6th January 2016

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News and Comment from Roy Lilley
As the NHS edges ever closer to a strike it's like watching a car crash.  Patients, managers; we are powerless to stop it.  Close yer eyes... wait for the bang.  
NHS strikes are not without precedent and history does come around again; 1972 sparked three years of NHS militancy, an ancillary workers strike, followed by a nurse's strike and a consultant's strike.  

All against a background of massive opposition to the Vietnam War, miner's strikes here and a general strike in France.  The economic climate was dire and resulted in the International Monetary Fund bailing us out and... public sector cuts.  Sound familiar?
In 1975 junior doctors fell out with the Wilson Labour government over hours and conditions; rotas that enforced working 120 hours one week and 80 the next, while being paid for a 40-hour week. A desperate strike ensued, culminating in A&E closures and apparently, reducing the health minister of the day, Barbara Castle, to tears.
The nurse's action had inter-union support and the Sun newspaper shop stewards refused to print an anti-nurse headline, a blank appeared where the story should have been.
By 1992 the Trades Union Labour Relations Consolidation Act was on the statute books.  It has a bearing today.  

In terms it says (Sec 244) that a strike should be against an employer.  Just who is the employer in this case?  The Trusts who have no real say in the settlement although they are in-name conducting the negotiations by proxy or the DH who are not the employer but will decide what they will pay for and what terms suits their political masters' manifesto.
A greyer area is; a dispute with a Minister of the Crown will be treated as a dispute between workers and the employer if the dispute has been referred to a 'joint body' on which he is represented (I don't think so) or cannot be settled without him exercising his powers.  

Trusts may not agree to what the DH might agree to and the Tinkerman has no power to direct.  Trusts could settle without him.
The freedoms of Trusts to employ staff on local pay and conditions muddy the waters.  Counsel's opinion can be found on either side of the argument but the law has never been tested in court.  Thus we are in the dark.
Even more of a discussion point Sec 240; "...a person commits an offence who wilfully and maliciously breaks a contract of service or hiring, knowing or having reasonable cause to believe that the probable consequences... either alone or with others... will be to endanger human life..."
Take 50k doctors out of the equation and how long can the NHS run safe?  Again, the law has never been tested in court and counsel's opinions can ebb and flow.  More darkness.
It is interesting that the liability is personal and the prosecution is in the criminal courts.  I wonder could an aggrieved relative persuade the Crown Prosecution Service to bring an action?  We live in very different times to the 1970's, even the 1990's
Very different times.  Social media, may write a new script for this tragedy.  I wonder how long public sympathy for doctors will hold.  You can imagine the scenario; one death, a frail 'war hero', an articulate media savvy family, a Twitter storm starts trending, the press follow-in and it becomes a very different scenario.
The BMA assure us no patients will be injured in the making of this drama.  Being marooned on a waiting list seems not to count.  Many patients are still stacked-up from the last, aborted strike.  

Another cancelled operation for a much loved Grandad or a child and the family take to Facebook.  It would be unstoppable and no words from the BMA or DH could contain it.
Voting to go on strike is not a decision taken lightly and comes with a strong sense of injustice but this clunky approach to industrial relations belongs to the Tannoys, placards, beer and sandwiches of 1975. 
Forty-one years later pendulum arbitration in exchange for a no-strike-deal must be the way forward for a vital, modern, well-run public service.
Mired in laws and the rights and wrongs, lost in a complex narrative from the BMA and an over simplification from the DH; both sides in this dispute pray-in-aid the wellbeing of the patient.  

The patient who once had no say, today, might have an electronic voice reaching far beyond the conventional boundaries of a strike.  Patients who may well refuse to be spectators in this dispute or collateral damage in an arm's length battle. 
In truth, neither side's claims have the ring of truth. 
The only truth is; when the NHS says it puts patients at the heart of what it does... this time patients might make them mean it
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