A Manchester court ruling on a junior doctor’s two-year campaign against unfair dismissal will leave colleagues vulnerable when it comes to protection for whistleblowers.
Dr Chris Day had his case against Lewisham and Greenwich NHS and training body Health Education England – which essentially arranges employment for junior doctors – dismissed at the Manchester Civil Justice Centre yesterday,
And the 31-year-old now fears the ruling, by Mr Justice Langstaff, could have major consequences for other junior doctors.
Dr Day’s nightmare started in January 2014 when he was working an overnight shift at Queen Elizabeth Hospital in south London and two doctors failed to turn up for a shift.
He was forced to cover a number of wards and the hospital’s A&E department and raised concerns with managers.
“I was the most senior doctor on site, two doctors were absent in an already understaffed Intensive Care Unit (ICU),” he said.
“I phoned a more senior member of staff at the hospital in line with the chain of command.
“I believed the hospital was in trouble so I acted.”
APPEAL REJECTED – Junior doctors careers not covered by whistleblowing protection. HEE can do what it likes. pic.twitter.com/NJ3HVasPR4
— Chris Day (@drcmday) March 9, 2016
Since finishing his one-year placement at Queen Elizabeth Hospital he has been unable to find a permanent position.
His case against the NHS trust which runs the hospital and HEE was rejected on the basis that Dr Day’s contract did not offer him immunity when he raised his concerns with senior management.
Dr Day said HEE have successfully argued that they are, in essence, only an employment agency and that they are not bound by protective whistleblowing laws.
The situation is made all the more complex by the fact that NHS trusts are taking on these junior doctors from HEE as temporary employees.
These contracts again do not give them the same protection.
He told MM: “I witnessed in court 54,000 doctors being argued out of protection if they raise safety or staffing issues from the only NHS body with long term power over their careers.
“There is already a graveyard of junior doctors attempting to hold HEE to account in employment tribunals.
“Can it deny its responsibilities? We’ve now heard that it can.”
— Unite the Resistance (@resistunite) March 10, 2016
The British Medical Association (BMA) initially supported Dr Day’s fight for his right to raise safety concerns but withdrew help, significantly hampering his legal effort.
This lack of support, Dr Day claimed, has repercussions for all junior doctors in disputes with the NHS.
It highlights the potential difficulties if junior doctors feel the need to escalate concerns and this is all the more true if not supported by the BMA.
After losing out on financial and legal aid from BMA, he was forced to turn to crowdfunding site crowdjustice.co.uk in order to pursue his claim.
He managed to raise £26,543 – which was funded by over 1,000 backers – although this may now be lost in court fees.
“The BMA were enthusiastic to help at first but then they pulled all help,” he said
“They let this happen and that’s an uncomfortable truth.”
Without even the help of the BMA, junior doctors may be left unable fulfil their required duties.
Frustratingly for Dr Day, the dismissal of his case came in the wake of Health Secretary Jeremy Hunt’s statement yesterday morning in which he laid out the importance of having a channel for NHS workers’ concerns.
Mr Hunt told a summit on patient safety: “It is a scandal that every week there are potentially 150 avoidable deaths in our hospitals and it is up to us all to make the need for whistleblowing and secrecy a thing of the past as we reform the NHS and its values and move from blaming to learning.”
But Dr Day said: “This (the court ruling) is at odds with the promise from Jeremy Hunt to create ‘safe spaces’ and legal protection for whistleblowers.
“This nation is allowing junior doctors to be treated as a cheap commodity and it is a mistake.
“They will strike then they will buy a plane ticket.”
MM approached BMA but they declined to comment on the case and no one from the Department of Health or HEE was available for comment at the time of print.