Industrial action under attack

The Government is continuing to blame striking doctors for its own failure to bring down waiting lists and address patient safety concerns, as it attempts to justify its latest anti-strike legislation.

The NHS is collapsing around us and the idea that imposing MSLs (minimum service levels) on strike days will solve this makes little sense.

Although the Conservative Government first introduced a commitment to MSLs for railways in its 2017 manifesto, it was only after a wave of strikes that the Government sought to expand this to include many other parts of the public sector including education, border security, and hospital services. It represents another layer of British anti-union law, already some of the most restrictive in the Western world, and mostly applies to non-emergency services.

The BMA has opposed the Strikes (Minimum Service Levels) Act at every opportunity. We have serious concerns about the safety of the MSL proposals, the shift of clinical control away from doctors, and the effect on our ability to take effective industrial action.

The exemplary work of medical managers and senior medical colleagues across the country in keeping urgent, emergency and critical care safe during strike action demonstrates an incredible commitment to patients.

Crucial to this are local knowledge, good working relationships, advanced planning and the rate card. When we take strike action, care continues – but you and colleagues serving as clinical or medical directors discuss what is safe and what can wait according to clinical priorities.

Under the MSL regulations, the decision about what care is essential, and therefore who is needed, will be removed from you as doctors and clinical managers, and placed with politicians. While regulations were not released at time of writing, initial proposals suggest they will seek to continue all priority 2 work, which can include non-urgent surgery. Elective surgical care requires cover from various specialties (eg ICU, radiology) to be completed safely.

Employers will be able to issue work notices to all the doctors required to keep that service running, with threats against you (dismissal) and your union (financial and legal) to enforce compliance. The BMA will be legally required to tell you to cross picket lines. The intended effect is to make it impossible to win better pay and conditions.

We in the BMA do not believe that employers, particularly lead employers for ‘junior’ doctors, have the local knowledge or administrative support to meet the requirements of the legislation – consulting unions and producing work notices in just a week – and maintain patient safety.

Hospitals already struggle to provide correct rotas, cover known absence, and pay colleagues correctly. Some derogation requests have included wildly incorrect information. Trying to implement the legislation without the top of the organisation readily having the necessary information available means the possibility of chaos undermining patient safety is significant.

The NHS will likely request we hobble our own industrial action through voluntary arrangements, and there will be Government pressure on chief executives to use the legislation. Employers may face a set of options: decline use, attempt to prevent the vast majority of doctors taking strike action, or force doctors and patients into dangerous conditions.

The BMA will continue to campaign against the proposals and for the act to be repealed in its entirety. In the meantime, we all need to engage with and learn from our colleagues across the trade union movement dealing with anti-union legislation. The next issue of The Doctor will look at some strategies from other groups of workers.

You as our members, those striking and those planning safe care during strikes, can lead our strategy through local organising, local negotiating committees and conference motions. Please keep an eye out for further updates and suggestions on how you can help.

The challenges around maintaining safe levels of staffing during periods of industrial action are something consultant paediatrician Justin Daniels has become well versed in.

Following his appointment as medical director at East and North Hertfordshire NHS Trust in April 2023, Dr Daniels has had to navigate and help oversee his trust’s response to numerous bouts of strike action and, in his words, frequently rely on the ‘expertise and goodwill’ of those around him.

Almost one year into his post, he says he has learnt that successfully negotiating strike days consists of several factors including clear and honest communication, good forward planning and maintaining good relationships between different groups within the trust.

‘From my perspective [managing strike days] revolves around lots of things. It is around really good communications between junior doctors’ local negotiating committee and me. It’s about knowing what’s going on with them and understanding their [doctors’] perspective and appreciating that their problems are between them and the Government.

‘Something that I’ve said really, really clearly is that this [dispute] is the BMA versus government, not an individual doctor versus their trust,’ explains Dr Daniels.

‘That’s been in all of our communications, and also in all of the inductions that we do. I think that for the most part, doctors have been incredibly grateful that we’ve managed to retain really good relationships, and that this hasn’t become personalised and it hasn’t become more difficult than it needed to be.’

Dr Daniels says that, in addition to good communication, taking a proactive approach to rotas ahead of periods of planned industrial action and the co-operation of wider medical workforce are crucial to ensuring that disruption to services is minimised.

‘I think most trusts have tried hard with the communications and most trusts have tried incredibly hard to ensure that there is safe staffing all the way through this. I think because of the way some organisations are configured, it’s harder in some organisations than others,’ he explains.

‘We’ve got a fabulous operations department at East and North Herts, and they’ve worked really, really hard before each strike to make sure every single rota is covered safely. We are [also] quite lucky in that we have a relatively low vacancy rate amongst our consultant body and that gives us a little bit more flexibility [on strike days].

‘I know the consultants in the trust support the junior doctors and therefore want to make this safe to happen [and they] therefore are prepared to work hard, and we all have been in order to make it happen.’