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A 65-hour week is just a matter of political will

It is now two years since the college began its campaign against the restrictions of the European Working Time Regulations. In February 2009 I asked Alan Johnson, then health secretary, for an opt-out for all the surgical specialties up to a maximum 65-hour week of work and on-call, a figure defined as optimum by our two trainee organisations (the Association of Surgeons in Training and the British Orthopaedic Trainees Association).

My request was declined and in theory if not in practice all junior doctors in the NHS have worked a 48-hour week since August 2009. It is a matter of regret that all the adverse effects we predicted have come about.

We received a more sympathetic ear from the two main opposition parties, now forming the coalition government. In their election manifestos and in their statements since, they have stated their intention to press for revision of the European legislation on working hours, which is part of the remit of the Department for Business, Innovation and Skills, headed by Vince Cable. The EWTR are of course a major problem for many other groups or workers, not just surgeons. However, although the College case is now widely accepted, including by our colleagues in the Royal College of Physicians, there is mounting frustration at how little has actually happened.

A new contract for junior doctors based on training and not hours worked is needed badly and the government has informed us of its intention to work in this direction. Yet it has shown no appetite for introducing separate UK legislation.

On 21 December 2010, it was both surprising and pleasing to find the European Union opening the second round of the review of EU working time legislation, first announced by José Manuel Barroso, commission president, in late 2009. The college gave evidence to the first stage in July 2010.

In the announcement of the new initiative, László Andor, EU commissioner for employment, social affairs and Inclusion, states: “The current situation is not sustainable politically or legally. We need a fresh start and a new EU-level approach to working time.” The announcement goes on to say: “The clear message has been that changes to the current working time rules are urgently needed. There is also a high degree of consensus that EU working time rules should allow greater flexibility for workers’ and employers’ representatives to negotiate on the details of implementation at the appropriate level.”

A major theme from the first-round consultation was that public sector emergency services, particularly acute hospitals, have the worst problems with the regulations. The SiMAP–Jaeger judgments in the European Court of Justice, which say that all time spent at the place of work when on call must be counted as working hours and that rest breaks must be taken immediately after a period of duty, are singled out for criticism. There is also recognition that present rules are too rigid and complex.

Options for consultation include:

1. There will be no negotiation on ending a European common minimum requirement but in a somewhat contradictory way the document goes on to state that maintaining the status quo is not an option.

2. There should be a new approach to assessing on-call time, with a framework that would allow for negotiated solutions at local or sectoral level. For sectors in which continuity of service is required, periods of on-call time might be counted differently in different member states. I take this to mean that time resting in the hospital should not count towards hours of actual work.

3. There should be more flexibility on the timing of compensatory rest periods where there is a relationship of trust and confidence with a specific individual. Does this mean that at last the patient is being considered? Surely the mainstay of a relationship of trust and confidence is continuity of care?

EU rules should respond to the continuing trend towards more flexible forms of work organisation and individualised working hours. Yes, surgeons are different, with different work patterns and training needs.

The ability to opt out of the EWTR should stay. This is the one area in which the UK government has been uncompromising in stating its intention to retain the right of an individual to opt out of hours legislation. We live in a free country after all.

Views must be submitted by the end of February 2011 with a view to amending the regulations in the third quarter of 2011. This pace is supersonic by European standards.

So what is the significance of all this? Is there appetite for real reform or is this merely an attempt to fudge the regulations at the edges to force surgeons and others into a just-about-acceptable but basically unsatisfactory compromise? At this stage we just do not know but for the first time there is acknowledgement in the words of the commissioner quoted above that: “The current situation is not sustainable politically or legally.”

This is progress, with a welcome sense of urgency. However, there is no stated intention to repeal the legislation in toto or to exempt doctors working in emergency services. Can this proposed revision of the EWTR allow the college, ASiT and BOTA what surgeons want and our patients need? If we get the backing of the UK government it looks possible although some tough negotiations lie ahead.

Two years ago I proposed to the then health secretary that he allow surgeons to opt out of the EWTR. I will be proposing to the current Secretary of State that he take the bull by the horns, anticipate the inevitable and allow surgeons and other affected groups who wish to do so the freedom to undertake up to 65 hours of work and on-call each week, from 1 August 2011. This leaves plenty of time to negotiate a new contract of employment and would allow restoration of continuity of patient care, the phasing-out of shift working and the restoration of training intensity and experience to the levels of the past, when UK training was respected and aspired to throughout the world. As I have said throughout, it is a matter of political will.

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6 Responses to “A 65-hour week is just a matter of political will”

  1. chrissa says:

    it will take a court case to settle the matter: one patient whose operation went wrong and who can prove that his/her surgeon worked on him/her outside working times that are considered safe for truck drivers and airline pilots. the working hour junkies will not learn any other way.

  2. Dr Zorro says:

    “A new contract for junior doctors based on training and not hours worked is needed badly”
    But further down
    “particularly acute hospitals, have the worst problems with the regulations” indicating that covering the work is the main problem, not training.
    I have commented on this before
    http://vulpesmax.blogspot.com/2010/09/working-time-directive.html
    Black is an unreformed Dinosaur.

  3. Malcolm Morrison says:

    John Black is to be congratulated for his perseverance in this matter. He has led the other colleges (screaming?) to face up to the problem. However, his predecessors (in all the colleges and the BMA) should be hiding their heads in shame for allowing this to happen. None of them seemed to appreciate what the EWTD (as it was then) meant – and seemed to think that “it couldn’t happen to us”!
    Of course we must not go back to “the good (or bad?) old days” of 1 in 2 rotas; but ‘continuity of care’ is important TO the patient and FOR the patient. Postgraduate TRAINING implies acquiring both knowledge and SKILLS – and this demands experience and practice. But there must be PROPER supervision (rather than ‘nominal’).
    It is essential for the benefit of future patients (which we are all likely to become!) that the doctors and surgeons of the future are competent, safe and experienced.
    Retired Orthopod

  4. chrissa says:

    hi zorro – we should start to encourage patients with botched operations to come forward and have the working hours of their surgeon scrutinised. if it can be proven that the operation was done during hours no truck driver would be allowed to drive for safety reasons – the patient should be encouraged to sue for negligence. it is sad but i think that nothing short of such a case will stop the support for john black´s “hours crusade” once and for all. these dinosaurs must be stopped.

  5. DrFredaFlintstone says:

    Chrissa and Zorro risk creating another problem for patients requiring long and complex surgery. If I’m having major surgery on my head and neck for cancer I don’t want a “shift change” of surgeons half way through when time runs out. Human performance isn’t simple and time limits for truck drivers may not be appropriate for others. Let’s not make another mistake here – the current situation is bad enough.

  6. chrissa says:

    john black and his supporters keep refusing to do the job they should do (and should have done years ago): adapt training to the reality that trainees´ time is a limited (hence valuable) resource.

    black et al have done nothing and continue to do nothing as junior doctors´ time is wasted with gofer jobs while non-doctor staff is ursurping real training opportunities (just listen to what junior doctors encounter every day in their hospitals).

    all research into learning has shown that the time during which anyone is actually able to take information on board is limited – and this limit is well within the ewtd allowed hours. the claim that the quality of training depends on the amount of hours is simply wrong – the junior doctors who support john black should inform themselves about mnemophysiology.

    so far john black et al have done nothing whatsoever to actually improve the QUALITY of training. “nurse-specialistdom” has taken real training opportunities from junior doctors and john black is not even acknowledging the problem, leave alone showing any signs to do anything about it in favour of junior doctors. all he tries is to make junior doctors available as cheap labour 24/7.

    the hours of old have a lot to do with doctors traditional “leadership” in alcohol & drug abuse, failed marriages/relationships and burn-outs. there were damn good reasons why we fought so hard to end that madness. the dinosaurs must not be allowed to bring these horrors back!

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