Examining the disciplinary process in nursing: a case ... - SAGE Journals

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Work, employment and society Copyright © 2006 BSA Publications Ltd® Volume 20(4): 687–707 [DOI: 10.1177/0950017006069809] SAGE Publications London,Thousand Oaks, New Delhi

Examining the disciplinary process in nursing: a case study approach ■

Hannah Cooke University of Manchester

ABSTRACT

This article examines the disciplinary process in nursing using data drawn from qualitative cases studies carried out in three healthcare Trusts in the north of England.The main method of data collection employed in the cases studies was in depth interviews with managers, nurses and trade union representatives.The study considers the models of discipline employed by managers when making the decision to discipline, the conduct of disciplinary cases and their outcomes.The study pays particular attention to ‘quasi-formal’ discipline in which investigative processes may be used as punishments.The study also considers the poor outcomes of disciplinary action and their relationship to the ways in which disciplinary processes are conducted. KEY WORDS

employee discipline / nursing discipline / professional misconduct

Introduction

S

ince the 1990s a series of public inquiries in the UK have dealt with cases in which health professionals were found to have harmed patients (Clothier, 1994; Kennedy, 2001). This has led to policy consensus regarding deficiencies in the self regulation of health professionals. Professional regulation is said to have taken place ‘behind closed doors’ (Rosenthal, 1995) with failures in both the stringency and transparency of the process. Professional regulation has, according to the Department of Health, to become ‘tougher, swifter and more open’ (DOH, 2001). This policy consensus has resulted in reform of

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professional regulation with emphasis on greater lay representation and more explicit procedures for dealing with the ‘incompetent’ professional. In this climate there has been a steady increase in the numbers of complaints against nurses rising from 893 in 1996–7 to 1460 in 2003–4 (NMC, 2004a). Regulatory bodies have no powers of inspection: cases result from complaints. Complaints may come from the police, employers, colleagues or members of the public. In nursing, by far the largest group (60%) come from employers and follow the employer’s own disciplinary case, with the second largest group following police cases (NMC, 2004b). While court proceedings are transparent, the employee proceedings which lead to complaints to the Nursing and Midwifery Council (NMC) are not open to public scrutiny and we lack any reliable data concerning their distribution and prevalence. The only area of disciplinary activity at Trust level about which we have some knowledge is suspensions. High profile cases of doctor suspensions have led to investigations into the use of suspensions by the NHS. For example the case of Dr Bridget O’Connell lasted 12 years, costing £600,000, yet was resolved when all the allegations against her were withdrawn (Public Accounts Committee, 1995). More recently, a number of prominent cases, such as the ‘crouton surgeon’, suspended for allegedly not paying for a second portion of soup in the staff canteen, have raised the possibility that some disciplinary action may be inappropriate (Carvel, 2004). Suspensions came to public prominence as a result of the high cost of doctor suspensions, leading to investigations by both the National Audit Office (NAO, 2003) and the Public Accounts Committee (1995, 2004). The NAO report showed that between April 2001 and July 2002 over 1000 clinical staff were suspended from the NHS at a cost of at least £40m per annum. The report suggested that suspensions were used inconsistently and poorly managed. ‘Unnecessary exclusions or cases where clinicians consider they have been driven out of the health service are of concern both in terms of personal fairness and equity and waste of scarce resources’ (NAO, 2003: 2). The NAO report led to new guidelines on the suspension of doctors (DOH, 2003). The Public Accounts Committee (2004) has expressed concerns about continued deficiencies in the management of suspensions, including the fact that new guidelines apply only to doctors. The NAO report (2003) shed some light on the prevalence of suspension among other health workers. Reports from organizations supporting suspended health professionals have highlighted mismanagement of suspensions and their high personal cost. Rates of depression, suicide and myocardial infarction are reportedly high among suspended health workers (Fagan, 2004; Tomlin, 2004). These reports raise some serious questions about the conduct of disciplinary cases in NHS Trusts that have not yet been answered. Thus, discipline in healthcare has been largely interpreted through models of professional regulation and public protection. The concern with public protection has led to the dominance of a ‘bad apple’ model of professional discipline focused on the detection, treatment and/or removal of deviant individuals

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(DOH, 2001). Approaches to nursing discipline have been shaped entirely by anecdotal literature (Pyne, 1998) and by inquiry reports following notorious cases (Clothier, 1994). We have some limited data on suspensions but, in general, health service employers’ conduct of disciplinary cases has not been studied. There has been little consideration of how managers discipline nurses or whether disciplinary action is appropriate and fair. There has thus been very little interest in the organizational context of disciplinary activity. Questions about how health professionals come to be disciplined have simply not been asked. To ask these questions we need to turn to studies of discipline in other industries.

Models of discipline In the early 1980s some psychologists argued that there had been an assumption that employees are more likely to respond to positive rewards than negative sanctions and that, as a consequence, the organizational uses of punishment had been neglected. To put it simply, discipline was a matter of carrots and sticks and the use of the stick had been underrated. Thus, during the 1980s there were attempts to rehabilitate punishment as a disciplinary tool inspired by behaviourist psychology (Arvey and Ivancevich, 1980; Sims, 1980). This fitted the political ethos of the time and can be seen as coinciding with the start of the neo-liberal era characterized by an erosion of employment rights and a reassertion of the manager’s ‘right to manage’ (Ackroyd and Thompson, 1999). Existing studies of the disciplinary process have addressed two related questions. The first question is: How discipline is administered? This focuses attention on the rule enforcers, their perceptions of rule infringement, how the decision to discipline is made and how it is carried out. The second question is: What is the effect of disciplinary action on the disciplined individual and the surrounding workforce? Despite an increased interest in the use of negative sanctions among some organizational psychologists, much sociological literature in this field has been heavily influenced by Foucault (1977) and has concentrated on the manufacture of consent through the creation of the ‘self disciplining subject’ (Miller and Rose, 1990). As Ackroyd and Thompson (1999) have argued, this has underestimated the continuance of organizational resistance and misbehaviour through its representation of workers as ‘docile’ subjects. Arguably, this focus on winning hearts and minds has also taken manager’s own accounts of their practice at face value and has underestimated the degree to which coercion and punishment have remained important tools in the creation of a docile workforce. Thus, according to Knight and Latreille (2000), the creation of high commitment workplaces has had little or no impact on formal sanction rates. Knight and Latreille found a steep upward trend in unfair dismissal claims, with union presence having the most important influence on sanction rates.

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There have been some attempts by sociologists to answer the question of how discipline is carried out and categorize models of discipline employed by managers. Gouldner (1954) identified three patterns of industrial bureaucracy, which he described as mock, punishment-centred and representative forms. These differed in the number of bureaucratic rules and the manner in which they were enforced. Punishment-centred bureaucracies were said to engender conflict. Henry (1987) has distinguished four models of workplace discipline drawing on the work of Gouldner:

Punitive-authoritarian discipline This is ‘rooted in the master–servant relationship of the feudal era’. Rules are generally negative and deviance is seen as ‘a deliberate and often personal challenge to authority’. Thus: ‘failure to obey orders, inappropriate manners and dress and negligence are considered equally as offensive as theft and damage to property’ (Henry, 1987: 284). Procedures for administering discipline are simple and direct and are often hierarchical with no consultation with subordinates. Sanctions aim at retribution, public humiliation and deterrence; punishment is harsh and irregular and includes summary dismissal, severe reprimands and public shaming.

Corrective-representative discipline This involves a more instrumental approach to discipline, emphasizing written procedures, an investigation of the case, a hearing with a right to representation, progressive sanctions and a right of appeal. Formalized systems incorporating rights to representation and procedural justice are intended to secure legitimacy for disciplinary actions and minimize employee grievance and unrest. According to Henry (1987), there is a risk that this model of discipline delivers ‘less justice than legitimation’. Despite the right to a hearing and representation, the outcome is often predetermined. Sanctions are intended to improve future behaviour but formalized systems may lead to employee frustration rather than acquiescence if the result is seen as a fait accompli. Sanctions are employed progressively increasing through verbal and written warnings to transfer, demotion and ultimately dismissal. Dismissal is seen as a last resort. Most formal policies conform to this model (ACAS, 2003).

Accommodative-participative discipline In this model discipline is seen to be the result of negotiation between workers and employers. Rules are created to serve the interests of both parties (for example, safety rules). Sanctions are subject to bargaining between

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managers and employee representatives. Outcomes are often a compromise between respective interest groups.

Celebrative-collective discipline This emerges in cooperative forms of work groups. Rules are largely based on unwritten shared values. A central problem in cooperative work groups is individual failure to participate in the group and inequality of work effort, the so-called ‘free rider’ problem. Sanctions are informal and aimed at reminding the individual of his/her responsibility to the group. Sanctions include disapproval, shaming and expulsion from the group. Henry (1987) suggests that although corrective-representative discipline is the most common formal mode of discipline in the workplace we cannot assume that this is the only model employed. He acknowledges the widespread use of informal sanctions. There may be a big difference between what institutions do and what they say they do. There is good reason to believe that many different models occur simultaneously in a single institutional setting. Other writers distinguish between punitive and corrective approaches (Edwards and Whitston, 1994). These two approaches fit closely with Henry’s first two models of discipline. Fenley (1998) distinguishes punitive, corrective and revisionist approaches. Revisionism combines correction and punishment and Fenley uses the term revisionism to describe the US model of progressive discipline, which masks punishment behind a rhetoric of correction. Thus, employees are not dismissed but ‘given the opportunity to leave’. Rollinson et al. (1997) distinguish between rehabilitation and retribution (which correspond to corrective and punitive approaches) but, also, introduce a third category of deterrence. They argue that deterrence is the most common philosophy employed by managers. Although conceptually different from retribution it is sometimes difficult to distinguish in practice. Deterrence aims to ‘highlight the adverse consequences of any future rule transgression’. Deterrence depends on managers’ assumptions of cause and effect. It allows punishment to be rationalized as having a corrective effect. The deterrence philosophy assumes that ‘most discipline consists of a rather crude use of psychological conditioning’ (Rollinson et al., 1997).

Effects of discipline I noted earlier the widespread belief that rewards are a more effective form of control than punishment. This raises a host of questions about the efficacy of punishment as a corrective to undesirable behaviour. Does the crude use of psychological conditioning employed by many managers actually work? Two factors which researchers have hypothesized will have an effect on disciplinary outcomes are the way in which discipline is carried out and its perceived fairness.

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Studies that have looked at the manner in which disciplinary action is carried out have concluded that harshness and the expression of negative emotions are associated with poor outcomes (Greer and Labig, 1987; Rollinson et al., 1997). Harsh discipline which is accompanied by hostility and attempts to humiliate the employee engenders considerable resentment and compliance is superficial and motivated by fear. Furthermore, harsh discipline can have effects far beyond the individual concerned and can foster a more widespread sense of grievance in the workplace (Fortado, 1992). Positive outcomes, then, are associated with discipline which is carried out in a friendly manner and which addresses itself to the correction of specific behaviours. Negative management behaviours include destructive criticism which involves the expression of negative affect and attributes poor performance to failings of character and ability intrinsic to the individual. Baron found that destructive criticism had negative outcomes tending to exacerbate workplace conflict and undermine self-confidence and task performance (Baron, 1988). Several studies have noted the influence of perceptions of procedural justice on task performance (Ball et al., 1994). There have been some attempts to assess factors affecting disciplinary fairness with Fandt et al. (1990) detecting a ‘liking bias’. When discipline is believed to be unjust it holds little legitimacy with the workforce and may encourage future rule breaking (Rollinson et al., 1997). It undermines the managers’ claims to exercise legitimate authority. The impact of unjust punishment on bystanders is particularly important. Unjust discipline has been said to have widespread effects, lowering morale and increasing rates of attrition (Trevino, 1992). Some recent qualitative studies have suggested that perceived or actual unjust discipline may be widespread. Rollinson et al. (1997) studied 44 employees from a variety of institutions who had been disciplined. The majority felt that they had been unfairly treated. Most said that work colleagues had been supportive and shared their sense of injustice. A field study by Fortado (1991) shows some of the ways in which managers exercise discretion in the use of discipline. In particular, he describes ‘the use of the microscope’, whereby managers subject an employee to intensive scrutiny to either build a case for the individual’s dismissal or put pressure on the individual to leave. In the use of the microscope managers subvert supportive practices to get rid of a disliked subordinate. Some small-scale, qualitative studies of nursing discipline have been undertaken in the USA (LaDuke, 2000; Supples, 1993). Both of these authors concluded that discipline was often punitive and that there were wide variations in its use. To summarize, this literature suggests that while a variety of models of discipline exist, a crude model of deterrence often prevails in practice. Effects of discipline are strongly mediated by the way in which it is carried out and its perceived fairness. Despite studies in the 1980s which attempted to rehabilitate punishment as a management tool, there is considerable evidence that punitive sanctions produce negative outcomes.

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Studies of the effects of discipline have some methodological limitations. Many psychological studies in this field have depended heavily on experimental studies involving simulation and role play (for example, Fandt et al., 1990). These designs have inherent problems of ecological validity since research subjects may be highly motivated to behave in an expected manner under experimental conditions (Orne, 1962). Other studies have used psychometric measurement of attitudes to workplace discipline but there remain difficulties in interpreting the relationship between the attitudes and attributions measured and actual practice (Arvey et al., 1984; Ball et al., 1994; Greer and Labig, 1987). Surveys of actual practice have been scarce. Knight and Latreille’s (2000) survey suggested a rise in unfair dismissal claims possibly associated with a decline in union density. Very few qualitative studies of sanctions and punishments in the workplace have taken place (Fortado, 1991; Rollinson et al., 1997). These studies have greater ecological validity but have often been on a small scale and, thus, more field studies of workplace discipline are needed. This article adds to this body of qualitative literature.

The study: design and methods The data presented in this article is derived from organizational case studies of the management of the ‘problem’ nurse in three healthcare Trusts in the north of England. These Trusts were selected on the basis that they were typical district general hospitals in suburban areas. Ethical clearance was obtained for the study in each Trust with the directors of nursing acting as gatekeepers permitting access to nursing staff. The sample was carefully constructed to protect the identity of individual staff. The case study sample was constructed by selecting 25 wards across the three Trusts on the basis of their speciality (see Table 1). In each ward the ward sister and one ward nurse were interviewed. Table 1

Wards included in the study (shown by clinical directorate and Trust)

Townend Trust Medicine and care of the elderly Care of the elderly mentally ill Specialist surgery

4 wards 2 wards 2 wards

Hilltop Acute Trust Acute Medicine Specialist surgery

5 wards 2 wards

Hilltop Community Medicine for the elderly Care of the elderly mentally ill

7 wards 3 wards

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Staff interviewed (shown by grade)

Ward sisters/charge nurses Staff nurses/ enrolled nurses Clinical nurse specialists Directorate managers Quality assurance and risk managers Patients’ representatives Personnel managers Board level managers

25 25 7 22 6 3 10 11

These 25 wards were managed via seven clinical directorates. All the relevant managers at directorate level were interviewed. At Trust level all of the senior managers, quality managers and personnel managers relating to the study wards were also interviewed. All of the target individuals agreed to be interviewed with the exception of three senior managers in Hilltop Acute Trust. The numbers of interviews are shown in Table 2. In addition to interviews with nurses and managers, seven union representatives were interviewed. This included four full-time officers and three branch representatives. A further sample of 12 directors of nursing in neighbouring Trusts was also interviewed. Twelve further key informants were interviewed in relevant national and regional posts, i.e. regional nurse manager, member of national executive of trade union. A total of 144 interviews were carried out. The primary method of data collection was qualitative interviews, lasting one to two hours. The ethics committee required that informants should be offered the opportunity to refuse the use of a tape recorder owing to the sensitivity of the topic. Therefore 53 interviews were tape-recorded and in the remainder, contemporaneous, verbatim notes were taken. To check the accuracy of the written notes three interviews were simultaneously taped and recorded in note form. There was good correspondence between notes and transcripts. A semi-structured interview guide was used (Table 3).

Table 3

Topics covered in the interview schedule

Workload/responsibilities Relationships between nurses and managers Relationships between colleagues Communications and morale Standards of care Acceptable/unacceptable conduct Misconduct/Incompetence Informal discipline Formal discipline Impairment/unfitness

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Other data collected included Trust policies, local press cuttings, observations of Trust meetings and observations of professional conduct cases. Informants were not chosen on the basis of their involvement in disciplinary cases but simply as a cross section of staff and managers in the study Trusts. They were then asked to recall any recent disciplinary cases in which they had been involved, whether as a protagonist or bystander. Accounts of 76 disciplinary cases were collected and analysed. Most of the accounts given by nurses were as bystanders to the disciplining of colleagues. A few nurses who had survived disciplinary action were interviewed. Some disciplined nurses were willing to talk to the researcher but not willing for their story to be included in the study (these individuals are not included in the formal sample). By definition nurses who had left or been excluded from the organization as a result of disciplinary action were not included in this study. In this account, therefore, union representatives and colleagues have largely acted as proxies for these individuals and further research needs to take place to uncover their experiences. Multiple accounts of cases were given from different standpoints, e.g. union representative, manager, personnel officer or colleague and it was thus possible to cross reference and compare several accounts of individual cases. Thematic and comparative analysis of the data was carried out by hand using colour coding and marginal codes. In addition to comparing individual accounts of the same incidents given from different standpoints in the organization, the data was constantly compared with official policy discourse on the emerging issues.

Findings The data presented here describes how disciplinary cases were conducted in the Trusts under study and the models of discipline employed by managers. Nurses’ accounts of their perceptions of organizational climate and their relationships with managers have been reported elsewhere (Cooke, 2006). Patterns of disciplinary activity (‘disciplinary waves’) and their relationship to organizational factors will be discussed in a separate article. The discussion of findings first considers the quasi-formal discipline which may precede or indeed replace formal discipline. This is followed by a description of the formal disciplinary process following it through from inception to outcome.

Quasi-formal discipline: hidden punishments Rosenthal (1995) described the existence of quasi-formal discipline in which elements of formal processes are used without invoking the formal disciplinary procedure in full. In this study quasi-formal discipline was an important management tool used mainly to punish staff. There is some limited case study

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evidence of this tactic being used in other organizations (Fortado, 1991). Managers had a range of strategies for dealing with staff that they could not ‘get to disciplinary’. Managers explicitly used a range of quasi-formal practices as straightforward punishments. One frequently given example was moving staff to another area: We move staff around the unit a lot. I’ve just moved three care assistants for example from one ward because of complaints from learner nurses. Nothing you could really get to a disciplinary hearing with but vague things about attitudes. So I’ve moved that group of care assistants, split them up onto different wards to work with different staff. Told them exactly why I’ve done it. (Directorate Manager HC35)

Quasi-formal sanctions included moving staff, giving verbal warnings and disciplinary investigations (sometimes including suspension), which did not lead to a formal hearing. Distribution of quasi-formal cases was as follows: ■ ■ ■

Hilltop Community: 24 cases (outcomes: five resignations; three cases of long-term sick leave) Hilltop Acute: seven cases (outcomes: four cases of long-term sick leave) Townend: three cases (outcomes: two cases of long-term sick leave; one resignation)

Nurses’ accounts made it clear that in many areas punishments were commonplace. Allegations that nurses were ‘bullied’ or ‘picked on’ by managers were made by at least some nurses in five out of the seven directorates. In two directorates the majority of ward nurses described a ‘bullying culture’. According to one staff nurse, management’s role was ‘to punish and nothing else’. Punishments were often perceived as arbitrary and inexplicable: There was an incident when all the G grades (ward sisters) were told we were useless – none of us were doing what we were supposed to do. They couldn’t say what we hadn’t done. We were told we were going to be disciplined. I only wish to this day I knew what it was all about. (Ward Sister HC 25)

Union representatives suggested that some directorate managers were prepared to use the investigative process to punish staff when they knew that there was insufficient evidence to justify a formal disciplinary hearing. This enabled them to deliver unofficial verbal and written warnings. A number of accounts fitted this pattern: There’s a high incidence of disciplinary investigations. Following a debacle at an industrial tribunal the disciplinary policy is very fair – so fair that managers use the investigation, which is outside the policy almost as the procedure. They interview people without them being aware of the purpose; they take statements out of context. If it doesn’t go to a disciplinary hearing there is no requirement to allow the person or their union rep to challenge the evidence. They use the investigation as punishment without going through the process. There’s a feeling of threat … definitely situations where your face doesn’t fit. People have been witch hunted because they haven’t fitted the mould. (Union Representative U6)

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Middle managers may resort to using quasi-formal discipline because higher managers have expressed concerns about their frequent use of formal disciplinary action. Quasi-formal discipline was often invisible to board level managers. For example, in Hilltop Community the Trust board claimed to have implemented a ‘blame free’ approach to reporting errors so that the institution could learn from its mistakes (DOH, 2000). In one directorate there were 25 cases of drug errors that led to disciplinaries all in a space of a few weeks. In each case an individual was brought to book. The director of nursing picked up that fact and ran with it and later disciplinaries were cancelled. (Union Representative U6)

Despite this policy a punitive approach to errors persisted. Drug errors still automatically triggered a disciplinary investigation leading to a variety of semiofficial sanctions. To summarize, quasi-formal discipline is often unofficial or semi-official and may happen out of the gaze of Trust board managers. It is not captured in official reports on the incidence of disciplinary cases. Outcomes of quasiformal discipline were often poor. A substantial number led to long-term sick leave or resignation. Thus quasi-formal discipline empowered middle managers with the means to deal with (and sometimes ‘show the drive to’) a problem subordinate, often without the knowledge of Board level managers or human resource managers.

Formal discipline: managers’ accounts of the decision to discipline I asked managers how the decision to discipline was made. Personnel officers interviewed said that it was important to ensure that disciplinary action was appropriate. A few complained of ‘dodgy’ or ‘maverick’ managers who did ‘silly things’ and did not contact them until they had ‘got in a mess’. They preferred to be involved early on in order to avert inappropriate action in trivial cases: When we get involved varies a lot with the manager. I’d obviously prefer to but they don’t always tell you, do they? – whether it’s a good example or not, I’m not sure. We had a lady on one of the wards whose hair did not appear to be an appropriate colour and it was deemed not particularly acceptable on a ward. They’d asked her could she do something about the colour and they’d had no success. They did involve one of the personnel officers who sat and in the end did get a compromise whereas it was heading very fast – ‘what’s acceptable to you might not be acceptable to me’, you’re getting into all those sorts of things … but I then got a phone call from the union rep to say his lady’s in the hairdressers – ‘I’ve got the colour chart in front of me and is colour 69 suitable’ and I said ‘How the hell do I know’. So you get into all those – that was resolved but it could have led to really silly things … (Personnel Officer HC39)

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Managers displayed widely varying attitudes to formal disciplinary action during interviews. Some saw it as a last resort and said the decision to discipline was not taken lightly. However, a few managers, perhaps disingenuously, presented the decision to institute a formal disciplinary as a neutral act, something which they employed merely to ‘get to the bottom of things’. If there’s an incident, if there is a drug error for example. I want a hearing so I can view the whole because a disciplinary – you haven’t made up your mind what you’re going to do. It’s an opportunity to explore everything. – So I think we need to take away the negative. – I’ve disciplined people and given no penalty. So how people see a disciplinary hearing is difficult. (Directorate Manager HC 35)

For this manager and her colleagues a disciplinary hearing would be the usual response to any untoward incident. Unsurprisingly, therefore, all of the union representatives interviewed suggested that disciplinary procedures were often used unnecessarily. Managers’ motives for disciplinary action were often regarded with considerable suspicion by nursing staff. Demotions were a common outcome of disciplinary cases in one Trust and were described as a costcutting exercise by some nurses. There have been some very suspect cases of demotion. One case went to an industrial tribunal and was settled out of court … there’s very much a feeling of rationalization of services through the backdoor although I couldn’t prove it. It’s incredibly inappropriate – ‘Let’s downgrade some staff, who can we pick on?’ There’s no real logic to it. (Union Representative U6)

The most common reason offered by managers for instituting formal action against a nurse was to protect patients. At present we have few ready answers to questions about the effectiveness of disciplinary action as a risk management strategy. Some cases were clear-cut, involving harm to patients, but most cases were not. Many did not involve patient care at all. Few managers were able to clearly articulate the outcomes that they expected to achieve from disciplinary action. Several managers said that the purpose of disciplinary action was to seek an improvement in performance but managers rarely seemed to have given thought to how disciplinary action would achieve this. There was an assumption (often unspoken) that punishment would effect an improvement in performance. Thus, most managers seemed to operate with a crude and unreflective model of deterrence. When they were giving reasons for a decision to discipline most managers hid behind formal procedures. They said that the individual was in breach of Trust procedures and they had no choice but to discipline. Nurses often said that Trust procedures were in place to allow managers to ‘find someone to blame when things go wrong’. Management procedures and policies come out six or seven at a time in every management bulletin. You’re supposed to be aware of every memo for the last six or seven years every minute of the day. If you don’t follow procedure to the letter they’re covered if anything goes wrong. They don’t allow you to be human. (Staff Nurse HC 72)

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Other common reasons given for commencing formal disciplinary action were that the individual showed no remorse or that he or she ‘should have known better’ by virtue of seniority. Although managers said that they had no choice but to discipline, variability in rates of disciplinary cases between managers suggested that they exercised considerable discretion. Many managers cited experience as the most important factor informing a decision to discipline. Some managers relied heavily on ‘gut feelings’ and contended that the best way to make such a decision was to ‘follow your instincts’. Thus, according to one directorate manager: ‘Nine times out of 10 the decision is very clear. I just do it’. In contrast those managers who saw formal discipline as a last resort looked for evidence that all other avenues to sort the problem out had been explored and had failed. They were far less likely to resort to disciplinary action than those who claimed to follow their instincts. There was an increasingly defensive culture within Trusts and this had encouraged the use of disciplinary action, according to many informants. Union representatives felt that Trusts too often disciplined in order to be seen to be doing something. This was a growing issue in relation to complaints and four union representatives recounted cases when they alleged that Trusts had disciplined nurses simply to demonstrate to a complainant that their case had been taken seriously. Several managers acknowledged that they were now working in a particularly pressured climate when dealing with patient complaints: These days we all err on the side of caution – not just because of legal action, although there is a lot more, but the publicity and how we are seen to react to patients in the light of Bristol, etcetera. We are all keen to be seen to be taking things seriously. (Trust Chair)

Union representatives said that some managers were inclined to panic over particular issues such as drug errors or allegations of sexual harassment. This could encourage them to use disciplinary procedures when other responses would have been more appropriate. They attributed this to an increasingly defensive NHS culture and to the fact that these responsibilities were now often devolved down to inexperienced managers who were not nurses. Five of the seven union representatives interviewed shared the view that managers’ insecurity and inexperience were major factors in the excessive use of discipline: They’re very complaints-conscious nowadays, they act on everything, for example drug errors – it varies from Trust to Trust. Some are more enlightened, some just give the nurse a good rollicking … it’s usually an accident. It’s the good nurses who get disciplined. The ones who don’t own up to it get away with it more. There is a range of penalties, anything from a written warning to demotion … It’s often inexperienced managers. They tend to panic. Nurse managers make a difference. Nurse management has been decimated in some Trusts. (Union Representative U1)

Training in disciplinary procedures was patchy. Training was in-house and involved the manager becoming conversant with the Trust’s policies and

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procedures and an introduction to relevant employment law. Some managers mentioned the nurses’ code of conduct (NMC, 2004c) as guiding their decision. The ACAS code of practice (2003) was not mentioned by any of the managers interviewed. Training was often described as involving anecdotal accounts from personnel staff and role play. The role play scenarios presented in one Trust during the study employed crude stereotypes of problem employees such as the drunk and the union agitator. Many managers felt that they had had little preparation for the responsibility and had had to learn by experience. It seems, therefore, that there is great variability in the decision to discipline and that managers exercise considerable discretion. Many managers making this decision had had little or no preparation and training. This is borne out in differential rates of disciplinary action between Trusts and directorates. Although this is a qualitative study and statistical significance cannot be stated, it is worth noting that Hilltop Community Trust produced almost three times as many accounts of disciplinary action as either of the other two Trusts. This difference reflected differing attitudes among managers, with far more managers in Hilltop Community Trust seeing formal disciplinary action as the normal response to untoward events. Ironically, this Trust had made considerable efforts to profess its support for staff. It had won Beacon Status for its staff support strategy yet on the basis of its disciplinary record it could justifiably be described as a ‘punishment centred bureaucracy’ (Gouldner, 1954).

The conduct of disciplinary cases The way in which disciplinary action was carried out could vary enormously. A minority of managers were aware that the process needed to be managed carefully in order to ensure the nurses’ continuance in the organization: I suppose you have to say with a disciplinary ‘What is the outcome you want to achieve?’ and it’s not about annihilating nurses … so it’s not about ‘I’ve made a mistake, that’s me finished’, we rectify and we learn – we’ve had some excellent nurses who’ve made some very silly mistakes and they’ll never do it again … I’d be naïve to think the process didn’t affect them but I think it is around the support and maybe the counselling after that that goes on. (Directorate Manager HC6)

This manager displays the model of deterrence common to most managers as a justification for disciplinary action: discipline will help nurses to ‘learn’ not to make ‘silly mistakes’. She does, however, show some awareness of the need to support the nurse through the process. Nevertheless, poor outcomes were common in this directorate. Treating the accused with respect and avoiding expressions of hostility and anger have all been associated with positive outcomes (Greer and Labig, 1987). However, disciplinary action was usually

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reported to be a highly negative event. Union representatives often complained that disciplinary investigations, in particular, were carried out in a hostile climate. The following account illustrates their concerns: There was an absolutely horrendous investigation done by very inexperienced people. They conducted interviews for up to six hours. They didn’t explain what they were investigating. The people who were interviewed just felt like victims throughout. They weren’t independent. They made comments throughout the interviews about what people were saying. They accused people and didn’t accept their answers if they weren’t what they were trying to find out. People were not told they had a right to a union rep. Some people who were interviewed were too intimidated to get up and walk out. If they stopped it was assumed they were guilty and had something to hide. Some people broke down in tears sobbing during the interviews. One nurse had been on a night shift and they came in at 6am and kept her to 11am. At the end she was a nervous, gibbering wreck. (Union representative U7)

Procedural justice has also been associated with positive outcomes (Rollinson et al., 1997). Union representatives frequently complained of procedural injustices. Most associated this with a defensive culture, produced by the creation of self-governing Trusts. Prior to the introduction of self-governing Trusts, disciplinary procedures were set nationally by the Whitley Council and were based on ACAS guidelines. Following the introduction of Trust status, some Trusts substantially rewrote their disciplinary procedures. According to one Union representative this was always a bad sign. Trust status also entailed the loss of appeal panels at a regional level which were believed to have ensured a degree of consistency and fairness. According to union representatives Trusts now have a culture of secrecy. Some managers never learn. Nurses want to be heard if something goes wrong. There needs to be an independent view – you can’t get it in Trusts. Trusts close all the doors and support the manager. They don’t want to lose face – it has a terrific impact on all staff. If the Trust admits blame they have to take action against managers. In the past if a complaint was upheld you knew managers would be reprimanded – you felt there was justice. There’s been a change with Trusts, there’s no one to go to outside the Trust … managers have no training, no understanding of natural justice. They don’t have industrial relations training. Some managers won’t allow trade union reps … In the 1970s administrators were honest, reliable people. Now managers are prepared to lie … This culture of dishonesty has come about because of Trusts. (Union Representative U3)

The majority of the union representatives interviewed, as well as several nurses, made the accusation that managers were prepared to lie. Several trade union representatives also said that a culture of unfairness was spreading in the NHS as well as a culture of dishonesty. In terms reminiscent of Fortado’s (1991) description of the ‘microscope’, they described managers as collecting trivial misdemeanours in order to build a case that would stick against a nurse. Very much staff are treated as guilty, they don’t have their rights explained, they’re not treated in a respectful manner through the process. It’s ‘This is what we think

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and we’ll find the evidence to fit.’ The way staff are handled is not the fairest way … you can get cases based purely on tittle tattle – everybody is asked what they think and it’s based on subjective tittle tattle – things like disciplining individuals for not following procedures that haven’t been written. (Union Representative U6)

Thus, all of the union representatives alleged that disciplinary cases were frequently mismanaged. This may account for the high incidence of negative outcomes.

The outcome of disciplinary cases I have noted that disciplinary outcomes were related to the way in which the disciplinary investigation and hearing were carried out. Disciplinary outcomes led to high rates of attrition. I found no clear evidence that disciplinary action effected an improvement in performance in those who were disciplined (Table 4). Those union representatives who dealt with other occupational groups said that the disciplinary process was particularly stressful for nurses and outcomes worse, leading them to ‘jump ship’. Managers were said to be unnecessarily punitive when dealing with nurses who felt the stigma of disciplinary action acutely and were more likely to become isolated from their colleagues: … of all the staff I deal with the ones that take disciplinary procedures most badly are nurses. I’ve had nurses suspended and not disciplined and they’ve had to retire on health grounds. Nurses find it particularly difficult. Going through suspension and investigation, even if there’s no action, nurses exhibit behaviour that says they will never be the same in that workplace. It’s a more intense reaction than other groups … They’re told they can’t have contact with people at work. Colleagues will cross the road rather than speak to them. Nurses take the isolation badly. Hotel services are bound by a code which says that all managers are bastards. Their social networks are maintained when an individual is disciplined. Nurses won’t talk to a colleague who is disciplined in case their own professional practice is called into question. (Union Representative U4) Table 4

Disciplinary outcomes

Resignation Dismissal Moved/demoted Long term sick leave Verbal/written warning Exoneration/case dropped Retraining Suicide Unresolved/unknown

17 12 9 9 8 5 4 1 11

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Several union representatives identified isolation and lack of support among disciplined nurses and associated this with a culture of fear in nursing: The culture in nursing is ‘Don’t stick your head above the parapet’. If someone is in trouble, nurses align with management out of fear. It’s sad what happens. It reinforces a culture of no natural justice … there’s a fear of disciplinary, fear of getting into trouble … Nurses hold their heads pretty low when things go wrong. They go to ground until it blows over. (Union Representative U3)

Many disciplinary cases concerned matters unconnected with patient care. Some happened as a result of adverse incidents that had occurred under situations of stress. However, a few individuals did have persistent problems of conduct or competence. Several managers reported that when these individuals resigned or were dismissed from the Trust they found employment readily in the nursing home sector. In only three cases was a complaint to the regulatory body made. When managers were able to articulate the outcomes that they hoped to achieve from disciplinary action, they said either that they wanted to achieve an improvement in performance, or, in more serious cases, that they wanted to protect patients from harm, often by excluding an individual from the workplace. It is questionable whether these disciplinary cases achieved either of these outcomes. Where accounts of the effects of disciplinary cases were given, these were overwhelmingly negative. Furthermore, when Trusts excluded an individual whom managers regarded as unsafe from the workplace, they often ended up working in the private nursing home sector where they had little supervision and were dealing with a very vulnerable client group. Thus, it is difficult to see how the negative outcomes of discipline for nurses can be justified in terms of public protection.

Conclusion Henry (1987) has suggested four models of discipline likely to exist in the workplace. He also suggested that a plurality of models is likely to exist in any one setting. In this study it was apparent that although formal procedures could be characterized as corrective-representative discipline this was by no means the only model employed. Accounts given by union representatives, but also by managers themselves, suggested that punitive authoritarian discipline was widespread. This model corresponds closely to Gouldner’s description of the punishment-centred bureaucracy. In this bureaucratic pattern managers strive to exact obedience to rules without considering the causes of infringement and ‘with the object of allocating blame and punishment’ (Gouldner, 1954). It is of particular interest to note that much punitive discipline occurs during the investigative phase of the disciplinary process and is informal or quasi formal. This frequently renders it invisible in formal accounts of disciplinary activity. Thus, the prevalence of this type of activity is largely unknown.

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When managers’ own accounts of the decision to discipline were elicited, the deterrence model, which views discipline as consisting of the ‘crude use of psychological conditioning’ (Rollinson et al., 1997), was the most prevalent explanation for their actions. Many managers continued to rely on instinct in making the decision to discipline. Their instincts appeared to be punitive. Punishment was rationalized as having a corrective effect, although there was no good evidence to support this assumption. Complaints about the conduct of disciplinary cases by union representatives and nurses were frequent. These were often framed in terms of negative descriptions of organizational culture. Union representatives described Trusts as having a culture of fear, a culture of unfairness, a defensive culture, a culture of dishonesty and a culture of secrecy. Nurses corroborated these pejorative accounts and also frequently described their workplaces in terms of a culture of bullying. This is corroborated by some recent trade union surveys (Ball et al., 2002). Many informants believed that the creation of self-governing Trusts had considerably worsened the handling of disciplinary cases. Trust status was believed to have had a negative impact on organizational culture, making healthcare organizations more closed and defensive. Trust status also gave Trust managers greater independence in their conduct of disciplinary cases and denied employees access to an independent appeals procedure. Previous studies of the effects of discipline have found that the expression of negative affect has had a detrimental impact on outcomes (Greer and Labig, 1987; Rollinson et al., 1997). In common with these studies, this study found that disciplinary activity took place in an atmosphere of hostility and threat that belied the apparent objectivity and neutrality of the formal processes. Thus disciplinary activity led to unnecessarily high levels of attrition, which, according to one union representative, was ‘surprising when they’re short of nurses’. Trevino (1992) has highlighted the negative impacts of inconsistency and injustice in the disciplinary process. Disciplinary injustice does not just drive the individuals who have been disciplined out of the organization. Both Trevino (1992) and Rollinson et al. (1997) point to bystander effects in which a wider sense of perceived injustice lowers morale, increases rates of attrition and has a detrimental impact on performance. This study confirmed these previous findings. In areas of high disciplinary activity, nurses were fearful, distrustful and acutely aware of the apparently arbitrary nature of much disciplinary activity. Morale was low and many nurses were planning to leave the organization. We can link these negative effects back to the models of discipline which managers employed. Inconsistency, unfairness and a hostile climate were a seemingly inevitable consequence of managers’ use of a punitive authoritarian approach to discipline. Their confidence in their ability to make objective judgements, which were guided only by instinct and gut feelings, made negative outcomes of discipline unavoidable.

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Acknowledgements This study was funded by the UKCC. I am grateful to Huw Beynon for his supervision and support.

References ACAS (Advisory, Conciliation and Arbitration Service) (2003) Disciplinary and Grievance Procedures: Code of Practice 1. London: ACAS. Ackroyd, S. and Thompson, P. (1999) Organisational Misbehaviour. London: Sage. Arvey, R., Davis, G. and Nelson, S. (1984) ‘Use of Discipline in an Organisation’, Journal of Applied Psychology 69(3): 448–60. Arvey, R. and Ivancevich, J. (1980) ‘Punishment in Organisations: A Review, Propositions and Research Suggestions’, Academy of Management Review 5: 123–32. Ball, G., Trevino, L. and Sims, H. (1994) ‘Just and Unjust Punishment: Influence on Subordinate Performance and Citizenship’, Academy of Management Journal 37(2): 299–322. Ball, J. et al. (2002) Working Well? London: Royal College of Nursing. Baron, R. (1988) ‘Negative Effects of Destructive Discipline: Impact on Conflict, Self-efficacy and Task Performance’, Journal of Applied Psychology 73(2): 199–207. Carvel, J. (2004) ‘NHS Trust Reinstates Crouton Surgeon’, The Guardian, 25 March. Clothier, C. (1994) The Allitt Inquiry. London: HMSO. Cooke, H. (2006) ‘Seagull Management and the Control of Nursing Work’, Work, Employment and Society 20(2): 223–43. DoH (Department of Health) (2000) An Organisation with a Memory. London: DoH. DoH (Department of Health) (2001) Establishing the New Nursing and Midwifery Council. London: DoH. DoH (Department of Health) (2003) Maintaining High Professional Standards in the Modern NHS. London: DoH. Edwards, P. and Whitston, C. (1994) ‘Disciplinary Practice: A Study of Railways in Britain’, Work, Employment and Society 8(3): 317–37. Fagan, J. (2004) Suspension Failure in the NHS. Tamworth: Suspended Nurses Group. Fandt, P., Labig, C. and Urich, A. (1990) ‘Evidence and the Liking Bias: Effects on Managers’ Disciplinary Actions’, Employee Responsibilities and Rights 34: 245–65. Fenley, A. (1998) ‘Models, Styles and Metaphors: Understanding the Management of Discipline’, Employee Relations 20(4): 349–60. Fortado, B. (1991) ‘Exercising Managerial Prerogatives: The Findings of Four Field Studies’, City and Society 5(1): 76–96. Fortado, B. (1992) ‘The Accumulation of Grievance Conflict’, Journal of Management Inquiry 1(4): 288–303.

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Foucault, M. (1977) Discipline and Punish. The Birth of the Prison. London: Allen Lane. Gouldner, A. (1954) Patterns of Industrial Bureaucracy. New York: Free Press. Greer, C. and Labig, C. (1987) ‘Employee Reactions to Disciplinary Action’, Human Relations 40(8): 507–24. Henry, S. (1987) ‘Disciplinary Pluralism: Four Models of Private Justice in the Workplace’, Sociological Review 35: 275–319. Kennedy, I. (2001) Learning from Bristol. London: HMSO. Knight, K. and Latreille, P. (2000) ‘Discipline, Dismissals and Complaints to Employment Tribunals’, British Journal of Industrial Relations 38(4): 533–55. LaDuke, S. (2000) ‘The Effects of Professional Discipline on Nurses’, American Journal of Nursing 1000(6): 26–33. Miller, P. and Rose, N. (1990) ‘Governing Economic Life’, Economy and Society 19(1): 1–29. NAO (National Audit Office) (2003) The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England. London: HMSO. NMC (Nursing and Midwifery Council) (2004a) Fitness to Practice Annual Report 2003–4. London: NMC. NMC (Nursing and Midwifery Council) (2004b) Fitness to Practice Annual Report 2004–5. London: NMC. NMC (Nursing and Midwifery Council) (2004c) The NMC Code of Professional Conduct. London: NMC. Orne, M. (1962) ‘On the Social Psychology of the Psychological Experiment with Particular Reference to Demand Characteristics and their Implications’, American Psychologist 17: 776–83. Public Accounts Committee (1995) The Suspension of Dr O’Connell, HC 322, Session 1994–95. London: HMSO. Public Accounts Committee (2004) The Management of Suspensions of Clinical Staff in NHS Hospitals and Ambulance Trusts in England, HC 296, Session 2003–04. London: HMSO. Pyne, R. (1998) Professional Discipline in Nursing, Midwifery and Health Visiting. Oxford: Blackwell. Rollinson, D., Handley, J. and Hook, C. (1997) ‘The Disciplinary Experience and its Effects on Behaviour’, Work, Employment and Society 11(2): 283–311. Rosenthal, M. (1995) The Incompetent Doctor: Behind Closed Doors. Buckingham: Open University Press. Sims, H. (1980) ‘Further Thoughts on Punishment in Organisations’, Academy of Management Review 5(1): 133–8. Supples, J. (1993) ‘Self Regulation in the Nursing Profession’, Nursing Outlook 41(1): 20–4. Tomlin, P. (2004) ‘An Occupational Health Problem’, Lecture to the Scottish Society of Occupational Health Doctors, Glasgow, March. Trevino, L. (1992) ‘The Social Effects of Punishment in Organisations’, Academy of Management Review 17(4): 647–76.

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Hannah Cooke Hannah Cooke is a lecturer in the School of Nursing Midwifery and Social Work at the University of Manchester. Her research interests include nursing conduct and competence as well as nurses’ working conditions and working lives. Address: School of Nursing Midwifery and Social Work, University of Manchester, Coupland 3 Building, Coupland St, Manchester M13 9PL, UK. E-mail: [email protected]

Date submitted June 2005 Date accepted July 2006

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