Employers who operate NHS ambulance or patient transport services in England can impose minimum service levels during strike action, obliging some staff to work rather than join a walkout.
NHS ambulance services and NHS patient transport services were one of the first public services to have rules set, under the Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023. This followed the passing of the Strikes (Minimum Services Levels) Act 2023.
What do ambulance and patient transport employers need to know if a trade union informs them of their intention to strike? Which employers do the regulations apply to? And what level is deemed a minimum level of service?
Affected ambulance employers
Ambulance services that can use MSLs
East of England
East Midlands
Isle of Wight
London
North East
North West
South Central
South East Coast
South Western
West Midlands
Yorkshire
After analysing the results of a consultation held in early 2023, the government concluded that all calls to the 999 ambulance service, including healthcare professional (HCP) calls, must be answered; and all calls that are life-threatening and where there is no reasonable clinical alternative to an ambulance response, must receive a response as they usually would on a non-strike day.
NHS organisations in Scotland and Wales invited to participate in the 2023 consultation either declined or did not respond.
Representatives from the Scottish and Welsh governments acknowledged that employment law and industrial relations are reserved matters, but viewed steps to establishing minimum service levels in ambulance services as interfering with their devolved responsibility for health services.
The DHSC recognises that responsibility for the operation of ambulance services in Scotland and Wales lies with the devolved administrations. “For these reasons, we intend for the regulations to apply to England only at this time, rather than also including Scotland and Wales,” said the DHSC.
Voluntary arrangements for MSLs
Instead of expecting that employers will always issue work notices to ensure MSLs are met, the Department of Health and Social Care says it recognises that employers may be able to secure the same level of coverage through voluntary derogations, and they can continue to agree and rely on these instead, as long as they are confident that the MSL will be met.
Where employers decide that voluntary agreements are sufficient, this will give union members more flexibility on strike days. Instead of either being on strike or not, they can choose to strike but leave the picket line if needed, as they do currently. Both employers and unions said they valued this flexibility as part of the government’s engagement with them.
What are the minimum service levels for ambulance services?
The DHSC says there is a clear public health rationale for ensuring that cases that are life-threatening and where there is no reasonable clinical alternative to an ambulance response, are responded to.
This means it is likely that a “high proportion” of call handlers in emergency operations centres (EOC), clinicians and dispatchers, and ambulance staff including paramedics and emergency care assistants, will need to be named in a work notice and required to work on a strike day.
In order to maintain safe and consistent operations, most on-call IT staff, on-call emergency mechanics and “Make Ready” staff are also likely to be required on a strike day.
The government says it has made the “hard but necessary” decision to introduce MSLs in ambulance services. “It is in the best interest of patients and will ensure the NHS is protected from militant strike action in future,” it said in its response to the 2023 consultation on minimum service levels in ambulance services.
However, it has adapted its approach to reflect concerns raised during the consultation process. “We will work with employers to support them to implement new regulations. We will also seek to work with employers and trade unions to improve and strengthen the existing process for voluntary derogations, recognising that the inconsistency in approach caused issues during strike action that took place earlier this year [2023],” it said.
How are the various ambulance services affected?
Ambulance services and non-emergency patient transport services provided by NHS ambulance services providers in England are covered by the minimum service levels regulations. Ambulance services provided by other companies are excluded.
The MSL regulations state that on each day of the strike, emergency calls should be answered and triaged as they would be “if the strike were not taking place on that day”.
Emergency ambulance responses, healthcare professional responses and inter-facility transfer services should be organised for life-threatening conditions or illnesses, and calls where there is no reasonable alternative to clinical assistance being provided as it would be “if the strike were not taking place on that day”.
Non-emergency patient transport services (NEPTs) should also be handled in the same way as “if the strike were not taking place on that day” for “relevant patients” if there is no reasonable clinical alternative to the patient receiving health services on the strike day. Refer to the regulations for the exact wording.
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