The ability of NHS consultants to carry out private practice in their non-NHS time is an essential part of the flexibility and freedom built into national contracts. This guidance sets out the rights and responsibilities of consultants in relation to private practice, as well as addressing issues of conflicts of interest.

What does the consultant contract say?

All the national consultant contracts include clear provisions that set out the relationship between NHS work, private practice and fee-paying services (Schedules 6 and 9, England and Northern Ireland; Section 6, Scotland; Addendum Chapter 9, Wales).

The key contractual points are:

• you must ensure that your private practice or fee-paying services do not result in a detrimental effect on NHS patients or services, nor diminish the public resources that are available for the NHS. There must be no conflict of interest between your NHS and private work
• you are obliged to disclose any private practice commitments to your employer. You do not require their permission to undertake private practice
• the employing organisation may, but is not obliged to, offer the consultant the opportunity to carry out under these Terms and Conditions (including the remuneration arrangements contained in these Terms and Conditions) up to one extra Programmed Activity per week on top of the standard commitment set out in his or her contract of employment, subject to the provisions in paragraph 7 for consultants who have previously held a maximum part-time NHS consultant contract

Furthermore, there is nothing in the consultants' contract terms and conditions, or the private practice code that states private practice cannot be undertaken while on maternity leave. We would therefore advise that, provided the doctor complies with the normal private practice regulations and keeps their employer informed, then undertaking some private practice while on maternity leave is acceptable.

The code of conduct for private practice contains additional obligations relating to scheduling and best practice for arrangements. Compliance with this code is one of the criteria for pay progression.

NHS patients

Consultants should not spend time discussing private treatment with patients during NHS consultations. When patients raise questions about the availability of private treatment, it is advised that consultants refer enquiries to their private secretaries. Consultants may briefly answer factual questions about the availability of private treatment and should then inform the patient’s GP about the request for information.

Requests for second opinions in the private sector should generally be complied with unless there are good reasons to justify a refusal. Patients are entitled to seek a second opinion on a private basis and the treating NHS consultant should facilitate this where possible or liaise with the patient’s GP about arranging a private referral.

Consultants may not use NHS staff for the provision of private services without the agreement of their NHS employer. The consultant responsible for admitting a private patient to NHS facilities must ensure that the responsible manager and any other staff assisting in providing services are aware of the patient’s private status.

Key concerns for consultants

My employer says I can’t deliver private practice for another employer while working for the NHS. Is that correct?

No, that is not correct.

We are aware that some employers have suggested that if an NHS consultant undertakes private practice, while also engaging in NHS-funded work, that this constitutes a breach of their duty of fidelity. This is not necessarily the case.

In 2009, the Co-operation and Competition Panel carried out a study on the issue. The panel concluded that restricting consultants' ability to work for other providers of NHS-funded services in their own time would reduce patient choice, limit innovation, and undermine investment. It recommended that consultants should only be restricted from working for other providers in very limited circumstances.

The BMA also took legal advice and our position is that:

• consultant contracts only restrict private practice where this could diminish overall NHS services, rather than the services of a single employer. 

If your employer seeks to restrict your private practice activity, you should take advice from your local BMA adviser. You should also inform your LNC (local negotiating committee) of any difficulties you experience.

What should I do about my secondary employment if I am on sick leave?

Make sure you check your contract prior to undertaking secondary employment whilst on sick leave in addition to the sickness absence policy. In some cases, you may have to speak to your line manager and GP or Occupational health but you may be able to undertake private practice depending on the reason for your sickness absence.

If you need permission make sure this is done prospectively where possible. If this is not possible, make sure you have a colleague who is able to see your patients whilst you are away, as you would do when you take annual leave.

What about managerial duties undertaken for a private employer?

The situation is less clear where the consultant's private practice work includes managerial or strategic advice for third parties or for their own businesses.

The terms of the consultant contracts that authorise a consultant to undertake private practice are limited to the medical services defined as "private professional services". Any work that does not fall within this definition is not necessarily covered by the interpretation set out above and may constitute a breach of duty of fidelity.

Consequently, all consultants spending even a small proportion of time on strategic management duties are advised to proceed with some caution.

What about disclosure of confidential information?

A further factor to consider is the use of an employer's confidential information. Consultants, particularly those in managerial positions, may learn of business-sensitive information belonging to their NHS employer, such as the details behind a bid or tender for services.

All employment relationships have an implied duty of confidentiality not to disclose to third parties, or to use for their own benefit, the employer’s confidential information obtained in the course of employment. If you provide strategic management advice to third parties then the NHS employer is likely to be concerned that there may be some inadvertent exchange of information.

There is an express duty under Schedule 12, Paragraph 8 of the consultant contract "not to disclose any information of a confidential nature concerning patients, employees, contractors or the confidential business of the organisation". A failure to comply with Schedule 12 could mean that the employer is entitled to bring a breach of contract claim.

If you have any other concerns relating to private practice, get in touch with the BMA employment advisory service.