This post reflects my personal views and not necessarily those of any of my affiliations.
The terms and conditions (T&Cs) of the 2016 Junior Doctor Contract agreed between the BMA and NHS Employers were published in May 2016 and will be put to a vote of the BMA membership shortly. It is not yet clear how the junior doctor community will vote in this upcoming referendum, nor is it clear what would happen in the event of a ‘no’ vote. NHS Employers and NHS Improvement have asked trusts to pause implementation of the new contract pending the referendum’s outcome, but have asked employers to continue appointing guardians of safe working (the Guardian) in the interim.
The T&Cs place several expectations onto individuals and bodies within the world of junior doctors. Assuming the contract’s implementation timeline is unchanged, these expectations and associated practicalities warrant attention now.
Employing trusts have been subject to uncertainty during this industrial dispute. On the whole they have performed admirably, through workforce planning during junior doctor industrial action and commencing rapid implementation timetables following imposition. However, the real challenge for employers is the paradigm shift the new T&Cs represent:
- The Guardian – the T&Cs enshrine new levels of accountability that are not ignorable by employing trusts. At a minimum, a trust’s Board must now consider a quarterly report from the Guardian, which will detail rota gaps and missed training opportunities, as well as mandating a non-executive director as the lead in scrutinising this process. In addition, an annual report must be submitted to the Care Quality Commission (CQC). These lines of accountability create the interesting position where should a death occur linked to rota gaps that the trust’s Board were informed about but failed to action, a charge of corporate manslaughter could theoretically be brought.
- Exception reporting – in addition to the points above, employing trusts must create a robust and transparent protocol for exception reporting; a process where junior doctors submit notices of overtime hours, missed breaks and missed training opportunities for remedy or recompense. The most important consideration here is that junior doctors must be confident that using the exception reporting system will not lead to confrontation with supervisors and management. To maintain good working relationships with their local junior doctor workforce, an employer would do well to brand this as a prospective workforce-planning tool and ensure good relationships with their local negotiating committee (LNC).
- Financial considerations – a move towards ‘pay for work done’ places uncertainty on medical workforce financing for employers. Apart from the general belief that hours of good will are numerous and unpaid, the amount of extra hours work that could be ‘billed’ for has not been robustly quantified. When compounded by transitional pay protection, a probable need to increase HR capacity to redesign rotas, creating work schedules and remunerating the Guardian, financial ramifications for an employer are a real risk and challenge the cost-neutrality claimed by this contract.
- Rota design – the T&Cs set several new rules, including mandatory zero hour days and maximum numbers for consecutive long days/night shifts. It also suggests moving away from fixed leave practices, and states leave is to be granted for ‘life-changing events’ (e.g. weddings). The challenge here is that the expectation from the Government is to roster more junior doctors over weekends. However with a workforce of a set size, more stringent rostering rules in place and the apparent unintended consequence of a weekend supplement actually increasing the hourly rate of a doctor at weekends relative to weekdays, this may exacerbate current rota gaps across the week as well as making weekend rostering more expensive.
- Junior doctor fora – the performance of all these structures are proposed to be scrutinised by junior doctor fora. Bolstered with new contractual powers and in keeping with the politicisation of junior doctors during this industrial dispute, employers should assume that these fora will actively hold employers to account in conjunction with their LNCs.
- Fidelity clause on locum work – the poor financial state of the hospital sector led to regulators introducing the agency locum caps. The new T&Cs require trainees to offer, in the first instance, locum work via internal NHS staff banks at (currently) 122% of the prevailing hourly rate. Given the improved hours safeguards in the T&Cs, there is a risk that existing rota gaps are exacerbated in order to comply with new rostering rules. Employers may be heavily reliant on internal and agency locums to maintain service provision. They must find a way to mitigate this through an intuitive interface of their internal staff banks (to be agreed with the LNC), as well as clear guidance on when to breach caps to preserve service provision. This may go some way to address how this clause has been received by the junior doctor community; an apparent attack on professional time management autonomy that may see some avoiding locum work all together.
The Wider System
Several bodies are referenced in the proposed T&Cs. Their inclusion looks to address the extra-contractual morale issues that have come to attention during this industrial dispute.
- Health Education England (HEE) – The workforce planning arms-length body is frequently referenced within the new junior doctor contract. They must review the current system of inter-deanery transfers with a view to allow couples to stay in the same geographical area, they must work with NHS Improvement to implement lead employer models and they must not subject junior doctors to ‘detriment’ if they raise concerns (whistleblowing). Whilst a proposed contract review in two years will hold HEE to account against these points, the latter demands closer attention. It can be argued that HEE has considerable power over a junior doctor’s career; paying a substantial amount of their salary, arranging placements, determining progression through postgraduate programmes and educational oversight to name but a few. However, they are legally not an employer or employing agency and therefore exempt from the Public Interest Disclosure Act – the whistleblowing protection within the new T&Cs therefore has no legal basis. There is an increasing junior doctor voice calling for HEE to be considered an employer and therefore legally accountable to all that the Employment Rights Act details. HEE must consider carefully how they proceed in this matter or risk losing credibility in the eyes of junior doctors and a Government that champions openness and transparency.
- NHS Improvement – the hospital regulatory body has been tasked with oversight of contract implementation across England and working with HEE to move towards lead employer models. Given NHS Improvement’s accountability over hospital performance, which is affected by its junior doctor workforce, as well as the large number of expectations placed onto HEE, one should assume that the remit of NHS Improvement will only expand. They will need to prepare for this eventuality.
- The BMA – broadly (but not officially) the BMA Junior Doctors’ Committee endorses the new junior doctor contract. Their members will look to them to provide a ‘beefed-up’ contract checking service, better training for their regional junior doctor committee chairs, a widening remit and support for LNCs and representation as needed for Guardian disputes. Though slow on the uptake the BMA have also been open that the new T&Cs will lead to a decrease in career earnings for less than full time trainees (LTFTs) in some cases when compared to those on the current contract. The BMA’s membership will expect them to lobby and campaign effectively to mitigate this disadvantage of the new T&Cs. Intentions to pro-rate professional fees, such as Royal College memberships, examinations, defence union and BMA subscriptions themselves are welcome, but are only a start.
- The Government – despite NHS Employers’ initial scoping document prior to contract negotiations opening in 2013 making no mention of the current Government’s manifesto commitment for a ‘truly 7 day NHS’, the Government has linked these contract negotiations with delivering this ‘7 day NHS’. The Government’s chief negotiator, Sir David Dalton, stated the junior doctor workforce needed the ‘least work’ to deliver a 7 day NHS as they already worked evenings, weekends and nights. In keeping with national policy, consultant presence (senior decision makers) and access to diagnostic tests are currently the focus in improving emergency care across the week. Given these assertions, the Government is under pressure to show and measure how this contract will support delivery of a 7 day NHS. The bitter nature of the junior doctor dispute will only make consultant, GP and other healthcare profession contract renegotiations challenging. The Government must re-evaluate their approach if they are to achieve the workforce transformation they aspire to.
The Medical Profession
Medical professionals have been considered passive and rarely spoke with one-voice on non-clinical matters. The current industrial dispute has shifted this baseline, affecting both junior doctor and consultant groups. It can be argued that the new T&Cs give the medical profession avenues to ‘take back control’, however this is completely reliant on doctors engaging with these opportunities.
- The Guardian – this is likely to be a position employers will find challenging to fill. A newly created role with untested lines of accountability, guardians may find themselves ‘policing’ disputes between junior doctors and consultants, as well as managing pressure from the employer around granting payments or time-off in lieu (TOIL) within the context of rota gaps. The Guardian will have to earn the trust of both the junior doctors and consultant colleagues they work with and effectively manage the post’s workload given the limited programmed activities (PAs) employers are offering for these roles.
- Educational Supervisors (ESs) and Directors of Medical Education (DMEs) – both of these pre-existing roles will take on further responsibilities under the new T&Cs. The ES will receive exception reports from the trainees they supervise and will have to action them, with the Guardian also notified. If the exception report refers to missed training opportunities, the DME is then involved. Given both these roles have existing remits on training junior doctors, these new responsibilities may pose conflicts of interest. Both need to be clear how they separate mentoring, training and pastoral support from the exception reporting mechanism and then be open and transparent to junior doctors about it.
- Junior doctors – they must be engaged in the whole process for the T&Cs to work as intended. Without effective junior doctor forum leadership, engaging in the exception reporting process, maintaining relationships with DMEs, ESs and the Guardian and holding senior colleagues to account, the opportunity for control afforded by the new T&Cs will be squandered. Junior doctors must harness their current move away from passiveness, and then maintain it going forwards.
Where to next?
This iteration of the T&Cs places expectations onto several national, regional and local bodies, as well as professionals within the medical world. Given the implementation timetable, employers and staff will experience the T&Cs from August. It can be argued that the most salient change will be achieved through the actions of the medical profession, including junior doctors, DMEs, ESs, consultants and the Guardian. Collectively, they have the ability to repair relationships within their profession, hold employers and national bodies to account and, through the exception reporting system, quantify the workforce gap that exists and force policy makers to address it. Doing this may lead to a better service offered by medical professionals within the NHS. Such benefits will not only be felt by staff, through improving morale, recruitment and retention, but also to patients – the voice that has been lost throughout this industrial dispute. If this contract is implemented under whatever circumstances, all doctors will have the opportunity to take control at a local level. The question is whether or not they will take it.