Select Committee on Health First Special Report

Consultants' Contracts

SESSION 1999-2000
Health Committee Recommendations: Progress - Consultants' Contracts

Third Report: Consultants' Contracts (HC 586) Published: 06/07/2000

Government Reply: Cm 4930 Published: November 2000


Government Response and Action

(a) It seems to us extremely surprising that accurate and independently recorded figures are not available assessing the average hours worked in the NHS by consultants. As we note below, this seems symptomatic of a general absence of information regarding the way consultants work. This needs to be rectified by the introduction of a much more systematic collection of objectively recorded data. This data should be held centrally by the DoH, as well as on a local level (para 11).

The majority of consultants work substantial and long hours, with high productivity levels. Consultants are professionals, with a professional commitment to patients which means that they work outside the hours and days per week that a set hours approach would suggest. We will always need this professional flexibility so the NHS can give patients the service they need, when they need it.
However, within this we do accept the need for a more systematic approach and better information, but believe such information needs to concentrate on productivity and output. To manage consultant time and resources better and to make the new consultant contract deliver we need to ensure that managers and clinicians have access to good quality benchmark information on clinical productivity. With this in mind, the DoH is considering, prior to discussions with the BMA, the range of data available and how to make the best use of what is already routinely collected in the NHS.

(b)While we appreciate that the contract needs to cover a wide range of issues, some of which will be complex, its effectiveness will be severely limited if it is incomprehensible to all but a tiny minority. We recommend that it should be a central objective of the current renegotiation that the contract be simplified and clarified wherever possible (para 12).

The Government shares the Committee's view that the new consultants' contract should be clear and simple. The objective is to set out precisely what is expected from a consultant and what can be expected from the NHS in return. The contract will be readily understandable to both consultants and to management. Although the contract needs to cover many complex issues, it should be as transparent and intelligible as possible. This objective will be central to the development of the new contract.

(c) Fixed sessions are vital because they give the most unambiguous statement of what work consultants are expected to do, and when. We accept that not all the work of a consultant can be fixed to a certain time or location. We also accept that there are circumstances in which different consultants should have different numbers of fixed sessions, depending on specialty, and availability of other resources, for example. However, we note the findings of the Audit Commission that there seemed to be no good reason for the wide variability in the number of fixed sessions specified. We agree with them that there should be a presumption in favour of consultants performing seven fixed sessions. Where there are good reasons as to why this is impossible, they can be stated and agreed, but we think there needs to be a strong stimulus to increase the numbers of fixed sessions being performed and that this could provide it (para 16).

The Government's intention, set out in the NHS Plan, is that existing consultants will, by default, be required under the contract to undertake seven fixed sessions per week pro rata. There will additionally be circumstances where Trusts wish to fund additional fixed sessions. The contract needs to allow local flexibility to move from the seven fixed sessions as a variation from the default standard, with each departure for the standard seven fixed sessions explained and agreed by the Trust as an amendment to the contract.
onsultants are employed on a professional contract made up of both fixed and flexible commitments which recognises their ongoing professional commitment to patients in their care. Flexible sessions are activities which are part of consultants' contractual commitments but are variable in terms of time and delivery, such as audit or clinical administration and they form an important part of consultants' workload and professional responsibility.

(d) We support the BMA in their espousal of a return to national terms and conditions for consultants. In relation to the 10% rule, we think it is unfair that some whole-time NHS consultants have their private earnings capped, while others do not. We also think that this is a point of principle and that to move away from it on an ad hoc basis will cause confusion and resentment. If the principle of allowing NHS consultants to work in private practice is allowed to continue, any contractual arrangements governing that private practice should be national. We believe more generally that a national contract would be more equitable and comprehensible and would better provide for the National aspects of the NHS (para 19).

The Government's aim is to develop a national contract for the NHS. Obviously there needs to be some scope for local flexibility, but the consultant contract should be seen as a national contract and a framework which Trusts should apply to their local circumstances.
It is clearly unsatisfactory to have contractual obligations which are inconsistently enforced and we will be addressing this and other issues relating to private practice in negotiating the new contract.

(e) It is astonishing that job plans - which are supposed to be a key tool in accountability and assessment of consultants' work - are not in place for every consultant and reviewed annually. We support the assertion of the BMA that job plans are necessary for their members as well as for the NHS in spelling out what each can expect of the other. It is shocking that almost 10 years after job plans were supposed to be introduced, some trusts have tolerated this lax state of affairs and that the DoH seems to have stood by and allowed their guidelines to be ignored. We call on all trusts to adopt an effective system of job planning as a matter of priority (para 23).

Job planning and employer led appraisal are central to the Government's proposals for the consultants' contract, and annual appraisal will be a contractual requirement from April 2001. We have recently reached agreement with the BMA on an appraisal document which will form the basis of an agreed model appraisal scheme and have agreed to continue to discuss with them the best approach to tighten job planning to support the new and comprehensive appraisal programme. The Government views job planning as a clear and a compulsory activity which all employers and consultants will undertake. In addition, the appraisal process is the vehicle through which the GMC's revalidation requirements will be delivered for senior hospital doctors and appraisal discussions and evidence gathering should be sufficiently broad to cover the essential requirements of revalidation.
he DoH recognises concerns about implementation and has recently announced a new performance management system which means that for the first time human resources in the NHS will be actively performance managed. Organisations will be held accountable for the way they manage and support staff. At the heart of the HR Framework is the new Improving Working Lives Standard, a model of good practice which will help Trusts create well managed, flexible and supportive working environments for staff.

(f) We welcome the support for a rigorous job planning and appraisal system demonstrated by both the Minister and the BMA. Given this agreement we would hope to see a speedy resolution of this issue in their negotiations, with the result that consultants have a contractual obligation to hold annual appraisals. It will then be necessary to ensure that the system is implemented effectively and not frequently ignored, as is the case with current job plan regulations. Similarly, if the system is to be meaningful, the DoH should set minimum standards, in terms of information to be collected and criteria to be applied to ensure that all trusts have to engage in this process in an effective way. We have seen what happens when trusts are allowed leeway over job plans: many consultants have none. The DoH must set minimum standards, collate information on their attainment, monitor the results, and take action against trusts which fail to deliver the goods. A rigorous system ought to be in everyone's interest, especially that of patients (para 26).

In a joint announcement the BMA and the DoH announced a national appraisal scheme for NHS consultants that provides the framework for the review and management of performance, for personal and professional development and, together with job planning, to measure commitment and contribution to the NHS. The BMA and the DoH have agreed a paper which will form the basis of a model appraisal scheme which will set out clearly the clinical and non-clinical performance issues that are to be covered and the accountability of Chief Executives for the appraisal process. Chief Executives have a responsibility to ensure that consultants have job plans and appraisals as set out in the national model. We are currently embarking on a comprehensive implementation programme to ensure that managers and clinicians have the right training and development required to undertake appraisal as effectively as possible.
The Government does not feel it necessary, or helpful, to introduce costly and burdensome statistical requirements on the NHS to monitor appraisal given this will be a contractual obligation. Refusal to take part in appraisal will be considered a breach of contract and, in addition, the Chief Executive will report the matter to the Discretionary Points and Distinction Award Committees, or the relevant body. A consultant who does not participate in appraisal will not be considered for an award until he/she has agreed to participate fully.

(g) It is regrettable that almost a third of consultants were missing fixed sessions when evidence was last collected on this. We accept that there may be good reasons in some circumstances for them doing so, but this highlights the need for NHS chief executives to be able to monitor the working patterns of consultants in order to ensure that their valuable time is being used effectively. We recommend that where consultants fail to meet fixed commitments, their explanations for doing so are collected. Consultants persistently failing to meet these commitments, without adequate explanation, should be subject to disciplinary proceedings. Trusts should collect information and publish figures regarding the number of fixed sessions missed on a monthly basis. The DoH should set targets and be prepared to act in cases of underperforming trusts (para 28).

The Government set out proposals in the NHS Plan that seven fixed sessions per week, pro rata, would be the standard requirement. Achievement of objectives, including fixed commitments, will be part of the regular and compulsory appraisal and job plan review cycle. Any persistent, unjustified breach of the contract and the job plan is subject to disciplinary proceedings. However, it is our intention that with comprehensive appraisal arrangements in place concerns about performance, commitment and attendance will be identified and in most cases discussed and resolved without the need for disciplinary proceedings. The DoH is considering, and will discuss with the BMA, what data is required to support appraisal and job planning, and what better use can be made of that information already collected in the NHS.

(h) There is no hard evidence which can confirm that consultants are meeting their important 'flexible' commitments. Given the fact that so-called 'fixed' commitments are missed surprisingly frequently, we are not confident that the situation will be better for flexible commitments. Also, we are not convinced that trusts are able to hold individual consultants to account concerning their flexible commitments. Therefore, we recommend that trusts require consultants to provide accurate figures for hours worked on flexible commitments on a regular basis. Again, action should be taken against consultants who persistently fail to meet flexible commitments (para 33).

We know that consultants work long and hard for the NHS, with a professional commitment to their patients that goes beyond timetables and set hours. The challenge is not to make consultants work longer, but to manage their time more effectively and to provide the support that is needed. Better management of time and resources is particularly crucial for flexible commitments.
Every consultant will have a job plan that sets out agreed commitments and hours of work and will outline fixed and flexible commitments. Regular job plan review linked to the appraisal programme will confirm that the delivery and organisation of these non-fixed commitments matches the job plan and meets the service priority. Individual appraisers and trusts need to be confident that they have accurate information for the appraisal and should be able to confirm that the delivery, organisation and location of flexible commitments meets the service needs. We believe that the way forward is through the new model appraisal scheme which will, for the first time, give employers the facility to oversee and support consultant commitments.

(i) Evidence from consultants' self-reported surveys suggests that, when combined with private work, consultants spend an average of over 60 hours working each week. Some will spend many more than this. This raises serious issues of patient care. We believe that NHS trusts should know the total number of hours worked by consultants overall, so that they can take action if those hours appear to be inappropriately high. Therefore we recommend that trusts require consultants to provide accurate details of weekly hours worked in the private sector. We believe that the DoH should give guidance regarding the maximum number of hours it is safe for a consultant to work. Although it should be possible to exceed this limit in exceptional circumstances, trusts should be able to tackle those consultants who do so regularly, be it as a result of NHS and/or private work (para 35).

The Working Time Regulations, which became law on 1st October 1998, require all employees to work no more than an average of 48 hours in order to ensure that the health and safety of staff is protected. The regulations allow individuals to opt out, by signing a consent form to work over 48 hours. The DoH takes the view that the 48 hour limit is an important element in ensuring that the quality of patient care is maintained. The national agreement with the Central Consultant and Specialist Committee (CCSC) for Career Grade Doctors AL (MD) 6/98 has identified that the 48 hours should be calculated over seven days in a 26 week reference period. This allows some flexibility to go over the 48 hour limit, when circumstances demand it. The performance management HR Framework, published in October, requires all trusts to implement the working time regulations. We will be considering with the BMA how we can best support and advise the NHS on implementing the working time directive locally.
As part of the agreement on appraisal the BMA has agreed that individual consultants must submit sufficient relevant data relating to other work carried out externally, including private practice, to the employer as part of the appraisal process.

(j) For as long as NHS consultants are allowed to undertake private practice, any contractual arrangements governing that private practice should be applied uniformly. It is unsatisfactory that the 10% rule may not be consistently applied, and that trusts do not routinely collect accounts. We recommend that all trusts require to see the accounts of all consultants who do private practice and that they implement the rule rigorously on the basis of those accounts (para 37).

The Government shares the Committee's view that where the same contractual arrangements apply they should be consistently applied. We are concerned by the variability, and will be discussing it as part of the negotiations with the BMA. Trusts must satisfy themselves that consultants on whole-time contracts are not breaching the 10% rule, using the required consultant statement and, where the position is not clear, requiring additional accounts. It would be unnecessary for Trusts and consultants to examine and prepare annual accounts in cases where both parties will know the rule has not been breached.

(k) In practice, it is not possible to ascertain the extent to which consultants are failing to meet their NHS obligations because of their private practice, because the information collected on consultants' workload is, as we have noted, currently inadequate. In addition, we are not convinced that NHS trusts themselves have the information they need to be able to make this judgment about their consultants. This is why we believe it is vital that the trusts should have confidential access to accurate information about the hours spent by consultants in their different activities. Without that information, we are not convinced that the minority of doctors who abuse their NHS positions - as Rodney Ledward did - will be called to account (para 47).

Job plans and the linked appraisal process will measure and monitor achievement of obligations. As part of the appraisal process employing Trusts need to review clinical performance and also satisfy themselves that consultants are meeting their NHS commitments. The model appraisal scheme states that a workload summary should be prepared before the appraisal and should include information on patient workload, teaching and management. The summary must include sufficient relevant data relating to other work carried out externally to the Trust or health authority.
The Government shares the concern of the Committee about the minority of doctors who abuse their position. Following the consultation paper "Supporting Doctors, Protecting Patients," the DoH is preparing measures to modernise the NHS disciplinary procedures and to implement the CMO's plans for dealing with poor performance of doctors through the establishment of the National Clinical Assessment Authority (NCAA). The NCAA, which will be established from April 2001, will aim to provide an "early diagnosis" of a problem of poor clinical performance, an objective assessment of its nature and seriousness, and a recommendation for action to address it. This would also aim to remove the need for long suspensions for separate and often time-consuming investigations.

(l) We support the suggestion that an independent waiting list and booking office be used as a way of reducing the 'perverse incentives' which exist in the system and we welcome the Minister's enthusiasm for this proposal. We recommend that an evaluation be carried out of such an office in order properly to assess the benefits and disadvantages it might bring (para 50).

The Government is also concerned to ensure that the patient is put first and that patient care is not compromised by the existence of 'perverse incentives'.
The NHS Plan sets out challenging targets for waiting and booking, to increase access and convenience for patients.

(m) It has been put to us that some consultants are driven by perverse incentives into maintaining long NHS waiting lists in order to stimulate lucrative private practice. This, however, has not been proven to us. What is indisputable is that NHS patients wait longer than private patients, and that private earnings are highest in those specialties where NHS waiting times are longest. We recommend that the DoH examine ways in which the suspicion of perverse incentives can be removed from the system (para 56).

The purpose of the NHS Plan is to reshape the NHS from a patient's point of view. The Government shares the concern of the Committee that some patients have to wait too long for a consultant appointment or for admission to hospital.
By increasing investment and making reforms the Plan will be able to deliver major reductions in waiting times covering all stages of acute care. Within new guaranteed maximum waiting time backstops, patients will be treated according to individual clinicians' assessment of clinical urgency and need.
We share with the Committee, and the BMA, the desire to remove any suspicion of perverse incentives from the system and we will be discussing the Government's proposals on exclusivity, and other issues around private practice, as part of the negotiations on the new contract.
(See Cm 4930 for full response)

(n) In order to get a better picture of what is happening in practice, we recommend that research be conducted into the comparative treatment of patients with similar clinical needs on the NHS, and of those who receive private treatment, in terms of waiting times, quality of treatment, and outcomes of treatment (para 58).

We are considering what comparative research might be helpful at this stage. Our first priority is to ensure that the NHS provides a fast, convenient and equitable service to its patients. This is being addressed through the NHS Plan which sets out extremely challenging targets.
The Government's vision for the NHS is to offer people fast and convenient care, delivered to a consistently high standard.
We have already put in place a number of mechanisms to drive up standards in all aspects of care in the NHS. (See Cm 4930 for full response)

(o) We believe it is indefensible that patients with similar clinical needs receive significantly different treatment purely because of their ability to pay. Therefore we believe that the Government should make it a long-term objective that consultants in the NHS do not undertake private practice. We recommend that the DoH commission research into what the effects of any such separation would be, and into ways in which incentives could be implemented and afforded which would help to keep the best consultants within the NHS. The NHS was founded on the principle of equity: it should put that principle into practice (para 60).

The Government set out clearly in the NHS Plan that under the new contract newly qualified consultants will be expected to work exclusively for the NHS for a period, perhaps of 7 years. After this period, the right to undertake private practice will depend on fulfilling job plans and NHS service requirements and on satisfactory appraisal.
We do not wish to prevent established consultants from undertaking private practice, but to ensure that for NHS staff the first priority is achievement of NHS commitments.
The Government has set out a clear strategy for the negotiations in the NHS Plan proposals to overhaul the contract and to target rewards and incentives at those who give most to the NHS. The result will be a contract that, for the first time, properly recognises the contribution consultants make, allows the NHS to manage and support their time effectively, and offers additional incentives for those who do most for the NHS.

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