The Curious Case of Dr Chris Day & the BMA

Chris Day, and – to our profession’s shame – his family, are still fighting for Whistleblowing Protection for all of us. He is taking Health Education England (HEE) to an Employment Tribunal.

He needs your support, now more than ever.
Perhaps what you haven’t considered though, is that you need his.

You need his support if you want protection to make disclosures about patient safety – a duty, as doctors, we all share. We are all just one Datix away from being Chris Day. For we are not protected from HEE.

But we can be.

Indeed, the BMA has set the course that will make it so.

However, our union’s weak keel broke on the first wave. The BMA abandoned him, withdrawing the legal team who had devised his strategy. Chris, failed by our union and its lawyers, sunk.

He lost his Employment Appeals Tribunal hearing. HEE argued successfully that an employee cannot have two employers.

Despite that, in a characteristically undeterred fashion, Chris Day has continued, and he appealed EAT judgememt.

The BMA, however – to my eternal shame as a representative – have not only rebuffed his pleas for help, but have undermined him, privately and publicly.

Some of your junior doctor representatives inside the BMA – appalled – demanded an explanation as to why the BMA was failing in its support. The answer, as I recall in a JDC meeting was that his case lacked merit, and was now politically irrelevant; at the height of the junior doctor’s contract dispute the BMA betrayed Chris, by drawing up a hasty agreement to provide a mechanism by which doctors could take HEE to court over detriment secondary to whistleblowing.

Three embarrassing problems for the BMA with all of that.

First, as to his case “lacking merit” his appeal was accepted; the verdict of the Judge making the decision was that his case was “clearly arguable”.

Secondly, as to the deal with HEE to offer “protection” to us from them, a leading QC, James Laddie, wholly discredited the proposed contractual protection as “illusory”.

The final nail in the coffin of the BMA’s position was the Appeal itself. So pivotal was his case to general workers that Public Concern at Work, a charitable legal organisation that support workers against unscrupulous employers, joined his case to defeat HEE. Together, his legal team and theirs, succeeded. HEE’s arguments were thrown out of the Court of Appeal.

This was a monumental victory for Chris Day, for all junior doctors, and indeed all agency workers. The outcome was lauded by charities, news and magazine publications, legal reviews, and – of course – by trade unions, including HCSA.

It was also a humiliating defeat for Jeremy Hunt, the government, HEE, NHS Employers…and bafflingly, the BMA – the one voice absent that you’d expect from that chorus of congratulations.

The silence from our union was deafening. Many called upon it for comment, even to re-examine the merits of his case. The only answer was a false one. “We cannot comment on an ongoing legal case”. Of course the specific case in question was closed. Everyone in the land was free to comment on it – and they were, except the BMA.

The fault lines in the BMA leadership are clear. It is the establishment vs. the trade unionists. And the establishment, to all our ruin, have the advantage. This is demonstrated by the bizarre actions on Chris’ case – it is exactly the sort of massive historic national fight for the rights of doctors they should have led on. Instead they undermined it! This could have been their victory, as well as Chris’ and ours.

If you want more evidence of this toxic battle for the soul of the BMA, you only need examine the recent furore about a vote of support for Chris Day in BMA Council. An original motion called for legal support for him, and this was watered down over a fractious hour to a vague motion of mere support. Even that was too much for several of our representatives on Council to stomach and vote for.

Read the latest on the Council vote furore, and the battle for Chris inside the BMA here: http://www.54000doctors.org/blogs/unanimous-dr-c-day.html

Thus, Chris Day remains on his own. He still has two waves to sail over. First, the Employment Tribunal will determine whether HEE have an employment relationship with junior doctors (anyone here think they don’t?). If successful, he can finally test his original case at the Employment Tribunal against HEE. Significantly, so will any other junior doctor from that point forward.

There are many good people in the BMA, and over the next year we will be fighting to overturn the establishment’s position, and get Chris Day some actual legal support. Even if successful, that won’t be forthcoming for some time.

In mysterious circumstances, he has been kicked off Facebook, which is one of his main routes for fundraising.

I know many of you have donated before, even multiple times! But this is a serious fight to get our patients the protection they deserve, by giving their doctors – us – the protection to raise the alarm when they are not safe. I know Chris and his family will be grateful of any donation, no matter how small. Even if you are unable to donate, please share this call widely. Let’s help Chris finish the job. Let’s make 54000 doctors whistle-blowers!

Read the latest on the Council vote furore here: http://www.54000doctors.org/blogs/unanimous-dr-c-day.html

Donate to the cause here: https://www.crowdjustice.com/case/junior-doctors-round-3

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6 thoughts on “The Curious Case of Dr Chris Day & the BMA”

  1. The BMA regularly and rightly publish, tweet, & report their insight on NHS issues & resulting challenges to staff. They raise awareness of the potentially adverse effects on public health provision & safety. Their warning words seem wise and, I believe, should be heeded by government. I have had a great deal of respect for the BMA. As such, I find it incomprehensible that when they, as a union for doctors, are called upon to fight for one of the most important of workers rights – legal protection for those who expose wrong doing or unsafe practice – the BMA choose to act like silent observers! I may have little sway as a member of public looking on, but I intend writing a letter to the BMA expressing my incredulity and will ask them for an explanation. Best wishes to all supporting Chris’ fight. Pauline

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  2. The BMA is a self serving waste of space and money. At every recent point in junior doctor history they have sided with the government to the detriment of junior doctors over contentious issues. When I qualified we needed the Remedy union to be created to fight MTAS before the BMA came on board at the last minute to take credit. More recently a disastrous campaign to oppose unilateral contract changes was baffling scuttled by a series of bizarre decisions by the JDC at the very point that it looked like the DoH would back down.

    Alongside these events has been this long running case. The BMA behaviour, as outlined above has been disgraceful but so has been the comments from doctors on the JDC defending these actions or refusing to speak out against them. These doctors are still in place, now our supposed leaders. They’re not unique or in sensitive positions that prevent them speaking out; they are SHOs or SpRs who are so desperate to cling to the little power they have that they won’t do the obvious right thing.

    So now it’s reduced to a blog to point out the obvious terminal problems with the BMA, without offering any solution. Forgive me if this doesn’t inspire me to start giving money again every year to a bunch of people I neither respect or trust. Is there any realistic prospect of the BMA every becoming fit for purpose?

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    1. Hey. I agree with your analysis. I’ve only been involved with the BMA for one year. What now? Well, I’m running for JDC next week hoping to represent WM. I’m hoping more like-minded people will run as well. I think we have to try for a sustained campaign of reform from the inside.

      The BMAs systemic failures have to be more widely understood and exposed first, so I hope this blog will help do that.

      You seem to have good insight. Would you not be effective in the BMA?

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  3. I’m in the legal profession and have no experience of the BMA but I am appalled by the BMA’s position on Chris’s case. I first became aware of the issues via Private Eye and have received Chris’s email updates. With his strong legal team and sufficient financial support I wish him all the best. The BMA, however, has failed him completely and is not fit to represent its members at all on contentious matters such as this.

    Liked by 1 person

  4. Why is it considered a “personal attack” to try to find out how a properly constituted organisation makes its decisions? You shouldn’t sit on the Board/governing body of any regulated organisation unless you are prepared to stand up and be counted. The more the BMA prevaricate, the more time and money will be wasted and the longer it will be before patients have the protection they deserve from conscientious junior doctors flagging up poor care. I’m only a patient, but I value very much the ethical values of the NHS which we must all fight to maintain, whether clinical or financial.

    Like

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