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Junior doctors should exhaust legal action before taking strike action

On 26 and 27 April the junior doctors will take the unprecedented action of withdrawing all labour during industrial action, demanding withdrawal of the commitment by Mr Jeremy Hunt to impose a new contract on the junior doctors.

The chair of the BMA Junior Doctors Committee, Johann Malalwana stated that the escalation of withdrawing the provision of emergency services was not taken lightly. The suggestion made by Malawana following consultations that he had carried out, that withdrawal of the paediatric emergency services would not be the right action was not acceptable to the committee.

The committee must be well aware that this could have serious consequences for the patients and result in the loss of goodwill of those who have supported the junior doctors in their demands.

It has always been the expectation of the public, and even the doctors, that withdrawal of services would only be the last resort when all other avenues have been explored.

Have the junior doctors honoured these expectations? In a blog entitled ‘Is the imposition of  a contract for junior doctors open to legal challenge’ published in the Hospital Doctor on February 23 2016 I argued that a contract is an agreement between two parties who agree to abide with conditions contained in it which is enforceable by law.

It seems to be universally held that an existing contract of employment can be varied only with the agreement of both parties. Whatever basis the legal minds have put together, the junior doctors have filed action to challenge the imposition of a contract by the government on the junior doctors.

The reliance on semantics by which Jeremy Hunt expects to ‘introduce’ rather than impose the contract is clutching at straws.

May I also have the audacity to ask the legal team advising the junior doctors to prosecute the Secretary of State for failing in his ‘duty of quality’ demanded by the 1999 Health Act.

Sir Liam Donaldson has set out this out clearly as the need for NHS organisations ‘to continuously improve the quality of the services and safeguard the high standards of care by creating an environment in which excellence in clinical care will flourish.’

Mr Hunt through the disruption he has caused to the services through his determination to violate the contract laws and with the NHS running a massive budget deficit under his jurisdiction, is in clear violation of the Health Act 1999. It is farcical that laws are made which are hardly ever applied. To my untrained mind the state of the NHS is a result of the failure in management by the Secretary of State. It is a clear violation of the law.

I may be wrong in surmising that at the time when strike action was initiated legal challenge was not a primary consideration. Now that legal action has been considered feasible, I would urge the junior doctors to exhaust the legal opportunities before taking the more drastic action.

This would give greater credibility to their claims to follow all avenues at their disposal. The junior doctors should heed the advice of the one in whom they have placed their trust in electing him as the leader. His advice is as carefully considered as much as the decision to take strike action was not taken lightly.

It is also of vital importance that the doctors should not lose the support of the public and their employers. It is therefore my plea that trainees should have trust in the law and act in the best interest of the patients who have placed their trust in them.

Failure to act with care and restraint could deliver a catastrophic blow to the doctors’ with tragic consequence for the patients.

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