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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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Can a “Momentum moment” revive the fortunes of Germany’s SPD?

Support for the centre-left Social Democratic Party (SPD) has sunk into third place, behind the far right Alternative for Germany.

Germany has crossed a line: for the first time in the history of the federal republic, the Social Democratic Party (SPD) has sunk into third place, polling just 15.5 per cent – half a point behind the far-right Alternative for Germany (AfD). The poll was published on the day the SPD membership received their postal ballots on whether to enter another grand coalition with Angela Merkel’s Christian Democrats, and inflamed debate further.

For the grassroots coalition opposed to the so-called GroKo (Große Koalition) the poll is proof that the SPD needs a fundamental change of political direction. Within the two grand coalitions of recent years, the SPD has completely lost its political profile. The beneficiary each time has been the far right. Yet another GroKo seems likely to usher in the end of the SPD as a Volkspartei (people’s party). Taking its place would be the AfD, a deeply disturbing prospect.

For the SPD leadership, the results are proof that the party must enter a grand coalition. Failure to do so would likely mean new elections (though this is disputed, as a minority government is also a possibility) and an SPD wipeout. The SPD’s biggest problem, they argue, is not a bad political programme, but a failure to sell the SPD’s achievements to the public.

But is it? The richest 45 Germans now own as much as the bottom 50 per cent. According to French economist Thomas Piketty, German income inequality has now sunk to levels last seen in 1913. Perhaps most shockingly, the nominally left-wing SPD has been in government for 16 of the last 20 years. Whatever it has been doing in office, it hasn’t been nearly enough. And there’s nothing in the present coalition agreement that will change that. Indeed, throughout Europe, mainstream left parties such as the SPD have stuck to their economically centrist programmes and are facing electoral meltdown as a result.

The growing popular anger at the status quo is being channeled almost exclusively into the AfD, which presents itself as the alternative to the political mainstream. Rather than blame the massive redistribution of wealth from the bottom to the top, however, the AfD points the finger at the weakest in society: immigrants and refugees.

So how can the SPD turn things around by the next federal election in 2021? 

The party leadership has promised a complete programme of political renewal, as it does after every disappointing result. But even if this promise were kept this time, how credible is political renewal within a government that stands for more of the same? The SPD would be given the finance ministry, but would be wedded to an austerity policy of no new public debt, and no increased tax rises on the rich. 

SPD members are repeatedly exhorted to separate questions of programmatic renewal from the debate about who leads the party. But these questions are fundamentally linked. The SPD’s problem is not its failure to make left-wing promises, but the failure of its leaders to actually keep them, once in office.

The clear counter-example for genuine political renewal and credibility is, of course, Labour under Jeremy Corbyn. In spite of all dire warnings that a left-wing programme was a sure-fire vote-loser, Labour’s massively expanded membership – and later electorate – responded with an unprecedented and unforeseen enthusiasm. 

A radical democratic change on the lines of Labour would save the SPD party from oblivion, and save Germany from an ascendent AfD. But it would come at the cost of the careers of the SPD leadership. Sadly, but perhaps inevitably, they are fighting it tooth and nail.

Having promised an “especially fair” debate, the conflict over the GroKo has suddenly surged to become Germany’s Momentum moment - and the SPD leadership is doing everything it can to quash the debate. Party communications and so-called “dialogue events” pump out a pro-GroKo line. The ballots sent out this week came accompanied by an authoritative three-page letter on why members should vote for the grand coalition.

Whether such desperate measures have worked or not will be revealed when the voting result is announced on 4 March 2018. Online, sentiment is overwhelmingly against the GroKo. But many SPD members (average age is 60) are not online, and are thought to be more conservative.

Whatever the outcome, the debate isn’t going away. If members can decide on a grand coalition, why not on the leadership itself? A direct election for the leadership would democratically reconnect the SPD with its grassroots.

Unless the growth in inequality is turned around, a fundamental reboot of the SPD is ultimately inevitable. Another grand coalition, however, will postpone this process even further. And what will be left of the SPD by then?

Steve Hudson is a Momentum activist and a member of both Labour and the SPD. He lives in Germany, where he chairs the NoGroKo eV campaign group.