Frustrating Performance: Contracts and Clinical Competence in the New NHS

Abstract

Since 1997, New Labour has pursued an agenda of modernising the NHS, the central pillars of which have been a move from self-regulation to an interventionist and management driven approach, a focus on the performance of systems as well as individuals, and an attempt to repair damaged trust in healthcare professionals and regulation. After reviewing these reforms, this article will argue that whilst such reforms are a laudable attempt to increase the quality and safety of healthcare, they may also have some unintended and unwelcome side effects. In particular it will be argued that some interesting insights can be gleaned from the recent case of Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] which demonstrates that financially stretched and risk adverse NHS trusts may seek to remove staff perceived as costly through, for example, an uncomfortable deployment of the doctrine of frustration. Not only is such a stance contrary to the rhetoric and spirit of the recent reform in the area, it also raises fundamental issues concerning the parameters of the doctrine of frustration.