The UK has implemented the European Working Time Directive (WTD) incrementally. Its aims are to protect the health and safety of staff by restricting the number of hours an individual can work and setting minimum rest requirements for all workers.
It was incorporated into British law on 1 October 1998 for consultants and other career grade hospital doctors. In May 2000, agreement was reached between the European Parliament and the Council of Ministers on the arrangements for doctors in training. The plan was to reduce the working hours of doctors in training to 58 a week by 2003, 56 hours a week by 2007 and 48 by August 2009.
An individual doctor can voluntarily sign a waiver and opt out of the limit on working hours but (under the New Deal) cannot exceed an average of 56 hours of work a week. Junior doctors cannot opt out of the WTD’s rest requirements.
The New Deal’s relationship with the Working Time Directive
The New Deal dates from 1991 and is a package of measures designed to improve the conditions under which junior doctors work. Since the WTD was implemented in 2004, the New Deal continues to be relevant and where there is variation between the conditions the most favourable will apply to doctors (i.e. fewer hours, longer rest periods).
Working Time Directive rest requirements for doctors
From August 2004, a trainee doctor has to have a minimum of 11 hours continuous rest in every 24-hour period; a minimum rest break of 20 continuous minutes after every six hours worked; a minimum period of 24-hours continuous rest in each seven-day period (or 48 hours in a 14-day period); a minimum of four weeks paid annual leave; and, for night workers, a maximum of eight hours work in each 24 hours.
SiMAP and Jaeger cases and the implications for hospital doctors
The SiMAP judgement refers to a case brought before the European Court of Justice by a group of Spanish doctors. It concerns whether time spent by doctors on call, either at their place of work or away from it, counts as working time and therefore towards the 48-hour week. The New Deal definition does not count all resident hours as work, but makes a distinction between actual and duty periods. The ruling in 2000 declared that all the time spent resident on call would count as working time.
The European Court of Justice judgement in 2003 on the Jaeger case confirmed the SiMAP judgement for doctors. The assumption is that if British doctors work under similar arrangements then a similar interpretation of working time applies. It means that resident on-call rotas are no longer workable and new ways of working had to be developed.
In December 2008, the European Parliament voted to classify all on-call time by trainee doctors, both active and inactive, as work in accordance with the Simap and Jaeger judgements in the European Court of Justice.
The issue of opt-out, which allows individual workers the right to work longer than 48-hours, remains unresolved. Britain is among 15 states that uses the opt-out. The European Parliament voted to end the opt out in order for the Court of Justice rulings to be observed. But the European Council wants to retain it to give local health authorities more flexibility. There’s currently an impasse which could - theoretically - see the Commission contemplate legal action against countries not fully observing the directive.
Working arrangements for trainee hospital doctors
For matters of pay and banding the New Deal definitions apply. For compliance with the EWTD, the SiMAP definition applies. The latter means that doctors have not been allowed to work more than 56 hours a week on average.
As August 2009 approaches, and the implementation of a 48-hour week for junior doctors, trusts are changing their working patterns. The pattern of work, length of duty period and frequency of out-of-hours work undertaken determine whether the working arrangement should be a full shift, a partial shift, a 24-hour partial shift, an on-call rota or a hybrid of the above.
Trusts are trying to bring Band 2 rotas down into Band 1. Band 2 includes all junior doctors whose posts are compliant with the New Deal and who work over 48 hours and up to 56 hours of actual work per week. Band 1 includes all trainee doctors whose posts are compliant with the New Deal and who work up to 48 hours of actual work per week.
Junior doctors must not be told of changes to rotas which result in less pay at short notice. Agreement between all parties must be reached.
Progress with Working Time Directive implementation for trainee doctors
Implementation of the WTD for doctors continues to be problematic and controversial. The picture is mixed on progress. In March, the Department of Health (DoH) suggested six of 13 strategic health authorities want more time to achieve full compliance, though most trusts maintain they’re reaching the 48-hour goal for junior doctors. Royal College of Physicians research in December 2008 suggested that half of juniors and trainers surveyed felt that their hospitals were not ready.
Data released by strategic health authorities in April suggests that 72% of clinical rotas are reported as compliant, down from 78% in March. The Royal College of Surgeons predicts that this will fall further as staff shortages become apparent – it estimates there are 3,000 unfilled junior posts in the country.
A survey of over 31,000 junior doctors by PMETB, the body that regulates medical training, shows that one in 10 of the respondents whose hours were compliant on paper said they were being asked to lie.
The DoH is canvassing trusts in the run up to WTD implementation on their requirements for a temporary derogation which could allow some to operate rotas based on a 52-hour week for up to three years. It launched an eleventh hour review in June into the impact of the Working Time Directive on juniors’ training.
Opinion is split within the medical profession over the WTd. Both the DoH and the BMA support the implementation of the 48-hour for junior doctors as planned. The BMA has been disappointed by the move for derogations. It suggests that more innovative ways of working with expanded consultant numbers would make up for the lost hours among juniors and has called for training time to be lengthened. The Royal College of O&G has also been supportive and should encourage recruitment into the specialty.
But, surveys suggest many juniors fear their training will be compromised, particularly in the ‘craft’ specialties that depend on direct experience with patients. The royal colleges of surgeons and anaesthetists have been prominent in the debate on the dangers of a shortened week to patient care and medical training, issuing a joint statement in December 2008. The Royal College of Surgeons wanted trainee doctors to be able to opt out and work up to 65 hours a week.
In May, two former royal presidents wrote to The Times claiming that, in many specialties, proper care, teaching and experience cannot be delivered in a 48-hour week.
There is also evidence from the trainee surgeon organisations – Asit and Bota – that shift working is also leading to more fatigue and errors.
Another opponent of the 48-hour week, Remedy, is calling on the PMETB – as part of the DoH’s review – to consider whether training programmes that were approved prior to the 48 hour week can still be approved for training after August. It wants them to investigate mythical rotas.
While the debate continues to rage, trusts are busily preparing themselves, as best they can, for implementation of the WTD on 1 August.
More information:
Regular newsletter on WTD progress
Royal College of Physician’s view
