The NHS (Appointment of Consultants) (Wales) Regulations 1996
Consultants carry ultimate clinical responsibility for every patient seen in hospital under their care. The public is therefore entitled to expect that all consultants will have reached the highest standards of skill and knowledge, and this is guaranteed by means of a statutory appointments procedure laid down in regulations for Health Boards and NHS Trusts and local health boards.
The regulations and accompanying good practice guidance as applies to England only were amended most recently in 2004.
The Welsh Government will be issuing good practice guidance for Wales shortly. This advice is based on the English guidance as we know that the Welsh guidance will mirror this almost exactly.
Planning and advertising a consultant post
Employers should normally begin planning for a consultant appointment well before the post is to be filled. They should consider service needs, continuing educational requirements, teaching, training and supervision of junior staff, research and audit, and should take account of the views of local consultants, who should be involved in drawing up the job description. It is good practice to plan the timetable for the whole process at the outset, so that all involved – staff, colleges, faculties, universities, advisory appointments committee (AAC) members and potential applicants – know the timetable for appointment. The timetable should be confirmed after prospective AAC members have been contacted.
College and faculty regional advisers must be allowed to comment on the draft job description and should be allowed to do so at the earliest opportunity. Where there is a disagreement, the matter will be referred to the president of the college. This will not, however, prevent an employer advertising the post.
Where the job involves significant teaching commitments of undergraduates, it is also good practice to forward the job description for comment to the dean of the medical school.
As well as details of the post and proposed job plan, the job description should include the selection criteria that will be applied. Once the job description has been agreed, it cannot be changed, nor challenged by a member of the AAC (other than over a technical error).
The job description, together with selection criteria, should be made available to all applicants. It should form part of a general information package which should include a list of the relevant terms and conditions of service, including pay and any local terms of service.
If you are a candidate for a consultant post you should always ask for details of the terms and conditions of service from the Health Board in advance of the appointment committee. You can also get advice from a BMA adviser and from the chair of the Health Board’s Local Negotiating Committee, which should have been involved in negotiating local variations to contracts.
All posts must be advertised (unless a statutory exemption applies. Whole-time posts must also be available to part-timers, and all posts must be open to job sharers.
Appointments to a consultant post in the NHS are governed by a statutory instrument, which specifies the procedure to be followed and the membership of the AAC.
Eligibility for appointment
Since 1 January 1997 it has been a legal requirement for all doctors to be on the GMC’s specialist register before they can take up a consultant appointment.
However, if you are a trainee you can explore the possibility of post-CCT careers as soon as it is apparent that a CCT will be awarded in the near future. Consequently, specialist registrars can apply for a consultant appointment provided the expected date of award of their CCT (or recognised equivalent, if outside the UK) falls no more than six months after the date of interview for the consultant post.
There will be some other instances (for example, when considering applicants trained outside the UK) where an AAC may choose to interview a candidate prior to specialist register entry although, in these circumstances, it will wish to be satisfied that subsequent specialist register entry is likely.
Membership of advisory appointments committees
The employer must set up an AAC as follows.
- a lay member (often the chair of the Health Board or another non-executive director)
- an external professional assessor, appointed after consultation with the relevant college or faculty
- the chief executive of the appointing body (or a board level executive or associate director)
- the medical or dental director of the Health Board (or person who acts in a similar capacity at that hospital) or the relevant director of public health for public health appointments
- a consultant from the Health Board, who, if available, should be from the relevant specialty.
The committee cannot transact any business if any core member is absent.
- in the case of appointments to units which have either teaching or research commitments or both, the committee must also include a professional member nominated after consultation with the relevant university
- in cases where the teaching and or research commitment does not require an additional professional member, the chair should ensure that any interests of the university are represented by one of the other members of the committee
- any other members the Health Board may consider appropriate providing that the committee shall have a majority of professional members and a majority of local members (ie employed by the Health Board).
Release of consultants for AACs
Health Boards and NHS Trusts should make every effort to release medical and dental practitioners to attend as members of AACs and should give a clear explanation of the reasons to the recruiting Health Board if this is not possible.
All members of AACs should get appropriate training covering all aspects of the appointments process and concentrate on those areas where difficulties may arise:
- equal opportunities; and
- matters which should not be discussed at the interview other than in exceptional circumstances.
The nominating body (eg Health Board, Royal College or Faculty) is responsible for ensuring that such training has been provided.
All members of the AAC should get copies of all the applications, together with the job descriptions and selection criteria, and should have the opportunity to contribute to the shortlist. It is the chair’s responsibility to ensure that all members are content with the final shortlist.
Applicants may be given the opportunity to visit the Health Board before interview - such visits are a vital source of information about the hospital and the post.
It is increasingly common for Health Boards and NHS Trusts to request candidates during these visits to make formal presentations to medical staff or members of the Health Board. The NHSE guidance clearly states that pre-interview visits do not form part of the selection process and must not influence the outcome. Canvassing for support of any application is prohibited.
The procedure adopted by the AAC is a matter for decision by the committee itself, subject to the statutory provisions and current employment legislation. The proceedings are confidential, but records will be kept by the employing body for a minimum of 5 years in case of discrimination claims in an employment tribunal. Individual members may also be questioned about their reasons for accepting or rejecting candidates.
The committee’s role is to make a recommendation to the Health Board about which, if any, candidates are suitable for appointment. In practice, it is usual to recommend only one name and the Health Board will have delegated to the AAC the power to offer the post to the chosen candidate, though the appointment will formally be made by the Health Board. NHSE guidance states that ‘successful candidates should be formally offered posts in writing within two working days of the decision to appoint’.
The committee may not put forward the name of a candidate without interview, nor may the Health Board appoint a candidate who has not been recommended by the AAC.
An appointment must not be confirmed until the appropriate pre-appointment checks have been made.
Welsh Health Circular WHC (2003)007
Exemptions from the statutory procedure
Several categories of post are exempt from the requirement to hold an AAC. In some cases the employer must seek the approval of the Welsh Government to invoke an exemption. The exemptions are:
- a consultant, working for the Health Protection Agency, the Defence Medical Services or a university, transferred to an NHS post in which the duties are substantially the same as those performed for the Agency, the Defence Medical Services or the university
- a doctor who has been appointed to a hospice post which is equivalent to an NHS consultant post
- a doctor who has retired as a consultant and returns to work for the same employer and specialty as the one he or she filled prior to retirement.
In some circumstances, eg agreed grade assimilations, or health problems requiring a move to lighter duties, the Secretary of State may approve an exemption from the requirement to advertise a consultant post.
Discrimination and fairness
The good practice guidance stresses that employers should ensure that their procedures are seen to be fair. The chair of the AAC has an important role to play in ensuring that members act fairly in accordance with the Sex Discrimination Act, the Race Relations Act, the Equal Opportunities Commission and the Commission for Racial Equality Codes of Practice, the Code of Good Practice on the Employment of Disabled People and the employing body’s equal opportunities policy.
It should also be noted that:
- all members of AACs should have received training in the shortlisting and selection of applicants by interview, with specific regard to the use of fair and non-discriminatory interviewing and selection techniques. Members should also have received appropriate training in the application of equal opportunities legislation
- members of AACs are advised to keep a record of the proceedings, as they can subsequently be questioned by the courts or employment tribunals on the reasons for accepting or rejecting a particular candidate. The employing body will retain records for a minimum of five years
- decisions on the suitability of candidates should relate to the agreed selection criteria and should rely on facts rather than impressions. Questions should not relate to candidates’ personal circumstances
- members of the AAC who have a connection with any candidate should declare the fact and take care not to show a bias
- comments on references should be limited to the written remarks and third party comment or hearsay should be excluded
- the employing body is required to carry out ethnic and gender monitoring of applicants, shortlisted and successful candidates, usually by means of a tear-off slip on the application form
- employing bodies are asked to see that no AAC consists wholly of men or wholly of women and that if possible the composition of the AAC reflects that of the local population and workplace.
The NHS (Appointment of Consultants) (Wales) (Amendment) Regulations 2005 (Statutory Instrument No 3039)
Good Practice Guidance (Revised 2004 England) NB Under revision in Wales
DGM (96)106, The NHS (Appointment of Consultants) (Wales) Regulations 1996 (Statutory Instrument No 1313) attaching Direction to NHS Trusts and Good Practice Guidance (Annex A)
Fees and expenses
Doctors employed under the national terms and conditions of service (either consultants or specialist registrars seeking a first consultant appointment) are entitled to have their expenses reimbursed by the prospective employing authority at the appropriate rate. This may include pre-interview visits, providing the applicant is subsequently shortlisted. Consultants who are not on national terms and conditions of service should check with the Health Board concerned that these expenses will be reimbursed.
College assessors are entitled to a fee for participation in an AAC and other members are entitled to reimbursement of travel and subsistence expenses. The good practice guidance implies that Health Boards and NHS Trusts may fix local terms for these allowances. It is a good idea to check with the Health Board that the fee will be at the agreed national rate and that first class travel and subsistence will be fully reimbursed.
Amendment to the National Consultant Contract in Wales 2003, paragraph 313
BMA guidance: Fees Schedule 3: Miscellaneous work in the NHS
It may be unwise for a member of an AAC to rely on any implied indemnity from the Health Board for whom the appointment is being made. Alternatively, members of such an AAC who are not employed by the Health Board should seek a written express indemnity from the Health Board covering them for all legal costs and awards arising out of their role on the committee.