Consultants should not generally be prevented from working for other providers of NHS-funded services in their own time, the government has been advised.

The Cooperation and Competition Panel said that restricting consultants from working with other health providers in their non-contracted hours would reduce patient choice, limit innovation and undermine investment.

Submissions to the CCP’s inquiry revealed that many trusts were adopting ‘bully boy’ tactics in an effort to prevent their consultants working for new NHS-funded providers. Thirty eight of the 59 trusts making submissions had placed some form of restriction on consultants’ use of their non-contracted time.

The final report recommends that there are only two limited situations in which patients and taxpayers might benefit overall from a restriction placed on consultants: firstly, to address legitimate patient safety concerns arising from the specific performance of a consultant; and, secondly, to prevent a consultant from holding a strategic management position in more than one organisation providing NHS-funded care, or working on competing bids.

Any other restriction imposed by a hospital on a consultant’s ability to work for other providers is likely to be in breach of the Principles and Rules of Cooperation and Competition.

Andrew Taylor, director of CCP, said: “It is clear from the evidence that preventing consultants from working with a wider range of NHS providers hampers efforts to deliver NHS care in new and improved ways.

“The experience and specialist expertise of NHS consultants must be readily available to NHS patients in a range of settings - in local and community-based services, in treatment centres, in integrated care organisations and so on - not just in one hospital alone. By breaking down these traditional barriers we can expect to see patients and communities benefit from better access to NHS care, the development of new NHS services and competition driving real improvements in quality.”

The CCP’s final report has been submitted to its sponsors, the Department of Health and Monitor, which will consider the recommendations and what action to take.

Stephen Campion, chief executive of HCSA, welcomed the report. He said: “If this report puts an end to the intimidation that has undoubtedly taken place it will serve the NHS and its consultants well. But the key focus of the report is that competition is a major driver in meeting government policy. NHS trusts should be in no doubt that this requires cooperation with consultants and not confrontation. We now expect to see that cooperation, and will certainly intervene where it is lacking.”

Read more about trust intimidation on this issue.

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.