OPINION

Published: 27/10/2005 Volume 115 No. 5979 Page 17

The Department of Health has recently announced the list of successful private sector organisations that will be invited to negotiate the next wave of diagnostic and imaging contracts with the NHS.

Apart from positron emission tomography (PET) provision, which is massively under-supplied and only provided by a handful of teaching hospitals, private sector companies have been exclusively chosen to meet the demand for magnetic resonance imaging, computerised tomography, endoscopy and a galaxy of other investigations needed to achieve the 18-week target by 2008.

Naturally, foundation trusts are feeling a bit sore about this (perhaps their joint venture bids with private partners were not considered good enough).

Of course, there are other priorities, and a much bigger picture to look at - the deliberate growth of contestable private services that could stimulate sluggish NHS performance.

However, many foundation trusts regard themselves as part of the vanguard, chosen to reform 'from within', and some saw the development of public-private partnership as a vehicle for delivery.

The enthusiasm of the private sector to develop equity partnerships, bringing together public sector values with private sector efficiency, tends to indicate they might also prefer this approach.

While understanding that different policy drivers may be at work, I wonder how far the DoH, trusts, private companies and other major players have considered the issue of medical manpower and, specifically, the availability and use of NHS consultants to work for the private sector.

If NHS trusts are to be frozen out of tenders to supply services to NHS patients, can we be so surprised if they seek to limit the availability of their staff for private gain? This is an area which many people are afraid to raise, let alone explore, but its significance will increase as local NHS trusts lose referrals and budget pressures rise.

If private sector companies are starting to induce, allure or invite NHS consultants to work on contracts won from the NHS, what is the position of the employing NHS authority? To anyone working outside the NHS the position would be very clear and simple. Try imagining an engineer at MercedesBenz moonlighting for BMW. It would never happen. And yet there are signs that it is starting to happen in the health service as consultants are approached. NHS trusts would be well advised to seek legal advice.

The introduction of the consultant contract and accompanying code of conduct for private practice were negotiated before the formal introduction of independent treatment or diagnostic centres. The contract was negotiated on the need to separate out NHS work from private work undertaken by NHS consultants.

The concept of NHS work being undertaken in the private sector by NHS consultants introduces a new complexity. Bizarrely, consultants in a particular NHS trust could end up competing against their employer, ultimately reducing services and staff in their own organisation.

Those who want competition surely can't have it both ways?

The consultant contract gives NHS employers enough authority to manage this possibility. While it states NHS work must take precedence over private work, this may not be enough. However, the consultant contract goes on to say that consultants have to declare any relationship with an external organisation which may conflict with the policies, business activity and decisions of the employer.

Further, any financial advantage he or she may gain as a result of a privileged position within the employing organisation must be disclosed and agreed upon. All of these terms are supported by the overriding common law duty of mutual trust and confidence on the part of the employer and employee.

All clear then? Well, yes and no.

NHS employers need to take a clear line on the new contract and local competition. I have recently finished a series of meetings across different SHAs and asked the audience how many employers had established consultant objectives and were actively managing them as part of the new contract. It would appear very few are. Have local employers already neglected their duties in the contract? If so, what hope is there?

Optimistically, quite a bit. Very few doctors actually wish to compete openly against their organisation and, by doing so, reduce the effectiveness of their own clinical specialty. There have been plenty of examples of NHS consultants raising this issue in the press although, more often than not, this relates to private companies employing non-NHS staff.

The contestable market is new and emerging. We need to think very carefully about the forces that have been unleashed by the process. While those that want competition should not complain about organisations protecting their positions, some consultants are now thinking very imaginatively about the future.

Perhaps doctors' chambers do have something to offer. Who would not see the advantages of professional fulfilment, freedom from bureaucracy, autonomy and a direct link between effort and reward as an attractive proposition?

Of course, chambers may well be over-emphasised and only relevant to the cutting specialties in the short term, but they potentially offer the NHS an interesting way forward which is less 'fixed asset' hungry and more nimble on its feet as far as patient pathways are concerned.

The only problem with this is whether consultants are prepared to move outside the NHS and take a risk on their pensions. There may be other alternatives, including joint ventures with either the private sector or GPs who see practice-based commissioning as an opportunity not a threat. .

Mark Britnell is chief executive of University Hospital Birmingham foundation trust and a senior associate at the King's Fund.