“The airline industry has learnt that pilots must feel they can speak out”
Jeremy Hunt, May 2016
You are a doctor, resident in hospital, not quite a consultant. You are employed by the hospital, but you rotate through different areas and different hospitals to broaden your experience of different practices. This is designed to make you a better, safer doctor.
One day you come to work, and find you are the only doctor working- there is no one else rota’d to be there. You have to look after your own hundred patients, but now you need to look after two hundred more. You are desperately worried this is not safe. People might get hurt.
As you have been taught to do, as a doctor and a hospital worker, you raise the alarm. You phone your bosses and tell them, you phone their bosses and tell them too. You try your best to keep people alive.
A few months later you sit down with your bosses, and they feel you harmed the reputation of the hospital. They sack you. Not just from that job, but from all training. In a single swipe, your career is over.
Fair? No. Safe? Definitely not. Legal? Surprisingly, and reprehensibily, yes.
At least according to a similar recent legal case against a junior doctor, Dr Chris Day, that decided that the sacking of a doctor for raising alarms over patient safety, for refusing to cover up negligence and potential harm to patients, is not only legal, but a ‘conscious choice of parliament’. The case is currently going to appeal in the Court of Appeal.
Does that sound right to you? As a patient? As a taxpayer? Your health service, at the absolute frontline, is staffed by junior doctors. These are the doctors that see you when you walk in the door, they will see you every day in hospital, they will do your surgery or keep your lungs breathing for you, they will resuscitate you if your heart stops beating. If there’s something wrong, you can guarantee, a nurse or a junior doctor will see it.
Legally- the hospital can’t sack a doctor for speaking up there and then. But doctors in training rotate department every 4-6 months and rotate hospital nearly every year. There is nothing to stop a ‘troublemaking’ doctor who points out dangerous care from having their career ended as soon as they move on to their next placement. A legal loophole, so dangerous it could swallow the entire NHS.
This has huge implications. Now we know this, many doctors, myself included, would think twice about speaking out. That in itself is a crime. We have mortgages and families- our livelihood cannot rely on the goodwill of pressured hospital managers. If a manager decides to, they can end your career, without recrimination.
I’d like to say the BMA and the GMC would step in to protect a doctor in this situation. The BMA proposed a clause in the new contract to cover this, but it’s legally flawed. The GMC have just been taken over by the department of Health, a conflict of interest in the making.
I’d like to say the Health Secretary, with his long term obsession with ‘whistleblowing’ and patient safety would help- but he himself spent taxpayer money cementing this loophole, keeping junior doctors vulnerable to dismissal for raising alarms.
How has this happened?
Well, all roads lead back to the government appointed body called Health Education England. Trainee doctors are employed by hospitals but hold a general training ‘number’ with HEE that delivers the doctors training over years, and partly pays their salary to their rotating hospital. This arrangement means they aren’t technically covered in law as our ’employer’, so can act with impunity in dismissing whistleblowers.
Funnily enough this is the same ‘training’ body that is threatening hospitals to cut funding for junior doctors if they don’t impose the contract upon them. This is how Jeremy Hunt dodged the legal challenge against imposition- by passing the buck, once again, to an organisation that can’t be sued, currently outside employment law. Proving they are legally our employers, as Chris Day is arguing, may have huge implications for further challenging the ‘imposition’ of the junior doctor contract.
Throughout this year we, as trainees, have fundamentally lost trust in the system. Through incidents like this, through the junior doctor contract dispute, through the years of increasing pressure on resources, target chasing and being ignored.
We have lost trust in the structures that run the NHS and their heads- Health Education England has proved it is neither interested in the ‘education’ of its members nor the ‘health’ of the patients they protect.
As long as we don’t get sacked, we won’t be ‘junior’ doctors for long. In time we will all be your consultants and GPs, the clinical leaders of the NHS. What then? Will we still carry a culture of fear and denial, instilled in us by a system that’s supposed to train and nurture us? Let’s hope not.
The future of a safe NHS depends on it. If you want to do something to safeguard that future, donate to Dr Chris Day’s legal fund here. He needs to raise £100,000 to continue his fight for whistleblowers everywhere.
Help make sure his voice, and all of our voices, are heard.