The NHS faces a bill of millions of pounds after a junior doctor won a test case yesterday about the way a hospital trust monitored rest breaks.
Dr Sarah Hallett and 20 colleagues who trained with her said that Derby Hospitals NHS Foundation Trust failed to ensure that the doctors took regular breaks nor that they were paid for extra work undertaken.
The Derby hospitals, which are now part of University Hospitals of Derby and Burton NHS Foundation Trust (UHDB), will have to repay the doctors around £250,000 for underpayments over an eight-month period but the judge ruled that the cost for the wider NHS is “potentially substantial”.
Commercially available workforce rostering software known as Allocate, used at Derby, is widely embedded across the NHS to monitor rest break compliance.
Staff monitoring
Last month, just a fortnight before the hearing, health secretary Matt Hancock attempted to intervene in the case because of the “considerable” financial implications.
Doctors union, the British Medical Association, which supported the case, described the ruling as a “significant victory”.
Dr Jeeves Wijesuriya, chair of the BMA junior doctors committee, said: “[Yesterday’s] ruling is a victory for junior doctors and confirms that trusts or health boards have been using commercial software that has underestimated the hard work, long hours and inadequate rest faced by junior doctors for years.
“In overturning last year’s ruling, the Court of Appeal has established a binding precedent in England and Wales in favour of the BMA regarding how monitoring of junior doctors on the 2002 contract should be done.
“The doctor supported by the BMA in the case, Dr Sarah Hallett, is not seeking compensation. Our objective has always been to establish the correct interpretation in the law to both protect patient safety and the interests of junior doctors.”
Dr Hallett described the victory as “bittersweet” in a tweet.
Over 4 years after starting to look into my case, this is something of a bittersweet victory today. It should not have needed to escalate to this level to confirm the importance of accurately assessing if junior doctors are getting breaks. https://t.co/RpJU6sy2Lb
— Sarah Hallett (@DrSarahHal) July 30, 2019
The case centres on whether the hospital complied with its contractual obligation to allow junior doctors to take 30-minute natural breaks after approximately four hours’ continuous duty.
NHS trusts are financially incentivised to comply with rest break requirements and other controls on hours and intensity of working. Where staff monitoring demonstrates non-compliance junior doctors are entitled to a Band 3 supplement, a “double time” pay rate.
Dr Magnus Harrison, UHDB executive medical director, said: “Patient safety is central to everything we do in our hospitals and we work hard to ensure excellent training, alongside a good work life balance, for our junior doctors.
“However, this decision clearly has implications not only for the trust but other NHS employers. It is important that we reflect carefully on the judgment and whether it should be appealed. We are working closely with our legal representatives and relevant stakeholders and we will make a decision in due course.”
Lord Justice Bean ruled that Derby Hospitals NHS Foundation Trust’s method of calculation, which assessed whether natural breaks were compliant using expected data instead of recorded data, was “both in breach of the contract on its proper interpretation and also irrational”.
Dr Wijesuriya added: “For those junior doctors on the 2002 contract, banding plays a vital role in ensuring trusts or health boards do not run overly fatiguing or unsafe rotas. Yet the widespread use and incorrect application of monitoring software resulted in trusts failing to pick up issues with working conditions, and potentially weakening the protections afforded to junior doctors in their contracts.
“These protections were put in place because it is recognised that junior doctors working long hours, in a system under pressure, with no provision for even a short break will be left exhausted.
“Throughout this case the BMA been clear that is it vitally important that working hours and the ability to take breaks are properly monitored, rotas are compliant, and sanctions enforced where trusts or health boards have not ensured that there are safe working practices in place.”
UHDB has until 9 August to appeal to the Supreme Court. At the time of publication Allocate Software was preparing a statement.
Chamberlain – v- Cambridge and Peterborough Foundation Trust (Fulborn Hospital) is identical case where the ET found the NHS guilt and ordered full compensations to paid off to the four claimants junior doctors