Hospitals may go it alone and refuse to impose the new contract on junior doctors proposed by the health secretary, Jeremy Hunt, on NHS trainee medics from August.
The Guardian has established that none of the 152 foundation trust hospitals in England will be obliged to force their junior doctors to accept the deal and can instead offer them better terms.
The disclosure of an opt-out for top hospitals threatens to derail the health secretary’s controversial push to impose new terms and conditions on all 45,000 junior doctors that has sparked their bitter and long-running dispute.
Labour claimed the loophole showed that Hunt’s plan was falling apart. “Jeremy Hunt’s decision to impose the junior doctors’ contract seems to be unravelling with every day that goes by,” said the shadow health secretary, Heidi Alexander.
“The fact that hospitals are trying to find ways around contract imposition underlines the extent to which the decision to impose a contract that nobody wants would destroy morale in the NHS.”
Hunt is facing increasing criticism over his move, including from fellow Conservatives. Dr Dan Poulter MP, who was a health minister until last May and led the early negotiations on the junior doctors’ new contract in 2014, described Hunt’s decision on Thursday as “a dark day for the NHS and the future of medicine”.
The Department of Health confirmed that foundation trusts, which are semi-independent of NHS control, could not be compelled to introduce the contract. “Foundation trusts are not mandated to bring in the new contract. They can negotiate locally. However, [non-foundation] trusts are [obliged to use Hunt’s contract],” a spokesman said.
The opt-out could create a free-for-all among foundation trusts over the next few months as they try to recruit enough junior doctors to start as trainees in a medical specialism in early August.
Alastair Currie, an employment law partner at Bevan Brittan specialising in NHS contracts, said a few trusts – including Southend in Essex and Guy’s and St Thomas’s in London – had already introduced terms and conditions for some staff that differed slightly from those imposed by all other trusts.
The BMA, usually opposed to local deals, may see terms offered by individual trusts as preferable to Hunt’s contract. It opposes any of Saturday becoming part of a junior doctor’s normal working week, but Hunt has designated that 7am to 5pm on Saturdays should be included.
Labour accused Hunt of misleading parliament on Thursday by claiming in his Commons statement that an array of “senior NHS leaders” backed imposition. Thirteen of the 20 supposed signatories of a letter of support have since disowned it and said they do not back Hunt.
A growing number of medical organisations are warning that Hunt’s move will worsen the NHS’s shortage of medical staff. In a strongly worded statement, the Royal College of Surgeons of England said it feared imposition could irreparably harm the NHS’s relationship with doctors and deter young medics abroad from choosing to work in England.
“Doctors in training are essential for the delivery of safe, high-quality patient care. The imposition of a contract takes us even further away from a goal to make the NHS the most attractive place in the world for doctors to work,” it said in a joint statement with the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow.
The organisations branded Hunt’s decision “extremely regrettable” and stressed their view that “a contract must not be imposed”. Imposition would exacerbate junior doctors’ already low morale, they said.
Hunt maintains that enforcing the contract is necessary in order to let hospital bosses recruit more junior doctors to work at weekends and usher in the so-called seven-day NHS. But the surgical colleges disputed his claim that doing so would reduce death rates among patients admitted to hospital at the weekend. “This contract alone will not resolve that issue, not least because most junior doctors already work at weekends,” they said.
The BMA has pledged to fight the imposition and is considering what action to take. Its junior doctors committee meets on 20 February to decide its next move, which may include a legal challenge to Hunt.
More than 50 junior doctors at St George’s university hospitals NHS foundation trust have written a joint letter to its chief executive, Miles Scott, who is on record as opposing the imposition of the contract, asking him to refuse to force through the deal.
“We were also grateful for your clarification that you ‘do not support imposition’ of the new junior doctor contract,” their letter reads. “As a foundation trust, you are not mandated to bring in the new contract for junior doctors, as you can decide to negotiate locally.
“In view of this and in light of your statement today, we would be grateful for your reassurance that St George’s will not be imposing a new contract on junior doctors.”
Scott was one of the 14 chief executives of trusts cited as supporting the Dalton review’s proposal for the government to do “whatever it deems necessary” to get the contract through and who later denied they had agreed to that stance.
