Examination of Witnesses (Questions 40
- 59)
THURSDAY 15 JUNE 2000
DR JONATHAN
BOYCE, MR
JOHN BAILEY,
MS SALLY
WILLIAMS, MR
NICK STACE
AND PROFESSOR
JOHN YATES
40. That is matched up with the contract that
has been signed by consultants?
(Dr Boyce) Yes, with the number of outpatient sessions
and operating sessions that consultants are supposed to be doing.
Their attendance is monitored. If they do not turn up significantly
often, if there is frequent non-attendance at a particular session,
they will in a good trust be tackled by the medical director,
the clinical director or whoever. That certainly happens. I have
spoken to people in the last few months who had to do that to
consultants.
41. You said if it is frequent in a good trust.
Does that mean that—?
(Dr Boyce) I have not done a survey of all trusts.
I do not know the answer. All I can say is it does happen in some
places.
42. Have you done a survey of some trusts and
found that in not all of those trusts that you have surveyed do
they do it?
(Dr Boyce) No. We have not done any work for five
years on this area. That is anecdotal. I have spoken to some medical
directors recently who have followed up consultants for regular
non-attendance at fixed sessions.
(Mr Bailey) On the evidence that we found from the
work we did five years ago, can I make a point about the implementation
of job plans? One of the key factors was more the fact that consultants
did not have the fixed commitments, as opposed to whether they
were attending. It is a responsibility on managers to ensure that
job plans are in place and fully utilising their consulting capacity.
(Ms Williams) When we did our survey of chief executives,
job plans should be the key mechanism by which they can ensure
that consultants are meeting their commitments. Our chief executives
admitted that not all consultants in their trust had a job plan
and also that they were not always updated on an annual basis.
On top of that, they did not think they were the most effective
mechanism for making sure that consultants met their commitments.
What they did think was really effective was appraisal which obviously
has important implications for the CMO's document and for plans
about clinical governance. We did get feedback from them in open
ended questions, where they said that if they find a consultant
is not meeting his or her commitments this is where they get into
difficulties. Because the contract is so vague and woolly, it
means it is hard to take action against them.
43. If the contract is vague and woolly, presumably
that must be the fault of the trust because it is the trust that
has drawn up the contract with the consultant. It seems paradoxical
to me that a trust that has the flexibility and responsibility
of drawing up these contracts might then say, "The trouble
is these contracts are so vague and woolly it is rather difficult
to monitor what is going on and how to enforce it". It just
seems perverse to me.
(Ms Williams) To be honest, I was not aware that different
trusts were using different types of contract but the chief executives
seem to be constrained by certain types of contracts, so I have
no answer and am equally bemused by that.
(Professor Yates) There are two reasons for that.
Firstly, trusts themselves do not always have the resources to
make a good, fulfilling contract. I have just done a study of
40 trusts where many of the orthopaedic surgeons are only given
two operating lists a week, which is not what their association
would demand. They would expect at least three.
44. Because of lack of funding?
(Professor Yates) Because of lack of funding, lack
of theatre space or whatever reason the trust has. Secondly, the
trust does not have the mechanisms always or the support from
government, because it has for many years felt that the contract
with consultants has been too weak and woolly and therefore it
has inherited a culture in which it feels he has a very weak contract
and knows he has a weak contract and therefore is hesitant to
take it on board. Ten or fifteen years ago when I raised this
issue, I was told that job plans would be the solution and committees
like this and the government of the time were assuring me that
this problem would pale into insignificance because we were changing
the job plans. I do not have any faith that the current government
is going to make a radical change if we are just talking about
small changes of contracts. I am older and more sceptical than
some of the colleagues on my left. I see very little evidence
yet that they are prepared to take this issue on. You are in a
culture where there is no support from the top, where there has
not in the past been the money to provide a contract. It is hardly
surprising if you get a woolly contract between the conditions
and the trust.
45. Do you think it is fair to say that it does
seem from the way you are all describing the situation that has
evolved in recent years that it is a bit like the blind leading
the blind? No one seems to know exactly what is going on or how,
if anyone believes there is a problem because not enough work
is being carried out, that can be dealt with because everyone
then says that the contracts are woolly and unworkable.
(Dr Boyce) We need to look at the difference between
fixed sessions and non-fixed sessions or unallocated sessions
which offer things like research and teaching. The fixed sessions
are not "weak and woolly". They are quite explicit:
"you will be at this outpatient clinic on this morning from
nine until twelve" or "you will be operating this afternoon"
and so on. Those are very clear, explicit commitments. The problem
that we found when we looked at it five years ago was that the
number of those commitments varies, certainly between the five
and seven fixed commitments specified in the contract. Even further,
we found that some full timers were on four fixed sessions and
others were on eight. There is considerable variation in the number
of fixed commitments that are being asked of consultants. We could
find no explanation for that variation. There ought to be some
explanation in terms of their other arduous tasks and so on, case
mix perhaps. As Professor Yates says, some of that variation will
be because the trust cannot offer the capacity and does not have
the operating sessions to give them, but other elements will be
because there is no decent negotiation going on, looking at how
many there ought to be. We would be quite clear that everyone
ought to have seven fixed commitments and, if they do not have
seven fixed commitments, there must be a good explanation from
the trust as to why not. That would be a very good starting point
in terms of tightening up on this "woolly" contract.
The whole issue of non-fixed commitments is another debate that
has to be addressed.
(Mr Stace) In preparation for giving evidence to this
Committee, we did a survey of all the chief executives. Interestingly,
we found that not one chief executive of an NHS trust felt that
consultants should do more than two half days in the private sector.
That conflicts with our earlier research that showed that nearly
half the consultants did more than two half days, so there is
a definite mismatch here between the amount of time that chief
executives think is appropriate for consultants to spend in the
private sector and the amount of time that they actually are spending
in the private sector.
46. Is not that slightly a biased view and special
pleading in so far as, whether that is right or wrong on medical
grounds is another matter but chief executives of trusts, particularly
for the last seven years probably, have been under intense political
pressure to get down their waiting lists. A chief executive will
minimise the amount of time that they believe a consultant should
be using on his private work so as to try and maximise his trust's
performance on waiting lists.
(Mr Stace) More than that, it probably shows that
the contracts do not give chief executives the authority in order
to state how much time a consultant should spend in private practice
or, for that matter, their obligations to the NHS. Yes, I think
there has been enormous attention given to waiting lists and bringing
them down. It was not as if chief executives said that they should
not spend any time in the private sector. No one thought they
should spend more than two half days but 46 per cent thought that
they should be allowed to spend at least one half day in the private
sector. The chief executives were quite realistic about what consultants
should do. It sort of mirrored also what Sir Duncan Nichol, then
the chief executive of the NHS, said, that in fact consultants
should not spend more than one half day in the private sector.
It is a similar finding.
47. In a way it is irrelevant but you are talking
about a group of people who have a vested interest for their own
performance levels in minimising the amount of time that they
will publicly say they think consultants should do. I am sure
if you asked the consultants they would say far more than that
should be devoted to their private work and that evidence would
be equally tainted in this respect because they both have a vested
interest in giving an answer that suits them.
(Ms Williams) What we are looking at is a situation
where they [Chief Executives] are not saying they [Consultants]
should do no private work but let us place a limit on it. The
contracts are not effective. They are preventing us from controlling
consultants in the way we should. On your point that this is a
situation where the blind are leading the blind, it is very confusing.
We try to get at it as best we can and we have been skirting around
the edges, trying to get a look in. It shows that there is enough
evidence to raise serious questions about what is going on. There
is enough evidence to say actually there is some trade off apparently
between private practice and the NHS. There is enough evidence
to say that what we really need is a systematic review to find
out exactly what is going on and to start from scratch.
48. Do any of you, either from your Commission
investigations or personal experience, have any knowledge of what
actually happens and what the NHS and trusts do towards those
consultants who are not performing or are for no good reason in
breach of their contract, however inadequate that contract might
be?
(Professor Yates) There is very little published,
public evidence that any trust has handled that matter. There
was a national audit report where an example was given of a management
team in Southampton or Portsmouth and Chris West was taking on
some ophthalmologists about their contracts. That is the only
published evidence I can think of in the last ten years. In the
main, my experience has been from the studies I have done on waiting
lists and workloads over the last ten years that the trusts duck
this issue time and time again.
Chairman
49. Will clinical governance make any difference
to that?
(Professor Yates) Unless one has some negotiating
standards with the professions and agreements and some evidence,
I would think it would be hard for it to do so.
Dr Stoate
50. I have been a doctor for over 20 years.
I thought I knew the Health Service fairly well. I am getting
more and more disquieted by this inquiry because we have a panel
of experts in front of us who we believe are very well briefed
in their field. You all have extensive experience, and yet you
cannot answer the questions. I am not blaming you for that. The
information just does not seem to exist on very fundamental points.
We do not know what a standard consultant contract is because
it seems to be variable across the country. We do not know how
many consultants are meeting these contracts because there do
not seem to have been any statistics collected. We do not know
how many consultants have job plans, although most of them are
supposed to have. It does not look as though the majority have.
We do not know if the job plans are being policed because no one
seems to have any information about that. It seems to me that
the NHS would reasonable be able to say that it does not know
what it is getting for its money. I am convinced that the majority
of consultants do an excellent job and are more honourable about
the hours they work but there is far too much that is not known.
WE are talking about a service that spend overs £40 billion
a year of public money. I do not think the service knows what
it is getting. It may be getting a good deal. Equally, it may
not be getting a good deal. More likely, it is getting a mixed
deal. We do not even know what that is. I was going to ask about
how effective job plans are but there does not seem much point
because you have already told us they are not effective. I was
going to ask you what happens if consultants do not have job plans
and the answer seems to be not much. That does not get us anywhere.
What I would like to focus on, Dr Boyce, is this very wide variation
in fixed commitments because that seems to be the nub of it. If
the contracts specified exactly what consultants should be doing
at least for a majority of their sessions, it would be relatively
easy to police presumably but why is it that there are such wide
variations of fixed sessions? Why is it that some seem to do two
fixed sessions and some do eight? What is the rationale behind
that?
(Dr Boyce) It is largely there for historical reasons.
These things arose often on the back of individual negotiation.
Sometimes a new consultant came into the department and there
would not be sufficient capacity in terms of outpatient slots
or operating slots to give them the fixed commitment sessions
at the time. On workload grounds there are enough patients there
and maybe over time the capacity comes back but the workload and
the contract do not get changed.
51. You talk about taking on new consultants.
If your trust is taking on a new consultant, first of all you
have to say to your board why you need a new consultant and you
say it is because you have three operating sessions you are not
filling or whatever it might be. If you went to the trust board
and said, "We cannot afford any operating sessions or only
one a week and there is only enough room in the outpatients' department
for two sessions a week", the trust board will say, "Then
we do not need a new consultant, do we, because you cannot justify
a new consultant." If you are a trust board member, you would
presumably want to know why you wanted a new consultant. There
would need to be demonstrated a need for a certain number of sessions.
If that is the case, why is it that those sessions do not get
written into the fixed part of the contract?
(Dr Boyce) I simply gave that as one example as to
why there would be variation. Often, a consultant post would be
made because of an increased pressure of workload in terms of
numbers or referrals. It might be to do with specialisation and
the need for particular sub-specialties to be in there. There
are all kinds of other reasons why new posts are created. Having
created them, one possible reason why you then get variation in
the number of fixed sessions that consultants have is that there
may not be capacity there. There may be other reasons as well.
It is largely there for historical reasons. If you then say why
has that persisted, the answer must be that management has, for
whatever reason, not seen fit to iron out those variations. We
said quite clearly that there should be clear rules on the number
of fixed sessions and where there were not seven or more there
should be an explanation as to why there were not seven or more
fixed sessions for any consultant. The number of job plans within
contracts has increased over the last five years. If you look
at what we found in our report and what is being reported now
in the other witnesses' papers, for example, there is some increase
in the use of job plans, but it is still by no means universal
and it ought to be. We are quite clear about that and so is the
profession.
52. We have all agreed that we need to set down
more fixed sessions and police them but it still is a significant
chunk of the week. It could be anything up to eight sessions a
week which are so-called flexible sessions. Do you know of any
evidence that trusts are taking any action to police those sessions
in terms of finding out what consultants are doing in those so-called
non-fixed sessions?
(Dr Boyce) We have not looked at this for five years.
When we looked at it, our conclusion was that very few trusts
were doing that sort of policing, even though they had the information
available. It is there in theatre registers and outpatient records.
You can find out attendance but, having said that, I am pretty
sure that this has improved over the last five years. I am speaking
anecdotally again and I have already cited some particular cases
of people I talk to who have had to confront consultants for not
turning up to their fixed sessions. That is certainly happening
in some places. We ought to be making sure in our National Health
Service that that is happening everywhere.
53. Do you know whether trusts routinely collect
information on how much private work consultants do or is it something
that is left entirely for consultants themselves?
(Dr Boyce) I do not know for sure. I can only quote
from the other witnesses' papers. A small number do and a small
number do ask consultants how much they have earned in the private
sector. The majority do not.
(Ms Williams) Can I say something on each of those
questions? About the number of fixed sessions and flexible sessions,
one thing to consider is that in those flexible sessions much
time may be taken up by teaching. If you had a teaching trust,
quite validly a consultant may spend time with juniors, in lectures
or things like that. In terms of where are they when they are
doing their flexible commitments, anecdotally we were told by
chief executives that one of the members had said, "It is
funny how their flexible commitments all seem to take place at
home and how, when they want to take time off on leave, they always
take that from the fixed commitments." Whether that marries
out across consultants as a whole I do not know. In terms of the
amount of private practice consultants do and whether trusts record
it, a study was done by the Pay and Workforce Review Body and
they looked at whether trusts, which have a right to ask a consultant
how much they have earned from private practice within the last
year—and if they are working under the ten per cent rule
they need to so that they know that is working—and only
six out of 72 trusts did that. From our own survey, we found that
it is not a tool that is used widely by chief executives and they
did not think it was particularly effective.
54. You said consultants are doing teaching.
Of course they are because it is part of a consultant's job to
teach and also to carry out audits. Surely that is a fixed session.
If they are going to teach their juniors or medical students or
help to teach GPs, they need to do that as a fixed session surely,
because it must be part of their written contract. Is that not
the case?
(Ms Williams) I would absolutely agree. As I understand
it at the moment that is a flexible commitment, so it could take
place at a variable time. A lot of our chief executives worried
that private practice had a negative impact on the training of
junior doctors. I think 36 per cent said they were worried about
that, which would indicate that they feel that they are the sorts
of things that will suffer under private practice.
55. If you leave the teaching and training and
the flexible part of the contract, that is the bit that is likely
to get forgotten about or squeezed out?
(Ms Williams) It would seem that there is a risk of
that, yes.
Mr Hesford
56. Professor Yates mentioned that there was
a range of factors why waiting lists were as long as they were.
One factor would be the potential conflict between private practice
and NHS contracts. Amongst the range of factors, in percentage
terms, is it possible to say how significant the conflict of interest
is in the question of length of waiting list or waiting time?
(Professor Yates) I feel it would be no more than
a guess, having worked in this area for 15 years.
57. A best guess?
(Professor Yates) It is variable from location to
location because clearly if you are in a trust that is woefully
short of resources that would be the dominant reason in that particular
trust for there being a huge problem. I remember working in a
Welsh trust that only had 17 beds for orthopaedics, two surgeons
and clearly it was the shortage of beds there; whereas you could
go to some other locations—I can think of a London trust
with one of the largest ENT waiting lists in the country—where
one of the clinicians spent six half days a week in the private
sector and I would argue that predominantly his attention to the
private sector is the reason and that would be nearly 90 per cent
of the cause of that one. It is a guess therefore and I would
think 15 to 20 per cent of the problem would be associated with
that, but remember, it is not a private/NHS sole problem. The
NHS itself does private practice. It is not a criticism of the
private sector as such or consultants. There are many NHS institutions
that rely on the private sector to survive.
58. Dr Stoate has asked already about collecting
information about income earned and all the rest of it. What is
the legal requirement on a trust to monitor what their consultants
get up to, if any?
(Ms Williams) All the chief executives now have a
statutory duty for the quality of care that is provided within
their trusts and we would argue that this is all linked to that.
It is absolutely essential they know what all their employees
are doing, when and the output that they are generating. This
must fall under that, particularly if there are concerns that
consultants are being taken away from the trust or from supervising
junior doctors. That could have an impact on quality of care.
Indirectly, they do have a duty of care.
(Dr Boyce) They also have a duty to monitor private
practice earnings of whole timers, to check on the ten per cent
rule. To quote from the evidence you have here from the Department
of Health, "A whole-time consultant is permitted to have
private practice earnings of up to 10% of their gross NHS salary.
NHS Trusts are expected to monitor this and may demand audited
accounts each year to check consultants have not exceeded the
limit, although in practice we do not think this rule is tightly
enforced."
59. Why is that? Is it some sort of fudge? They
just do not want to answer the question?
(Dr Boyce) I do not know.
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