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Article 14 assessments and references - advice for consultants from the Central Consultants and Specialists Committee

January 2007

Please note that this guidance only applies in England

Under Article 14 of the General and Specialist Medical Practice (Medical Education, Training and Qualifications) Order 2003, doctors who have not completed a UK specialist training programme may apply for a statement that they are eligible for entry to the Specialist Register (which would then entitle them to apply for consultant posts). The Postgraduate Medical Education and Training Board (PMETB) can issue a statement of eligibility for registration to doctors whose qualifications, training and experience considered together, are judged to be equivalent to a Certificate of Completion of Training or to the knowledge and skill of a consultant in the NHS. This is an extremely important process for our SAS grade colleagues which the BMA fully supports.

The PMETB accepts applications under this Article 14 process. The process requires the applicant doctor to provide the names of five referees from whom the PMETB will obtain five structured reports. One referee will be the doctor’s current medical director (or equivalent). Two referees will be specialist doctors from the same or a closely related specialty to the applicant who are able to comment on their standards of practice. Other referees might include the head of the applicant’s current or recent clinical department or the training supervisor.

If the PMETB does not consider that an applicant meets the required standard for entry to the Specialist Register, the Board can alternatively recommend additional training for the doctor to become eligible for the Register. PMETB will not make a decision based on a reference in isolation but based on an overview of all the evidence submitted with an application. If the PMETB feel unable to make a definitive decision about the applicant, the Board can recommend a workplace assessment. The PMETB is not responsible for managing or financing that training or assessment. The ultimate responsibility for meeting the requirements of Article 14 lies with the individual applicant.

There is clearly a significant role for consultants, in particular medical managers, in the assessment process under Article 14. There will be situations, both at the initial application stage (where they will be acting as referees), and potentially at the additional training and assessment process, where consultants will be asked to make judgements on the suitability of doctors for specialist registration.

The BMA consultants’ committee (CCSC) has approached the NHS Litigation Authority for advice on indemnity for consultant providing references and assessments in these circumstances. The response from the NHSLA chief executive stated that:

• I take the view that cover [against third party liability] is operative under Schedule 3 of our Liabilities to Third Parties Scheme (LTPS) – Public Liability. Individual employees are brought within the umbrella of cover at the request of the member. So, were such a claim to be made against an employee of trust x personally, that individual would be covered under LTPS if trust x agrees that indemnity should be extended to him or her (I cannot imagine why a trust would not request this), in the event that the refereeing/assessment process had been performed with trust x’s authorisation in the course of the clinician’s employment with that trust.
• …if a claim against an individual [is by an applicant], we would look towards Schedule 4 of the LTPS (Directors’ and Officers’ Liability), which covers employees in respect of wrongful acts causing financial or other loss. The cover extends to claims for defamation as well as discrimination. Once again, triggering of cover is at the request of the member.

The CCSC recognises that many consultants will want to be involved in this important process and help highly experienced doctors access the specialist register via this route. This is entirely appropriate and to be supported. In light of the Litigation Authority’s advice, we have asked local BMA staff to approach employers on consultants’ behalf to seek written confirmation that in providing references in these circumstances, consultants will be covered under the NHS Liabilities to Third Parties Scheme. Consultants are advised to contact the BMA locally to confirm the position in their own trust.

We also emphasise that any reference that you give should be truthful, accurate, relevant and should avoid subjective comment that doesn’t have adequate justification. Consultants writing references should avoid writing anything that could possibly be interpreted as being discriminatory on the grounds of sex, race, gender, reassignment, disability, sexual orientation, religion, belief or age.

In conclusion, four key messages should be kept in mind when providing references:

• make sure that you consistently apply the same policy regarding providing references;
• when giving a reference take reasonable care to ensure that it is true, accurate and fair and reflects your honesty held beliefs;
• the reference does not present the facts so as to give a misleading impression overall; and
• you should be able to support and justify your opinions.

It is advisable to mark all references “private and confidential” and include a disclaimer to the affect that:

“The above information is given in confidence and good faith. No responsibility can be accepted by [name of consultant] for any error, omission or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it”.

A disclaimer may only contribute to defending a claim of negligent misstatement and will not provide full protection from claims.