Safe and Legal

The irony of health secretary Jeremy Hunt organizing a global summit on patient safety while his junior doctors were striking over patient safety was not lost on the audience. Two junior doctors, Dagan Lonsdale and Alex Gates, tried to get into the summit at Lancaster Gate, mindful of Hunt’s invitation that ‘my door is always open.’ They were told their names weren’t on the list, noted the armed police officers and left for their own safety.

Hunt’s refusal to meet junior doctors who have begged for a meeting is shameful. When Sir David Nicholson resigned as chief executive of NHS England, he said his biggest error was refusing to meet the Mid Staffordshire protesters and realising how distressing their concerns were. For all the laudable patient safety structures, systems and initiatives Hunt is championing, they will only make the NHS safer if they are properly piloted and assessed, and if enough staff are motivated to use them.

The government and junior doctors agree that hospital care at weekends would probably be better and safer for patients if there were more staff around. Many patients and carers marooned on understaffed wards would agree. The government believes that the same number of junior doctors can be spread more thinly over 7 days at no extra cost to improve weekend cover. The junior doctors believe that we need more doctors. Spreading the same number more thinly would make weekday cover less safe for patients and the shift systems required to do it could be harmful for both doctors and patients.

Jeremy Hunt is no fool and understands that – as a champion of patient safety – there needs to be an independent assessment of his new proposals before they are rolled out, and they need to be agreed not imposed. Until such an assessment is done, no one can say whether the new contract will be better or worse for patients than the existing one. Medicine is littered with examples where expert and political opinion has trumped proper scientific evaluation, at huge cost to patients. Hunt’s hands are tightly tied. Six years of flat-line NHS funding is taking its toll. Demand rises inexorably ay 4% a year, waiting times targets are missed again and many staff are finding it so stressful they don’t want to work in the NHS anymore. 9% of nursing posts lie vacant. There are thousands of empty doctor jobs, many of which attract no applicants at all. Gaps in rotas for the most stressful jobs that keep the NHS afloat 24/7 such as emergency medicine, ITU and paediatrics are already alarming. Doctors rightly want assurances that any changes to their contract will make it safer, not less safe, for patients. Only a proper, real world, safety evaluation can determine this.

Instead Hunt announced imposition of a contract on February 11 that still only exists in summary form. The final terms and conditions have probably not even been decided and yet for 55,000 junior doctors in 60 different medical specialties the devil is in the detail. For a cost neutral contract, there will be winners and losers, and from the summary it seems the biggest losers will be doctors in those emergency specialties where there are the biggest rota gaps.

Hunt and Cameron are in this hole because they won’t be seen to be turned over by a union. But as a government fond of airline analogies for the NHS, it is sheer folly to ignore the views of the pilots. MD does not doubt that Hunt’s commitment to a safer NHS is genuine. He is trying to introduce the ‘fair blame’ culture and an NHS crash investigation team that MD has advocated for 20 years. MD has also encountered many committed, eloquent junior doctors that Hunt should meet. Rachel Clarke, Roshana Mehdian, Ben White, Nadia Masood, Fran Silman and Marie-Estella McVeigh are equally passionate about patient safety. But passion has to be guided by evidence, and both sides need to call a ceasefire and allow a thorough independent, evidence based review of the proposals.

Hunt closed his safety conference by saying ‘Never mind supporting doctors to admit mistakes, how do we support politicians to admit theirs?’ Any such admission would be graciously received by doctors, and the BMA should return the courtesy. In the meantime, some inspirational junior doctors are raising funds for a legal review of the imposed contract and safe staffing in the NHS, and MD is supporting them. Junior doctors are taught to demand evidence & think critically. They won’t sign a contract with no evidence base, no testing and no proper scrutiny. We all need to know if Hunt’s actions are safe and legal.

MD is performing at the Edinburgh Fringe

The junior doctors dispute explained simply and in context…

It is not possible to explore the Terms and Conditions of the proposed contract in detail because they have not been published yet and may still not have been finalised. The announcement of the imposition of a contract that has yet to be finalised and can’t be scrutinised by the junior doctors who are be imposed upon has been highly counterproductive. Irrespective of the content of the final contract, I believe imposition is wholly wrong.

This is not a dispute about Saturday pay, it’s about safe staffing. Safe staffing requires both safe rotas and a safe number of staff to fill them.

Junior doctors have not asked for more money, but for a better, safer NHS. However, a better safer NHS will cost us more because it needs more staff at all levels and occupations The government’s manifesto promised ‘a truly 7 day NHS… to ensure you can see a GP and get the hospital care you need 7 days a week by 2020.’

Urgent NHS care is already available 24/7, but this commits the NHS to providing the routine care you need 7 days a week, in general practice and in hospital. Many GPs already offer routine and emergency appointments on Saturday mornings. The government has promised you will able to see a GP 12 hours a day, every day, 8am – 8pm, by 2020. We need at least 5000 more full time GPs just to keep the current service safe.

Some hospitals do routine work on Saturdays but nearly all routine hospital work is done on Monday to Friday. To extend this to a ‘truly 7 day service’ would require an increase in routine work of around 40%, to be done on Saturdays and Sundays

This extra work for GP practices and hospital staff over weekends can either be done by training and employing more staff. Or by spreading the existing staff more thinly.

Extending services over 7 days without employing extra staff could make the NHS less safe, not more.

The junior doctors’ contract offer is ‘cost neutral’ – no more money is available to employ more staff. So existing staff would have to be spread more thinly. Wards would be less well staffed during the week to move more staff to the weekends. This could make the NHS less safe for patients, not more.

The government’s manifesto also promised: ‘We will continue to ensure we have enough doctors, nurses and other staff to meet patients’ needs.’ However, the government halted and then tried to prevent the publication of vital work by NICE to determine safe staffing levels, developed after the Mid Staffs scandal to try to prevent future scandals where there are dangerously low levels of staff. This withholding of crucial evidence is seriously at odds with the government’s manifesto commitment to make the NHS the safest health service in the world. The only plausible explanation is that they do not wish to commit the money to funding the safe staffing levels needed.

Tax payers should be asked if they wish to pay more into the NHS to fund safe staffing.

The NHS currently has dangerously low levels of staff and large numbers of vacancies. A recent BBC Freedom of Information request shows that on 1 December 2015, the NHS in England, Wales and Northern Ireland had more than 23,443 nursing vacancies – equivalent to 9% of the workforce. For doctors, the number of vacancies was 4,669. In England and Wales, there were 1,265 vacancies for registered nurses in emergency departments – about 11% of the total. For consultants in emergency medicine there were 243 vacancies – again 11% of the total. Paediatric consultants – specialists in the care of babies, children and young people – were also hard to recruit, with 221 vacancies – about 7% of the total.

For junior doctors, there are already dangerous gaps in the rotas for many specialties every day of the week because there simply aren’t enough doctors to fill them. Putting a cap on locum fees has made the rota gaps worse. Extending cover safely over the weekends can only happen with more doctors, not by spreading the already exhausted workforce more thinly.

Doctors are expensive to train and employ, so this is also a question for us. How much are we prepared to put into the NHS to staff it safely?

The current funding cannot cope with the current demand on services as we live longer, and survive more illnesses. We do not have enough doctors, nurses and staff in most other professions at present.

Staff in hospitals which have large numbers of vacancies already work well above their contracted hours, often for no pay. Some are bullied into doing so. There needs to be a robust and proven mechanism of preventing overwork and exploitation because tired NHS staff make mistakes that can harm and kill patients. The new junior doctors’ contract does not have this.

The number of deaths in hospitals does vary during the week but we do not yet know why. It may well be that introducing safe staffing levels would reduce some of the avoidable deaths. However, this can only be safely done by employing more staff, not by spreading the existing staff more thinly.

A leaked report from the Department of Health has suggested that equal NHS cover over 7 days would need 7,000 more nursing and ancillary staff, and an extra 1600 consultants and 2400 junior doctors, and would cost £900 million. And yet the junior doctors contract is cost neutral.

Shift systems harm both mental and physical health, and where they’re unavoidable, such as in the NHS, a great deal of care and expertise needs to be put into designing them to ensure minimal sleep disruption, adequate recovery time and a fair work life balance. Junior doctors have the additional requirement that they are doctors in training, and so need protected training time alongside providing a safe service.

In attempting to increase cover at weekends without increasing overall staffing levels, NHS Employers has produced sample rotas that probably aren’t safe for doctors or patients. They would appear they have been rushed through without the essential input of sleep and fatigue specialists. As Dr Michael Farquar, a Consultant in Paediatric Sleep Medicine, wrote in the Independent: ‘I note with dismay the rotas that include frequent rapid cycling between long (13 hour) day and night shifts. These ill-considered proposals run a risk of creating increasingly jet-lagged doctors, more likely to make mistakes while carrying out tasks which require high levels of attention and judgement. I urge NHS employers to reconsider, taking into view evidence collated by the Health and Safety Executive and the Royal College of Physicians.

The new junior doctor work rotas need to be properly trialled, to see what effect they have on attention, judgement and reaction time in a very stressed NHS frontline environment. Written evidence by the Cass Business School for the National Audit Office expresses serious concerns about stress and fatigue of junior doctors on shift work and recommends ‘a rigorous feasibility study’ of the new contract prior to implementation to ensure safety.’

The new junior doctors contract would appear to reward doctors in specialties with little or no on-call duty, but may penalise those in specialties with lots of emergency duty. These are precisely the doctors we need to train to improve 24/7 urgent and emergency care in the NHS and the fear is that these emergency specialties will become less attractive to doctors.

Doctors have a professional duty to protect patients and to speak up if they believe care is not safe. Most doctors believe the new contract for junior doctors could make the NHS less safe for patients, which is why so many consultants and GPs are supporting their junior colleagues. Because the government has announced it will be imposed, most junior doctors believe that the only option is to take industrial action. This has to be balanced against a doctor’s professional duty not to harm patients. It’s an extremely difficult decision to make, and many doctors have been reduced to tears having to make it.

My greatest concern is for the mental health of NHS staff. Many are struggling to provide a safe service in very difficult circumstances and levels or work related stress, anxiety and depression are very high. It is hard to imagine how the imposition of a contract that many doctors believe is not safe or fair will improve their morale and mental health. Rather, imposition could have a disastrous effect on morale, recruitment and retention of staff.

There is no urgent need for a new junior doctors’ contract, and Wales, Scotland and Northern Ireland have no plans to introduce any such changes. If it is imposed in England, industrial action could be prolonged and a whole generation of doctors may be alienated and demotivated. Many may leave the NHS entirely, at huge cost to the taxpayer and to patients. Other bright students may decide not to enter medicine at all.

To repeat, the new contract has not even been published in full, and the final terms and conditions are still being decided. To announce imposition of an unwritten contract so far in advance of publication has been hugely divisive. Sample rotas and pay calculators have been rushed out, found to contain significant errors and then withdrawn. Such an important contract cannot be rushed through and made up on the hoof just to meet a political deadline. It’s far more important to slow down, think clearly and get it right.

A far more sensible and safe option would be for both sides to call a pause both to imposition and to industrial action. This would allow independent analysis of safe staffing levels and what seven-day services can safely be delivered with the staff we currently have. It might also identify the extra funding we would need to put into the NHS to provide an extended seven day service, if indeed that is the best use of NHS money. It makes no sense for a government that wants to improve the NHS to go to war with the workforce. Particularly when the workforce is kind, committed and able to come up with many of the solutions the NHS needs if only it were included and involved. The views of patients, carers and tax payers must also be heard. Any solution has to be guided by compassion, collaboration, evidence and sustainable funding. Any final proposed contract – and the new rota patterns – have to be calmly and rigorously tested, costed and safely staffed. And it has to be agreed, not imposed. Negotiations must restart as soon as possible.

Declaration of Interests

I am an NHS doctor and patient, but not a member of the BMA or any political party. As a junior doctor, I was an active campaigner for a better, safer NHS from 1987-1992. I was invited to become a Vice President of the Patients Association for my role in uncovering the Bristol heart scandal in 1992. 24 years later we still haven’t safely reorganised child heart surgery in the UK, for all manner of complex political and professional reasons. I have campaigned for many years for the rights of NHS whistle-blowers, and although this current conflict may take a while to resolve frontline staff, patients and carers must be encouraged to speak up and express their safety concerns.

Any errors in this article are entirely mine, for which I apologise. Please correct them, join and improve the debate. Please do not impose.