BMA rebuttal of arguments put forward by the Department of Health in England regarding the removal of free accommodation for first-year Foundation House Officers
June 2008
Background
The British Medical Association (BMA) has been extremely concerned about the Government’s removal of free accommodation for first year foundation house officers (FHO1s). In July 2007, the requirement for pre-registration doctors to be resident at the hospital was removed from the Medical Act 1983. This means that there is no longer a statutory requirement for pre-registration doctors (FHO1s) to be resident, which in turn means that hospital accommodation no longer needs to be provided without charge to FHO1s UK-wide. Some employers may continue to provide the accommodation without charge for a short period but from August 2008, it is unlikely that many will continue to do so.
While free accommodation was generally of a poor standard, it was one of the benefits in kind of working as a junior doctor and, given the level of debt that many doctors now graduate with, has become especially important in recent years. The Joint Negotiating Committee on junior doctors terms and conditions of service (JNC(J)), which includes representation from NHS Employers and government officials from each of the four countries of the UK, is responsible for negotiating on terms and conditions of service at a UK level. However, in light of the employers-side refusal to discuss the matter further, negotiations on this issue are being sought in each of the four countries.
The BMA believes that this issue should be resolved at a UK level and believes that the JNC(J) should be encouraged to engage with us. However, the Department of Health in England believes that it is not necessary to negotiate on this issue for a number of reasons. The BMA finds these reasons unacceptable and addresses the Department of Health’s arguments in this briefing paper.
The Doctors and Dentists Review Body (DDRB) argument
The Department of Health has argued that the decision not to increase FHO1 pay is entirely the responsibility of the Doctors and Dentists Review Body (DDRB). Whilst it is true that the DDRB recommends pay uplifts for all grades of doctors, it is possible for the Government to determine pay levels in discussions with the BMA. This is the case with contract negotiations, of course.
What the Government neglects to mention is that the DDRB relies heavily on evidence from the Departments of Health and NHS Employers in making their pay recommendations. The Department of Health said the following about FHO1 accommodation in their 2007 evidence to the DDRB, which clearly demonstrates that they believed no counter-measure was required in respect of basic pay, despite acknowledging its value to junior doctors:
“Changes to the Medical Act made in August 2007 remove the requirement for pre-registration doctors to be employed in a ‘resident medical capacity’. This is likely to result in the withdrawal of free accommodation for First Year Foundation (F1) trainees from August 2008. We recognise that doctors may argue that they are losing a significant benefit which should be replaced by a substantial increase in salary. We believe that the removal of the residency requirement for F1 trainees is an improvement in their conditions of service and reflects the improvements in their working hours. As salaries are already competitive even without free accommodation (which is reportedly not used by a third of trainees The BMA believes that this is unsubstantiated, and a 2005 BMA survey in fact showed that around 80% of FHO1s used the accommodation.), and taking into account the virtual guarantee of a post on graduation, there is no case for increasing salaries to reflect this change.”
The DDRB noted in its report of April 2008 “that the removal of free accommodation may in the short term increase costs for some junior doctors, the potential for future earnings has been greatly enhanced by recent contractual changes”. The DDRB assumes that because future pay is likely to be reasonable, inadequate current pay can be excused. The BMA does not subscribe to this argument, believing it to be perverse. Compensation for low junior doctor earnings was not a factor in determining the overall remuneration available in the consultant contract negotiations for example. Additionally, future pay is by no means guaranteed especially taking into account the ever-changing workforce.
The European Working Time Directive (EWTD) argument
The Department of Health continues to argue that pre-registration doctors are no longer resident because of the European Working Time Directive. It argues that FHO1 doctors cannot work on-call rotas and so do not need to be resident. The BMA wrote to Department of Health Minister, Ann Keen MP, stating that “resident on-call patterns are still possible under the EWTD provided an adequate amount of compensatory rest is provided, so it is not correct to state that the EWTD has meant that FHO1s cannot be included in on-call rotas or that the removal of free accommodation is a ‘side effect’ of the drive to reduce junior doctors’ working hours.”
Furthermore, there is a misunderstanding about the type of accommodation used for on-call work and the accommodation provided free of charge to pre-registration doctors. In many cases FHO1s could not be on-call from their residential accommodation because it was too far from the wards (and in some cases miles from site) to enable a swift enough return in emergencies, with the result that on-call doctors would need to work from special on-call rooms that were nearer to patients. The free hospital accommodation in question is not the same as on-call accommodation, which is provided to all grades of doctors and NHS staff who need to work on-call overnight.
Blaming the EWTD for the amendments to the Medical Act is a convenient argument but it is completely inaccurate to use it in this context.
The consultation argument
The Department of Health takes the view that statutory consultation took place on this issue, presumably referring to ‘Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006: A paper for consultation’ of 31 October 2005. Nowhere in this consultation was the issue of pre-registration doctors’ residency mentioned. Furthermore, it is extremely concerning to note that the subsequent consideration of the changes to the order by both Houses of Parliament in July 2006 did not include any discussion of pre-registration doctors’ residency in the debates. An issue of such importance for junior doctors, and with financial implications, should have warranted an explicit statement and discussion throughout all stages of consultation and scrutiny. We do not accept that the consultation process for this particular issue was adequate.
The ‘improvement in terms and conditions of service’ argument
The Department of Health has argued variously that the change is not an amendment to existing entitlements and that it is an improvement in FHO1 terms not to be required to be resident. We dispute both of these claims and medical students would certainly not agree that unexpectedly having to find an additional £5,000 during their first year as a doctor was an improvement to their terms and conditions of service.
The central issue is that either the removal of the right to free accommodation is a variation in the terms and conditions of service or it is not. If it were an improvement in terms and conditions, it should have been agreed with the BMA through the usual channels.
The continuing availability of accommodation argument
The two types of accommodation previously available are being conflated in this argument. Free FHO1 accommodation is a different category of accommodation to on-call accommodation, which is still widely available where NHS staff work on-call patterns.
Incidentally using this argument contradicts the ‘EWTD argument’ that on-calls are no longer workable. If on-calls cannot be worked it is an irrelevance that accommodation for on-call working is still available.
Omissions
The Department of Health has neglected to comment on why this change in entitlements was not negotiated with the BMA. Discussions were begun in 2004 but were never concluded and the BMA has still not been provided with an explanation about why the Government went ahead unilaterally with the changes.