Work for who you want in own time, says HCSA

Trusts are trying to deter consultants from working for private sector providers in their spare time through intimidation, a report reveals.

The report summarises submissions to an inquiry by the Cooperation and Competition Panel (CCP) into the restrictions being placed on consultants’ non-contracted hours.

CCP, which is due to make recommendations in August, said it will issue new guidance or recommend that new amendments clarifying the issues be incorporated into the consultant contract.

The HCSA claimed no new rules are needed and is advising consultants to stand up to any ‘bully boy’ tactics by trusts. The consultant contract allows consultants to undertake private work. It does, however, caution that consultants owe a ‘duty of fidelity’ to their employers and should refrain from canvassing for, or negotiating, the terms of any contract for NHS services provided by independent providers that might conflict with their employer’s interests.

CCP received submissions on 59 trusts. Of these 38 placed some form of restriction on their consultants’ use of their non-contracted hours.

Overt restrictions included letters from trusts informing consultants that they were not allowed to work for other providers or outright refusals of individual requests. One trust told a consultant it would be considered gross misconduct if he did not sign a letter promising not to undertake non-contracted hours work for another provider.

More insidious bullying came in the form of warnings that consultants would risk causing redundancies amongst medical colleagues, that they would endanger plans to build new medical facilities, or that if they went ahead with the work it could have a negative impact on their career progression and chances of receiving a Clinical Excellence Award. One trust threatened to name-and-shame consultants to the trust board.

Stephen Campion, chief executive of the HCSA, said: “In our view the rules have already been spelled out. What trusts are doing could be open to legal challenge. What they are doing is at least protectionism and probably a restraint of trade.”

Some independent sector providers told the inquiry that their inability to get NHS consultants to work for them has prevented them from offering capacity on the Extended Choice Network and others have had to withdraw a bid for a contract.

Stephen Collier, a spokesman for the NHS Partners Network, said: “Consultants are entitled to work for other providers and it goes further than that. If you follow through the logic of what trusts are saying it is: if you are a part time consultant with us we can completely limit what you do in the rest of your life. Some trusts have also tried to imply a fiduciary duty on consultants which completely cuts away the freedoms negotiated in the consultant contract.”

There are examples of consultants collectively resisting restrictions. One trust withdrew its objections when a large group of consultants wrote to the chief executive asking him to reconsider. Another consultant resigned altogether from his trust and went to work for a competing healthcare provider.

The HCSA is advising consultants who are being banned from working for other providers not to take on their trusts on their own. Mr Campion said they should join forces with consultant colleagues and seek advice from their representative organisation.

The BMA said there is a need for clear guidance to be agreed by all parties as soon as possible and any changes to the consultant contract would have to be negotiated with them. It has published relevant guidance for consultants.

Tags: CCP, Consultant contract, Privatisation