Frequently asked questions on consultants contracts


February 2007 Where to go for information
1. How do I find out more about the contract?
All the relevant documentation is available on the consultant contract section of the BMA website. There is a summary document available there which explains the principles of the contract including the changes arising out of negotiations.
http://www.bma.org.uk/ap.nsf/Content/HubTLconsultants

Implementation issues
2. Can I keep my existing contract?
Yes, you will retain the right to stay on your existing contract, and will be able to transfer at a later date if you wish.

3. I would like to move onto the 2003 contract. What should I do now?
You will need to give a formal commitment to taking up the contract to your Chief Executive. This commitment will be subject to you agreeing a satisfactory job plan with your clinical manager; you will not be committed to the contract if you are unable to do this.
It is advisable to keep a diary of your work over a reasonable period of time to ensure your clinical manager is aware during the job planning process of the amount of work you carry out and takes it into account when preparing your job plan.

4. I am a SpR and have just been successful at interview for my first consultant post. Do I have to take up the 2003 contract?
Only contracts under the 2003 contract can be advertised from now on.

5. What about the contracts available in other countries?
Because health is a devolved issue, different contracts have been agreed in Wales, Scotland and Northern Ireland to recognise the differing circumstances and requirements in those countries.

Link to Scotland
Link to NI
Link to Wales

Salary details, seniority, intensity payments, category 2 work
6. What is the 2006/2007 salary scale?

£ - per annum

Consultant Contract (2003 contract)

Consultant Contract (pre 2003)

 

From April

 

From November

From April

From November

Basic Scale

Discretionary Points

Basic Scale

Discretionary Points

69991

70822

57944

78456

58632

79388

72213

73071

62161

81508

62899

82476

74436

75320

66378

84560

67167

85564

76658

77569

70595

87612

71434

88652

84154

85153

 

93716

 

94828

89432

90495

 

96768

 

97916

94706

95831

 

99820

 

101004














7. How do I calculate my seniority?
Seniority is the sum of the number of whole years you have completed as a NHS consultant, plus the point on the salary scale (on a scale of 1-5) you received when you were appointed as a consultant. You may also be credited with additional seniority in recognition of non-NHS consultant-level experience or flexible training. Recognition of non-NHS consultant-level service is a matter to be decided locally.

In addition:
Years worked as a part-time consultant still count as full years of service for the purpose of calculating seniority;
Previous locum service should be counted towards seniority where the locum was equivalent to a substantive post;
Both paid and unpaid leave for maternity or sickness count towards seniority;
Service during sabbatical leave counts towards seniority.

8. What happens to intensity payments?
These will be superseded by the payments for on call availability. There is the added advantage that these on call supplements are available to everyone, whereas daytime intensity payments are not available to newly appointed consultants.

On call supplements reward you for being available on call. Actual emergency work done while on call will be assessed and remunerated as part of your programmed activities (PAs). A consultant currently working in a high intensity post can expect one or more of his/her ten PAs to be allocated to emergency work.

9. What has happened to payments for domiciliary visits?
Domiciliary visits will continue to be paid under the 2003 contract.

The contract offers a number of options for the way that DVs and category 2 work are contracted for.

(i) The consultant may negotiate that the work is part of the working week, and through the job planning process include these in the programmed activities. Under these circumstances, the Trust would be entitled to retain the fee.

(ii) Where the volume of work causes more than a minimal disruption to other NHS duties, and where it is not the wish of either the consultant or the employer that the work is incorporated into PAs, the work can be done outwith contracted time for the NHS and the fee can be paid as currently. This would not preclude flexible arrangements, ie that NHS work could be displaced on an ad-hoc basis, subject to agreement between employer and consultant that this flexibility could apply and with no disadvantage at all to NHS patients.

(iii) Where the work involves minimal disruption to other NHS duties, the consultant may seek to agree in the job plan review that they occur within NHS contracted time and the fee is collected as currently.

Family Planning
10. I undertake family planning work whilst working for the NHS. I have been paid an additional fee for this work in the past. My new job plan now includes this work as part of my Programmed Activities. I thought I would continue to receive a fee as usual but my manager tells me fees may no longer be retained and any fees I have been paid since the date I was placed on the new contract may be netted off my back pay. Is my manager correct?

From the description you give, your manager is correct. Family planning work can, by agreement, reasonably be undertaken during Programmed Activities under the new contract (subject to the proviso that a consultant cannot be compelled to do this work, as set out in HC(PC)(76)20). If family planning is included in PAs then payment is via the normal salary for contracted PAs. No additional fee will be due to the consultant, unless the employer expressly agrees otherwise.

The new contract establishes the general principle that consultants will not be paid twice for the same period of time. Work that is undertaken during PAs will not attract payment or retention of additional fees, unless agreed otherwise by the employer (see below). If a consultant is paid a fee for family planning work or any other Fee Paying Services that are undertaken during PAs, the default position is that the fee shall be remitted to the employing organisation. Schedule 11 of the Terms and Conditions refers.

However, where the employer agrees that Fee Paying Services, including family planning work, carried out during NHS time cause minimal disruption to NHS work, there is provision in the contract for employing organisations to agree to allow the consultant to retain the fee. Schedule 11.2 refers. In the absence of any agreement that the consultant can retain the fee, the fee shall be remitted to the employer.

Consultants can also retain any fee that is paid for Fee Paying Services that are carried out in the consultant’s own time, or during annual or unpaid leave.

In respect of the back pay period, those fees already paid for family planning and other Fee Paying Services (domiciliary visits for example) should not be netted off back pay unless those services are incorporated into the agreed job plan that applies during the back pay period. There should also be no netting off from back pay if those fee paying services were undertaken during a consultant’s own time or were previously agreed as being minimally disruptive to NHS work.

It continues to be the case that a consultant does not have to undertake family planning work, if they have ethical or other objections to doing so. If another member of the surgical team undertakes the work then they remain able to receive the fee as per their existing TCS.

Locums
11. How will the 2003 contract apply to locums?
  • All elements of the 2003 contract will apply to locums. However, with respect to pay, the following provisions apply:
  • Locum consultants who have not at any time held a substantive consultant post will be paid at the first point on the salary scale, unless they have consultant-level experience, in which case trusts may credit them with the appropriate amount of seniority;
  • Locum consultants who hold a substantive consultant post shall be remunerated at a rate consistent with their current pay threshold including distinction awards, discretionary points or CEAs;
Locum consultants who do not currently hold, but have previously held, a substantive consultant post (e.g. retired consultants) shall be remunerated at a rate consistent with their most recent pay threshold as a substantive consultant or, their seniority;
Previous locum service should be counted towards seniority where the locum was equivalent to a substantive post.

Locums will also be eligible for pay progression. On completion of 12 months locum service (continuous or cumulative) the trust will assess whether or not the locum has fulfilled the pay progression criteria for the year, taking into account where necessary locum service carried out in other trusts.

12. Are locums eligible for backpay?
A Yes, provided they have not had a break in service over the period of backdating.

13. In my trust I have noticed that locum consultants are paid on a different payscale (MC73) to substantively employed consultants. The MC73 pay pathway does not look like either the MC51 or MC72 scales but the figures appear to be drawn from these scales. Why is there a different payscale for locum consultants?

When the consultant contract was introduced in 2003 it was agreed that MC51 to MC71 and MC72 00 to 19 should be the designated paycodes for consultants first appointed before 31 October 20 and on or after 31 October 2003 respectively.

Payroll providers also made available the MC73 paycode so that, if they so chose, employers could distinguish by paycode those consultants appointed substantively and those appointed on a local basis. However, MC73 is not a payscale like MC51 or MC72, where there is a clear progression path through the thresholds. It is simply a collection of pay values which includes every possible threshold point from both the MC51 and MC72 scales, including transitional points, upon which a locum consultant could be placed.

In response to employer feedback we intend to include the MC73 pay values in Pay Circular (Medical & Dental) 1/2006.

As locum consultant appointments are not permanent posts and tenure is as agreed on appointment, i.e. for a maximum of six months and then in exceptional circumstances up to twelve months, we would expect a reassessment of basic salary to take place with each new locum appointment. Please see Schedule 22 of the Terms and Conditions for details.

In addition, Schedule 22.7 provides for the recognition of continuous or cumulative locum service for pay progression purposes. When pay progression is awarded, a reassessment of basic salary and subsequent repositioning to a different value on the MC73 paycode will be required. This may occur part way through a locum appointment.

14. I am still unsure where I should place a locum consultant on the MC73 scale
To determine where on MC73 a locum consultant should be appointed to, you should work out the appropriate basic salary as provided for by Schedule 22.4 to 22.6 of the Terms and Conditions.

Broadly -
22.4 refers to a locum consultant who has not previously held a substantive consultant post i.e. is newly appointed whilst
22.5 refers to those who hold a substantive consultant post, i.e. existing consultants; and
22.6 applies to those who do not currently hold a substantive consultant post e.g. retired consultants.
Once you have worked out the basic salary, you can then appoint to the correct MC73 pay value.

A couple of examples are below:
Q: A Consultant is appointed to their first NHS post with 4 years overseas service, where would they be plotted?
A: They would be aligned to MC72:04, but would actually start on MC73:09.
Q: A consultant is appointed with existing NHS service of 6 years, where they would be plotted?
A: They would be aligned to MC56:00, but they would be plotted on the Locum scale as MC73:08.

15. Can locum consultants claim rights under the Fixed Term Workers Regulations?
It is unlikely that locum consultants could claim permanent employee rights under regulation 8 of the fixed term workers regulations. The AofC Regs set out requirements for all standard consultants appointments and includes provisions relating to “exempt appointments”. An exempt appointment is:

"a person whose appointment in a post is to be for an initial period not exceeding 6 months: -

  1. pending the appointment of a permanent postholder;
  2. where the permanent holder of that post is unable to carry out his duties by reason of illness or because of other absence; or
  3. where the Authority considers for some other reason that such an appointment is necessary, and in each case in respect of whom any further period of employment in that post is to be for a period not exceeding 6 months, and to be subject to prior consultation with the relevant college and to the satisfactory performance of the duties of the post during the initial period”. (Regulation 5c AofC Regs)"
A locum consultant appointment therefore should not last beyond 1 year (hence the reference to a statutory limitation). After this period the practitioner should be subject to the full requirements of the AofC Regs. In essence, the employer (and the practitioner) are in breach of the AofC Regs after a one year in post. For a claim to be successful the employee would have to prove that such a breech had occurred. However employers can override Regulation 8 if the use of a fixed term contract can be objectively justified. As a result employers could argue that they can provide objective justification for continuing with a fixed term contract (on the basis that the appointment requirements set out in the AofC Regs were required to protect public safety). In fact, in most cases the contract would be terminated with the locum consultant in order to comply with AofC Regs and then either be advertised as the permanent position or re-advertised for another locum consultant.

The remainder of the FTW Regs, and particularly Regulations 3 which stipulates that fixed term workers are entitled to receive no less favourable treatment than a holder of a permanent position, will apply to locum consultants.

If the locum consultant is employed by a foundation trust, which are not governed by AofC Regs then it may be possible to make a claim depending on there terms and conditions.

Clinical excellence awards, discretionary points and distinction awards
16. How is the new scheme of clinical excellence awards different from the old systems of discretionary points and distinction awards?
The new scheme is an integrated system of local awards (replacing discretionary points) and national awards (replacing distinction awards). Consultants will be able to apply for awards locally or nationally and their applications will be assessed against strict national criteria. There is intended to be a greater focus in the new scheme on ensuring equity, transparency and accountability in the decision making process.

The new scheme of clinical excellence awards (CEAs) applies equally to consultants on the old and the 2003 contracts.

17. What happens to consultants with discretionary points or a merit award ?
Those who hold existing awards or discretionary points will retain them and will be eligible to apply for new CEAs. The value of discretionary points and distinction awards will continue to be uprated by the DDRB annually.

18. I hold a B merit award. Which level of CEA should I apply for?
A You can either apply locally or nationally for a level 9 award (which has a value of just above that of a current B award) or apply nationally for a level 10 award. Level 9 awards are available locally and nationally.

There is nothing to stop you applying locally for CEA levels 1-9 and nationally for levels 9-12 at the same time. Consultants will normally become eligible for national awards once they achieved a minimum of 4 local awards.

19. If I apply for the next level of CEA above my current 4 DPs, I will only be awarded an extra £1745, which is less than the value of a whole CEA. How will this be addressed?
If you currently hold 4 DPs and are applying for local CEAs, you can be awarded anything from a level 5 to a level 9 award. You should apply to your trust local committee and they will decide which award you will receive. The trust is required to spend a minimum amount on CEAs each year, at least as much as they would have done under the old scheme, based on 0.35 awards per eligible consultant. [Remember, more consultants are eligible for CEAs than they were for DPs because CEAs can be awarded to consultants with only one year’s service compared to having to be at the top of the incremental scale for DPs.]

For example, if a trust has 40 eligible consultants, it would need to spend at least £36,638 (40 x 0.35 x £2,617) on CEAs for consultants in the trust. This sum must be at least the amount that would have been spent under the discretionary points system i.e. number of consultants eligible for DPs x the quota previously used by the trust x £2,835. During the transitional phase from the old to the new system, this could result in some consultants receiving less than a whole CEA in one year and others receiving more.

Working hours, working week, management control, job plans
20. What about the European Working Time Directive?
This legislation of course still applies under the 2003 contract. The contract itself stipulates that the number of programmed activities undertaken must not exceed the maximum number of hours permitted under the EWTD. However, if you have signed a waiver or ‘opt-out’ you will still be able to work in excess of 48 hours if you wish and be paid for it.

See also question 34 (link to Q 34).

21. As a part-time consultant, will I have to work longer hours to fulfil my current session commitment?
No, consultants can transfer to the contract on the same number of sessions they currently work and not increase their workload.

The guidance states that agreement should be reached with the employer over the assessment of hours that the consultant undertakes. Part-timers transferring to the 2003 contract will only have to work increased hours by their agreement and this will be accompanied by the award of additional PA s.

alternatively, part-timers could choose to take up the 2003 contract based on a weekly PA commitment that is nearest to their current hours of work for the NHS.

See also question 31 [link to Q 31]

22. Would I have to work longer hours under the 2003 contract?
There is no limit on the working week under the old contract, and surveys have shown that the vast majority of consultants regularly work way in excess of their notional contracted hours. Although the current contract is based around 10 or 11 three and a half hour notional half days, the contract is an open ended professional one. Effectively, you are obliged to work whatever hours are necessary to deliver appropriate patient care. Consultants made it clear that they wanted to see a more time limited contract in the future, to protect them from the explosion of unremunerated work.

The new 10 PA core contract includes work that was previously unrecognised by trusts. Patient administration, communication with GP and other colleagues and multi-disciplinary meetings, as well as emergency work, are now included within the sessions devoted to direct clinical care. This work will no longer go unpaid.

There is no requirement on consultants to work a longer day than currently. The contracted length of any particular day will be the result of discussion in the job-planning process. We have negotiated a differential rate of pay for work undertaken outside the hours of 7.00 am and 7.00 pm, Monday to Friday. It is not a huge differential payment but is better than the current situation where unsocial hours working is not recognised at all, or on an ad-hoc basis. This contract gives an agreed rate of pay for all consultants, for all work, at all times of the week.

Consultants have always undertaken some emergency and some planned work out of hours. Evening and weekend sessions exist now and will do in future - but always by explicit agreement through the job planning process. Trusts will not, for example, be able to run an evening operating session unless they have the agreement of the consultant, plus the theatre space, the nurses and the full back up team.

It is important to bear in mind that the 2003 contract is based around a 10 PA job. If you are working in the evenings or at weekends either on emergency work or as a planned activity, the number of your day time PAs will be reduced and your working week will be less than 40 hours long because evening and weekend PAs are shorter.

23. Could I be made to work until 7pm?
All programmed activities are put in the job plan by agreement. If you agree to do an evening clinic, then this will be included in your overall programmed activities, which is very likely to give you free time during the day. Alternatively you will be paid for an extra PA at an additional 10% of your basic salary. The contract also allows flexibility in the timing (and location) of work.

Under the old contract, there is nothing to stop trusts asking you to work in the evenings and at weekends. In practice working arrangements are established either through a formal job plan or by long standing but more informal agreements.

Consultants can be confident that they will have control over what sessions they work and the BMA local office and LNC structure is geared up to support consultants who face unreasonable demands from their trusts.

24. Could you clarify the new arrangements for out of hours working with regard to our obligations to work at these times and what payment we would be entitled to?
It has been agreed that the scheduling of non-emergency work after 7pm at night and any time at weekends can only take place by agreement with the consultant i.e it will be voluntary. Non-emergency work can be scheduled as programmed activities (PAs) as they would in normal hours, but from April 2004 each PA will only last 3 hours rather than the standard 4 hours.

Emergency work undertaken out of hours will be recognised in programmed activities and paid accordingly (up to a maximum of 1 PA until 31 March 2005) i.e. during job planning, the average amount of this type of on-call work will be recognised as a certain number of PAs. PAs worked during the out of hours period are only 3 hours long.

The definition of ‘non-emergency work’ for these purposes includes the regular programmed work of consultants whose specialty by its nature involves dealing routinely with emergency cases e.g. A&E consultants.

25. What if I cannot agree a job plan with my manager, can the trust impose one on me?
The terms and conditions of service explicitly states that job planning will be based on a partnership approach and that scheduling of commitments should be by agreement. The BMA’s local offices and local negotiating committees will ensure that consultants are supported in the job-planning process. However, if attempts to reach agreement fail, there will be referral initially to the medical director and subsequently to an appeals panel. The appeals panel will consist of three members: one appointed by the trust, one by the consultant and one from a list agreed between the BMA and the strategic health authority.

27. How will the appeal panels work?
We have agreed the composition of the appeals panels and how they will operate in practice – More information can be found on the NHS Modernisation website.

28. Why does the trust board have a veto over any decision made by the appeal panel?
It should be noted that the heads of agreement explicitly states that the trust board would normally accept the decision of the appeal panel. However, it is also a term of the 2003 contract that the trust board retains the right to make the final decision. If your trust acts unreasonably in choosing to overrule an appeal panel, then it is possible that you may have legal remedies against your employer, but you cannot force your employer to accept an appeal panel decision. At the root of this is parties’ freedom to contract: no one can force you to work for a particular employer, but nor can an employer be forced to employ you on particular terms.

29. Currently, I do quite a lot of work from home, preparing for teaching and dictating letters. Do I now have to stay on site all the time?
No. This has been clarified again in the terms and conditions of service. There is nothing to stop you reaching agreement on reasonable flexibility about where you do your work. It would be extremely shortsighted of any trust to try to insist that all work must be done on site or that consultants must ‘clock in and clock out’. However, you do need to make a proper estimate of the time you spend on this type of activity because it is now included in the PAs for direct clinical care, and will be paid for.

30. What is the status of the new code of conduct on private practice and the new job planning guidance?
The private practice code and the job planning guidance were both agreed with the CCSC as part of the negotiations on the supporting documentation for the 2003 contract. Both documents are in the form of ‘best practice guidance’. However, consultants will be expected to make best efforts to observe the code of conduct in order to achieve pay progression. Disputes over whether consultants have done so or not will be resolved by the appeal panel.

Both documents apply to all consultants i.e. both the old and the 2003 contracts.

Part time consultants
31. What does the 2003 contract offer to part timers?
An agreement was reached on how the 2003 contract should apply to part-time workers, and you should refer to ‘Part-time and flexible working for consultants’, published in September 2003, for more information.

The 2003 contract offers advantages to part timers on a number of fronts.

  • The more tightly defined and limited working week will help part time consultants who currently work many hours unpaid for a lower salary. You should be able to contract for precisely the number of PAs that you want and limit your commitment to those PAs.
  • Part timers transferring to the 2003 contract have a choice of transferring to the 2003 contract based on their current number of NHDs, or based on the number of PAs nearest to their current hours. They will only have to work increased hours by agreement and this will be accompanied by the award of additional PAs.
  • The 2003 contract recognises that part-timers need to devote proportionately more of their time to supporting professional activities, for example due to the need to participate to the same extent as full timers in CPD. It has been agreed therefore that, for example, for a 6PA contract, 2 PAs need to be devoted to supporting activities, a ratio of 2:1 compared to 3:1 for a full timer.
  • Where a part time consultant participates in an on-call rota on the same basis as a full-time colleague, they will receive the full value of an on-call availability supplement.
  • Part-timers might also benefit from being credited with additional seniority.
  • There is also scope for annualised hours, which will help those consultants who, for example, want to avoid working in the school holidays.

32. I am a maximum part timer on the pre 2003 contract and would like to transfer – would I be treated differently than full time consultants?
No, the arrangements would be the same as for full time consultants transferring to the 2003 contract (assuming there is no backdated pay).

Private practice issues
33. Do I have to work an extra session before undertaking private practice?
No. There is no requirement under the 2003 contract for you to work more than 40 hours if you want to do private practice. However, one of the criteria for achieving pay progression is that you accept an extra paid programmed activity, if offered, before doing private work. But you should remember that:
  • If you are already doing 11 PAs as a full timer, you don’t have to do any more;
  • 11 PAs could easily be less than 44 hours if you work in premium time;
  • You can decline any offer and do your private work, but this will risk your pay progression;
  • Additional PAs must be offered to all consultants in your specialty and if your colleagues take them up, there is no impact on your pay progression;
  • The requirement for former maximum part-time consultants to offer the extra PA is phased in during a transitional phase.
Before agreeing to take on the 2003 contract, you should clarify with your employer how they intend to deal with this issue. It is possible that they will not want to offer any extra PAs (they might not be able to afford them), or might offer a small number across a department. Bearing this in mind, you and your colleagues might like to agree amongst yourselves an arrangement for accepting any extra PAs the trust offers. For example, if one extra PA is offered amongst four consultants, you could take it in turn to undertake the extra paid work.

Remember that if you are offered an extra PA and decide to take it up, you have the right to notice of 6 months if you have to re-arrange other commitments (3 months if you do not). If you agree to undertake an additional PA, this agreement is not permanent but can be reviewed at the request of either party as part of the job planning process.

The BMA believes that part-time workers should work the extra PA on a basis pro-rata to their basic commitment. The Department of Health however does not agree, and we would be very interested in taking forward any cases on behalf of part-time consultants whose trusts are insisting that a whole extra PA is offered.

In this area, there is some scope for agreeing how the contract will be implemented locally. In such circumstances, the issue would be better dealt with by reaching a collective agreement with the employer, via the local negotiating committee.

34. Isn't it illegal for consultants to be required to do extra work for the NHS before doing what they wish in their own time? No other group of NHS workers has this required of them!
The requirement to offer an extra programmed activity to the NHS before undertaking private work is unlikely to be illegal. It is a restriction, but will be a valid restriction if it is reasonable. The restraint must be capable of justification on the basis that it satisfies a legitimate interest of the employing Trust, and is reasonable in the interests of the public. A Trust has an interest in consultants devoting substantially the whole of their professional time to NHS duties. Further, it is clearly in the public interest for consultants to do an extra PA for the NHS if there is a need for that extra work to be carried out.

It should be noted that NHS Trusts can employ staff on such terms and conditions as they think fit. Trusts do not therefore have to offer this term. This also means that if a Trust felt it was necessary to impose a similar obligation on other NHS workers, then it could do so.

35. Can I do a private practice session between 9am-5pm?
Yes. There is nothing in the contract that rules this out. A new code of practice on NHS and private work has been developed as part of the contract negotiations and put in place. The principles governing the new rules are included in the terms and conditions of service.

There is no doubt that some trust managers are hostile to the idea that consultants may be working elsewhere during the day and want to deploy them inside their own trust. However if they want to propose a change to current working arrangements, this must be done through job-planning, and they will need to be able to show that they have the staff and other facilities available. Remember that if you are offered an extra PA and decide to take it up, you have the right to notice of 6 months if you have to re-arrange other commitments (3 months if you do not). They cannot contract with you for more than 10 four hour PAs without your agreement (except where recognising your on-call work would have meant a reduction in your other work). It has also been agreed that the scheduling of work is by agreement and can be flexible. Once you have fulfilled your contractual obligation of e.g. 10 PAs, you are free to undertake private practice. Remember, if you undertake on-call or scheduled work outside 9am-5pm, the PAs allocated to that will mean you have spare daytime capacity on a weekly basis.

36. If I work 40 hours for the NHS does the European Working Time Directive mean I can only do 8 hours private practice?
No, the European Working Time Directive is health and safety legislation aimed at protecting the employee from excessive demands made by the employer. Private practice when self-employed is outside of the WTD and does not count towards the 48 hour limit. There is no restriction on the hours you work in private practice, provided always that you fulfil your professional obligation to be fit for work.

37. Does the 2003 contract mean that I cannot do a private practice session if I am on call for the NHS?
A key principle of the new code of conduct on private practice is that where there is or could be a conflict of interest, programmed NHS commitments should take precedence over private work. The code also sets out that consultants should ensure ‘that private commitments do not prevent them from being able to attend a NHS emergency while they are on call for the NHS, including any emergency cover that they agree to provide for NHS colleagues. In particular, private commitments that prevent an immediate response should not be undertaken at these times’.

However, the code additionally says that ‘there will be circumstances in which consultants may reasonably provide emergency treatment for private patients during time when they are scheduled to be working or are on call for the NHS’ and that there may be circumstances where some private practice can be undertaken alongside a consultant’s scheduled NHS duties, provided that the trust is satisfied that there will be no disruption to NHS services.

38. It looks as if current consultants on maximum part time contracts will be forced to work an extra session. How can you justify this?
A Most consultants - both whole time and maximum part time - are working way beyond their current contract for the NHS and they are not being paid for it. Those on maximum part time contracts are currently sacrificing nine per cent of their salary even though they work more than full time for the NHS.

We have successfully negotiated away the ten per cent rule and the maximum part time contract with its pay penalty.

Under the 2003 contract, consultants will be paid for extra sessions beyond 40 hours.

Consultants will not be forced to take on extra sessions. Trusts will have to offer extra sessions, with plenty of notice, to all consultants suitable for the extra work. They will not single out those consultants who already practise privately. Only if the trust has enough funds, facilities, nursing staff and beds to run additional clinics and operating sessions, will the question of extra sessions arise.

Even then, consultants have a choice. If they decide that they wish to retain the maximum amount of free time for their private practice, they can decline the extra session. The only penalty they would suffer is that they would not progress through the pay threshold that year. As they will be moving to a full time salary, their NHS salary will still be higher than it is now.

39. I am a maximum part-timer. How could I transfer to the 2003 contract?
Some current maximum part-timers (MPTs) are concerned that they will lose out if they transfer to the current contract because they will not benefit straight away from the enhanced salary offered in the 2003 contract.

However, there are alternative ways that maximum part-timers could move over:
  • We know that most MPT consultants work around 47 hours for the NHS each week. Therefore, you could simply take a contract based on the number of PAs you actually work for the NHS and get paid for them at a higher rate than you currently do. As you would be working over 11 PAs, there would be no threat to pay progression if you did not do any extra NHS work and did private work;
  • An MPT consultant could opt to take on a 10 PA contract, work the basic commitment, not take up an extra PA when offered and do unlimited private work. You would remain on the new salary that you transfer on, which would be higher than your old one. However, you may not be eligible for pay progression if you decide to take this course of action;
  • With agreement from the trust, an MPT could transfer over on the number of hours currently paid for. The current minimum commitment is 10 notional half days or 35 hours. As an MPT consultant, with agreement you could take up an 8 or 9 programmed activity contract, offer to do an extra programmed activity and do unlimited private practice.
Independent Sector Treatment Centres
40. I would like to work in an independent sector treatment centre, what issues should I be aware of?
The issues surrounding consultants working in independent treatment centres are discussed in detail in the publication “Working in the new NHS”.

Pensions
41. What are the implications of the 2003 contract for pensions?
Consultants will retain a final pension salary scheme calculated on basic salary – this alone will result in an actuarially-estimated £100,000 average addition to consultants’ pension funds, a significant achievement at a time when final salary schemes are being negotiated away in many walks of life. It has also been estimated that this represents a 24% increase in final salary pension.

All PAs up to a maximum of 10 per week are pensionable as are domiciliary visits fees, discretionary points, distinction awards, clinical excellence awards, London Weighting and on-call availability supplements.

Mental Health Officer status will be unaffected.

42. Why aren’t PAs in excess of 10 pensionable?
As a rule, salary paid in excess of full-time (10 PAs) cannot be pensionable. In any case, because the NHS pension scheme is a final salary scheme, there is a possibility that if extra PAs over 10 were pensionable, any contributions you had paid on the 11th and 12th PAs would be lost if at retirement you had reduced your number of sessions to the standard 10. Your salary would be based on the ‘best of the last three years’ principle and if you no longer worked more than 10 sessions in those three years you would not benefit from the extra contributions you had paid for the 11th and 12th PAs.

Other
43. Cover for colleagues absent through sickness
Before the introduction of the 2003 contract, consultants in our Trust would normally automatically cover for a colleague's absence through sickness. Some of those who have taken up the 2003 contract are now questioning whether they have any obligation to continue to work in this way. There is acceptance of the need to cover the emergency aspect of work long enough for the Trust to employ a locum (perhaps 48 hours) but beyond this, some are of the view that these additional duties are not part of a consultant's contracted work and should be separately remunerated. As the work covered is not specified in their agreed job plans, these consultants are now asking for payment at an enhanced additional rate, equivalent to agency locum rates of pay. How should we deal with the requests for additional payment?

Schedule 2.3 of the Terms and Conditions (T&Cs) contains a specific obligation that consultants are expected “…in the normal run of their duties to deputise for absent consultant or associate specialist colleagues so far as is practicable, even if on occasions this would involve interchange of staff within the same employing organisation. This does not include deputising where associate specialists are on a rota with doctors in training.”

This is not a new requirement. It is expressed in almost identical terms to the obligation that arises from Paragraph 106 of the ‘old’ contract T&Cs. There is, therefore, a continuing general obligation to provide cover where practicable.

Some Trusts have put in place a policy to cover this matter, an approach we would endorse. In the absence of such a policy we would offer the following guidance.

Employers and consultants are encouraged to come to agreement locally on what is deemed to be practicable, what the proposed cover entails and establish that the work is of a suitable nature to be covered by the consultant. In establishing suitability, due regard must be given to a doctor’s duty to recognise and work within the limits of their professional competence. It may be necessary to agree re-arranged duties for one or more consultants in the short term in order to provide adequate cover.

In terms of remuneration, obviously it is not possible to schedule PAs for unexpected absences into a prospective job plan. There are a number of ways of addressing the issue of compensation for additional work. The 2003 contract is sufficiently flexible that the length of the working day (or week) is not expected to be the same week in, week out. It may be possible to re-arrange, by agreement, duties flexibly so that a consultant providing additional cover for an absent colleague can take time off in lieu later.

Duties may be re-arranged temporarily so that, for example, extra DCC PAs are worked to cover the absence, with SPA PAs time shifted to be taken at a later, more convenient date perhaps in lieu of DCC PAs at that time. Alternatively, or in addition, thought may be given to a temporary reallocation of specified responsibilities (with enhanced supervision as necessary) to an associate specialist or specialist registrar.

In the longer term, the question of additional remuneration may arise, including in respect of On-Call Availability Supplement (if the rota frequency has increased) and PAs for on-call work undertaken. These may need to be re-calculated. The formula for calculation and payment is that contained within the T&Cs. Schedule 16.4 of the 2003 contract T&Cs anticipates changes in rota frequency, which may require a change in On-Call Availability Supplement. Schedule 5 deals with recognition for work arising from on-call duties, while Schedule 13 deals with payment for additional PAs.

In summary, cover for an unexpected absence is not ‘extra-contractual’ but is a contractual obligation for consultants, whether on the ‘old’ contract or the 2003 contract. The practicability of providing such cover should be determined locally by agreement. Compensation for the additional work should be in accordance with the applicable contract.

44. What is the obligation of consultants to cover for colleagues who are unexpectedly absent, for example due to sickness?
There has been a long-standing requirement for consultants to cover for their colleagues ‘so far as is practicable’. The obligation is set out in the ‘old’ terms and conditions of service (at paragraph 106) and is repeated in schedule 2 of the 2003 TCS. Both sets of TCS go on to state that, where cover is not practicable, the consultant should bring the matter to the employer’s attention and the employer then has the responsibility to provide a locum.

The key questions here are determining what is meant by ‘practicable’ and what services are essential to cover in an already overstretched NHS. This may well differ between trusts, departments and individual cases, but many employers find it helpful to agree in advance a policy with their consultants over what will be expected where there is an absence. The most important factor in any such agreement will be the expected length of period of cover. As these instances are unplanned and unexpected the period of cover agreed should be short especially where the rota frequency is high and/or the volume of work done on call is significant (over 0.5 PA per 24 hour period on call). For example, some employers and consultants have demonstrated good practice by agreeing that cover will be provided for a 72 hour period after which the employer will provide a locum. The locum might be from outside the trust, or there could be internal cover. This gives time to maintain essential services but balances the extra strain on already stretched resources. Longer periods can be covered using agreement via the Job Planning process and PAs allocations.

Employers should also look at alternative means of dealing with consultant absence. For example, could an associate specialist or specialist registrar who normally works alongside a consultant in a clinic continue to run that clinic with the supervision of an on-site consultant?

It is important to emphasise that on many occasions the workload will not be able to be covered within existing working hours and thus appropriate remuneration in terms of PAs needs to be agreed.

Bank and Public Holiday working
45. How should we pay our consultants who work on public holidays?
 The Definitions set out in the preface to the Terms and Conditions – Consultants (England) 2003 (T&Cs) state (page 3) that work on a public holiday counts as work in Premium time. This affirms that such work counts the same as that undertaken on a weekend or outside of 7am to 7pm Monday to Friday.
Schedule 7 of the T&Cs sets out the compensation arrangements for scheduled and unpredictable work undertaken during such time (see 7.2 in particular). This draws no distinction between the reward for Public holidays and the reward for other periods or days that meet the definition of Premium time.

46. Are consultants obliged to work on bank holidays
The Definitions set out in the preface to the Terms and Conditions – Consultants (England) 2003 (T&Cs) state (page 3) that work on a public holiday counts as work in Premium time. Schedule 3, para 6 of the TCS confirms that non-emergency work after 7pm and before 7am during weekdays or at weekends (premium time work) will only be scheduled by mutual agreement. Therefore a bank and public holiday working should only be scheduled by mutual agreement.

47. Where can I find guidance about non contractual entitlements, such as secretarial support?
Information on supporting resources such as secretarial support and office space is available from the specialty associations and colleges. Some Royal Colleges also provide specialty-specific workload guidance, e.g. number of patients to be seen in clinics.

48. What advice can you give a consultant considering taking on waiting list initiative work?
Consultants should be advised that if they accept payment for a WLI done during what would otherwise be working time, they have a duty to make up that duty at another time. They should not expose themselves to risk by doing WLI while on call, although they may find themselves responsible for supervising SAS doctors doing such work. All such problems to be taken up with local clinical management. The BMA also believes strongly in pay parity for consultants and LNCs should seek to negotiate local rates on this basis.

© British Medical Association 2008

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