Dr Ben Spencer is a Psychiatry Registrar currently doing research, and a Conservative activist.

The planned junior doctors’ strikes were recently forestalled at the last moment: talks through ACAS are now taking place.  But there is no certainty that another six weeks of negotiations will resolve this dispute in the absence of a serious shift in the position of either the Government or the BMA.  In January, we may yet again be facing the threat of strikes, with more disruption and services cancelled in anticipation.  If these happen, patients will suffer, the Government will suffer with an NHS seen to be in turmoil, and doctors will suffer through worsening morale and damage to the profession.

My medical training taught me that prevention is better than cure. So what caused the impasse between the Government and the doctors – and how can it be prevented from happening again?  At the core of the problem is the very existence of a national Junior Doctors’ Contract that applies to all doctors in training (53,000 in England), ranging from the most junior to the pre-consultant Registrar level.  The contract has been nothing but trouble since its inception during the 1940s.  It caused the last strike in 1975 – and should be consigned to history.

There has been a large push for localism in our National Health Service: that’s to say, local decisions made by the public, hand in hand with doctors, about the nature of services provided in local areas.  This is a good thing for all.  It leads to bespoke services best suited to the population served.  If you have used some of these services, you may have met a range of different doctors with different specialities.  Each works different hours and has different ways of working, depending on the needs of the patients and the services provided.

Doctors choose specialities for many reasons, but A&E doctors know that they are signing up for shift work when they choose their speciality.  Dermatologists know that it is a ‘nine to five’ speciality – there are few reasons to get a dermatologist out of bed at night.  But while dermatology is oversubscribed, A&E has a recruitment crisis.  Dermatologists are incentivised by the future scope for private practice and an attractive work-life balance.   How do we incentivise doctors to work in A&E?

Given our push for localism and its benefits one would expect that each Trust should be free to recruit the doctors in training they need.  Let market forces flourish.   Trusts would produce individually tailored contracts according to the service they wished to provide, each having different ways of working and remuneration  But this is not the case.  Since the 1940s, there have been national contracts set by the Department of Health and more recently Governmental ‘arms length bodies’.  These include the Junior Doctors’ Contract for doctors in training, and separate contracts for consultants and doctors outside of training.

The Junior Doctors’ Contract sets a template of ways of working and remuneration for all doctors in training in England.  Take-home pay is calculated by applying this template to the individual work patterns set for each doctor by the Trust in question. There is no room to pay doctors more when encouragement is needed to fill posts, or pay them less when they are oversubscribed. All doctors work hard, but I think some areas need special recognition – such as our doctors busting their guts in A&E.

Let’s compare doctors with lawyers: we wouldn’t expect the criminal barrister, the divorce lawyer and the local high street firm to all be on the same national contract.  Nor should we expect this with our NHS doctors, or engineers, or architects – or in fact any job in which there can be wide variations in job role.

Market forces cannot be supressed, even with national contracts. When posts are not filled, Trusts have to pay excessive rates for locums, squandering taxpayers’ money. The irony is that the existence of the Junior Doctors Contract gives the locum agencies a monopoly.  Trusts aren’t free to recruit who they want on terms they want.  They are bound by either employing doctors in training on the the Junior Doctors Contract, doctors out of training, or going to the locum agencies.

It is a grossly outdated system, and the cracks are showing. That individual Trusts can’t decide their own staff’s working rates and patterns as they see fit, and engage with their own doctors with regards to their employment contract, is counter-productive.  No one wants working conditions that lead doctors to be tired, overworked, and unsafe.  Each individual Trust would know best how to avoid this given their knowledge of their own services and the individual demands and stresses these place on their employees.  Patients would be safer.

Doctors want to be respected and treated as individuals.  That is the reason for the proposed strikes.  It is not Jeremy Hunt’s fault, nor the BMA’s: it’s the fault of the Junior Doctors’ Contract.  It needs to be flushed away.  And if you think things are bad now, the Consultant Contract is also under negotiation and could go the same way.  We urgently need a solution.

Hunt and the BMA remain at an impasse.  I say they have a once in a generation opportunity: scrap all the National Contracts, devolve all powers to each Trust, empower local services.  Decentralise – a core Conservative aim. Mr Hunt and the BMA can both save face and climb down from the deadlock.  Both sides would still be unhappy as they each surrender power over doctor’s contracts, but it would be a good compromise.  The problem would be resolved for good –  and patients, the NHS and its doctors will be better off for it.