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How the government is leaving whistleblowing doctors to twist in the wind

The government isn’t even pretending to protect whistleblowing doctors.

To the untrained mind the sheer incomprehensibility of legal talk can make courtroom proceedings seem like a thick layer of cloud: featureless and unremarkable. But every now and then, a thunderbolt darts down and catches you by surprise.

Sitting in Courtroom One of the Employment Appeal Tribunal (EAT) two weeks ago, on the second floor of Fleetbank House, Salisbury Square – in the heart of the legal establishment - I had one of those moments. I was there to report on the latest stage in the legal odyssey of whistleblowing junior doctor Dr Chris Day, and frankly a lot of it was going over my head. That is until the barrister representing Health Education England (HEE) made a startling admission.

It’s pretty remarkable that I was even there. Day is a rare species of doctor – perhaps an endangered species, if the judgement doesn’t go his way – who has held his nerve through two years of pressure since he ‘blew the whistle’ one night. Most never get half as far as he has, and it’s not hard to see why.

The fulcrum of the case is a gap - or “lacuna”, to get into the legalese – in the laws protecting junior doctors when they blow the whistle. A gap which exists because of an ambiguity as to who is ultimately responsible for their career, and which Day’s case has revealed. The status quo is that HEE isn’t fully bound by S43K whistleblowing laws because it is a training provider not an employer, while NHS trusts, which take junior doctors on as temporary employees contract-by-contract, don’t have to afford the same rights to them as they would more permanent staff . The background – and how this fits into the junior doctors contract dispute – is all here.

Day and his legal team are arguing that this ambiguity is leaving junior doctors in a no-man’s land; that while doctors are duty bound to report concerns, they’re not protected against harsh treatment when they do; that HEE, as de facto employers of junior doctors, should step up and take responsibility for them. HEE is contesting that and has done for some time, hence the EAT hearing, hence me finding myself sitting in a courtroom trying to keep up.

The thunderbolt moment came just before lunch. “Parliament has not chosen,” said HEE’s barrister, “to increase the scope of legislation to protect those who are in training as doctors.” He went on: “That gap doesn’t give the claimant the remedy that he wants, which is why I use the term ‘lacuna’. This has been a conscious choice of parliament.”

A “conscious choice of parliament,” I thought, scribbling away. That’s quite a statement. Parliament knows that junior doctors aren’t being covered and has chosen not to act? Even more remarkable: this is HEE’s case for not protecting Day and 54,000 other junior doctors?

At this point, we’re waiting on the judgement of the tribunal. Whether or not that argument holds water, we’ll find out in a few weeks. But if it does HEE will have pulled off a remarkable if questionable feat: to first reveal a flaw in the system then to use that flaw to wash its hands of the junior doctors under its supervision.

HEE is remaining tight-lipped on the matter, as is the BMA. But a very telling statement from Niall Dickson, chief executive of the General Medical Council (GMC), landed in my inbox last week. He said: “Doctors in training must enjoy the same legal protections as others in the NHS who raise concerns. If there is a gap in current legislation this should be addressed as a matter of urgency. We understand the Department of health is considering this matter and we welcome that.”

Which is odd, when you look at GMC policy, and statues going back to 2010 governing the GMC’s relationship with junior doctors and the deaneries which are training them (overseen by HEE). In its own document, Standards for Deaneries in which it describes itself as the “single point of responsibility from admission to medical school, through postgraduate training, to continued practice until retirement”, the GMC states that: “Trainees must have full opportunity to raise, individually or collectively, matters of proper concern to the deanery without fear of disadvantage and in the knowledge that privacy and confidentiality will be respected.”

Given that the GMC has been aware of Day’s case since the start, it seems odd that it would now say that the gap “should be addressed as a matter of urgency”. The lacuna widens.

The junior doctor contract row has reached such a fever pitch that HEE is writing to the chief executives of trusts threatening financial penalties if they don’t enforce the new contract, under the barely-veiled statement that “implementation of the national contract will be a key criterion for HEE in making its decisions on our investment in training posts”. And for Day the personal stakes are rising. Since I first wrote about his case, HEE has told him that if he loses they will claim legal costs of £24,084.50.

Incidentally, Parliament is currently acting on legislation affecting junior doctors. Friday sees the second reading of a Private Member’s Bill to remove the entire medical profession from the European Working Time Directive (EWTD) laws, led by Tory MP Christopher Chope. Again, odd timing when – notionally at least – doctors are protected by EWTD laws, the only  legislative recourse they have if they’re forced to do more with, say, the imposition of a new contract.

So we have a situation in which Conservative MPs are trying to push through legislation removing all doctors, nurses, HCAs and AHPs from working hours protections, while a “conscious choice” not to protect doctors who raise safety concerns goes unquestioned. Whichever way his judgement falls, the legislative gap that Day’s case has revealed isn’t even being denied any more; it’s only where the buck stops that seems to be up for debate.

As so many people have tried to warn Hunt, the current dispute is about so much more than the new contracts.  The implementation of a safe seven-day NHS would require a dramatic uplift in recruitment across the board. Instead, applications by doctors wanting to quit the NHS have soared, at a time when already staffing levels are alarmingly low. We have one of the lowest ratios of doctors per 1000 patients in Europe; one in eight A&E training posts are empty and one in three GP posts remain unfilled.

Junior doctors are in no-man’s-land when it comes to whistleblowing; left stranded by seemingly-indifferent leaders well behind the front lines. If political leaders and the medical establishment are serious about supporting the profession, they could start by finding doctors a way out of the precarious position in which they’ve left them for so long.

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

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The rise of the green mayor – Sadiq Khan and the politics of clean energy

At an event at Tate Modern, Sadiq Khan pledged to clean up London's act.

On Thursday night, deep in the bowls of Tate Modern’s turbine hall, London Mayor Sadiq Khan renewed his promise to make the capital a world leader in clean energy and air. Yet his focus was as much on people as power plants – in particular, the need for local authorities to lead where central governments will not.

Khan was there to introduce the screening of a new documentary, From the Ashes, about the demise of the American coal industry. As he noted, Britain continues to battle against the legacy of fossil fuels: “In London today we burn very little coal but we are facing new air pollution challenges brought about for different reasons." 

At a time when the world's leaders are struggling to keep international agreements on climate change afloat, what can mayors do? Khan has pledged to buy only hybrid and zero-emissions buses from next year, and is working towards London becoming a zero carbon city.

Khan has, of course, also gained heroic status for being a bête noire of climate-change-denier-in-chief Donald Trump. On the US president's withdrawal from the Paris Agreement, Khan quipped: “If only he had withdrawn from Twitter.” He had more favourable things to say about the former mayor of New York and climate change activist Michael Bloomberg, who Khan said hailed from “the second greatest city in the world.”

Yet behind his humour was a serious point. Local authorities are having to pick up where both countries' central governments are leaving a void – in improving our air and supporting renewable technology and jobs. Most concerning of all, perhaps, is the way that interest groups representing business are slashing away at the regulations which protect public health, and claiming it as a virtue.

In the UK, documents leaked to Greenpeace’s energy desk show that a government-backed initiative considered proposals for reducing EU rules on fire-safety on the very day of the Grenfell Tower fire. The director of this Red Tape Initiative, Nick Tyrone, told the Guardian that these proposals were rejected. Yet government attempts to water down other EU regulations, such as the energy efficiency directive, still stand.

In America, this blame-game is even more highly charged. Republicans have sworn to replace what they describe as Obama’s “war on coal” with a war on regulation. “I am taking historic steps to lift the restrictions on American energy, to reverse government intrusion, and to cancel job-killing regulations,” Trump announced in March. While he has vowed “to promote clean air and clear water,” he has almost simultaneously signed an order to unravel the Clean Water Rule.

This rhetoric is hurting the very people it claims to protect: miners. From the Ashes shows the many ways that the industry harms wider public health, from water contamination, to air pollution. It also makes a strong case that the American coal industry is in terminal decline, regardless of possibile interventions from government or carbon capture.

Charities like Bloomberg can only do so much to pick up the pieces. The foundation, which helped fund the film, now not only helps support job training programs in coal communities after the Trump administration pulled their funding, but in recent weeks it also promised $15m to UN efforts to tackle climate change – again to help cover Trump's withdrawal from Paris Agreement. “I'm a bit worried about how many cards we're going to have to keep adding to the end of the film”, joked Antha Williams, a Bloomberg representative at the screening, with gallows humour.

Hope also lies with local governments and mayors. The publication of the mayor’s own environment strategy is coming “soon”. Speaking in panel discussion after the film, his deputy mayor for environment and energy, Shirley Rodrigues, described the move to a cleaner future as "an inevitable transition".

Confronting the troubled legacies of our fossil fuel past will not be easy. "We have our own experiences here of our coal mining communities being devastated by the closure of their mines," said Khan. But clean air begins with clean politics; maintaining old ways at the price of health is not one any government must pay. 

'From The Ashes' will premiere on National Geograhpic in the United Kingdom at 9pm on Tuesday, June 27th.

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

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