Dear Doctor

Tough new regulations governing junior doctors’ working hours have brought major operational changes and forced hospitals to review working practices on the wards.

But health bosses and academics believe that the European Union’s Working Time Directive could make the health service more efficient and lead to a more highly skilled workforce.

In August, the Working Time Directive, which puts a 48-hour limit on average weekly working hours, was applied to junior doctors with the restrictions to be phased in gradually. The phase-in started with the introduction of a 58-hour week, falling to 56 hours by July 2007 and 48 hours by July 2009.

Junior doctors can opt out of the time limits and employers must keep a record of who has agreed to work longer hours. However, the European Commission is consulting on whether the directive needs to be amended in this area.

Under the new regulations the working time limits include all the time junior doctors spend resident on duty, irrespective of whether they are sleeping or working.

Employers breaching the rules can be fined up to £5,000 by the Health & Safety Executive and taken to employment tribunals by junior doctors.
Stephen Brown, partner and head of the employment and benefits team at London-based Latham and Watkins, says: “The crucial matter is whether junior doctors’ rest time and the time spent in their rooms is going to count towards their working hours and whether this can be challenged.

“Assuming the opt-out is available by law, how many doctors will sign up for it? It may be that junior doctors’ training will have to be lengthened or there will have to be faster training. The other option is to recruit more doctors,” Brown says.

“Junior doctors’ hours have an impact on staffing rotas and I can’t see a simple way round that,” he adds.

Employment Lawyers Association chairman Raymond Jeffers says: “Whether the opt-out clause stays or goes is a political question. There was a time when it seemed the opt-out would go because other European countries are not interested in it. But now it could go a number of ways. The EC states that the opt-out might be kept but there might be strict conditions to follow.”  

The issue of whether time spent “on call” counted towards working time was tested in the European Court of Justice in the cases of Landeshaupstadt Kiel v Jaeger and the Spanish Sindicato de Medicos de Asistencia Publica (SIMAP) challenge. In both instances, the European Court of Justice gave guidance on whether time spent resting, but “on call”, should be included in working hours. 

In Landeshaupstadt Kiel v Jaeger, a doctor in Germany argued against the fact that simply being on call or on standby was deemed to be rest time, except to the extent when he was actually called out and performing his duties. He brought a claim alleging that all hours spent on call should be classed as working time.

The court held that a period of call duty where a doctor remained at the hospital must be regarded in its entirety as constituting work time, even though during that period the doctor may sleep and his services may not be required.

In SIMAP, the judge also ruled that time spent on call by doctors must be regarded in its entirety as work time if they are required to be present at the health centre. “The fact that doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance,” the judge decided.

Staff at the NHS University have been working on learning and support programmes to assist trusts in coping with the directive, including a programme to train nurses, physiotherapists and other staff to carry out tasks traditionally only handled by doctors. The university’s director of school, Professor Stephen McNair, believes, in the long term, that the directive will create a more efficient health service with more highly trained staff.

“The NHS is not using its talents as effectively as it could and there is a sense that there are a lot of experienced people with relevant skills but they are not being put to use. We are designing programmes to change roles and ensure everyone knows what they are supposed to do. I think the result of the Working Time Directive will be a greater use of skills.

“We have demarcation lines that are not as relevant as they once were. We will get better and fill in some of the gaps by additional training, but along the way it will be fairly bumpy for the trusts,” McNair says.

London’s University College Hospital Trust, which employs 6,000 staff over eight hospitals, found complying with the directive a challenge. It achieved 100 per cent compliancy at the beginning of September after investing more than £1m in recruitment. Director of workforce David Amos says: “With a lot of competing pressures, we began to concentrate on what needed to be done as we entered 2004. We started recruiting for certain posts in the summer.”

A ‘Hospital at Night Plan’ – a programme designed by the NHS University – was introduced that aims to provide integrated, cost-effective team-working arrangements to meet new regulations. A flexible team consisting of administrators, specialist nurses and a doctor providing specific cover, offers an alternative to having a number of doctors all having to be on call at the same time.

“Some people were already compliant but we had to unravel every rota and carry out regular monitoring of doctors’ activities in some considerable detail to see what people were doing and their current working patterns and come up with new ones so we were  compliant,” Amos says.

“We had to move away from the traditional system of monitoring doctors’ diaries twice a year and do it on a continuous basis,” he adds.
Amos says that early evidence, from people who might have been opposed to the changes, suggested it had been very successful and was giving the appropriate level of care. “The directive has meant we have all made large investments, increasing medical staff, increasing training and improving skills. Ultimately, that should lead to a better health service with a better level of care,” he says.

The trust had used the opt-out for interim periods while staff were being recruited to their new posts but did not think it should be used as a “substantial tool”.

“I think it is a useful facility to have in the real world,” Amos says, “but it should not be used as an alternative to implementing sustainable, long-term plans.” 

North Cumbria Acute Hospitals Trust started training its staff two years ago to take on highly specialised roles in a bid to help it meet the directive. In areas such as paediatrics, it trained specialist nurses and introduced them onto the rota system to work with junior doctors and train them. The result is that the trust is 100 per cent compliant and some doctors are now working a 48-hour week.

The trust invested thousands of pounds recruiting more than 20 new members of staff and set up a 12-hour shift system, insisting doctors leave the hospital and go home at the end of their working hours to ensure they did not break the directive.

Department of Health-approved software helped it to create rotas that allow it to monitor doctors’ diaries twice a year and make sure it maintains compliance.

But on-call rotas are still in place for some of specialities, such as ophthalmology, where staff are rarely called out. Christine Lightfoot, medical staff manager, says: “We had to wake up to the legislation and go with it. It was changing the whole way of working in a lot of ways. Some people said we should wait until this year, but luckily we had a good senior management team who realised how important it was.

“We consulted the junior doctors all the time and they are happy with the new rotas because they know, for the next year, when they are working.
“The few complaints we have had have come from the older doctors who are used to working on-call. But it is a case of changing their mindset.”

At Cambridge-based Addenbrookes Hospital Trust new ways of working have also been introduced. Physicians’ assistants relieve junior doctors of some of the tasks they would traditionally carry out, such as taking blood and inserting catheters. This helps ensure continuity of care for patients as the physicians’ assistants act as contact point when doctors’ shifts change.

“It also contributes to the efficient running of the hospital,” says a trust spokesman. “In an audit carried out, 100 per cent of doctors said that it had a positive effect on the performance and running of the hospital.”

In the hospital’s accident and emergency department, nurse practitioners treat and discharge patients with minor injuries or minor health problems. This is helping to streamline the service and make it more efficient, cutting down on waiting times. It also leaves doctors free to treat the more seriously injured or unwell patients.

The hospital’s  x-ray service has reorganised its working hours to offer patients a more flexible and responsive service. And maternity care assistants support midwifery staff and nurses, freeing them up for duties that only they can perform. Breast cancer patients needing reconstructive surgery are referred to the breast reconstruction nurse specialist who provides information and psychological support to patients from first referral, through surgery and on to follow-up.

Feedback from patients has been excellent, says the spokesman, and the nurse’s work has led to increased staff satisfaction. “As her role develops she will be carrying out a wider range of clinical procedures to free up consultants’ time,” adds the spokesman.

“Addenbrookes is fully compliant with the Working Time Directive for junior medical staff. We have done this by establishing new posts and exploring new ways of working. These measures ensure both initial and continued compliance with the directive, and we will continue to look for new ways to create better working lives for our junior doctors and improve services to our patients.”

The Department of Health has carried out a lot of work on the directive with NHS trusts to help hospitals implement it. A spokesman says: “We have been working closely with the British Medical Association and other stakeholders for some time. A handful of trusts have teething problems but patient care will not suffer.”

But the new regulations, while breaking long-held traditions in the NHS, could bring difficulties for some private healthcare providers. BMI Healthcare fears that as junior doctors’ working hours are reduced, hospitals will find themselves needing additional staff and that could leave it facing shortages.

A spokeswoman says: “We employ resident medical officers who come in on a shift basis from a pool from which we can draw. If there is a greater demand for doctors that pool may become smaller and it could have a knock-on effect across the whole industry. It’s early days yet and we shall have to see what its effect will be.”

Legal cases

Landeshauptstadt Kiel v Jaeger (ECT) C-151/02
SIMAP v Conselleria de Sandid y Consumo de la Generalitat Valencia (ECT) C-303/98

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