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BMA launches contract legal challenge

Judicial review questions lawfulness of imposition of junior doctors' contract

Mark Gould

Friday, 01 April 2016

The BMA has launched a judicial review challenging the lawfulness of health secretary Jeremy Hunt’s decision to impose the new junior doctors' contract. This month sees the long-running dispute notch up a gear as doctors plan to full strikes, including withdrawal of emergency cover, for 48 hours on 26 to 27 April - a move which the Department of Health describes as "both desperate and irresponsible".

Dr Johann Malawana, the BMA junior doctor committee chair, said the decision to "plough ahead" with the imposition of an unfair contract that junior doctors have no confidence in and have roundly rejected, is a sign of total failure on the government’s part.

“Instead of meaningfully negotiating with the BMA to reach an agreement that would be in the best interest of patients, junior doctors and the NHS, the government walked away, rejecting a fair and affordable offer by the BMA. It has since continued wilfully ignoring the mounting chorus of concern, from doctors, patients and senior NHS managers – the very people who use and provide NHS services," he said.

“In trying to push through these changes, prior to imposing a new contract, the government failed to give proper consideration to the equalities impact this contract could have on junior doctors. So today, the BMA has issued proceedings to launch a judicial review challenging the lawfulness of the health secretary's decision to impose the new junior doctor contract.

“The government’s shambolic mishandling of the process, from start to finish, has alienated a generation of doctors – the hospital doctors and GPs of the future – leaving a real risk that some will vote with their feet and the future of patient care will be affected.

“For the sake of patients, doctors and the future of the NHS the government must put politics to one side, lift the imposition and actually address, rather than ignore, junior doctor’s outstanding concerns.”

On Monday, the Academy of Medical Royal Colleges appealed to the BMA to drop its planned industrial action and for both sides to reopen negotiations.

Yesterday, in an apparent move to strengthen its hand, the Department of Health published its own equality analysis of the contract. It said in a statement: “The contract is fair and justified and is good for both staff and patients. We consider that the new contract will advance equality of opportunity.”

It added: “Where the new contract may have any adverse effect on people with protected characteristics, such an effect does not result in discrimination as the new contract is a proportionate means of achieving a legitimate aim, or aims.”

Junior doctors have raised concerns that the contract will discriminate against female doctors who take time off to have children or those who work part-time The Department of Health’s equality analysis admitted that “while there are features of the new contract that impact disproportionately on women, of which some we expect to be advantageous and others disadvantageous, we do not consider that this would amount to indirect discrimination as the impacts can be comfortably justified.”

The analysis said the contract means doctors below consultant level “will remain, objectively, very well paid”, especially as the deal – which Hunt decided to impose after two months of peace talks failed – includes a 13.5% rise in junior doctors’ basic pay.

A Department of Health spokesperson added that this month's escalation of industrial action by the BMA "is both desperate and irresponsible – and will inevitably put patients in harm’s way".

"If the BMA had agreed to negotiate on Saturday pay, as they promised to do through ACAS in November, we’d have a negotiated agreement by now – instead, we had no choice but to proceed with proposals recommended and supported by NHS leaders."

Picture credit: Alexandre Rotenberg / Shutterstock.com

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