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NHSE to catalogue ‘harm and near misses’ where BMA rejects derogations

Published on: 4 Jan 2024

The NHS will start recording harm caused to patients during strike action where exemptions have been rejected by the British Medical Association – amid an escalating row between the union and NHS England.

BMA council chair Phillip Banfield yesterday accused NHS England of the “weaponisation” of the strike “derogation” process, saying trusts had this week submitted more of the requests, which would permit some striking doctors to return to work, and were not providing information needed to determine if they were justified.

NHSE tonight wrote back to Professor Banfield, insisting it was only trying to prioritise safety, but also saying it would revise its own approach to derogation requests.

This will include: asking trusts whose requests were rejected by the BMA “to compile a picture” of the impact on services; reinforcing requirements to report patient safety incidents during strikes and after mitigation requests, so “we can evidence harm and near misses which might have been avoided”.

NHSE also said its future “mitigation” requests, which are submitted by local trust directors to the union, will include deadlines for when they require a decision in order to avoid the risks they are outlining, such as cancelled urgent surgery.

It calls on the BMA to change its own process for evaluating derogations, by agreeing to meet the given deadlines; by getting doctors who have held trust leadership positions to take part in its judgement of derogations; and to allow trust medical directors to put their case directly to the committee meeting.

NHSE points out in the letter that those making the requests are sometimes “likely to be BMA members”.

The letter, signed by interim chief operating officer Emily Lawson, national medical director Sir Stephen Powis and chief workforce officer Navina Evans said it’s “regrettable” the union has “called into question the integrity of local clinical leaders”.

The letter says: “We have consistently asked local medical and other clinical leaders to consider applying to the BMA for patient safety mitigations where they have significant concerns for patient safety that cannot be mitigated through other options available to them, and where they can make a strong evidential case that the return of a limited number of junior doctors would address these risks.

“We have done this, in part, because we have received a number of reports over previous periods of action that some teams have been put off seeking patient safety mitigations because of their prior experience of having applications rejected, or not receiving a response in time. We are sure you would agree that this is an unsatisfactory position, and that where patient safety concerns exist, these should always be escalated appropriately.”

Only a small number of derogation requests have been granted in the past, and in two cases they have subsequently been withdrawn by the BMA, after it said fresh evidence had shown its conditions for granting derogations were not properly met. 

The BMA has said throughout its action that it will only grant the exemptions where a trust has done all it can to cancelled non-urgent planned care; and to seek staff cover from elsewhere, including by offering higher shift pay rates for medical consultant cover.

In the letter to NHSE chief executive Amanda Pritchard on Wednesday night, Professor Banfield accused NHSE of not respecting the terms of the voluntary agreement to provide “derogations”. The BMA, it says is “increasingly drawing the conclusion that NHSE’s change in attitude towards the process is not due to concerns around patient safety but due to political pressure”.

NHSE’s follow-up letter expressed renewed concern about the cumulative impact of strike actions on “the resilience and safety of emergency cover arrangements,” and the health service’s ability to provide time-sensitive urgent treatments, such as cancer patients or people needing urgent caesarean sections.

“We can assure you that an even greater level of support has been given to organisations to plan for this action, and to resolve staffing gaps for vital services which have become apparent in the last few days,” NHSE said.

“The higher volume of applications that have been shared with you during this action is therefore a function of the time of year in which it has been called and the length of the action, as well as the fact that the impact of industrial action on NHS services and patients has continued to grow with each action (including those called by other unions).”

The BMA said it was reviewing NHSE’s letter and not commenting further today.