On 6 July 2016, following the rejection by junior doctors of the new contract negotiated between NHS Employers and the BMA, Jeremy Hunt announced to the House of Commons that "I have this morning decided that the only realistic way to end this impasse is to proceed with the phased introduction of [the new contract, as negotiated with the BMA]". What, exactly, did he mean by "decided" and "proceed"? Was he ordering NHS trusts and foundation trusts (FTs) to impose the contract, or merely recommending that they do so?
The Secretary of State's statement, in the context of various other communications before and after this one, was widely reported as a decision to impose the contract on NHS trusts and FTs, something which he has no legal power to do. Five junior doctors, under the banner of 'Justice for Health', launched a crowd-funded judicial review application in the High Court, arguing that Jeremy Hunt had exceeded his legal powers in purporting to impose the contract on the junior doctors. They urged the Court to quash his decision.
The High Court yesterday rejected this challenge. Counsel for the Secretary of State successfully argued that there had been no decision to "compel" NHS employers to use the new contract: Mr Hunt had merely "approved" it. He was not therefore asserting any legal right to impose the contract on employers of junior doctors.
Taking a commendably positive approach to the judgment, Justice for Health have pointed out that NHS trusts are now free to negotiate terms and conditions with junior doctors, given that the contract negotiated with the BMA was not being imposed by the Secretary of State. In fact, there has never been any doubt about the legal power of NHS trusts and FTs to negotiate terms for their staff autonomously if they wish. In practice, however, terms and conditions are agreed nationally for the vast majority of NHS staff, including doctors, and are very seldom departed from. We have yet to hear of any NHS employer who intends to negotiate a new model contract for junior doctors.
The new contract will be rolled out in phases across the NHS, beginning next week. It will not immediately affect junior doctors who are already working under an 'old-style' contract, but it will apply to any doctors taking up their first appointments, and to any doctors who rotate into a new post - they will be offered the new contract at that point.