Junior Doctors: Industrial Action

Lord Prior of Brampton Excerpts

Monday 5th September 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, with the leave of the House, I will now repeat a Statement made in the other place by my right honourable friend the Secretary of State for Health on the junior doctors’ industrial action:

“Mr Speaker, I regret to inform the House that last week the British Medical Association announced it was initiating further rounds of industrial action over the junior doctors’ contract. It involves a series of week-long all-out strikes between now and Christmas which was scheduled to start next Monday, although this afternoon the BMA delayed the first strike until 5 October. This afternoon’s news delaying the first strike is of course welcome, but we must not let it obscure the fact that the remaining planned industrial action is unprecedented in length and severity, and it will be damaging for patients, some of whom will already have had operations cancelled.

Many NHS organisations, including NHS England, NHS Providers, the NHS Confederation and NHS Improvement, have expressed concern about the potential impact on patient safety. Indeed, this morning the General Medical Council published its advice to doctors on the strike action. While recognising a doctor’s legal right to take industrial action, it urges all doctors in training to pause and consider the implications for patients, saying that,

‘given the scale and repeated nature of what is proposed, we believe that, despite everyone’s best efforts, patients will suffer’.

Many others have also questioned whether escalating strikes is a proportionate or reasonable response to a contract that the BMA junior doctors’ leader, Dr Ellen McCourt, personally negotiated and supported in May. She said then the new contract was:

‘Safer for our patients, safer for our junior doctors … and also fair’.

She also said that with respect to junior doctors the new contract,

‘really values their time, values them as part of the workforce, will really reduce the problem of recruitment and retention, emphasises that all doctors are equal, and has put together a really good package of things for equalities’.

We recognise that since those comments the new contract was rejected in a ballot by BMA members, but it is deeply perplexing for patients, NHS leaders and indeed the Government that the reaction of the BMA leadership, who previously supported the contract, is now to initiate the most extreme strike action in NHS history, inflicting unprecedented misery on millions of patients up and down the country.

We currently anticipate around up to 100,000 elective operations will be cancelled and up to 1 million hospital appointments will be postponed, inevitably impacting upon our ability to hit the vital 18-week performance standard. Today I want to reassure the House that the Government and NHS are working around the clock to make preparations for the strikes. All hospitals will be reviewing their rotas to ensure critical services such as A&E, critical care, neonatal services and maternity services are maintained. The priority of all NHS organisations is to ensure patients have access to the healthcare they need and the risks to patients are minimised, but the impact of such long strikes will severely test this.

As with previous strikes, we cannot give an absolute guarantee that patients will be safe, but hospitals up and down the country will bust a gut to look after their patients in this unprecedented situation and communicate with people whose care is likely to be affected as soon as possible.

Turning to the long-term causes of the dispute, it is clear that for the BMA negotiators it has been about pay, but I recognise that for the majority of junior doctors there is a much broader range of concerns, including the way their training is structured, the ability to sustain family life during training periods, the gender pay gap and rota gaps. After the May agreement we set up a structured process to look at these concerns outside the contract and I intend this work to continue.

Health Education England has been undertaking a range of work to allow couples to apply to train in the same area, to offer training placements for those with caring responsibilities close to home, to introduce a new catch-up programme for doctors who take maternity leave or time off for other caring responsibilities and to look at the particular concerns of doctors in their first year of foundation training. Today HEE has set out further information for junior doctors about addressing these non-contractual concerns and we are proceeding with the gender pay review that I mentioned in my last Statement to the House on this issue.

We have also responded to specific concerns raised by Dr McCourt. First, the BMA, NHS Employers and Health Education England have agreed changes to strengthen whistleblowing protections for junior doctors beyond the scope of existing legislation so that junior doctors can take legal action against HEE, in relation to whistleblowing, as if HEE was their employer.

Secondly, in direct response to the concerns raised by Dr McCourt over the role of the independent guardian of safe working hours, NHS Employers has written to all NHS chief executives to set out in considerable detail the expectations for the new guardian role. As of 2 September, 186 out of 217 guardians had been appointed with the involvement of BMA representatives, with a further 15 interim arrangements in place, and it is expected that all will be appointed by early September.

Many junior doctors have expressed concern about rota gaps and the new contract acknowledges and tackles this concern. The guardians of safe working hours will report to trust and foundation trust boards on the issue of rota gaps within junior doctor rotas. This will shine a light on this issue and it will be escalated, potentially to the CQC and the GMC, where serious issues are not addressed. I would strongly urge all those contemplating taking industrial action to consider the progress that is being made in all these areas before making their final decision.

With respect to the broader debate about seven-day care, we recognise that many doctors have concerns about precisely what the Government mean by a seven-day NHS. As Sir David Dalton publicly stated last week, we offered to insert details of our seven- day plans into the May agreement, in particular to reassure doctors that we do not intend simply to stretch services currently delivered over five days over seven days. However the BMA asked us to remove that reassurance from the May agreement, so it is extremely disappointing that it now says the need for more clarity over seven-day services is one of the reasons for the strike.

Let me therefore repeat further reassurances on that front today. First, while the changes to the junior doctors contract are cost neutral—that is, the overall pay bill for the current cohort of junior doctors will not go up or down—our seven-day service policy is not cost neutral and will be funded out of the additional £10 billion provided to the NHS over this Parliament.

Secondly, while the pay bill for the current number of junior doctors will not increase, we do expect the overall pay bill to go up as we have committed to employ many more doctors to help meet our commitment on seven-day services. That means our plans are not predicated on simply stretching the existing workforce more thinly or diluting weekday cover.

Thirdly, we recognise that junior doctors already work very hard, including evenings and weekends, and while we do need to reduce weekend premium rates that make it difficult to deploy the correct levels of medical cover, we expect this policy to have greater implications for the working patterns of other workforce groups, including consultants and diagnostic staff.

Finally we have no policy to require all trusts to increase elective care at weekends. Our seven-day services policy is focused on meeting four clinical standards relating to urgent and emergency care, meaning vulnerable patients on hospital wards at weekends will get checked more regularly in ward rounds by clinicians, and clinicians will be able to order important test results for their patients at weekends.

Even despite these reassurances there may remain honest differences of opinion on seven-day care, but the way to resolve them is through co-operation and dialogue, not confrontation and strikes which harm patients. To those who say these changes are demoralising the NHS workforce, I say that nothing is more demoralising or more polarising than a damaging strike. It is not too late to turn decisively away from the path of confrontation and put patients first, and I urge everyone to consider how their own individual actions in the coming weeks will impact on people who desperately need the services our NHS offers.

This Government will not waver in their commitment to make the NHS the safest, highest-quality healthcare system in the world, and I commend this Statement to the House”.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Lord for making the Statement.

Clearly the prospect of a series of five-day strikes is very worrying, coming after the protracted negotiations, agreement between the negotiators and then the subsequent ballot rejection. The promised action, though now delayed, would have a damaging impact on patients, the NHS and the junior doctors themselves. However, the Secretary of State and the Government cannot escape their own responsibility for the threatening catastrophe.

At the heart of this dispute is a complete absence of trust by the junior doctors in the Government and, specifically, the Secretary of State. It is not hard to see why. Towards the end of the Statement the noble Lord mentioned a seven-day service. It is the conflation of the seven-day service issue with the junior doctors’ contract which has exacerbated an already difficult situation, particularly as it is the junior doctors on whom the service is so dependent for out-of-hours working.

The Minister did not mention the advice received from officials but he knows that the documents obtained by the media outlining the risks detailed by officials on the seven-day NHS were clear in their assessment that the NHS was likely to have too few staff and too little money to deliver a truly seven-day NHS. Moreover, it gives the lie to the last sentence of the Statement where the Secretary of State comes out with all that blah about making the NHS the safest, highest-quality service in the world when everyone knows that it is crumbling through a lack of resources, a lack of staff and a lack of leadership. We have a Secretary of State who is in his own world, one that is occupied by no one else. He is charging ahead with implementing the seven-day working week without the resources, staff and support needed to do it.

Let me be clear: no one more than I would like to see a truly seven-day working NHS, but that is dependent on the resources being available to ensure its proper implementation. What I deplore—and this is a core reason for the disenchantment among junior doctors—is the Secretary of State’s distortion of the statistics in relation to weekend mortality figures to justify the imposition of the contract.

I would like to ask the Minister a number of questions. First, he referred to the contingency plans being put in place by the NHS, but clearly with the postponement or cancellation of the first proposed action there is now time for the NHS to give more consideration to those contingency plans. I wonder if he can tell the House a little more about them. Secondly, the chief executive of NHS Providers has warned that with little notice the unprecedented action,

“will cause major disruption and risk patient safety”.

What discussions have taken place between Mr Hopson and Ministers to discuss his concerns? Thirdly, where elective operations and clinics may be cancelled as a result of the promised late action, what assurances can the public be given that new dates will be scheduled as quickly as possible?

Can the noble Lord say what discussions have taken place between the Department of Health and junior doctors? In its statement today announcing the postponement of the action, the BMA has said that it will call off further action if the Secretary of State stops his imposition of the contract, listens to the concerns of junior doctors and works with the BMA to negotiate a contract based on fresh agreed principles that have the confidence of junior doctors. What is the Minister’s response to that statement by the BMA? It has been reported in the media that the Secretary of State has refused to engage with the junior doctors. Can he confirm whether that is the case, and if so, why is that the position?

Finally, what are the Government’s plans to restore junior doctors’ trust in the National Health Service? There is a clear risk that the morale of a whole generation of doctors is being destroyed as we speak. When that is put alongside the implications of Brexit and the potential loss of experienced staff through the decision by many junior doctors to leave the profession or to go abroad, this is a worrying position. I have met a number of junior doctors over the past few months. They are clever, articulate and passionate about the NHS, but they have told me about the pressures that they are under, of the risky gaps that we now have in rotas which have developed over the past few years, of locums not always being available, of existing staff having to cover gaps at short notice, and of being hugely dependent on the good will of many staff, including junior doctors. The Statement of the Secretary of State is full of warm words about junior doctors’ working conditions, but as the Minister knows, the fact is that they do not have confidence in them. Frankly, I also do not think they have confidence in local management to implement the proposed contract in a way that is sensitive to their working conditions.

At the annual meeting of the Royal College of Physicians, its chairman pointed to the need for junior doctors to be valued, supported and motivated. Some months ago the RCP wrote to the Secretary of State outlining recommendations for improving conditions in training, including protected time for training and the promotion and support of flexible working, publishing rotas earlier and prioritising handover sessions. What progress has been made in responding to the sensible suggestions made by the Royal College of Physicians, and above all what are the Government going to do to endeavour to get back the confidence of junior doctors in the NHS and thus seek an end to this action?

[Lord Prior of Brampton]

My Lords, the noble Lord has raised many questions in his response to our Statement. He may well have read the article published earlier this week in the Times by Sir Simon Wessely, the president of the Royal College of Psychiatrists, which goes to the heart of what I would call the non-contractual issues that have bedevilled, coloured and provided the context for this dispute:

“Changes to the way that doctors are trained means that juniors face switching not just jobs but addresses every few months without much say about where they end up and when. Many seem condemned to spending years rootlessly shuffling from one place to another like lost luggage. Without any familiar faces, long hours are endured in relative isolation and managers who change all the time provide little or no recognition, let alone reward”.

This in a sense is what lies behind much of the dispute. The fact is that we had a contract that was wholeheartedly welcomed by Dr Ellen McCourt, now the president of the BMA, and by the association itself. The issues of difference in the contract were pretty small.

We have been discussing this contract for three years now and the Government have made 103 concessions. The Secretary of State’s door has been open throughout that time. The new contract is due to be introduced in October and at some point we really have to get on and introduce it. There is provision within it to review aspects as it goes forward. We have committed to looking at the gender pay issues that have been raised by the BMA and today HEE has published the work that it is doing on non-contractual issues with the BMA when the association is prepared to talk to it. The Government are bending over backwards to meet the BMA, but there comes a point where we just have to bite the bullet and go ahead with the contract that has been agreed, and that is the place we are in now.

The noble Lord referred to a lack of trust in local management and in the Secretary of State, but we now have the guardians of safe working hours built into the contract. They have a contractual commitment to report every quarter to the boards of trusts and to the GMC and the CQC every year. Plenty of independent safeguards have been built into the new contract. So while of course I understand many of the issues raised by the noble Lord, the Government have gone the extra yard every time they have been asked to do so and now we must get on and introduce this contract.

[Baroness Walmsley (LD)]

My Lords, I apologise to the Minister for not getting up quickly enough to add my questions from the opposition side before he gave his last response. We on these Benches welcome the fact that the strike planned for next week has been postponed. I think we have all taken very much to heart what was said by the GMC this morning. I hope the Minister can give an assurance that the Secretary of State will take this breathing space as an opportunity to get back around the table with the junior doctors not only to explore the details of the contract, which may not yet have been hammered out to everyone’s satisfaction, but to get to the core of the reasons why they are so up in arms.

I am very impressed by the fact that when junior doctors are marching along the street, they are not shouting, “Save our weekend pay” or “Save our training structure”, they shout, “Save our NHS”. That is what every single doctor in this country is committed to. The reason why doctors are so concerned is not the Government’s intention to make tests or more frequent investigations available on Saturdays and Sundays for patients in hospital, it is the fact that there are gaps in the weekday rotas now. The Minister is saying that there will be extra money and extra doctors. Where are they going to come from? Does he know how many doctors have investigated the possibility of emigrating or have even actually emigrated since the beginning of this dispute? I ask this because I am hearing about it all the time. I wonder where the new doctors will come from in order first to fill the gaps in the weekday rotas and then to provide extra services at the weekend. The £10 billion mentioned in the Statement is clearly not enough when we already have a £22 billion black hole in the NHS.

Over the Summer Recess we had so many news stories about units being closed, not just to reconfigure the services and provide better service for patients, but to save money, because the system is desperate to do that in the short term. The sustainability and transformation plans clearly do not have the confidence of the doctors, partly because they are very opaque and partly because they are very short term. They are picking up on any short-term economies they can make, rather than looking at the very long-term savings that might be made and bring better provision for patients. Will the noble Lord say where the extra doctors are coming from and how the Government plan to convince existing doctors in this country that they will be fully supported if they are to implement the Government’s policy?

[Lord Prior of Brampton]

My Lords, the noble Baroness made a valid point when she said that when she meets junior doctors on their demonstrations or marches, they are concerned about the NHS—rightly so; it will be a sad day when doctors are not concerned about the future of the NHS—but that is no reason for going on strike over this contract. We are perfectly happy to have a debate with them. We will disagree and agree on some things, but to launch a wave of strikes over this cannot be right. As the noble Baroness indicated, it is not the contract that they are worried about at all; they are worried about much more general things than the state of the contract.

Staffing is a big issue. There is no question but that after the Mid Staffordshire tragedy, we saw a huge increase in agency staffing. We saw that increase because we did not train enough of our own doctors and nurses. That is a long-term issue about increasing training numbers, but, in the meantime, part of the £10 billion of extra money we agreed to put into the NHS, which the noble Baroness’s party agreed to do at the last general election, has to go towards increasing staffing in our hospitals.

[Viscount Hailsham (Con)]

My Lords, my noble friend should take every opportunity to remind the electorate and the public who will be affected by these strikes that junior doctors are now refusing to accept and proposing to strike against an agreement that many of their leadership, including those now defending the strike, characterised as safe and fair. That is an absurd proposition.

[Lord Prior of Brampton]

My Lords, it is important that we distinguish between junior doctors, who are working incredibly hard in the NHS, and the BMA leadership in this case. I think the vast majority of junior doctors bitterly regret having to go on strike and will be extremely concerned about the huge damage it will do to patients’ interests. We are perfectly entitled to remind everybody that it was the leadership of the BMA who characterised this contract as being safe for patients and good for doctors.

[Lord Warner (Non-Afl)]

My Lords, I ask the Minister to go back to the non-contractual issues. As Sir Simon Wessely explained very well, they are the nub of this. The Secretary of State now has a major trust problem because these negotiations have gone on for so long. It has become very personal. If he wishes to convince the medical profession, in particular those thinking of coming into the medical profession, that he is serious about putting the medical workforce’s house in order, he has to do something—possibly step aside—to develop these ideas with the profession.

Can the Minister confirm that the number of people applying to medical school has dropped by nearly 14% over the last two years? There are so many vacancies now in medical schools that they have to recruit people to fill those slots through UCAS clearing. One-fifth of middle grades in the junior grades are vacant. In this situation—with people emigrating and with Brexit—we cannot expect young people to join this profession. The Secretary of State has to take some responsibility for changing that culture, bringing in some people to help change it and convincing the profession that it has a future.

[Lord Prior of Brampton]

My Lords, the noble Lord makes a number of extremely good points. I am not aware of that 14% decline in applications to medical school. If that is true, it is clearly very serious. I did hear a rumour that one medical school had to use clearing to fill the number of students coming in, but overall there is still a huge demand for people who want to go to medical school and they are still recruiting people with the best academic and other qualifications. On the noble Lord’s fundamental point, we have to rebuild trust in the medical profession. It was for that reason, in the main, that the Secretary of State asked Health Education England to lead the discussions on non-contractual issues, rather than being involved with it directly himself. I am sure that is the right way to approach this issue.

[Lord Davies of Stamford (Lab)]

My Lords, during the previous Statement the Government were at great pains to emphasise that they are totally committed to implementing all the promises made by the Brexit campaign to the British people during the referendum. We now hear reports that the very prominent promise made to the British people during that campaign to give the NHS another £350 million a week will not be fulfilled. Why have the Government decided to renege on that particular promise?

[Lord Prior of Brampton]

I am not sure the Government ever made that promise. That was a promise made by the Brexit campaign. The Government have committed to putting an extra £10 billion into the NHS over the course of the Parliament, but they are certainly not in any way committed to fulfilling promises or pledges made by the Brexit campaign.

[Lord Ribeiro (Con)]

My Lords, we can all be gratified that the junior doctors have decided to postpone their strike. I am sure that this is partly as a result of the pressure being put on them by senior doctors. They are the ones who know the consequences for patient safety because they are ultimately responsible when things go wrong. David Watkin, a past president of the Association of Surgeons, has written a letter to the Times today in response to Simon Wessely’s letter. He makes the interesting point that there is a real issue about the way our junior doctors feel supported—or should I say unsupported. There has been the loss of the firm structure whereby junior doctors worked part and parcel in a team, and they and a consultant knew each other, trusted each other and could rely on each other. As mentioned by the noble Lord, Lord Hunt, that has gone partly because of shift working, rota gaps and the need to fill those gaps.

Brexit provides an opportunity, whether we like it or not, to take time and look again at two regulations: the European working time directive, and the new deal. The main thing about the European working time directive is that some junior trainees—particularly in my specialty, surgery—wanted to work longer than 48 hours a week. For all other specialties you have to acquire knowledge, but for surgery, cardiology, nephrology and some other specialist areas, you have to learn the skills. Learning and acquiring skills takes time. Can we look at Brexit as an opportunity to assure some of our junior doctors, who feel unloved and unsupported, that there may well be a way to look at and improve their working practices?

[Lord Prior of Brampton]

My Lords, the origins of this dispute and lack of trust go back many years, to the end of the old firm structure. Many junior doctors feel a lack of support. It is easy to lob bricks at the Government, but the senior doctors and the royal colleges need to look at themselves pretty carefully and pretty hard in the mirror because they have some responsibility for this as well. I hope they will be very much part of working through some of these non-contractual issues, along the lines my noble friend suggested.

[Lord Willis of Knaresborough (LD)]

My Lords, does the Minister accept that this does not impact simply on junior doctors but that these strikes and the current chaos affect all the manpower within the NHS, particularly the registered nurses, who have to pick up a great deal of the slack in the absence of junior doctors, particularly when they are on strike? Rather than look at these issues at silos, I implore the Minister to look at the whole workforce and try to ensure that the modern workforce serving a modern NHS is one where integrated services mean integration of staff as well.

[Lord Prior of Brampton]

My Lords, the noble Lord makes a very good point. The changes that are coming upon the NHS, whether from technology or forced upon us, in a sense, by demographic change in the UK— meaning that much care that has traditionally been delivered in hospitals will need to be delivered outside hospitals in people’s homes and much care will be delivered by technology rather than directly by people—are all going to have a huge impact on a whole range of different staff levels, not just junior doctors.

[Lord Naseby (Con)]

Is my noble friend aware that I am in a doctors’ family? My wife worked full-time in a big practice. She worked every weekend and did her share of out-of-hours work. My son is a doctor. I hope some of the grandchildren will be. These young men and women volunteer to enter this profession, do they not? They take an oath, do they not? What the public find incomprehensible is that after several years of negotiation, they understood there to be an agreement and a recommendation from the then leadership of the junior doctors—agreed to by even the present leadership of the junior doctors—but once again the public are back on the rack. Is that not totally unacceptable?

I am afraid that I draw an analogy with the three-day week. I was the director of an advertising agency, responsible for the standby advertising. The miners’ strike required the Government of the day to publish the terms that they were offering to the miners on that occasion. I urge my noble friend to consider whether the time has not come for the public—the people, the patients—to be told exactly what was agreed in the summer and what additional benefits will be put forward to the junior doctors; I understand there are some. The public are the ones who will suffer. I do not want—as I am sure the rest of the House does not—to see patients suffer.

[Lord Prior of Brampton]

My Lords, the contract that has been offered to the junior doctors is not confidential. It can be made available to the public. Indeed, I think the main terms of that contract have been made available to the public. My noble friend is absolutely right that members of his family—and, indeed, my family and others we know—enter the medical profession as a vocation or a calling. It is an awful shame that that seems to have been lost in the dispute that has been happening over the past few months.

[Lord Cormack (Con)]

My Lords, following on from that point, is there not a case for the presidents of the royal colleges to have a greater leadership role? Is there not a case for the Secretary of State and my noble friend, in whose negotiating skills I have very great confidence, calling in the presidents to discuss this and see whether there is not some opportunity of rebuilding trust between individuals at the head of the profession and those junior doctors who are clearly disenchanted, disaffected and, frankly, behaving in a way that is not compatible with a true vocation?

[Lord Prior of Brampton]

My Lords, I agree with my noble friend. I think there is a huge opportunity here—actually, a necessity—for senior leaders in the profession, in the royal colleges, to play a really serious leadership role. Rather than standing on the touchline, if you like, they need to get on the pitch. There is a role for them. To some extent, they were instrumental in getting the two sides back to work again back in May. They were successful in doing that. Certainly, I know the Secretary of State would be very happy to listen to any thoughts that they have.