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.

I wonder if I might clarify the story behind the recruitment of our new Chief Executive, Charlie Massey? (Medicine Balls, Sept 16)

I chaired the appointments panel and I am confident the process we used was rigorous and produced a good result.  Charlie Massey joins us from a long career in the civil service – he has worked for Labour, Coalition and Conservative ministers – the idea that a senior civil servant somehow reflects the views of a particular Minister or administration misunderstands how the civil service works. Our current chief executive’s predecessor was also a civil servant.

The GMC’s Chief Executive’s responsibility is to lead in delivering our strategy, which is set by the organisation’s Council, not by Government. In doing this he will be accountable to me and the other members of Council – half of whom are doctors.  Our independence from government remains vital and we will continue to exercise that independence in the years ahead.

The GMC does not represent doctors or employers and has no role in contracts, manpower planning or determining health service policy. But we are legally responsible for setting and enforcing professional standards and for the quality of education doctors and medical students receive. In that role we safeguard training quality, and intervene if a training environment is not suitable. If we were to remove trainees from a site, it would be to continue their training in a better training environment elsewhere, and to protect their education and careers, and their patients. The GMC has no power to remove a doctor from training.

As for the current dispute with the government in England, we have no role in contract negotiations or in doctors’ terms and conditions. We certainly recognise the frustration and alienation felt by many doctors in training but we are deeply concerned that prolonged action will harm patients. We are also clear that  taking action with the aim of achieving a hypothetical and uncertain benefit for a future patient cannot justify a doctor’s  knowingly harming an actual patient today. We issued our guidance to help doctors make decisions in difficult and trying circumstances. We did not, nor will we, side with either the BMA or the employers or the government in this contractual dispute.

Prof Terence Stephenson

Chair, General Medical Council

Hunt’s Human Shield

Why are junior doctors so suspicious about the appointment of ‘Charlie’ Massey as chief executive of the General Medical Council? Massey is currently Director General of Acute Care and Workforce at the Department of Health, working closely with health secretary Jeremy Hunt on the workforce implications of the junior doctors’ contract and Hunt’s vision of ‘a truly 7 day NHS’, in the absence of  any extra staffing and funding, or indeed a clear definition, plan and evidence base.

Massey came a cropper when he appeared in front of the Public Accounts Committee (PAC) in February to reveal the Government had very limited data and no dedicated funding for its 7 day plans.  Massey had no idea what the manpower implications were for the policy, nor indeed what the current staffing situation was in the NHS. Massey and the DH were described by the PAC as ‘flying blind’, powered only by the wind of the government’s vacuous election pledges. The DH had no readily accessible data on staff vacancy rates, limited data on course completion rates, limited data on leaver rates and no data on temporary staffing. There was no evidence that the proposed contract changes could be safely staffed. As Massey admitted ‘there are some data gaps in our workforce planning’.

Massey will not however be filling these gaps, having landed the prestigious job of chief executive and registrar of the GMC, which Niall Dickson has occupied for nearly 7 years at just £235,000 a year. The GMC is supposed to be an independent medical regulator, so the appointment of one of Hunt’s stooges who is overseeing contract imposition to the most senior GMC role gives doctors grave cause for concern. The GMC has the power to strike off striking doctors and to remove trainees from trusts if they are felt not to meet training standards, which are themselves decided by the GMC. The GMC could in theory influence contract imposition and hospital closures, which is why its independence from government, and appearance of independence, is vital. So why appoint Massey?

On July 17, 2016, Dr Edward Thomas did an FOI request about Massey’s appointment via the WhatDoTheyKnow website. ‘Please state how Mr Massey was recruited. Was the post open to external competitive recruitment? If so how was the job advertised, and how many people applied? Was any external recruitment agency used? If so how much were they paid? Did Mr Massey go through any competitive recruitment selection, for example interview? If so please provide copies of the assessors’ notes/score sheets from the interview (or provide the assessor notes from the alternative assessment he went through if it wasn’t an interview).’ The GMC promised to respond within 20 working days. 40 working days later, and it hasn’t.

This is no surprise to anyone who’s tried using the GMC, a tortuous machine that transfers money from doctors to lawyers under the flimsy guise of ‘protecting patients.’ Its one-sided warnings to junior doctors for considering striking without highlighting the longer term harm to patients of a government driving through unplanned, uncosted, unevidence based reform is very unbalanced. Simon Stevens, CEO of NHS England and many of the Royal Colleges have made the same error, hanging the junior doctors out to dry. As one told MD; ‘The BMA is as incompetent as Hunt, and I don’t agree with striking. I’d far rather go on hunger strike and harm myself for such an important cause, rather than harm patients. But if I go on hunger strike it’ll not just be about contract imposition but the underfunded, understaffed NHS that is being quietly outsourced to the private sector. And I’d expect Royal College and GMC leaders to support me, not blame me.’

At least Chris Hopson, CEO of NHS Providers – which speaks for hospital trust chairs and chief executives – has now publicly agreed with the ‘dangerous radical’ junior doctors that the NHS is in financial crisis, can’t provide the current service safely and certainly can’t extend more services over 7 days without more staff. MP Norman Lamb agrees: ‘It’s really horrendous that, despite our relative wealth, we have a health and social care system that is on its knees.’ Maybe Charlie Massey will also publicly support junior doctors in the name of patient safety. Or maybe he will be sent into bat against them as Hunt’s human shield at the Justice for Health High Court Hearing on September 19 and 20 (see Eyes passim).

Striking Alternatives

Do junior doctors have an alternative to more strike action, which the BMA is currently planning? Some feel that the reappointment of Jeremy Hunt as health secretary and the government’s intransigence in trying to force through a ‘cost neutral’ extended 7 day NHS service based on deliberate falsification of the evidence leaves them with no alternative. Others fear the BMA will flounder. As one ‘senior’ junior doctor put it: ‘I’m not striking again. The BMA agreed to this contract yet now calls us to strike again because we disagreed with its own recommendations.’ MD is not a member of the BMA, because of its tendency to shaft and silence NHS whistle-blowers, but unless it can blow the whistle relentlessly on why contract imposition is more harmful to patients than more strikes, it will lose public support and fail.

So what are the alternatives? Justice for Health – a social justice movement founded by five junior doctor activists – have secured a full, expedited Judicial Review hearing in the High Court on September 19 and 20 to challenge health secretary Jeremy Hunt’s power to impose a contract on junior doctors.  It has also successfully challenged Hunt’s exorbitant demands for security for costs (£150,000 to be raised in 7 days). Indeed Hunt has gone to extreme lengths to avoid being held to account in the High Court, and any judge worth his or her salt will have a field day with Hunt’s repeatedly fallacious claims that weekend admissions to UK hospitals are associated with increased deaths. The fact that he has repeated these assertions having been corrected by several expert authorities on the subject suggests he is either a liar or just very stupid. The fact that these falsehoods are being used to push through a ‘seven day’ NHS without proper planning or safe staffing may be prove to be dangerous for both staff and patients. If you take staff off weekdays to work the weekends, it will probably make weekdays less safe. One in ten junior doctor posts are currently unfilled, with large clusters going begging in emergency specialties. Hunt’s stance has alienated staff and even frightened patients, with some reports of harm from patients failing to seek help at the weekend [BMJ 2015;351:h4596].

Hunt knows he can get away with cherry picking statistics in the House of Commons or on the BBC, and he is merrily torturing them until they confess to his ideological fancies. He gleefully told Andrew Marr that “eight studies in the last five years show evidence of the weekend effect.” Yet only four of these studies were independently peer-reviewed, of which three derive data from the same study population (thus not independent to each other) and only two utilise sample data collected from the last decade. The remainder of the supposed eight ‘studies’ are reports or opinion pieces, and do not represent independent new data, and are not peer-reviewed medical research. Hunt then made claims about 6,000 deaths from a paper that hadn’t been published, and 11,000 deaths based on a paper commissioned by, er, NHS England and so hardly independent. He even made a statement about babies dying at the weekend based on a paper which found the greatest risk of death was actually a Thursday. Indeed the overwhelming body of high quality, peer reviewed evidence contradicts Hunt’s misleading and divisive political showmanship.

To have such a person as Hunt running the health service and free from any accountability when he makes such harmful errors must stop. There needs to be an evidence based policy unit in the government that fact checks Hunt before he opens his mouth. As Glasgow GP, writer and broadcaster Margaret McCartney observes; ‘If the NHS is to survive, we have to stop wasting money on things that don’t work, or cause far more harm than good.’ Her list is an impressively long one, from the top down imposition of a hugely wasteful market system in the NHS, to the obscene management consultant and PFI bills, to the unproven screening and over-medicalisation of people with ‘risk factors’, rather than spending precious resources on treating those who are genuinely ill and need urgent help.

To cut the crap out of the NHS requires evidence based policy making at the top, and humane working conditions at the bottom where patients, carers and staff feel unafraid to raise concerns. Dr Chris Day is another junior doctor activist and whistle-blower who discovered when he raised concerns at Lewisham and Greenwich Trust that junior doctors have no legal whistleblowing protection at all. As with Justice for Health, he has put in a huge amount of time and effort, at considerable personal cost, to fight for whistle blower protection for all 54,000 junior doctors. Health Education England has now promised to ‘close this loophole.’ Dr Day remains unconvinced anything will change. His fight goes on. Seats for Justice for Health v Hunt can be obtained via the www.justiceforhealth.co.uk website.