A safety net not a straitjacket

Kate Ling

Kate Ling is senior European policy manager, NHS European Office.

Remember the days when junior doctors worked 80, 90, 100 hour weeks? Maybe you were one of them? In some parts of Europe things haven’t changed much.

In Ireland, according to the European Commission, trainee doctors still regularly work continuous 36-hour shifts, work more than 100 hours in a single week or 70-75 hours on average, and work without adequate breaks. The Commission has recently referred Ireland to the European Court of Justice (ECJ), and the Court issued an ‘opinion’ finding that Ireland has failed to meet its obligations under the European Working Time Directive (WTD). If (as expected) this opinion is upheld in the Court’s final judgment, the Irish Government will have to pay a hefty fine until they have redressed the situation. 

What have Ireland’s junior doctors’ problems got to do with the NHS?

Rather a lot as it happens. The ECJ’s ruling deals a severe blow towards those in the UK who have argued that time spent by junior doctors on training and education shouldn’t count towards the ‘ceiling’ of hours they are allowed to work each week. Indeed the court explicitly hammers home the point that Ireland’s decision to exclude training time from the calculation of working hours breaches European law. 

This frustrates a key recommendation of the independent taskforce (chaired by the Royal College of Surgeons) which reported to the Department of Health in March 2014 on the implementation of the Working Time Directive and its impact on the NHS and health professionals. 

The taskforce, whilst acknowledging that nobody wanted to go back to the days when trainee doctors were so tired they could scarcely keep their eyes open, identified some ‘downsides’ to shorter working hours and in particular to the very strict and inflexible rules about exactly when and for how long staff can take rest breaks. Working patterns have been reorganised to comply with the directive – overwhelmingly, trainee doctors now work shifts rather than being ‘on call’ overnight – resulting in more frequent handovers and less continuity of patient care. 

Surgical trainees in particular say they get less time in which to train and acquire hands-on clinical skills. Consequently the taskforce suggested that ‘more work should be undertaken to identify service and education elements in the work of doctors in training. This will include how the possibility of separate agreements may contribute to resolving some of the difficulties identified’. 

The ECJ ruling that the provision of medical care and training are inextricably linked appears to close this possible loophole. Clinicians and managers broadly agree that greater continuity of patient care and the needs of trainee doctors for more time to concentrate on learning and practising clinical skills requires greater flexibility over the timing of doctors’ rest periods and working patterns. And at the same time, the NHS Five-Year Forward View envisages delivery of high quality, compassionate round the clock services and greater patient choice, all within challenging financial constraints. All this adds up to a pressing need to change the Directive itself. 

What can we do to change it?

In the NHS Confederation’s European Office, we’re redoubling our efforts to change the rules to allow more flexible use of working time whilst still safeguarding workers from fatigue. 

In our response to the European Commission’s recent consultation on possible changes to the Directive we put forward a strong case for future legislation to focus more on the fundamental principle of ensuring workers are safe and fit to work and allowing Member States to decide on the practical details, rather than trying to prescribe rules in minute detail at European level. A ‘one size fits all’ approach across Europe isn’t appropriate given the diversity of health systems and working patterns. Working time rules should be a safety net to protect workers and patients, not a straitjacket that gets in the way of staff doing their best to care and to learn. 

We expect the European Commission to issue proposals for new rules early next year – in the meantime, we’ll continue to seize every possible opportunity in Brussels to press the case for change. 

Kate Ling is senior European policy manager, NHS European Office.

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