Doubt over Jeremy Hunt's legal power to impose junior doctors’ contract

The legal basis for imposing a controversial new contract on junior doctors is increasingly in doubt after an urgent debate yesterday in the House of Commons.

Jeremy Hunt, the health secretary, said on 11 February that he was imposing the contract, which includes a reduction in the times available for antisocial hours pay, following mass strikes by doctors.

However, in a second letter to Justice for Health, a campaign group issuing a judicial review of the decision, government lawyers said Hunt was merely exercising his power to “approve the terms of model national contracts” and “take steps leading to the introduction of model national contracts”.

When asked by Heidi Alexander MP, the shadow health secretary, for an urgent statement, Hunt initially referred to “introduction”. However, when Alexander accused him of causing the further strikes through “misplaced bravado and bullishness” by claiming to be imposing the contract when he had no legal power to, Hunt replied: “Let me answer the hon. Lady’s question very directly. Yes, we are imposing a new contract, and we are doing it with the greatest of regret.”

He claimed the use of the ‘introduction’ rather than ‘imposition’ terminology was because junior doctors will transfer to the new contract when they switch or start jobs, instead of changing contracts currently in place, and that NHS foundation trusts are technically free to decide their own contracts, although he admitted that Health Education England have said a single national approach to contracts is essential.

Hunt was asked by four Labour MPs – Andy Slaughter, Jo Stevens, Stella Creasy and John Cryer – where his legal power to impose contracts came from, and refused each time to give a more detailed answer than “the secretary of state does have that power and we are using it correctly”.

Following the debate, Alexander wrote to Jeremy Wright MP, the Attorney General, saying: “The Secretary of State appeared to contradict the argument of the Government Legal Department by confirming that he was imposing a contract.

“This continued uncertainty over the powers of the secretary of state for health does nothing to ease the distress felt by staff and patients in the NHS about next week’s industrial action.”

Alexander asked Wright to set out explicitly the roles and responsibilities of the health secretary that give him the power to impose a contract, to explain why the government’s lawyers didn’t provide the source of that power, and to explain if the failure to do so is consistent with the health secretary’s duty of candour.

A number of MPs, including Dr Philippa Whitford, SNP MP for Central Ayrshire, and Jack Dromey, Labour MP for Birmingham and Erdington, echoed calls made last week by the heads of the Royal Colleges for Paediatrics and Child Health and for Obstetricians and Gynaecologists for Hunt to resume negotiations with doctors, which he also refused to do.

A number of Conservative MPs also supported the warning from Professor Terence Stephenson, chair of the General Medical College, that the junior doctors’ decision to withdraw emergency care in the next round of strikes on 26 and 27 April will put patients at risk. Dr Sarah Wollaston, Conservative MP for Totnes, and chair of the Health Select Committee, called for maternity units and casualty departments to be exempt.

(Image c. Lauren Hurley from PA Wire and Press Association Images)



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