Junior Doctors: Industrial Disputes

(asked on 3rd December 2015) - View Source

Question to the Department of Health and Social Care:

To ask the Secretary of State for Health, whether hospitals will incur financial penalties if they breach performance standards as a result of the suspended industrial action on 1 December 2015.


Answered by
 Portrait
Ben Gummer
This question was answered on 8th December 2015

In the normal course of events, a hospital which misses a key national standard (such as the 18-week referral to treatment waiting time standard or the six-week diagnostic wait standard) will incur a mandatory financial sanction applied by its commissioners, as set out in the NHS Standard Contract.


However, the Contract also includes a ‘Force Majeure’ clause (General Condition 28) which would, in principle, apply to planned industrial action. Under this clause, a provider is able to claim relief from its liabilities under the Contract, to the extent that an event outside of its reasonable control has directly caused it to fail to meet its contractual obligations.


Therefore, if a hospital were to breach an operational standard for the month, but could demonstrate to the commissioner that:

* this was solely and directly due to the action it had reasonably taken in anticipation of the industrial action proceeding; and

* it had done everything reasonable to mitigate the impact of its actions on achievement of the standard in that month

then the commissioner could set aside the sanction for that month.


If the breach of the standard was only partly due to the impact of the planned industrial action, only the relevant proportion of the sanction would be set aside.

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