Health Secretary Jeremy Hunt looks set to face a High Court challenge by junior doctors over his imposition of their contracts, which they say will damage health professionals and the NHS itself.
The government faces a public hearing over the terms and imposition of its deeply controversial junior doctor contracts, after a campaign group successfully crowd-funded over £150,000 in four days to facilitate the case – on top of the previous £30,000 they managed to secure for the original case deposit. Justice for Health, a junior-doctor-led organisation, announced on Tuesday 26th July that the campaign had met its financial target and so would push ahead to make sure a judicial review is held over the government’s long-disputed contracts for junior doctors in England.
The sum was raised with remarkable speed, overcoming an eleventh hour attempt by the government to block the case with a “staggering” financial demand that Justice for Health’s lawyers said they had never seen the like of before. The success in overcoming this hurdle reflects the widespread support for junior doctors, from the public, from high-profile figures and senior medics, and amongst the medical profession itself. The junior doctor contracts are widely seen as a prelude to future proposals for consultants (whose contracts are currently being negotiated by the BMA), nurses and other health service workers.
Justice for Health had suspended their push for judicial review back in May when stalled negotiations between Jeremy Hunt and the BMA were resumed following several strikes, including the first full walkout of doctors in the history of the NHS. But 58% of junior doctors voted against the government’s proposed terms on 5th July – and a day later Jeremy Hunt decided to impose the contracts against the will of junior doctors anyway.
So the campaign for legal action was renewed. With a provisional court date now set for September, and Parliament currently in recess until 5th September, it looks likely that the “full, expedited judicial review” granted by Justice Green will go ahead.
Dr Nadia Masood – a final-year Registrar and one of the five members of Justice for Health, accused the government of “trying to bury the [junior doctor contracts] story in the current news cycle”, for example by announcing the contract imposition on the same day as the long-awaited Chilcot report.
“It’s important to keep the issue in the public eye until the [public] hearing takes place in September”, she continued, underlining that the government needs to feel pressure from the public before it will try to rectify the situation.
Kicking the subject into the long grass is of course some of the milder criticisms Jeremy Hunt and the Department of Health have received over the course of the negotiations with the BMA and junior doctor representatives. Dr Johann Malawana, who stepped down as BMA Junior Doctor Committee Chair when the contracts were forced through by Hunt on 6th July, recently lambasted the Health Secretary for his “stalinistic approach” in an open letter published on social media. He highlighted the government’s stubborn refusal to listen to the requests of junior doctors and the BMA (“a trade union if anything that has always been conservative”). Malawana added that David Cameron had “sacrificed this country for one more year of power”, referring to the Tory manifesto promise of a ‘truly seven-day NHS’ which has been used to justify the contracts. Without visible extra resources this simply means overtaxing work conditions.
The Public Accounts Committee noted back in January how the government appeared to have no significant data or real plan about how they were going to implement the contracts’ proposed terms. “It seemed as if the ideas were cooked up and then put together on a whim”, Masood remarks, “as if they weren’t thought through at all. And now they’re just trying to push them through regardless [of the consequences]”.
The government’s lack of responsibility and consideration for patient care throughout proceedings has aggravated doctors – particularly when Hunt levels those very charges at junior doctors themselves.
Masood restates that a seven-day health service already exists, and points up the bewildering repeated use of the long-discredited ‘deaths more likely at weekends’ statistics wheeled out by Hunt and the government, underlining that “the health service is already at breaking point and can’t take any more”. “Being asked to give more and more is part of being a carer”, Masood continues, but the contracts were widely considered – by workers across the spectrum of the health profession – to be “the straw that broke the camel’s back”. “Junior doctors are now forced to rely on the continued support of external good will through public support, and through organisations like Justice for Health”, to help achieve their aim of holding the Health Secretary – who has “tried everything to avoid this case being heard” – “to account for his actions”.
“Jeremy Hunt is trying to weaken junior doctors with these contracts – but if anything he’s making us stronger”, Dr Masood asserts. “I think he underestimates [the resolve of] junior doctors and their commitment to a profession that they’ve already sacrificed a lot for in order to be where they are”.
It’s obviously having an effect on some NHS workers, though, as a number of investigations have revealed an alarming number of unfilled vacancies and falling application rates in England, indicating the possibility of a future shortfall in the number of health service recruitments and vacant posts filled.
The Scottish government, which rejected the contracts, has recently reported a rise in applications for health service posts for the coming year. This last consideration brings to mind Shadow Health Secretary Heidi Alexander’s comments, when she dubbed Mr. Hunt the “recruiting sergeant” for the Australian health service earlier this year. In the long term, the shortages in recruitment – in an already underfunded service – could develop into a huge problem and potential employment crisis in the NHS in England. The contracts were planned to come into effect on Monday 1st August, at the start of the month. But, according to the NHS Employers website, the date has now been pushed back to October.
The total sum raised by Justice for Health at this point stands at £335,000. There was some uncertainty for a while about whether the group would solely pursue its public law case with the money raised (which relates to whether the government can legally impose the contracts on NHS foundation trusts), or also push for a more complex case on extended competition law grounds. For the moment, they are deciding to put the competition law challenge on hold in order to respect “the aims and objectives set out when beginning this action” and have “the best possible chance of winning our judicial review”.
Asked how the group felt going forward with the case, Masood said they were greatly “encouraged” and heartened by all the support the campaign has received from the public so far. The change of guard in Westminster doesn’t appear to have altered negotiations. The new Prime Minister’s maiden speech may have employed the rhetoric of equality and social justice. But the new contracts will plainly disadvantage women, as well as doctors and patients more generally.
So where is Theresa May? Masood concludes: “the effect of the change in this country’s leadership on the negotiations remains to be seen. So far we have not heard much on this matter from our new Prime Minister”.
About the author
Tommy Greene is a young freelance journalist and writer currently living in Belfast. You can find him on Twitter here.