Should Junior Doctors Still Strike?

Guest Post by Adam James Roberts

In early July, the British Medical Association’s junior members voted by a 16-point margin to reject a new employment contract negotiated between the BMA’s leadership and the Government. The chair of the BMA’s junior doctors committee, Johann Malawana, stood down following the result, noting the “considerable anger and mistrust” doctors felt towards the Government and their concerns about what the contract would mean “for their working lives, their patients and the future delivery of care” in the National Health Service (the NHS).

The BMA pressed the Government to reopen negotiations and to reverse its decision to impose the contract unilaterally. Those appeals having been rebuffed, the BMA announced two months later a new programme of strikes, citing concerns about the impacts on part-time workers, “a majority of whom are women”; on those doctors who already work the greatest number of weekends, “typically in specialties where there is already a shortage” of staff; the contract’s implications for the ability of the NHS to “attract and keep enough doctors” into the future; and the lack of an answer as to how the Government would manage to staff and fund the extra weekend care which was so often drawn on to justify pushing that new contract through.

Earlier this year, Mark Toynbee and colleagues argued in the JME that the earlier rounds of strikes by British juniors were probably ethically permissible, noting that emergency care would continue to be available, that the maintenance of patient well-being was apparently a goal, and that the strikers felt they were treating industrial action as a last resort. In a later paper, I attempted to outline and apply an ethical framework drawing on Thomist ‘just war’ theories, reaching the same conclusion about the strikes as Toynbee did.

In this guest post, I attempt to update or supplement that literature, considering some of the more recent and popular arguments against the current rounds of strikes and whether any of them might be morally compelling. In particular, I look at the fact that the BMA’s junior leadership had described the rejected offer as “a good deal”; the argument that strikes are a disproportionate response to the remaining issues; the concerns voiced about the strikes by Britain’s General Medical Council; and the allegation that striking doctors are “playing politics”.

BMA accepted the contract

Unsurprisingly, one of the most frequently-voiced arguments against further strikes points to the BMA’s past endorsement of the contract which they are now again protesting: if that contract were truly unsafe and unfair, then surely the BMA would not have recommended its junior members accept it. The then-chair of the BMA’s junior doctors committee in June described the offer as “a good deal for doctors”, and one which would “ensure that they can continue to deliver high-quality care for patients.”

The first problem with this objection is a factual one: it overstates the positivity of the position which the BMA actually took in respect of the contract. In their correspondence with junior doctors and senior medical students prior to the members’ referendum, the BMA’s committee chairs made it very clear that their intention was to help members reach their own conclusions on the deal, “sharing as much information as possible” and “allowing members to analyse the detail of the contract” for themselves. At the BMA’s annual representative meeting in June, the union’s chair, Mark Porter, did describe the offer appreciatively as one “that would not have been conceivable last October”; but he stopped short of encouraging junior members to vote in its favour, noting instead that they “are now making up their own minds.” What the BMA were offering was a deal they thought their junior membership had some chance of accepting, rather than one that unambiguously met every one of the raised concerns. Striking was no longer clearly the BMA’s last resort option: in many observers’ eyes, there was a realistic chance that a majority of juniors would opt to end the dispute. Strategically, calling a vote may have proved ruinous; ethically, it was the right thing to do.

Secondly, and more crucially, the fact that some of the BMA’s officers supported the offer does not mean others must be unreasonable to oppose it. What plausibly matters as far as the ethicality of strikes are the conscientious conclusions junior doctors have reached themselves, and the honesty and the care which they have earnestly applied in reaching them. Through its roadshows and materials, the BMA went to unusual lengths to ensure its members were well-informed about the revised contract offer, and those members are familiar from their own working lives with the challenges their health service is facing. What is masked by the chorus of concern about the strikes is a still widespread discomfort about the contract, its imposition, and the Government’s broader programme for healthcare: junior doctors are by no means alone or obviously irrational in maintaining the objections that a majority of them do.

Strikes are disproportionate

A second common claim is that further strikes are a disproportionate response to the latest revision of the contract’s outstanding deficiencies. Despite the concessions made by the Government in the previous rounds of negotiations, the actions proposed for the coming months will be more extensive than ever before, with strikes spanning the normal working hours of five-day stretches at a time. However safe and well-organised strikes by medics tend to be, the distress and disruption for patients is hard to justify.

One of the most obvious and serious problems with this argument is what might be called its status quo bias: that, in the logical sense, it begs the ethical question against the striking junior doctors. Were the Government to offer to reopen negotiations on the contract instead of resolutely pressing through its imposition, the proposed industrial action – and so its effects on ordinary patients – would also be avoided: it is as capable as junior doctors are of avoiding any consequences for health service users. If, as anecdotal evidence suggests, those who expect to go on strike will be acting on their genuine and conscientious beliefs that the new contract continues to be unsafe and unfair, and if, moreover, the Government anticipates a far greater threat to patient safety from the strikes than the BMA imagines there to be, then there would seem on the face of it to be more compelling case for the Government to retreat than for the striking junior doctors to. If “the only effective resolution will come from discussions and agreement between the parties”, then the Government should accept the BMA’s offer of that: its refusal to do so is disproportionate in the face of the strikes which are planned.

As of early September, the British public blames the Government for the strikes over the BMA by a margin of 2.5 to 1. While the union and its members might draw some cold comfort from this, it is of course essential to emphasise that no amount of unreasonableness on the part of the Government could ever entitle doctors to behave with the same: doctors must carefully weigh the significance of their concerns about the contract – along with the figured likelihood of real concessions being won – against the disruption and the risks which any industrial action entails. The ethical questions here are grave ones, but not ones that focusing selectively on the BMA is able to add anything to.

Concerns of the GMC

On 5 September, the General Medical Council advised junior doctors that they did not believe “that the scale of action planned at such short notice” could be justified, with NHS England and the Academy of Medical Royal Colleges also raising similar concerns. Niall Dickson, the GMC’s chief executive, reminded doctors that the GMC “has powers under the Act to investigate and apply sanctions to any doctor whose behaviour has fallen consistently or seriously below the standards required.” When presented with evidence “that a doctor’s actions may have directly led to a patient or patients coming to significant harm”, the body is “obliged to investigate and if necessary take appropriate action.”

Later that same day, the BMA responded to those concerns by suspending its planned week of strikes in September, meaning service providers would have a full month to prepare before the first round of industrial action took place in early October. The BMA has agreed to contingency plans with NHS England “for major and unpredictable circumstances” during the strikes, and has urged local groups “to ensure appropriate planning has been put in place” to ensure that services continue to be safe. This was the first time that a notification of this kind had been made to the doctors’ union, and the decisiveness and speed of their response should clearly be welcomed. The extent to which the GMC’s leadership will be assuaged by the longer notice health services now have before any strikes remains to be seen, and may be entirely determined by the various parties’ successes in organising for them. The immediate objection, however, is now redundant.

The limits of the GMC’s proper authority in the context of industrial action are not absolutely clear. As has been noted before, the injunction that doctors make the care of their patients their first concern does not have infinite scope: it is not the case “that once a person becomes a doctor they are obliged to work under any conditions, at any time, with any number of patients.” There is, then, an important question about the rightful force of that injunction when doctors make the decision to withdraw their labour by striking, though one that sits well beyond the scope of this blog post to answer.

Playing politics

Theresa May, the Conservative prime minister, has accused junior doctors of “playing politics” when they should be “putting patients first”. Another Conservative MP, Andrea Jenkyns, described the strikes as “originating from dangerous Corbynista ideology”, referring to the politics of the Left-wing leader of Britain’s opposition Labour Party.

There is no serious question that those doctors who expect to strike are motivated either by specific concerns about their new contract or about the direction of the British health service more generally: to suggest otherwise betrays either a chilling if unsurprising political realism, or else a worrying ignorance of doctors’ serious and heartfelt anxieties about their profession and its future. Isolated and predictable stories about small numbers of far-Left activists are balanced against both the great diversity of junior doctors’ personal politics and, more famously, the leaking of conversations amongst junior leaders on WhatsApp that clearly “do not show a left-wing bias”. If junior doctors are “playing politics”, it must be simply in the sense that they are attempting through their strikes to obstruct the delivery of the Government’s reforms, of which the new contracts for junior doctors and dentists form likely the best-known part.

Whether there is an argument for junior doctors being wrong to be obstructive might depend on the basis of those impeded reforms. If, as far as possible, those new health policies are ideologically neutral and evidence-based, then the familiarity of junior doctors with the health service and its challenges surely sanctions their attempts to conscientiously intervene. If instead those reforms are more ideological or “political”, then the question might turn to one of what mandate the Government has for effecting them.

At the time of writing, a greater proportion of the British public believe that junior doctors are right to strike than wrong to, as has been true ever since the dispute over the new contract began. The ruling Conservative Party’s general election manifesto included a commitment to “a truly 7 day NHS”, but said only that this would be achieved by making “hospitals properly staffed”: an objective as much shared by the doctors objecting to the deal, and one they cannot sensibly be said to be undemocratically defying.

It does not follow from the weakness of any number of arguments against industrial action that pursuing courses of it is either sensible or ethical. This blog post has not revisited any of the defences of junior doctors’ strikes, and some may think them at least as flawed as the few objections considered here.

Those who value and rely on Britain’s health service hope for a speedy end to the current dispute, but also for a satisfactory one. It is essential that junior doctors are not demonised when they make painful choices about their profession, and that disingenuous or counterfactual claims about them are not left to go unchallenged. Doctors’ strikes are not trivial affairs, and nor should commentaries on them be.