EU Directive drives reform of junior doctors’ working hours

The application from August 2004 of statutory working time limits (in line with the EU working time Directive) to doctors in training in the UK , in conjunction with two recent rulings by the European Court of Justice, has considerable implications for the working patterns of doctors, nurses and other health professionals - and potentially for patients.

The Working Time (Amendment) Regulations 2003 will apply to doctors in training from 1 August 2004 (UK0212102N). The 48-hour limit on average weekly working hours introduced by the 1993 EU working time Directive (93/104/EC) will be phased in for this group over a five-year period. From 1 August 2004 to 31 July 2007, the weekly working time limit for doctors in training will be 58 hours. This will be reduced to 56 hours from 1 August 2007 to 31 July 2009. The reference period for calculating weekly working hours is a rolling 26-week period, to enable the continuity of treatment or care by hospitals or similar establishments.

The Regulations also provide the right to 11 hours’ rest between working days, one day’s rest per week and statutory in-work rest breaks, but where an employee’s activities involve the need for continuity of service, these can be 'disapplied' and replaced with compensatory rest periods.

This statutory reduction in working time for doctors in training (known in the UK as 'junior doctors') will co-exist with a negotiated scheme, the junior doctors’ contract or 'new deal', which was first agreed in 1991 (UK0006177N). This contract sought to reduce the hours of junior doctors to a maximum weekly working time of 56 hours and provided a pay supplement to those junior doctors who worked over 48 hours per week. Based on the number of hours worked, when and the intensity of the work, this supplement could be up to 100% of basic salary.

A significant difference between the two strategies for reducing the working time of doctors in training derives from two recent rulings by the European Court of Justice (ECJ). The Simap (C-303/98) and Jaeger rulings (C-151/02) indicate that every hour that a junior doctor is resident in hospital is equivalent to a full hour of work (EU0310202N). Under the 'new deal', the weekly working time limit of 56 hours relates to actual working time, and excludes time which might involve sleeping at the hospital 'on call'. Under the new working time Regulations, the forthcoming weekly working time limits of 58, 56 and 48 hours include all the time junior doctors spend resident on duty, irrespective of whether they are sleeping or working. This has a number of implications for doctors in training, fully trained doctors, nurses and other health professionals.

The modernisation agenda

The government is viewing this latest change as a continuation of the modernisation agenda in the National Health Service (NHS) (UK0208103F) and as an opportunity to improve standards through more innovative ways of working and a changing skill mix. It is funding pilot work at four hospital sites to explore the concept of the 'hospital at night' and facilitate the compliance of the whole hospital with the working time Regulations. The government is also funding 19 pilot projects to test a range of approaches to reducing junior doctors’ hours, in different specialties, for subsequent dissemination across the NHS. Half of the pilot sites have achieved compliance within their specific area.

The pilot projects have included:

  • the introduction of shift working by doctors in training;
  • the performance of traditional junior doctor tasks by other healthcare professionals, eg the use of pharmacy technicians to manage patient medicine or the use of a team of trauma and orthopaedic nurse practitioners to provide a 24-hour trauma service and reduce the work intensity of junior doctors;
  • the increased use of non-medical support workers, such as clinician’s assistants and medical assistants;
  • the use of protocols to structure the provision of treatment/investigation by non-doctors;
  • the increased use of fully trained doctors (known as 'consultants' in the UK) at night;
  • the development of new multi-disciplinary clinical teams which facilitate the strategic reduction in the weekly working time of junior doctors;
  • the development of 'out of hours' medical teams that can work across a number of specialties (referred to as 'cross-cover') between the hours of 22.00 and 08.00; and
  • the re-thinking of services that could be provided at night and at weekends

Views of the key players

The working time Regulations require significant changes in the working practices of junior doctors. Historically, doctors in training have worked a full day and, on pre-arranged days, remained in the hospital over night 'on-call' from a room in the building. The British Medical Association (BMA) is the professional association and trade union for doctors and has a key role in the implementation of the Regulations. The BMA estimates that these traditional working practices involved approximately 32 hours resident in the hospital per week - time that would now be counted as working hours. The BMA calculates that the impact of the application of the working time Regulations to junior doctors, from August 2004, will be a loss of 213,000 working hours a week, equivalent to 3,700 junior doctors. In 2009, when the limit on hours falls to 48 a week, it estimates that the total loss could be as high as 476,638 hours a week, or 9,900 junior doctors.

The BMA is further concerned by survey findings that indicate that 77% of consultants - who are already covered by the 48-hour weekly limit - are working more than 50 hours, and 46% are working more than 60 hours per week. The BMA suspects that many of these consultants have not signed individual 'opt-out' agreements and believes that some hospitals are applying pressure on them to do so. The UK is the only EU Member State to provide for individual opt-outs from the working time Directive's 48-hour weekly limit on average working time on a generalised basis, though certain other Member States have recently introduced or are considering limited opt-out provisions, primarily in the healthcare sector, prompted by the ECJ ruling that time spent by doctors on-call constitutes working time (EU0402203F). The Trades Union Congress (TUC) wishes to see the UK drop the opt-out while the Confederation of British Industry favours its continuation (UK0401104F). The BMA (which is not affiliated to the TUC) indicates that it has no objection to maintaining an opt-out for those doctors able to determine their own working hours, provided that any opt-out is truly voluntary and no undue pressure is put on doctors to work outside the hours permitted by the Regulations. If junior doctors were to opt out of the Regulations’ restrictions on weekly working time, their hours would still be subject to the provisions of the 'new deal'.

Other concerns are raised by the chair of the junior doctors’ committee of the BMA, who notes that 'junior doctors are highly worried and sceptical of imposed change that ... may cause them weeks of night shifts on duty in place of previous tiring but less disruptive on-call rotas'. A six-month evaluation of the pilot projects by the Manchester Centre for Healthcare Management (MCHM) and UMIST indicated that doctors were also suspicious that changes were being introduced to reduce doctors’ salaries. Limiting working hours is likely to reduce the salaries of junior doctors, as some of them have been receiving up to 100% of their salaries in extra payments for working long hours. Doctors were also concerned about their reduced training opportunities - a concern also raised by the president of the Royal College of Anaesthetists.

Although the BMA acknowledges the pilot study work established by the government, in evidence to the subcommittee on social policy and consumer affairs of the House of Lords select committee on the European Union, it criticised the timing of these pilot studies and argued that the results were unlikely to be in time to aid the implementation of the working time Regulations.

Work at the pilot sites indicates that other healthcare professionals are open to extending their roles and acquiring new skills in the move to limiting the working time of junior doctors. The Royal College of Nursing believes that, since 2000, nurses have led and delivered NHS modernisation, citing new nursing roles such as 'modern matrons', consultant nurses, nurse-led clinics and nurse prescribing. Whilst they are keen to use this opportunity to develop further, they believe that it is imperative that new roles are developed with the whole healthcare team in order to prevent the creation of new role boundaries, or the simplistic transfer of tasks from doctors to nurses. Nurses interviewed in the MCHM/UMIST study raised their concerns about 'being dumped on'.

Commentary

The application of the working time Regulations to doctors in training is an opportunity to reverse many years of long working hours by junior doctors in the UK. Despite the existence of a negotiated deal in 1991 to reduce working hours, a considerable number of junior doctors work for more than 48 hours per week. A monitoring exercise in March 2003 indicated that up to 30% of junior doctor contracts in the surgery speciality attracted the full working time pay supplement because doctors were working over the 56-hour weekly limit. Other specialties with long working hours were obstetrics and gynaecology, anaesthetics and paediatrics. In addition, the above figures do not include the estimated 32 hours that junior doctors are resident in hospitals, which now need to be included in any weekly working time calculations. Because of the Simap and Jaeger rulings, providing out-of-hours cover is seen as being the biggest challenge for the NHS.

Although a number of the pilot sites experimenting with different ways of working have seen improvements in doctors’ working lives, better training opportunities and the promotion of multi-disciplinary working, the BMA believes that too little has been done to prepare the NHS for the changes. It notes that the EU working time Directive was originally implemented in the UK in 1998 and that this work should have started far sooner. However, although healthcare organisations may struggle to be fully compliant with the working time Regulations by 1 August 2004, it is important that action has now started on changing traditional working practices. Although the 'new deal' attempted to reduce junior doctors’ hours to an acceptable level, it is only the statutory nature of the working time Regulations which is forcing many healthcare organisations to look more broadly at healthcare working practices. Indeed, it is only through introducing new ways of working for the whole healthcare team that reductions in the working hours of junior doctors will be achieved. (Anne McBride, Manchester School of Management, UMIST)

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