How the government is leaving whistleblowing doctors to twist in the wind
To the untrained mind the sheer incomprehensibility of legal talk can make courtroom proceedings seem like a thick layer of cloud: featureless and unremarkable. But every now and then, a thunderbolt darts down and catches you by surprise.
Sitting in Courtroom One of the Employment Appeal Tribunal (EAT) two weeks ago, on the second floor of Fleetbank House, Salisbury Square – in the heart of the legal establishment – I had one of those moments. I was there to report on the latest stage in the legal odyssey of whistleblowing junior doctor Dr Chris Day, and frankly a lot of it was going over my head. That is until the barrister representing Health Education England (HEE) made a startling admission.
It’s pretty remarkable that I was even there. Day is a rare species of doctor – perhaps an endangered species, if the judgement doesn’t go his way – who has held his nerve through two years of pressure since he ‘blew the whistle’ one night. Most never get half as far as he has, and it’s not hard to see why.
The fulcrum of the case is a gap – or “lacuna”, to get into the legalese – in the laws protecting junior doctors when they blow the whistle. A gap which exists because of an ambiguity as to who is ultimately responsible for their career, and which Day’s case has revealed. The status quo is that HEE isn’t fully bound by S43K whistleblowing laws because it is a training provider not an employer, while NHS trusts, which take junior doctors on as temporary employees contract-by-contract, don’t have to afford the same rights to them as they would more permanent staff . The background – and how this fits into the junior doctors contract dispute – is all here.
Day and his legal team are arguing that this ambiguity is leaving junior doctors in a no-man’s land; that while doctors are duty bound to report concerns, they’re not protected against harsh treatment when they do; that HEE, as de facto employers of junior doctors, should step up and take responsibility for them. HEE is contesting that and has done for some time, hence the EAT hearing, hence me finding myself sitting in a courtroom trying to keep up.
The thunderbolt moment came just before lunch. “Parliament has not chosen,” said HEE’s barrister, “to increase the scope of legislation to protect those who are in training as doctors.” He went on: “That gap doesn’t give the claimant the remedy that he wants, which is why I use the term ‘lacuna’. This has been a conscious choice of parliament.”
A “conscious choice of parliament,” I thought, scribbling away. That’s quite a statement. Parliament knows that junior doctors aren’t being covered and has chosen not to act? Even more remarkable: this is HEE’s case for not protecting Day and 54,000 other junior doctors?
At this point, we’re waiting on the judgement of the tribunal. Whether or not that argument holds water, we’ll find out in a few weeks. But if it does HEE will have pulled off a remarkable if questionable feat: to first reveal a flaw in the system then to use that flaw to wash its hands of the junior doctors under its supervision.
HEE is remaining tight-lipped on the matter, as is the BMA. But a very telling statement from Niall Dickson, chief executive of the General Medical Council (GMC), landed in my inbox last week. He said: “Doctors in training must enjoy the same legal protections as others in the NHS who raise concerns. If there is a gap in current legislation this should be addressed as a matter of urgency. We understand the Department of health is considering this matter and we welcome that.”
Which is odd, when you look at GMC policy, and statues going back to 2010 governing the GMC’s relationship with junior doctors and the deaneries which are training them (overseen by HEE). In its own document, Standards for Deaneries in which it describes itself as the “single point of responsibility from admission to medical school, through postgraduate training, to continued practice until retirement”, the GMC states that: “Trainees must have full opportunity to raise, individually or collectively, matters of proper concern to the deanery without fear of disadvantage and in the knowledge that privacy and confidentiality will be respected.”
Given that the GMC has been aware of Day’s case since the start, it seems odd that it would now say that the gap “should be addressed as a matter of urgency”. The lacuna widens.
The junior doctor contract row has reached such a fever pitch that HEE is writing to the chief executives of trusts threatening financial penalties if they don’t enforce the new contract, under the barely-veiled statement that “implementation of the national contract will be a key criterion for HEE in making its decisions on our investment in training posts”. And for Day the personal stakes are rising. Since I first wrote about his case, HEE has told him that if he loses they will claim legal costs of £24,084.50.
Incidentally, Parliament is currently acting on legislation affecting junior doctors. Friday sees the second reading of a Private Member’s Bill to remove the entire medical profession from the European Working Time Directive (EWTD) laws, led by Tory MP Christopher Chope. Again, odd timing when – notionally at least – doctors are protected by EWTD laws, the only legislative recourse they have if they’re forced to do more with, say, the imposition of a new contract.
So we have a situation in which Conservative MPs are trying to push through legislation removing all doctors, nurses, HCAs and AHPs from working hours protections, while a “conscious choice” not to protect doctors who raise safety concerns goes unquestioned. Whichever way his judgement falls, the legislative gap that Day’s case has revealed isn’t even being denied any more; it’s only where the buck stops that seems to be up for debate.
As so many people have tried to warn Hunt, the current dispute is about so much more than the new contracts. The implementation of a safe seven-day NHS would require a dramatic uplift in recruitment across the board. Instead, applications by doctors wanting to quit the NHS have soared, at a time when already staffing levels are alarmingly low. We have one of the lowest ratios of doctors per 1000 patients in Europe; one in eight A&E training posts are empty and one in three GP posts remain unfilled.
Junior doctors are in no-man’s-land when it comes to whistleblowing; left stranded by seemingly-indifferent leaders well behind the front lines. If political leaders and the medical establishment are serious about supporting the profession, they could start by finding doctors a way out of the precarious position in which they’ve left them for so long.