The junior doctor contract story was one of great complexity that ran over several years involving failed negotiations, industrial action and the unilateral introduction of a controversial contract which was rejected by a majority of BMA members. The purpose of this article is to summarise some key information that has recently come to light as a result of investigations undertaken using the Freedom of Information Act (FOIA).
Background to the DDRB’s 7 day service report
A key to understanding this affair is the role of the Doctors and Dentists Review Body (DDRB) and the overlap with the Conservatives’ vague manifesto commitment to a ‘7 day NHS’1. Ministerial diaries disclosed under the FOIA have shown that five internal Department of Health (DH) meetings took place involving the Minister Dan Poulter MP and a civil servant to discuss ‘setting the remit’ for the DDRB report2, the final remit letter being sent to the DDRB Chair Professor Curran on the 30th October 2014, requesting the DDRB report on contract reform for both consultants and doctors and dentists in training ‘in order to help deliver the aim of providing healthcare services seven day a week’. These documents have shown a ‘DDRB briefing’ meeting took place on the 3rd March involving Dr Dan Poulter and Sir Bruce Keogh2, just days before both the DH and NHS England delivered their oral evidence to the DDRB. The DDRB published this report on July 16th 20153, the same day Jeremy Hunt made his King’s Fund speech attacking doctors using the infamous Freemantle study’s mortality data4 in which he implied the government was intent on negotiation: ‘There will now be six weeks to work with BMA union negotiators before a September decision point. But be in no doubt: if we can’t negotiate, we are ready to impose a new contract’. Subsequently concerns have been raised over the conduct of both Jeremy Hunt and government in their use of non-peer reviewed data without adequate sourcing 5,6.
How the DH used the DDRB’s recommendations as rigid pre-conditions to negotiation
Disclosed DH documents have proven that the DH Minister Lord Prior met with the DDRB’s Chair Professor Curran on the morning of the day on which the DDRB review was published7, something that was later claimed to be a ‘coincidence’ by the DH’s civil servants. The briefing for this meeting noted that ‘government values the robust and independent advice of the PRBs’ and crucially that7:
‘The observations in this report present a balanced and generally positive perspective on contract reform, which will allow us to engage with the BMA on a very limited basis in order to seek BMA agreement to the contract changes. This will not be period of negotiation’.
On cross examination of the DH’s witness at Tribunal10 it was confirmed that ‘engaging with the BMA on a very limited basis’ was indeed the use of the DDRB report’s recommendations in full as pre-conditions to negotiation in July 2015. Notably the use of the DDRB’s recommendations by the DH as rigid ‘pre-conditions’ to negotiation is something that both the DH and Hunt repeatedly failed to admit, and even openly denied in public. For example Jeremy Hunt issued an overt denial that there ‘ever had been pre-conditions’ in November 20158. Hunt also stated in the House of Commons ‘Our preference has always been a negotiated solution but, as the house knows, the BMA have refused to enter negotiations since June’,. Recently at Tribunal the DH’s witness indicated ‘that the difference between the public and private statements of the Department of Health was in tone and detail, as opposed to the public and private statements being inconsistent’; certainly the GMC’s Terence Stephenson was able to see that the government was unwilling to drop its ‘pre-conditions’9.
The DDRB’s role and failures of process
The DDRB report’s conclusions made a clear judgement that the ‘weekend effect’ was addressable via the 7 day reforms ‘We find the case for expanded seven-day services in the NHS, in order to address the ‘weekend effect’ on patient outcomes….to be compelling’ and it cited the previously unseen non-peer reviewed mortality data in its key Table 2.13. At Tribunal the DDRB admitted that all data should have been submitted in written form and thus on the public record by stating that ‘one could not put in data in oral evidence’. However it became apparent that the mortality data (Table 2.1) had been submitted outside of the proper channel of written evidence and was thus not on the public record, as it should have been. Notably this data was both unpublished and non-peer reviewed. At Tribunal it was also shown that no evidence had been provided to demonstrate that the ‘weekend effect’ was in any way addressable and the DDRB witness was somewhat less confident than in the report as he claimed the DDRB ‘were merely suggesting that it might be possible to do something about the weekend effect’10. The DDRB witness also stated ‘‘none of the members of the DDRB could make medical judgments’, making it clear it was not the DDRB’s role to assess the reversibility of any ‘weekend effect’, however this is precisely what the DDRB report did. In addition it was shown that the DDRB had not costed contract changes in any detail, strange given that the report was meant to ensure ‘financial sustainability’10.
The DDRB is defined as ‘specialist, independent, pay review body’ that ‘exists to provide independent, expert advice and recommendations to Government’. However at Tribunal the DH and DDRB described a very different role, something which has not been previously ever stated in the public domain, bizarrely stating that the DDRB ‘provided a mediation role’ and ’a form of industrial relations negotiation’ respectively10. In attempting to be both an evidence-based independent body and an industrial relations mediator the DDRB failed to do either well, as demonstrated by multiple negotiations with only a final agreement being made via discussions brokered by the professional mediation service ACAS; the blurred and confused roles of the DDRB must be therefore be urgently clarified.
Ensuring proper transparency in health policy making could prevent such breakdowns by preventing the government holding apparent contradictory public and private stances, as well as by forcing policy to be evidence-based rather than catalysing the development of policy based evidence. The fallout of this is still being felt today as demonstrated by the worsening problems in both recruiting and retaining junior doctors11, as well the impact on the morale of the current workforce. It is vital that lessons are learnt, particularly in the context of the planned review of the contract in 2018, as if they are not then the fallout will only continue to worsen and harm patients in the process.
Benjamin Dean is an orthopaedic surgeon in training currently working in Oxford. He has had a long standing interest in medical training and related matters.
The robust analysis is welcome and warranted to separate fact from fiction. What is increasingly clear is that the political narrative itself must change - no amount of information can fix this. It is not the information gap that is important , it is the political mantra that has to be deconstructed - and that can only happen by election and regime change
Yet despite all this the BMA failled to show in court that the government was going to impose the new contract and the BMA that agreed to the role of the DDRC in the first place (despite the fact that the government had previously ignored its recommendations and instructed it not to make recomendations in the past.)
Anonymous - the BMA did not take this to court - it was Justice4Health who did that.