Tonight, the BMA has written to the Chief Executive of NHS England, Amanda Pritchard, to say the process by which striking junior doctors can be called back to work due to ‘unexpected and extreme circumstances,’ to protect emergency care, is at risk of collapse because of failures by NHS management in England to follow it.

At the beginning of the dispute last year, the BMA jointly agreed with NHS England a voluntary system to provide a way – called a ‘derogation,’ - which would allow for junior doctors to return to work in the event of safety concerns about emergency services arising from circumstances that were not related to industrial action. As part of the agreed process, Trusts are expected to show they have exhausted all other sources of staffing before recalling junior doctors back to work. This could be via the cancellation of planned but not urgent treatment and rearranging urgent cases to days around or outside strike action. They can also incentivise staff who are not taking strike action to work on strike days.

This process has worked well in all previous rounds of strike action but now, NHS England and some Trusts who are requesting derogations, are refusing to provide the BMA with evidence that they have undertaken these steps.

In the letter, the Chair of the BMA Council, Professor Philip Banfield writes, ‘This refusal to provide the information necessary to take well informed decisions is fundamentally undermining the derogation process as we are being asked to take decisions about our members’ right to strike without the requisite information. NHS England, it seems, is wilfully placing the BMA in an impossible situation.’

He goes on to say, ‘A number of local negotiating committee leaders have told us that their employers decided to apply for a derogation well in advance of strike action and before alternative solutions could be pursued. In addition, consultants on the frontline in several of the departments we have received requests from, have expressed surprise that a derogation request has been submitted, telling us they are staffed safely. We are increasingly drawing the conclusion that NHS England's change in attitude towards the process is not due to concerns around patient safety but due to political pressure to maintain a higher level of service, undermine our strike action and push the BMA into refusing an increasing number of requests; requests, we believe, would not have been put to us during previous rounds of strike action. The change in approach also appears to be politicisation and weaponisation of a safety critical process to justify the Minimum Service Level regulations.’

The letter calls on Ms Pritchard to urgently intervene to make sure the derogations process is used as intended: as a last resort when alternative staffing schemes have failed to provide cover for urgent, emergency, and critical care. The letter also asks that Trusts and NHS England fully cooperate with the BMA to, ‘enable good and safe decision making in a process which we can have confidence in’. Of course, none of this would be unnecessary if a credible pay offer to value the skills and expertise of our doctors was made by government, which it can do so at any time.’

Notes to editors

Derogation requests received so far in this action include incomplete and inaccurate information such as: 

• Unevidenced assertion that no consultants, Specialty and Associate Speciality (SAS)  doctors, or Advanced Practitioners are working at all in some specialties.
• Unevidenced assertion that no additional consultants or SAS doctors are available to provide cover for junior doctors, in stark contrast to previous rounds of action.
• Trusts refusal to demonstrate they have sought alternative staffing from consultants or SAS doctors.
• Refusal to provide information on whether elective activity is ongoing, with staff available to redeploy.
• Refusal to detail any efforts to encourage alternative staff to assist, such as incentive rates or time off in-lieu, including in cases where we are aware there is no enhanced rate of pay.

The BMA is a professional association and trade union representing and negotiating on behalf of all doctors in the UK. A leading voice advocating for outstanding health care and a healthy population. An association providing members with excellent individual services and support throughout their lives.

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