Law’s Expanding Emporium

Why has a single document caused the case of junior doctor, Chris Day, to be raised recently in Parliament? Dr Day lost his career after he blew the whistle on threats to critically ill patients at Lewisham and Greenwich NHS Trust.

The document proves something Dr Day and his family spent four years and £200k crowd-funding trying to show. Yet Parliament heard it was concealed from courts by lawyers whose duty it was to disclose it, who knew of the document because they were paid public money to draw it up, and who were paid more of our money to argue as if it didn’t exist. Remarkably, it seems Dr Day’s union, the British Medical Association, were in on the document but didn’t let on.

Instead Dr Day has had to fight through the courts to show that Health Education England (HEE) (the training body for junior doctors) can be held liable, as joint employers, if junior doctors blow the whistle on unsafe care, only to find their training and employment derailed as a result. The concealed document shows HEE had legal status as joint employers, a status HEE lawyers had, for years, profitably denied (at a reported cost of £700k to the taxpayer).

With spending on health and social care under such pressure, what are we to make of such apparently blatant and costly legal misconduct?

“Law’s Expanding Empire” was the first of this year’s BBC Reith Lectures. Former Supreme Court judge, Jonathan Sumption proposed that law was expanding to dominate areas of public life that would be better dealt with via democratic politics. Addressing reasons for this expansion, he suggested we, as society, have an increasing appetite for moral absolutism and a rising intolerance of risk. In other words, we are tending to overreach in what we want law to proscribe and to prevent. However, Dr Day’s case suggests other explanations for law’s expanding empire.

The hidden document in Dr Day’s case is a contract between two parts of the NHS. Successive governments have fragmented the NHS into a plethora of Trusts and other quangos. Each of these fiefdoms has then to find and fund a board of executives and directors. This quickly exhausts the talent pool, and the public purse, offering opportunities for high power to many of middling ability. Outmatched by the job, their inevitable failures are buried at public expense, as each slender fiefdom appoints its own lawyers to disguise incompetence, waste and harm. More lawyers are hired to draft and defend the multiple contracts that are needed for the NHS fiefdoms to work again with one another, and with private sector providers. When pitted against middling NHS directors, the lawyers can make good money however badly things go.

Dr Day’s case exemplifies an issue Sumption somewhat overlooks. In his first lecture, Sumption suggests he left academia for legal practice because he was fed up with the pay. Yet his analysis tends to neglect the way in which money has driven the expansion of law. Law is big business, promoting, at times, a type of disaster capitalism. It can prey on a fragmented NHS, and its over-numbered and outmanoeuvred directors. It appears to allow regular abuses of process in the disclosure of evidence – to harm justice in cases of whistleblowing, negligence and even crime.

Sumption argues that to resist law’s empire, we need to participate more in public decision-making and to keep our leaders accountable via local and national politics. This is surely true of the NHS too. As citizens, we each need a say in how our local health services are run, and an ability to hold accountable those who lead them. This cannot be voiced through Parliament alone. We need more open fora in which citizens can properly scrutinise and feedback on the work of their local health services. Otherwise NHS chief executives will keep writing the cheques, using our money – expanding law’s empire to protect theirs.