NHSE trying to ‘undermine’ doctors strike, claims BMA

Published on: 4 Jan 2024

NHS England has been accused of bowing to political pressure and trying to “undermine” the junior doctors strike.

British Medical Association council chair Philip Banfield tonight wrote to NHSE chief executive Amanda Pritchard accusing her organisation of the “weaponisation” of the process used to agree minimum services level during the strike.

Junior doctors walked out yesterday to begin a six day strike, the latest in their 10 month campaign and the longest in NHS history.

Professor Banfield’s letter claims that NHSE is not respecting the terms of the voluntary agreement to provide “derogations”. These, says the letter, “allow for junior doctors to return to work in the event of safety concerns arising from ‘unexpected and extreme circumstances’ unrelated to industrial action”.

The BMA accuses trusts of not providing the information the union needs to determine if the requests for derogations are justified. It said that the lack of information provided by trusts had led to it turning down 20 requests for derogations.

The letter states: “We are increasingly drawing the conclusion that NHS England’s change in attitude towards the process is not due to concerns around patient safety but due to political pressure to maintain a higher level of service, undermine our strike action and push the BMA into refusing an increasing number of requests; requests, we believe, would not have been put to us during previous rounds of strike action.

“The change in approach also appears to be politicisation and weaponisation of a safety critical process to justify the Minimum Service Level regulations.”

The letter calls for an “urgent intervention” from Ms Pritchard “to ensure the derogations process is used as intended: as a last resort when alternative staffing strategies have failed to provide emergency cover during strike action.”

The letter pointedly adds: “It is an operational matter for the NHS if hospitals choose to prioritise less urgent cases over life and limb care.”

The doctors union set out in the letter how they believe the derogation process should work.

It states: “As part of the agreed process, trusts are asked for evidence that all other sources of staffing have been exhausted, including, for example, cancellation of elective activity, incentivisation of alternative staffing, and rearrangement of urgent cases to days around or outside strike action.”

However, the BMA claims “that during this current round of industrial action, NHS England and some trusts have refused to evidence any efforts to source alternative staffing or demonstrate rearrangements or cancellation of less urgent work.”

The union says this is “astonishing” and “is wilfully placing the BMA in an impossible situation.” 

The letter gives examples of “derogation requests” which included “incomplete and inaccurate information”.

The examples include “unevidenced” assertions that “no consultants or SAS doctors are working in some specialties” or otherwise available “to provide cover for junior doctors, in stark contrast to previous rounds of action”.

The accusations also include trusts refusing to “demonstrate” they have “sought alternative staffing from consultants or SAS doctors”, or “whether elective activity is [still] ongoing”.

The letter states: “A number of local negotiating committee chairs have told us that their employers have made a decision to apply for a derogation well in advance of strike action and before alternative solutions could be pursued.”

The BMA letter marks a further escalation of tensions between the union and those representing NHS providers in various ways.

An NHSE spokesperson responded: “The NHS has a robust process in place for seeking derogations from the BMA to prioritise the safety of our patients and this has involved providing strong evidence where the most challenged systems need support.

“Nationally, we will continue to support local medical directors and other clinicians as they work hard to deliver the safest possible services for patients.

“Given this period of industrial action coincides with the most difficult time of year for the NHS, it is to be expected that more senior medical leaders will ask their colleagues for allowances to be made to ensure safe levels of cover.”

In a statement on Thursday, NHS Confederation chief executive Matthew Taylor said: “Rather than accusing hospital leaders of refusing to provide the required information in full to the BMA, this is more about them needing to limit the precious time they and their teams have available to fill in forms when patient safety could be at risk.

“This is why on behalf of our members, we called for national derogations to be agreed in advance as not all NHS organisations have a wide range of alternative staffing arrangements at their fingertips – especially so soon after Christmas when many schools are still closed.

“In the absence of these we hope the BMA will cooperate with time critical requests from NHS trusts and that the recall process runs smoothly in the best interest of patients.”

In September, NHS Employers – which is funded by the Department of Health and Social Care – accused the BMA of threatening a total walkout of all consultants and junior doctors at trusts which did not cancel all elective activity during a forthcoming strike. The BMA denied the claim.

In October, NHSE medical director Steve Powis wrote to the BMA warning that the level of cover provided during strikes was inadequate and calling for an extension in circumstances under which derogations might be allowed.

Very few derogations have been enacted so far during the doctors strikes — one that was initially granted in the spring was subsequently withdrawn, with the BMA accusing the Bristol trust of providing misleading information.