“This has resulted in the complete loss of trust amongst doctors in the government’s dedication to the wellbeing of patients, doctors and other staff in the NHS. I do not feel looked after or cared for by the government who oversee my employment. I do not feel like they understand the intensity of my job, enormous responsibility I shoulder as part of it, the sacrifices I have made, and the emotional damage.”
“There is a lot of anger amongst junior doctors because for a long time there has been a culture of doing what is necessary and not making a fuss because it is a vocation that we have chosen for ourselves. We have been holding the fort for so long that the system is now at collapsing point and maybe we should have spoken up sooner. There are simply not enough people to go round and fulfil the rotas and if it is not possible to increase weekend staffing levels without increasing staff the consequences for the NHS will be dire. I have endured. I have felt bullied and undermined by the government throughout the dispute who have refused to constructively engage with any of us, and the announcement of an imposition shows me that they have a total lack of respect for me and my profession. I do not trust that they have the best interests of patients or NHS staff at the core of their proposed and now enforced changes. The current situation has led to such a decrease in morale amongst all NHS staff that the mood at work has significantly changed. I have heard a Consultant say that they will consider resigning their job if their contracts are changed. I myself have been so affected by the dispute and the way that it has taken away my job satisfaction that I no longer wish to work in the NHS after I complete my training next year.”
“The Desirability of a Single Contract 65. It is, however, no secret that NHS Employers, as well as other NHS bodies with a national oversight role, have a preference for the adoption of the Contract. As I explained in W/S1, no-one working in the sector has ever been in any doubt that anything other than a uniform contractual approach across the English NHS is desirable. The NHS would cease to function equitably for patients, and indeed for doctors, if individual providers were trying to outbid each other in the recruitment of staff; training must be provided and funded uniformly by HEE; and of course an NHS provider which adopts a contractual model which costs more money than has been allocated for that purpose by the DoH will quickly face financial difficulties. 66. On15 February 2016 the Chief Executive of HEE wrote to individual Trusts reminding them that “A single national approach is essential to safeguard the organisation and delivery of postgraduate medical training to ensure all doctors can secure the professional development they require to complete their training programmes. We are not prepared to see a system where a competition based on a local employer’s ability to offer different terms is part of the recruitment process” ..... NHS Improvement (the umbrella body of NHS regulators such as Monitor) wrote a similar letter on the same day, stressing the need to “implement the contract consistently across the country” ... This is not a requirement; it is recognition of a practical reality. No-one, least of all the BMA, has ever suggested in the course of the negotiations that the principle of a single national Contract was a bad idea. Fragmented contracting is not an approach welcomed by any trade union in the NHS, or in my experience by local employees. On the contrary, the process has always been approached on the basis that a single, collectively agreed new contract was highly desirable, which is why so much time and effort was expended on all sides in seeking to agree such a contract. 67. As is the case with most collectively agreed contracts in the employment context, the actual parties to any new contract will be the individual employee doctor and the particular employing provider. In theory, individual providers could adopt different terms and conditions to those set out in the new Contract, and NHS Employers has always recognised and accepted this. 68. Indeed, I am aware that some employing providers have adopted local variations to nationally agreed contracts in the NHS, such as the Agenda for Change contract. However, individual employer approaches on the part of, for example, Foundation Trusts, remain rare across the range of NHS staffing contracts. From my own experience at Trust level, and from my discussions with those in Trusts and Foundation Trusts during the current dispute, I know that the clear preference on the part of employers is for a single, unified, national set of terms and conditions. 69. A certain degree of variation may be necessary to reflect particular local conditions; NHS Employers supports and encourages that in the light of the autonomy individual Trusts have been given. However, inconsistency in training, staffing and service provision is likely to harm patient safety, exposing them to an unacceptable risk of a ‘postcode lottery’. Our concern is self-explanatory, and echoes that of NHS Improvement and HEE. The autonomy of individual employers is important, but it is not the only factor. NHS Employers has no hesitation in recommending to employers that the Contract be adopted and introduced because it represents a fair and reasonable approach which has been the product of lengthy and detailed negotiations, and a consistent introduction will be most likely to secure essential consistency of training, staffing and service provision. 70. I re-emphasise, however, that NHS Employers can only recommend the introduction of the Contract, explaining its advantages and improvements. We cannot require any employing NHS provider to adopt the Contract and we have not suggested otherwise. Any attempt to do so would be given very short shrift by my colleagues in individual Trusts and Foundation Trusts.”
“Be consistent with all aspects of UK law, including working time regulations and the Equalities Act.”
“Doctors and dentists in training contract reform: recommendations Recommendation 1: Pay should be based on stages of training and actual progression to the next level of responsibility, evidenced by taking up a position at that level (paragraphs 4.16 – 4.19). … Recommendation 3: We support a contract based on work schedules, work reviews and exception reporting, and the end of banding payments (paragraphs 4.27 – 4.28). … Recommendation 6: We support the use of scenarios C and C+ as the basis for further discussion / negotiation between the parties (paragraphs 4.34 – 4.35). Recommendation 7: A common definition of core time/unsocial hours is required for all NHS groups. If the definition needs to differ between groups, then a commonly understood rationale would be required (paragraph 4.36). Recommendation 8: We support a contract based on basic pay (up to 40 hours per week), rostered hours (up to eight hours per week, on average) paid at the same rate as basic pay and an unsocial hours premium (paragraphs 4.34 – 4.36). Recommendation 9: The contract should include an availability allowance to recognise an obligation to be on standby to return to work, with the rate of the allowance varied to reflect the frequency of on-call (paragraph 4.40). Recommendation 10: The contract should include the potential use of RRPs (or flexible pay premia) to incentivise hard-to-fill specialties and that they are paid where required (paragraphs 4.45 – 4.46).”
“5. … The Secretary of State invited the BMA to return to negotiations, being clear that a negotiated agreement was preferred but that a new contract would be introduced if agreement could not be reached. 6. The BMA did not return to negotiations. The DDRB offered to explain to the BMA the rationale for its recommendations, but the BMA did not take up this offer. On4 November 2015 , NHSE published an offer that was ‘firm, not final’ – reflecting that further work and modelling remained to be done, and the continued hope that the BMA would agree to negotiate. The published offer document stated: “The new pay system and contract will not break any equality laws and will be subject to a full equality impact assessment before implementation”
“Given the priority placed on seven-day services by medical leaders and patient groups, I was hugely disappointed that the BMA union walked away from negotiations at such a late stage last October when proposals had been developed. The DDRB has stated that its recommendations and observations, “provide a roadmap on what could and should be achievable in the interests of everyone with a true stake in the NHS.”
“Recognising that this offer is firm but not final, the Department of Health has mandated NHS Employers to work on final details, including the continuation of detailed modelling, data gathering, and testing. It is important to re-iterate that figures in this document are still illustrative at this time. It is recognised that the involvement of relevant stakeholders is essential to ensure the final contract is right for both doctors and the NHS. The expert knowledge of relevant stakeholders will continue to be used as the final detail of the new arrangements is worked through. This will include working with Health Education England, the Universities and Colleges Employers Association, the Medical Schools Council, the Medical Royal Colleges, the Care Quality Commission, NHS employing organisations, Skills for Health, Allocate, ESR, and other interested parties. An Equality Impact Assessment of the new arrangements will also be undertaken. When all arrangements have been finalised, NHS Employers will publish the new Terms and Conditions of Service for doctors and dentists in training, and a Medical and Dental Pay and Conditions Circular containing new rates of pay.”
“Agreement between BMA, DH and NHS Employers30 November 2015 Following productive talks under the auspices of ACAS, the BMA, NHS Employers and the Department of Health are all agreed that a return to direct and meaningful negotiations in relation to a new contract for junior doctors is the right way forward. We intend to reach a collaborative agreement, working in partnership to produce a new contract for junior doctors, recognising their central role in patient care and the future of the NHS. All parties are committed to reaching an agreement that improves safety for patients and doctors and therefore NHS Employers have agreed to extend the timeframe for the BMA to commence any industrial action by four weeks to13 January 2016 at 17:00, to allow negotiations to progress. Within that timetable, the BMA agrees to temporarily suspend its proposed strike action and the Department of Health agrees similarly to temporarily suspend implementation of a contract without agreement. All parties acknowledge that they share responsibility for the safety of patients and junior doctors, which must be paramount. In reaching this agreement to return to negotiations the BMA acknowledge the wish of NHS Employers and the Department of Health to agree and implement a new contract without undue delay. All sides wish to achieve a contractual framework that provides fair reward and a safe working environment for junior doctors throughout the week. Note: for the purposes of this agreement, NHS Employers is acting on behalf of all employers of junior doctors. Memorandum of understanding This memorandum sets out the basis on which the parties will progress the agreement to return to negotiation reached on30 November 2015 . We acknowledge the commitment of the BMA, NHS Employers and DH to the centrality of junior doctors in the current and future NHS, to recognise their dedication to patients and the NHS, and to provide a safe and supportive environment and fair reward. The parties support the commitment to patients to ensure that the quality of care and patient outcomes (including appropriately adjusted mortality rates) are the same every day of the week. In that context we recognise the commitment of the government to work with the medical profession and other staff groups in partnership to improve access to seven day services. The parties recognise that junior doctors currently make a significant contribution across seven days, that urgent and emergency care is the priority for such services and that any new contract would support these aims. All parties acknowledge the crucial role of doctors in training across the NHS in providing safe patient care and the need to properly recognise that contribution not only through terms and conditions but also by reaffirming the commitment to a high-quality training experience, the very best working environment and appropriate work-life balance. The current cost-neutral November 2015 offer is the basis for further negotiation, and the BMA, NHS Employers and DH have agreed to work collaboratively to develop and oversee new contractual terms and conditions of service for junior doctors. Contractual safeguards for safety are paramount and we therefore commit to develop a jointly selected and supported guardian role to oversee the hours of work of doctors in training and ensuring appropriate payment for hours worked outside planned work schedules. A commitment is also made to define propositions on work schedules, including the number of hours designated as plain time ensuring that doctors in training would not be expected to work consecutive weekends, and how time for administrative duties and training should be recognized. Our discussions will also address access to flexible training (through joint work between HEE, BMA and NHS Employers), taking into account the changing demographic of the medical workforce, as well as developing further our shared commitment to ensuring that the training and working environment for junior doctors is improved (including addressing issues of fixed leave, study leave, notice of deployment and duty rosters, access to rest and refreshment facilities). Collaborative work on pay will include an 'open-book' approach to the November 2015 pay calculator and supporting data and models, including cost-neutrality and equality impact, helping ensure clear systems for pay progression and managing transition. This agreement also recognises the need to work in partnership with HEE and where relevant the medical royal colleges to improve the training experience for junior doctors, including improving access to flexible working and enabling the transition to a fully competency-based approach to support junior doctors to progress through their training.”
“If you are not able to give me the assurance, I ask for in this letter, I need to be absolutely clear that I will assume that there is no realistic prospect of a negotiated agreement. In that circumstance I will advise the Secretary of State that we would have reached the end of the road in relation to the likelihood reaching a negotiated agreement”
“Along with other senior NHS leaders and supported by NHS Employers, NHS England, NHS Improvement, NHS Confederation and NHS Providers, [Sir David] has asked me to end the uncertainty for the service by proceeding with the introduction of a new contract that he and his colleagues consider both safer for patients and fair and reasonable for junior doctors. I have therefore decided to do that.”
“When, as a Government, we took the decision to proceed with implementing a new contract, we have the choice of many routes, because essentially we can decide exactly what to choose. We have chosen to implement the contract recommended by NHS chief executives as being fair and reasonable.”
“The Secretary of State decided that the NHS must now introduce a new contract, without the agreement of the BMA, from August 2016.”
“where national or local negotiation does not result in agreement, following consultation, employers can introduce new employment contracts by dismissing their staff on due notice and re-engaging them on new employment contracts”
“The Secretary of State has had proper regard to the PSED throughout the process thus far. Moreover, a decision as to the final terms and conditions of the new contract has not yet been made. Before making this decision, the Secretary of State will have sight of and will take proper account of a full EIA.”
“We know NHS employers want to avoid unnecessary competition in recruiting and retaining doctors which could lead to variability in the quality of training and pay escalation as employers compete for staff. We know this because there has been just one NHS Foundation Trust that chose to develop its own terms and conditions (Southend Foundation Trust) rather than use Agenda for Change when it was introduced in 2004. Southend has, however, continued to use the national pay framework for medical staff.”
“The Secretary of State acted entirely lawfully in deciding that the appropriate response to Sir David’s letter was to announce that he would proceed with the introduction of the new contract without further negotiation with the BMA. Insofar as your letter was intended to assert that the Secretary of State is under some misapprehension as to his legal function, this is incorrect. ”
“let me answer the Hon. Lady’s question very directly. Yes, we are imposing a new contract.”
“41. You are asked to consider whether you agree to make a new decision to introduce the May contract terms as amended by the further June agreement, working with NHS Employers and NHSI HEE and local employers, so that the new contract is introduced for Junior Doctors as their current contracts expire in line with the timetable in Annex A. That decision should be made having due regard to the equality impacts of the proposals. 42. This builds on your thorough consideration of the equality implications of both the March contract and the revised May offer. The May contract offer built on the approach taken in the March contract to strengthen the offer particularly to those working less than full time (disproportionately female). You have also considered fully issues across the other protected characteristics and made changes in particular to support those with disabilities. For example, that includes protection of pay should a trainee change speciality for reason of disability, and if they work LTFT then the various proposals outlined above in respect of LTFT JDs. 43. It is important to note that individual employers will also need to consider equality implications specific to their own workforce as part of implementing the new arrangements.”
“4. It is noted that the press has again today referred to the contract potentially being “imposed” by you. As you know, references to “imposition” have been deployed to assert (wrongly) that you are not aware of your legal powers. To avoid further complaints of this sort, we suggest that it is best when addressing this issue to spell out that the new contract will be introduced by you working together with NHS employers. We appreciate that this is long-winded, but think it is worthwhile to try to avoid further unnecessary distraction rising from this point. NHS Employers continue to work with us and are ready to work with us to implement May/June contract, as a fair deal for the NHS should you decide to move forward on that basis. The role of NHS Improvement and Health Education England will also be key as the contract is partly nationally funded through HEE and HEE have been clear that there should be one national training contract. In addition it would be important to emphasise that this contract will only be introduced for those JDs whose contract expires.”
“12. The current offer does reduce the marginal cost of weekend working, important for the delivery 7 Day services, whilst recognising the antisocial nature of weekend working (and possible associated costs) by paying an allowance according to the number of weekends worked. Returning to negotiation would delay further contract change and delay implementing this element of your strategy for implementing 7 Day services policy. It would also frustrate the Government’s aim of removing AAIP [Automatic Annual Incremental Progression]. The pay bill is a very significant part of the NHS budget, and negotiations have for some time sought to achieve a revised contract that is safe and fair to staff and patients. Not progressing the Junior contract will also delay any changes to the Consultant Contract and Agenda for Change.”
“…it is therefore recommended that you decide to work with NHS employers to introduce the May contract (as further revised for LTFT) in its entirety…”
“1. In May, the Government and NHS employers reached an historic agreement with the British Medical Association on the new contract for junior doctors after more than three years of negotiations and several days of damaging strike action. That agreement was strongly endorsed as a good deal for junior doctors by the leader of the BMA’s junior doctors committee, Dr Johann Malawana, and was supported publicly by the vast majority of medical royal colleges. However, it was rejected yesterday in a ratification ballot: 58% voted against the contract, so, on the basis of a 68% turnout, around a third of serving junior doctors actively voted against the agreement. 2. It is worth outlining key elements of the agreement that was voted on. The agreement does indeed help the Government to deliver their seven-day NHS manifesto commitment, but it also does much more. It reduces the maximum hours junior doctors can be asked to work, introduces a new post in every trust to make sure the hours asked of junior doctors are safe, makes rostering more child and family-friendly, and helps women who take maternity leave to catch up with their peers. The president of the Royal College of Physicians, who had opposed our previous proposals, stated publicly: “If I were a trainee doctor now, I would vote ‘yes’ in the junior doctor referendum.” 3. Unfortunately, because of the vote, we are now left in a no-man’s land, which, if it continues, can only damage the NHS. 4. An elected Government whose main aim is to improve the safety and quality of care for patients have come up against a union that has stirred up anger among its own members that it is now unable to pacify. I was not a fan of the tactics used by the BMA, but, to its credit, its leader, Johann Malawana, did, in the end, negotiate a deal and work hard to get support for it. Now that he has resigned, it is not clear whether anyone can deliver the support of BMA members for any negotiated settlement. 5. Protracted uncertainty precisely when we grapple with the enormous consequences of leaving the EU can only be damaging for those working in the NHS and for the patients who depend on it. Last night, Professor Dame Sue Bailey, president of the Academy of Medical Royal Colleges, said that the NHS and junior doctors needed to move on from this dispute and that if the Government proceed with the new contract it should be implemented in a phased way that allowed time to learn from any teething problems. After listening to this advice and carefully considering the equalities impact of the new contract, I have this morning decided that the only realistic way to end this impasse is to proceed with the phased introduction of the exact contract that was negotiated, agreed and supported by the BMA leadership. 6. The contract will be introduced from October this year for more senior obstetrics trainees; then in November and December for foundation year 1 doctors taking up new posts and foundation year 2 doctors on the same rotas as their current contracts expire. More specialties such as paediatrics, psychiatry and pathology, as well as surgical trainees, will transition in the same way to the new contract between February and April next year, with remaining trainees by October 2017. 7. This is a difficult decision to make. Many people will call on me to return to negotiations with the BMA, and I say to them: we have been talking, or trying to talk, for well over three years. There is no consensus around a new contract and, after yesterday’s vote, it is not clear whether any further discussions could create one. However, the agreement negotiated in May is better for junior doctors and better for the NHS than the original contract that we planned to introduce in March. Rather than try to wind the clock back to the March contract, we will not change any of the new terms agreed with the BMA. 8. It is also important to note that, even though we are proceeding without consensus, this decision is not a rejection of the legitimate concerns of many junior doctors about their working conditions. Junior doctors are some of the hardest working staff in the NHS, working some of the longest and most unsocial hours, including many weekends. They have many concerns, for example, about rota gaps and rostering practices. In the May ACAS agreement, NHS employers agreed to work with the BMA to monitor the implementation of the contract and improve rostering practice for junior doctors. Last month, at the NHS Confederation’s annual conference, I set out my expectation that all hospitals should invest in modern e-rostering systems by the end of next year as part of their efforts to improve the way that they deploy staff. I hope that the BMA will continue to participate in discussions about all these areas. 9. Furthermore, this decision is not a rejection of the concerns of foundation year doctors who often feel most disconnected in that period of their training before they have chosen a specialty. Again, we will continue to make progress in addressing those concerns under the leadership of Sheona MacLeod at Health Education England, and we will continue to invite the BMA to attend those meetings. 10. We will also continue with a separate process to look at how we can improve the working lives of junior doctors more broadly, which will be led by the Under-Secretary of State for Health, my hon. Friend the Member for Ipswich (Ben Gummer). I very much hope that the BMA will continue to participate in that process as well. 11. We will not let up on efforts to eliminate the gender pay gap. Today, I can announce that I will commission an independent report on how to reduce and eliminate that gap in the medical profession. I will announce shortly who will be leading that important piece of work, which I hope to have initial considerations from in September. 12. Most importantly, this is not a decision to stop any further talks. I welcome Dr Ellen McCourt to her position as new interim leader of the junior doctors committee. I had constructive talks with her during the negotiations. Although we do need to proceed with the implementation of the new contract to end uncertainty, my door remains open to her or whoever takes over her post substantively in September. I am willing to discuss how the new contract is implemented, extra-contractual issues such as training and rostering, and the contents of future contracts. 13. To me personally and to everyone in this House as well as many others, it is a matter of profound regret that, at a time of so many other challenges, the BMA was unable to secure majority support for the deal that it agreed with the Government and NHS employers, but we are where we are. 14. I believe the course of action outlined in this statement is the best way to help the NHS to move on from this long-running contractual dispute and to focus our efforts on providing the safest, highest-quality care for patients. I commend the statement to the House.” “If I were a trainee doctor now, I would vote ‘yes’ in the junior doctor referendum.”
“… in reality foundation trusts have the legal right to set their own terms and conditions, but they currently follow a national contract; that is their choice, but because they do that, I use the phrase ‘introduction of a new contract’ this afternoon. I expect, on the basis of current practice, that the contract will be adopted throughout the NHS.”
“It is envisaged that NHS trusts and foundation trusts will be considering introducing the new national terms and conditions of service for NHS doctors and dentists in training 2016 from August 2016.”
“Employers should not simply rely on the national analysis without considering issues locally, as local variations in respect of protected characteristics may not be picked up in the national data that has informed the Department of Health's analysis. For example, your local statistical information may identify that there are higher levels of disabled junior doctors working in some specialities, or indeed across your own junior doctor workforce, than the average across the NHS. Junior doctors and dentists rotate frequently between employers during their training for varying periods of time. Employers should consult their local policies and procedures when considering the contract alongside their ongoing Public Sector Equality Duty (PSED) obligations. This guidance has been prepared to assist employers in complying with their PSED obligations and in demonstrating that they have had due regard to equalities considerations when implementing the contract. Employers may wish to take, where appropriate, their own legal advice on their equality obligations under the Equality Act. Consideration should be given locally as to whether any steps should be taken that would reduce any potential impacts on those with protected characteristics. Employers should be able to demonstrate that they have had due regard to their public sector equality duty (PSED) obligations under the Equality Act in the introduction and implementation of the contract and in subsequent monitoring. There is no one way to discharge obligations in connection with the PSED. There is local flexibility in how this is undertaken. Employers may use their own processes and procedures in considering equalities issues in connection with introducing the contract, provided they comply with the duty. The approach below should provide a strategy that enables employers to have appropriate due regard to equalities issues when working on introducing and implementing the new contract”
“1) Consider and understand the terms of the national terms and conditions of service (TCS) for NHS doctors in training and the model contract. It is expected that employers will take the national contract with its model terms as a starting point, because of the overall benefits of the terms for service delivery, patients, doctors and their employers. 2) Have regard to the national evidence base and equality analysis and equality statement considered in connection with the nationally developed terms, which are published on the gov.uk website. Employers may also find it useful to consider issues in the family test, which was published alongside the national equality analysis. Employers should note that there is no obligation to carry out their own local family test. 3) Consider the scope of s.149 Equality Act and the protected characteristics that are covered by its terms and consider what further evidence may be needed to understand any possible equality impacts locally. When doing this, employers are likely to benefit from considering the national equality analysis. 4) Consider data that employers may already have in respect of protected characteristics locally. What further data is needed to consider the issues? 5) Assess the likely impact on staff of the new model terms and whether there are any local issues that may affect either directly or indirectly the impact of the new terms on particular groups of junior doctors. 6) Consider whether or not any potential negative impacts could be minimised or improved, by implementing the contract locally in a particular way but with the aim of still delivering the benefits of the national contract. Regard should be had to the national equality analysis, and the consideration and rationale already given at a national level as to the justification for any potential adverse impacts associated with the contract. 7) Document their analysis. We encourage the use of the template provided at Annex A (page 13 of this document). 8) Monitor the implementation of the contract in case further issues come to light during the introduction and implementation process (as the PSED is an ongoing duty), to include feeding back information to the Department of Health via NHS Employers, as the managers of the new contract. 9) Clearly detail and record all actions taken to minimise any potential equalities impacts and clearly undertake periodic reviews to consider any other activities that can be taken.”
“How should employers ensure compliance with their obligations under the PSED? It is expected that employers will take the proposal to introduce and implement the contract as the starting point. Each employer will have a different makeup of junior doctor staff. This means that there can be no one-size-fits-all approach to considering how the PSED obligations will interact with decisions about implementing the contract. Ultimately, it is for each employer to determine how best to have due regard and the extent to which equalities issues may form, or impact on, other local priorities in deciding to implement the new contract. We emphasise that the obligation is yours to comply with, and any decision making is yours in relation to how these issues are addressed locally.”
“ ... the6 July 2016 Decision announced that he: (a) considered that the new contract should be introduced by the NHS without the BMA’s approval, and (b) would take such steps as are reasonably necessary to ensure that this happens. The SoS does not say, and has never said, that the6 July 2016 Decision legally compels or obliges any NHS employer to adopt the new contract. NHS employers are not legally bound to adopt the new terms and conditions set out in the new contract. The SoS envisages and expects, however, that NHS employers will voluntarily adopt the new contract. The SoS has encouraged, and will continue to encourage, NHS employers to do so. At present, no relevant NHS employer has indicated that it does not wish to introduce the new contract. If for any reason NHS employers did not introduce the new contract, the SoS would determine at that stage what further action, if any, should be taken.”
“the contract has now been imposed…and the implementation of the contract will rest largely with NHS Improvement”
“…when the Secretary of State took the decision on 11 February to impose new terms and conditions on your colleagues from August this year”
“we write to use as the Local Negotiating Committee (“LNC”) regarding the risk to CUH posed by the imposition of the 2016 Junior Doctors Contract. We wish to ensure that you fully understand the real and widespread concerns with the contract, and aim to help you reach a balance and considered opinion before deciding on its imposition. Over the past few weeks the government’s plan to impose the contract has been denounced…”
“promotion”, “comprehensive” and “designed to secure improvement”
“For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.”
“Staff have extensive legal rights, embodied in general employment and discrimination law. These are summarised in the Handbook to the NHS Constitution. In addition, individual contracts of employment contain terms and conditions giving staff further rights. The rights are there to help ensure that staff: • have a good working environment with flexible working opportunities, consistent with the needs of patients and with the way that people live their lives; • have a fair pay and contract framework; • can be involved and represented in the workplace; • have healthy and safe working conditions and an environment free from harassment, bullying or violence; • are treated fairly, equally and free from discrimination; • can in certain circumstances take a complaint about their employer to an Employment Tribunal; and • can raise any concern with their employer, whether it is about safety, malpractice or other risk, in the public interest.”
“The Secretary of State must take such steps as the Secretary of State considers appropriate for the purpose of protecting the public in England from disease or other dangers to health”
“(2) The steps that may be taken under subsection (1) include— (a) the conduct of research or such other steps as the Secretary of State considers appropriate for advancing knowledge and understanding; (b) providing microbiological or other technical services (whether in laboratories or otherwise); (c) providing vaccination, immunisation or screening services; (d) providing other services or facilities for the prevention, diagnosis or treatment of illness; (e) providing training; (f) providing information and advice; (g) making available the services of any person or any facilities.”
“(1) The Secretary of State may, for the purpose of assisting any person exercising functions in relation to the health service or providing services for its purposes— (a) ... (b) facilitate the recruitment and management of the person's staff; (c) ... (d) do such other things to facilitate or support the carrying out of the person's functions or other activities as the Secretary of State considers appropriate; (e) arrange for any other person to do anything mentioned in paragraphs (a) to (d) or to assist the Secretary of State in doing any such thing.”
“92. In the present case there are various indications from within Section 2 that the incidental power is quite generous. In particular it may be exercised when it is “calculated to facilitate” the discharge of any function conferred upon NHS England and/or when it is “conducive” to the discharge of that function and/or when it is “incidental” to such discharge. By using three expressions to enlarge the scope of the power all of which require NHS England to use its judgment Parliament is deliberately seeking to avoid the argument that the provision of a particular treatment that might otherwise be on the margins of NHS England’s powers is outside of its jurisdiction.”
“The clear inference … is that only NHS Foundation Trusts have the right to choose the form of contract for junior doctors they employ, and that for others the decision is being made for them by the Secretary of State. That is incorrect and the distinction drawn by the Secretary of State is false. Absent the issuing of directions to NHS Trusts (which the Secretary of State has not done and has never suggested he would do) there is no legal structure in the NHS for imposing national terms of employment for junior doctors. The NHS is made up of a large number of provider organisations, all of which have the legal right to enter into contacts of employment on the terms and conditions the employer and employee have agreed between them. These terms cannot be mandated or determined at the centre by the Secretary of State. Employers of junior doctors which are NHS Foundation Trusts, local authorities or primary care organisations cannot be subject to compulsion by the Secretary of State. In relation to NHS Trusts which are not NHS Foundation Trusts, section 8 confers a power upon the Secretary of State to issue directions. Whether directions could lawfully be issued under section 8 in relation to the contract for junior doctors is not an issue which this Court needs to consider, as the Secretary of State has not used this mechanism. Accordingly, all employers of junior doctors working in the NHS are in the same position as NHS Foundation Trusts.”
“After listening to this advice and carefully considering the equalities impact of the new contract, I have this morning decided that the only realistic way to end this impasse is to proceed with the phased introduction of the exact contract that was negotiated, agreed and supported by the BMA leadership.”
“No, as previously explained… the Secretary of State has never purported to issue any direction or otherwise legally compel any NHS employer to introduce the new contract. The Secretary of State has decided and announced that he considers that the new contract should be introduced.”
“119. The Court reiterates that the phrase “in accordance with the law” implies that the legal basis must be “accessible” and “foreseeable”
“Transparency and clarity are significant requirements of instructions to immigration and entry clearance officers that are published to the world at large, generate expectations of fair treatment and bind appellate bodies in the performance of their statutory functions”
“85. The question arises whether the combined effect of paragraphs 1.8 to 2.22 of the "Key messages" document negatives or cancels-out the misleading, confusing and unclear purport of the passages I have highlighted. In my judgment, it does not, for at least three reasons. First, there are too many passages which are defective. Secondly, the informed reader is entitled to reach the end of these public documents without being left in a state of confusion and dubiety. Thirdly, during the course of this judgment I have identified certain passages which are not so unclear or confusing that their revision is in my view mandated, but which are far from ideal. In my judgment, this is a factor which weighs in the balance against the Defendant. In any event, given the specific faults I have identified, I would now expect the Defendant as a responsible public body to cast a self-critical eye over the whole of its website material in this domain. 86. I should make explicit the legal criteria I have been applying, and the basis for my decision having applied those criteria. I am not holding that the Defendant has expressly stated that there is a legal obligation in relation to the pre-September 2013 approvals, or that this is clearly to be inferred from what the Defendant has said. I am holding that the Defendant's public utterances fail the public law test of certainty and transparency as explained in the jurisprudence mentioned under paragraph 48 above. Specifically, I am content to hold that these are (to the extent I have specified) "so ambiguous as to the expression of its scope as to mislead" the informed reader (see Blake J in Limbu, paragraph 69). I question whether the test is or ought be quite that stringent, but it is unnecessary for me to decide that point.”
“46. These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts. 47. Conflicts between Parliament and the Courts are to be avoided. The above principles lead to the conclusion that the Courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well-founded any sanction is for Parliament to determine. The proceedings of Parliament include Parliamentary questions and answers to. These are not matters for the Courts to consider. 48. In my judgment, the irrelevance of an opinion expressed by a Parliamentary Select Committee to an issue that falls to be determined by the Courts arises from the nature of the judicial process, the independence of the judiciary and of its decisions, and the respect that the legislative and judicial branches of government owe to each other.”
“…the Board observes that the meaning of the Prime Minister's statements to the House is an objective matter. Mr Clayton accepts that Mr Toussaint can only rely on the statements for their actual meaning, whatever the judge may rule that to be. While no suggestion may be made that the Prime Minister misled the House by his statement, Mr Toussaint also remains free to deploy any evidence available to him on the issue whether the public purpose recited in the declaration was a sham-for example, evidence as to the nature and location of the land and the likelihood or otherwise of its being required for a learning resource centre. The Prime Minister's statement to the House is potentially relevant to Mr Toussaint's claim as an admission or explanation of the executive's motivation. If the Prime Minister were to suggest that he expressed himself incorrectly, and did not intend to say what he said, then it would not be Mr Toussaint who was questioning or challenging what was said to the House.”
“Decisions unsupported by substantial evidence This encompasses situations where there is “no evidence” for a finding upon which a decision depends or where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact. Such decisions may be impugned as “irrational” or “perverse”, providing that this was a finding as to a material matter.”
“… our NHS faces major challenges. An ageing population will place more pressure on health and social care, and life-saving but expensive new drugs will push up costs. And for years it’s been too hard to access the NHS out of hours, even though sudden illness and events which you and your family cannot plan for do not respect normal working hours. We will rise to these challenges. By building a strong economy, we will be able to increase spending in real terms every year. With a future Conservative Government, you will have a truly 7-dayNHS, at the frontier of science, offering you new drugs and treatments, safeguarded for years to come”. and a Report of the DDRB (July 2015) where at paragraph [2.8] it is stated: “Expanding seven-day NHS services is one of the key drivers behind the contract reform proposals put to us.”
“this Government was elected on a mandate to deliver a seven-day NHS … independent research published in the BMJ found that there are 11,000 excess deaths in our hospitals every year because of the weekend effect … We are determined to ensure that employers can staff their hospitals properly seven days a week so that patients get the care they need whenever they fall ill”
“There was no evidence of excess deaths from meningococcal disease associated with weekend care”. f. Effects of Out-of-Hours and Winter Admissions and Number of Patients per Unit on Mortality in Pediatric Intensive Care (McShane et al, The Journal of Pediatrics, 2013): “We found that out-of-hours emergency admissions to pediatric intensive care showed no increase in risk adjusted mortality in England and Wales suggesting that units are able to provide a consistent quality of care throughout the day and night every day of the week. The increased mortality in planned out-of-hours admissions is likely to reflect admission following complex operative procedures where the risk adjustment models may underestimate the true expected probability of mortality”. g. Out-of-hours primary percutaneous coronary intervention for ST-elevation myocardial infarction is not associated with excess mortality (Rathod et al, BMJ Open, 2013): “In our study, despite the reduced staffing levels and support services at weekends, there was no excess in adverse outcomes, suggesting that suitable seniority and experience of the medical care on site is a crucial rather than an exact replication of weekday service provision”. h. Emergency medical admissions, deaths at weekends and the public holiday effect(Smith et al, group.bmj.com, 2012): “Our study has shown that patients admitted as emergencies to medicine at weekends have a slightly but not significantly higher mortality at 7 and 30 days compared with patients admitted during the week … The belief that a lack of consultants at weekends is responsible for the ‘weekend effect’ has been the subject of much recent media interest and has also contributed to an RCPL recommendation that consultants should spend more time on the AMU at weekends. It remains uncertain, however, to what extent this would reduce variations in mortality … While there is little here to suggest that a lack of services or lack of medical staff at normal weekends is in any way harmful, the same reassurance cannot be given to patients admitted as emergencies on public holidays”. i. Higher mortality rates amongst emergency patients admitted to hospital at weekends reflect a lower probability of admission(Meacock et al, J Heaoth Serv Res Policy OnlineFirst, May 2016): “Previous studies have compared mortality risk, adjusted for patient characteristics, between those admitted to hospital during the week and their counterparts admitted on weekends. These studies have consistently found higher mortality rates for patients admitted at weekends, both before and after risk adjustment. Whilst we have also found higher mortality rates amongst patients admitted at weekends, our study differs in two important respects. First, we widened our focus to include all patients attending A&E departments, including those not admitted, in order to avoid possible selection effects in the admitted population. Second, we assessed direct admissions and admissions via A&E separately, in order to gain a better understanding of variations in patient flows throughout the week. Using this approach we found there were fewer patients admitted to hospital in an emergency on weekends, attributable to a 61% lower volume of direct admission and a 5% lower risk-adjusted probability of admission following an A&E attendance. These increased thresholds for admission at weekends are likely to have biased previous studies on weekend mortality. Current initiatives to move towards seven day hospital services are only likely to be successful if reduced availability of services in hospitals on the day of admission is the major cause of the weekend effect. Our findings cast significant doubt over whether this is the case. Patients who attend A&E on weekends are at no higher mortality risk than patients who attend A&E on weekdays. However, a smaller proportion of attending patients are admitted at the weekend and this higher threshold for admission is likely to mean that patients who are admitted via A&E at the weekend are, on average, sicker than patients admitted ruing the week. Reduced availability of primary care services at weekends means that few patients are admitted to hospital via this route and these patients are also likely to be sicker than their counterparts admitted during the week. Our results add to the increasing body of evidence questioning the use of standardized morality rates as an indicator of the quality of care in hospitals. The weekend effect identified in previous studies may be a statistical artefact driven by the selection bias introduced by restricting the focus to the admitted population. Extending services in hospitals and in the community at weekends may increase the number of emergency admissions, particularly for patients with less severe illness, and this could have the desired effect of achieving lower hospital morality rates. However, this would be a statistical phenomenon rather than a clinically meaningful improvement as it would be achieved by admitting less sick patients rather than by reducing the absolute number of deaths.”
“Q136 David Mowat: I have one observational question, Mr Massey, on your answers to Mr Pugh on the seven-day NHS issue. We got to the fact that it is all included somehow in the£10 billion that was approved by the Chancellor. Ballpark, how much of that£10 billion is needed for the seven-day NHS? Charlie Massey: We have not separated out in that way. Part of what we are trying to achieve through a seven-day service is very much at the heart of what we are trying to do in terms of new models of care and the way in which we are looking at different— Q137 David Mowat: So, for example, if you did not do the seven-day contracts that are potentially being imposed, how much do you think you would save by not doing it? You must have an idea of what the number would be. Charlie Massey: Can I be clear? In terms of the junior doctors’ contracts that you are talking about— Q138 David Mowat: It is not just junior doctors, is it? Charlie Massey: For the junior doctors’ contracts, we are not changing the overall envelope of pay—the amount we pay—for junior doctors. Q139 David Mowat: No, but if they are working more weekends, presumably somebody else is having to provide cover, if you have the same number of doctors, shifts, rotas and rosters that they are not doing in the week. Charlie Massey: It is important to look at the whole of the contractual environment in thinking about that. Clearly, there has been an awful lot of attention over the last few months around junior doctors. Q140 David Mowat: I don’t want to spend too long on this; I just wanted to understand. You said the£10 billion covers the seven-day NHS. I think you have told me the answer. Charlie Massey: Yes. There is no separate pot set aside for something with the specific label of seven-day services. Q141 David Mowat: It does not give a great feeling of warmth that you understand the implications of the policy in terms of manpower. Another way of asking the question is what is the delta in manpower—or man and woman power—that you need to meet the seven-day NHS? There must be an implication. Charlie Massey: I wish it was a question that could be answered in a simple and mechanical way that applied to every single trust and local health economy— Q142 David Mowat: Right, but if you don’t know the answer approximately—I understand you might have to work it through in detail, but if you don’t know in broad terms what the answer is, how can you be doing the policy? Charlie Massey: It differs so substantially from one local health economy to another. When we have looked at some of the eight adoptor trusts, some of those have talked about that driving cost savings. A lot were talking about the reduction in bed days that happened as a result of that, without leading to additional cost in terms of the deployment of their senior clinical disciplines. Q143 David Mowat: Yes, but you are the guys sitting above all of these trusts. You have already given evidence that if all the trusts were as good as the best trust, the world would be a better place, and everything like that. I am surprised that you can put this policy in place without having some idea of the implication for staffing levels at the headcount planning level—that is what today’s hearing is about—or, indeed, for cost and budget. Charlie Massey: That is a big part of the reason why the planning guidance in December asked local footprints to create their own sustainable transformation plans that bring together all of those issues. David Mowat: What if the answer comes back as being more than£10 billion ? Q144 Karin Smyth: If we look at appendix 3 on your data and what you know about the workforce, there is no “readily accessible” data on vacancy rates, there is limited data on course completion rates, there is limited data on leaver rates and there is no inclusion of information on temporary staff employed by agencies. So you don’t know, do you? Charlie Massey: The Report rightly identifies that there are some data gaps within our workforce planning. Q145 Karin Smyth: That’s generous. Charlie Massey: I wouldn’t disagree with that, but that isn’t to say that we aren’t taking action across the system to fill those data gaps. We have a workforce information architecture process where we are essentially coming to plan specifically for how we are going to plug those gaps. That feeds into the workforce advisory board that Professor Cumming chairs, which looks at workforce planning across the system to deliver seven-day services and the five-year forward view. We have work in train, but we don’t yet have that data, which I agree is something that we need. I hope that next time we have this conversation, we will be looking at it from a very different perspective. Chair: I have to say that the lack of data, as Karin Smyth has rightly highlighted, worried us before the hearing, and I am not sure that we are convinced by the answers that you can do your job without that data. I am going to bring Chris Evans in for a quick-fire, and then I have a few more.”
“There is a growing body of evidence that case mix-adjusted mortality rates are higher for patients admitted electively or as emergencies to hospital ‘out-of- hours’, with most research focussing on weekends [Freemantle 2012, Mohammed 2012, Cram 2004, Cavallazzi 2010, Aylin 2010, Kruse 2011, Buckley 2012, MaGaughey 2007, James 2010, Worni 2012, De Cordova 2012, Deshmukh 2012]. The size of the weekend effect lies between 0.2% and 1% absolute increase in crude mortality over all admissions, detectable with large populations but not large enough to use mortality as an end-point in interventional studies. Not all studies report a positive association however [Byun 2012; Kazley 2010; Kevin 2010; Myers 2009]. One recent publication has demonstrated that the ‘weekend effect’ is more marked for elective admissions than for emergency admissions [Mohammed 2012]; a potential explanation requiring further investigation is incomplete adjustment for case mix of weekend elective admissions, with patients with complex and comorbid disease being more likely to be admitted well in advance of surgery for investigation and stabilisation. The rational for seven day working: Unreliable care and poor process control contribute to the ‘weekend effect’. Factors contributing to increased mortality may include inadequate numbers of skilled staff [Kane 2007, Cho 2008, Kane 2007, Needleman 2002, Pronovost 2002, Wallace 2012, Kim 2010, Aiken 2002, Penoyer 2010], healthcare error and adverse events [Hogan, Vlayen, Buckley], lack of organisation and structure for care delivery [Anderson], and reduced access to specific interventions [Kostis, Deshmukh]… … Summary The weekend effect is very likely attributable to deficiencies in care processes linked to the absence of skilled and empowered senior staff in a system which is not configured to provide full diagnostic and support services seven days a week. The inexorable increase in emergency admissions creates additional tensions in delivering elective care. Diseases with well-defined diagnostic and treatment pathways are less susceptible to the weekend effect, probably because of better process control. The most effective way to improve outcomes for patients admitted to hospital at weekends is to ensure that care is delivered by adequately supported consultants and monitored using care pathways.”
“2.1 Variation in outcomes Significant variation in patient outcomes for those admitted as an emergency exists across England. This variation is seen in patient experience, mortality rates, length of hospital stay and re-admission rates. Evidence suggests that the workforce, systems and processes in place at hospitals to manage emergency admissions can have an influence on these patient outcomes. This evidence base draws on the significant amount of research carried out in this area along with a national survey of acute hospital services. It aims to highlight the associations between both poorer outcomes and the variation in outcomes for patients, and the systems and processes in place which influence them. 2.1.1 Mortality rates Evidence drawn from national research by influential professional bodies, such as the Royal Colleges and the National Confidential Enquiry into Patient Outcome and Death (NCEPOD), have highlighted deficiencies of care for many areas and demonstrated that patients admitted as a medical emergency at the weekend have a significantly greater risk of dying in hospital than those admitted on a weekday. Further evidence of this “weekend effect” was reported in an analysis of NHS inpatient data from 2009/10 by Freemantle et al. The analysis concluded that being admitted at the weekend is associated with an increased risk of mortality within 30 days of admission compared to weekdays. This ranged from an 11% increase on Saturday to a 16% increase on Sunday when compared to patients admitted on a Wednesday. Most recently a further study by Bell et al found that patients admitted to hospital as an acute medical emergency at the weekend had a 14% increased chance of mortality than those admitted on a weekday. The explanation for this higher mortality rate outside of normal working hours is multifactorial and as such there is little evidence to establish a cause and effect relationship. However, a great deal of analysis has been undertaken in the area and some widely accepted associations made, which are discussed further in section 5 and summarised as follows: • Variable staffing levels in hospitals at weekends; • A lack of consistent specialist services, such as diagnostics, at weekends; and • A lack of availability of specialist community and primary care services, resulting in more patients on an end of life care pathway dying in hospital.”
“Seven-day services 17. We find the case for expanded seven-day services in the NHS, in order to address the ‘weekend effect’ on patient outcomes, where studies show that mortality rates, the patient experience, length of patient stay and re-admission rates are all poorer for those patients admitted at weekends, to be compelling. We note that this is the area of common ground between the parties and our response to the proposals has been influenced by this broad agreement, although we realise that this is not the only driver for change to junior doctors’ and consultants’ contracts.”
“… At first glance, there is conflicting evidence about whether the weekend effect exists at all. However, closer scrutiny shows that apparently “contradictory” studies tend to be smaller, carried out in single hospitals, and lack statistical power. Death after hospital admission, particularly for a planned surgical procedure, is relatively rare, and small studies simply don’t have the numbers…”
“Our analyses show that, although fewer hospital admissions occur at the weekend, patients admitted on Saturday and Sunday are sicker and face an increased likelihood of death within 30 days even when severity of illness is taken into account. This finding is similar to that of our previous analysis.”
“An obvious criticism of some of these observational studies is that patients admitted at the weekend are simply sicker. Freemantle and colleagues do indeed find a higher proportion of sicker patients at the weekend but attempt to account for this by adjusting for case mix using a wide range of variables included in administrative data. They are not the first group to adjust for this, yet the weekend effect seems to persist. No attempt to account for sicker patients in an analysis is perfect, but risk adjustment models based on administrative data have been shown to be as good, if not better, than models based on clinical data. The possibility, however, of residual confounding can never be entirely ruled out.”
“This combination of both process and outcome measures strengthens the case for poorer quality of care at the weekend.”