‘My professional judgement will be exercised as independently as possible and not be influenced by political pressures…’ So says a somewhat sterile modern rendering of the Hippocratic Oath. Reformulated in 1997, its authors could perhaps be forgiven for their style. These were, after all, the heady days of the ‘call me Tony’ culture. Nonetheless, the thrust of the passage is clear: patients are not to be jeopardised by politics. But as with many agreeable phrases, its application is plagued by disagreement. Indeed, the fracas between the British Medical Association (BMA) and the Department of Health continues to demonstrate how accommodating this bland language is. Does it require junior doctors to surrender their weekends and sleep, or that the government reconsiders its overwhelmingly rebuked policy?
That is, at least, the most common characterisation of the current battle. Each side has entrenched itself at opposite ends of the debate and fires statistics, studies and sermons at the other. But what about the patients? So far, junior doctors – and some nurses – have only gone on strike once. Of course, this disrupted the care many NHS patients (or should we say ‘consumers’?) received. It will undoubtedly have burdened many people already ill, with further complications, logistical or medical. Excluded from the one strike to date, however, were emergency workers. Rightly so, you might observe, for there are surely moral limits on the mischief that disgruntled doctors should cause. Fine to delay some elective surgery and other non-urgent care, but jeopardising people’s lives by walking from the emergency room is a step too far.
Noting that the BMA proposes that the strike planned for February 10 will include all junior doctors, even emergency workers, Dr Peter Ross confirmed my suspicion that patients will face an alarmingly heightened risk of injury or worse because of the emergency-inclusive strikes. Dr Ross, himself a former striker over NHS pension changes, told me that “unfortunately the reality is that there are likely to be people whose injuries will worsen or who will die” in the absence of junior doctors in A&E. Understandably keen to convey the nature of the threat to patients properly, Dr Ross qualified his warning by stressing that senior consultants would undoubtedly mitigate the risks by taking on additional shifts and a wider range of duties. Nevertheless, it remains the case that already grave threats to a patient’s health will be exacerbated by an emergency inclusive strike.
Aware of this possibility and in response to a threat of prosecution by an (unspecified) NHS Trust, the BMA employed John Hendy QC to give an opinion on the legal liability of strikers, in the event that a patient sustains serious injuries or dies during a strike. Mr Hendy concluded that the potentially problematic provision – section 240 of the Trade Union and Labour Relations Act 1992 – would not justify the prosecution of any striking doctor, unless that doctor had gone on strike with “malice” against the person whose life was endangered or who was injured. Since no doctors went on strike for this reason, no prosecution could be reasonably brought. While there are serious questions about the coherence of Mr Hendy’s opinion, its validity does not concern us here. Rather, the fact of it is enough.
For in clamouring to establish their members’ legal immunity, the BMA has proven too much. With the fact that they perceived a need to commission Mr Hendy’s legal opinion reveals their clear contemplation of the unnerving possibilities to which Dr Ross alluded. Why, indeed, would one commission a legal opinion on the chances of being prosecuted for patient injury or death unless one contemplates patient injury or death? In seeking to discharge their Hippocratic duties, junior doctors might reflect on that irony. No matter how legitimate their demands or how smarmy and baffling Jeremy Hunt’s behaviour, the risk of death in A&E cannot be increased. Any strike must exclude all emergency workers.