee
MD – Medical director
MD SIPS – Medical director system improvement and professional standards
National team – National Professional Standards team
PASS – Practitioner Advice and Support Scheme
Performer – A medical, dental or ophthalmic practitioner included on the Performers Lists for the provision of NHS primary care services
Performers Lists regulatory action – Action taken in respect of a performer’s inclusion or continued inclusion on a Performers List, in accordance with the NHS (Performers Lists) (England) Regulations 2013, as amended
PLDP – Performers List Decision Panel
PPA – Practitioner Performance Advice Service – a function of NHS Resolution
Revalidation – The process by which every licensed doctor who practises medicine in the UK demonstrates to the GMC that they are up to date and fit to practise
Team – Regional Professional Standards team within the relevant geographical footprint
TOR – Terms of reference
WTE – Workforce, Training and Education Directorate (formerly HEE)

Appendix B: Skills and attributes – PSG and PLDP members

Skills and attributes that all panel members (including chairs) must be able to demonstrate:

able to contribute fully to high-stakes decision-making, assessing risk and applying proportionality
able to assimilate large volumes of confidential, complex and contentious information
demonstrates understanding of the role of professional regulatory bodies and professional standards in primary care, including an appreciation of the difference between fitness to practise and fitness for purpose
demonstrates excellent communication skills, both oral and written, and is able to communicate complex information clearly and succinctly
able to assess evidence and weigh up competing arguments fairly, taking into account all relevant factors
able to question and challenge constructively and respectfully
aware of own emotions and biases and how these might impact on decision-making
good IT skills, with ability to handle large volumes of information electronically and to participate effectively in virtual meetings
committed to the Nolan Principles for Public Life – The Seven Principles of Public Life
models respectful, compassionate, open and honest behaviour

Additional skills and attributes that panel chairs must be able to demonstrate in addition to those required of all members:

able to facilitate constructive and productive panel discussion, enabling all members to contribute and managing disagreements
able to run meetings effectively and efficiently
able to articulate outcomes that explain and justify decisions in a clear and concise manner
demonstrates leadership in equality, diversity and inclusion challenges, including taking action on inappropriate comments or behaviours

Publication reference: PRN00030

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