The cliché of an NHS consultant who spends the majority of their working day at St Elsewhere, while the team are left behind to look after NHS patients, may seem outdated, but concerns about the potential or perceived conflict between NHS and private work are as real as ever. The overriding principle remains the same: provision of private care should not prejudice NHS service and interests.
Salaried consultants were given the right to engage in private work with the launch of the NHS. This was to ensure that hospital consultants would work within the new NHS system, avoiding the development of a two-tier system. There was concern that the profession would fail to engage, due to a lack of enthusiasm – endangering the whole project. Although these original concerns are no longer relevant, controversy – and a tension between private and public work – has remained a common thread. In particular, the underlying concern that consultants’ interest in their private practice creates a lack of incentive to carry out NHS work. In 2000, a House of Commons Health Committee report concluded it was impossible to measure the degree of conflict between the two.
If you intend to work in both the private and public sector, there are a number of things to consider:
The contractual relationship with your NHS employer
During the job planning process, you should discuss with your NHS employer the type of private work you intend to undertake and the proposed timetable. You can work together to agree how this will work alongside your NHS commitments and in line with trust policy. It would be unusual to schedule private work within NHS time, although it may be possible to make such provisions if a prior arrangement is made. Find out more about how to manage your work schedule here.
The common theme across the jurisdictional codes of conduct is that public sector work must take priority over private. There may be the rare situation when you are called to deal with a private emergency during NHS time, but regular incidents will cause you difficulties.
Undertaking private work using NHS facilities
You should only attempt to do private work in an NHS hospital with prior agreement of the trust. It is ultimately up to the organisation to determine what private care can be undertaken and which staff or equipment can be used. It is important to remember that private care should not prejudice NHS service provision.
Influencing patient choice
Even if you maintain the two areas of your practice in distinct locations, there are additional pitfalls to consider.
Imagine the scene: you are in your outpatients’ clinic and a patient asks about waiting times, and the conversation moves onto whether it would be quicker to have the procedure performed privately. Did you raise the subject or did the patient? Were the waiting times you gave an accurate reflection of current times within the department?
The General Medical Council’s explanatory guidance on financial and commercial arrangements and conflicts of interest (2013, paragraph 15) states:
“You must not try to influence patients’ choice of healthcare services to benefit you, someone close to you, or your employer. If your organisation dispenses medicines, you must not allow your financial or commercial interests to affect the way you prescribe.”
Care needs to be taken to ensure you are not perceived as encouraging patients to use your private service. The guidance is very clear that you must not initiate discussion about the provision of private care or encourage others to do so. Of course, if a patient asks then you are able to provide factual information, and if the patient can obtain care sooner within the NHS but provided by a colleague, then you must inform them of that too.
A potential criticism that may overshadow private work is a concern that a doctor’s actions benefit their private work at the detriment to their NHS work, by, for example, purposefully lengthening NHS waiting times.
Private patients and NHS care
Patients who choose to be treated privately are still entitled to NHS care. This is another contentious area and one where guidance has changed over the years. It used to be that if a patient started their care pathway within the private sector and then chose to revert to the NHS, they had to return to the beginning of the referral pathway. However, this is no longer the case and patients can opt to change. They must be treated in the same way as someone who has always been treated within the NHS, under the same criteria, and join any lists at the same point they would be if their treatment to date had been as an NHS patient.
The old rules were an attempt to resolve concerns that patients could queue jump by being seen initially as a private patient. But on review, it was realised that duplication of care was neither in the interests of the individual patient or of the health service as a whole.
So, do we find ourselves in a situation where the NHS could be handcuffed into providing expensive treatments not usually available as free at the point of care? The answer is no, it is not a case of ‘I have started so I will finish’. If the initial treatment planned or commenced would not normally be funded by the NHS, then the patient will be offered the alternative treatment that would usually be available. However, a patient may apply for their case to be considered for individual funding.
You must remember that although a patient who has received private care is still entitled to use the NHS, a patient cannot be both a private and public patient for the treatment of one condition during a single visit. NHS and private care should be delivered separately – a patient cannot pick and mix.
An example provided by the NHS Commissioning Board is of a patient undergoing a cataract operation as an NHS patient and wishing to pay a fee to have a multifocal lens implanted during the surgery, instead of the standard single focus lens.  This would not be permitted.
Co-funding is the term used when part of an episode of care is funded by the NHS and part-funded privately by the patient. As a general rule, co-funding is contrary to NHS policy, although there are limited forms permitted. For example, in the situation where a patient is advised of a combination of drug treatments, of which only some are routinely available as an NHS treatment, the patient can choose to pay for the additional ones, as long as there are no patient safety issues in the combination being provided at one time. The patient can also apply to have the non-NHS treatment considered for individual funding, and the fact they are willing to pay for these drugs should have no bearing on the ultimate decision as to whether the drugs will be funded.
Another area that can create tension between the NHS and private sector is if a private clinician asks an NHS GP to prescribe a medication on the NHS. If the drug is normally publicly-funded and the GP considers it to be clinically indicated and is willing to accept clinical responsibility, then there isn’t a problem. Issues can arise when communication between the consultant and GP fails, and the GP is left unclear as to the management plan and monitoring arrangements.
General practice differs from consultant-led care, in that the GP contract does not allow an NHS GP to privately provide any care that would ordinarily be available on the NHS to patients registered on their NHS list.
In conclusion, the top tips to follow are:
• Provision of private care should not prejudice NHS service and interests.
• Work in partnership with your trust to prevent conflict between NHS and private care.
• Public facilities, staff, and services can only be used for private care with prior agreement of the NHS organisation.
• Do not initiate discussion about private services during NHS care.
• Ensure that information provided is accurate.
 A Code of Conduct for Private Practice: Recommended Standards of Practice for NHS Consultants. DoH. January 2004
Health Committee (2000) Consultant’s Contracts third Report- Session 1999-2000. London
Private Practice and Consultants: In-depth. Croner. October 2017.
Financial and commercial arrangements and conflicts of interest. GMC. April 2013
Commissioning Policy: Defining the boundaries between the NHS and private healthcare. NHS Commissioning Board. April 2013
 The Interface between the NHS and Private treatment: a practical guide for doctors in England, Wales and Northern Ireland. BMA. September 2009