NHS ‘needs IR35 enquiry on patient care impact’

A public enquiry into the impact IR35 reform has had on NHS staffing is being sought, amid fears that patient care could go the way of IT contracting -- which is being “decimated” by it.

Calling for it to be “urgent”, the Independent Health Professionals' Association said the enquiry should run in addition to the multiple Judicial Reviews currently in “pre-action” phase.

So as well as the legal challenges against how the 2017 reform was put in place, IHPA wants an extra probe into the reform’s potential impact on the availability of life-saving clinicians.

“It seems probable that acute on chronic staffing shortages, exacerbated by ‘forced false employment’” it says, “could be a potentially contributing factor to increased mortality.”

The association added: “The NHS Winter Crisis this year has been particularly marked, which coincided with the first peak-demand season following the IR35 reform.

“Disturbingly, there were 10,000 excess deaths in the first seven weeks of 2018, the reason for which is unclear… [so] work is urgently needed to establish if IR35 has had a role in this.”

Elaborating on ‘forced false employment,’ IHPA general-secretary Dr Iain Campbell said it was a problem because rather than simply accept it, clinicians have fled the NHS in droves.  

“The potential workforce problems for the NHS are huge,” he said. “Public bodies are being pressured to implement unlawful IR35 blanketing of the vast majority of temporary workers

“From doctors, nurses, allied health professionals right through to IT contractors, irrespective of their true contractual arrangement…. almost without exception, [they are subject to] a wild-west of lawlessness where public bodies ignore case law and make [them all inside IR35].”

This blanketing by NHS trusts first hit in the run-up to the reform when, rather than take the time to individually assess PSCs for IR35, a London hospital deemed the whole lot as caught.

Dr Campbell believes that, despite both the ‘reasonable care’ clause and NHS Improvement (belatedly) vetoing such blanketing, the taxman is complicit in the incorrect status decisions.

“The government needs to wake up and realise that HMRC’s civil servants have gone rogue and are presently aggressively pursuing blanket false employment.”

He also said: “The [resultant] exodus of temporary relief workers from the NHS [is] exacerbating rota gaps already, following the Junior Doctor Contract reforms imposed by Jeremy Hunt”.

Over the weekend, a poll showed that three-quarters of adults believe that there are not enough nurses to keep patients safe. Pollster the RCN says that 43,000 nurses are now required.

And a dossier featuring 18,000 anonymous contributions from front-line clinicians was also published, warning that cancer patient care is being “severely compromised” as a result of constant staff shortages.

The figures come after half of public sector PSCs said they had been given an assessment of their IR35 status, without any testing of IR35 status being carried out.

Almost all were deemed ‘inside’ IR35 – so blanket assessed as caught, seemingly in breach of the ‘reasonable care’ clause, the Freelancer & Contractor Services Association found.   

Only 8 per cent were decided ‘outside’ (also in a blanket decision); and of those who said some IR35 testing was carried out, the most popular method was to assess the role, not the contractor’s working reality.

“It is no surprise that individuals rarely have their specific IR35 status assessed, with role-based decision-making being the preferred option for public sector bodies, but this approach is not always the most appropriate and will inevitably lead to challenges,” FCSA said.

“These statistics should be of real concern for the government, and our survey suggests that it is in the medical, engineering and IT sectors where such challenges may come from.”

Addressing the IT sector in the NHS, Dr Campbell implied there was no longer much of it left for independent consultants: “IT contracting in the NHS has… been decimated.”

He reflected: “The prospect of how the clinical functions of the NHS would cope if another ransomware attack occurred, given the way kangaroo-court IR35 assessments are impeding NHS providers ability to source security contractors, is a considerable operational risk. This should be looked into urgently at the highest levels within the NHS.”