Consultant framework
Department of Health’s draft model contract and terms and conditions
Initial view of the CCSC
29 May 2003
On Tuesday 20 May 2003, the Department of Health issued a draft model contract and terms and conditions of service to support its plans for local implementation of the rejected contract framework. Once again, these documents have been produced by the Department without discussion or agreement with the CCSC. Whilst the contract and terms and conditions have been published in ‘draft’ form and the Department has said that the views of the BMA would be welcomed, we do not consider this to be a constructive approach to developing such documents.
Broadly, both the contract and terms of service reflect the principles of the framework agreement closely. The general language and tone of the documents, the terms of service in particular, also reflects that used in the framework. They are impossibly vague and open to interpretation in places but retain the restrictive inflexibility of the framework elsewhere. As the documents stand, we believe that they will cause significant problems if implemented at local level.
The contract and terms offer nothing new of benefit to consultants and as such the CCSC has no hesitation in reiterating its view that consultants should not accept this contract locally. The unpopular aspects of the framework remain intact, for example:
- There is still scope for managerial control over pay progression
- There is still scope for managerial control over working hours and conditions
- Consultants will still be required to offer extra sessions to the NHS before undertaking private practice
- There is still no adequate appeals mechanism against decisions on pay progression and job planning
Furthermore, the Department has also taken the opportunity to include new contractual changes, unrelated to the framework, to the detriment of consultants. These are significantly worse and more restrictive than current terms and conditions. Some of these are outlined below, alongside some more general comments on the contract and terms.
Local flexibility
The Department of Health has stated that the draft model contract can be adapted by trusts ‘to suit local circumstances’ but these adaptations must ‘remain within the parameters of the June 2002 framework agreement’. This implies that there will be little genuine flexibility to address the remaining unpopular aspects of the framework via local negotiation over terms and conditions. In some trusts, consultants have expressed a wish to negotiate on the basis that they can negotiate away the worst parts of the contract. This is very unlikely to happen. As the contract and terms of service are faithful to the framework, this means that any consultant moving over to the new arrangements will have to accept the unsatisfactory aspects of the contract.
New consultants and academics
The contract that has been produced is specifically for existing NHS consultants. Crucially, it does not apply to newly appointed consultants. The Department has said that it will produce a separate adapted contract ‘as soon as possible’ for these doctors. We are therefore still unclear as to whether the detrimental treatment of these doctors will be carried over from the framework into the contract and terms of service. The BMA in Scotland has a legal opinion that it is indirectly discriminatory and therefore unlawful to treat new appointees differently because a significantly higher proportion of them are women than there are existing female consultants. The lack of clarity on this important issue is a further reason for not accepting this contract locally.
Similarly, as yet there is no draft contract for clinical academic staff.
Voluntary evening and weekend working
The Secretary of State apparently conceded in his letter of 17 April that non-emergency weekend and evening working should only be scheduled with the agreement of the consultant. However, this has not been incorporated in the wording of the contract or the terms and conditions. This is a major problem with the contract and it is therefore highly questionable whether this is a genuine concession. The concession is reiterated in the covering note on the Department of Health website, but this statement contains no contractual force and its value is therefore extremely limited.
Payment for additional work
The whole document gives the impression that it will not be an expectation for regular work over 40 hours to be rewarded by extra programmed activities or for any additional work to be reduced. The contract talks in terms of a ‘minimum’ commitment of 10 programmed activities for full timers, implying, as now, an expectation to work beyond the minimum hours without reward. One of the key reasons for negotiating a contract was that high workload should be paid for or restricted. However, with the wording of this contract, there is a good chance that consultants will be worse off, with a higher minimum commitment and still no defined maximum commitment.
The framework clarification document stated that ‘if it becomes apparent…that full recognition of the consultant’s current NHS commitments will result in more than ten programmed activities, the consultant shall be entitled to agree a reduction to 10 programmed activities’. This statement is not reflected in the contract or terms of service in any way.
Work location
The draft contract states that ‘you will generally be expected to undertake your Programmed Activities at the principal place of work or other locations agreed in the Job Plan’. This indicates that there is unlikely to be flexibility over where supporting activities are undertaken. The framework clarification document said that ‘there will be flexibility…to agree off-site working where appropriate, for example, for supporting professional activities’. The examples given in the contract are much more limiting (travel and official meetings only). The effect of this is likely to be that consultants will be required to be on-site all day Monday to Friday, even when undertaking administration, unless they agree to schedule programmed activities in the evenings or at weekends. There will be reduced opportunity for any doctors wishing to undertake private practice by ‘time shifting’.
The contract also states that ‘you may be required to work at any site within your employing organisation, including any new sites that are established in the future’. This causes great concern because it allows the trust scope to direct where a consultant will work and might be a problem particularly with regard to trust mergers. It could result in consultants being forced to move work site and contrasts unfavourably with the current contract’s mobility clause which states that ‘the duties and places where they are to be carried out may be varied by agreement between the trust and yourself’. This is one of the changes to the contract that has nothing to do with the framework agreement.
Confidentiality
The contract also introduces a new ‘confidentiality’ clause which severely restricts what a consultant can say in public about their work. Our view is that this paragraph is unduly restrictive and does not reflect the employee’s entitlements to make disclosures under the Public Interest Disclosure Act. It does not reflect adequately the rights of the employee and does not sit well with the Secretary of State’s assertion that there would be no ‘gagging’ clauses in the NHS.
Private practice code of conduct and other rules and procedures
The terms of service make several references to the need for consultants to adhere to the standards set out in the Department of Health’s new ‘code of conduct for private practice’. This introduces a contractual obligation to work to the standards set out in an unagreed and unacceptable document.
The contract also introduces a new clause stating that ‘you are required to comply with our [the trust’s] rules and procedures from time to time in force’. Again, this would appear to give all trust rules and procedures contractual force, which is a concern. Variations to the contract should only take effect by agreement. Trusts could use this section to automatically incorporate rules and procedures of which the employee is unaware and which might be detrimental.
Health assessments
Another clause not in the current contract requires the consultant ‘to notify the medical director immediately of any illness, disease or condition’ which may affect ability to carry out duties. This would appear to be an inappropriate, excessive and unrealistic requirement that could result, for example, in consultants having to report even the most minor of ailments to the medical director. In any event, it is highly questionable whether the medical director is the right person to report to in such circumstances; this appears to remove the principle that health issues should be dealt with in confidence by occupational health departments.
Outside interests and gifts
There are two new clauses relating to ‘outside employment and financial interests’ and ‘gifts and gratuities’. Both place new restrictions on the consultant, for example to report any work (including unpaid charity work) that might conflict with the business of the employer and to refer any offer of gifts from patients to the chief executive. Again, these would appear to be excessive and unworkable – with a consultant being required to report every box of chocolates received from a patient to the chief executive and to declare any gains made simply on the basis of being a consultant.
Retirement age
There is no specified contractual retirement age, leaving this issue open to interpretation at a time when there are proposals to raise the public sector retirement age.
Deductions from pay
Another new paragraph that has nothing to do with the framework states that ‘we reserve the right to deduct from your pay any sums which you may owe to the NHS. You authorise us to make such deductions from your pay or any other sums due to you’. There is no deductions clause in the current contract and, whilst deduction clauses are now common, this blanket clause is unacceptable. It compares unfavourably with the wording in the national juniors’ contract, which states that the trust ‘will not make deductions from or variations to your salary, other than those required by law, without your express written consent’. The BMA lawyers have advised that this new section offers far too much power to the employer, and removes protection from the employee.
Time off in lieu for working bank holidays
Under the new terms of service, the Department has removed the current entitlement to a day off in lieu for consultants called in to the hospital during an on-call period in the early hours of a bank holiday. Time off in lieu during the normal working day has also been reduced to hour for hour compensation.
Pensionable pay: domiciliary visits
The Department has removed domiciliary visits from the list of pensionable pay items under the terms of service for the new contract.
Other terms and conditions of service
There are certain clauses and benefits listed within the current national terms and conditions which have not been replicated in the new proposals. For example:
- Removal expenses
- Job sharing
- Lecture fees
- Expenses
- Travel expenses and mileage allowances
- Crown cars
It is unclear how these matters will be dealt with, if at all.
Draft documents
The documents have been published in draft form. The Department of Health has stated that it would like the BMA and employers to comment on how they could be improved. Leaving aside the acceptability of this as a method of negotiation or consultation, it is difficult to see how such a process would work in practice. Presumably it is the intention of the Department that these documents will be used now as a basis for agreeing a contract locally. It is difficult to envisage what would happen should a trust agree a contract and then the Department agrees on ‘improvements’ to the model – what would happed to those contracts (if any) already agreed?
Timescales
The deadline for trusts to ‘firm up plans’ for local implementation has been pushed back from 1 June to 16 June 2003. This reflects the delay in the Department of Health posting its contract. We continue to urge consultants to resist pressure to make a decision on implementing the contract or accepting incentive schemes. There is a third option – backing a new national contract. We have written to local negotiating committees urging them to hold ballots and for this to be an option when a vote is taken. Taking into account the above comments on the new contract and terms of service, we would fully expect consultants to continue to support this line.