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MTAS and the GMC

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Deaneries for Reform? PDF Print E-mail
Wednesday, 20 January 2010
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Should Deaneries be subject to Employment Agency legislation? Should they become Employers of doctors-in-training? What are the biggest problems with recruitment?

The recent attempt to change the legal position of Deaneries has left more questions unanswered than ever before. The Remedy committee have summarised the key points that we would like to see addressed in the coming months.

We now invite feedback and further suggestions from our supporters, which we will collate and review.

We would be grateful if you could send suggestions to us at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it   by 15th February 2010. Or you can add your comments at the foot of this page.

So what is a Deanery anyway?

Postgraduate medical Deaneries first came into being at the Christchurch Conference in 1961. They were associated with university medical schools and had responsibility for overseeing the education and training of junior doctors employed by the NHS. They had no role in recruitment of doctors, which was managed by the individual NHS hospitals. Deaneries first became involved with recruitment as part of the Calman reforms of mid 1990’s, which created the new grade of Specialist Registrar; postgraduate Deans were to be responsible for recruitment to this new grade. At the same time a series of reorganisations, rationalisations and changes decisively transferred control of Deaneries away from Universities and towards the NHS.

The history has been nicely summarised in Chapter 1 of Hastie Hastie and Jackson (visible in the Google Preview)

Many believe that Deaneries have now become the de facto HR wing of the Strategic Health Authorities. The overarching body linking Deaneries is COPMeD - the Conference of Postgraduate Medical Deans. It provides a forum in which members can meet to discuss current issues, share best practice and agree a consistent and equitable approach to training in all Deaneries. But each Deanery has strong links to its local NHS provider.

Contractual Relationships between Doctors and Deaneries

The present interrelationships between Deaneries, Trusts and Doctors are complex and tortuous. Doctors are employed by Trusts, and receive a contract of employment from a Trust. A contract of employment is a clearly-defined relationship between two parties setting out the duties and responsibilities of each and which has is governed by well-understood legal precedents.

But the contract between Deaneries and Doctors is not a contract of employment; it is a 'Training Contract'. This is a poorly-defined concept.

The conditions of taking up a Training Post are given in Appendix 2 of the Gold Guide.

By accepting an offer of a training post the doctor agrees to be a safe doctor, to respond to patients needs equitably, to work effectively for their employer, to keep their learning portfolio up to date and to contribute to the quality improvement of training. The doctor also agrees that in the event that he or she fails to meet these requirements they will have to meet the Postgraduate Dean to explain their reasons. The agreement between Deanery and doctor states repeatedly that it is not a contract of employment.

Offers of Training posts sent out to succesful applicants typically state that the Deanery is "... pleased to offer you an allocation to a core training programme in [speciality] commencing [ ]. This is a firm allocation to a training programme... Please note that this allocation does not constitute an offer of employment. An employment contract detailing the terms and conditions of employment, and confirming your actual start date, for your first placement will be issued by the responsible employing organisation in due course.

And in case there is still any doubt the Gold Guide, para 6.5 hammers home the message that "An allocation offer for a training programme following the selection process is not an offer of employment. This can only be made by an employer..."

There can therefore be no doubt that a doctor on a training programme has no contractual obligation to Deaneries to provide a clinical service - they have this obligation to their employer - and the sole nature of the trainee-Deanery contract revolves around training.

So if a doctor in a training post wishes to no longer provide service - for example to take an alternative post elsewhere, or to leave at the end of the period to which he is contracted to a particular Trust, or to go on an OOPE - then what action could a Deanery take against him or her? The normal function of damages for breach of contract is compensatory. Damages are awarded, not to punish the party in breach, or to confer a windfall on the innocent party, but to compensate the innocent party and repair his actual loss. So what loss is that?

The relationship between Deaneries and Trusts also has features that are slightly opaque. For example Deaneries have been known to require their trainees to attend a 'mandatory training courses' or an ARCPs at fairly short notice, often less than the 6-week period required under the standard Terms and Conditions of Employment. Under these situations they play the 'Training Trump Card', which leaves the Trusts with a service gap. This has significant impact on Trust finances as well as service targets.

One possible alternative model would be for Deaneries to take on the role of employer. And another model would be for a single contract of employment to be issued by a Lead Trust which could then sub-contract to other Trusts on a rotation. This would have significant advantages for doctors, who would have a single 5- or 7- year employment contract instead of a series of short-term contracts. It would be especially beneficial to those needing to show a credit history to a lender, and it would also solve problems for doctors on maternity leave or sick leave who suddenly find themselves at the end of their short-term contract. It would also prevent the mistakes around tax codes and incremental dates that sometimes affect doctors and produce cash flow problems.

Another model that is being examined is that Trusts could organise training programmes themselves without Deaneries. There are certainly precedents for this - many SHO rotations were managed by Trusts prior to 2007 and worked extremely well.

'The Gold Guide' - guidance or rule-book?

There are some who believe that the Gold Guide is an integral part of the Terms and Conditions governing the contract between the various parties, and that it has to be followed to the letter. There are others who believe that the Gold Guide is merely a guide, and that individual Deaneries can follow it or not, at their own discretion. There are also those who hold both of these two positions simultaneously, depending on whether or not it suits them at the time.

So which of these is it? We think we should be told.

Recruitment and Employment Agency legislation

The Employment Agencies Act 1973 defined an “employment agency” as being a business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) which provides services (whether by the provision of information or otherwise) for the purpose of finding [persons] employment with employers or of supplying employers with [persons] for employment by them". Employment Agency legislation confers a series of protections on the persons finding employment.

These protections have been well documented by Remedy, by the BMA and also by NHS Employers.

In summary, the legislation requires that workseekers are told where and when they will be working, what sort of work they will do and how they will be paid. It explicitly forbids agencies from subjecting (or threatening to subject) a work-seeker to any detriment if the work-seeker gives notice to terminate any contract between the work-seeker and the agency. And it provides specific protections regarding confidentiality.

The protection that this legislation offers to doctors should not be given up lightly.

The government recently attempted to introduce an amendment which would exempt from the Employment Agencies Act This was opposed both by Remedy and the BMA who nicely summarise the legal points.

One key point is that the proposed exemption would have covered:-

"... services provided by an organisation for the purpose of finding doctors and dentists postgraduate training and employment with organisations providing postgraduate training and employment or of supplying organisations providing postgraduate training and employment with doctor and dentists for postgraduate training and employment with them.

This is such a poorly-worded exemption that any traditional locum agency could claim exemption from the Act - our legal council has affirmed this view.

Unfilled places on training rotations

The rigid structure of training programmes post-2007 has exacerbated gaps and unfilled places on training programmes. Changes to immigration law have compounded the problem. When service gaps exist then there is a significant impact on the remaining trainees. Often their training can suffer as a consequence, since they may be redeployed to out-of-hours work and consultant:trainee interactions are reduced.

But it is now unclear what happens to the salary of the 'missing' doctor, and it is also unclear who - Trust or Deanery - has the onus to fill the empty jobs.

Inter-Deanery Transfers and OOPEs

MMC created training programmes that lasted a long time; but life does not always move in straight lines. As a result it has been accepted that doctors in a training rotation can transfer into another one partof the country to another when their personal circumstances change. The right to do this is based in part on the 'discretion' of the Deanery, and is likely to be subjective. Some objectivity and transparency is essential.

A strong case can be made for the 'window' of inter-deanery transfers to take place prior to the recruitment process, rather than after it when most of the places have been filled. Holding recruitment prior to IDTs can make it almost impossible for individuals to get a transfer.

There is also an element of 'discretion' in the decision to permit doctors-in-training to take time out to pursue an Out-of-Programme period of training (OOPE). Given that the current basis of the 'training' contract is to facilitate training then it could be argued that no reasonable requests of OOPEs should be denied on the basis of the needs of the clinical service.

Intra-Programme allocations

Most Training Programme Directors go to great lengths to ensure that trainees are matched with hospital jobs that are relevant to their individual needs, including their subspecialty interests and their geography and personal lives. A small number of Programme Directors do not do this, and match doctors to hospitals on the basis of their rankings. This is underpinned by the assumption that the 'best' trainee should get the 'best' rotation. This assumption may be conceptually flawed, but it is also deeply unfair; the 'best' rotation for one person may not be the 'best' for another. This is particularly important when there are long distances to travel.

Remedy believes that the process for intra-programme allocations should take the individual preferences of doctors into account and should not be based on arbitrary rankings of the posts.

Training Posts with no Educational Value

Remedy has received letters of complaint from doctors placed in hospital jobs where they do not receive adequate or relevant training. The commonest reason given for this is that the timetable for the doctor does not permit him or her to gain the specific educational competencies that they need in order to fulfil the requirements of their specialty curriculum.

We see this as a direct conflict between the needs of training and the needs of the clinical service.

Issues around recruitment of doctors

Remedy regularly receives complaints from doctors about aspects of the recruitment system. Many of the problems stem from the MMC decision to synchronise recruitment across the country into once-a-year whammies, rather than spreading recruitment out throughtout the year. Remedy would like to highlight some specific areas.

1. Applicants who wish to apply for a particular rotation should be free to do so. There are very few advantage to candidates in the current 'conglomerate' Units of Application (UoA) which combine several unrelated training programmes into a single UoA, and the clear message from the various MTAS enquiries was that the size of UoAs should be reduced. Despite that some Deaneries continue to recruit to conglomerates, and one of the prime motives behind is to use the popular rotations as a carrot to entice applicants into the unpopular rotations.

Remedy believes that the unit of application should be an individual training programme.

2. The problems of 'stick or twist' need to be resolved. Those who argue that 'twas always so" must accept that recruitment in the past was more frequent and was to smaller UoAs.

MTAS was designed to solve the difficulties around matching and allocation. It is a shame that a badly-managed project has managed to close everybody's mind to the potential advantages of this approach.

3. Many of the problems around recruitment and InterDeanery transfers could be resolved if there was recruitment at a more senior level than ST3. This would allow gaps in programmes to be filled, and would also ensure that those doctors who were ineligible for InterDeanery transfers would be still be able to move.

A Deanery Code of Conduct

There has been talk of a 'Code of Conduct' for Deaneries. Whilst we welcome the idea that Deaneries should conduct themselves as well as possible then we are concerned that a 'Code' will not be enforceable. Doctors with justifiable grievances need to have recourse to a process enshrined in law then canbnnot be easily evaded.
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