Photo: Getty
Show Hide image

Junior doctors aren't just going on strike. They're trying to warn us

There's a bigger story than just pay and conditions, warns Benedict Cooper.

On a bitterly cold afternoon in Nottingham’s Old Market Square, a group of junior doctors stood shivering together, banners in hand, pleading with the people hurrying by in thick winter coats and scarves to listen to their reasons for why they and colleagues throughout England are on strike. A few stopped, tapping their feet in the chill air; some even signed their petition.

On the surface it’s about pay. But there’s something more serious going on – a lesson we ignore at our peril. Doctors are deeply concerned about safety on the wards. Why do they feel they have to take to the streets to tell people, rather than going through the official channels? Because that’s a dangerous game as well.

Take the case of Dr Chris Day. When Day qualified in 2009, the idea that he was destined to cross swords with the Secretary of State for Health would have seemed ludicrous. Now he is embroiled in a dispute with the highest levels that has implications for the future of the controversial, and often misunderstood practice of ‘whistleblowing’.

It all started one night back in January 2014. Day was working through the night on ICU at Queen Elizabeth Hospital, part of Lewisham & Greenwich NHS Trust. When two locum doctors failed to turn up to work on another ward, Day found himself dangerously stretched having to treat critically ill patients outside of ICU. Under what’s known as ‘protected disclosure’, he raised the matter and urged his manager to find locums ready to come in. It sounds innocuous enough - it’s been anything but since. Why? Because his case has revealed a major flaw in the system; a flaw that has cost him dearly. Unlike almost every other branch of the medical profession, junior doctors aren’t protected when they blow the whistle in the way Day did that night.

As they progress through their post-medical school training on the way to consultant level, junior doctors find themselves in the invidious position of being on a series of  temporary contracts with whichever trust they are working for, usually only for a year at a time, with Health Education England (HEE) – formerly the Post Graduate Deanery - overseeing the whole postgraduate programme. The problem comes when they encounter an issue, the type Day raised the alarm over. If the trust in question doesn’t like what it’s being told it can make life very hard for a whistleblowing doctor – 17.3 per cent of NHS staff that speak out are victimised, according to Sir Robert Francis’ Freedom to Speak Up Review.

Then if they want to defend themselves they fall between two stools. As employees on a temporary contract with the trust they are not covered by the sort of protections that a formal employment arrangement would give, while HEE, technically an education body but with ultimate power over long term employment, is not bound by the so-called ‘catch-all’ 43K employment laws which protect nurses and agency workers, but not doctors. This is what makes Day’s case so pivotal. If it fails, it will set a precedent that any unfair dismissal claims are impossible for the majority of doctors below consultant grade.

Two years of legal battles have led Day to launch an appeal to the public for support in the next, and hopefully final clash with HEE and Lewisham & Greenwich trust over this crucial gap that is preventing his case being heard. This, he says, doesn’t just affect his own career path, but the whole future of the notion of transparency in the NHS. Day is arguing that HEE and the Department for Health are leaving 54,000 junior doctors out in the cold, refusing to provide protections for whistleblowers, effectively intimidating them into silence.

 “It’s about so much more than just my career,” he tells me. “I'm thinking about the big picture. They are using taxpayer money to stop part of a court case being heard, and they will do the same to other doctors as my appeal will be binding on all other junior doctors bringing whistleblowing claims. If I can secure 43K status for deanery doctors they will be free to act in their patients’ best interest.

“My protected disclosure isn't about someone writing a letter after the event, it's more fundamental than that, it's about a doctor being able to speak freely and openly in real time.”

His case has gained traction online, with the Crowd Justice campaign alone gaining 5,000 supporters in one week over Christmas. And despite the pressure – at one point he was up against four separate law firms appointed by the NHS, HEE and Jeremy Hunt - he has taken it to the highest levels. If there was ever any question over what the government’s quiet removal in 2012 of the ‘duty of care’ from the Health Secretary’s remit was going to mean in practice, that has now been answered.

“Hunt has used the Care Act and the Health and Social Care Act to run a mile from this,” says Day. “He has denied legal responsibility over something that he has power over, but he’s always talking about patient safety. I think he and the HEE thought they would never be taken to court over this.”

One of Day’s supporters is litigator Peter Stefanovic, a prominent voice against the government’s handling of the junior doctor contract dispute. He says that the way Day and other doctors are being handled when they raise concerns is “nothing less than bullying”.

He tells me: “Chris and his family have been through hell because he had the courage one night to stand up and say ‘this is not safe’. Everyone should be getting behind him. He’s being fought with taxpayer money; we are all paying out of our own pockets to create a culture of fear among doctors.”

And Day’s solicitor, employment specialist Tim Johnson of Tim Johnson Law, argues that the case raises an even more fundamental issue, about the ways in which the government has changed its relationship with doctors.

 “It’s a classic case of power without responsibility”, he says. “The government talks about its contract with junior doctors. The reality is that it has made sure it doesn’t have a contract with junior doctors.  It puts them on a series of one-year placements with the hospital trusts. As a result junior doctors lose basic statutory rights, for instance the right to claim unfair dismissal.  The relevant government agency is arguing in Chris’s case that they also lose whistleblowing protection. “

“In short, the government wants to treat junior doctors like agency workers - tell them how many hours they work and how much they are paid, but it doesn't want to hear from them about what's going on in the wards.”

With the removal of the duty of care from the Secretary of State, and the lack of a proper contract for junior doctors, it’s not just people like Day that have been left out in the dark: the health system itself has been left in a no man’s land. Junior doctors feel betrayed, insecure and stretched beyond what’s safe for them or their patients. The few that do have the courage to speak out about safety very quickly find themselves in hot water, with insidious threats about their future career being made.

When Day’s case comes before the Employment Appeal Tribunal (EAT) on February 10, it will be a key moment, potentially affecting the future safety of all NHS whistleblowers. If HEE can argue that it doesn’t have responsibility to protect him, then the current limbo-status of junior doctors will remain; if he wins, it could set a precedent that the organisation is bound to support them better.

Ostensibly the current dispute is over terms and conditions of pay. But as one junior doctor tells me, it is part of a culture of fear and intense pressure, of which the lack of whistleblowing protection is one element. She says: “This strike is about patient safety; I have had two colleagues break down in tears at work in the last two weeks, and I have often worked through migraines.

“That’s just not safe, but we can’t speak out. This strike isn’t just about pay; this is us blowing the whistle.”

Benedict Cooper is a freelance journalist who covers medical politics and the NHS. He tweets @Ben_JS_Cooper.

Photo: Getty
Show Hide image

Ignored by the media, the Liberal Democrats are experiencing a revival

The crushed Liberals are doing particularly well in areas that voted Conservative in 2015 - and Remain in 2016. 

The Liberal Democrats had another good night last night, making big gains in by-elections. They won Adeyfield West, a seat they have never held in Dacorum, with a massive swing. They were up by close to the 20 points in the Derby seat of Allestree, beating Labour into second place. And they won a seat in the Cotswolds, which borders the vacant seat of Witney.

It’s worth noting that they also went backwards in a safe Labour ward in Blackpool and a safe Conservative seat in Northamptonshire.  But the overall pattern is clear, and it’s not merely confined to last night: the Liberal Democrats are enjoying a mini-revival, particularly in the south-east.

Of course, it doesn’t appear to be making itself felt in the Liberal Democrats’ poll share. “After Corbyn's election,” my colleague George tweeted recently, “Some predicted Lib Dems would rise like Lazarus. But poll ratings still stuck at 8 per cent.” Prior to the local elections, I was pessimistic that the so-called Liberal Democrat fightback could make itself felt at a national contest, when the party would have to fight on multiple fronts.

But the local elections – the first time since 1968 when every part of the mainland United Kingdom has had a vote on outside of a general election – proved that completely wrong. They  picked up 30 seats across England, though they had something of a nightmare in Stockport, and were reduced to just one seat in the Welsh Assembly. Their woes continued in Scotland, however, where they slipped to fifth place. They were even back to the third place had those votes been replicated on a national scale.

Polling has always been somewhat unkind to the Liberal Democrats outside of election campaigns, as the party has a low profile, particularly now it has just eight MPs. What appears to be happening at local by-elections and my expectation may be repeated at a general election is that when voters are presented with the option of a Liberal Democrat at the ballot box they find the idea surprisingly appealing.

Added to that, the Liberal Democrats’ happiest hunting grounds are clearly affluent, Conservative-leaning areas that voted for Remain in the referendum. All of which makes their hopes of a good second place in Witney – and a good night in the 2017 county councils – look rather less farfetched than you might expect. 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics.