• Investigation sheds new light on process designed to keep patients safe during industrial action
  • BMA says it takes concerns around patient safety “incredibly seriously”

An investigation published by The BMJ today reveals new details of requests to recall striking junior doctors from picket lines for patient safety reasons.

Documents show that while most trusts in England did not make such requests, those that did were rejected by the BMA in most cases. Some of these trusts warned of potential harm to patients from cancelling operations at the last minute and short staffing, reports assistant news editor Gareth Iacobucci.

However, the BMA said it takes concerns about patient safety “incredibly seriously” and provided The BMJ with summaries of why requests were turned down.

The union’s chair of council Phil Banfield said, “Throughout industrial action we have engaged thoroughly and in good faith with the derogation process, considering each request carefully to ensure that granting a derogation is necessary and the last and only option.”

He said that poor planning by some trusts had led to some routine care being inappropriately booked in on strike days. In other instances, he said trusts had failed to make sufficient effort to draft in the necessary cover for strike days.

The BMJ sent freedom of information requests to 135 NHS trusts in England and received 90 responses (a 67% response rate) to better understand the performance of derogation – the process designed to keep patients safe during times of industrial action. Derogation allows trusts to ask for staff to be exempt from strikes if they feel patient safety is at risk.

Of the 90 trusts that responded, 83 (92%) did not make any derogation requests. The remaining seven trusts made 27 derogation requests between them, of which 24 (89%) were rejected by the BMA, one (4%) was approved, and two (7%) were withdrawn by the trust.

Documents reveal that in some cases, trusts that submitted derogation requests were able to find last minute cover to minimise the impact on patients. But in others, surgical procedures for breast cancer, abdominal hysterectomy due to cancer, and hemicolectomy (removal of one side of the colon) were cancelled at the last minute, alongside diagnostic procedures such as endoscopies, hysteroscopies, and biopsies.

In other cases, trusts identified potentially avoidable harm to patients in critical care and raised concerns around safe staffing, leading some NHS leaders to question whether the process of derogation is meeting its objectives.

Danny Mortimer, chief executive of NHS Employers, said, “The process for requesting derogations during action by junior doctors undoubtedly caused many trusts to decide not to submit requests as there seemed to be almost no circumstances in which the BMA would agree to requests whatever the concerns that were raised.”

Last year, the BMA initially reported that the process was working well. But more recently, relations with NHS England have become increasingly fraught.

Banfield added, “We continue to be more than willing to work with NHS England on clarity around planning, prioritisation and re-scheduling, and will continue to engage constructively and responsibly with the derogation process, should there be further industrial action. All we ask is that NHS England and trusts do so in the same spirit, which carefully balances the need to prioritise patient safety and allow doctors to exercise their legal right to take industrial action.”

An NHS England spokesperson said, “NHS staff, including junior doctors, have worked incredibly hard to maintain the safest possible level of vital services such as cancer, maternity, and urgent and emergency care on strike days.

“We continue to have active discussions with the BMA to ensure that, in any future periods of action, requests by local clinical leaders for patient safety mitigations are considered quickly and consistently.”



Notes for editors

Investigation: Revealed: hospital leaders warned that failure to recall striking doctors risked patient safety in some trusts, documents show doi: 10.1136/bmj.q740

Journal: The BMJ

Funding: BMJ Investigations Unit

Link to Academy of Medical Sciences Press releases labelling system:


Externally peer reviewed? No

Evidence type: Investigation

Subject: Derogation process