In November 2015 junior doctors in the National Health Service in England voted to take strike action if the government did not change its mind about a new contract, which had been debated for the previous two years. Just over 37,000 junior doctor members of the British Medical Association (from a workforce of around 55,000) were balloted, 76% responded and 98% of responders voted to strike, an expression of militancy on an unprecedented scale in the UK’s public sector. The dispute continued for almost a year, with repeated walk-outs and bouts of negotiation. Pickets outside hospitals made for good media coverage and became a focal point for public support. The strike collapsed in September 2016, after plans for escalation of the conflict were made public. This review of the dispute attempts to explain the course of the dispute and the causes for its defeat.
The course of events
The dispute over the junior doctors’ contract had been brewing for two years, out of public sight, before escalating and spilling out of the hospitals. The first strikes were scheduled for early December 2015, but were postponed after talks about the contract began with NHS Employers. These talks broke down in January 2016, and the first day of industrial action took place on January 12th, with junior doctors providing only emergency care for 24 hours, other staff doing the routine outpatient clinics, ward rounds and planned surgery (some of which was cancelled). Pickets outside hospitals carried banners about saving the NHS, and making the NHS safe for patients, and being treated without respect by the government. The Secretary of State for Health, Jeremy Hunt, became a hate figure for the medical profession, and public opinion sided with the junior doctors.
Further action was suspended by the BMA on January 19th to allow further talks, which also failed. A second day of industrial action, similar to the January strike, took place on February 10th, prompting the government to announce the imposition of the new contract in August 2016. Two-day strikes, took place on March 9th & 10th, April 6th & 7th, and April 26th & 27th. In the first two junior doctors maintained emergency care but this was withdrawn in the late April strikes, during which hospital consultants stepped in once again to provide the full range of NHS services. Talks with the government restarted on May 7th through the Advisory, Conciliation and Arbitration Service (ACAS) and on May 18th ACAS announced that agreement on a new contract had been reached.
The BMA recommended the new contract to its junior doctor members, but 58% rejected it on July 5th in a 68% turnout. The government announced that the phased introduction of the new contract would begin in August, and the BMA’s junior doctors’ committee prepared for more strike action – for five consecutive days each month, from September to December. Dr Yannis Gourtsoyannis, a member of the BMA’s junior doctors committee (JDC) was quoted by the Daily Telegraph (12/8/16) as writing:
‘It’s time to dust off our picket armbands. An escalated fight is on. Theresa May will reap what her predecessors have sown. The following two months are crucial for the Conservatives…We are about to throw a massive spanner in their works.’
He outlined plans for repeated and crippling strikes, increasing pressure on NHS services as winter approaches in ‘an escalated fight’ to get ‘more and more’ out of the Government, and to wage war on its policies. He suggested tin his message to junior doctors that future strikes would have a still greater impact.
‘It’s the trade union dispute of this century. That’s no exaggeration. This is about to be ratcheted up by an order of magnitude,’ he wrote.
The trades union dispute of the century lasted only a few more weeks. The first five day industrial action was called off in August after the BMA was contacted by many members who saw the planned action as disproportionate, and on September 24th the BMA announced a suspension of any further industrial action in England. This followed negative feedback from doctors, patients and the public, and discussions with NHS England about the ability of the NHS to maintain a safe service if the industrial action planned for October, November and December were to go ahead.
What triggered this dispute, in which a large part of the NHS’ medical workforce withdrew its labour, whilst branding itself as saving the NHS? And why did the momentum of the dispute run out when it did? This review of the dispute argues that three conflicts were rolled into one, making the dispute difficult to settle but also impossible to sustain. The conflicts were over the details of overtime pay in a new contract specific to doctors in training, the strains currently experienced by the NHS due to government limits on its funding and the pressure for ‘7 day working’, and the impact of medical work on doctors who are developing from novice status to becoming competent practitioners.
There are four parts to this review. The first describes the workforce and its contract with the NHS, touching on the idea of a highly-paid ‘precariat’. The second sketches the working environment in the NHS from Blair’s government to May’s, including the evolution of the labour market and the drive for a ‘7 day NHS’. The third discusses the nature of the work itself, emphasising the effects of ‘immaterial labour’ on the medical workforce. Part four outlines the strategy and tactics of the junior doctors’ campaign, exploring why the strike movement was popular but unsustainable, drawing on LeGrand’s description of Knights & Knaves in medicine, and the idea of a ‘drawing out battle’ as guides.
Part 1: The workforce and its contract
Junior doctors are doctors in training posts, on their way to becoming consultants or general practitioners. They remain ‘junior’ for between 4 and 10 years, depending on the specialism and their own circumstances, particularly part-time working. They are allocated to the training posts by ‘Deaneries’, bodies responsible for overseeing training in the NHS. This allocation of posts can separate couples, and is unpopular with doctors (because it limits their choice of workplaces) whilst being popular with the NHS (because it fills posts). Their basic annual salaries are in the range £23,000 to £40,000, before overtime and depending on experience.
Junior doctors have always worked long hours. In the 1970s an 80 hour week was common, and overtime (after 44 hours) was paid at one of third normal time. Not surprisingly, such exploitation was challenged in a three month industrial dispute in the winter of 1975/6. The result was a commitment by the NHS to reduce hours, and a somewhat improved pay deal that broke the then Labour government’s pay policy without either profession or government admitting it.
Progress in reducing hours of work was slow. Shorter working weeks meant not only recruiting more junior doctors but also creating more (expensive) consultant posts for them to graduate into. More junior doctor agitation in the 1990s led to the ‘New Deal’ contract, introduced in 2002. This contract was designed to reduce junior doctor hours in a phased way by making overtime expensive for the hospitals employing them. It was punitive towards employers and financially beneficial to some junior doctors, mainly those working frequent long shifts. It was assisted in its aim by the European Commission’s Working Time Directive (introduced in 1998), which specified hours of work, work breaks and recovery time.
The ‘New Deal’ contract
The New Deal contract was built around pay bands. The chart below over-simplifies a complex pay arrangement, but gives a flavour of the financial rewards (to the doctor) of out-of-hours work. The normal working week was defined as 7am to 7pm, weekdays; out-of-hours work began at 7pm on weekdays and included all Saturday and Sunday. A junior doctor working 56 or more hours per week, on average, would double his/her salary. The basic salary increased each year, automatically.
Between 40 & 48/week on average with high frequency out of hours work
As for 1A, but with medium frequency out-of-hours work
As for 1A, but with low frequency out-of-hours work
Between 48 and 56/week on average with high frequency out of hours work
Between 48 and 56/week on average with low frequency out of hours work
Over 56 hours/week on average
New Deal banding was applied to a group of junior doctors in a rota, rather than to individual doctors, for reasons of administrative efficiency. A snapshot of working hours was taken regularly across the whole rota, rather than counting the hours of each doctor for the entire rota. This also cancelled out any individual variations in working time to across the rota. However, this also meant that any changes in banding would apply to all doctors on that rota. So, for example, paediatricians in training would all be on the same band, even if their work was slightly different, with some in the maternity unit and some on the children’s wards. The hours that they actually worked would be captured in the snapshot.
The rules about maximum length of duty period and minimum length of time off duty applied one hundred per cent of the time. A single breach of these rules during a snapshot could make the whole rota non-compliant. In principle, if a single doctor in a Band 2A rota stays at work late or starts early, logging more than 56 hours per week, the result could be the application of Band 3 payment rates to all the doctors on the rota. Every doctor on the same rota would get double pay, even if they had not worked beyond their time limit. The same could occur in any of the Bands.
The New Deal contract was an hours-based rather than a professional contract, focused on working hours, rest time and pay. The system ensured that doctors were paid appropriately for the number and pattern of the hours they work. The use of punitive overtime pay to incentivise reduction in working hours was successful. Since 2007 less than 1 per cent of junior doctors in England have received Band 3 payments. In 2015 the current average extra payment for junior doctors across England was approximately 45 per cent of basic salary. This reduction in hours had been possible because of the increase in the numbers of junior doctors, by an average of 4.5% per year in the first decade of this century. However, because doctors in training were working considerably fewer hours, their average earnings had declined correspondingly compared to previous generations.
A new contract is called for
NHS Trusts did not like the Banding system because it was unquitable, opaque and open to abuseii. Banding could cost them a lot of money if they end up paying a whole rota extra because one member of it has worked beyond their band limit. It created adversarial relationships, made training posts with a higher banding more attractive – which skewed the labour market – and discouraged professional ways of working. Disputes between NHS Trusts and employees about banding could break out when the working hours snapshot was taken, because so much was at stake financially. Automatic annual pay increases were disliked by NHS Trusts because the increment was not dependent on demonstrably increased competence. All this is added to the administrative problem of organising work rotas around complex rules that governed break periods, rest time, the number of long or overnight shifts that are worked in a week, and so on.
Junior doctors did not like the banding system, but for different reasons. Payment for out-of-hours work constituted a large part of overall earnings, and so there could be significant variation in income between jobs. This could be a problem for doctors who wanted to purchase a house, for example, because they could not predict their future income even in the short term. It could also mean that a junior doctor who moved to a job with higher responsibility but a less intensive working pattern might take home less pay.
This variability and unpredictability in income added to financial pressures from increasing levels of student debt and the removal from most hospitals of free junior doctor accommodation. The costs of training and of being a doctor, including mandatory fees for professional registration with the General Medical Council (GMC), membership of a Royal College, examination fees, course fees, certificate of completion of training (CCT) fees and professional indemnity insurance, all rest with the individual junior doctor. The Doctors & Dentists Review Body (DDRB), which advises government on medical pay, noted that the basic salaries of doctors in training were in the lower quartile for their comparator professional groups.
Junior Doctors, whilst well paid at between £30k and £50k per year (including overtime), were beginning to look like members of a high-end ‘precariat’ – especially those with ambitions to work in the South East with its very high housing costs. We associate the idea of a ‘precariat’ with low-paid workers, but Seymour argues that “precarity is being thrust not just on migrants and the poorest, not just on women workers who become pregnant, not just on students and the young, not just on a shrinking manual workforce, but on public sector workers, from the bin men to the civil servants, from contract cleaners to health professionals”.iii
The NHS makes an offer
The New Deal contract had done its job of reducing the hours worked by junior doctors but was now considered obsolete by the Department of Health. Negotiations about a new contract for junior doctors began in 2012 and were interrupted by the BMA’s junior doctor negotiators in 2014, in protest at what they experienced as the government’s intransigence.
The principles – not the substantial terms – of the contract that Secretary of State for Health Jeremy Hunt proposed in 2015 included (amongst other things):
- The redefinition of normal working hours as 7am to 10pm on weekdays and Saturdays, with nights and Sunday attracting out-of-hours payments;
- An 11% increase in basic pay, with pay protection for those who might lose financially;
- An end to banding payments;
- An end to annual salary increments, with pay linked instead to stage of training;
- An upper limit to the numbers of hours worked, and to long shifts.
The response of the BMA junior doctor leadership to these principles was negative. Redefining ‘normal’ hours to include periods currently reimbursed as overtime would reduce income, although the 11% increase in basic pay would probably offset this for many. The end to banding was seen as a licence for NHS Trusts to exploit junior doctors and make them work more, not less, hours. Abolition of the salary increment was seen as an insult added to the injury of less overtime payment. Limiting hours of work further could lead to a further erosion of overtime pay, whilst shift length and other rules about breaks and rest periods are already in the existing contract or the European Working Time Directive.
Hunt threatened to impose a new contract based on these principles, in August 2016, unless negotiations re-started. This made the junior doctor ‘precariat’ take to the streets, threaten migration and predict an exodus into better-paid jobs outside the NHS. Five thousand junior doctors, medical students and supporters protested outside Parliament in September, and on October 17th 20,000 protested in London, in one of the biggest demonstrations that the NHS has knowniv. They saw Hunt’s proposals as a deliberate attempt to worsen their financial uncertainty. The BMA supporting its militant juniors, as did many (but not all) hospital consultants. An anonymous consultant summed up his experience as a junior doctor like this in the Health Service Journal:
“I am old enough to remember my 102 hour working week as a junior doctor and the burning resentment of earning 1/3 (yes not time and a third) of basic for every hours over basic (c 40 I think). I am an old lefty dedicated to the NHS and have never worked anywhere else – still working full time (about 60 hours a week including nights for 40 hours pay). But in my heart those years as a JD gave me a view of the NHS as a bloodsucking parasite that would take all it could from a doctor and throw away the husk when everything was gone. I was once told by medical staffing ‘there are plenty more where you came from’. I am right behind the junior doctors and so are very many of my generation’.
The employers in the NHS Trusts favoured the proposed principles, which would simplify out-of-hours payments and reduce their administrative and financial burdens, and privately thought the juniors were making a mountain out of a molehill.
It is difficult to know whether Secretary of State Hunt was deliberately promoting a fight, or had blundered into a conflict because he did not understand the undercurrents in the medical profession. He seemed unprepared for a dispute. For example, the economic modelling to show who would gain and who would lose from the new contract had not been completed, right up to the strike ballot.
Part 2: Strains in the NHS
From its beginning the public conflict with the Secretary of State for Health extended beyond the details of the contract, including making the NHS safer for patients and saving the NHS from the government. These new themes tapped into a deep resentment in the medical profession towards the management of the NHS by successive governments, from Blair’s second administration onwards. In 2005 the Modernising Medical Careers programme restructured medical training and increased the number of consultants by reducing the training hours needed to reach the consultant grade from 21,000 to 6,000. This was seen as positive because it accelerated promotion, but was disliked because it introduced a highly bureaucratic model of working in which doctors advanced in their career by gaining competencies based on a series of tick-box exercisesv.
To rationalise the appointment of junior doctor posts the Blair government tried, in 2007, to introduce an electronic system for matching applicants to training posts, the Medical Training Application Service (MTAS). The electronic system crashed almost immediately, and caused so much distress to junior doctors that they organised street demos and issued threats of emigration. The government retreated to fix the failed system, but the debacle revealed that 28,000 trainees – including applicants from the European Union – had applied for 22,000 jobs. With MTAS the prospect of substantial medical unemployment appeared for the first time in the NHS.
Then in 2012 the Coalition introduced a reform of NHS pensions, ending the final salary pensions that previously made NHS employment such an attraction for doctors. The BMA led a campaign of protests that rapidly petered out, leaving it looking both ineffective and overly privileged. One BMA Council member, Dr Kailash Chand, described the protest as the ‘wrong fight at the wrong time with the wrong tactics’.
In the same year the Coalition introduced the controversial and much challenged Health and Social Care Act that extended market mechanisms into the NHS, in order to reduce system stability and promote competition between NHS and private providers. The BMA opposed it, but ineffectively.
We can add to this list of stressors the government’s pressure to implement ‘7 day working’, and the stresses and strains produced by the short-fall in the health service budget between 2010 and 2015. The argument that the NHS should be functioning seven days a week not five became part of the Conservative General Election manifesto in 2015. The argument was based on evidence that mortality rates for patients admitted to hospitals is higher at weekends (now contested), that junior doctors felt clinically exposed and unsupported at weekends, and that hospital chief executives were worried about having enough medical staff, out of normal hours. It also seemed that the lack of many services at weekends had an adverse effect on measurable outcomes in each of the five NHS priorities: mortality amenable to healthcare, treatment of long term conditions, outcomes from acute episodes of care, patient experience, and patient safety. It also seemed inefficient that in many hospitals expensive diagnostic machines, laboratory equipment and pathology laboratories are underused, and operating theatres were unusedvi. Pressure was applied by the new government to make 7 day working normal for the NHS as a whole.
The NHS budget grows by 3-4% each year, above inflation, as new technologies and treatments are introduced and new staff recruited. The conservative government has restricted this increase to around 1%, which will result in a £22 million budget shortfall in the NHS by 2020. The growth in demand is so great that the hospital sector is struggling to solve the crises presented to it, whilst the NHS is now so constrained financially that its normal functioning cannot be guaranteed. The £22 million budget shortfall in England is too big to be corrected by increased productivity, new ways of working, pay restraint and reductions in expenditure on medication. The government’s expectation that squeezing the budget will stimulate higher productivity and creativity in work organisation is not shared by most of those running or working in the NHS. Their expectation is that staff will have to be sacked and services withdrawn.
Within a few years governments of different parties have demonstrated to new entrants to medicine that they face possible unemployment, but if successful will work hard in increasingly competitive and potentially unstable environments. At the end of their career they will receive a smaller (although still substantial) pension than their predecessors. The security and stability that the NHS used to offer to its medical staff, even when it was exploiting them, has been eroded. The rage of the junior doctors and their apparent determination to strike are understandable, given this background. Whether they were right about the new contract being a danger to their salaries or to patient safety was almost beside the point.
Much rode on this wave of anger. If the BMA failed to gain concessions from the Secretary of State, it would be damaged. Losing the argument about pensions and being over-ruled in the debates about the Health & Social Care Act have dented its image as the most powerful trades union in the country. Some in the health service would be secretly pleased if the BMA took a beating, because some doctors are seen as obstacles to change within the NHS. Angry juniors might decide to organise separately from the BMA, as they did in the run up to the 1975 dispute. If on the other hand the BMA could force Hunt to back down, his job would surely be under threat, especially if public perception continued to favour the junior doctors. The task he was given by the then Prime Minister David Cameron was to keep the NHS out of the headlines, and he was failing badly.
Part 3: The nature of medical work
In an average 8 hour shift a junior doctor can receive 100 new tasks, ranging from resuscitating someone in the A&E department to reviewing medication for a patient being discharged, or interpreting test results in an individual who the nurses think is deteriorating. Much of this work is ‘hands on – examining, ordering investigations, operating – but all the physical, tangible effort depends on immaterial labour, the use of judgement and discernment, openness of mind, the ability to draw on formal scientific knowledge and synthesis it with experiential knowledgevii. Training programmes for junior doctors are mechanisms for adding cognitive and social skills to the formal scientific knowledge acquired in medical school, so that tasks can be performed that require analytic expertise and collaborative working. The value added by this labour derives from the aptness of the web of communications woven around the productive process of medical care, as well the ability of individuals and teams to cope with the unexpected and to identify and resolve problemsviii.
A looser apprenticeship
Changes in the organisation of medical care in hospitals may have increased strain among junior doctors by undermining the ‘firm’ system of apprenticeship. The ‘firm’ was a hierarchical, collaborative work group of doctors of all stages of training, led by one or more consultants, which preceded the NHS and was taken over by it. Junior doctors belonged to firms which offered an apprenticeship style of learning that demanded long hours of work. The ‘firm’ system went into decline when the European Working Time Directive (EWTD) was enacted in the UK in 1998. Modernising Medical Careers (MMC) in 2005 further changed the training of doctors, favouring a looser organisation of shift-workers with less personal interaction to the tight but highly personal organisation of the ‘firm’ix.
So, under the old firm system junior doctors training in general surgery, vascular surgery or urology (bladder & prostate surgery) would work long hours in parallel teams. After the demise of the firm system these junior doctors would work shorter daytime hours but ‘out of hours’ (evenings and weekends) would provide cover across the three surgical specialisms. The consultants would work with a larger pool of junior doctors, determined by who was on shift. Junior doctors on night shifts during the week may not meet the consultants who are working during the day. Emergency cover may be provided by junior doctors who are not known to the consultant on call.
This immaterial work is demanding and stressful. The BMA began logging the stresses that junior doctors experienced, and its impact on them psychologically, before the contract dispute began. The union argued that the working patterns of junior doctors has turned training into a ‘trial of endurance’, identifying the ‘rapid, evolving change’ that the NHS experienced in 2011 and 2012 and poor job security for trainee doctors as causes of worsening mood and moralex. Adding insult to injury, bullying emerged as a widespread problem in the NHS. One study showed that a fifth of all medical students and a quarter of student nurses experienced or witnessed bullying in their first year of clinical training. Nurses resisted more than medical students, who acquiescedxi.
This experience is not confined to the NHS under Coalition or Conservative control. The same problems are documented in the very different health care system of the USA, most recently by Schwenk’s editorial in the Journal of the American Medical Associationxii. Doctors in training in the United States experience depressive symptoms at much higher levels than their peers in other jobs – ranging between 21% being symptomatic at any given point in their training and 43%. This symptom burden has significant consequences for doctors and patients, in terms of burnout, medical errors, ethical lapses and less personalised care.
Schwenk describes the working environment of doctors in training in terms that sound familiar in England, even if we would emphasise them differently: reimbursement systems for hospitals that limit the opportunities for patient engagement; life-prolonging technologies that lead to unsolvable ethical dilemmas; electronic medical records and documentation requirements that lead to inaccurate and sometimes dangerous cut-and-paste shortcuts; and short patient lengths of stay in hospital that require protocol-driven care with little opportunity for thinking and learning. Not to mention ‘consumer’ demand and fears about litigation. He sums up the problem like this:
‘The profession purportedly recognises the importance of health and wellness but the value system of the current training environment makes clear to residents (junior doctors) the unacceptability of staying at home when ill, of asking for coverage when a child or a parent is in need, and in expressing vulnerability in the face of overwhelming emotional and physical demands’.
Part 4: Strategy and tactics
The mandate for industrial action was huge but inevitably there were differences of opinion within the junior doctor workforce. The BMA organised two thirds of junior doctors, so there was from the outset scope for dissent from a sizeable group of doctors. Early on there were rumours of a division of opinion within the BMA itself about tactics, with a faction wanting to contain the combativeness of the junior doctors’ committee. The British Medical Association’s house magazine, the British Medical Journal, published a review of the dispute on December 5th 2015 that gave prominence to the views of Dr Henry Murphy, an Accident & Emergency trainee. He disassociated himself from the majority vote for industrial action and wrote about the ‘hounding’ of some of those who were opposed to strikes, calling for more respect for differences of opinion within the profession.
In the run-up to the first rounds of industrial action the dispute began to look like a classic ‘drawing-out’ battle, with each side is testing the other’s mettle, firepower, resources and resolve. The BMA and the government needed to know the same things. Would junior doctors actually strike in the numbers implied by the ballot? How many consultants would actively support them? How much collateral damage (patient harm) would there be? How would the media portray junior doctors, as champions of the NHS or as selfish and unprofessional? Could the government hold its nerve and sit out a series of strikes, and what room for manoeuvre would the BMA then have if it did?
The strikes between January, February, March and the beginning of April had an impact on the NHS, especially with the cancellation of outpatient clinics and some planned operations, but they were also symbolic. Junior doctors withdrew labour from 8am to 5pm, but the peak activity period for the NHS in terms of emergency admissions is from around 4pm to midnight, so striking doctors were still available for the busiest period for emergencies, after picketing outside their hospitals. The actual numbers involved in the strikes are unclear. NHS England reported that, during the two-day strike on April 6th & 7th some 12,800 junior doctors had been on strike, and 1,800 absent for other reasons (mainly sickness) xiii. This reliance on symbolic, short-term withdrawals of labour changed at the end of April.
The 48 hour walk out of junior doctors on March 9 and 10 2016 did not gain as much mainstream media coverage as the previous one day stoppages. Nor did it trigger government concessions on the new junior doctor contract. So in mid-March the BMA announced a full walkout by junior doctors, this time including those providing emergency care, at the end of April. Accident & Emergency department doctors were among those most concerned about the new contract and pressure for a full walkout had grown among BMA members frustrated that the union has so far proved powerless to prevent imposition of a new contract.
Junior Doctors’ leader Dr Malawana added: ‘We have shown solidarity, stated our case clearly and passionately to the public, and done everything possible to avert what could be the worst of all worlds for junior doctors – the refusal of the Government to get back around the table forces us down this road.’<
Public opinion polls show high levels of support for the junior doctors and social media carried testimonials from individuals expressing no anger, sometimes even gratitude, about their postponed hospital appointments. Yet there was also a sense that the dispute has gone on too long. Writing for the Guardian on March 13 2016, Sonia Sodha said:
‘So what’s the link between Saturday pay and patient safety? A BMA spokesperson told me the Saturday pay dispute will further damage junior doctor morale, with knock-on impacts for patient safety.Let’s call a spade a spadeThis is a workplace dispute about terms and conditions, not a campaign to save the NHS. There are bigger and more immediate risks to patient safety: hospital trusts under great financial strain struggling to meet safe nursing levels; cuts to social care budgets putting immense pressure on hospital beds.
This echoed a ‘plague on both your houses’ piece in The Economist on February 12 which sympathised with the junior doctors and criticised the Health Secretary Jeremy Hunt (whilst deeming him well intentioned). Unable to decide which side it favoured, The Economist blamed the British public for being an:
electorate that notionally adores the NHS, propels a mushy song by health workers to the top of the Christmas charts, happily accepts the left’s bogus insinuations that the only alternative is an American-style private health-care model, equally happily votes for Tory politicians promising to expand services to weekends and yet, despite all this, shows remarkably little willingness to pay more in tax towards what remains a relatively cheap system’.
Negotiation and bargaining
Profession and government did seem to be talking about different things, when they were talking at all. The message from NHS Employers’ was that agreement was close, the unresolved problem was about pay, but the BMA was inflexible and petulant. The BMA emphasised the gulf between the two sides, stressed that its interests in fairness and patient safety were noble ones, and complained that it was not taken seriously.
Whilst not taking The Economist too seriously, we might learn something useful from two particular economists, Roland Benabou and Jean Tirole, whose 2009 essay ‘Over My Dead Body: bargaining and the price of dignity’ casts some light on the disputexiv. They say:
‘Concerns of pride, dignity, and the desire to ‘keep hope’ about future options often lead individuals and groups to walk away from reasonable offers, try to shift blame for failure onto others or take refuge in political utopias. Costly impasses and conflicts result’.
Both sides blamed the other, and the junior doctors – many of whom genuinely believed they were saving the NHS –were offered a political dystopia. As the junior doctors’ leader Dr Malawana put it, failure to achieve the BMAs objectives would bring about ‘the worst of all possible worlds’, which seems an odd conclusion after months of negotiation had apparently brought both parties closer to a resolution. Nor was it made clear how an uplift in basic pay but a reduction in Saturday overtime pay might constitute the worst of all possible worlds?
Andy Cowper, writing in the BMJ in February 2016, argued that concessions obtained from the government could have been presented as success, had the junior doctors’ leadership been less entrenched and politically and strategically smarter. And, he added, both Hunt and the junior doctors leaders might have been enjoying the ‘power trip’xv.
The withdrawal of all labour for two days at the end of April 2016 had an effect on both the performance of the NHS and the nerve of the BMA, and negotiations restarted, with help from ACAS. The contract that emerged from these negotiations was accepted by the BMA leadership but rejected by their membership, although with a reduced turn-out and only a 3:2 majority against acceptance. Whilst plans for 5 day walk-outs, including emergency care, were being made, the BMA surveyed its junior doctor members about the wider range of problems beyond the contract, and started to hear concerns about the disproportionate tactics being proposed. Leaks from within the BMA to the Daily Mail suggested there was widespread opposition to the planned 5-day strikes amongst junior doctors. The BMA survey results were not published.
Capitulation, when it came, was complete. The strike planned for early September 2016 was the first to be abandoned. On Saturday September 24 the BMA announced a suspension of all further junior doctor industrial action in England. This followed feedback from doctors, patients and the public, and discussions with NHS England about the ability of the NHS to maintain a safe service if the industrial action planned for October, November and December were to go ahead.
The defeat was ignominious, and made worse by a failed legal challenge to the Secretary of State’s right to impose a contract. Senior members of the medical Royal Colleges, who had tried to walk a fine line between supporting junior doctors and ensuring the health service could function, began to speak(off the record) about ‘Generation Me’ – entitled young people who want lots of money but not to work hard, and feel they should have it all. Hospital managers who noticed how much more efficient their services were when consultants delivered them are wondering if having so many junior doctors is the best option for the NHS.
Only one of the three disputes has been settled, with a new contract that is being introduced despite being rejected by many thousands of junior doctors. Important concessions were obtained from the government, but no doubt loopholes will need to be closed and snags removed. Local, hospital level, bargaining will help tailor the new contract to circumstances, and local vigilance by the BMA should counter attempts to increase junior doctors’ hours. Overall, the government achieved its desired re-categorisation of Saturday working as normal working hours, taking it a step closer to 7 day working. It seems unlikely that there will be any further national dispute over junior doctors’ working hours in the near future.
The pressures inside the NHS are building up, as cash-flow crises are averted just in time, and managers struggle to streamline services or just keep up with demand. This is a political dispute that may well overshadow the 2020 general election, but it is not amenable to industrial action within the health service by a section of one profession, and its outcome was never in the junior doctors’ gift. At first sight it seems was remarkable that they thought it was. This identification of the needs of some doctors with the needs of the NHS as a whole, and of the public it serves, exemplifies LeGrand’s analysis of medical professionalism as a game of Knights and Knavesxvi. In Knight mode the profession draws attention to its altruism, its central concern with the patient, and its willingness to go beyond the usual limits (including overtime working) to help others. In Knave mode it points out that its altruism will not be sustainable without more income. Much of the confusion in the junior doctors’ dispute arose from this dualism.
Debates on NHS funding will dominate politics up to 2020, but the other problems revealed by the junior doctors’ dispute will not go away, and there are many questions left unanswered. The tensions inherent in modern medicine are the province of the medical and surgical Royal Colleges, whose brief it is to define and nurture professionalism. At the very least systems of mentoring and support for doctors in training need to be invigorated and applied. There may also be a case for a wider debate about the effects of immaterial labour on medical, nursing and allied health professional workforces, all of which have problems of recruitment and retention of staff, and how to ameliorate them.
Do we have in the NHS a high-end precariat, becoming used to less secure employment than their predecessors? If yes, will this be a problem that a future Labour government could solve? Stabilising the medical labour market, perhaps even restoring the old firm system, might be possible, at a price. The price will need discussion, for trading off shorter working hours for less income security may become acceptable to doctors who are, after all, on their way to affluence. Should a profession earning in the top 10% of the income distribution enjoy the security earned by the generations that founded the NHS, in a society where growing inequality is so salient?
Finally, there is the BMA, defeated repeatedly by successive governments but now readying itself for contract negotiations for hospital consultants and general practitioners. It was intoxicated by the energy of the junior doctors, only half grasping the impossibility of their aims. Will it recover its power?
Acknowledgements: I am grateful to all the senior and junior doctors who shared their ideas, impressions and understandings of the junior doctors’ dispute with me. The interpretations in this review of the dispute are entirely my own.
Steve Iliffe, December 2016
Steve Iliffe took part in the 1975 junior doctors’ industrial action in 1975 as a House Officer at Leicester Royal Infirmary, and was co-author of the history of the dispute, ‘Pickets in White’, published by the Medical Practitioners Union in 1977. He is emeritus Professor of Primary Care for Older People at University College London.
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