Deal or no deal?



The main job just completed of the Junior Doctors Committee was to achieve a deal that could be put to a vote of BMA members. And that has been achieved. The terms of the ACAS brokered settlement are here.

I did employment law as a special elective as part of my pre-solicitor training, whilst also regulated by the Solicitors Regulation Authority. In addition to the intense emotions of the employer and employee, which have run high during this protracted dispute, there is a legal job to be done which is to ensure that there is an agreement which can be agreed to, and which is above all fit for purpose.

Clinical decision-making does involve making some shortcuts, perhaps based on pattern recognition. This pattern recognition is called heuristics, and tends to be quite emotionally-guided and fast. In decision making cognition, these are known as intuitions, and are discussed in Dan Kahneman’s ‘Thinking, fast and slow”. These pejoratively can be described as ‘snap judgments’,  but they serve a function in evolution. It is quite impossible for the brain to set up millions of thousand order differential order questions to ‘solve problems’ in an entirely logical way.

The details of the contract are expected to include the following:

  • the basic pay rise is to be reduced from 13.5% to between 10% and 11%
  • weekends will no longer be divided up between normal and unsocial hours, instead a system of supplements will be paid which depend on how many weekends a doctor works over the course of a year
  • extra pay for night shifts is to be reduced from 50% to 37%
  • extra support will be made available for doctors who take time out, such as women who go on maternity leave, to enable them to catch up on their training and thus qualify for pay rises – after claims women were being unfairly penalised
  • junior doctors will get an enhanced role in advising and liaising with the independent guardians who keep an eye on the hours doctors work
  • the deal remains cost-neutral, which means the government is not putting in extra money

And these issues will raise ‘gut instincts’. But above the noise, it’s essential for junior doctors who ultimately have to vote on this to use the ‘cognitive part’ of their prefrontal cortex, the part of the brain at the front of the head, to come to a rational decision, involving working and other memory, attention and planning domains for example. Another key cognitive aspect to this crucial decision will be an anticipation to predict future outcomes, a function best related to the part of the brain known as the orbitofrontal cortex, near the eye in fact.

Planning ahead and anticipating future outcomes are at the heart of the dispute. In the cold light of day, the junior doctors will have to consider whether they feel that the safeguarding against excessive working hours, say with enhanced use of ‘independent guardians’, is adequate and achievable. They will also have to factor in whether female members of the profession are not discriminated against unfairly in this new proposal, and it is vital this does not compromise the needs of the general public as well as needs to train a balanced workforce.

Tweets with arrows showing the overall direction of pay, given the complexity of the annual ‘uplift’ dependent on the volume of weekends worked (for example), are probably unhelpful, as these perpetuate the myth that junior doctors have been obsessed with pay all along. The junior doctors have been adamant that this dispute was not fundamentally about pay, but did make it clear that – like every other employee in the land – that the dispute does involve terms and conditions. This after all is a large function of trade unions, and so the BMA is not to be ‘blamed’ for protecting the interests of its members either. I believe for totally personal reasons that a healthy workforce is in the best interests of delivering high quality person-centred care. It is impossible to deliver safe care if doctors are ill. The Practitioner Health Programme which helps to look after sick (now well) doctors like me points out, for example, that an unwell doctor is as ineffective as a doctor out of the system altogether.

This dispute is not about winning – but it is trite and true that the true winners, yet to be determined, will be the patients if their interaction with the medical profession is a beneficial one. The contract, defined in law as an a valid agreement with intention to create legal relations, could never been imposed legally under duress. The terms will have to be finely dissected, with the help of lawyers, to ensure the contract’s fairness. For example, it would be reasonably expected that the junior doctor’s employer at any moment in time would be unable to vary the terms of the contract unilaterally. And the terms of the contract clearly have repercussions for the performance of the workforce at large.

Unfortunately, despite any success ‘hailed’ by Jeremy Hunt, the morale in the junior doctor workforce, like many areas of the NHS, is crashingly low and is need of urgent resuscitation. Junior doctors do not operate in isolation – and therefore will be concerned in solidarity with the treatment of other members of the workforce. And the morale is in urgent need of improving as this dispute with Jeremy Hunt has been needlessly unpleasant for all, and might ultimately have an effect on recruitment to the medical profession.  We don’t need further dysfunctional ‘rota gaps’, and, at a time when the Government wants to make ‘efficiency savings’ (aka cuts), there is an impression from both doctors and the public that the service would benefit from ‘more people on deck’ or ‘more hands to the pump’. There’s also the humungous problem of the legal loophole preventing junior doctors being able to whistle blow on problems in patient safety safely which needs urgently addressing.

I would like this dispute to be over – and the Government will move onto GPs and NHS Consultants shortly I am sure. But that any sort of agreement was achievable I do think is a huge achievement. I have  every confidence in the junior doctors being able to make a rational decision about the proposed contract, the decision of the ballot we will know pretty soon. Then junior doctors can get on with the job in hand of why they – and me – entered our noble profession in the first place. Ideally, it would be nice to avoid if possible further legal action too.