Examination of Witnesses (Questions 1
- 19)
THURSDAY 15 JUNE 2000
DR JONATHAN
BOYCE, MR
JOHN BAILEY,
MS SALLY
WILLIAMS, MR
NICK STACE
AND PROFESSOR
JOHN YATES
Chairman
1. Good morning. Can I welcome you to this opening
session of our inquiry into consultants' contracts and can I particularly
welcome our witnesses to this first part of our session today.
We are very grateful for your attendance and also for the written
submissions that you sent to the Committee. Could I ask you each
to briefly introduce yourself to the Committee Members? Professor
Yates?
(Professor Yates) John Yates, University
of Birmingham.
(Mr Bailey) John Bailey from the Audit Commission.
(Dr Boyce) Jonathan Boyce from the Audit Commission
also.
(Ms Williams) Sally Williams, Principal Researcher,
Consumers' Association.
(Mr Stace) Nick Stace, Senior Public Affairs Officer
at the Consumers' Association.
2. Can I begin with an opening question to Professor
Yates who I recall having sat across the table nearly ten years
ago on this same issue? Why is it that, 51 years on from the NHS
coming into being, the consultant contract has remained, as the
Department of Health say, virtually unchanged? With the kind of
issues that you have raised in your evidence, if I can quote the
case you refer to of Keith, which summarises my personal
concerns, whether or not it is a real patient—
(Professor Yates) It is.
3. He is a man who required heart surgery. He
was told he would have to wait about nine months but for a payment
of £10,000 the same surgeon would operate on him within two
weeks at the same NHS hospital or in a private hospital, in a
neighbouring city some 25 miles away. You go on to say: "The
health care system in this country will consistently allow other
patients to be treated before Keith. ... This means that Keith
will probably be overtaken by 45 private patients in nine months
in that hospital. Their operations will be performed by NHS surgeons
in NHS theatres supported by expensive intensive care facilities
and staff. Their earlier access to care will simply be based on
their ability to pay." I had a similar experience to this
man with a member of my own family who died, so I feel quite strongly
about it. Why has this situation been allowed to continue for
51 years?
(Professor Yates) I think it suits both politicians
and consultants, quite simply.
4. Why does it suit politicians?
(Professor Yates) Because if you are going to pay
consultants a reasonable salary that will attract them to work
in the NHS full time or for most of their time then you are going
to have to pay them a lot more than we pay them currently. That
is the edginess that politicians in government had for the whole
of that period of time because it is not just the surgeons you
have to pay more money to. If we are equitable about how we pay
people, you have to pay all 20,000 consultants. If you pay them
more money, you are going to have to pay GPs more money and then
you have a very large bill. The second dilemma that politicians
have is that if they do make an offer it will obviously not attract
everybody to stop working in the private sector. What would the
losses be? Certainly 10, 20 or 30 years ago, people would have
been concerned that we would have lost a large number of people
to the private sector. That will obviously happen today. The question
is what is the number. If someone is earning a third of a million,
it would not take him much to make a decision as to which way
he jumped. For the majority of consultants, would they want to
leave the NHS if we paid them a substantial amount more money
extra? That is the issue. That is the dilemma which goes back
to what Barbara Castle called "the fudge" in 1948.
5. Do you see this fudge in any way being addressed
in the national plan? We have had interesting comments about possible
increased use of the private sector by the NHS. How do you feel
about that?
(Professor Yates) I have seen nothing of the national
plan. Today's announcement is a proposal which is a little strange,
in the absence of evidence about what theatre capacity there is
within the NHS. My studies have shown that there is a large amount
of empty theatre capacity in the NHS so why we should be needing
to use the private sector in those circumstances I do not know.
It could be to do with beds. There is a lot more evidence there
that we probably are short of beds, but if surgeons are underused
in the NHS it seems strange to ask them to work in the private
sector, particularly if you are going to pay them more money.
6. Can I ask our witnesses whether they agree
that the main objective of consultants' contracts with the NHS
should be to ensure the best possible treatment for NHS patients?
Is that something that you would agree with?
(Professor Yates) Yes.
7. Does it do that at the present time?
(Ms Williams) At the moment the contract as it stands
is flexible for consultants but it does not mean that they are
accountable to the NHS. It is the flexibility which is at the
heart of the problem. We have concerns about this at a number
of levels. Firstly, quality of care. It means that in terms of
supervision of junior staff, consultants' flexible commitments
may suffer if they are spending time in private practice. That
has implications for the monitoring and training of junior staff
which in turn has implications for patient care. We are not just
talking about patient care in the NHS; we are talking about in
the private sector as well. Our other concern is about whether
there is a perverse incentive to sustain and create lengthy NHS
waiting lists. It seems to make sense to me that if I was going
to profit from private practice it is in my interests that waiting
lists are long. It just does not seem to make sense and it is
not suitable for a modern NHS to have such a contract. We are
also concerned that these contracts do not hold consultants to
account. We have done a survey in preparation for the Health Select
Committee of chief executives of acute trusts in England and Wales.
One of the things that they have all emphasised is that consultants
work incredibly hard for them and incredibly hard for the NHS
but, where there are problems, because of the flexible nature
of the contracts, it makes it very difficult for them to do anything
about it. The chief executives gave us some very strong messages
about the impact of the current contractual arrangements. 40 per
cent of them felt that private practice could have a negative
impact on waiting lists for operations and a similar number spoke
about a negative impact on waiting lists for outpatient clinics.
Clearly, it is not a satisfactory system as it is.
(Dr Boyce) The work that the Audit Commission did
on this was based on a sample of 27 trusts in the first instance,
and subsequent audits at 112 places. I would qualify that by saying
it is now five to six years old and clearly things may have changed.
To answer your general question, we do not know whether the current
arrangements are capable of delivering good value for NHS patients
because they are not being properly enforced, or rather were not
being properly enforced five years ago and I suspect that that
is still the case. That lack of enforcement operates at several
levels. First of all, within the contract, there are supposed
to be job plans. It was quite clear to us at the time that less
than half of hospitals had job plans for all their consultants.
About a quarter of consultants did not have job plans overall.
Those job plans were not being regularly revisited. More importantly
than that, within that, the fixed sessions—the sessions
for operating for outpatients, and ward rounds—were highly
variable. Although there are supposed to be extenuating circumstances
on fixed sessions—for example, if you have very high on-call
commitments, you have fewer fixed sessions—we could find
no rational link between the number of on-call commitments and
the number of fixed sessions, suggesting that there was something
of an arbitrary allocation of fixed sessions. We think that in
the first instance there should therefore be some revisiting of
that, some tightening up of the existence of job plans and of
the number of fixed sessions within them. There is a second phase
which is to make sure that people fulfil their fixed sessions.
At the moment we know they are not always turning up. This is
perhaps less important than the number of fixed sessions. Again,
our work indicates that if you look at the drivers of how much
work a consultant is doing the most important one is how many
fixed sessions they have been allocated and told to do, not whether
they turn up or not. That has a lesser effect but it does have
some effect. There then needs to be some policing of attendance
at fixed sessions. In answer to your question, if those things
were done, it may be that one would then find all consultants
delivering the correct amount to the NHS notwithstanding what
else they were doing in their more flexible time. I do not know
for sure.
8. Could I put to you, Dr Boyce, and to the
Consumers' Association as well, the point which I raised with
Professor Yates? Why is it that we have taken so long to look
at this seriously? It was nine years ago that this Committee produced
a report under the previous government making certain recommendations
about what should happen. Neither the previous government nor
the current government have acted upon those recommendations,
as far as I am aware. Professor Yates makes the point that it
is politicians who slow this down. Yet, as a politician, one of
the major areas of complaint I receive from my constituents is
the way in which they have to wait for treatment and are told,
"If you are prepared to pay again for what you have already
paid for, you can see exactly the same person privately that you
would be waiting to see on the NHS." As a politician, I think
we can resolve that. It is something that is fairly simple to
resolve, I would have thought. Why have we not done it? Would
you share Professor Yates's views about the reasons why there
has been such a lack of any attempt to address this seriously
over the last 15 years?
(Dr Boyce) I do not know the answer to that. We made
very clear recommendations five years ago in our national report
on things that should be being done and it is clearly the case
that those have not been picked up on with anything like the rigour
that we would like to have seen. We have not as yet had the resources
to revisit this area. I hope we will be able to do so in the future
and to look again with our auditors at what has been done and
to make further and better recommendations.
(Ms Williams) I think we would echo the things that
Professor Yates said but also, when we were doing our research,
I think that doctors had been holding a threat over the NHS. Certainly
they made it very clear to us that if restrictions were imposed
on their private practice they would be ready to walk. Whether
that sentiment still holds today I do not know. One of the other
reasons is that they claim to work very long hours for the NHS.
If we are going to place restrictions on the amount of private
practice that consultants can do, it follows that we should place
restrictions on the amount of NHS work they do and that has implications
for work force planning for the NHS.
9. Do you detect a cultural change within the
medical profession about attitudes towards this issue? In recent
times, I have been surprised at the number of consultants who
themselves have said that this is an area that needs to be looked
at. They see patients in their view suffering, as a consequence
of this system. Do you think there are changes in the climate
that might make it ripe for some radical reform at this stage?
(Mr Stace) Yes, I do. There are a number of things
happening, not just in the professions. You have the Ledward,
Neale and Shipman cases which have highlighted some of the deficiencies
in the current system. In the Ledward case, the Ritchie Inquiry
recommended that there should be changes made or at least that
there could well be a conflict of interest between consultants
private work and NHS obligations. The climate is also right politically.
It is, as you rightly said, 51 or 52 years on from when the compromise
was brought about in 1948. Alan Milburn's discussions of an NHS
fit for the 21st century requires a consultant contract that reflects
that and reflects the obligations that consultants should have
to the NHS. The national plan seems an obvious time to do that.
Labour did commit themselves a few years ago in their policy document,
"Renewing the NHS", to a wide scale review of
this area because they felt at the time the Conservative Government
had not looked at this and it was a much needed area to look at.
We have probably just under a year left of this Labour Government,
certainly the first time round. There are differing views as to
whether it will be re-elected, but they have a year to act on
this. The political climate is ripe for this. It is concerning
though that when the Secretary of State last week and the week
before talked about this and talked about the need for reform,
when pushed on this particular issue about consultants' contracts,
he did not give any firm commitment either way. I am very pleased
that the Select Committee are looking at this.
(Ms Williams) Picking up on your point about whether
there is a culture shift within the profession, we are in an environment
now where there is greater scrutiny on how doctors perform and
their conduct more generally. We have had a lot of attention given
to the regulatory process. This really does fit in with clinical
governance because if clinical governance is going to work—and
in particular if appraisal is going to be conducted properly—we
should be asking consultants not just about their performance
in the NHS but their performance outside the NHS that could have
a negative impact. This is essential and must be seen within the
umbrella of clinical governance.
Mr Burns
10. Can I pick up, Chairman, on one point that
you raised? It is an area that causes me concern. That is where
you have areas of the country that have long waiting lists and
one hears more and more from constituents who have been to see
a consultant, and they need an operation of some sort that is
non-emergency. They are advised as they are seeing the consultant
that it could be 12, 14 or 15 months before they can have this
routine operation. As the Chairman said from his experiences,
in the same breath they are then told by the same person, "But
we could fit you in next week in a private hospital if you are
prepared to pay £8,000", which is a considerable sum
of money certainly for most of my constituents. They do get baffled.
I do not want to appear naive but is that information being given,
apart from the horrendous PR for the NHS, by the consultant genuinely
trying to be helpful to the individual or is it touting for business?
(Professor Yates) I do not think you can answer that
question because it is individual motivation. There are a large
number of consultants who are not using that to tout for business
explicitly. Keith was not told by the surgeon that he should spend
£10,000. He and his wife asked what the options were and
the surgeon told him that it was a £10,000 option in the
private sector. I am not suggesting Keith's surgeon was touting
for business in that way. For many people, that is not the case.
A classic example of where it is seen to be the case is the Ledward
example, just being published now, where it looks as if deliberate
pressure was put on patients to go privately. That would be an
unfair slur on the medical professions, and the surgeons particularly,
if we suggested most people did that.
11. I was not suggesting anything.
(Professor Yates) My view is that the system is at
fault, not the individuals. They are in an invidious position
where that question either should be helpfully offered or, if
there is an inquiry, an answer should be given. It is the system
that is imperfect, not the surgeons.
(Ms Williams) This raises a lot of questions about
how waiting lists are handled, who has control over waiting lists
and who has the say over how they are handled. Whether it is in
the hands of consultants and how much power they have over waiting
lists, I do not know the answer to that, but it does raise questions
and it would be a good inquiry to look into waiting lists in much
more detail.
John Austin
12. It does raise a fundamental issue, does
it not? Professor Yates has said it is the system. There is a
conflict of interest. It is in the interests of NHS consultants
who work in the private sector for there to be pressure and waiting
lists. Professor Yates has said that capacity does exist within
the NHS hospitals, so it does not really make sense for the NHS
to purchase the extra places in the private sector with the same
consultants that possibly cost more. I wonder how the Audit Commission
would see that?
(Dr Boyce) If I understand you, what you are saying
is that if one were to tighten up on consultants' activity outside
of the NHS would that bring a substantial amount of consultant
manpower back into the NHS to solve this capacity problem to some
extent. It is very difficult to quantify, mainly because there
is not very good information on precisely how much individual
consultants are doing in the private sector. One of the recommendations
that we would definitely make is that there ought to be much better
information. If that requires some sort of mandatory reporting,
that ought to be put in place. That would be the first thing.
To answer your question, you would need better information. That
is the problem with a lot of these questions. We do not have sufficiently
good information to be sure what the consequences of any particular
bit of policy change would be. From the evidence of the other
witnesses today, there are clearly some consultants who are doing
substantial amounts of work in the private sector whilst still
being on a maximum part time contract in the Health Service. If
those people were brought back into working full time in the Health
Service and not doing so much in the private sector, that would
have an effect but I do not know whether it would be one per cent,
five per cent or 15 per cent more capacity within the Health Service.
(Ms Williams) Even if consultants' time is freed up
to devote themselves just to the NHS, it does not mean we have
enough nurses or enough beds to enable them to do more procedures
and to look after patients, so I think those wider things would
need consideration as well.
Mr Amess
13. The Committee would be very grateful for
any information you can give us regarding the types of contracts.
Can any of you tell us what is the proportion of consultants who
have full time contracts? What proportion have maximum part time
contracts and, finally, what proportion have part time contracts?
After that, could you tell the Committee which of those particular
contractual arrangements you believe best meets the overall objectives
of the National Health Service?
(Professor Yates) When Regional Health Authorities
existed, it was possible to get that information within a Regional
Health Authority. I am not sure whether that is now routinely
available at national level. It does vary between specialties.
Of general surgeons, orthopaedic surgeons, cardiac surgeons, the
main surgical group, the majority, I would think 80 to 85 per
cent, would have maximum part time contracts. A small proportion,
five to ten per cent, have full time contracts. Commonly, that
is at the beginning of their employment when they first start
work or right towards the end of their employment, as they are
coming near to wanting a larger pension. There would be another
five or ten per cent perhaps who would be on part time contracts.
That group would often be academics who would have a half time
contract with a university and half time elsewhere or, in a very
small number of cases, people who literally want a part time contract,
working women or whatever. For anaesthetics, the proportion two
or three years ago was much higher on full time contracts and,
for medicine and other specialties, it would be even higher again.
Mr Amess: There is not any document source where
we could get this from precisely?
Chairman
14. It seems very odd. We were able to get down
to looking much more closely at how the NHS operated locally in
comparison to other areas and yet, in an area that really is of
fundamental importance, the information seems lacking.
(Professor Yates) It is lacking. If you ask a trust,
they will tell you what contracts their staff are on. A surgeon
could be on a part time contract with them but also have a part
time contract in another trust. Therefore, whereas previously
there was a regional authority that would have that contract and
hold it, the information is much more difficult to get now.
Mr Amess
15. It is surprising, disappointing and it does
not really make this Committee's job that easy, but the second
part of my question which surely you will all be able to answer
is which of those three arrangements would best help meeting the
overall objectives of the National Health Service. You must have
a view on that.
(Ms Williams) None of them, particularly because most
consultants we understand are on the whole time or maximum part
time and they are governed by this fudge, which is that they must
"devote substantially the whole of their professional time"
to the NHS. What that means to me may mean something completely
different to you. This is where the flexibility is. That is where
the problem is and that is why we think that they need to be abolished
and to start again.
16. You have sent us written evidence on this,
have you?
(Ms Williams) Yes.
17. Which I have not read. You three gentlemen
are not prepared to give a view?
(Dr Boyce) There need to be controls to prevent exploitation
of the current system. If that means changing the contracts, then
it would mean changing the contracts to a different kind of contract,
as Ms Williams has said. The important thing is to make sure that
there are controls to prevent exploitation and at the moment,
from the evidence that is around, it is generally accepted that
a small number of consultants are exploiting the current arrangements.
18. Have you submitted any evidence to us in
writing? Do you intend to on this point? May you reflect on it?
(Dr Boyce) Our submission does deal with some evidence
on private practice and the effect that has on the amount of work
being performed in the NHS.
19. What factors do you think would determine
a consultant taking up what we are dealing with at the moment,
one of these three arrangements? What sort of factors do you think
would be in a consultant's mind?
(Ms Williams) Money would be one. It depends very
much on the specialty that they are working in, in terms of how
much money they can make. We know that from our own research,
looking at how much time consultants set aside for private practice,
orthopaedic consultants set aside most time and have the longest
waiting lists. Orthopaedics is a very lucrative area of private
practice. If I was an orthopaedic surgeon, I would need to decide
whether I was willing to just earn ten per cent of my salary from
private practice or whether I was willing to give up an eleventh
to earn an unlimited amount from private practice. That is the
nub of it. On the previous point, in our survey of chief executives,
they gave us a very clear message that they do not think contracts
are an effective mechanism for ensuring that consultants are meeting
their contractual duties to the NHS. In fact, they said it was
the least effective mechanism. We have a situation where chief
executives are struggling to try to maintain control, to make
sure that their employees are working to the best advantage and
they are finding that difficult with the contracts they have.
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