The 11th Hour

Late in the evening of 30th November 2015, just hours before industrial action was due to start, word came from the negotiating rooms: the strikes were off. The first doctors’ walk-out in over 40 years – and the first junior-only strike in history – was to be pushed back until at least early next year; productive talks between the BMA and NHS Employers had, at the last possible moment, finally begun. The cause of this extraordinary brinkmanship: a controversial new employment contract which the Government had threatened to impose on all junior doctors in England from August 2016.

Before we address the contract, it is worthwhile reviewing the story so far. Negotiations between the BMA and NHS Employers (NHSE) began in October 2013 but stalled a year later. The Government subsequently asked the Review Body on Doctor’s and Dentist’s Remuneration (DDRB) to provide recommendations, 23 of which were presented by Jeremy Hunt in July 2015 with an ultimatum that if the BMA did not return to negotiations they would be implemented anyway. The BMA Junior Doctors’ Committee decided in August not to re-enter talks, arguing that “the threat of imposition” made negotiation impossible (2). In the following weeks, the attitudes of doctors towards the contract were made abundantly clear – that it is not safe for patients, not fair for doctors and risks the future of the NHS. The rebellion quickly gathered pace and sparked several public protests, the largest of which, in London, was estimated to be 20,000 strong (3). A ballot on industrial action was announced and ran November 5-18. The results were unequivocal: on a turnout of 76%, 98% had voted to strike (1). Junior doctors were united in opposition the new contract. Industrial action seemed inevitable.

The recent decision to postpone strikes has, unsurprisingly, proven highly controversial, and the implications will only be fully realised in time. Putting this aside for the time being, there is perhaps no better time to reflect on this bitter conflict. In this article I shall review the factors which have brought doctors so close to strike – both intrinsic to the contract and in the extrinsic barriers to settlement – and consider, as negotiations commence, the prognosis for the future.

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Reduced Pay

Much of the media circus has – rightly or wrongly – revolved around the question of pay. Indeed, it is an area of enduring controversy – whilst NHSE insist that the size of the overall pay packet is unchanged, many junior doctors fear that their salary could be cut by 30% or more (4). As each doctor’s pay is calculated individually, the precise impact will not be known until it is implemented, but it is now clear that a significant proportion, particularly those who frequently work evenings and nights, will lose out, with further scope for cuts in the future.

Concerns about the financial wellbeing of doctors are not new. Though there remains a widespread public perception that doctors are generously compensated for their work, it is difficult to argue that this is still the case. A recent study found that medical students graduate with debts of £64000-£80000 and that many will never earn enough to repay their student loan, sums which are higher still for international students and cohorts paying £9000 fees (5). Despite this, the basic salary for F1 doctors sits at £22636 (to be raised to £25500), well below the national average salary of £27600 (6). Finances have also been squeezed in other ways: free accommodation for F1 doctors have been removed and pensions cut as professional fees for exams and registration grow (5). Any further adjustments, then, will be imposed on a population already under significant strain.

Under the new junior doctors’ contract, the government will attempt a roughly cost-neutral redistribution of pay. The current method of pay calculation, known as “banding”, consists of basic income plus a pay supplement – up to 50% of basic pay – based on the working pattern, intensity of work and number of “unsocial” hours worked. The DDRB have proposed that this system be replaced by several smaller enhancements. This includes an 11% increase in the basic salary, the ability to work additional hours up to 56 per week, increased pay during “unsocial hours” and other small bonuses (7).

The DDRB argues that this provides a fairer, more granular calculation of payment. However, the extent to which the new bonuses will compensate for the loss of banding is hotly contested. First, number of hours considered “unsocial” and which thus attract a premium rate have been significantly reduced: “plain time” will be extended from 7am-7pm Monday-Friday to 7am-10pm Monday-Friday and 7am-7pm on Saturday (8). As a consequence, junior doctors who have duties that frequently encompass evenings and weekends will receive bonuses for a far smaller proportion of their shift. This change particularly hits acute specialties such as A&E and intensive care, which, as we shall explore later, may exacerbate serious crises of recruitment. Other sources of income have similarly seen cuts. A new allowance for on-call availability, which involves long hours of continued vigilance, provides only a 2-6% bonus (2). Non-resident on-call pay is being similarly degraded; doctors will receive a simple allowance for being available and not pay for each hour they work. The DDRB also recommends that “fees earned during private professional work during NHS time should be remitted to the [employer]” (7). Though largely reasonable, many trainees routinely perform this kind of work for clinical benefit, such as psychiatry trainees who complete Fitness to Plead reports.

Arrangements for mitigation of income loss from the junior contract, known as Transitional Pay Protection (TPP), are temporary and not comprehensive. This scheme applies a basic calculation to ensure that no junior doctor receives a pay cut until 31st July 2019, though, as we shall see, doctors whose shifts overrun may lose out in practice due to reduced checks. Furthermore, medical students today will see no such protection. Though TPP will soften the blow in the short-term, the door remains open for further cost savings in future and it is unclear whether these savings would be re-invested into junior pay; short-term assurances may disguise a negative long-term impact.

No doctor goes into medicine purely for the money, but changes in the proposed contract represents for many a further squeeze on the finances of those who can ill-afford it. By the end of training, at least, juniors can still expect to receive a reasonable income, but given the huge amount of training involved and the responsibility of the daily job, they remain shamefully undervalued. 

Excessive Unsocial Working Hours

Another key concern is that junior doctors may be forced to work increasing numbers of weekends and evenings – often for routine work – leading to more irregular working patterns which could contribute rising levels of fatigue and stress and ultimately endanger patient safety. NHS Employers are at pains to highlight some positive changes – for example, a reduction in the legal limit of weekly hours from 91 to 72 and reductions in the number of consecutive days and nights that can be worked. However, the vast extension in the number of “plain time” working hours means that juniors doctors can be be asked to perform routine work throughout these times with no financial penalty to the trust and often without senior supervision. The work-life balance of doctors, already precarious, will be further compromised by these changes.

Removing the “banding” system takes with it the built-in safeguarding system against doctors doing unpaid overtime, offering junior doctors decreased protection against the abuse and overwork the system was initially implemented to prevent. Employers currently have a financial interest in planning rotas and staffing wards appropriately and regularly monitors juniors’ working hours, offering supplementary payments for working beyond scheduled hours. In lieu of these systems, the DDRB recommend that employers simply follow the law on Working Time Regulations, overseen by the Care Quality Commission. However, this offers shorter and fewer breaks as standard, down to 20 minutes every 6 hours, with no financial penalties for employers, less regular monitoring and no enforcement mechanism of immediate impact. The net impact of reducing safeguards whilst spreading shifts throughout all times of the day and week is a threat of returning to a time in which junior doctors were overworked to breaking point, a state which will only further compromise patient care.

Slower Pay Progression 

Changes to the system of pay progression mean that those who work less than full time will lose money over the course of their career compared to the current deal. Today, doctors receive a pay rise each year after graduation; the Government proposes that instead, pay would be tied directly to the level of training – for example CT3 or ST5. In total, there will be 6 pay increments which span the 11 stages, fewer than exist today (7). It is not difficult to see the appeal of this plan – it seemingly reframes pay as a recognition of achievement rather than an automatic process and encourages people to advance through training as quickly as possible. Critics, however, question the assumption that one’s value to the health service can be directly correlated with rank and that experience cannot be gained in other ways. In addition, the inclusion of only six tiers means that trainees could stay at the same level for three years or more depending on their rate of progress.

As a consequence, doctors who take time out for any reason, such as for sickness, maternity leave or as part of Less Than Full Time (LTFT) schemes will all see slower pay progression. Worryingly, this will affect women, who comprise 80% of doctors working part-time, more severely than men (9). In addition, people who take time out for academic training, such as a PhD, will re-enter clinical practice at a lower salary. Similarly, those who retrain in a different specialty will drop down to the base salary rather than continuing to progress annually. The DDRB suggests that thesis would be mitigated by a “flexible pay premium” which would recognise “when work benefits the wider NHS” or “additional experience” gained, respectively (7). While this is a welcome concession, it is unclear who would determine whether a break from training is ‘worthy’ of reward or whether this would adequately compensate for lost income. The BMA estimates that, ultimately, 54% of doctors will be disadvantaged by these changes (2). The new method of pay progression, then, will make it even more difficult for doctors to raise a family, pursue research or retrain than under the current system.

Worsening Recruitment Crises

We have heard thus far that the removal of banding supplements, reclassification of “unsocial hours” and erosion of safeguards particularly undermine specialties which regularly work long hours in the evenings and on weekends, such as A&E; this threatens to exacerbate a crisis of recruitment in acute medicine and in the NHS more broadly. Today, more than 50% of A&E vacancies at ST4 level and above are unfilled; fears that the junior contract could exacerbate this problem were expressed in a letter by eleven Royal Colleges to Jeremy Hunt (10). This exodus is not merely internal, with many new graduates choosing to move abroad or leave medicine entirely. In the ten days after Hunt’s contract details were confirmed 3468 doctors applied for a Certificate of Current Professional Status from the GMC, a document used as evidence when applying abroad (11). Australia is a particularly popular destination, offering higher pay and lower hours (12). At a time when resources are already severely stretched, a significant exodus could endanger patient safety and necessitate the costly hire of locum doctors.

Incentives offered to mitigate this with “Recruitment and Retention Premiums” demonstrate an awareness of the problem but fail to adequately address the underlying issues. Three specialties, GP, EM and psychiatry are currently earmarked to receive these bonuses, down from seven identified in the DDRB report (7). As with other “premiums”, the means by which eligibility would assessed and quantified is unclear. Notwithstanding, this olive branch ignores problems not sensitive to pay such as the stressful work environment, short breaks, unpaid overtime and increasingly erratic shift patterns.  It is worth mentioning, too, that the pay supplement for GPs replaces the significantly more reliable training supplement which exists today. Ultimately, much remains unknown about the impact of the new system on final salaries, but the threat of a pay cut risks driving away more doctors that the NHS cannot to lose.

Stretched Resources

Underlying almost all the proposed changes is Jeremy Hunt’s oft-repeated ambition to create a 7-day NHS, a plan which holds little credibility due to the poor evidence base, deep NHS budget shortfall and the widespread requirements for its implementation. The new contract, then, risks stretching resources even further for no added utility. The case for a 7-day NHS was made most memorably in July by David Cameron, citing a 15% increase in mortality during the weekend (13). The applicability of this finding is limited, however, by the fact that patients admitted during the weekend were more unwell, almost twice as likely to be emergency admissions and were no more likely overall to die during their hospital stay (14). In addition, there is no clear evidence that this effect is due to poorer quality care or whether revised working patterns would bring any benefit (15); it is extremely doubtful that non-provision of non-urgent, elective appointments and procedures is having a significant effect on mortality.

Meaningful improvements to the provision of elective weekend care can only be credibly be achieved by similarly bolstering the provision of supportive services – for instance for medical imaging – to parity with weekdays, plans which would require huge, sustained investment at a time of unprecedented funding shortfall. Today, the NHS faces an estimated £30bn funding shortfall (16), with only £8bn additional funding pledged by the Government until 2020; health managers are thus expected to make £22bn of savings. Furthermore, Monitor recently reported that the NHS currently faces a £1.6bn deficit which is projected to rise to £2.2bn by the end of the financial year (17). In this context of efficiency drives and debt, meaningful steps towards a 7-day service are impossible. Though the ambition is noble, junior contract changes will have no impact; that it is being wielded as a justification for the threat of imposition is, at best, deeply misguided.

Poor Communication

It is not unprecedented that a new contract contains limitations and oversights; however, these problems have been exacerbated by obfuscation, media manipulation and political posturing from the Government. For instance, Jeremy Hunt suggested that doctors refer to their long hours as “danger money”, but a subsequent poll found that 99.7% had never heard of this term (18). Whilst broadly praising doctors, he has alternately suggested that concerns about the contract have been expressed by a core of “militant” individuals, a claim which has little basis in fact but which is calculated to shift public opinion. Similarly, he had previously suggested that doctors lacked a “sense of vocation” for not routinely working weekends. As the strike drew nearer, hesuggested that participants will be risking lives, further alienating the medical profession in the hope of souring their image. This pattern of “megaphone diplomacy” was further evidenced by Hunt’s decision to announce an 11% increase in basic pay to the media, not the BMA; this is, of course, a lie by omission, but succeeded in grabbing headlines. Such a hostile stance has made accommodation far less likely.

The threat of imposition of the contract and an unwillingness to negotiate on most of its key components have also been barriers to meaningful negotiation. Though Hunt has claimed in interviews that there are “no preconditions” to negotiation, he has made it clear that the DDRB recommendations will form the “basis” for discussion and that he reserves the right to implement the contract anyway if an agreement cannot be reached. Though he recently decided to permit negotiations through an independent mediator, ACAS, these threats remain a barrier to conciliation. Though it is within his power to do this, it has left doctors feeling utterly disenfranchised and is thus a key motivator for industrial action.

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Looking Forward

Nobody wants a strike. Given the deep commitment doctors feel to their patients, any decision which may, even temporarily, compromise the quality of care that they receive is not one taken lightly. The near-unanimous vote, then, was an extremely powerful declaration against the new contract and the harm they feared it would cause. These concerns are justified. By cutting pay for those who work the most unsocial hours, stretching routine work throughout the evenings and weekends, weakening safeguards against abuse, punishing those who take time out of full-time clinical work and risking further exodus from the most understaffed specialties, this contract compromises the safety of doctors and patients alike and threatens the long-term health of the NHS.

Despite the clear mandate for strikes, the recent decision to postpone them, perhaps in perpetuity, should be cautiously welcomed. While a vital right and clearly justified in the circumstances, the utility of a strike is greatly reduced now that a negotiated settlement is possible. While no details of agreements have yet been announced, the potential for substantive change to the contract is greater today than it has been in months. This ought to be supported so long as there is productive discussion and even as the spectre of “imposition” looms. Indeed, it is an inconvenient truth that the medical profession needs these negotiations more than Hunt does; regardless of the vociferous opposition to the contract in the doctors’ mess and on the streets, he retains a legal right to impose the contract unchanged and could cite apparently “uncooperative” doctors and his “unbreakable” manifesto promises. His continually hostile rhetoric is particularly concerning as it demonstrates that he is unmoved by the views of the medical profession and is willing to push forward his agenda at any cost to his reputation. That the BMA has now brokered a ceasefire should not be seen as capitulation; we have a far greater chance of resolution through diplomacy than in a perpetual battle of attrition.

Words by Thomas Elliott (@talexe on Twitter). Photos by Billy Liu.

Information current as of 2/12/15. To read the new contract in full, visit http://bit.ly/ddrb2015; revisions made on 4/11/15 can be found at: http://bit.ly/ddrb4nov.

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