Annex 3
Letter from the AAGBI to Mr Surinder Sharma,
National Director for Equality and Human Rights, Department of
Health
1. CURRENT PLANS
A Patient-led NHS: delivering the NHS
improvement plan, published recently sets out the next stage of
delivery for NHS organisations. Up to 8% of NHS patients requiring
of elective operations will be directed under patient choice initiatives
to extra, additional capacity available in the Independent Sector
Treatment Centres (ISTC's) and other hospitals. "Over time",
all independent providers supplying NHS care would be expected
"to display the NHS logo as a sort of kitemark" and
in the words of the Department of Health, "Treatment Centres
are expected to provide treatment to NHS patients in accordance
with NHS principles". All this NHS work in the Independent
Sector in England is now covered by the NHS Litigation Authority
(NHSLA) Clinical Negligence Scheme for Trusts (CNST) through the
referring PCT, following a similar arrangement by the Welsh risk
pool in Wales.
2. THE EXISTING
NHS PAY PHILOSOPHY
As this is entirely NHS work we believe it is
fundamentally important to maintain the long established NHS principle
of equal pay for work of equal value (parity of pay) for anaesthetists
and surgeons.
Equal pay and status for consultants of all
specialties was an important issue in 1948 at the start of the
NHS. Eventually the President of the Royal College of Surgeons,
Sir (Lord) Alfred Webb-Johnson, convinced everyone of the importance
of equality of pay and esteem to the success and development of
safer anaesthesia for surgical patients and the NHS. The BMA also
supported the principle and history has proved its justification
in that mortality from anaesthesia has fallen from one per 1,000
anaesthetics in 1948, to one in 240,000 today. Anaesthesia is
also recognised as a driving force for the improvement of safety,
clinical and management standards throughout the NHS and the Audit
Commission identified its crucial role in the care of over 60%
of NHS Hospital patients. With the NHS now recognising the value
of being an organisation with a memory, the lesson of parity must
not be ignored.
Since the start of the NHS all Consultants remuneration
has been based on exactly the same pay scale, now published annually
by the Doctors and Dentists Review Body, providing equal pay for
equal professional time spent caring for patients. This principle
was all reconfirmed in the 2003 Consultant Contract.
3. THE SIGNIFICANCE
OF THE
CHANGE
If the importance of equality were to be forgotten
there would be far-reaching disadvantages for patients and the
Service. As work in ISTCs becomes a significant proportion of
NHS activity and Foundation Trusts have the freedom to issue their
own contracts, distortions in recruitment patterns would begin
to arise and the numbers and quality of doctors entering anaesthesia
would change. It would be disastrous if this occurred and future
progress were to be put in jeopardy because of an oversight in
the haste to implement the ISTC programme.
If parity of esteem between the specialities
were to be lost, the gains in patient safety since 1948 would
be jeopardised. Many believe that the moral of many recent changes
in the NHS is that you don't know what you've got till it's gone.
We take for granted the parity of esteem that enables all members
of the surgical team to stand up equally firmly for their aspects
in the interests of the patient. That is the bedrock on which
all have co-operated to render peri-operative mortality an extraordinary
event rather than a routine part of the work, in less than 60
years.
4. WHY IS
THIS HAPPENING?
The problem seems to have arisen because although
the GSup contract was negotiated nationally between the Department
of Health and CAPIO/Nuffield Hospitals, supposedly guaranteeing
that all usual NHS standards would apply, the parity of pay for
NHS consultant staff seconded to do this work has been ignored
when left to a variety of local managers who have applied the
rates in two completely different BUPA Insurance Benefit schedules.
It is very important to note that the BUPA Anaesthetic Benefit
scale only pays the anaesthetist 40% of the benefit for exactly
the same procedure on the BUPA Surgical scale. Application of
these private insurance scales is totally inappropriate for a
number of reasons: they reflect the fact that:
— surgeons treating private patients
have to rent expensive rooms and maintain more secretarial support;
and that
— surgeons usually see their patients
more extensively pre- and post-operatively and are not always
paid separately for this.
None of these apply in the case of Treatment
Centres. Equally none of these apply under the GSup arrangements.
There are no private rooms or secretaries to pay for. In many
cases, the anaesthetist sees the patients more outside the Operating
Theatre than the surgeon does, since under GSup other surgeons
often do the pre-operative work-up and post-operative management,
and a large proportion of these patients are day cases. There
is no marketing to be done by the individual doctor.
5. UNLAWFUL DISCRIMINATION
Quite apart from the departure from Government
and NHS policy of equal pay for work of equal value, this oversight
results in an unfair discrimination on grounds of gender, since
there is a far higher proportion of women amongst consultant anaesthetists
(34%) than there is amongst consultant surgeons (7%). We believe
that there should be no discrimination in the fees paid to anaesthetists
and surgeons treating any NHS patients. We have already written
to the Rt Hon Patricia Hewitt, when Minister for Women, and because
the Women and Work Commission terms of reference state that the
public sector warrants particular examination, as a substantial
employer of women, we have submitted evidence on this for their
Autumn report. The Medical Women's Federation is fully supporting
the maintenance of parity as a point of principle and the Department
of Health has said, "the NHS is the largest employer in Europe
and aims to be the best." We have been advised that we could
litigate this point, but think it would be unfortunate from every
point of view for anaesthetists to find themselves in litigation
with the Service of which they are proud to be a part.
6. THE WAY
FORWARD
The only logical way to base any discussions
on the BUPA schedule is for all involved to use the same benefit
table and for any modifications from that to reflect more or less
time spent with the patient. One sensible way forward, which has
been adopted by the Chester Nuffield Treatment Centre for GSup
work, is to pay anaesthetists and surgeons parity rates both based
on 60% of BUPA surgical benefits.
Alternatively, it may be better to get away
from the BUPA schedules altogether and base discussions around
the same hourly rate for both surgeons and anaesthetists. A national
survey last year showed 78% of Waiting List Initiative work paid
on a sessional basis in the NHS was paid at the same rate to surgeons
and anaesthetists. (NB 90% in 2005 survey now completed) National
parity arrangements exist for NHS Waiting List Initiatives in
Wales. Other places have agreed parity for all day cases. Scotland
is looking to start this work soon.
On 13 May Patricia Hewitt in her first speech
as Health Minister, spoke of "embedding the principle of
equal pay for work of equal value" and John Reid has said,
"providers need to comply with all applicable legislation".
Against this background we suggest that a simple solution to this
matter would be to specifically include the usual NHS principle
of equal pay for work of equal value for anaesthetists and surgeons
in any contracts for NHS work of this type. We understand that
GSup2 and other ISTC contracts are in the process of being drawn
up and it should certainly be part of those documents. Being a
principle, like the legal requirement not to discriminate on grounds
of gender, which it appears to be necessary to enforce, it would
no more breach competition law nor interfere with providers commercial
practices than the other NHS Standards specified. In this way
the oversight can to be corrected as soon as possible. In order
to ensure that this is done properly, it is necessary only for
the Commercial Directorate of the Department of Health to say
to GSup and ISTC contractors that it requires them to respect
NHS principle of equality of pay between different specialties.
Implementation would then be straightforward. If such contractors
continued to offer fees to surgeons and anaesthetists that did
not reflect equal pay for work of equal value the Commercial Directorate
could refuse to shortlist them for future work or cancel their
existing contracts for non-compliance.
Anaesthetists are keen to improve patient care
and reduce waiting lists, as their efforts in the past have well
demonstrated. However this clear inequality regarding remuneration,
as one would expect, makes them naturally reluctant to volunteer
for this extra work. The national disinclination at present overwhelmingly
suggests that this issue of parity is something of the first importance
to anaesthetists
We feel that parity of pay is a fundamental
NHS standard indirectly affecting the care of patients. This matter
has the support of the BMA, HCSA, Medical Women's Federation,
Federation of Independent Practitioner Organisations (FIPO), and
other practitioner organisations and as the NHS is proposing to
further develop this type work and require the services of anaesthetists
it is essential that this standard is maintained and clearly specified
in any such contracts.
I wonder if it would be possible to arrange
to meet you either at the Headquarters of the Association of Anaesthetists
at 21 Portland Place or anywhere else more convenient for you
to discuss the matter further.
PS
The recent publication of the DOH Guide "Promoting
Equality and Human Rights in the NHS" (21 July 2005, Gateway
Ref 5256) has further elucidated some of the issues and I quote
a section of it with my comments in Italics:
Within large organisations like the NHS, and
despite much excellent work around equality, discrimination by
the organisation as a whole, and by individuals who work within
it, can arise through:
The "Parity" issue seems to have
been completely overlooked whilst otherwise expediting the massive
development of NHS work in the Independent Sector's capacity.
— a lack of awareness including the
use of casual assumptions or stereotypes rather than informed
opinion and person-centred assessment;
There has been a serious lack of awareness
on both the NHS and Provider sides of these contracts of the existing
equal pay in the NHS since 1948 and its abscence when applying
different BUPA schedules in the Independent Sector.
— unacceptable behaviours arising from
prejudicial views held by individuals;
Particularly a feature of some Independent
Sector Providers apparently unaware that this was NHS work and
or prepared to accept the accompanying reforms.
— out-dated processes and procedures
that may have discrimination built into them.
The knee jerk reaction to use two historically
and completely different surgical and anaesthetic insurance benefit
schedules, which were never designed for this context, is a central
cause of the problem and a clear example of this.
Individuals wishing to enter, or develop their
careers in the NHS may feel hampered or under-valued if they receive
less favourable treatment because of who they are or their beliefs,
rather than what they can contribute through their skills, knowledge
and experience. This runs counter to the modern NHS as an employer
of choice and can only harm the NHS as talented people may not
wish to join or remain in it, and health outcomes for patients
may suffer as a result. Such consequences would tarnish the considerable
progress the NHS has made in recent years in being a welcoming
and fair employer to all.
There are legal duties placed on all public
authorities, and individuals who work within them, to require
and encourage fairness towards their workforces and to ensure
respect for their rights. Board members should ensure that they
understand these legal duties and are aware of further developing
legislation. Current "equality" legislation in Annex
A includes:
— The Sex Discrimination Act (as amended)
1975.
— The Equal Pay Act (as amended) 1970.
Future/developing legislation includes:
The Equality Bill was re-introduced in Parliament
on the 19 May 2005. The Bill's main provisions include:
— to create a duty on public authorities
to promote equality of opportunity between women and men ("the
gender duty"), and prohibit sex discrimination in the exercise
of public functions. This will also include a specific duty on
public bodies to produce a Gender Equality Scheme.
We have been talking to the Independent Sector
Providers about this issue for around a year and they still seem
to fail to appreciate the whole framework in which this NHS work
is contracted. Rt Hon John Reid wrote to us confirming that any
Providers must comply with all applicable legislation. This specific
legislation, already confirmed to us, has now been clearly laid
out in Annexe A of the new guide. Providers must also demonstrate
that they are conforming with good employment practice. The sanctions
for any non compliance with either of these have not yet been
made clear, but in similar situations they would be at least the
cancellation of existing contracts and failure to shortlist them
for further NHS work.
Rt Hon Patricia Hewitt has stated that embedding
equality in NHS activities is a fundamental principle she wishes
to see fully implemented and that alone should be sufficient reason
for the present. I do hope we can arrange a meeting to discuss
how we can help with this issue for NHS work in the Independent
Sector.
If you require any further information please
do not hesitate to contact me.
23 August 2005
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