Lottery or high stakes poker?

Junior doctor Chris Day blew the whistle. His training was derailed and he tried to bring a claim in the Employment Tribunal (ET: like the lottery, low chance, but at least low-cost risk = route 1). He wanted to bring a claim against the controllers of his training, senior BMA members at Health Education England, HEE.

For three and a half years until yesterday, HEE has claimed he couldn’t sue them in the ET (route 1). The British Medical Association (BMA) refused to support Dr Day’s challenge to this, and instead collaborated with HEE to keep other whistleblowing junior Drs away from the ET. The BMA directed them instead to suing in the County or High Court (high-stakes poker with high cost risk = route 2).

Q: Why would the BMA direct already vulnerable junior Drs to the high stakes poker table? A: Because it resolves whistleblowing cases with money.

Normally a pay-off is sufficient to push the exhausted whistleblower to settle, and to allow those Drs responsible for reprisal to continue. But junior Drs can be an observant and idealistic bunch – and distrustful of the BMA. What if they refuse the BMA’s pay-off?

This is where route 2 comes in. Suing HEE in the County or High Court means the whistleblowing junior Dr incurs serious debts (including their opponent’s costs if they lose). The BMA will only cover these if the junior Dr tows the line. It offers the BMA dual control: pay-offs for the obedient; indebtedness for those who resist.