Doctors on Strike – Fitness to Practise Considerations

The right to take industrial action is protected by UK employment law but it might benefit doctors to understand the GMC position and guidance.

The GMC’s Position

The General Medical Council’s (GMC) position on “industrial action” is set out below:

“Doctors are legally entitled to take part in lawful industrial action, including strike action. During strike action, doctors’ employers will have a vital role in planning and preparing for how patients will be cared for. They play an important part in maintaining the continuity of patient care to the highest possible standard.”

The GMC said it “expects any doctor” choosing to take part in strike action to continue to follow the principles of its guidance, Good medical practice.

Good Medical Practice & GMC Guidance

The following sections of Good medical practice are particularly relevant:

Para 14: You must recognise and work within the limits of your competence.

Para 35: You must work collaboratively with colleagues, respecting their skills and contributions.

Para 44: You must contribute to the safe transfer of patients between healthcare providers and between health and social care providers. This means you must:

1. share all relevant information with colleagues involved in your patients’ care within and outside the team, including when you hand over care as you go off duty, and when you delegate care or refer patients to other health or social care providers.
2. check, where practical, that a named clinician or team has taken over responsibility when your role in providing a patient’s care has ended. This may be particularly important for patients with impaired capacity or who are vulnerable for other reasons.

In addition to the GMP specifically, supplementary GMC guidance may also apply.  For example, the GMC’s “Raising and acting on concerns about patient safety” guidance places a duty on doctors to raise and escalate concerns where patient safety is being put at risk.  Ethical and supplementary guidance can be found on the GMC’s website.

BMA Guidance

The British Medical Association (BMA) has produced guidance for doctors taking part in the strike action.  An overview of the guidance:

• Any shift already started before the beginning of the strike should be completed, even if it crosses over into the period of the strike. This is particularly important in light of the GMC’s Good Medical Practice, making the doctor responsible for ensuring an effective handover.
• Doctors should not return mid-shift to any shift that started within the strike period, even if the employer offers to pay you for time worked.

“Major Casualty Event”

Doctors may be faced with challenging situations during strike action. Chief amongst these is making a judgement whether and/or when to continue with industrial action or return to work.  The GMC states that “…doctors will need to use their professional judgement to assess risk and deliver the best possible care for people.”

Doctors might find the BMA’s guidance of assistance but, ultimately, the decision will reside with the individual doctor.  The BMA’s guidance to doctors states that, as far as it is concerned, the only justification for returning to work during industrial action is in the event of a “major casualty event”.  It points out that this does not include the “pressure which hospitals find themselves under on a regular, sometimes daily basis” or necessarily in circumstances of a “trust calling a critical incident”.

According to the BMA:

“In the event of a “major casualty event” the trust should urgently contact NHS England. If NHS England agree that the situation may justify asking junior doctors to return to work, such request will be submitted to the BMA for urgent consideration.”

Consideration for doctors

To summarise:

1. Good medical practice (GMP) continues to apply – Whilst the GMP does not prevent a doctor from taking part in strike action, doctors must understand that the duties and responsibilities under the GMP continue to apply.
2. Working within limits and competency – Industrial action will also impact on doctors who do not participate.  The GMP is clear that doctors must recognise and work within the limits of their competence. Doctors might find themselves in situations that are unfamiliar or asked to undertake duties beyond the limits of their competence.  Under these circumstances, doctors must seek advice from senior colleagues or managers.
3. Raising concerns about patient safety – Linked to the above, doctors should also report and escalate concerns where they feel patient safety is being put at risk, in light of the GMC’s “Raising and acting on concerns about patient safety” guidance.
4. Handover, communication and continuation of care – The BMA’s guidance states that where a shift has started before the beginning of the strike, doctors should ensure the shift is completed even if it crosses over into the period of the strike. This is because doctors are required to “contribute to the safe transfer of patients between healthcare providers and between health and social care providers”.
5. Complaints and justification – Whilst the right to take industrial action is protected by UK employment law, doctors can still be held to account for their decisions. Doctors, who face fitness to practise complaints arising from their participation in industrial action, must be in a position to justify their decisions.

Kings View Barristers

With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence.  We fully understand that fitness to practise defence is not merely about processes and procedures.  We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We are proud to be rated ‘excellent’ by our clients.  Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.