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Junior doctors fail in high court challenge of new contract's legality Junior doctors fail in high court challenge of new contract's legality
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Junior doctors have lost a judicial review challenging the legality of a controversial new contract, which is now set to be introduced by Jeremy Hunt next week. Junior doctors have lost a judicial review challenging the legality of a controversial new contract, which is now set to be introduced next week.
In a judgment published on Wednesday, Mr Justice Green rejected arguments presented at the high court by five junior doctors that the health secretary had exceeded his powers. In a judgment published on Wednesday, Mr Justice Green rejected arguments presented at the high court by five junior doctors that the health secretary, Jeremy Hunt, had exceeded his powers.
A Department of Health spokeswoman said: “We welcome this clear decision by the judge that the secretary of state acted entirely lawfully. We must now move on from this dispute to the crucial job of making sure patients get the same high standards of urgent and emergency care every day of the week, which involves more than the junior doctors’ contract. The decision means that the long-running impasse over the contract remains. The junior doctors, who formed the group Justice for Health, claimed Green’s finding that Hunt was not imposing the contract, but merely encouraging employers to introduce it, was a victory for them.
“We urge the BMA to remove all threat of further industrial action so we can work constructively with junior doctors to address their wider concerns and better recognise their vital importance to the NHS.” Their interpretation was that it meant medics were free not to sign it and opened the door to negotiations with the NHS nationally or at trust level, although such a prospect appears unlikely.
Amar Mashru, one of the five who brought the case, said: “What is now allowed is the employers and employees at a national level to negotiate and agree terms which are genuinely in the interests of patients and staff. They are essentially free from the shackles of this irrational and hasty timeline set by the secretary of state.”
He said it was possible that trusts would retain the existing contract until new terms and conditions satisfactory to both sides were agreed.
Chris Hopson, chief executive of NHS Providers, which represents trusts, said: “Junior doctors have raised a number of legitimate concerns that still need to be addressed and NHS trusts will be working hard with their junior doctors to do so. In particular, those issues that are within the remit of the contract – for example the introduction of a new guardian role to each trust – need to be implemented consistently.”
He added: “As for suggestions that individual trusts have a choice as to whether to introduce the new contract or not, NHS trusts tell us that they believe a single national contract offers a consistent approach that is in the best interests of patients and the wider NHS workforce. This is also the view of the NHS arm’s-length bodies.”
The doctors had argued that the health secretary had no power, whether solely or with others, to impose terms on which junior doctors were employed, only to make recommendations; that Hunt had acted in breach of the requirements of transparency, certainty and clarity; and that he had acted irrationally.The doctors had argued that the health secretary had no power, whether solely or with others, to impose terms on which junior doctors were employed, only to make recommendations; that Hunt had acted in breach of the requirements of transparency, certainty and clarity; and that he had acted irrationally.
But Green rejected all three grounds, finding that the health secretary was encouraging employers to introduce the new contract, not compelling them to do so. He further said that he did “not accept the claimants’ argument that the evidence base upon which the minister acted was inadequate” and rejected the suggestion that Hunt had misled parliament. But Green rejected all three grounds. And he further said that he did not accept the claimants’ argument that the evidence base upon which the minister acted was inadequate and rejected the suggestion that Hunt had misled parliament.
The junior doctors nevertheless claimed the judgment as a victory. They said it showed that, contrary to Hunt’s previous statements, the contract was not being imposed and so junior doctors were not legally compelled to sign the new agreement. Dr Ellen McCourt, BMA junior doctor committee chair, said the concerns of junior doctors still needed to be addressed before the contract comes into effect.
Dr Amar Mashru, one of the five doctors who brought the legal challenge, said: “This allows the employees and employers at a national level to negotiate and agree terms which are genuinely in the interests of patients and staff.” “Today’s result should not be viewed as a win for the government,” she said. “This ruling will do nothing to address the fact that morale among junior doctors is at an all-time low. Nor will it quell junior doctors’ concerns about the imminent introduction of a flawed contract they have rejected, or the deep sense of anger and mistrust that has built up towards the government over the last year.”
He said it was possible that trusts would retain the existing contract until terms and conditions were agreed, rather than introduce the new agreement next week as hoped for by Hunt. The Department of Health urged the BMA to drop the threat of industrial action in light of the ruling. “We welcome this clear decision by the judge that the secretary of state acted entirely lawfully,” a spokeswoman said. “We must now move on from this dispute to the crucial job of making sure patients get the same high standards of urgent and emergency care every day of the week, which involves more than the junior doctors’ contract.”
The Department of Health said it would be seeking the repayment of taxpayers’ money spent defending the case up to the previously agreed cap of £70,000 and would use the funds to make a charitable grant to NHS charities. Green heard that lawyers representing Hunt had run up bills of around £150,000 and said that Justice for Health should pay £55,000 of that figure.
In a two-day hearing last week at the Royal Courts of Justice in London, Jenni Richards QC, for Justice for Health, asked the court to quash Hunt’s decision to bring in the new contract, which she maintained he had no power to do, especially since the Health and Social Care Act 2012 reduced the scope of the health secretary’s powers. In a two-day hearing last week at the royal courts of justice in London, Jenni Richards QC, for Justice for Health, asked the court to quash Hunt’s decision to bring in the new contract, which she maintained he had no power to do, especially since the Health and Social Care Act 2012 reduced the scope of the health secretary’s powers.
But Gavin Sheldon QC, appearing for Hunt, rejected the doctors’ arguments and said that their case was without substance. The health secretary had not decided to “compel” NHS trusts to use the new contract, he had merely approved it, Sheldon said. But Clive Sheldon QC, appearing for Hunt, rejected the doctors’ arguments and said their case was without substance. The health secretary had not decided to “compel” NHS trusts to use the new contract, he had merely approved it, Sheldon said.
“The secretary of state has not gone outside the scope of his powers,” he told the court. “The secretary of state has been clear about what his powers are.”“The secretary of state has not gone outside the scope of his powers,” he told the court. “The secretary of state has been clear about what his powers are.”
The five doctors’ high court legal challenge was crowdfunded by £300,000 from about 10,000 donors, most of them fellow junior doctors. They hoped that the court’s ruling would embarrass Hunt, and make it difficult for him to execute his threat to impose the contract, by finding that he had acted outside his powers or the law. The five doctors’ high court legal challenge was crowdfunded by £300,000 from about 10,000 donors, most of them fellow junior doctors.
Many junior doctors, frustrated that eight days of strike action between January and May had failed to force Hunt to lift his threat of imposition, hoped that the lawsuit might delay or even scupper altogether Hunt’s plans. Many, frustrated that eight days of strike action between January and May had failed to force Hunt to lift his threat of imposition, hoped that the lawsuit might delay or even scupper Hunt’s plans.
The British Medical Association is facing a backlash from its members after first announcing, and then last Saturday calling off, plans for a series of four all-out strikes by junior doctors as a way of increasing the pressure on Hunt. The BMA is facing a backlash from its members after first announcing, and then last Saturday calling off, plans for a series of four all-out strikes by junior doctors as a way of increasing the pressure on Hunt.
As things stand, NHS trusts across England will start phasing in the contract from next week in a process that will take about 18 months to put all 54,000 doctors below the level of consultant on to the altered terms and conditions.As things stand, NHS trusts across England will start phasing in the contract from next week in a process that will take about 18 months to put all 54,000 doctors below the level of consultant on to the altered terms and conditions.
This week Sir David Nicholson, who was the chief executive of the NHS in England until 2014, criticised ministers’ handling of the yearlong junior doctors’ dispute. This week Sir David Nicholson, who was the chief executive of the NHS in England until 2014, criticised ministers’ handling of the year long dispute.
“Clearly the government overall got it wrong,” Nicholson said. He said given that today’s generation of junior doctors wanted to work more flexibly and have more control over their lives, “it seemed to me that the way the conversation was going … I was really worried that it was less to do with the issues around that particular problem and more to do with a general idea that somehow we needed to put the junior doctors in their place.”“Clearly the government overall got it wrong,” Nicholson said. He said given that today’s generation of junior doctors wanted to work more flexibly and have more control over their lives, “it seemed to me that the way the conversation was going … I was really worried that it was less to do with the issues around that particular problem and more to do with a general idea that somehow we needed to put the junior doctors in their place.”