House of Commons - Health

Select Committee on Health Third Report

IV PROBLEMS WITH THE IMPLEMENTATION OF THE CONTRACT

20. One of the principal ways in which NHS trusts are supposed to monitor and assess consultants' work is by agreeing job plans setting out consultants' responsibilities, against which their meeting of those responsibilities can be assessed. The Department's memorandum states that "All consultants should have a job plan setting out their main duties and responsibilities and a work programme of fixed and flexible commitments. The current contract does not specify the number of sessions to be worked, except that there should be 5-7 fixed sessions (ie pre-determined contractual obligations) such as clinics and operating lists, to be worked at certain times. There are no parallel arrangements that pin down flexible commitments (audit, research, and management). Employers will often allocate 1 session to recognise onerous on-call commitments. Job plans are subject to review each year and it is the responsibility of NHS managers to ensure that the contractual commitments are filled".[42]

21. However, in practice job plans are not always used, and where they are used they are not always effective. The Audit Commission's work carried out in 1993-94 found that fewer than half the trusts surveyed had job plans for all consultants, and that overall a quarter of consultants surveyed did not have a job plan. It also found that many of the job plans that did exist were incomplete and out of date.[43] The BMA also noted the problems with job plans: ".... we have tried to get proper job planning reviews in hospitals and have failed. It has not been because the consultants do not want them, it is because either the staff are not available or it has not been a priority within that unit. I think that is wrong, it should be. It should be top priority in that unit, not just so that the NHS and the patients know they are getting a good deal but so that the people I represent know that they are protected against unjust allegations".[44]

22. The BMA advanced this argument - that job plans are good for their members as, without them, trusts can harbour unfounded suspicions about their performance - by stating that "A lot of the evidence [of consultants failing to deliver], 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".[45]

23. According to the Consumers' Association, which undertook a survey of trust chief executives prior to giving evidence to us, chief executives are generally supportive of job plans: of 88 returned questionnaires, 10% of chief executives felt that job plans were very effective in ensuring their consultants meet their contractual commitments, with another 70% rating them as fairly effective. However, around a third said that not all consultants in their trusts had a job plan, and 27% said that they did not update job plans on an annual basis.[46] 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 Department 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.

24. Job plans must be used as part of a rigorous appraisal system. As the BMA have stated, this is something which their members should welcome. Referring to the ongoing contractual negotiations with the Department, the BMA told us that "We are making quite useful progress. The other area [of progress] 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, only 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 daytoday clinical activities".[47]

25. The Minister was also supportive of the introduction of a contractually binding appraisal system: "Part of being able to manage a hospital effectively is making sure that you are making the best use of the consultant workforce and the time that they are giving to the National Health Service. We lack the tools to do that in many ways at the moment. We do not have a contractual obligation on consultants to have annual appraisal with the result, as I think you probably heard earlier, appraisal works in some places and does not happen at all in others. One of our objectives in the consultant contract negotiation is to make sure that annual appraisal takes place. That means you can then have a job plan which means something and has some substance and is monitored so, for example, you can distinguish between a situation where there is a long waiting list because the productivity of consultants is much lower than the rest of the country or they are not organising their service in an efficient way and a situation where the waiting lists are long because there is not enough theatre capacity or enough support staff or all the other reasons that can lead to operations being delayed".[48]

26. 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 Department 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 Department 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.

Consultants' accountability

27. A basic part of allowing managers to appraise consultants effectively is giving them accurate information about the level of work carried out by those consultants. A minimum level of knowledge about where, when and how staff work is needed for any manager to function

adequately. Yet we are concerned that consultants' managers do not have this basic level of information. Fixed commitments should provide that level of information, because the commitments specify a time and place when they should be carried out. And yet even here, the Audit Commission found that, after adjusting for sick leave, study leave, annual leave and commitments cancelled for reasons outside the consultants' control, only 68% of consultants were attending most (over 90%) of their fixed commitments. The BMA were sceptical about this statistic as they thought that consultants might be absent from fixed sessions because they were fulfilling another duty, for example, "in actual fact most people are off doing some management meeting because that is the commonest reason why people are not doing their fixed session in my experience".[49]

28. 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 Department should set targets and be prepared to act in cases of underperforming trusts.

29. Even if all fixed commitments were being met, in cases where consultants meet the guideline of having five such commitments, this would leave them with half the contracted week to carry out flexible commitments. Flexible commitments are not mere adjuncts to the main part of a consultant's role - they include important functions such as clinical audit, teaching and research. And yet little information seems to be recorded about when, how, or even if these commitments are being met. The Department has told us that "there are no parallel arrangements [to those relating to fixed commitments] that pin down flexible commitments".[50]

30. Other evidence has gone further in stating that it is difficult to establish what hours consultants work outside of fixed commitments. Professor Donald Light's evidence stated, referring to our terms of reference, that "there are few, if any, scientific studies on the "accountability, effectiveness and efficiency" of the NHS consultants' contracts that would pass the research standards that would be applied to other human activities, because so much of what consultants do cannot be observed or their effects well measured..... Consultants have made it extremely difficult to observe and measure what they do, so that terms like "effectiveness" and especially "efficiency" are nearly impossible to apply to their work".[51]

31. Assessing what evidence was available in terms of time spent on NHS clinical activities in theatres and outpatient commitments (ie fixed commitments), and private practice (which we look at below), Professor John Yates stated that "we are left with the conclusion that large volumes of non-clinical NHS activity takes place outside normal working hours. It must be doubtful whether this is the right time for audit, teaching, administration, research and clinical governance".[52] He also referred to a "lack of objective evidence".[53]

32. 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.

33. We consider the more general principles raised by the work of NHS consultants in the private sector in our final section below. However, we raise the issue of private practice at this point in terms of trusts' knowledge of the total hours worked by NHS consultants during the course of a week. We have already noted that, according to self-reported surveys, many consultants work for many hours more than those for which they are contracted for the NHS each week. On top of this, most consultants also work in the private sector. The Consumers' Association told us that "a 1994 Association of Surgeons of Great Britain and Ireland report.... said that maximum part-time consultants worked on average 51 hours a week for the NHS, plus 6 to 10 hours a week in private practice".[54] Professor John Yates also told us that "the self-reported studies undertaken for the Monopolies and Mergers Commission in 1992 reported an average 62 hour working week, of which 11 hours were spent in the private sector".[55]

34. The Consumers' Association told us that "according to self-reported figures many consultants work long hours for the NHS and more than the 35 hours they are contracted to work each week. These figures don't always fit with the findings of other studies into the extent to which consultants meet their NHS commitments.... But, assuming these figures are reliable, they raise some concerns about the hours some consultants spend working overall. Long working hours in the NHS, supplemented by work in the private sector cannot be a good deal for consultants or patients, either NHS or private. Our research has led us to believe that serious consideration must be given to setting national guidelines on the maximum number of hours that consultants should be permitted to work outside of their contracted NHS obligations".[56]

35. 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 Department 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. Giving trusts details of the hours worked by consultants in the private sector will also help them to tackle those consultants who fail to meet NHS commitments as a result of their private work, a topic we examine in our final section.

The implementation of the 10% rule

36. As we saw at paragraph 18, not all trusts now retain the 10% rule as a contractual obligation for whole-time consultants. However, we do not believe that the rule is implemented in a consistent and fair manner in those trusts which do nominally retain it. The Consumers' Association told us that "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 10% 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".[57] The NHS Executive told us that "We do not have information centrally that enables us to make a clear judgment about whether every single consultant who is on a full-time contract is keeping to the 10% rule, it is a matter for local employers to enforce. I think there has been historical data to suggest that might not always be the case, but I do not have up to date information on that centrally".[58]

37. The BMA explained that "The usual method of policing it is to send fulltime consultants a statement for them to sign indicating they have not, in the previous 12 months, exceeded the 10% rule".[59] They conceded that this system relied on a relationship of trust, but noted that managers "have a right to ask for a certified copy of accounts.... I have heard of examples where there has been a question and certified accounts have been asked for. They must be provided".[60] Despite this it appears that some whole-time consultants do earn more than 10% of the value of their NHS salaries in the private sector. The King's Fund's evidence states that figures combining NHS incomes and consultants' additional incomes from private practice demonstrate that "many [whole-time consultants] must have been earning more than the allowed 10% over and above their NHS incomes: that is, they were breaking the terms of their contract".[61] 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.