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10 October 2016

Junior doctors and the meaning of words

4 mins

The press reported that the group Justice for Health ‘lost’ its case against the secretary of state for health, brought over his decision to impose the terms and conditions of the junior doctors’ contract.

In fact, the court’s decision includes significant ‘wins’ for junior doctors and establishes points of wider importance for all NHS employees.

The junior doctors case is all about what happens when loose language is used for political ends, and the very serious consequences which can flow from those words. Words used by the minister have led to a huge loss of morale and confusion; junior doctors have taken unprecedented strike action; and there has been significant disruption to patient care.

Our case was that the SSH has purported to have, and to exercise, a power to impose the terms and conditions of the junior doctors’ contract. In fact, he does not have such a power. Turning to the full judgment, Jeremy Hunt is not imposing a contract on junior doctors. He never said he had legal powers to impose a contract – save by direction on NHS Trusts which he is not deploying. He knows he cannot compel foundation trusts, GP employees, local authority employees and others; he is at a loss to know why junior doctors thought he was. He was making a recommendation. Crucially, employers and employees are free to negotiate terms.

All of this only became clear at the hearing. As a result, junior doctors who filled Court 4 gasped in astonishment as counsel argued that it was impossible to see how doctors could have thought that a contract was being imposed. Mr Justice Green found that ‘… the grounds advanced by the junior doctors were serious and properly arguable, raised important points of principle about the powers of the secretary of state…’.

The judge accepted that ‘on the evidence the statement made to parliament on 6 July did in fact lead junior doctors to conclude that, contrary to the reality, the secretary of state intended to “impose” the new contract, thereby excluding any daylight for negotiation, either with the secretary of state or with employers’. However, shortly afterwards, and essentially in the course of the expedited proceedings, the court said that the minister formally provided clarification of his decision and, as a consequence, there was no finding of the absence of clarity.

The judge accepted, contrary to the defendant’s position, that in principle a law or policy should be sufficiently clear to enable those affected by it to regulate their conduct – that is, to avoid being misled.

The arguments put forward by the health secretary that parliamentary privilege applied and that the doctors should not be able to rely on Hansard debates and what the minister told parliament, would lead to ‘some extraordinary’ and ‘unjust results’, said the judge. Ms Richards QC, for Justice for Health, likened this to the minister donning a Harry Potter ‘invisibility cloak’. This was not acceptable – another point on which the doctors succeeded.

As to the third challenge – the rationality challenge – the court found that arguments on the ‘weekend effect’ go both ways. The secretary of state chose to adopt one side to the argument, which supports the existence of a weekend effect and a causal connection between that adverse effect and a shortage of skilled staff. It was within the minister’s margin of appreciation to conclude that the new terms will make some contribution to addressing the problem but that much else needs to be done. This was disappointing, to say the least, for doctors. They, like others, will wonder why a higher evidence base is not needed when a decision of this magnitude is in issue.

Overall, Justice for Health is satisfied that it was performing a public service in pursuing this litigation, and that, most importantly, its doctor colleagues as well as employers now understand the true legal position – no contract has been imposed on them.

Artical first published in The Law Society Gazzete on the 10 October 2016, written by Saimo Chahal, Partner  and Joint Head of Public Law and Human Rights Team.

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