Examination of Witnesses (Questions 180
- 199)
THURSDAY 22 JUNE 2000
DR PETER
HAWKER AND
MR DEREK
MACHIN
180. You mentioned before to the Chairman the
need for tightening up on the contract. In terms of your on-going
negotiation with the NHS, how might that tightening be best ensured
in any new contract?
(Dr Hawker) The first thing we need is a proper allocation
and assessment of the contract for the work done for emergencies
and out-of-hours. That is something which is totally inadequately
looked at under the current contract. It is based on those experiences
of 20 years ago when being on-call was being on-call. It is not
based on the situation now of being so-called on-call. Having
just finished a week of emergency admissions as a physician, I
found the ten hours (work) on the Saturday and 12 hours (work)
on the Sunday was, by no stretch of the imagination, on-call.
This is the common pattern of medical practice. Quite rightly,
I happen to believe, more of the emergency care should be and
is being provided by consultants. That is not taken into account.
That is the first thing which has to be tackled. Then we have
to work out how we fit in the rest of the functions we have as
doctors, around what time the state is prepared to contract with
us. That is where we want to move. Once we know exactly what is
expected—not a broad, "You will provide the emergency
on-call service and we might make some assessment for this"—that
is causing a great deal of concern and anxiety with my colleagues.
There is no way that we can turn away from the emergency work,
that massive increase. The statistics coming through from the
Department and from hospital admission rates, year-on-year emergency
admissions, with sick and acutely ill patients, are rising 5 or
6 per cent a year. We are not increasing our consultant stock
by anything like that much, but we are having to provide higher
quality of care; more time with the patient. That takes time out.
Absolutely essential time. We are dealing with a fundamental and
difficult to address problem. This country has fewer doctors per
head of population than practically any first world country. It
has a lot less than many second and third world countries. We
are working with the Department and the Government to try and
improve that situation. What we have to do is to get from where
we are now to where we want to be in a few years. One of the mechanisms
will be clarification and specification of what is expected of
us from our contract. We are making quite useful progress. The
other area has been the introduction, which is one of the things
that we have been leading on, of proper contractually binding
appraisal and performance review. We have a meeting, I believe
next week, where we are looking for responses from the Department
on putting in such a system which will do two things. One. It
will ensure quality—albeit, one of the mechanisms to ensure
quality of the service. Two. It will enable the doctors and their
managerial colleagues—they are managerial colleagues—to
work out what we are doing, what we should be doing, and whether
we are achieving what we set out to do. I think that is going
to be a significant break-through in nailing some of the misconceptions
(being polite) of consultant work in our day-to-day clinical activities.
181. Mr Machin, do you have anything to add?
(Mr Machin) Yes. I think your perception of consultants
failing to deliver arises very largely—
182. It is, with respect, not mine, whether
"your" means collective here. It is the evidence that
we have had, which evidence is speaking to us and speaking to
you.
(Mr Machin) The evidence is actually very shaky. A
lot of the evidence, as it is, is comments from people like chief
executives of trusts. The chief executives of trusts, who are
most uncertain about what their consultants are doing, tend to
be the people who have not bothered to ensure that there is an
annual job plan review. I happen to work in a very good trust
with excellent management. That management, the chief executive
and medical director, last year spent a whole year interviewing
every single consultant in-depth about their work patterns, going
through their job plans, and so on. A huge effort, not just a
quick signing off by the clinical director and medical director,
but a huge effort on behalf of the two of them. The chief executive
came out of that a much wiser man. He said he had suspicions about
one or two people. When he spoke to them in-depth about what they
were actually doing, he was amazed because there were huge areas
which people were dealing with about which he had no knowledge
whatsoever. There was not a single consultant in the hospital
that he felt was not in any way fulfilling their contract. If
chief executives actually did what they were supposed to do, there
would be a lot less of this nonsense about consultants not fulfilling
their contractual terms. The other thing I would just mention,
in passing, is that there tends to be what you might describe
as a comparative failure on behalf of the consultant. My main
anxiety is that the vast majority of consultants are doing far
too much work. They are doing huge amounts of work, sometimes
to the detriment of their own health and their families. What
happens is that the consultants who are doing less work are almost
always, in my experience, when I have looked at it, fulfilling
their contractual requirements, but in comparison with the others
they appear to be slacking. They are not. They are still fulfilling
contractual requirements, albeit they are not over-fulfilling
their contractual requirements. That tends to be one of the problems
that crops up: the comparison between the extreme hard worker
and the person who is merely doing what he is paid to do.
Mr Burns
183. Picking up this point on contracts, I was
wondering if you, gentlemen, would be able to clear up some confusion
that arose last week when we took evidence, as I hope the Minister
will be able to when he gives evidence later this morning. That
is to do with the 10 per cent rule to those consultants employed
on a full-time basis. This is because the Department of Health
memorandum that we received said that the 10 per cent rule still
applies, yet some of the evidence that we took last week—and
in particular from Professor Yates—if I can just quote him
quickly. He said: "The current terms of the contract about
the 10 per cent rule have been changed by many trusts so there
are now consultants in this country on full-time contracts who
earn privately above the 10 per cent rule." What we are trying
to get to the bottom of: does the 10 per cent rule still apply
or has it been changed, as Professor Yates has suggested, or is
it just not being enforced by the trusts?
(Dr Hawker) The 10 per cent rule for consultants on
national terms and conditions of service—a lot of us still
have national terms and conditions of service since before trusts—still
applies. Trusts, as you will remember under the last Government,
were given freedoms. They are the employers. They have the right
to set any contract that they wish. I do not happen to agree with
that. I have a particular part in the National Health Service
and one of the things I am trying to do is to restrict trust freedoms
to offer contracts on any terms. Many of the trusts issue their
own contracts and they have a clause which says the terms and
conditions of service are national ones, as amended from time
to time, until such time they get round to changing them. Our
information is that there is no co-ordinated approach from trusts
to change the contracts. There have been one or two examples:
West Dorset, which we mentioned in our evidence. They have looked
at changing the contract to nail consultants down. They have looked
at the cost and went back to the national contract. What we do
not know—and again we cannot get this information because
trusts are not obliged to provide it—is how many or if trusts
are offering individual contracts to individual consultants or
groups of consultants.
184. Outside the 10 per cent rule?
(Dr Hawker) Yes. That is the trusts' right to do so.
My impression is—and I have fairly close contact with colleagues
around the country—that this is not common but it does exist.
The trust has offered a doctor a trust contract as is their right.
It is not common.
185. Would it be fair though, to draw the assumption
from what you have just said, that your understanding is that
although the trusts do have the independence to vary the national
rule, you suspect that if it is being varied, it is being varied
with a fairly small majority of consultants; so that, in effect,
the 10 per cent rule for the vast majority of consultants in this
country is still valid and actually being carried out?
(Dr Hawker) On personal experience and experience
of talking to a wide range of colleagues, that is probably correct.
Mr Machin, in his capacity as negotiating chairman, may have something
more to add.
(Mr Machin) That basically is correct. There is an
awful lot of misinformation. I was at a conference earlier this
week and I was told that the 10 per cent rule has gone out in
Wales. Then it was: not in Cardiff and not in Swansea, not in
Wrexham either. This is a problem we have, that you get one or
two hospitals somewhere where they abolish it or phase it out.
It is very hard to get really hard data as to where it has gone
and where it has been varied. Has it been varied for everybody
in the trust or selected individuals? There is no data on that.
It is really not across the board application but just for individual
consultants.
186. So I still think I am right in my assumption
that what you are saying is that, by and large, for the vast majority
of consultants or the full-timers they have the 10 per cent rule
still applied to them. Can I move on, on that assumption, to the
policing of it. What is the policing of it? For example, will
consultants be closely monitored so they have to provide accounts
on a regular basis, that someone will look at, to make sure that
the 10 per cent rule, in effect, is being adhered to over the
two-year period that is relevant?
(Mr Machin) The usual method of policing it is to
send whole-time consultants a statement for them to sign indicating
they have not, in the previous 12 months, exceeded the 10 per
cent rule.
187. For 12 months? I thought the 10 per cent
rule applied for their income only covering a two-year period.
(Mr Machin) On an annual basis whole-time consultants
should be sent a statement for them to sign to say they have not
exceeded the limit over the previous 12 months. Now if they exceed
the 10 per cent limit over two successive 12 month periods, then
they must become maximum part-timers if the situation pertains
the following April. So the two years is actually a period during
which it is possible for someone to regularise their income and
actually reduce it back down to below 10 per cent. If they do
exceed it two successive years they are made to go maximum part-time
the following April.
(Dr Hawker) There is the position that if you do not
submit—and they can ask for certified accounts—if
you do not submit a statement, after two years you automatically
revert to a maximum part-time contract. So you cannot get round
it by not submitting. You would go to maximum part-time.
188. Presumably then, this system of enforcement,
from the way you have described it, is applied very much on the
basis of trust rather than a regularised monitoring, in that simply
the consultant has to sign a form saying he is complying with
the 10 per cent rule rather than the people receiving that reply
monitoring it in detail to make sure that that statement is factually
correct.
(Dr Hawker) The trust have a right to ask for a certified
copy of accounts. You can argue, yes, it is on trust. If you have
a relationship with managerial colleagues that is open and the
trust is in general not abused, that is fine. But they have the
right to ask for certified accounts. I have heard of examples
where there has been a question and certified accounts have been
asked for. They must be provided.
189. Do you, as a matter of interest, have any
figures of the levels of problems in this area, where consultants
have broken the 10 per cent rule and have either had to go down
to part-time work, or have had to be hauled up?
(Dr Hawker) There are plenty of examples where consultants
have started doing a small amount of private practice and have
realised that it is growing; and many of them will voluntarily
go down to maximum part-time. There are occasions where, after
a couple of years, it is clear that things are not going to settle—they
might hope to wait longer—but they are down because the
return makes it clear. A lot of the time people will adjust and
make sure they come back into within the regulations. There is
a complete spectrum depending on the specialty, the person's particular
wish of how they want to spend their time. Whether they want to
spend it in leisure activities with their family or in private
practice.
190. The answer you have just given is very
much one of the individual consultant adjusting his work practices
to fit in with his own personal choices and requirements.
(Dr Hawker) In his time, yes.
191. Exactly. What I am also asking is on the
other side of the forum is there evidence, are there statistics
of people who have tried to buck the system and have been caught
out? From the way you have described it, it is very much a self-regulatory
enforcement procedure.
(Dr Hawker) Again, I think the answer would have to
be that as trusts are the individual employers, there is no central
information available. All we can do is go on our experience because
usually if there is a problem between the doctor and his management
they come to seek, through our industrial relations office network,
advice. It does not seem to be a common problem. There are circumstances.
With 25,000 people you would expect a small percentage to try
and push the system. Our experience—and again this is where
it may be of greater benefit—is that it is uncommon and
it is usually picked up. I do not think there is anything wrong
on relying upon a system of trust between highly qualified professionals,
both in management and medicine. If we reach a system where we
cannot rely on trust and integrity to a certain extent, we really
have come to a sorry pass in this country.
Mr Burns: I was not necessarily criticising
that. I was just drawing attention to it, but that does not necessarily
suggest any criticism.
Chairman
192. Before I bring in Eileen Gordon, may I
return to the point you were making, Dr Hawker, about your current
negotiations with the Government. Did I understand correctly that
you are pressing for a national contract? That you are uneasy
about the separate individual trust's contracts, so part of your
argument will be with Government in relation to those negotiations,
to try and reinstate a national contract that would apply across
the board. That is correct?
(Dr Hawker) Absolutely. That has been a fundamental
part of Derek's political life and my political life for the last
fourteen years. That is, to get back to national terms and conditions
of service, with no ability for people to fudge round the rules.
193. Do you get the impression that the Government
is sympathetic to your arguments in respect of it?
(Dr Hawker) I think they are sympathetic on the grounds
that they are putting a lot of time and a lot of senior departmental
officials into negotiating the national contract, which is all
they can do. If they were not sympathetic to it, I suspect they
would not be wasting time.
Mrs Gordon
194. If I can carry on on accountability and
scrutiny. There is obviously a great need for clarity on all sides
here, for the taxpayer paying the consultant's salary and for
the NHS and for you as consultants. You state in your evidence
that managers have been very reluctant to use mechanisms to scrutinise
the work of consultants "in the past". Can you say why
you think that was? What evidence do you have to suggest that
such mechanisms are being used effectively now?
(Dr Hawker) The evidence I have they are being used
effectively is working in a trust where they are used effectively,
with a chief executive who is a very effective and efficient chief
executive. Derek has said the same in his trust, and from personal
experience from our colleagues. Why are the mechanisms not invoked?
I have certainly—and this is anecdotal and I apologise—chief
executives who started doing it in a systematic way, they were
horrified at the extra work they were getting and they certainly
were not prepared to go on on the grounds that they were getting
more than they were paying for and they did not want to upset
the boat. I think there are other examples—I am not being
critical generally of my managerial colleagues—where some
managers are not up to the job that they are expected to do. They
are perfectly good people, a lot of them were superb administrators
under the old system, but they have now been put in positions
where because of lack of training, perhaps lack of support, they
are unable to do the job that they are expected to do. It is a
phenomenally difficult job being a chief executive. Quite honestly
I can understand if one group seem to be getting on with things
very effectively and efficiently in the main, they have other
priorities, I can perfectly understand why they would concentrate
on those rather than on policing a contract which in the main
is more than fulfilled.
195. You feel confident that the two trusts—your
trust, Mr Machin, and your trust, Dr Hawker—are doing this,
monitoring this? Do you have any evidence throughout the country
of what is happening?
(Mr Machin) Only the evidence that has been presented
to the review body which suggested that around about 20 per cent
of consultants do not have a job plan. Now, job planning I would
point out has been in since 1990 and even the most tardy trust
might have got their act together by 1998 when this survey was
done. We encourage consultants to comply, we encourage consultants
to ask for job plans to be done which we regard as protection
for consultants as well. One of the big problems over this contract
is that it is so ill understood by everybody involved, including
I have to say most consultants, most consultants do not actually
understand this contract. I think there are probably about half
a dozen people in the country who really understand the consultant
contract.
Chairman
196. Name them?
(Dr Hawker) Machin and Hawker and Watson.
(Mr Machin) At least if they have a job plan they
have got something against which they can judge and they can be
judged to make sure they are actually complying with it.
Mrs Gordon
197. There is no statutory obligation to have
a job plan, it is just encouraged.
(Mr Machin) In essence I think that is right but it
has come out in Departmental circulars. So, in so far as Departmental
circulars are supposed to be acted on, one would say that there
is a statutory obligation from the Department of Health to the
trusts to comply with those arrangements.
Chairman: Eileen, can I just bring Simon in
briefly on this point.
Mr Burns
198. Just on this point, if the vast majority
of consultants do not understand the contract then do they understand
what they are doing when they are signing the forms on enforcement
of the 10 per cent rule?
(Mr Machin) When I say they do not understand the
contract, I mean there are elements of the contract which are
difficult to understand and which are controversial and difficult.
While you can understand 95 per cent of the contract, there are
areas of the contract which do cause difficulties. Really there
are very few people who really understand the background of it
and are fully able to explain exactly what it all means.
(Dr Hawker) The statement is very clear when it comes
round. It is "Have you earned more than 10 per cent of your
National Health Service income in private medical practice, yes
or no". There is no doubt about that, that is a very simple
question and probably about the one thing that everybody does
understand when the letter comes round.
Mrs Gordon
199. The job plans that are in place, how often
are they monitored? What is the mechanism for checking up if people
are fulfilling that job plan?
(Mr Machin) The usual mechanism would be for consultants,
individual consultants, to discuss their job plans on an annual
basis with the clinical director and for the clinical director
to discuss all the job plans for his or her consultants with the
medical director and the chief executive or possibly just the
medical director or the chief executive. That is certainly the
mechanism that works in my trust usually with the occasional major
exercise, which is so time consuming one could not do it every
year but as an occasional exercise it works very well. It does
bring the chief executive right up to date with what people are
actually doing. There will be a discussion about what resources
they require in order to carry out their work and if they wish
to develop what additional resources they will require to develop
their practice. It is very valuable and it works as well as anything
works in the Health Service. It works quite well at Aintree.
Mrs Gordon: Dr Hawker, you mentioned earlier
MPs in passing, whether they fulfil their own contracts and obligations.
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