Professional development and education
MECA Clause 9.3 – Mutual Obligations
In particular the employer undertakes to be a good employer and will provide the resources and support reasonably necessary to enable the employees to discharge their obligations under this Agreement.
MECA Clause 35.1 – Quality Improvement
(a) In recognition of the on-going need to improve the quality of clinical services the employer is committed to providing a quality improvement environment which supports openness, honesty and the freedom to identify and admit mistakes or errors of judgement.
and
(c) The employer and employees are committed to fostering this environment and to this end will work together to implement quality improvement initiatives including credentialling.
MECA Clause 37 – Research and Publications The employer shall encourage employees to undertake research relevant to their expertise, experience and employment and to present the results of such research at appropriate scientific meetings and to publish papers and books.
MECA Clause 39 (c) – Professional and Patient Responsibility and Accountability
The parties recognise...that employees are responsible and
accountable to the ethical codes and standards of relevant colleges and professional associations.
MECA Clause 48 – Job Descriptions
Clause 48.2(b) – Section Two contains a recommendation that job descriptions should contain a statement to the following effect: The medical (or dental) practitioner is required to undertake their clinical responsibilities and to conduct themselves in all matters relating to their employment, in accordance with best practice and relevant ethical and professional standards and guidelines, as determined from time to time by:
• the New Zealand Medical Association’s code of ethics; • the practitioner’s relevant medical college(s) and/or professional
association(s);
• the New Zealand Medical (or Dental) Council; • the Health & Disability Commissioner; and
• the employer’s policies and procedures except to the extent that they may be inconsistent with any other provision of this Agreement.
Occasional Employment Advice from ASMS
UPDATED JULY 2014 T O I M A T A H A U O R A
This Standpoint by the Association of Salaried Medical Specialists (ASMS) is about what the Medical Council and the wider profession often refer to as continuous professional
development. In the MECA this is usually referred to as professional development and education and includes continuing medical education (“CME”), sabbatical leave, secondment and professional and organisational leadership.
This Standpoint outlines the various contractual entitlements to CME, secondment and sabbatical under the MECA and places them in the wider context of your own and your employer’s statutory and ethical obligations. It offers our advice on the interpretation and application of your entitlements and identifies a number of problematic issues where caution is called for. This Standpoint also touches briefly on the issue of professional and organisational leadership leave.
This Standpoint replaces previous publications on the same matters and records your entitlements as at 1 July 2013 when the 1 July 2013 to 30 June 2016 ASMS DHB Multi-Employer Collective Agreement (MECA) took effect.
The contractual context
MECA Clause 36.1(a) – Professional Development and Education
The employers recognise the importance of actively encouraging their employees to undertake professional development and education.
We cannot over-estimate the importance of this
acknowledgement by DHBs and their explicit commitment to actively encourage and support ASMS members to undertake professional development and education (PDE).
Implicit in their commitment to “actively encourage” is a corresponding obligation to allocate funds and other resources to enable SMOs to undertake PDE.
Such an obligation is strengthened by a number of other obligations the employers have accepted elsewhere in the MECA, including the following:
MECA Clause 1.4 – Underlying Principles
The parties acknowledge the increasingly demanding environment in which employees are required to practise. Accordingly the parties undertake to do what they reasonably can to ensure the workplace is well resourced, professionally supportive and conducive to a very high standard of clinical practice.
These seven MECA clauses provide a powerful context in which to place your rights to professional development and education and your employer’s obligation to support your PDE. Collectively they also constitute compelling guidance to assist in the interpretation and application of your CME, secondment and sabbatical entitlements. From a legal point of view, those clauses require a liberal interpretation of particular entitlements and will certainly feature prominently in any judicial determination should the Association refer a particular dispute to the
Employment Relations Authority.
The medical council and ethical context
The Medical Council has the statutory responsibility for protecting public health and safety, by ensuring doctors are competent and fit to practise medicine. It has its own set of standards, expectations and rules relating to a medical practitioner’s recertification and CPD.In March 2011 the Medical Council conveniently consolidated its advice and requirements on CPD in its booklet Recertification
and Continuing Professional Development, which is available from
the Medical Council and may be downloaded from its website www.mcnz.org.nz.
If you are not familiar with the Medical Council’s advice on recertification and CPD we recommend you obtain a copy of this publication and read it carefully.
Two statements of the Medical Council stand out:
• All practising doctors are required to participate in CPD so that they can be recertified (issued with a practising certificate) each year.
• It is the doctor’s responsibility to ensure that they participate in CPD, not that of their employer or any other person or organisation.
Nevertheless, in 2009 the Medical Council and all District Health Boards adopted a Memorandum of Understanding which includes (among other matters) the requirement that DHBs shall: • Provide an environment which supports learning and
development and which allows the doctors employed by the DHB to fulfil their recertification and accreditation
requirements.
• Ensure collegial relationship arrangements are in place and that doctors employed in the DHB have access to continuing professional development resources.
Continuing medical education
MECA Clause 36 – Professional Development and Education
36.1Professional Development
(a) The employers recognise the importance of actively encouraging their employees to undertake professional development and education. (b) Employees are entitled to use their accrued continuing medical
education expenses to support secondments (Clause 36.4) and sabbaticals (Clause 36.5).
(c) Where a DHB agrees that employees may use their accrued CME expenses to purchase and own laptops and electronic aids this shall be where the main purpose is to support their continuing medical education and not provided under clause 53.
(d) The provisions of this clause shall not apply to locums or fixed term employees who are engaged for six months or less.
36.2 Continuing Medical Education
(a) The employer requires employees to be fully informed, and where possible, practised in developments within their profession. To facilitate this, employees will be entitled to leave for 10 working days (pro rata for part-time employees) continuing education each calendar year, plus the agreed reasonable travelling time. This provision may be accumulated for three years entitlement. This accumulation may be increased for up to five years subject to submission of a specific plan for the utilisation of the accumulated period and the approval of the employer which should not be unreasonably withheld.
(b) Employees shall be reimbursed actual and reasonable expenses of up to $16,000 per annum (GST exclusive) and accumulated on the same basis as the working days (a) above. This reimbursement is pro rata for part-time employees except that part-time employees whose only income from medical or dental practice is derived from their employment with one employer shall be entitled to the full reimbursement.
(c) Employees who are enrolled in two or more maintenance of professional standards (MOPS) programmes shall be reimbursed up to an additional $500 per annum (i.e, $16,500).
(d) This limit on the reimbursement of continuing medical education expenses in (b) & (c) above will not apply to those employers who do not have a financial limit specified in the applicable previous collective agreement (i.e. Whanganui, Wairarapa and West Coast). The Association and these employers during the term of this Agreement may agree to apply this limit including on an agreed trial basis. The Association and other employers may agree to remove this limit during the term of this Agreement including on an agreed trial basis. (e) Time-in-lieu will be provided for any approved continuing medical
education or professional development activities that are undertaken during weekends or New Zealand public holidays.
Locums or fixed term agreements
Under clause 36.1(d) it is clear that neither locums nor fixed term employees are entitled to PDE and CME under the MECA unless they are engaged for more than six months service. However, permanent employees (and locums or fixed term employees who are engaged for more than six months) are entitled to CME leave and may access their CME funds from the first day of their appointment. Contrary to periodic attempts by some employers, the MECA does not require or authorise a “drip feed” approach that allocates your entitlement progressively throughout the year.
Scope and content of CME
It is a requirement of your employment that you are fully
informed and where possible practised in developments within
your profession. Failure to meet this requirement may be a breach of contract and expose you to disciplinary proceedings for failing to meet all your employment obligations.
PDE and CME are not limited to your daily scope of practice as defined by the Medical Council or your employer’s credentialing process. The phrase ‘within their profession’ recognises the obvious requirement for doctors to be alert to new developments, including debates and controversies, not only within their scope of practice but within the wider medical community. You must also be able to contextualise your patient’s condition and management and this may require you to explore and be familiar with peripheral or STANDPOINT Professional development and education 2
related disciplines that have an impact on the diagnosis and management of your patients.
This raises the question of your employer’s right to question the relevance of the PDE or CME you wish to undertake. As a general rule, an employer is not entitled to decline an application for leave or an activity simply because they consider its content is too far removed from your daily practice or is not sufficiently relevant to the DHB’s “service requirements”. If there is any doubt or dispute about whether the proposed PDE or CME activity is appropriate, it should be resolved in discussion with your clinical director and clinical colleagues. If that does not resolve the matter, it might be referred to the DHB’s Chief Medical Officer/Adviser or the clinical board (or equivalent). Clinical relevance should be determined by clinicians, not by non-clinical managers.
If a dispute were ever to go to court, we would expect any limits on your PDE or CME activities to be determined having regard to the content of your College’s MOPS program and the recertification requirements of the Medical Council, which defines the scope of CPD very widely indeed.
CME expenses and GST
Note that for expenditure that incurs GST in New Zealand, your claim is for expenses net of GST. The GST is paid by the employer and is no doubt claimed back in their GST return.
CPD and general registration
We encourage members with general registration who practise under supervision or in a collegial relationship to discuss and plan their CME and CPD programme with their supervisor or the colleague with whom they have a collegial relationship.
Self-directed CME or mentoring
PDE and CME activities are not restricted to attendances at conferences, workshops or seminars. It may be entirely appropriate to use your leave and funds to undertake approved research or to enter into mentoring relationships, to undertake distance or e-learning or to engage in other types of approved self-directed study.
What is a “working day”?
Your basic entitlement is to ten working days, pro rata for part-time employees. Although the MECA does not define a working day common sense suggests it might be any day on which you were expected or required to be “at” work for your employer.
It is not unreasonable to take half-days for PDE or CME, but it is neither sensible nor reasonable to convert the ten working days to eighty hours a year and require employees to apply for CME by the hour.
CME expenses shared by two employers
Under clause 36.3 an SMO who works “full-time” for more than one DHB is entitled to expenses which in the aggregate are equivalent to the full-time rate of $16,000 p.a. They will be apportioned between the DHBs. It also makes it clear that part-timers with no other medical or dental practice are entitled to the same expenses as a full-timer.
MECA Clause 36.3
Calculation of an individual employee’s entitlement to the expenses shall be on the following basis:
(a) Full-timers shall be entitled to the full amount;
(b) Employees who work for more than one district health board and whose combined job size with those district health boards is full-time (as defined under this Agreement) shall be reimbursed the full amount, with each employer sharing that amount in the same proportion that their employee’s job size bears to the employee’s total job size with all district health board employers.
(c) Employees who work for more than one district health board and whose combined job size with those district health boards is less than full-time (as defined under this Agreement) and who have no other medical or dental practice shall be reimbursed the full amount, with each employer sharing the amount in the same proportion that their employee’s job size bears to the employee’s total job size with all district health board employers.
(d) Part-timers who are employed by only one district health board and have no other medical or dental practice shall be entitled to the full amount;
(e) Other part-time employees shall be entitled to the full amount pro rata, according to their job size.
Note: CME expenses will not exceed 100% of entitlement.
Accrual of CME
Strictly speaking the CME entitlement relates to each calendar year and becomes available at the beginning of each year or from the first day of your employment. Notwithstanding this, some DHBs’ payroll systems allocate CME leave (recorded in hours) and expenses progressively over each pay period. This may be administratively convenient but it is neither required nor authorised by the MECA and should not be used as a reason for denial of leave or expenses on the grounds that you have not yet accrued a full year’s entitlement.
Unused leave and expenses may be accumulated from one year to the next with a limit of three years entitlement. The effect of this is that once your accumulated balance reaches 30 days for leave and $48,000 for expenses you run the risk of losing any amount above those figures.
There is however provision to accumulate for another two years, up to five years’ entitlement (i.e. 50 days leave and $80,000 expenses) if you and your employer have agreed on a specific plan for its use.
Clause 36.1(b) is a new provision that expressly allows the use of accrued CME expenses to support secondments and sabbaticals.
CME approval
As stated above, the employer has very limited right to deny you CME leave on the grounds of the content of the CME activity. Most CME activities, however, will be undertaken (at least in part) during “normal” working hours and therefore will require “leave” to be sought and granted. You do require your employer’s approval for leave and it would be a mistake to assume that all applications for CME leave will be automatically granted.
Given the requirement for all doctors in the service to undertake CME activities, there should be discussion among your colleagues and service managers about anticipated Professional Development and Education
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CME leave requirements to ensure reasonable spread of absences throughout the year. This will ensure basic service requirements and cover will be maintained during periods of leave. This is particularly important if more than one person plans to be away at the same time.
Ultimately, in appropriate circumstances your employer may have the right to decline your leave if basic service levels cannot be maintained. However because of your obligation to remain “fully informed” etc the employer has a related obligation to approve sufficient leave throughout the year to enable you and your colleagues to attend appropriate conferences, workshops, seminars etc. If necessary, this may require the cancellation of services.
An employer’s right to decline your leave must be exercised reasonably and must not compromise your participation in your annual MOPS program or your Medical Council recertification.
Claiming CME expenses
It should be noted that in terms of the MECA, once your CME leave or PDE activity has been approved, reimbursement of related expenses should follow more or less automatically, subject only to their being actual and reasonable. There is no requirement that expenses must be approved in advance. Although there may be room for debate about what level of expenses is reasonable in any set of circumstances, the main consideration will be whether your CME account is in funds or not.
Note: Whanganui and Wairarapa DHBs have no annual ceiling on CME expenses.
The MECA provides that “employees shall be reimbursed actual and reasonable expenses”. Note the use of the mandatory ‘shall’; note also that the payment is a reimbursement i.e. you spend the money and the employer reimburses after the expenditure provided only that the expense was actual and
reasonable.
Nevertheless, it may be possible to persuade your employer to pay some of your known expenses in advance, e.g. conference registration, air fares and accommodation, and some DHBs will do so if you use their nominated travel agent.
Premium economy and business class travel
For approved leave, most DHBs now allow premium economy or business class travel for flights of more than four hours provided you have sufficient accrued CME funds and such expenditure does not compromise your ability to meet your CME obligations under the MECA or your College and Medical Council recertification requirements.
Laptops, IT and other electronic aids
Clause 36.1(c) is an important change and extension of the possible use of CME expenses. Under this clause, where a DHB agrees, you may use your accrued CME expenses to purchase laptops and other electronic aids e.g. iPhones and iPads etc. The ASMS now has agreements with most DHBs that allow members to use their CME funds for these purposes. However, you should not go ahead and purchase expensive items on the assumption you will automatically be reimbursed and we strongly advise you to check first that your intended expenditure will be reimbursed under the ASMS agreement with your DHB.
You should also be aware that the IRD may require tax to be paid on some purchases under this clause, in which case your employer will probably expect you to pay the tax e.g. PAYE from your CME funds.
If you use CME funds to purchase tangible items, such as those described above, they then belong to you, which means you are responsible for their maintenance and security, including any insurance that might be appropriate.
It is not reasonable for managers to expect you to purchase what might be termed “tools of trade”, such as a PC for example under this clause. “Tools of trade” should be supplied by your employer as part of service costs.
In this regard you might note that MECA clause 53.5 requires your employer to ensure you have reasonable access to relevant journals, publications, other literature and email and internet facilities in order that you may fulfil the requirements of your job descriptions. This obligation will be undermined if SMOs use their CME funds to purchase their own texts and journals. Such resources should be supplied by the employer if they are “tools of trade”.
A final cautionary comment
Although you have a large measure of control over how you spend your CME funds it would be a mistake to assume that your funds are “yours” and you may spend them as you like. That is too simplistic. You may not transfer your funds if you resign and move to another DHB, nor are you entitled to be paid out your credit balance on resignation or retirement. Similarly once you have submitted your resignation, it is unlikely that your employer will approve further CME leave and you will lose the balances in both your leave and expenses account.
CME and Illness
CME is service-related and continues to accrue during extended periods of leave, such as parental leave, sick leave and ACC. Accordingly, it would seem entirely reasonable for an SMO who is on extended leave to continue to undertake PDE or CME activities including, where their health and family circumstances allow, attendances at conferences or workshops and to claim reimbursement of expenses.
Travel time
In addition to your CME leave, you are entitled to agreed reasonable travel time. The first thing to note is that the travel time is not part of your ten days of CME leave; it is in addition to it. The second thing to note is that the amount of travel time must not only be reasonable (i.e. an objective test) but it must be agreed. The employer is not entitled to issue an arbitrary scale of travel days according to which part of the world you are travelling to. Travel time is related to the length of the whole journey from your home to the place of the conference and your return. It is not determined simply by the flight time. Just as the employer should not seek to establish an arbitrary scale of travel time, so ASMS members should not seek to do the same but as a guide and based on our knowledge of travel time that has been allowed by different DHBs, we suggest that most trips to the east coast of Australia would usually involve a full day each way. Trips to North America and Europe would usually require two days each way although some conferences in parts of Europe might well involve two and a half or even
Professional Development and Education
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three days each way. It is quite likely that the travelling time will be longer than the conference itself. If you are travelling from a DHB that is some distance from an international airport your travel time may be longer.
In determining how much travel time is reasonable, you are entitled to factor in any domestic travel required, airline check-in times and immigration processcheck-ing check-in addition to actual time in the air.
Time-in-lieu
Clause 36.2(e) allows for time-in-lieu for “approved continuing medical education or professional development activities that are undertaken during weekends or New Zealand public holidays.”
Reasonable travel time on a weekend or public holiday cannot sensibly be separated from the approved CME or professional development activity and should therefore also attract time-in-lieu. Where time-in-lieu is given to compensate for weekend CME, it should be deducted from your CME leave balance but travel days (at any time) are in addition to CME leave and should therefore not be deducted from your CME leave balance.
Use of DHB-nominated travel agents
From time to time new and enthusiastic managers raise the hoary chestnut of trying to require SMOs to make their CME bookings through the employer’s nominated travel agent. They are not entitled to do so and there is no requirement for you to use the DHB’s nominated travel agent.
Having said that, DHBs are entitled to promote and encourage members to use their nominated travel agents and in some situations there may be advantages in your doing so e.g. it may relieve you of the need to carry quite large expenses on your personal credit card and your employer may agree to pay various expenses in advance.
Secondment
MECA Clause 36.4 - Secondment
Employees may apply for a secondment of two weeks every three years to a recognised unit for the purpose of professional development and upgrading skills which is relevant to their duties and responsibilities.
Secondments may be used to visit another unit to observe, brush up on or learn about the latest procedures or developments in your area of work.
The funding of secondment and the use of CME expenses should be discussed at the time of application. Clause 36.1(b) now expressly allows CME expenses to be used to support secondments. Additional funds may be sought from research trusts, grants or sponsorship. In appropriate circumstances, consideration might also be given to the employer regarding some of your secondment expenses as being work-related and therefore reimbursable under MECA clause 21. This should be discussed and agreed as part of the approval process.
Although the MECA does not state that secondments will be on full-pay, that is implicit and consistent with the DHB’s other obligations and commitments to support professional
development, referred to earlier in this Standpoint under the heading The Contractual Context.
Secondment is more of a discretionary entitlement than either CME or sabbatical, nevertheless we would expect DHBs to encourage SMOs to make use of this benefit and to budget accordingly. In considering applications for secondment, the DHB is entitled to take into account the relevance of the secondment to your duties and responsibilities. The DHB is also likely to take service requirements into account.
The best advice we can give is that you apply for secondment with plenty of notice and be prepared to justify your proposal. Preferably secondments should be part of a departmental plan that has been developed collegially and collectively with your colleagues.
Sabbatical
MECA Clause 36.5 - Sabbatical
(a) After every six years of service, an employee may apply for sabbatical leave of three months, or other agreed period, on full pay, whether as a continuous period or a series of separate periods, to spend time at other clinical units or centres, universities or research institutes for the purposes of strengthening or acquiring clinical knowledge or skills or undertaking an approved course of study or research in matters relevant to their clinical practice.
(b) “Service” for the purpose of sabbatical leave entitlement means service as a senior medical or dental officer in New Zealand with one or more District Health Boards.
(c) Applications for participating in the programme in advance of the standard eligibility criteria (in other words, attaining six years of service) can be considered by a sub-committee of the Clinical Board (or equivalent body) which will include a nominee of the Senior Medical Staff Committee that is recognised in this role by the Association. The sub-committee will make a recommendation to the Chief Executive. In making a recommendation to the Chief Executive, the sub-committee will consider the relevance of the application to the employee’s job description, service requirements, funding arrangements and the time at which such a programme can be taken.
(d) The approved sabbatical programme is to be taken within six years of it becoming available, and where practical the planned dates for the programme must be agreed with the employer at least one year in advance.
(e) The programme intended by the employee will be subject to approval, which will not be unreasonably withheld, by the relevant clinical director and service or group manager.
Typically the sabbatical will be for a single period of three months on full pay, but longer or shorter or even split periods are contemplated and may be considered.
Clause 36.5(d) indicates that ordinarily a sabbatical will be planned well in advance and approved (in principle) at least a year before it is taken.
While DHBs may develop administrative guidelines and procedures relating to sabbaticals, approval (at least in the first place) lies with the employee’s clinical director and service or group manager and should not be unreasonably withheld. Clause 36.5(c) sets out additional requirements for employees who apply for sabbatical in advance of the standard eligibility criteria i.e. who do not have six years’ service. These additional requirements are:
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• The application is considered by a sub-committee of the Clinical Board (or equivalent) including a nominee of the Senior Medical Staff Committee.
• The sub-committee will make a recommendation to the Chief Executive.
• In making the recommendation the sub-committee will consider:
– the relevance of the application to the employee’s job description
– service requirements – funding arrangements
– the time at which such a programme can be taken. These requirements are both procedural (that the application be considered by a sub-committee of the clinical board which makes a recommendation to the Chief Executive) and substantive (the four factors that the sub-committee must consider). The important point to remember is that they relate only to applications in advance of the entitlement arising. The wording of the sabbatical clause, taken as a whole, indicates that an employer has more discretion to decline sabbatical to someone with less than six years service than to an SMO or SDO with six or more years of qualifying service. In these latter cases, the employer will need a very good reason to say “no”, relating to the relevance and robustness of the proposal. There is also less red tape for an application that meets the six years’ service requirement.
Costs, expenses and salary
How your costs and other expenses (e.g. travel, accommodation etc) associated with the sabbatical are to be met is a matter that should be discussed and negotiated early in the planning stage of your application. However, as previously noted, Clause 36.1(b) expressly allows you to use accrued CME expenses to support sabbatical leave.
But as with secondments, consideration should also be given to Clause 21 of the MECA that allows for reimbursement of work-related expenses. Again, this should be discussed and agreed as part of the approval process while noting that DHBs have a responsibility to encourage SMOs to undertake sabbatical programmes.
You should also discuss with your employer as part of the approval process any additional remuneration you might expect to receive during the sabbatical e.g. salary or fees from a host institution, if any. The way in which this is handled will be a matter for agreement.
The purpose of sabbatical
The purposes for which sabbaticals may be undertaken are very wide: to spend time at other clinical units or centres, universities or research institutes for the purposes of strengthening or acquiring clinical knowledge or skills or undertaking an approved course of study or research in matters relevant to their clinical practice.
This would allow you to spend time at a centre of excellence or academic institution where, as part of acquiring clinical knowledge or skills you might write up research papers, chapters of a text book, undertake clinical research or complete or advance your work on a thesis; relevant to this is the requirement on the DHB in MECA Clause 37 to “encourage employees to undertake research relevant to their expertise, experience and employment.”
There is no requirement that a sabbatical be linked to overseas travel (although it often will be) and in principle there is no reason why a sabbatical might not be undertaken without having to leave your home town or city.
As with secondments, sabbatical applications should be planned well in advance and be part of a departmental plan that is developed collectively within your service with your colleagues.
Professional and organisational leadership
MECA Clause 36.6 - Professional and Organisational LeadershipEmployees may receive leave with pay to participate in programmes, courses, conferences and other activities related to the development of professional or organisational leadership as approved by the employer.
This clause sets out a fourth type of paid leave for both professional and organisational leadership, which may or may not fall within the definition of CPD. In the ordinary course we would expect this to be funded separately from CME by your employer, but where the course or training has been sought by the employee as part of their professional development, it would be reasonable to fund it with your CME expenses. Many SMOs have some managerial aspects to their roles for which they should be given training and support by their employer. Most DHBs now provide and separately fund the training of Clinical Directors, Clinical Leaders and Heads of Department.
T O I M A T A H A U O R A
ASSOCIATION OF SALARIED MEDICAL SPECIALISTS
PO Box 10763, Wellington, New Zealand + 64 4 499 1271 [email protected] asms.org.nz
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