Final Report > Chapter 24: A Health Service which is Well Led > The leadership and management of the NHS > Contractual relationships with trust employees

Contractual relationships with trust employees

22 Participants in our seminars who came from organisations other than the NHS frequently commented on the complexity of employment relationships in the NHS and on the extent to which it appeared that a chief executive and a trust's board can be disempowered by strong professional groupings, apparently beyond the chief executive's control to manage. We heard that there continue to be differences in the nature of the employment relationship between different groups of healthcare professionals and their employer, the trust. Specifically, hospital consultants have a unique employment status within the NHS. Even today, consultants would not necessarily consider themselves accountable or answerable to a clinical director, and clinical directors would not necessarily consider themselves accountable or answerable to the medical director. Nor would they see themselves as necessarily answerable or accountable to the chief executive. There continue to be uncertainties and ambiguities about accountability: the same general uncertainties as existed in Bristol in the 1980s and 1990s.

23 Consultants have an odd position in terms of the ordinary norms of employer-employee relations. They enjoy a job effectively for life. It is extremely difficult to remove them. The hours they spend actually dealing with patients are not regulated. They see themselves as largely autonomous, with their duty being owed to the patient and their sense of identification being to their professional peer-group. To that extent, they do not see themselves as employees at all. This point was brought out by Dr Hugo Mascie-Taylor, the Medical Director of the Leeds Teaching Hospitals NHS Trust. In a paper submitted to the Inquiry he wrote:

`... it is fair to say that consultants are not managed like other NHS employees. Indeed, some would say that in some ways the consultant body still stands at the edge of the NHS rather than at the centre of it.' [8]

24 We are convinced of the need to restate the relationship between the consultant and the hospital. The principal means of doing so must be through the contract agreed between them. As in all such agreements, there should be a recognition on both sides of the other's interests. The trust must agree to provide the consultant with the time, space and the necessary tools to do the job. The trust must be enabled to provide suitable incentives to consultants and to other hospital doctors to encourage them to achieve high quality in the care of their patients. One means of so doing is to extend the system of Distinction Awards beyond the changes made in the late 1990s. These changes reflected a recognition that distinction in the care of patients, as well as in the performance of research, should be rewarded. This could be taken further and the system extended beyond hospital consultants to include junior doctors.

25 The trust must also underwrite its commitment to an open, fair and non-punitive environment, in which all employees feel safe to voice views and concerns. For their part, consultants must accept that the time spent in the hospital and what they do in that time must be much more explicitly set out. They must also accept that failure to comply with contractual obligations places them at the same risk of some form of disciplinary action as any other employee. There is no reason why the consultant should be immune from such processes, or be protected by the current labyrinthine procedure, involving sometimes an interminable period of time of suspension on full pay (which is the near equivalent to immunity). We note the emergence of primary care trusts. We also note that GPs associated with these trusts have historically enjoyed a different relationship with the NHS from that of the hospital doctor. Our concern is with the acute hospital sector, but if systems of accountability and regulation are to be introduced effectively across the NHS, careful consideration will need to be given to the relationship between the GP and the primary care trusts.

26 We emphasise the importance of the contract because we see it as crucial that the hospital, through its chief executive, be able to manage itself. This is one of the most important tools which chief executives need if they are to be able to meet their obligations regarding the safety and quality of healthcare. It is a tool which any chief executive in any other organisation would take for granted. Moreover, in a patient-centred system of healthcare, it is clearly in the interests of patients that the chief executive be able to respond to any complaint that a consultant has not met his or her contractual duties as promptly as possible. Moreover, by enabling the chief executive to respond by reference to the contract between the consultant and the trust, the response is closer to the event, is more informed as to local circumstances and action can be taken more promptly. The process is thus made more effective and patients' interests are better served.

27 It must not be thought that we see a change in the employment relationship of the consultant as a panacea to all the difficulties faced by chief executives in leading and managing a trust. Nor, importantly, do we see it as some instrument for control. This is because the contract is part of a much larger picture. As we have said, that larger picture must be one of openness and, over time, increasing understanding and trust. The contract serves to facilitate the performance by both parties, employer and consultant, of their respective duties to the NHS. Indeed, one particular feature of any new contractual relationship must be that it sets out clearly the lines of accountability and responsibility within the hospital. Consultants must be able to know what is expected of them and to whom they should turn if they wish any particular matter to be dealt with. We were impressed by evidence that while a formal structure of management might exist in a hospital, some consultants might choose to regard it as a matter for others and not something of direct interest or concern to them. Equally, others felt unsure about their place in the organisation of the hospital and uncertain as to whom they should turn with regard, for example, to matters relating to the safety of patients. Setting out such matters in the employment contract would serve to reduce these difficulties.

28 Any discussion of the consultant's contract must address the question of the relationship between the powers of the employer and those of the body concerned with maintaining the register of medical practitioners. We will set out our views in due course on the wider issues of the regulation of healthcare professionals in general. Here, we focus on one matter of importance.

29 The General Medical Council (GMC) currently sets and publishes a Code of Professional Practice on how doctors should conduct themselves. [9] Breach of the Code can bring disciplinary action by the GMC, concerned with whether the doctor should remain on the register. This process is independent of the employer-employee relationship. But we think that there is good reason why the doctors' Code, as currently set down in the GMC's `Good Medical Practice', should be incorporated into the contract between the trust and all doctors, not just consultants. Nor should this be limited to doctors. The relevant Codes of Practice should be incorporated into the contract made between the trust and all other healthcare professionals. Breach of the Code would then be an employment issue, to be dealt with by the hospital in appropriate and agreed ways. This would mean that breaches could be dealt with, as we have already said, close to the event and in the light of local circumstances. If action is required in the interests of patients (this being the first and paramount priority), it could be taken with all due speed. What the relevant professional body (for example, the Nursing and Midwifery Council) might wish to do concerning the wider question of the healthcare professional's fitness to continue in practice would be a matter for it to resolve. We add that in circumstances in which the safety of patients is or may be at risk, the employer should be required to notify the relevant professional body of any action taken. The relevant professional body in turn, being concerned not just with discipline but all aspects of performance, can then take appropriate action.

Footnotes

[8] Seminar 4. Dr Hugo Mascie-Taylor. Position Paper. The quotation is extracted from Dr Mascie-Taylor's chapter in `Managing Medicine - a Survival Guide' (1997) London: Financial Times Healthcare

[9] The General Medical Council. `Good Medical Practice'. 3rd Edition. 2001