Junior doctors are currently in a pay dispute with the NHS involving strike action.
Consultants will no doubt want to work with employers to ensure that services are still able to operate effectively. However, they should not be expected to do so without agreement and without being appropriately remunerated.
In this situation, the responsibility to provide safe patient care lies with your employer. They should now be working proactively to plan with local negotiating committees and making full preparations. Large numbers of junior doctors are expected to be on strike, and it must be assumed that there will be none available to work.
Consultants have a contract and job plan and these cannot be ignored without the explicit agreement of the consultants concerned. Consultants also have an ongoing professional responsibility to their patients and must be aware of their limitations if they are being asked to work outside their own scope of practice.
Below we detail your rights and responsibilities in the context of some of the scenarios which may occur as a result of industrial action by junior doctors.
You are not obliged to ‘act down’ and provide cover for junior doctors on strike
‘Acting down’ to cover absent junior doctor colleagues is not part of your contractual terms and conditions. Trusts must therefore reach an agreement with consultants regarding any arrangements to cover for absent junior doctor colleagues. Guidance on industrial action from NHS Employers' own legal advisors - Capsticks acknowledges that ‘where consultants are asked to undertake work in addition to the programmed activities set out in their job plan to provide cover for more junior staff, this will be an extra-contractual arrangement which they can either agree or refuse.’
If you choose to cover such work, we recommend that you should ensure that you are paid at the appropriate rates outlined in the BMA consultant rate card.
As this work is extra-contractual, you can demand enhanced payment even if you are already being paid for the session in which you would be providing cover. Contrary to what some employers have argued, this would not constitute ‘double payment’ – rather, it is payment of the amount needed to bring the consultant’s usual rate of pay up to the enhanced rate indicated on the BMA consultant rate card.
It is important to remember that if you are already scheduled to work in a clinical area, you are required to fulfil your own commitments. Your employer however has a responsibility to ensure safe staffing and you cannot be expected to fulfil the duties of multiple people.
A consultant is professionally required to provide “emergency cover”, where it is practicable to do so, in line with their obligations under the GMC’s Good Medical Practice (such as ‘the need to prioritise patient care and to respond promptly if patients’ safety, dignity or comfort may be seriously compromised’).
You are not obliged to agree to work resident on-call
As outlined above, acting down to cover an absent junior colleague is extra-contractual. In addition, Schedule 8, paragraph 4 – 2003 consultant TCS states that being resident on-call requires your agreement. The employer, therefore, has a responsibility to ensure that this junior doctor gap was covered in advance. However, if you are being asked to act down, and/or essentially become resident on-call, it is essential that this is done safely both for you and the patients in the department.
Your employer must comply with the UK working time directive and ensure you have appropriate rest. You therefore cannot work the day before or the day after a resident night shift.
Although as the on-call consultant, you have professional responsibilities to provide care for patients, the employer still has a responsibility to provide safe staffing. Therefore, if you agree to act down, a second consultant must be made available to provide additional cover as you cannot be expected to undertake both roles simultaneously.
If as the on-call consultant, you agree to act down and/or be resident on-call, this is work that is in addition to your job plan. It is important that it is remunerated separately. This may be at the appropriate rates outlined in the BMA consultant rate card or as per your local 'acting down' policy if one has been agreed upon.
You are not obliged to agree to be re-deployed
Covering for junior colleagues during periods of strike action is clearly extra-contractual so you are not obliged to agree to redeployment from your usual role.
Where an employer wishes to redeploy you to a role that would require you to ‘act down’ (i.e. provide cover for a junior colleague), they will need your explicit agreement, including on the rate at which this work will be paid. If you choose to cover such work, you should ensure that you are paid at the appropriate rates outlined in the BMA consultant rate card.
On the day of strike action, certain activities that you would usually be undertaking as Direct Clinical Care (DCC), such as a theatre list, or some forms of Supporting Professional Activity (SPA), like teaching trainees, may need to be cancelled because it cannot operate during industrial action. Where this occurs, you still cannot be redeployed to other forms of DCC activity that you are not job planned to be delivering, unless you agree to it.
Managing expected gaps at junior doctor level is the responsibility of the employer
The junior doctor strike action will be communicated in advance, so it is the direct responsibility of the employer to make arrangements for covering these gaps.
As the consultant already job planned to work during that period, you will still have a responsibility to fulfil your agreed duties. Even though your employer will already have notification of the dates of any action and knows the staffing levels, we recommend that you also highlight in advance to your employer how many gaps will need to be covered for this period by non-striking medical staff.
If this cover is provided by other consultants, they are being asked to “act down to cover absent junior doctor colleagues”. This requires their agreement as it is extra-contractual and they can therefore negotiate for this work to be paid at the appropriate rates outlined in the BMA consultant rate card.
If your employer has not acted appropriately in ensuring safe staffing, they are risking patient safety and they are the ones liable for any adverse consequences.
Raising concerns about sufficient staffing levels
As your employer will be given notice of the industrial action, it is their responsibility to ensure the safe delivery of care. Your employer will be responsible if at any point patient safety is compromised. However, you also have a professional responsibility towards your patients.
Often, there will be pressure and expectation on consultants, as service leaders, to facilitate alternative arrangements, such as in drawing up rotas and rearranging elective sessions. However, as noted above, there may be limits to what can be feasibly arranged on days of industrial action.
If you have concerns that their safety cannot be maintained during any part of the operation or during the post-operative period, it would be appropriate for you to decline to operate in conditions where the overall patient care arrangements are deficient to the extent that their safety is potentially placed at risk.
If you have significant concerns about how your service will function during industrial action, when your employer is unwilling to make any alternative arrangements to accommodate the lack of staff, then you may need to refer to the BMA’s guidance on raising concerns.
You have a professional obligation to perform within your sphere of competence
‘Acting down’ to provide cover for absent junior doctor colleagues may involve tasks that you have not had to perform for many years, and you may have concerns about the ability to carry out certain tasks involved in ward work.
A consultant has a professional obligation to act within their sphere of competence. As such, you need to be clear with your employer that you do not feel that you can safely and competently perform the work required and that doing may expose you to enhanced risk of medico-legal consequences. If your employer refuses to take the necessary action to make alternative arrangements – whether providing other suitable cover or cancelling or rearranging scheduled care – then, as above, you will need to follow our guidance on raising concerns.
Employers cannot cancel job planned SPAs (supporting professional activities)
Job plans are contractual as they are part of the consultant contract. As such, the contents of a previously mutually agreed job plan cannot be unilaterally overridden by an employer.
Consultants may choose to enter into an agreement with their employer to re-schedule their SPA sessions for some point in the future in order to provide immediate clinical cover. However, they are under no obligation to do so, and an employer certainly can’t unilaterally decide that the SPA session should be cancelled altogether. If they wish for you to perform DCC (direct clinical care) work in this session, they must obtain your agreement.
It is important that if you agree to undertake DCC work in SPA sessions that this is remunerated appropriately. You have the option for this additional DCC work to be paid at the appropriate rates outlined in BMA consultant rate card, with the SPA work “time shifted” and done at a time of your convenience. Alternatively, you can request that future DCC work is cancelled for you to take the SPA time. It is important that any DCC activity that is to be cancelled is agreed upon at the time of the employer request. Remember this is not annual leave and there is no compunction to give 6 or 8 weeks’ notice.
Employers are not entitled to cancel off-site private sessions
Under the terms of the consultant contract, an employer is not entitled to unilaterally dictate to a consultant that they should cancel a private session which is agreed in their job plan.
Private practice sessions are time when you do not work for your employer, staffing gaps due to industrial action would not give employers the right to demand the cancelling of private sessions to provide cover.
Employers should only cancel leave as a last resort
Employers will have advance notice of strike days and should make arrangements which don’t involve cancelling annual leave to ensure continuation of services to patients. As such, it should not be necessary for employers to try to cancel your leave. Seeking to cancel annual leave should be a last resort only after all other options have been considered and exhausted. If your employer seeks to cancel pre-booked leave, you should get in touch with BMA advisers directly on 0300 123 1233.
Employers can cancel pre-booked days of study leave to meet service requirements
However, an employee who has their study leave cancelled has a good argument for asking for reimbursement of any reasonable losses they suffer. As above, this should only be considered as a last resort after all other avenues (such as cancelling routine activity) have been exhausted.
Consultant clinical academics
The guidance above applies equally to consultant clinical academics employed in the NHS on an honorary contract. The honorary contract and Schedule 23 of the 2003 consultant contract make clear that consultant clinical academics are subject to the same relevant provisions as their NHS consultant colleagues in respect of covering for absent colleagues, job planning, additional programmed activities, and working in premium time and on-call. If your NHS employer seeks your agreement to provide cover for absent junior doctor colleagues, they may also need to seek the agreement of your university/HEI employer if this departs from your usual job planned activity.