A leading barrister has dismissed a claim by solicitors acting for NHS Employers that doctors who take industrial action risk facing potential criminal liability.

The BMA asked Lord Hendy KC, of Old Square Chambers, to give his legal opinion on a passage in a document entitled FAQs – Contingency Planning and Industrial Action, which was published by Capsticks in October.

Capsticks solicitors proposed that ‘it is a criminal offence for a person to strike or take industrial action if to do so is likely to endanger human life or cause serious bodily harm’, arguing this applied to doctors in areas such as A&E, maternity, pharmacy and radiology.

The firm’s document suggested ‘the onus should be on unions/individual staff members to ensure that those areas designated critical are covered’ citing section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992.

But Lord Hendy said: ‘I see no justification for the assertion that s.240 compels an automatic exemption from the right to strike’.

His legal opinion, seen by The Doctor, says ‘the [Capsticks] document is in danger of seriously misleading readers, whether doctors or managers’ and ‘fails to do justice to the provision.’

Lord Hendy said several aspects require consideration, including whether an individual taking industrial action not only intentionally breaks their contract but also knows the ‘probable consequence’ of the breach will be to endanger human life or cause serious bodily injury.

He argues that probable has a different meaning to possible and thus, for criminal liability to be upheld, any potential claimant must prove ‘the doctor’s withdrawal of his or her labour is significantly more likely than not to be the cause of death or serious injury to a patient.’

Lord Hendy noted a guilty intention must be shown to prove criminal liability and that ‘a hypothetical patient does not suffice’ when arguing a life may be endangered by a doctor taking industrial action.

He said: ‘This is an important point, for whatever ill-will a junior doctor in the present dispute may have towards the secretary of state or towards his/her employing trust and which may be part of the motivation for his or her participation in the planned strike, it is next to impossible to conceive that a doctor will join the BMA strike with the intention of harming a patient.’

Lord Hendy cited ‘no legal precedent’ for claiming striking doctors intentionally endanger life, adding: ‘The offence does not even merit a mention in the leading criminal law text [Archbold on Criminal Pleading, Evidence and Practice, 2023].’

He said: ‘It might be thought grossly insulting for an NHS employer to suggest of its doctors that any of them would participate in industrial action in the belief that his/her personal participation (alone or with other BMA members) would, or would probably, endanger human life or cause serious bodily injury. It would be equally insulting to suggest that such a doctor would be indifferent (reckless) as to such a consequence.

‘The principle of ‘first, do no harm’ is in the mind of every doctor. The avoidance of danger to human life or of serious injury is the very reason why the BMA invariably seeks to agree arrangements to deal with the industrial action with NHS employers, in the first place dealing with emergency cover and in the second in the circumstances of a complete withdrawal of labour by BMA members.’

Lord Hendy noted the Capsticks document is ‘hardly conducive to the maintenance of good industrial relations in the NHS’ and ‘may impede discussions about strike arrangements’.