A medical emergency?

The NHS must cut junior doctors' working hours by August this year or find itself in breach of the Working Time Directive. We look at the issues involved and the steps being taken to hit the target.


Key points

  • The Working Time Directive and two related European Court of Justice rulings on working time present huge problems for the NHS (and the healthcare systems of other countries).

  • The Department of Health has introduced major changes to the working patterns of medical staff and introduced a series of pilot projects aimed at finding ways of complying with the Directive and maintaining services.

  • Although the Directive covers doctors in training from August 2004, many medical organisations fear that the UK government has not done enough to comply by this time.

    More than a decade after the Working Time Directive1 was agreed on 23 November 1993, it remains, in the words of the Royal College of Physicians, a "time bomb" ticking beneath the NHS. Even the Department of Health admits that extending its provisions to doctors in training in August 2004 will be "a huge challenge".

    The Directive, implemented in England, Scotland and Wales by the Working Time Regulations 1998, sets a 48-hour limit on the average amount of "working time" that a worker can do over a seven-day period and creates entitlements to breaks, rest periods and annual holidays.

    Although the "48-hour week" is the Directive's best-known provision, it is the rest requirements and two European Court of Justice (ECJ) rulings on what constitutes working time that will cause the biggest problems for the NHS in the short-term, since they make it almost impossible to run hospitals as they have traditionally been run.

    And the UK is not alone. Germany, France, the Netherlands and some of the countries now joining the European Union have all indicated that the ECJ rulings in particular will cause expensive and possibly insurmountable problems for their healthcare systems (see European Commission faces revolt as more countries adopt UK opt-out ).

    The battle to reduce the hours of doctors in training (more commonly known as junior doctors) in the UK has been a long one. In 1991, when 100-hour weeks were common, the British Medical Association (BMA) and the government signed a "New Deal" on hours, pay and working conditions. It aimed to reduce the number of hours that junior doctors were on call or contracted to work to 72, and to limit the number of hours they actually worked to 56.

    The present government confirmed its commitment to the New Deal in 2000, in the face of threats of industrial action over continued non-compliance and as part of negotiations on a new contract and pay structure. Penalty payments were introduced for non-compliant NHS trusts and DoH returns suggest that only 20% of junior doctors' jobs are still non-compliant.

    However, the BMA junior doctors' committee says NHS trusts - effectively, the employers - don't monitor hours accurately. In July 2003, it claimed half of a cohort of 487 doctors that it has been tracking since 1995 was still working more than 56 hours per week, with a quarter working more than 70 hours per week.

    When the Working Time Directive is applied to doctors in training later this year, it will cap their average weekly working time at 58 hours - slightly higher than the New Deal limit. This will not be reduced to 48 hours until 2009, at the earliest.

    However, the Directive introduces tougher rest requirements. Under the Directive, workers can carry out a maximum of 13 hours of "working time" and must then have 11 hours of continuous rest, plus 24 hours continuous rest every seven days, or 48 hours every fortnight. (For a detailed comparison of the New Deal and the Directive, with worked examples of shift patterns, see www.doh.gov.uk/workingtime/derogationtable.pdf)

    The two ECJ rulings have made these provisions harder to apply. In October 2000, in Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (1)2 (known as SIMAP), the court ruled that time spent on call by Spanish doctors working in primary care had to be counted as working time if they were required to be at their health centres.

    In September 2003, the ECJ substantially repeated this judgement in Landeshauptstadt Kiel v Jaeger3 (known as Jaeger), when it ruled that the time a German doctor spent resting but on call in a room provided by his hospital had to be counted as working time.

    Traditionally, UK hospitals have operated on-call residential rotas. "Firms" of doctors, headed by a consultant, deal with all cases within their speciality over a 24-hour period. For some of this time, the junior doctors in the firm will be on call but asleep in hospital facilities (the New Deal aimed to give them five hours' sleep on 75% of nights).

    To comply with the SIMAP and Jaeger interpretations, trusts will have to introduce what are known as "full shifts", under which doctors work blocks of 13-hour day or night shifts, with their weekly rest periods fitted between the blocks.

    The Royal College of Physicians (RCP) has condemned the ECJ's judgement as "bizarre" and "counter intuitive". It says older "junior doctors", who may well have family commitments, do not want to work shifts, so the Directive, which was passed as a health and safety measure, will be introduced "against the wishes of its supposed beneficiaries".

    The RCP is also concerned that junior doctors will miss out on training opportunities, a concern that is shared by the Royal College of Surgeons. The RCP's arguments appear to be borne out by the experience of Kettering General Hospital NHS Trust (see case study), but other trusts have had more positive experiences of introducing full shifts.

    Dr Kevin Stewart, a consultant physician at the Royal Hampshire County Hospital in Winchester, says his employer, Winchester and Eastleigh Healthcare NHS Trust, made two important changes to try to "future proof" its working arrangements in 2000. It introduced an emergency medical assessment unit (EMAU) and it started moving its junior doctors onto shifts.

    The EMAU runs a "physician of the week" system, under which consultant physicians take it in turns to see all medical admissions to the hospital. Although they work with whichever junior doctors happen to be on duty, Dr Stewart says the system is popular with consultants because "we all came into medicine to see sick people, not to sit in meetings".

    All the trust's junior and senior house officers work shifts, while medical registrars started adopting this working pattern in October. "Initially, people were apprehensive, but few now would do anything else," says Dr Stewart. However, surgery is "more difficult" and surgical registrars have yet to adopt the new system.

    The biggest problem with full shifts, however, is that the NHS does not have enough doctors to work them. The RCP conducted its own survey of 211 hospitals last year and concluded that 116 did not have enough specialist registrars to provide cover for 24-hour shifts.

    The Department of Health says shifts can be run with fewer registrars than the RCP claims. Meanwhile, it is trying to push Directive as a "great opportunity" to drive forward the modernisation of the NHS, and has funded 18 pilots to show trusts how they can redesign services to improve care while creating compliant rotas.

    The pilots are looking at ways of developing nurses and other workers to take over some of the work done by junior doctors, on new ways of admitting patients, on covering the hospital at night and on redesigning consultant roles.

    As a politically sensitive public service, the NHS is also anxious to know how the actions the wider public will respond to its initiatives. A study1 commissioned by the Department of Health showed that most people were happy with the idea of reducing the working hours of junior doctors. But it also pinpointed some sensitivities for the NHS to address - not least the need to reassure the public that nurses' training and specialist knowledge made them able to take on some of the work traditionally carried out by doctors, and to explain the possible absence of specialist doctors in areas such as paediatrics. The study also found that while people wanted to know about service improvements resulting from changes in working practice, they had little interesting in hearing about junior doctors' working hours. The Department of Health has told NHS trusts: "Overall, the research indicated that communications regarding the WTD should be relatively low-key, reassuring and upbeat."

    Winchester and Eastleigh Healthcare NHS Trust is one of pilot site. As part of its project, it has developed the new role of medical assistant. Seven medical assistants (five whole time equivalents) have been employed so far and trained to "clerk" patients, take blood, order tests, chase up results, set up drips and undertake other routine tasks. Dr Stewart, who helped to write the trust's proposal for pilot funding, says they have had an "amazing" impact.

    However, the RCP says that while the pilots are "welcome initiatives" they are also medium term. They will not "produce robust new models of care, which can be properly evaluated and then safely introduced throughout the UK, by August 2004", it says; "the timescale is simply too short".

    As a result, the RCP has called for implementation of the Directive to be put off for at least six years. Postponement has been rejected by the Department of Health and the BMA, which remains committed to the Directive - while demanding that trusts improve their monitoring arrangements. Dr Simon Eccles, chair of the BMA's junior doctors committee, says: "We support legislation to limit our hours. The government has had six years to get ready for this, so there are no excuses."

    Alastair Henderson, policy manager at employer's organisation the NHS Confederation, also says the Directive "is not going to go away and it would be foolish to think it will". Anyway, he says: "This is not happening because a nasty bunch of Brussels bureaucrats want to do down our NHS, it is happening because it is the right thing to do." He also says it should present "opportunities" to modernise services.

    "Having said all that positive stuff, however", Mr Henderson admits there will be some places where "with the best will in the world, and having done all the right things, the sums do not add up" and there will have to be changes across the local health economy.

    Applying the Directive to junior doctors is going to be a "huge challenge" for the NHS. However, it is worth pointing out that even if trusts are not compliant by August, nothing will happen unless the Health and Safety Executive takes action against them.

    Since this will not happen immediately, hospitals are in no danger of imminent collapse. And the current consultation process on the Directive announced by the European Commission in January, partly in response to the ECJ rulings (see European Commission faces revolt as more countries adopt UK opt-out ) may have bought employers a little more time.

    1. Directive 93/104/EC.

    2. Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana .

    3. "Working time" includes time when on-call doctor is sleeping at hospital (Landeshauptstadt Kiel v Jaeger ).

    4. Reported in Calling Time 4, January 2004, available at www.modern.nhs.uk/workingtime/bulletin.

    This article was written by Lyn Whitfield, a freelance writer on health and social policy, lyn@lynwhitfield.co.uk.


    What is a junior doctor? A short guide to medical grades

    Doctors spend five years at medical school, at the end of which they receive their primary medical qualification and move into post-graduate training as pre-registration house officers.

    At the end of a year, they gain full registration from the General Medical Council, and move into the initial phase of their specialist training as senior house officers.

    Doctors who decide to move into general practice spend two years as hospital SHOs and then undertake at least a year of vocational training as a GP registrar. Doctors who decide to pursue hospital careers spend two or three years as SHOs and then move into higher specialist training as specialist registrars.

    After between four and six years as specialist registrars, they receive a certificate of completion of specialist training (CCST), which entitles them to join the GMC's specialist register and to apply for consultant posts. However, not all hospital doctors become consultants. Some move into staff grade and associate specialist posts either at the end of their SHO years or after completing some higher specialist training.

    The term "junior doctor" covers all doctors in training - ie PRHOs, SHOs and specialist registrars - even though some of them will be in their mid or late 30s, and holding responsible positions.

    Source: British Medical Association.

     


    Case study: Kettering General Hospital trust

    Kettering General Hospital NHS Trust runs Kettering General Hospital, a medium-sized district hospital with 520 beds and a budget of £63.4 million a year. It has roughly 2,800 whole time equivalent staff, 90 consultants and 250 junior doctors to deal with approximately 240,000 inpatients, day cases and outpatients and 50,000 accident and emergency attendances per year.

    Peter Reeve, deputy director of human resources, says most of its doctors already work "full shifts" because these have been introduced over the past two years to make the trust New Deal compliant. The only specialties still operating on-call systems are those that rarely need to call doctors in and which can allow doctors to be on call at home, rather than on hospital premises (for example, ophthalmology).

    Despite this, the move to shifts has not been popular. "If junior doctors are doing nights, they do a week of nights and then take a week off - and they do not like either," says Mr Reeve. "They do not like it because they are always up and awake at 2am and 3am. They may not be working; they may be reading, or doing research or study - but often they don't want to be doing that in the early hours of the morning.

    "They also don't like it because they feel like they are missing out on training or seeing their consultants. One of the problems we have with monitoring hours is that we find junior doctors are often here when they should not be. Those that live on site may wander over to the wards to see if anything is happening, and that makes monitoring very difficult - are they there because they want to be there, or because they have to be there?"

    Kettering General has been taking part in the Department of Health's Working Time Directive pilot programme, testing out new night cover arrangements and staff roles. The pilot concentrated on the hospital's surgical division. A 24-hour, emergency theatre was set up to reduce the amount of routine surgery carried out at night.

    An audit was conducted to find out how often senior house officers (SHOs) in the surgical division were "bleeped", and plans drawn up to reduce this by getting SHOs in general surgery and trauma and orthopaedics to "cross cover" for each other in emergencies. Meanwhile, a nurse practitioner role was developed in trauma and orthopaedics and surgical assistant roles were developed in general theatres to reduce the intensity of work on junior doctors, particularly at night.

    The nurse practitioners and assistants were all in place by September 2003 and have made an impact on junior doctors' hours. But, the trust found it difficult to engage clinicians and to get consensus on the new rota.

    One problem has been that the new rota requires consultants, as well as junior doctors, to work differently. Consultants no longer have their own teams or firms of junior and senior house officers, who carry out operations and tour the wards together. Instead, they must work with whichever junior doctors are on shift.

    "Surgeons are probably the least flexible of the doctors and establishing a system where they do not have their own firm, but cover for whoever is there, is extremely difficult," says Mr Reeve. "One lesson we learned from the pilot is just how long this sort of change takes."

    He says planning for compliance with the Directive is picking up speed as trusts realise how difficult it is going to be. Kettering General Hospital NHS Trust has created a project board to involve its most senior general and medical managers and the regional deans (who oversee medical education) in the issues that are arising, including how to extend its pilot work and improve clinical engagement.

    At the start of December 2003, the trust submitted a report to its local strategic health authority on how it can achieve compliance with the Directive. Mr Reeve, who was responsible for the report, says: "We have been told that, nationally, no more doctors are available at SHO grade, so we have to look at alternative ways of providing cover, particularly after midnight."

    This will mean more extended roles for nurses and other staff. However, this is easier in some specialties than others. In obstetrics and gynaecology and paediatrics, for example, Mr Reeve points out that "when something goes wrong, you tend to need somebody quite senior to deal with it".

    This has prompted the trust to look further at how it uses its consultant cover. There are other knock-on effects. Moving senior nurses into new roles means developing more junior nurses to do their work, for example. Eventually, the trust will need to recruit more nurses - and the NHS is short of them.

    The new arrangements are also expensive. Mr Reeve says Kettering General Hospital trust has "no intention of shutting services as a result of the Directive", but achieving compliance is likely to cost about £1 million.