Examination of Witnesses (Questions 160
- 179)
WEDNESDAY 25 FEBRUARY 2004
MR JAMES
JOHNSON, DR
PAUL MILLER
AND MR
SIMON ECCLES
Q160 Baroness Howarth of Breckland: Looking
at an evidential base about how people learn and the best way
to input the information you are meant to give your junior doctors,
could it not be said that focusing training in a better way than
learning at Nellie's knee could be an improvement and that the
Working Time Directive, as the trade unionists said to us earlier,
has really forced changes which might actually improve the service
rather than cause difficulties.
Mr Eccles: With regard to training, yes, I hope
you are right and I certainly believe your point is very well
made that this is an opportunity to improve training massively.
The difficulty is the amount of time it takes to train a doctor,
not for the doctor receiving the training, but for the trainer
giving that training. Service to patients is much slower when
training is taking place; quite rightly and appropriately so and
when pure training is taking place, that person is not available
to deliver any service to patients necessarily; it depends how
it is done. That effect on elective targets is going to be really
significant, if the envisaged plan of halving the number of years
as well as reducing the number of hours is going to result in
the enormous increase in training time which it will require.
I am completely with you and I hope the training will be much
better, but if they do not do something about numbers of consultants,
how on earth are we still going to treat patients at the same
time?
Baroness Howarth of Breckland: By managing
the change.
Chairman: Thank you very much. Could
we go on to the question of the senior hospital doctors? We talk
about doctors and training and most of the evidence we have refers
very much to that. There also potential effects for senior doctors
which could be significant also.
Q161 Baroness Brigstocke: The BMA and the
Department of Health collective agreement on the implication of
the Working Time Directive for senior hospital doctors appears,
from your written evidence, to cover a wide range of grades. Are
they evenly affected or does it lead to particular problems in
different categories?
Dr Miller: It does affect different grades of
senior doctors. We know that historically consultants have always
worked very long hours for NHS patients and some of the statistics
are in our schedule of evidence. In addition to those statistics,
a MORI survey and another survey by KPMG in 1998 found consultants
to be working about 50 hours per week for NHS patients, apart
from hours and hours further up of on-call availability. The review
body last year confirmed that there was no evidence of those 50
hours a week being reduced. That is for consultants. Separately
a survey of staff and associate specialist grades, which are the
other grades covered in the senior hospital doctors, found that
35 per cent of them worked in excess of 48 hours a week. The further
thing to add to that is that the staff and associate specialist
doctors are the ones which are more likely to be affected by the
SiMAP ruling, because they are more likely to be resident
on call in hospitals.
Q162 Baroness Brigstocke: These figures
are rather frightening. What I wonder is, if you are a consultant,
presumably you are going to have to do a lot of work just reading
and keeping up with your subject, apart from anything else. Does
that get included in the 48 hours?
Dr Miller: That kind of work was probably not
included in these surveys.
Q163 Baroness Brigstocke: Are these hours
worked by consultant only the NHS hours or do they include their
private practice? It is a bit like having two jobs, as we were
mentioning earlier.
Dr Miller: The hours of work I have quoted in
all cases refer only to work for NHS patients, they do not include
any work which might be done separately for private patients.
Private work is not employed work and does not contribute to the
Working Time Directive.
Q164 Baroness Brigstocke: They count as
being self-employed.
Dr Miller: Yes.
Q165 Baroness Brigstocke: Although we heard
earlier this afternoon that if you were employed by two different
people, you would not legally be able to work more than 48 hours
with the combination of the two, in the case of this, if you were
on your NHS work for 48 hours plus, you could still be doing consultancy
work because you are self-employed. It sounds odd.
Dr Miller: That is the case. Private work is
self-employed work and does not count towards the directive limit.
I should perhaps bring in that in October last year the BMA consultants
committee and the Department of Health, agreed a new contract
for consultants, part of which is a very clear, very specific
code of conduct on private practice, which ensures no conflict
of interest between work for NHS patients and work for private
patients. It also revolves very much around transparency and accountability
of work done by consultants. That was something which the consultants
committee signed up to on behalf of consultants and the majority
of consultants voted for it. However, it is running into problems,
I have to say, because to transfer to the new contract consultants
have to give a formal expression of interest to their chief executive,
but it is contingent upon agreeing a job plan of their duties
and responsibilities to the NHS. The long hours worked have already
been mentioned and it is quite clear from all around the country,
every part of England, that trusts are being very wary; they are
not willing to sign up to this new contract for consultants because
of the cost of paying for the hours which are being worked. It
is absolutely clear that guidance from the Department of Health,
which is coming down through the strategic health authorities,
is pretty much not to pay for the long hours and to insist, demand,
force, the consultants to work fewer hours. You will immediately
see the relevance of that to the Working Time Directive issue,
which is that if that is carried through by the Department of
Health, then not only will consultants be absolutely unable, even
if willing, they will be prevented from helping with the Working
Time Directive issue and the situation will be worse than it is
at present because they will be forced to cut their hours beyond
that which they are perhaps willing to work.
Q166 Lord Harrison: In your general research
work do you have an average of the number of hours that a consultant
might typically work in the private sector, which the Committee
could use as a ballpark figure?
Mr Johnson: It is very difficult. Only half
the consultants work significantly in the private sector at all.
Beyond that there is absolutely every range from a few minutes
to significant amounts of work.
Q167 Lord Harrison: Yes, but has any work
been done by you for that half which is involved? Do you have
a feel for the number? I think the Committee would find it extremely
useful. Do you see what I am driving at? We would need to say
that for doctors who work the 58 hours or whatever we then have
to add figure X, do we not?
Dr Miller: All I could say on that one is that
whilst about one half are said to do any private work whatsoever,
only one third of consultants have the particular type of contract
which allows them to do any really significant amount. By significant
I mean earning only one tenth of their income from the private
sector. Given that private rates are considerably higher than
NHS rates, you will appreciate that is very small. To trigger
the different contract is a very small number of hours a week.
Only one third of consultants have that kind of contract at all.
I do not have a specific average.
Q168 Lord Harrison: You do not. Would it
not be possible to get hold of this?
Mr Johnson: The answer to the question is that
the average figure would be extremely low, but it does conceal
a very, very wide range.
Q169 Earl of Dundee: You write that the
BMA are aware that NHS trusts put pressure on senior doctors to
opt out of the WTD. What evidence do you have of this and how
widespread a problem is it?
Dr Miller: Of late and in connection with the
new contract, I have done many hospital meetings around the country
and almost everywhere I have been I hear that consultants are
working long hours, well in excess of the Working Time Directive
and are under considerable pressure to continue those hours, largely
unpaid, to keep services going. Admittedly that is anecdotal evidence.
On the other hand earlier this month in the British Medical Journal
job advert section we had a job advertised as requiring someone
to work 52 hours a week. There is anecdotal evidence from meetings,
but there is concrete evidence from job advertisements requiring
people to work in excess of the Working Time Directive.
Q170 Earl of Dundee: If there is anecdotal
evidence that it is happening, do you have a solution to enable
senior doctors not to be under so much pressure from NHS trusts?
Dr Miller: That was meant to be part of the
provisions of our new contract which would demand accountability
of consultants, when they were meant to work for the NHS, where
they were meant to be working and in return provided for them
to be paid for their NHS hours. Unfortunately, all too often,
the implementation seems to be pressure to accept a contract which
does not pay for those hours, but expects consultants to continue
working unpaid. The solution was meant to be in the contract,
but it is being ill implemented.
Q171 Baroness Massey of Darwen: Are NHS
trusts worried about claims from patients and patient aggravation?
Are they worried about their own targets and not achieving them
if doctors cannot work the length of time?
Mr Johnson: They are very worried indeed that,
if, for example, senior staff, who are not traditionally resident
have to spend more of their time looking after the hospitals at
nights and weekends because of the shortage of junior doctors—the
48-hour week in full applies to all doctors who are not in the
training grades and has done for about three years—then
the access targets will probably fall apart completely if they
have to take the main workforces during the day and say that they
now have to do some of that work at night. They are very anxious
that does not happen.
Q172 Baroness Massey of Darwen: Are there
other targets which might be affected?
Mr Johnson: There is a huge number of targets
related to outputs, not just waiting lists.
Q173 Baroness Massey of Darwen: Would they
be missed?
Mr Johnson: If there are not the people to do
the work, inevitably, yes.
Q174 Lord Harrison: Still on reference periods,
I would point you to your paragraph 14 which includes two sentences
which refer to a practice which you think is beginning to happen
in terms of rotation, whereby a period of a low intensity post
might be placed in order to make the numbers come right at the
end. Are you saying that is happening and therefore the consultants
are under-used? Or are you saying that is put in the job specification,
but still they are working at high intensity?
Mr Eccles: This applies only to training grades
who are on fixed patterns of rotation. What we have seen is that
clearly some bright HR spark dreamt this one up, that you can
have a period of relatively low intensity which corresponds rather
neatly with the reference period, or allow the rolling reference
period to cover a period of relatively low intensity, and that
will allow you to gain a short period of absolutely hammering
your junior doctors. We believe this is relatively easy to close—it
is contrary to the spirit of the whole reference period idea—and
by applying the reference period either to the 26 weeks or
to the duration of posts, rather than a period of employment,
that loophole is completely closed.
Chairman: We are coming on to the reference
period and I have noted that you have a specific text to which
you attach a lot of importance about how you define the posts
and so on. I have that right in my head and I am sure we will
take account of that when we come to our report.
Q175 Baroness Howarth of Breckland: I want
to go back to the opt-out issue. In talking to the TUC earlier,
we talked about whether or not people should have choice in terms
of opt-out. They then said many people are being pressurised to
opt out and therefore the answer is blanket introduction of the
Working Time Directive. I asked them whether improving good practice,
and whether or not an association like yours could actually do
something about improving managerial practice, would make a difference
and they felt not. Do you think that it is possible to try to
deal with practice where people are not given the proper choice
under the legislation and are being forced to sign contracts with
longer hours? Or do you think the only answer is the total implementation
of the directive?
Mr Johnson: The answer is not the total implementation
of the directive. We have to remember here that we have patients
to look after. If you apply a directive like this to airline pilots,
the worst thing that happens is that the plane does not go. If
there is someone who is really sick and needs to be looked after
and there is no-one else to do it, you cannot possibly have a
situation where you say "This isn't possible. I'm off".
It is just inconceivable that a doctor could take that attitude.
That is not the answer. That does not in any way diminish our
view that doing this by coercion is entirely wrong.
Q176 Baroness Howarth of Breckland: Do you
think there are ways it can be managed by your association?
Mr Johnson: Indeed, in fact the whole "Hospital
at Night" project, which we were talking about earlier, is
to do precisely that.
Mr Eccles: Junior doctors are concerned at the
opt-out at the moment, and we are entirely supportive of the line
that the opt-out should be voluntary, but to opt out of 48 hours
seems more sensible. The average working week in this country
is coming close to 48 hours as it is and doctors have historically
always worked long hours. To opt out of 58 hours, which would
apply to junior doctors from August, seems daft to us. By all
means keep it, but keep us out of it for the time being.
Dr Miller: We certainly think that any opt-out
must be absolutely voluntary and without coercion on the individual
involved, particularly those in vulnerable positions. One of the
most vulnerable positions is when you are applying for a job,
so I certainly think it is iniquitous to be allowed to advertise
a job which is beyond the 48-hour limit and requires anyone applying
for that job to sign an opt-out. That is completely unreasonable.
Q177 Lord Colwyn: Two doctors doing the
same job, one who had signed the opt-out and one who had not would
actually earn the same salary, would they not?
Dr Miller: Under our new contract they should
not. There is nothing to stop someone voluntarily opting out and
contracting with their employer to work longer hours. The problem
I alluded to earlier is that with the steer they are getting,
trusts seem all too often to be expecting people to sign up for
contracts for just 40 or 44 hours and yet to carry on working
much, much longer hours.
Q178 Lord Howie of Troon: I think I ought
to declare a kind of interest in the sense that I spent Monday
afternoon in the Royal Free Hospital at Belsize Park having my
eyes sorted out. I was treated extremely well and the coffee was
quite delightful; so were the biscuits, by the way. Let me turn
to the reference period. You tell us that there are difficulties
in applying the reference period for calculating the actual working
week because of the differing rotas which doctors are obviously
obliged to work. You tell us in addition that this has created
a loophole, which some—presumably not all—NHS trusts
are using in an attempt to breach the working time limit legally.
Is this a significant problem? It is a real one, but is it significant?
Mr Eccles: Yes, I believe it has the potential
to be a significant problem. We have become very aware over many
years that when a new wheeze of this sort crops up, it spreads
through the NHS as being quite a neat way of solving a tricky
problem and before you know it, everybody is having a go. We think
that if we can agree a definition of the reference period around
posts rather than employment with the Department of Health and
enshrine that in the terms of conditions of service, it keeps
entirely to the spirit of the directive, by not having over-tired
doctors and therefore safe patients and causes no deleterious
effect.
Q179 Lord Howie of Troon: Are you hopeful
that this can be agreed?
Mr Eccles: We are trying. It is quite hard to
get the Department of Health to sit down and talk about these
things.
Lord Howie of Troon: I have a fair background
of the trade union business myself and know what you are talking
about.
Chairman: Thank you very much. As I said
earlier, paragraph 13 of your memorandum is engraved on my heart
and that is the one which covers this point. No doubt we will
come back to it and maybe we will have some influence on the matter.
Can we move on now to the problems which were added to the Working
Time Directive by the two judgments, the SiMAP and Jaeger
judgments, one of which was quite a long time ago, as you rightly
stated and the other one more recently. We would just like to
explore these points a bit, because we are bound to have to report
on what we think about them.
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