Duty of Care during the Junior Doctor’s strike

PUBLISHED 02.12.15

Due to recent contract disputes between junior doctors and the government, the British Medical Association have balloted junior doctors about strike action.

The results were overwhelmingly in favour of a strike. Therefore, on the 1st, 8th and 16th of December, junior doctors are going on strike. The first strike is a 24 hour strike, but does not include emergency care. The second 2 strikes are full strikes between 9am and 5pm, and include emergency care.

What is a junior doctor?

Junior doctors are all doctors who have not reached the level of consultant, they range from graduates to some with over a decade of experience. They represent the vast majority of doctors in the NHS. Although the term ‘junior’ could be interpreted to represent a lack of experience, in reality a huge number of junior doctors have many years of experience. Some junior doctors even already have the required knowledge to be a consultant, but are simply awaiting a consultant post.

What will change during the strikes?

During these periods of strike it is inevitable that routine operations, such as hip and knee replacements, are going to be disrupted. The hospitals’ duty of care in an emergency, however, does not change. For this reason, hospitals are ensuring that, even when junior doctors are on strike in emergency care, there is adequate cover to ensure that emergency care is not affected. Therefore, if you are in an emergency, you should rest assured that you will get the same level of care that you would have if the junior doctors were not on strike. It therefore follows that if emergency treatment provided falls below the required standard of care during a strike, there may be a potential claim arising from that care.

Are there any concerns regarding the new contract?

Whilst it is not for us to comment on any aspect of the pay dispute, what is of concern are the claims that under the new contract there will be a lack of financial safeguards to prevent junior doctors being forced to work longer hours. Whereas a hospital has to pay increased wages if a junior doctor is to work a long day currently, it is claimed that under the new contract an NHS trust will have no financial disincentive to put doctors on shifts up to 15 hours long.

The medical negligence team at QualitySolicitors Dunn & Baker have dealt with a huge number of cases where it is clear that fatigue has played a part in the failures in care provided to our clients. Failures to undertake the correct tests to diagnose a patient, failures to consider certain conditions, errors in inserting cannulas, misinterpreted scans and x-rays, prescription errors, surgical errors; we have represented claimants who have suffered all of these issues and fatigue could have been considered to have played a part. Even simple mistakes in hospitals can have a devastating effect both for the patient and for the finances of the NHS. It is hugely important that everything is done to eliminate mistakes made due to fatigue. If the new contract ends up having the opposite effect, it could compromise patient safety, which is an outcome nobody would want.