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Breach of contract and discrimination challenges
The State and health service employers will ultimately have to honour the 2008 Consultant Contract terms. The decision by a large number of IHCA members to resort to legal action against the State will force the issue to resolution over the next year.
Two IHCA members were forced to the steps of the High Court to defend Employment Appeals Tribunal (EAT) determinations in their favour, because of the HSE’s subsequent appeal. However, in January, the HSE withdrew its appeal at the last moment. The unlawful salary deductions have since been paid to the two consultants, as provided for in the original EAT determinations.
Separately, hundreds of IHCA members have initiated High Court proceedings for breach of contract. Ten lead cases have been selected to decide the breach of salary issue in the High Court, commencing in February 2018. The Notice for Particulars in each case was submitted in September, with work on defences and discovery to be advanced between October and January.
Discrimination against new-entrant consultants must also be ended if the State hopes to compete for consultants in a global, competitive international market for medical talent. Yet the State persists with its discrimination, despite the obvious consequences for patient care. The HSE in recent months issued revised salary scales for new-entrant academic consultants, which only partially reverse the 30 per cent salary cuts unilaterally imposed by the State in October 2012. The failure to align all new-entrant consultants with their colleagues perpetuates the discrimination, which is exacerbating the consultant recruitment and retention crisis. The Association has established a committee to advance further actions to end the discrimination.
Recruitment and retention crisis
The State and employers are in persistent blatant breach of the 2008 Consultant Contract. This breach of trust, combined with the ongoing discrimination against new-entrant consultants and the failure to fully reverse the FEMPI salary cuts, has created an environment where Irish health services cannot recruit and retain a sufficient number of high-calibre consultants to provide timely care to patients. In May, the Public Service Pay Commission confirmed the hospital consultant recruitment and retention crisis based on the irrefutable evidence provided to it by the IHCA on the lack of international competitiveness due to the adverse terms and conditions currently applying in our acute health services.
The fact that 15 per cent of the permanent consultant posts in our acute services are either vacant or filled on a temporary basis confirms the scale of the problem. This is far greater than applies for any other professional group in the public service. It is unacceptable that an estimated 400 approved, permanent hospital consultant posts are either vacant or filled on a temporary/agency basis, especially as our acute services have only about two-thirds the number of consultants recommended in the 2003 Hanly Report. Currently, in some specialties we have one-third to half the number of consultants on a per capita basis compared with the recommended international norms. This false economy must be ended, as patients are being deprived of care, while medical agency costs are in the region of €115 million per year.
In response to these crises, the HSE and hospital employers have appointed 65 locum doctors who are not on the Medical Council’s specialist register to consultant posts, in breach of the HSE’s basic requirements. This is testament to the failure of current health service recruitment policies. Meanwhile, our doctors-in-training, aghast at this behaviour, will join the ongoing exodus of highly-trained doctors. To plug the expanding gaps in consultant and NCHD staffing, the State and employers are paying multiples of the official salaries to locum and agency contract holders.
Structured weekend work
During the past year, a significant number of acute hospitals commenced payment of structured weekend overtime premium rates to consultants, as provided for in the 2008 Contract. However, management in some hospitals and services continue to be in breach, where they are not paying certain specialties to provide such structured input. In other cases, some hospitals have yet to pay any consultants the premium rates. These cases are being addressed by the Association, together with the impacted members.
Hospital Groups do not have a legal basis and many are operating without proper boards. A clear set of measures is required to strengthen hospital and Hospital Group governance. It is essential that the current focus is rebalanced to facilitate increased clinical governance input at board and other levels to prioritise the delivery of safe, high-quality care to patients.
It is also critically important that sufficient front-line resources are provided to Hospital Groups, and individual hospitals within Groups, so that they can treat a growing number of patients. The experience in establishing Groups to date has confirmed the overwhelming importance of sequencing the restructuring of any acute services in a manner that ensures that the capacity is maintained and increased where demand for care is growing. The key concern with the Groups continues to be the lack of sufficient front-line resources to facilitate the delivery of high-quality care to patients without delays.
The mismatch between the geographic areas covered by Hospital Groups and Community Healthcare Organisations (CHOs) is leading to ineffective management of resources, duplication of bureaucracy and services and avoidable delays in caring for patients. The IHCA has strongly recommended that the coverage is aligned through the merger of the Groups and CHOs into fewer entities without delay.
The job descriptions confirm that it is essential to provide support to clinical directors, through back-filling equivalent to 50 per cent of a consultant post, and the provision of necessary administrative, business and secretarial supports. This is essential to permit sufficient time for clinical directors to carry out the demanding responsibilities of the role. It is clear that the intended supports are not being provided in many cases.
Following the establishment of Hospital Groups, and as clinical director terms of appointment are completed, new clinical director appointments arise. Hospital Groups need to ensure that improved clinical governance guides their evolution. This needs to be reinforced by enhancing the role of clinicians in the management and strategic direction of their hospitals, as provided for in the 2008 Consultant Contract.
Despite the clear provisions in A Vision for Change (VFC), which constitutes the definitive Government mental health policy, the HSE has appointed administrators as the heads of mental health in place of Executive Clinical Directors (ECDs). This is contrary to Government policy, as outlined in VFC and the ECD job specifications, which require ECDs to provide overall clinical and operational leadership in the management of mental health services.
Grievance and disputes procedure
An increasing number of grievance and dispute cases have been resolved by the IHCA on behalf of members with individual employers in the past year. Access to this procedure has proved beneficial for the majority of complainants in seeking to resolve issues that impact on working arrangements. Matters that have been addressed satisfactorily include failure to make correct salary and allowance payments, rest-day entitlements, C-factor payments and other contract matters.
Consultant Applications Advisory Committee (CAAC)
In the past year, the Committee approved 90 consultant posts, 40 replacement and 50 new posts. In addition, it approved applications for contract changes as follows: Two from A to B; one from A to B*; two from B to B*; two from B* to B; two from Category 1 to Category 2; one from Category 1 to B; and one from Category 2 to B*.
Type C Committee
In the past year, the Type C Committee met eight times and recommended 31 applications for change from Type B to Type C contracts. The appointment of Type C consultants increases the number of patients who can be treated and reduces waiting lists. The designation of posts as Type C also increases Ireland’s ability to recruit consultants, at a time when a significant number of advertised posts are not being filled due to the lack of eligible candidates, and because our highly-trained doctors are taking up positions in other countries that are offering better terms and resources to treat patients.
In conclusion, last year was a busy year for the Association, the National Council and its Executive. However, the Association’s endeavours in representing its members and in promoting pragmatic development of healthcare in Ireland are meeting with increasing success.