In the autumn of 2023, the Department for Health and Social Care ran a consultation on whether to introduce minimum service levels for hospital services in the event of strike action. Personnel Today looks at the rationale for their introduction, the level at which MSLs could be set, and the appetite of NHS trusts to impose them.
The government has yet to publish its response but, given that hospitals in England and Wales are still facing strike action from doctors, it appears likely that regulations for hospital MSLs could be enforced soon under the Strikes (Minimum Services Levels) Act 2023.
When Grant Shapps, then transport secretary, announced proposals on minimum service levels across much of the public sector in January 2023, he thanked the Royal College of Nursing for ensuring safe levels of cover were in place during a recent strike, but he criticised a lack of timely cooperation from ambulance unions.
The significant risk of harm to hospital patients when unions have refused to agree sensible voluntary derogations is the reason that we have decided to consult on whether, and at what level, to put in place statutory minimum service levels for hospital services” – Steve Barclay, former health secretary
Ambulance services’ minimum service levels have since been set in England, but it appears NHS hospital trusts could be next in line, despite derogations on “life and limb” cover being largely successful, at least with the RCN.
Rationale for MSLs in hospitals
In his foreword to the DHSC consultation, the then health secretary Steve Barclay said that derogations are “entirely dependent on goodwill” from unions and staff. “During some strikes, in some places, derogations have been agreed in good time, but in others, unions have not agreed them until very late or have not agreed them in advance of the strike commencing, which has particularly affected hospital services,” he said.
He cited an example, during the strike by junior doctors in August 2023, when the British Medical Association (BMA) refused 17 applications for derogations where both local clinical leaders and their own local representatives had agreed it was necessary and reasonable to keep patients safe.
“The significant risk of harm to hospital patients when unions have refused to agree sensible voluntary derogations is the reason that we have decided to consult on whether, and at what level, to put in place statutory minimum service levels for hospital services,” he said.
When the consultation was announced last September, Professor Phil Banfield, chair of the BMA council, said its members always ensure a minimum level of staffing is preserved during strike action.
“We have always maintained that consultants and junior doctors together, will never stage a full walk-out and we have been clear that we are not planning to do so, with urgent and emergency care continuing to run. It is disingenuous for the secretary of state to say otherwise,” he said.
The DHSC says that between December 2022 and September 2023, evidence shows that strike action has been hugely disruptive and, at times, significantly increased the risk of compromising patient safety. There were 22 critical incidents declared due to industrial action. In two instances, some critical care patients had to be moved to other hospitals due to insufficient staffing numbers.
“Experience has demonstrated that there is a risk of harm to hospital patients through relying solely on voluntary derogations, especially where a union will not agree derogations. It is for that reason we have decided to consult on whether and at what level to put in place statutory minimum service levels. This risk would be increased further if separate trade unions chose to call more than one professional group to take industrial action at the same time, for example, doctors and nurses,” says the consultation document.
What will be the minimum service levels in hospitals?
The government should be taking action to ensure the NHS is safely staffed 365 days a year” – BMA
In its consultation, the DHSC proposed that hospitals will treat people who require urgent or emergency treatment and people who are receiving hospital care and are not yet well enough or able to be discharged, during the period of industrial action “as they would on a non-strike day”.
This would mean the following sets of patients could expect to be treated as they would on a non-strike day:
- in-patients already receiving hospital care
- existing patients requiring urgent elective treatment that would normally be delivered during the period of industrial action
- existing patients who could or will need emergency, critical or urgent assessment, diagnostics or treatment in hospital – for example, cancer or cardiac diagnostics and treatment, but not routine knee or hip replacements
- new patients that require unplanned assessment, diagnostics or treatment in hospital – for example, people presenting to emergency departments, and women in labour.
For short periods of action, service provision in the NHS might look similar to what is usually available on a Sunday, although this would need adjusting for longer strikes.
The DHSC proposes that all relevant support services would also need to be provided to ensure that the minimum service levels can operate safely and effectively. Examples of these supporting services include theatres, catering and cleaning, discharge support, mortuary services, pathology, IT, facilities and patient transport.
It is not proposing to introduce MSLs for procedures or services where the delay does not cause risk to life or significant harm. These services would significantly reduce or close during a strike period.
Minimum service levels in the NHS
Neither is the DHSC proposing that staffing for the MSL would need to be sufficient to respond to an unpredictable major incident. “Our expectation is that sufficient NHS staff would return to work to participate in a major incident response on a voluntary basis, irrespective of whether they have the expressed support of their union, locally or nationally. This is in line with their professional obligations as clinicians,” says the consultation document.
It suggests that local NHS trusts, health boards, and commissioners are best placed to determine precisely how services should operate and the number of staff needed in order to provide minimum service levels in hospitals.
The consultation, which closed on 14 November 2023, acknowledged that NHS trusts or health boards may not employ all the staff who are essential to the care provided by hospitals. As only the organisation that employs a member of staff who may go on strike can issue a work notice, the DHSC also sought views on whether the MSL should cover all organisations that provide services on behalf of hospitals.
Reaction to MSLs in hospitals
The RCN responded to the consultation by describing the government’s approach as “inimical” to any reasonable conception of good industrial relations, adding that it makes strikes by nurses “more likely, not less likely”.
The BMA responded by pointing out that the current state of the NHS – with 10,000 doctor vacancies in England alone – compromises patient safety. The government should focus on that, said the BMA.
“Curtailing doctors’ right to strike could lead to doctors’ grievances going unaddressed, resulting in even greater workforce attrition and subsequently higher workloads, with obvious knock-on impacts for staff and patient safety.
“The government should be taking action to ensure the NHS is safely staffed 365 days a year, which means addressing the lost value of doctors’ pay and poor working conditions that result in more and more doctors leaving the NHS.”
One of the biggest unions in the health service, the GMB, is also vehemently opposed. National secretary Rachel Harrison said: “The stark truth is that public services are not able to deliver safe staffing levels on any day, not because of strikes but because of years of underfunding. While the government continues to scapegoat staff, it is patients and workers who will continue to pay the price for their neglect.”
Will MSLs be imposed by hospitals?
The Strikes (Minimum Service Levels) Act and any regulations resulting from the DHSC consultation to impose MSLs in hospitals would provide the option for NHS employers to issue work notices to staff, obliging them to work during strike action. However, it does not require them to do so.
The are three reasons why, despite minimum service levels’ likely introduction to hospital services, they still might not see the light of day in practice.
1. NHS employers may not want to impose MSLs
Firstly, many NHS employers are opposed to their use, believing they will further damage industrial relations. In its submission to the consultation, NHS Providers, which represents NHS trusts, disagreed with the proposals to introduce MSLs. It said:
- the provisions of the Act will damage local and national relationships with staff more than it will mitigate disruption
- MSLs in urgent and emergency care services do not seem warranted, as the largest disruption during strikes has occurred for patients waiting for planned care
- MSL provisions would encourage unions to take more action short of strikes (ASOS), such as working to rule, adding that DHSC’s own impact assessment acknowledges that ASOS “may be more likely where a full strike is restricted by MSLs”
- MSLs would not replace the need for derogation and staff recall arrangements but will make them harder to achieve
- the administrative burden would be costly – this was also acknowledged by the DHSC’s own impact assessment.
In January, Matthew Taylor, chief executive of the NHS Confederation, said: “Health leaders share the government’s concern that in the event of industrial action, there should be minimum levels of staffing in place to make sure that the most vital services can continue to run and that patient safety is not compromised. This is why they work closely with local trade union representatives to agree reasonable exemptions to where strikes are expected to take place…
“This new legislation will not change that as it does not address the fundamental concerns facing NHS staff. Instead, it could be seen as an attempt to silence workers in their hour of need and to sweep the problem under the rug.”
2. Employers will fear escalation of industrial action
The first opportunity for minimum service levels to be imposed came in January 2024 when train drivers’ union Aslef called rolling 24-hour strikes at 16 train operating companies. Not one operator imposed the 40% minimum service levels set out in the MSL regulations for the rail sector.
When one, the government-owned LNER, showed signs that it might use the legislation, Aslef announced an additional five-day strike. LNER then informed Aslef it would not impose MSLs, and Aslef cancelled the extra five days’ action.
With more than 200 NHS trusts in England, there’s a chance that some may opt to impose minimum service levels, but many will fear the consequences and will not want to be seen as an outlier among neighbouring employers.
3. Mayors and council leaders are opposed
Metro mayors and council leaders have vowed to do “everything in their power” to stop employers using MSLs in their areas. While they may not have the power to stop an NHS trust from going down the minimum service levels route, the local political opposition may be enough to discourage many.
In November 2023, the mayors of London, Greater Manchester, Liverpool, West Yorkshire, South Yorkshire, Bristol and North of Tyne, and council leaders of Birmingham, Cardiff, Glasgow, Leeds, Liverpool, Newcastle, Nottingham and Sheffield issued a statement against the use of minimum service levels.
Opposition to MSLs has also been voiced by the first ministers of Wales and Scotland. Given that the DHSC chose to only apply the MSL regulations for ambulance services in England, it seems likely that any resultant regulations for hospitals would follow suit. The legislation does not apply to Northern Ireland.
HR opportunities in Healthcare on Personnel Today