The co-operation and competition panel has said that restrictions on consultants working for other providers during their non-contractive hours are anti-competitive and against NHS principles.
The ruling will bring the panel into conflict with NHS trusts which believe a conflict of interest arises when a consultant is contracted to work for one trust but also spends some of their non-contracted hours working for another, or for the private sector.
The issue particularly affects consultants treating NHS patients while working at private treatment centres.
Some trusts have sought to restrict the ability of consultants to work for other employers in their free time, but in a report published today the panel said such restrictions were against NHS principles and rules of co-operation and competition.
The report identifies two exceptions: where patient safety is a concern - for example if a consultant works long hours outside their contract - and where a consultant holds a “strategic management position” in more than one organisation providing NHS funded care.
The Foundation Trust Network has warned the introduction of service line management in trusts means the distinction between strategic management and clinical roles has been blurred, but the co-operation and competition panel’s report does not address that point specifically.
Panel director Andrew Taylor said: “The panel believes restrictions on the use of a consultant’s non-contracted hours which are based on concerns for patient safety will be necessary only in very exceptional cases and such restrictions will be part of a broader package of measures to address such concerns.”