Suspension is a neutral act and not a disciplinary sanction. How often do we see these words solemnly recited in disciplinary procedures and reported in the local government press when someone's career takes an unscheduled turn for the worse? And how often do they square with most people's perception of reality? For, in truth, suspension is often the kiss of death – Hamlet's ‘undiscover'd country from whose bourne/No traveller returns'. For suspension can often be a gruesome and undignified process. Escorted from the premises, not allowed to contact any member of staff... But does the law consider suspensions to be a neutral act? Not necessarily, according to the Court of Appeal in a recent case concerning the suspension of a consultant psychiatrist, one of whose patients had killed another person. This was Mezey v South West London and St George's Mental Health NHS Trust judgment, which was given on 8 February 2007. Counsel for the trust had argued suspension was ‘a neutral act, preserving the employment relationship'. However, Lord Justice Sedley ventured to disagree, at least ‘in relation to the employment of a qualified professional in a function which is as much a vocation as a job'. As he pointed out: ‘Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course, this does not mean that it cannot be done, but it is not a neutral act.' The concept of suspension in serious cases is entirely understandable. It puts the employment effectively in suspended animation so the case can be investigated properly without prejudice to employer or employee. As ACAS points out, in cases of serious misconduct, risk to property or others, a period of suspension with pay ‘... allows tempers to cool and hasty action to be avoided'. This should, however, be ‘as short as possible'. In the health service, a doctor must be included in a ‘performers list' to practise as an NHS GP, under statutory regulations dating from 2004. These allow a doctor to be suspended from the list if a primary care trust (PCT) is satisfied it is necessary to do so for the protection of the public, or otherwise, in the public interest. While accompanying Department of Health guidance recites the mantra that suspension is a neutral act and not a disciplinary sanction, it does point out it should be a ‘rare event'. Consequently, it should only be imposed once the PCT has considered whether there is a case to be answered, and whether it has ‘reasonable and proper cause' to suspend. This is likely to be where there is: l compelling evidence of culpability, of seriously sub-standard performance or lack of competence l sufficient evidence to warrant suspension pending detailed further investigation l an allegation or allegations which are sufficiently serious to justify suspension while an investigation is undertaken. English Local authority chief executives, monitoring officers and chief finance officers do, of course, have some statutory protection under the Local Authorities (Standing Orders) (England) Regulations 2001. If an authority takes the view that an allegation of misconduct needs to be investigated in relation to any of these officers, a ‘designated, independent person' (DIP) must be appointed. The DIP has a range of powers, including to direct the termination of any suspension. But while the 2001 regulations do offer something of a safety net, as all senior authority players know, when push comes to shove, if you're to walk the plank, then the plank you'll walk. For, if – no matter how unfairly – you lose the confidence of the political leadership, you can't, in practice, function. So, the question is the deal. And authorities have much less playspace here than private sector organisations. For while business can strike a commercial deal to buy away difficult issues, authorities are tightly limited by statute, and the ever-watchful eye of their external auditor. w Nicholas Dobson is a partner at Pinsent Masons
