• Justice for Health

    A legal battle for a safer contract and sustainable NHS

  • Judgment Day : 28.09.2016

    Message to supporters

     

    Justice for Health was set up by NHS staff and powered by your crowdfunding to contest the legalities of contract imposition.

     

    It is now established, beyond doubt, that the Secretary of State for Health, Jeremy Hunt, is not imposing the disputed contract on junior doctors and that employers of junior doctors are not legally compelled to use it.

     

    Throughout the year we have seen the SoS repeatedly declare imposition of the new contract on junior doctors. Through the process of litigation in the High Court we finally have clarity on his decision-making and legal powers.

     

    ● Mr Hunt is not imposing

    ● He never was

    ● He never meant to suggest he was

    ● He claims no-one ever thought he was

     

     

    Mr Hunt’s last minute legal acrobatics have saved him from losing the case but bring no comfort to the thousands affected by his actions in the last year.

     

    He did not previously clarify his position when faced with thousands of cancelled operations, a devastated workforce or a health service in chaos, but instead, only when his actions faced High Court scrutiny.

     

    The case: our three grounds

     
    1) Did the SoS have power to impose the contract?

    During the proceedings the defence satisfied the judge that the SoS was not imposing a contract on junior doctors, and merely approving a recommendation that all Trusts adopt a new model contract. The judge was satisfied that the employers understood the SoS’ language and powers.

     

    2) Was the SoS unclear about his decision-making and in communicating?

    The judge accepted that the SoS language was ambiguous prior to the court hearing, and “in fact lead the junior doctors to conclude that contrary to the reality, the Secretary of State intended to ‘impose’ the new contract thereby excluding altogether any daylight for negotiation either with the SoS or the employers”.

    This was only clarified at the last moment in court.

     

    3) Did the SoS made an irrational decision?

    The judge noted that it would be very difficult to rule the SoS was irrational to follow the government’s own evidence relating to weekend care, staffing and risk. He stated that the SoS had additional reasons which led to initiating contract reforms and that these reasons were rational. Although we disagree with this, it is not unexpected- ‘irrationality’ has an extremely high legal threshold for proof.

     

    Note: Originally we submitted a fourth ground: a challenge against ‘clause 22’ in the February contract which would have allowed for unilateral variation of the terms and conditions, by the employers at any time. Justice for Health was successful in this point and the clause was removed from subsequent contract offers.

     

     

     

    The Judgment

     

    The Judgment begins by dismissing claims from the SoS that the case had “no merit”, and emphasises that the grounds presented were “serious and properly arguable” and an issue of “wider public importance”.

     

    It was made clear that Jeremy Hunt is not imposing a contract on junior doctors, instead merely ‘recommending’ it to NHS employers:

     

    “One significant consequence of this litigation therefore has been that the Secretary of State has, properly and reasonably, taken the opportunity to put his position beyond doubt. Without granting declarations I can nonetheless, formally, record the position of the Secretary of State as articulated in these proceedings. First, the Secretary of State does not purport to exercise any statutory power that he may have to compel employers within the NHS to introduce the proposed terms and conditions. Second, he acknowledges, therefore, that in principle individual employers are free to negotiate different terms with employees…”

     

    Despite warnings from his own civil servants, and being aware that his language was causing confusion, the SoS continued to be unclear over the past year.

     

    “…the Minister was warned that the expressions “imposed” and “imposition” had given rise to difficulties. Paragraph [4] of the briefing stated as follows:

     

    4. It is noted that the press has again today referred to the contract potentially being “imposed” by you. As you know, references to “imposition” have been deployed to assert “wrongly” that you are not aware of your legal powers. To avoid further complaints of this sort, we suggest that it is best when addressing this issue to spell out that the new contract will be introduced by you working together with NHS employers.”

     

    The SoS only provided clarity at the last moment, despite previous requests from doctors, politicians and the Justice for Health legal team. This has allowed him to avoid a legal ruling against him.

     

    “Shortly afterwards and essentially in the course of these expedited proceedings the Secretary of State has formally provided elaboration and clarification of his decision”

     

    His lawyers argued that junior doctors’ interpretation of parliamentary statements made by the SOS were unimportant and irrelevant. They claimed only the employers (as decision makers) interpretation should be considered. It was distressing for junior doctors and supporters in court to hear the argument presented in this way. The judge has made clear that this was not an acceptable argument, and that junior doctors and those affected by the SOS decision are legally entitled to clarity.

    “In the course of argument counsel for the Secretary of State argued that the addressees of the decision were essentially the employers since it was they who had the responsibility for taking decisions on employment matters at the local level and that was what the decision was really about. However, Mr Sheldon QC, for the Minister did (somewhat reluctantly) acknowledge that employees were also affected. In my view employees were manifestly a critical category of addressee of the decision.”

    The judge has dismissed the defence’s claim that junior doctors were fully aware the SoS was not imposing a contract, an argument that was met by audible gasps from those who were present in the High Court.

     

    “I accept the evidence of the junior doctors that they were in genuine doubt as to whether or not there was any negotiating daylight left following the Minister’s statement and, further, construed the Statement as entailing the Secretary of State compelling introduction or implementation of the contract and thereby eradicating further negotiating options.”

     

    The judge has pointed out that now there is clarity the SoS is not imposing a contract, there remains an opportunity for further negotiations. Employers have in principle the freedom to choose whether or not to adopt Hunt’s recommended contract.

     

    “[SOS] now accepts that there is in principle negotiating daylight which exists. But I have accepted the Secretary of State’s analysis by looking, with the obvious benefit of hindsight, at the full range of relevant documents, the most important of which would not have been available to the junior doctors prior to this litigation.”

     

     

    Our final message:

     

    We have worked very hard to get this case to court and we are thankful to have had the opportunity to hold Mr Hunt to account. The judicial review proceedings were necessary to gain clarity in the law and force Mr Hunt to answer for his conduct.

    We hope it sets a precedent for better ministerial conduct and deters the SoS from making statements about imposition on other NHS staff groups.

     

    After a short break, Justice for Health may explore further legal challenges and campaigns we could help take forward on behalf of NHS staff and patients.

    Whilst we hoped for the top result, we have met our initial goal to extract clarity from the SoS and will now move on. We resolve to help the BMA to exert legal pressure in any way possible to combat the exploitation of NHS staff and annihilation of good quality patient care we have witnessed at the hands of this Health Secretary.

     

  • Judgment Documents

    Here's a summary of the parts of the judgment that explain what J4H and junior doctors have gained:

    CLARITY on Mr Hunt's position on imposition.

    Hunt is NOT imposing, and he never was!

    Brilliant, concise summary from our lawyer Saimo Chahal QC (Hons):

     

    The judgment in brief

     

    This case is all about what happens when loose language is used and meanings imperfectly conveyed and the very serious consequences which can flow from those words. The words used have led to Junior doctors striking and serious consequences for patients. That is why I want to use by and large the language of the judgment to convey what the court has decided rather than to interpret it. Before that:

     

    The key message from the judgment is this:

     

    1. Mr Hunt is not imposing a contract on Junior Doctor

    He never was
    He did not suggest he was
    He never thought anyone thought otherwise

     

    2. The Justice for Health junior doctors are thrilled to announce that they have succeeded in establishing beyond doubt that the Secretary of State for Health is not imposing the latest ie July 2016 contract on junior doctors. Further that employers of junior doctors are not legally compelled to adopt the contract, and that they can continue to negotiate on terms until agreement is reached.

     

    3. Without the courage and determination of the Justice for Health doctors, Dr White, Dr McVeigh, Dr Masood, Dr Silman and Dr Mashru in taking this legal challenge this position would not have been established or publicly available today.

     

    4. The doctors have established that the statement made on the subject of the new contract by the Secretary of State for Health on 6th July to Parliament did not make this position clear. The position only became clear following documents and statements filed in this litigation. As result the Defendant avoided the Declaration requested in this litigation but the doctor’s position is entirely vindicated.

     

    Conclusion

     

    Justice for Health are satisfied that they were performing a public service in pursuing this litigation and that most importantly their doctor colleagues as well as employers now understand the true legal position – there is no contract which has been imposed on them. Employees and employers can discuss and negotiate terms.

    They have established importantly that the principles of transparency and clarity apply and also as to the limits of parliamentary privilege. This will help others in the future.

     

    Judicial Review judgment quote:

     

    “One significant consequence of this litigation therefore has been that the Secretary of State has, properly and reasonably, taken the opportunity to put his position beyond doubt. Without granting declarations I can nonetheless, formally, record the position of the Secretary of State as articulated in these proceedings. First, the Secretary of State does not purport to exercise any statutory power that he may have to compel employers within the NHS to introduce the proposed terms and conditions. Second, he acknowledges, therefore, that in principle individual employers are free to negotiate different terms with employees…”

  • Judicial Review Hearing

    Our days in court finally arrived this week and our lawyers presented our case brilliantly.

    The Judgement will be made public on Wednesday 28th September 2016.

    Hearing is complete 21.09.2016

    We are truly humbled by the amazing show of support from all of you.

     

    Thank you to those of you that booked time off work and/or travelled from afar to come in person, and to those that showed support from afar on here and Twitter.

    We don't have all of your names but we were pleased to see you all. Thank you to our support team for your fantastic help and keeping us going.

    We really would not have had this hearing without your donations and most importantly your encouragement, which have kept us going throughout.

    The judgement will be announced next Wednesday 28th September.

     

    Nadia, Mari, Ben, Amar and Fran
    #JustHealth

     

    The hearing was tweeted live from our Twitter account by our amazing eagle-eared colleagues Taryn, Dagan & Rachel. Thanks to them, you can read the stream of updates from the court over the 2-day hearing: the good, the bad and the ugly.

    Press Release for JR hearing 12.09.2016

    Royal Courts of Justice, Strand, London WC2A 2LL

    19th & 20th September 2016

     

    Junior doctors and their supporters will rally outside the High Courts at 8am on the first day of the hearing with a visual demonstration of how the government are playing games with the NHS and trying to get something for nothing.

     

    PRESS RELEASE

    • Justice for Health was founded in March 2015 by five frontline junior doctors to mount a legal challenge against the imposition of an unsafe and unsustainable contract on Junior Doctors by the Rt Hon Jeremy Hunt, the Secretary of State for Health (SOS).
    • A record breaking £300,000 was raised by over 10,000 donations through the online crowd-funding platform CrowdJustice.
    • The SOS intends to impose the disputed contract on all junior doctors in England from October 5th 2016. NHS frontline staff and academics have rejected this contract as it is considered unsafe, unsustainable and undeliverable.
    • The SOS’s insistence on imposition has led to the doctors’ union calling to drop imposition in order to prevent any further industrial action.

    Their team of lawyers will put three public law arguments to the judge that the SoS has:

    1. acted outside of his powers
    2. failed in his duty of clarity to parliament and the public
    3. been irrational in decision-making

    "Jeremy Hunt and others have made a very strong case for seven-day services, but it seems to us it's impossible on the current level of staff and the current money we have available.

    If something has to give at the moment, when we're trying to do what we're currently doing, it can't cover important new policies like seven-day services."

    Mr Chris Hopson, Chief Executive NHS Providers, BBC Andrew Marr Show 11th September 2016

     

    The Government’s ‘seven day NHS’ plan at present is fundamentally flawed:

    • It lacks a definition and a resourced plan‘Weekend effect’ is undefined and the data is academically disputed
    • There is no evidence that changing junior doctor weekday staffing levels will improve care across the week
    • It is not matched by increased staffing or funding
    • The Department of Health’s own risk assessment confirms major safety concerns surrounding implementation 

    On this basis, it is irrational to impose this contract.

     

    Mr. Justice Green presides over the hearing at the Royal Courts of Justice on 19th and 20th September 2016. The final judgement will be announced before the end of the month.

    ------------

    Contact for further legal information:

    Saimo Chahal, Bindmans LLP

    s.chahal@bindmans.com 02078334433

  • Judicial Review Documents

    Our skeleton argument and chronology were submitted to the Court in advance and will be referred to throughout the hearing on Sept 19th & 20th, 2016

    The outline of the legal case: what our barristers will argued in court and the evidence they presented (50 pages)

    The chronology of events and documents presented at the hearing.

    The Department of Health's skeleton argument: the outline of their defence (53 pages)

    The NHS Confederation's skeleton argument: the outline of their defence (26 pages)

  • We've had a great day in court!

    Thursday 21.07.2016

     

    Today we had a good day in the High Court challenging Mr Hunt's position on imposition.

    The Judge has heard our initial proposals and granted us a full, expedited Judicial Review hearing expected in September. The judge remarked that this is an important case that has merit and needs to be heard in the public interest.

     

    We have also today challenged the SOS’s security for costs demands. Yesterday we received a letter demanding £150,000 within 7 days.

    Our legal team have challenged this in court and negotiated a better deal for us.

     

    The judge listened to our requests and has ordered that the amount provided as security for costs will represent the total and final amount that Mr Hunt’s legal team could seek from us if we were to lose our case.

    • We must provide £70,000 security for costs if we argue only our original public law grounds.
    • We must provide £130,000 security for costs if we choose to argue the full case including the proposed new grounds. 
    • We will need to continue to raise funds to cover our legal fees as the case progresses.
    • NHS Employers presented the court with a bill that they are requesting we pay. The judge listened to their position and decided that this would be addressed at the end of the full case hearing and judgment.

    These costs must be produced and held in a secured account by the deadline of August 16th. If we have not raised the necessary funds on that date, the judge will take a decision as to whether or not we are allowed to proceed to the full hearing.

     

    We will be meeting with our lawyers next week to take their advice and make our final decision about which grounds we want to proceed with.

    Whichever option we choose to take, we are relieved and grateful to have reached a more reasonable financial agreement today.

     

    We will make our decisions and rationale public as soon as possible, as agreed in court today.

     

    Please continue to support us by sharing our funding link online and helping us get our message out to the public that Junior Doctors will not be silenced when we are raising legitimate concerns about the safety of our patients, our colleagues and the sustainability of the NHS.

     

    We are so grateful, once again, for your support and the speed with which you’ve responded to our emergency funding plea!

     

    Many thanks,

    Marie, Ben, Amar, Nadia and Fran

    #JustHealth Team

  • Legal Updates

    The Justice for Health team has been overwhelmed by your support. Thank you from the bottom of our hearts for donating. As you can tell, this is something we deeply believe in. However, it is clear the Secretary of State is not going to make this easy.

    26.07.2016 Emergency fundraising complete & big decision ahead

    Your support has led to another round of astonishing, record-breaking judicial review fundraising. This clearly demonstrates the strength of feeling from NHS Staff and public.

    Thanks to your donations, the immediate financial restrictions in taking the competition law challenge forward were lifted and we had the freedom to give this option full consideration. We want to have the best possible chance of winning our judicial review.

     

    Judicial Review

    We have been considering whether to proceed with:

    • Our original public law grounds OR

    • Our original grounds plus extended grounds including competition law

    After extensive discussion with our legal experts and with input from interested parties, we have decided we will proceed with our original public law grounds. We will ‘stay’ the competition law challenge, with liberty to restore: this means it is on hold for now.

    We feel this respects the aims and objectives set out when beginning this action, as well as respecting the trust you have placed in us.

     

    Competition Law Arguments

    It is important to know that existing government legislation recognises every Trust as an individual employer and we would argue that the only lawful way in which they can all be asked to use the same contract is with the agreement of the employees or their representative unions. This would mean that in the NHS, the only lawful national contract is a mutually agreed one.

    We met with our solicitor Saimo Chahal QC (Hon) and two expert QCs again this week, to take our decision regarding this challenge. We have taken it very seriously and with appropriate counsel from all experts and interested parties.

    Our legal proceedings have exposed the workings of HEE and market forces that bind us to our employers, which warrant interrogation. Competition law issues when considered in the context of the NHS are hugely complex, legally and politically. In order to confidently proceed with any competition law challenge, any claimants would need full support from the British Medical Association. We hope that in future, we can revisit this argument in collaboration with the BMA. The issue should be addressed with appropriate resources and strategic foresight.

     

    Funding

    We have raised all of the funds asked of us by the Department of Health’s legal team for security and our own for legal expenses. Any funds remaining in our client account that are not already allocated for these expenses will be held for us as a contingency, should they be required for an Appeal.

    Any excess funds will be redirected to other cases via CrowdJustice, in accordance with their terms & conditions. Any donations of over £1000 will be refunded. We are working with CrowdJustice to develop a new mechanism to enable us to decide which pro-NHS cases to support in future.

     

    Court Date

    Confirmation of the court date is pending. We expect this to be a 2-day hearing in mid-September. We will announce this as soon as we know.

     

    The Health Secretary has tried everything to avoid this case being heard, and we will do everything we can to hold him to account for his actions.

     

    Marie, Ben, Amar, Nadia and Fran

    #JustHealth

    07.07.2016 Back in a state of imposition

    The Secretary of State appears to have re-adopted his role as a decision-maker and has purported to take a decision that a new contract should be "introduced" in the NHS, apparently in opposition to a majority of junior doctors as seen in a BMA referendum.

    This is confirmed in a circular from NHS Employers sent to junior doctors which refers to the Secretary of State having given an "instruction" to implement the contract.

    The SoS' language remains the same. It is still wholly unclear precisely what he means. The SoS only has a legal power to 'recommend' that NHS bodies use this contract, and has no power to impose it. We have still not received a sufficient answer as to whether the SoS believes he has any legal power to impose anything.

    We have written to government lawyers to establish whether the SoS is saying:

    • he is taking a leadership role and 'recommending' to the NHS Employers & Consortium that they should implement the contract or
    • he considers that he has the legal power to 'impose' the contract

    We will be revising our case further in the light of new announcements and actions and have a #‎JustHealth case management hearing listed for 21st July 2016.

    Justice for Health remains ready to steadfastly oppose imposition, and possibly other legal angles, in the courts should it be required.

    23.05.2016 Staying the case following recent developments

    Justice for Health have today made the decision to temporarily suspend legal action. Our case will be 'on hold' whilst we await the new contract terms & conditions to be published. We are also waiting for the results of the referendum of junior doctors and the equality and safety assessments following this new offer.

    We still believe that Mr Hunt acted unlawfully in making the decision to impose a contract when he announced this on 11th February 2016. Justice for Health is committed to a contract which is lawful, just and puts staff & patient safety first. We do not believe that a settlement which negatively impacts the wider NHS could ever be in the best interests of the British Public. If we find ourselves in this situation again after the contract referendum, we are ready to resume our legal action immediately.

    We will continue to work use every resource at our disposal to challenge decisions and actions we believe are harmful to patients and staff.

     

    Saimo Chahal QC, Bindmans LLP:
    "We have today agreed to stay the Judicial Review proceedings to await the publication of the 3rd and latest contract (in as many months). This is to be issued on 31st May and then we await the outcome of the referendum on this contract and whether it is acceptable to junior doctors.

    We will have a case management hearing in the 3rd week of July in the High Court to review how best to proceed. There is this pause as political events have intervened. However, this is not the end of the fight for justice by these brave doctors."

    19.05.2016 ACAS statement response

    ACAS Summary Statement
    We have read the junior doctors' contract new offer summary published by ACAS on 18th May. We are pleased that both parties appear satisfied with the outcome thus far. Our team will comment on the full contract offer when it is published after we have conducted a full and thorough analysis.

    Our Judicial Review
    We are discussing with our lawyers and will update you shortly on our plans moving forwards. We have always fought for a contract that is a safe for patients and staff, sustainable for the future, and mutually agreed and legal in its method of introduction. This has not changed and we will continue to seek this until we are satisfied we have achieved this objective.

    18.05.2016 DOH response to final letter

    Yesterday, May 17th, the DOH lawyers wrote to us saying, again, they don't believe our case has merit as the SOS for Health never intended to impose a contract. He has rejected our offer to settle the case and has failed to admit that he does not have the power to impose a contract. Our High Court hearing is due on June 8th, so a Judge could decide.

     

    Junior doctors across the country are now waiting for news today, following 10 days of talks between the BMA and the DOH. A new contract offer is expected, and we at Justice for Health will be waiting to see the offer in detail before commenting further. Every doctor in the country must scrutinise this offer, looking for the improvements in hours safeguards, patterns of work and equality that are absolutely necessary for an offer to be agreed and accepted.  

    12.05.2016 Final letter to SOS Mr Jeremy Hunt

    The pressure mounts on Mr Hunt to be honest; does he have the power to impose the contract or not?

     

    Today we sent a letter to the SOS asking him to confirm his position and if necessary, to admit that has no power to impose the contract. We have sent him a series of questions to get further and better understanding of his position. This is our last attempt to seek a clear statement from Mr Hunt, before we go to court. If he refuses we can ask the court to determine the issue, after we've attempted everything possible to reach a settlement.

    You can read our letter here.

    05.05.2016  Judicial Review hearing granted for June

    Today we received notification that our application for a Judicial Review, on the grounds that the SOS has no power to impose a contract, has been accepted.

    Our case will be heard on June 8th-10th, at the same time as the BMA's JR on the grounds of equality.

    This rolled-up hearing is expected to last 3 days. Book your seats in court!

    03.05.2016  Your money

    It is critical to us as an organisation that we are utterly transparent about your money. Thus, we are using our own money for anything not strictly or directly pertaining to the case. As you can imagine, this process is time-consuming and expensive. All funds raises through CrowdJustice are, by definition, used only for legal fees.

    • Given the public importance of this case, Bindmans LLP are working on a 'no win, low fee' basis. Your funds support stages 1–5.
    • Thank you for funding the initial £30k cost protection deposit. This enabled us to work towards securing a hearing with the High Court.
    • Our focus for funding will now be on cost protection in the event of loss and fundraising for the other possible legal challenges.
    • Over the coming week or two we will have a clearer idea of how much the Secretary of State will demand from us in the case of loss and how we will have to insure ourselves against this.
    • We must respond the Secretary of State and other Interested Parties’ correspondence as they arrive. We are looking at further avenues to explore, although we cannot be more explicit about this right now (expect more soon). These will inevitably come at further cost, yet is important that the case is robust and as strong as possible, and we use all legal tools available.

    All money raised so far is to cover legal costs and to start to prepare for any potential adverse costs order. Your donations are NOT spent on taxis, trains, PR, media, coffee or paperclips.

  • Stage 1: Groundwork, March 2016

    Preparing the case plan: interviewing claimants, identifying witnesses, preparing draft statements, reviewing evidence, liaising with the BMA, and considering legal issues.

    We launched our crowd funding page in order to take the case forward after being advised we would need to raise £125,000 to cover our legal fees on a 'no win, low fee' basis. 

    We were overwhelmed when we reached this target in under 48 hours. This first round of fundraising was completed and the page paused. You can view it here.

    Stage 2: Building the case, April 2016 

    We appointed the full legal team including David Lock QC, Jenni Richards QC and Ben Tankel.  They spent weeks reviewing the Secretary of State's decision making process, the relevant law and considering the legal grounds. 

    They prepared the 'letter before action', setting out the legal challenges & sending it to the lawyers for Mr Hunt on 4th April 2016.

    The letter highlights that the Secretary of State has no power to impose a contract on all Junior Doctors in England, failed to undertake any of the necessary consultation with doctors employed by Trusts and failed to issue the direction required to introduce any such change. 

    The case has gone a step further and reviewed the role of NHS Confederation and NHS Improvement; preparing letters to their lawyers to set out the legal consequences of them implementing the contracts.

    Stage 3: Issuing proceedings, April 2016

    Issuing proceedings: the statement of facts and grounds was published on 18th April 2016.

    This is the publicly available grounds for the legal action to be taken against the Secretary of State for Health.

    To prepare for issuing the claim our lawyers had to finalise the witness statements, prepare legal forms and invest a lot of time in formulating the right grounds. All documents and legal authorities in support had to be cited and included in bundles to serve on the parties to the case.

    The DOH requested a £30,000 security against adverse costs and so a 2nd round of fundraising was launched. Once again, we were overwhelmed by your support and reached our target in under 24 hours. You can view this page here

    Stage 4: Preparing for court, May 2016

    We received and reviewed the Secretary of State's Summary Grounds for defending the claim. Our lawyers will be filing a reply to this; refuting the arguments made and trying to agree a timetable for the case.

    We will also receive an update on the SoS’s requirements of personal costs we as five individuals will be liable for in the event of loss. We will need to file a reply and agree directions to take the case to trial with the Defendant and the BMA, including reviewing evidence filed by Interested Parties and further evidence to be filed by the Secretary of State.

    Our lawyers will then prepare skeleton arguments in preparation for the hearing which will probably last approximately 2 days.

    Stage 5: Court hearing, June - POSTPONED

    We anticipate the hearing will be joined up with the BMA case and may start on 8th June 2016, but the dates are still being finalised.

    We hope that some of you will be able to join us at the hearing so you can hear the arguments first hand.

    The court will reserve judgement after the hearing, probably a few weeks later, hopefully well before the end of the summer term on 31st July, before the contracts are due to be imposed.

    ___________________________________

    Update 23.05.2016

    Due to recent developments with ACAS, the BMA and DOH reaching a summary agreement on a new contract offer, we have been advised to stay our case.

    We will revisit this decision when more details are revealed and the results of the BMA referendum are available.

    Case Management Hearing, July 2016

    Thursday 21.7.2016 we will be in Court 1 at the Royal courts of Justice to have a short hearing.

    The lawyers on both sides will debate their cases and give the judge an update on recent events. We will ask for our Judicial Review to be grated a full hearing and we will negotiate for a fair costs order.

    _____________________________________

    UPDATE: successful day in court! Please see the 'first court hearing' section of this website for details.

    Judicial Review Hearing, September 2016

    We have been grated a full hearing on September 19th and 20th. The Judge understood the importance of this challenge, stating it is in the Public Interest and limiting our costs so that we could proceed.

  • Letter Before Action 04.04.16

    Our lawyers at Bindmans LLP sent the letter on behalf of Justice for Health Ltd to the Secretary of State for Health Mr Jeremy Hunt on Monday 4th April 2016. In this letter we outlined our legal grounds and arguments for the case and requested a response from the Department of Health by Monday 11th of April 2016 in order to issue proceedings.

    DOH response to LBA 11.04.16

    On Monday 11th of April, the Government's legal department responded and made their letter available online.

     

    Reaction from our lawyer Saimo Chahal QC of Bindmans LLP:

    “There is nothing unexpected in the Secretary of State’s response. His reply is a mixture of trying to silence the doctors in their legitimate claim by saying they have no standing in this case, when they are the very people affected by his decision, this is illogical.

    He says he will ask for costs security which demonstrates how unfair the contest is and the inequality of arms as, unlike my client, he has unlimited public funds at his disposal. He also says he does not agree with the limitation on his powers, again no surprise there.

    We have no option but to issue the claim in these circumstances and allow the court to decide. My client is litigating on matters, which are of very great public significance, it is only right that these affairs should be put before the court for a decision as to whose interpretation is right.

    I hope that the public will support this courageous decision – these doctors will not be bullied into submission.”

     

    Reaction from Justice for Health:

    "Rather than work with health care professionals the SoS and the Department of Health have continued to undermine staff in the media and in their policies, clearly driven far more vehemently by politics rather than patient care. We are very disappointed that the SoS has yet to engage with any junior doctors or address any of our allegations and concerns."

    Letter to DOH (2) 12.04.16

    On Tuesday 12th of April, Justice for Health sent their second letter to the DOH.

    This letter laid down the challenge to the Secretary of State to answer the question about the source of his power to make a binding decision.

    • "We were more than a little surprised to note that the Secretary of State has declined to provide any coherent response to our Ground 1, namely that the Secretary of State is acting unlawfully because the scheme of the National Health Service Act 2006 does not give the Secretary of State any power to make a binding decision as to the terms of the employment contracts to be offered by NHS bodies and others to junior doctors.......We therefore invite you to accept that, whatever the Secretary of State may have thought at the time, he now accepts that he had no power to take a decision about the terms under which junior doctors were to be employed and which was legally binding on a range of NHS employers”

    Email from DOH (1) 14.04.16

    From: Oliver Gilman

    Sent: 14 April 2016 11:29

    To: Saimo Chahal; Matthew Alderton

    Cc: Moore Kate (NHS IMPROVEMENT - T1520); Rachael Heenan

    Subject: RE: Junior doctors [BMS-LIVE.FID152321]

     

    Dear Ms Chahal,

     

    Thank you for your email. We are considering your further letter and will be responding as soon as we are able, I envisage by tomorrow lunchtime. I ask that you await our response before issuing any proceedings.

     

    Yours sincerely,

     

    Oliver Gilman

    Senior Lawyer

    Government Legal Department

    One Kemble Street, London, WC2B 4TS

    Email response to DOH (1) 15.04.16

    From: Saimo Chahal

    Sent: 15 April 2016 09:44

    To: Oliver Gilman; Matthew Alderton

    Cc:Moore Kate (NHS IMPROVEMENT - T1520); Rachael Heenan; Viv Du-Feu; Meade, Stephe

    Subject: Justice for Health Ltd v SOS [BMS-LIVE.FID152321]

    Importance: High

     

    Dear Mr Gilman,

     

    Thank you for your email yesterday.

     

    1. Pursuant to his duty of candour, the Secretary of State had a clear duty to provide a comprehensive response to our Letter before Action. My letter of 2 days ago explained how the Secretary of State had acted in breach of that duty. It is totally unacceptable for the Secretary of State to respond by asking us to refrain from issuing proceedings for an unspecified purpose and response, which may make no difference to the substance of the argument. Nonetheless we are prepared to wait for his reply until Monday.

     

    2. Our clients have already incurred substantial costs of preparation of proceedings based upon the response to our original Letter before Action. Those plans are now well advanced and we are ready to issue on Monday. If a response from the Secretary of State causes any change to those plans or leads to a position where the Secretary of State is changing his position, we will require the Secretary of State to reach a clear agreement with us to settle all outstanding matters in this imminent litigation. Also please be clear that in default of agreement on costs we will issue Part 8 Costs proceedings seeking such an order if necessary.

     

    3. In particular, if the Secretary of State is now prepared to concede that his decisions of 11 February 2016 and his subsequent decisions including the decision of 31st March did not have the legal effect of requiring NHS Trusts and other employers of junior doctors to adopt the employment terms he said he was imposing, we will require the Secretary of State to make a clear public statement to that effect as well as meeting all of our client’s costs.

     

    4. If the Secretary of State was pretending to have a decision making power but in fact only had the power to make recommendations to NHS bodies and others employing junior doctors, the Secretary of State will have acted unlawfully by purporting to exercise a power he never had and by confusing a decision making power with a power to make recommendations.

     

    5. Could you please make the Secretary of State’s position clear as soon as possible since the longer he delays clinging to the fiction that he had a legal power to make this decision, the greater costs our clients will incur (which the Secretary of State will have to pay) and the longer the medical community will be unclear about what, if any, decision the Secretary of State has made. As you are aware many of the organisations including NHS Consortium and NHS Improvement are maintaining the position that they were right to follow the decision made by the Secretary of State and they need to know that their decision to follow the Secretary of State’s lead was wholly misconceived.

     

    6. Further, if the Secretary of State is proposing to abandon the position that he had decision-making powers, can you please inform us in detail about how the Secretary of State is proposing to announce his change of position?

     

    7. I again ask that you provide the disclosure we have requested in our earlier letter without delay so that we can review the position by reference to the evidence rather than general statements made by your client.

     

    We look forward to hearing from you.

     

    Yours sincerely

     

    Saimo Chahal QC (hon)

    Partner (Joint Head of Department)

    Bindmans LLP

    Public Law

    Email from DOH (2) 15.04.16

    From: Oliver Gilman

    Sent: 15 April 2016 14:35

    To: Saimo Chahal; Matthew Alderton

    Cc:Moore Kate (NHS IMPROVEMENT - T1520); Rachael Heenan; Viv Du-Feu; Meade, Stephen

    Subject: RE: Justice for Health Ltd v SOS [BMS-LIVE.FID152321]

     

    Dear Ms Chahal,

     

    You will have now received our letter of today’s date, which repeats the Secretary of State’s position set out in our letter dated 11 April 2016 that these proceedings are without merit. It is a matter for your clients to consider whether they wish to proceed with, or abandon their claim.

     

    Kind regards

     

    Oliver

     

    Oliver Gilman

    Senior Lawyer

    Government Legal Department

    One Kemble Street, London, WC2B 4TS

    Email response to DOH (2) 15.04.16

    Mr Gilman

     

    Thank you for your letter received a few minutes prior to this email. We have considered briefly and consider that the Secretary of State’s position has shifted somewhat from that indicated in your previous reply. It seems disingenuous to say he was not making a decision – when the record shows and the public understood him to be making a decision. It will be for the court to analyse and decide on this issue- since we do not agree with your client’s re- writing of history.

     

    In the light of this shift in position and the failure to comply with the duty of candour in JR proceedings we are left with no option but to issue proceedings.

     

    With regard to the issue of security for costs, please ask you client to agree 21 days for payment of these security monies as my client will need to raise this money and plainly cannot do so at a moments notice over this weekend. We can incorporate this agreement into an order which I will prepare and let you have on Monday and then we can focus on the important substantive issues.

     

    Please confirm that this can be agreed.

     

    I note that Mr Alderton is taking over from Monday

     

    Best wishes

     

    Saimo Chahal QC (hon)

    Partner (Joint Head of Department)

    Bindmans LLP

    Public Law

    Letter from DOH (2) 15.04.16

    The DOH responded on Friday 15th of April stating that Mr Hunt was 'introducing' the new contract, not 'imposing' it:

      Response from our lawyer Saimo Chahal QC of Bindmans LLP:

      "Mr Hunt's position is shifting all the time. This has forced the Junior Doctors company to issue proceedings to try and establish the truth behind what he has said and done. Mr Hunt's actions and words have resulted in untold damage to relations between him and junior doctors and his stance has undermined the morale of junior doctors which is at all time low. His words and actions have created uncertainty for NHS employers and other NHS bodies who have been following Mr Hunt's lead with regard to imposing the contract on junior doctors. This mess will now have to be examined by the court to establish what Mr Hunt was entitled to do. It’s a great shame that this could not be resolved through legal dialogue short of issuing a claim for judicial review"

       

      The Guardian published an article on April 17th exposing the issue: "Health secretary rows back from claim he has right to impose contract; use of threat may mean he has misled parliament"

      Issuing Proceedings for Judicial Review 18.04.16

      On April 18th, following unsuccessful dialogue with the DOH, we were left no choice but to issue JR proceedings. 

      Here you can read the Claimant's Statement of Facts and Grounds, setting out the legal arguments. 

       

      We will now await the DOH's submissions to the Court before a hearing date is confirmed.

      Final clarification letter to SOS, 11.05.2016

      Today we sent a letter to the SOS asking him to confirm his position and if necessary, to admit that has no power to impose the contract.
      We have sent him a series of questions to get further and better understanding of his position. This is our last attempt to seek a clear statement from Mr Hunt, before we go to court. If he refuses we can ask the court to determine the issue, after we've attempted everything possible to reach a settlement.

       

      DOH response to final clarification letter, 17.05.16

      Yesterday, May 17th, the DOH lawyers wrote to us saying, again, they don't believe our case has merit as the SOS for Health never intended to impose a contract.

      He has rejected our offer to settle the case and has failed to admit that he does not have the power to impose a contract.

      Our High Court hearing is due on June 8th, so a Judge could decide.

      Letter in response to DOH, 24.05.16

      We have written once again to the SOS lawyers asking why they've again failed to address any of the issues in our previous letters.

       

      We say they still haven't given a plausible explanation as to what the SOS's position and powers are. 

       

      Once again we make it clear that we are open to mediation and a settlement, despite the SOS rejecting this out of hand.

      Letter to Mr Hunt about the referendum & imposition, 26.05.16 

      Today we have written to the DOH again, this time asking for clarification of their intentions should the referendum of junior doctors via the BMA vote to reject the current contract offer.

       

      It is critically important for all to understand whether the government still intends to impose this (or any other) contract on junior doctors if an agreed settlement with the BMA isn't reached in July.

       

      Is the threat of imposition still looming? This needs to be clarified urgently, and before the referendum. 

      Statement of Facts & Grounds, July 2016

      You can download the full statement of Facts & Grounds here.

      This was submitted to the courts before our case management hearing on Thursday 21.7.2016 and explains the legal angles and challenges we may be prepared to make in the full Judicial Review hearing.

    • The Basics

      The NHS is on the brink of collapse and under further attack with this imposition.

      We are already dangerously short of doctors and nurses in the NHS.

      We as members of the public, patients and staff refuse to compromise safety for politics.

      WHY THIS MATTERS TO YOU

      This is about the future of your health service and your country

      The imminent imposition of dangerous contracts affects everybody who works for or uses the NHS. Its immediate and lasting impact reaches further than doctors; it will have a knock on effect on all NHS staff, patients and their families.
      The NHS is already understaffed. The government want a new contract to fulfil their manifesto pledge of a "7-Day" NHS, but they have failed to acknowledge the need for the necessary extra staffing and resources required to make their changes safe. They have not planned or prepared for the devastating consequences. As a result there will be serious gaps in the care provided to patients. Staff will find themselves under even more pressure, their mental and physical health will be impacted. This imposed contract will endanger all lives in the NHS.

      WHAT WE ARE DOING

      Judicial review is a legal process which allows the high court to decide whether decisions made by the Secretary of State for Health and NHS Employers are legal, reasonable and have the consequences that are intended.

      This is an independent legal action set up by Justice for Health, backed by the public and patient safety advocates.

      • We argue that the ‘decision to impose’ by the SoS was not lawful.

      The structure of the NHS in England means the SoS cannot tell foundation trust hospitals, local councils or GP surgeries who to employ or on what terms, including junior doctors.

      • We argue that he failed to undertake proper consultation procedures prior to announcing his imposition.

      While he may be able to instruct other NHS trusts, he can only do so after undertaking a public consultation about the effect of his plans, which he has not done. The SoS claimed that he had the backing of 18 hospital trust chief executives, this claim has now unravelled as 12 of them have made clear that they disagree with imposition.

      •  We argue that the decision made to impose this unsafe contract was irrational and hasty.

      The SoS made this decision before the terms and conditions of the contract were finalised, and before the Equality Impact Assessment was completed.

       

      THIS IS SEPARATE AND INDEPENDENT OF THE BMA LEGAL CHALLENGE: The BMA, which represents doctors, is contesting the contract based on equality grounds. We are speaking out for the public and our patients who will be affected by these enforced contract changes, which are unsafe and must not go ahead in their current form. The video at the bottom explains how the contract is unsafe.

      HOW YOUR CONTRIBUTION HELPS

      We are fundraising for legal costs and fees through Crowd Justice. We may also fundraise for additional campaign costs through another platform at a later stage. 

      We originally predicted we would need to raise £135,000 for legal costs and fees (including transaction fees from the website). We knew we could not funds this as a group of individuals and that crowd funding would be necessary.

      The level of support we've received is overwhelming and unprecedented. Our first round of fundraising achieved the required £135,000 very quickly, and when we issued proceedings in the court we had to launch our second round of fundraising.

      The Department of Health demanded £30,000 as a security deposit for costs protection, and we once again have been blown away by the support we've received; raising the full amount in under one day. Any excess funds raised via CrowdJustice will be deployed towards ongoing legal costs and we will be absolutely clear about what those are when we have further information from our lawyers.

       

      This campaign has outgrown us! As doctors working full time jobs in the NHS, we need additional help. We are lucky to be working with incredible professionals who have given much of their advice and guidance for free, but there are costs involved in producing materials and running a professional campaign, so we may need to fundraise if we are to continue our efforts in this way.

    • Who We Are

      We are NHS doctors, speaking out on behalf of the public, brought together by our passion for a safer and better NHS. We prioritise patients’ safety above all else and believe in an NHS that is properly staffed and resourced, and maintains safety at the core of every decision taken.

      Dr Ben White

      Medical Registrar, 33 years old, doctor for 7 years

      @ProtocolDriven

      I’ll be responsible for looking after you and your family if you arrive via A&E and are very unwell. I have a track record of campaigning for patients, the NHS and its staff. I’m so pleased to be a part of this legal action which gives us the opportunity to invest in a robust process to test the government's plans which I think stand to put patient and staff safety in jeopardy.

      Dr Nadia Masood

      Anaesthetics Registrar, 35 years old, doctor for 11 years

      @n4di4_m

      I look after some of the sickest patients in the hospital, working hard to get them well again so they can go home to their families. I know how important that is, my dad successfully recovered from urgent open-heart surgery 10 years ago, and my mum has undergone life-saving cancer treatment more recently. Thanks to the NHS they are still with me today.

      Dr Francesca Silman

      GP Registrar, 33 years old, doctor for 6 years

      @DrSilman

      I am passionate about providing high quality care to my patients. The NHS has been vital in looking after my family - from cancer, dementia, childbirth and autoimmune disease, numerous members of my family have been well looked after through the world class service the NHS provides. We have to ensure that the NHS works for patients, and not for political will.

      Dr Marie-Estella McVeigh

      Obstetrics & Gynaecology, 32 years old, doctor for 6 years

      @DrMariMcV

      I grew up in country without an NHS, seeing the effects of health inequality. From the age of 12 I wanted to be a doctor and work in the NHS, where every patient gets the care they need. I believe fundamentally in the principle of equality. I want every patient I treat to be safe in our NHS and every colleague to be supported. The NHS is suffering under the greatest funding squeeze in its history right now. I fear this contract is dangerous; by spreading staff more thinly it deeply undermines and destabilises the foundations of our NHS.

      Dr Amar Mashru

      A+E Registrar, 30 years old, doctor for 7 years

      @dr_amar_mashru

      I face the frontline consequences of understaffing and underfunding in the NHS every single day as our A&E department wait times get longer and our patients don’t get the care that they need when they need it. The government will never meet these consequences face to face as they increasingly choose to prioritise cost over quality. It is time to call them to account for the choices they make about how we can be looked after when we are brought through the doors of an Emergency Department. When you are at your sickest and most vulnerable my colleagues and I just want to be able to make you feel better.

      Saimo Chahal QC (Hom)

      Bindmans LLP

      @BindmansLLP

      Jenni Richards QC

      39 Essex Chambers

      David Lock QC

      Landmark Chambers

      Ben Tankel

      39 Essex Chambers

    • Emergency Fundraising Appeal

      Monday 25.07.2016

      You've done it! We've got the £150,000 we needed in just 4 days!


      Thank you so much for your donations, you have broken our previous records and smashed the August 16th deadline.

      We are truly overwhelmed by your support.

       

      We are now in a position where we can to proceed with preparing for our Judicial Review hearing, which will be in September (date to be confirmed by the courts).

       

      As we explained last week, we must now choose between proceeding with our original grounds only or including an extended argument. Thanks to your support, there will be no financial barrier to making this decision and we can focus purely on the best legal advice we can get. Once we have made our decision we will publish this on our website.

       

      You can read the full ‘Statement of Facts & Grounds’ here in the 'Case Details' section.

       

      Thank you once again for your support, without which we could not have gotten this far. We will continue to keep you updated every step of the way.

       

      Many thanks,
      Marie, Ben, Amar, Nadia and Fran #JustHealth Team

       

      ________________________________________________________________________________________________________

      Wednesday 20.07.2016

      The secretary of state is threatening us with £150,000 cost protection order.

       

      We were devastated to hear just 24 hours before our case management hearing, that the Secretary of State (SoS) has now demanded Justice For Health raise a total of £150,000 as security for costs in order to proceed with our case.

      This is a staggering amount of money and we feel it is an underhand tactic to silence junior doctors and prevent us from raising our legitimate concerns in holding Mr Hunt to account.

      • New demands by the SoS: Although we will strongly contest this figure in court tomorrow, we must be prepared for an unprecedented demand from Mr Hunt. He had previously demanded £30,000, and is now threatening a figure 5 times that amount!
      • Further legal costs: We were forced to pause our case whilst the latest contract offer was put to a referendum by the BMA in June. This has resulted in increased legal costs as the case has become longer, more complex and we have additional grounds requiring additional legal expertise.

      We must therefore continue to fundraise for our legal costs, in addition to the SoS's security demands.

      We are confident that our action will show that the SoS does not have power to impose this unplanned and dangerous contract that will affect patient wellbeing and safety.

       

      Urgent help needed:

      We now urgently need to raise £170,000 in total to allow us to proceed with our case, making this is an all-or-nothing target. Without your support we cannot continue to seek justice for the NHS.

    • Thank you for supporting us

      We are fundraising through Crowd Justice & we have been overwhelmed by the level of public support.

       

      • Round One: Over 4000 donors helped us raise >£135,000 get to the stage where we could issue proceedings for a hearing in the High Court.
      • Round Two: Mr Hunt's lawyers demanded a deposit of £30,000 for security against adverse costs. Over 1700 donors helped us raise >£50,000 for the deposit.
      • Round Three: Mr Hunt's lawyers demanded costs protection of £150,000 the day before the case management hearing. The judge thankfully reduced this to £130,000 which we raised with an emergency appeal with the support of over 5000 donors.

       

      Thank you so much for your generosity & support.

      Any excess funds will be redirected to other cases via CrowdJustice, in accordance with their terms & conditions. Any donations of over £1000 will be refunded.

      We are working with CrowdJustice to develop a new mechanism to enable us to decide which pro-NHS cases to support in future.

    • Manifesto

      We are an independent group of health care workers with shared values:

       

      We believe in the NHS; universal comprehensive healthcare free at the point of delivery, publicly accountable, in public ownership, transparent and enshrined in legislation.

       

      We believe that the NHS is the most efficient way to provide high quality, affordable healthcare that can lead the world in treatment innovation and gold standard care.

       

      We believe it is vital that the NHS is appropriately costed and funded to ensure stability of the service.

       

      We believe that staff are vital to quality of care and that staffing should be planned in advance realistically and appropriately.

       

      We believe accountability is critical - there must be clear transparency about how money and private data is used. We want mandatory declaration of competing interests for ministers and officials holding public healthcare roles, and any private deals should be publicly available for scrutiny.

       

      We believe public health must be part of the NHS and must be appropriately funded .

       

      We believe whistleblowers must be protected to speak freely about unsafe practice.

       

      Our short terms aims are:

      • Stop imposition of the Junior Doctor contract
      • We fully support the BMA Junior Doctor Committee mandate to negotiate a safe and fair contract
      • We want to encourage the public to engage in the funding and staffing crisis debate
      • Protect bursaries for all healthcare students

    • Press

      We're thankful for all the support and coverage in the media, as things develop and escalate we will endeavour to keep this list updated.

      March 2016

      Fundraising launch

      April 2016

      Legal proceedings begin