A word that was the starting gun for the increased periods of industrial action we have witnessed by the BMA appears to have backfired on the Health Secretary, yesterday – as the news broke that Jeremy Hunt (faced with a High Court challenge over the legality of his actions), would now only be “introducing” the divisive “Junior Doctors Contract”; a possibly spectacular retreat, and one which may well leave the Health Secretary in a position of precarity – but one which he has denied through his medium of choice for official press statements when something is hitting the fan. Twitter.
In a letter from the Department of Health to the solicitors representing the “Justice for Health” group, in court today challenging Hunt, it was clearly stated that the Health Secretary would “proceed with the introduction of the new contract” (note no use of the word “imposition”).
It went further, outlining that under the National Health Service Act 2006 Hunt has the power “to take a leading role in negotiations and discussions between NHS Employers… and employees representatives” (the BMA); it also states that it enables him to “approve the terms of national model contracts” and “take steps to lead to the introduction of national model contracts by the various employers of … junior doctors”.
The semantics in this are key – because there is a world of difference between the Secretary of State being involved in the contract, and him forcing the imposition of one on employees of various NHS bodies. There also appears to be another world of difference between what this letter states, and what the Health Secretary has been saying in the House of Commons and publicly – something, potentially, which could be the undoing of Jeremy Hunt.
Hansard records and media interviews show that Hunt has referred to the, or positioned himself to appear to be advocating the forcing-through of the new contract (or the “imposition” of, or to “implement” it, or that “Enough is Enough”, or any other phrase or word which isn’t “introduce”) here, here, here and here, without ever denying the terms “imposition” and “impose”; potentially more damning, however, is Prime Minister David Cameron specifically saying the Government couldn’t rule out “imposing” a contract here.
But – and here’s the money-shot – Hunt is on record saying that “We did not, and do not, seek to impose a new contract” last October – after saying in a speech to the King’s Fund last July that “We are ready to impose a new contract”.
Update: Jeremy Hunt said, in Parliament this afternoon, that “Yes, we are imposing a new contract”. This is the first time he has used the word “impose” in the Commons, and one can only assume this is an attempt to sever a line of attack from the Junior Doctors, after yesterday’s Guardian piece; that is, he is basically saying “Right. We’ve said ‘impose’ – now what are you going to do about it?”.
This is where, legally, it gets messy – and throws up at least three issues.
One: whether Jeremy Hunt has the right, as Secretary of State for Health, to force Junior Doctor’s employers to accept a new contract without the approval of its employees; the wording of the letter from the DoH solicitors would indicate not, as it appears Hunt is neither their employer nor can he do more than “take steps leading to the introduction of” contracts according to the 2006 act. He has also financially been pressurising Trust’s over the contract, with threats of forcing them to dismiss Junior Doctors or pull their funding if the former won’t impose the contract
Two: if an employer wishes to “impose” a new contract, they must give formal notice of the termination of the old contract, dismiss the employee and offer re-engagement on the new terms. This throws up a myriad of problems with doctors who are on longer, multi-year contracts with a ‘lead employer’; it only applies in uncomplicated terms to the new, August intake of trainees or those whose contracts expire – and even then, the contract is still deemed unworkable, dangerous and completely irrelevant to a “7-day NHS”, so why should “rookies” be used as guinea pigs?
Three: Jeremy Hunt is not the “employer” of Junior Doctors who work for NHS Foundation Trusts, councils and GP practices. He can only “instruct” (as noted above), but this can only be after a public consultation has taken place looking at the effects of his plans – which has not been done.
As Heidi Alexander, Labour Shadow Health Secretary put it: “(Hunt’s) motives, judgement and competence are now being called into question. If Jeremy Hunt is now claiming he isn’t imposing the contract, then this also raises the prospect that he has misled Parliament. (He) needs to urgently clarify whether or not he has the powers to impose a new contract”.
It matters even more, because the basis for the BMA’s industrial action has been the apparent “imposition” of the contract – and if this is not going to be the case, the Health Secretary has not only misled parliament, but also doctors, professional bodies and the public as a whole.
But this developing situation is just the thin end of the wedge regarding the debacle of the Junior Doctor’s contract – a story which has, from start to the current chapter, been littered with dubious statistics, manipulation and misrepresentation by the Health Secretary.
As I have written about previously, the conception of the new contract was, to say the least, suspect – involving right-wing think tanks, private companies and the skewing of information and evidence. In short, the contract is in no way leverage for a “7-day NHS”, nor increased patient safety. It’s about cost saving, public perception and ultimately putting the health service into such a torrid position that the only option the Government have left is to privatise it.
I also investigated the debacle surrounding the “6,000 additional weekend deaths”, where Hunt used unverifiable statistics as an argument for the new contract; a tale of claim, counter-claim, backtracking, manipulation and the highly suspicious involvement of Deloitte and their access to data they weren’t legally allowed to have – plus the seeming collusion between them, the Department of Health, NHS England and possibly one “Sir” Bruce Keogh.
Of course, none of this is surprising to doctors who are at the sharp end of a Government Minister’s inane and underhand approach to this situation.
Speaking to me last night, Dr Ben White, one of the 5 doctors from the “Justice for Health” group challenging the legality of the contract, said:
“No matter what the Judge decides regarding this toxic contract, this process has called into question the Secretary of State for Health’s decision making power and process. We, Justice for Health, say that he has no power to impose, and that he has failed to act rationally and reasonably, also failing to conduct a lawful consultation process.
Despite concerns from public, patients and professionals, he has refused to listen and instead pushed on with a politically motivated agenda for an unfunded “7-day NHS”.
We already have seven-day emergency services staffed by junior doctors. Trying to stretch staff further would tip an NHS on the brink over the edge into the abyss. He has proffered a scenario which would be a perfect storm for patient safety.”
But here’s the crux of the matter.
Put to one side the arguments that doctors are classed as “essential services”, and any other counter subversive measures the Tories may try and use to sway the public onto their side; just because someone works in an “essential service” doesn’t automatically bestow the right upon the Government to shit all over them.
They are employees, like many of us, who are faced with a change to their legal terms and conditions. If they are not happy with these T&C’s they are well within their rights to take what action is necessary to try and prevent them being enforced (which they have done). If Hunt (which he has consistently appeared to be) was/is intending to “impose” a contract upon them, after they have pursued all other avenues, the only route left would be for them to not sign said document.
This would result in an even worse situation than they are already in, as it could (theoretically) result in a greater stalemate or possibly the dismissal of swathes of doctors. All because the Secretary of State is, quite frankly, too pig-headed and ignorant to listen to the genuine concerns of industry professionals – and is more concerned with a covert agenda of a scorched earth, privatisation-by-stealth policy for the NHS.
The Junior Doctors, as employees of an organisation, have as much right as anyone else to object to a change in their terms and conditions (by someone who in reality isn’t even their employer) and – most importantly in this case – raise concerns about the safety of their patients which is what is at the heart of this; therefore, as such, deserve the full support of the public – and still appear to garner that in large quantities.
Jeremy Hunt, in this writer’s opinion, has more than a lot to answer for. His position as Secretary of State for Health should be, by now, thoroughly untenable. With a court date for the “Justice for Health” legal challenge rumoured to be the 8th-9th of June, just what does it take for a Cabinet Minister to lose their job in this Government?
Unfounded provocation outside of their jurisdiction? Misleading Parliament, professional bodies and the public? The use of unquantifiable statistics against the standards set out by the regulatory watchdog? Presiding over a department which provided sensitive data to a third party, possibly illegally?
Or just being a duplicitous, snivelling, unprofessional pissant with the tact of a used commode and the people skills of a poorly-executed bed bath?
It’s no longer “Time to Talk”, Jeremy Hunt.
It’s now time to go.