Junior doctors have lost a judicial review challenging the legality of a controversial new contract, which is now set to be introduced by Jeremy Hunt next week.
In a judgment published yesterday, Justice Green rejected arguments presented at the high court by five junior doctors that the health secretary had exceeded his powers.
A department of health spokeswoman said: “We welcome this clear decision by the judge that the secretary of state acted entirely lawfully. We must now move on from this dispute to the crucial job of making sure patients get the same high standards of urgent and emergency care every day of the week, which involves more than the junior doctors’ contract.
“We urge the BMA to remove all threat of further industrial action so we can work constructively with junior doctors to address their wider concerns and better recognise their vital importance to the NHS.”
The doctors had argued that the health secretary had no power, whether solely or with others, to impose terms on which junior doctors were employed, only to make recommendations; that Hunt had acted in breach of the requirements of transparency, certainty and clarity; and that he had acted irrationally.
But Green rejected all three grounds, finding that the health secretary was encouraging employers to introduce the new contract, not compelling them to do so. He further said that he did “not accept the claimants’ argument that the evidence base upon which the minister acted was inadequate” and rejected the suggestion that Hunt had misled parliament.
The junior doctors nevertheless claimed the judgment as a victory. They said it showed that, contrary to Hunt’s previous statements, the contract was not being imposed and so junior doctors were not legally compelled to sign the new agreement.
Dr Amar Mashru, one of the five doctors who brought the legal challenge, said: “This allows the employees and employers at a national level to negotiate and agree terms which are genuinely in the interests of patients and staff.”
He said it was possible that trusts would retain the existing contract until terms and conditions were agreed, rather than introduce the new agreement next week as hoped for by Hunt.
The department of health said it would be seeking the repayment of taxpayers’ money spent defending the case up to the previously agreed cap of £70,000 and would use the funds to make a charitable grant to NHS charities.
In a two-day hearing last week at the Royal Courts of Justice in London, Jenni Richards QC, for Justice for Health, asked the court to quash Hunt’s decision to bring in the new contract, which she maintained he had no power to do, especially since the Health and Social Care Act 2012 reduced the scope of the health secretary’s powers.
But Gavin Sheldon QC, appearing for Hunt, rejected the doctors’ arguments and said that their case was without substance. The health secretary had not decided to “compel” NHS trusts to use the new contract, he had merely approved it, Sheldon said.
“The secretary of state has not gone outside the scope of his powers,” he told the court. “The secretary of state has been clear about what his powers are.”
The five doctors’ high court legal challenge was crowdfunded by £300,000 from about 10,000 donors, most of them fellow junior doctors. They hoped that the court’s ruling would embarrass Hunt, and make it difficult for him to execute his threat to impose the contract, by finding that he had acted outside his powers or the law.
Many junior doctors, frustrated that eight days of strike action between January and May had failed to force Hunt to lift his threat of imposition, hoped that the lawsuit might delay or even scupper altogether Hunt’s plans.
The British Medical Association is facing a backlash from its members after first announcing, and then last Saturday calling off, plans for a series of four all-out strikes by junior doctors as a way of increasing the pressure on Hunt.
As things stand, NHS trusts across England will start phasing in the contract from next week in a process that will take about 18 months to put all 54,000 doctors below the level of consultant on to the altered terms and conditions.
