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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.

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Air pollution: 5 steps to vanquishing an invisible killer

A new report looks at the economics of air pollution. 

110, 150, 520... These chilling statistics are the number of deaths attributable to particulate air pollution for the cities of Southampton, Nottingham and Birmingham in 2010 respectively. Or how about 40,000 - that is the total number of UK deaths per year that are attributable the combined effects of particulate matter (PM2.5) and Nitrogen Oxides (NOx).

This situation sucks, to say the very least. But while there are no dramatic images to stir up action, these deaths are preventable and we know their cause. Road traffic is the worst culprit. Traffic is responsible for 80 per cent of NOx on high pollution roads, with diesel engines contributing the bulk of the problem.

Now a new report by ResPublica has compiled a list of ways that city councils around the UK can help. The report argues that: “The onus is on cities to create plans that can meet the health and economic challenge within a short time-frame, and identify what they need from national government to do so.”

This is a diplomatic way of saying that current government action on the subject does not go far enough – and that cities must help prod them into gear. That includes poking holes in the government’s proposed plans for new “Clean Air Zones”.

Here are just five of the ways the report suggests letting the light in and the pollution out:

1. Clean up the draft Clean Air Zones framework

Last October, the government set out its draft plans for new Clean Air Zones in the UK’s five most polluted cities, Birmingham, Derby, Leeds, Nottingham and Southampton (excluding London - where other plans are afoot). These zones will charge “polluting” vehicles to enter and can be implemented with varying levels of intensity, with three options that include cars and one that does not.

But the report argues that there is still too much potential for polluters to play dirty with the rules. Car-charging zones must be mandatory for all cities that breach the current EU standards, the report argues (not just the suggested five). Otherwise national operators who own fleets of vehicles could simply relocate outdated buses or taxis to places where they don’t have to pay.  

Different vehicles should fall under the same rules, the report added. Otherwise, taking your car rather than the bus could suddenly seem like the cost-saving option.

2. Vouchers to vouch-safe the project’s success

The government is exploring a scrappage scheme for diesel cars, to help get the worst and oldest polluting vehicles off the road. But as the report points out, blanket scrappage could simply put a whole load of new fossil-fuel cars on the road.

Instead, ResPublica suggests using the revenue from the Clean Air Zone charges, plus hiked vehicle registration fees, to create “Pollution Reduction Vouchers”.

Low-income households with older cars, that would be liable to charging, could then use the vouchers to help secure alternative transport, buy a new and compliant car, or retrofit their existing vehicle with new technology.

3. Extend Vehicle Excise Duty

Vehicle Excise Duty is currently only tiered by how much CO2 pollution a car creates for the first year. After that it becomes a flat rate for all cars under £40,000. The report suggests changing this so that the most polluting vehicles for CO2, NOx and PM2.5 continue to pay higher rates throughout their life span.

For ClientEarth CEO James Thornton, changes to vehicle excise duty are key to moving people onto cleaner modes of transport: “We need a network of clean air zones to keep the most polluting diesel vehicles from the most polluted parts of our towns and cities and incentives such as a targeted scrappage scheme and changes to vehicle excise duty to move people onto cleaner modes of transport.”

4. Repurposed car parks

You would think city bosses would want less cars in the centre of town. But while less cars is good news for oxygen-breathers, it is bad news for city budgets reliant on parking charges. But using car parks to tap into new revenue from property development and joint ventures could help cities reverse this thinking.

5. Prioritise public awareness

Charge zones can be understandably unpopular. In 2008, a referendum in Manchester defeated the idea of congestion charging. So a big effort is needed to raise public awareness of the health crisis our roads have caused. Metro mayors should outline pollution plans in their manifestos, the report suggests. And cities can take advantage of their existing assets. For example in London there are plans to use electronics in the Underground to update travellers on the air pollution levels.

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Change is already in the air. Southampton has used money from the Local Sustainable Travel Fund to run a successful messaging campaign. And in 2011 Nottingham City Council became the first city to implement a Workplace Parking levy – a scheme which has raised £35.3m to help extend its tram system, upgrade the station and purchase electric buses.

But many more “air necessities” are needed before we can forget about pollution’s worry and its strife.  

 

India Bourke is an environment writer and editorial assistant at the New Statesman.