Cover for absent colleagues takes many forms. It can:
- comprise short-term cover or unpredicted absence, such as: sickness, or longer-term cover for planned absence such as maternity leave, surgery
- it can also include covering vacancies resulting from a failure to recruit or a delay to a new consultant starting.
An overview of covering for colleagues
There needs to be clear and understood limits to the level of cover that any individual can be expected to provide.
What this guidance covers
This guidance will outline the contractual situation and the kinds of issues that need to be considered to ensure that the provision of cover is appropriate, sustainable and properly remunerated.
What this guidance does not cover
Situations in which consultants are asked to cover junior doctor colleagues. In that instance there is no contractual obligation on consultants and the employer should have an agreed policy to address emergency cover for absent trainees (also known as 'acting down').
The amendment to the National Consultant Contract in Wales contains a specific provision for enhanced payment where a consultant agrees to be resident on call in such circumstances [paragraph 3.8].
What your contract says
To understand what the obligation entails, you have to consider what is meant by ‘practicable’. There is no strict definition of ‘practicable’ but in general terms it means something close to ‘able to be done’ or ‘able to be put into practice’.
Whether something is practicable or not in a given situation will depend on the circumstances of that situation, including your personal circumstances.
If, for example, you have caring responsibilities towards family members, you may be justified in saying that it is not practicable for you to provide unforeseen, short-notice cover that conflicts with these responsibilities.
Alternatively, if providing the cover requested would result in compromising patient care or safety, then it would arguably not be practicable to provide the cover.
It is worth noting the obligation is to deputise so far as is practicable. This means that if in the circumstances some degree of deputising was practicable, the consultant would be under an obligation to deputise to that extent or for that period of time.
It may not be possible during an absence to cover all services, so decisions will need to be taken as to which services are essential to cover in an already overstretched NHS.
This may well differ between hospitals, departments and individual cases. Many employers find it helpful to agree in advance a policy with their consultants over what will be expected where there is an absence.
In Scotland, gaps may be covered by an irregular leave policy detailing short-term internal locum cover arrangements depending upon rota frequency (where agreed) – check with the LNC or HR department if there is such a policy. Consultants should not be expected to provide cover without agreement and should be appropriately and promptly remunerated. Gaps beyond the scope of any irregular leave policy (or any gaps if there is no policy) are the responsibility of the NHS board management and not the clinicians who provide the service.
Clinicians may be approached by their board to help in such a situation but each clinician has a responsibility to consider such a request carefully in light of their own health and the impact of stretching themselves ever thinner on service safety and sustainability.
Reaching an agreement
The most important factor in any such agreement will be the expected length of period of cover. In instances which are unplanned and unexpected the period of cover should be short.
Length of period for cover
In such instances, it should not be necessary to provide cover for longer than 48 hours (or up to 72 hours if it includes a weekend or public holiday). By then, your employer should have rescheduled the clinical work, or made arrangements for a locum to take over.
In normal circumstances, we consider an employer would have difficulty arguing that provision of cover for greater than 72 hours was a ‘practicable’ arrangement.
With regard to the hiring of locums for cover, the cost of breaking any local ‘locum cap’ rates should not outweigh the wellbeing of the consultant workforce. Employers should pay what is required to keep both patients and staff safe.
In the case of long-term foreseen absences (e.g. maternity leave, identified long-term sickness absence, etc.), the onus to provide cover rests with the employer.
If a group of consultants are willing and able to cover the work, the employer will enter into an agreement with them about how that additional work should be shared and remunerated. Some colleagues may not feel able to provide any additional work in this situation and they are not contractually obliged to do so.
In England, you are encouraged to come to agreement locally with your employer on what is deemed to be practicable, what the proposed cover entails, that the work is of a suitable nature to be covered by you, and that the right clinical need has been prioritised in a situation where clinical personnel is limited in number.
In establishing suitability, due regard must be given to your duty to recognise and work within the limits of your professional competence, as well as your assessment of the likely impact on your wellbeing. It may be necessary to agree to re-arrange other duties (e.g. cancelling a clinic) for you in the short term in order to provide adequate cover for the work which it is agreed should be prioritised.
In Scotland, local policies tend to refer to covering two cycles of the departmental rota – refer to your local policy for detailed arrangements. Cover for urgent and emergency care must take precedence, therefore the on-call rota (or out of hours shift) cover should be considered first. Capacity to cover elective work should only be considered once urgent and emergency care is safely covered.
Where there is an ongoing question over capacity to cover emergency or urgent care, this must be escalated through line management to senior management in writing by the consultants in that service and the officers of the consultant subcommittee (or equivalent) should be informed. If a locum is arranged by the employer, they may be from outside the board or trust, or there could be internal locum cover.
Remuneration and time off in lieu (TOIL)
It is not possible to schedule PAs/sessions for unexpected absences into prospective job plans. There are a number of ways of addressing the issue of compensation for additional, unplanned hours of work.
The 2003 English contract and amendment in Wales are 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 duties flexibly by agreement so that if you provide additional cover for an absent colleague you can take time off in lieu later.
If there is concern that TOIL may not be feasible or honoured, then it may be possible to negotiate to be paid at consultant locum sessional rates for the additional time worked.
Duties may be re-arranged temporarily so that, for example, extra Direct Clinical Care (DCC) PAs/sessions are worked to cover the absence, with Supporting Professional Activity (SPA) time shifted to be taken at a later, more convenient date, perhaps in lieu of DCC PAs at that time.
This is not appropriate as anything other than a very short-term solution, as this will impact on the consultant’s ability to provide a safe service.
Any SPA time used to cover clinical sessions is postponed, not forfeited, and should be compensated by cancelling equivalent periods of later elective activity at mutually agreed times with management to facilitate this. It is not a way to achieve more elective capacity in a service.
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 if the absence persists, the question of additional remuneration may arise if you choose to offer the additional work, 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.
In Scotland, doctors may offer to provide cover for a longer period, though financial remuneration for this work is subject to agreement of an enhanced rate, possibly with additional time back. Where a rate is agreed with a clinician or group of clinicians it should be specified in writing before commencing the work.
These rates should be unattractive to management so there is no risk they become a semi-permanent arrangement by default. If a rate cannot be agreed, the health board retains the responsibility for arranging cover. You should check with your LNC for local arrangements.
GMC requirements and impact on service
The clinical and professional responsibility consultants have for their patients does not extend to patients that are not in their care. It does not also mean that a consultant is required to provide cover indefinitely.
Consultants should ensure their actions, particularly any refusal to provide cover, do not conflict with their obligations to patients under their care and their more general obligations as set out in the GMC’s Good Medical Practice.
For example, their general duty ‘to protect and promote the health of patients and the public’ (Good Medical Practice, ‘Duties of a doctor registered with the General Medical Council’), and their more particular duty to ‘…offer help if emergencies arise in clinical settings or in the community, taking account of your own safety, your competence and the availability of other options for care’ (Good Medical Practice, paragraph 26).
Working longer hours
Consultants should not be coerced into working longer hours solely out of concern that they may be referred to the GMC by an employer.
Consultants need to be mindful that excessive and onerous working patterns may have a detrimental impact on their wellbeing and ability to deliver patient care safely.
The GMC requires you to take prompt action if you think patient safety is being compromised.
If the issue of systemic workforce gaps persists, employers should also look at alternative means of dealing with consultant absence.
For example, they should consider whether an Associate Specialist or Specialist Registrar who normally works alongside a consultant in a clinic could continue to run that clinic with the supervision of an on-site consultant.