Justice for Health

Health Secretary Jeremy Hunt has only himself to blame for last week’s High Court challenge from the crowd-funded campaign group Justice for Health. When Hunt declared repeatedly, in Parliament and in public, that he would impose a new job contract on all junior doctors if the majority rejected it, it became vital to ascertain whether he had acted lawfully and has the legal power to impose. His rationale for imposition – based on flawed interpretation of mortality data to support an ill-defined, unplanned, uncosted and unstaffed ‘truly 7 day NHS’ manifesto pledge also deserved legal scrutiny

In two days, five junior doctors and their legal team caused more embarrassment for Hunt than the BMA managed in three years. Hunt was represented by his human shield, Department of Health director general Charlie Massey, who appeared as ill-informed as he was in his disastrous public accounts committee outing (Eye last). Massey claimed staff rota gaps are ‘not a problem’ in the NHS. And yet a timely report from the Royal College of Physicians (RCP) has found that 7 out of 10 doctors in training reported working on a rota with a permanent gap, and 96% reported gaps in nursing rotas. Higher up the tree, 40% of consultant physician posts advertised go unfilled. The crux of the argument against Hunt is that we don’t have enough staff to safely fill current rotas, so introducing a contact to extend more rotas over weekends can only be done with more staff.

The fact that the GMC has chosen to appoint Massey as its new CEO when he is clearly too close to Hunt and too far removed from reality may well spark a widespread refusal of doctors to pay their subscriptions to the supposedly independent regulator.  Glasgow GP Dr Margaret McCartney has started a campaign for all doctors to join in evidence-based industrial action, and to refuse to do bureaucratic tasks that are of no proven benefit to patients, such as health checks, appraisals and parts of CQC inspections. This would infuriate government and the medical establishment, but have the added benefit of releasing more time to spend with patients, rather than harming them by striking.

The RCP report nails the current NHS crisis – waiting lists at their longest since 2007, 1.8 million days spent in hospital due to delayed discharge last year, treatments rationed and hospitals shutting when they are full. Junior doctors work on average 5 weeks a year more than they are rostered to cover staffing gaps. 80% report excessive stress. Hunt knows extending services is impossible without more investment and more staff, but unlike junior doctors he is afraid to publically voice this truth.

Indeed, Hunt’s very expensive High Court defence (five QCs, taxpayer funded) merely succeeded in making him appear less competent and trustworthy. They exhorted Justice Green not to hold Hunt accountable for anything he said in the ‘hurly burly’ of parliament – even when he read it from a carefully prepared statement. His repeated parliamentary and public promises to impose the contract and his threat to unleash ‘the nuclear option’ on junior doctors were apparently just gentle guidance. His insistence that he had the legal power to impose did not mean he ever sought to impose. Most absurdly, there was not ‘a scrap of evidence that any junior doctor felt the secretary of state was compelled to impose a contract.’ The evidence of the weekend effect was indeed disputed, but ‘was the secretary of state supposed to wait for the evidence? We say he wasn’t.’ He just makes stuff up.

The BMA too would suffer under such scrutiny. It agreed a contract with government in May which its members comprehensively rejected, despite its then junior doctor leader declaring it ‘a good deal for junior doctors and will ensure that they can continue to deliver high-quality care for patients.’ It recently unleashed its own nuclear option of a cluster of five day strike threats which it has now dropped due to lack of member support. Seldom has a union seemed so out of touch with its members. Where many doctors and the BMA agree is that they simply don’t trust a government that they believe is deliberately defunding the NHS, outsourcing as many services as it can to the private sector and dangerously overworking the staff. Whatever Justice Green’s ruling on Hunt’s lawful behaviour and legal powers (due September 28), the government and NHS staff will remain ideologically poles apart. Ultimately, the public should decide how much money to put into the NHS, how it should be done, what services should be provided and whether they should be publically or privately run. But despite the promise of public involvement in ‘your NHS’, you won’t be given a say.