Jeremy Hunt acted illegally and beyond his powers by deciding to impose a new contract on NHS junior doctors, the high court has been told in a legal challenge to the health secretary’s handling of the year-long dispute.
The court on Monday began a two-day judicial review of the legal challenge to Hunt brought by five junior doctors.
Their group, Justice for Health, claims that the health secretary has acted ultra vires (beyond his powers) by choosing to force new terms and conditions on 54,000 trainee medics in England despite their overwhelming opposition.
A barrister leading Hunt’s legal team told the judge, Mr Justice Green, that there was no evidence that NHS employers did not want the contract and that the claim was “wholly without substance”.
Hunt suffered an early setback when the judge rejected a claim by his counsel, Clive Sheldon QC, in pre-hearing legal argument that Justice for Health’s claims should be thrown out. Refusing Sheldon’s plea, Green said at the outset of the first session of legal argument that “this is plainly a serious case” which, in his view, “requires full judicial review”.
Green planned to issue his judgment on 28 September, he said, days before junior doctors across England are due to take part in the first five-day strike in the long-running dispute. The strike is planned to start on 5 October, the day the contract is due to be imposed on all trainee doctors below consultant level. The six previous walkouts held since January have lasted one or two days.
Justice for Health, whose action has received £300,000 in crowdfunding from 10,000 supporters, wants the court to overturn Hunt’s decision to use what he called his “nuclear option” of imposition, and rule that he broke the law in choosing to push it through.
Its legal argument states that the campaign group, consisting of Dr Nadia Masood, Dr Ben White, Dr Francesca Silman, Dr Amar Mashru and Dr Marie-Estella McVeigh, “seeks an order quashing the decision of the secretary of state; [and] declarations that the secretary of state had no power to make the decision which he purported to make on 6th July 2016, that the purported imposition was unlawful and that the secretary of state has acted unlawfully”.
Jenni Richards QC, for Justice for Health, said that while Hunt was entitled to recommend a contract, he did not have the power to impose one. The health secretary had “acted in breach” of his “requirements of transparency, certainty and clarity” and behaved “irrationally”, she told the court.
The junior doctors claim that, despite stating publicly when the dispute began last year that he was imposing the contract, Hunt had then switched tack and insisted he had merely made a non-binding recommendation that revised conditions of employment.
Richards also claimed that Hunt had ignored a series of studies of mortality rates among patients admitted to hospital when he began claiming in July 2015 that as many as 11,000 patients a year admitted on a Saturday or Sunday die unnecessarily because too few doctors are on duty – the “weekend effect”.
Giving evidence for Hunt, Sheldon said the secretary of state had decided not to “compel” NHS employers to use the new contract, but to “approve” it. “This case is redundant,” Sheldon told the judge. “There is no evidence at all that there is any NHS employer who doesn’t wish to introduce these new contracts.”
