Examination of Witnesses (Questions 180
- 183)
WEDNESDAY 25 FEBRUARY 2004
MR JAMES
JOHNSON, DR
PAUL MILLER
AND MR
SIMON ECCLES
Q180 Baroness Howarth of Breckland: It looks
pretty gloomy even without this extension of the directive. We
should just like to know a little bit about how much worse you
think the said rulings are likely to make the situation. In your
memorandum, you say that the requirement for compensatory rest
to be taken immediately before the next period of substantive
work is "unworkable and in most cases unnecessary".
That is in your memorandum. Is it also the view of some of your
counterparts in Europe that it is unworkable? If that were so,
would it be possible for you to join with the European Union and
come to some collective agreement which was practical and could
be a legally-watertight solution?
Mr Eccles: I am less certain on your last point,
but what we are hoping to achieve on the SiMAP and Jaeger
rulings is a common-sense solution. We were discussing this walking
along the corridor and I was reminded that we are talking about
European law here, but leaving that to one side, the essence of
the SiMAP ruling is that every hour spent in hospital now
counts as work and we are broadly supportive of that. The vast
majority of doctors obtain only a few hours rest at best overnight
and to do that in an on-call room with a bleeper next to you and
a phone which might ring at any time is an entirely different
situation from being able to sleep in your own bed at home when
you may or may not be disturbed. We would be supportive of that
and we would think that was an overdue change. The Jaeger
ruling, exactly as you have outlined, saying you must have your
rest before your next period of work, is taking things a step
too far. What we need here is some sort of common-sense approach
around qualitative rest. So in two examples I can give you, the
consultant orthopaedic surgeon who has had eight hours of rest,
but gets called before the end of his 11-hour period and asked
to come into the hospital to assist with an operation or to guide
his junior, would have been fully rested. If we take Jaeger
judgment to its logical conclusion, he would then go home again,
have some more rest, cancelling his morning clinic, before being
able to come back to carry on work. This is nonsense. The opposite
of that is a paediatrician whose junior has a sick patient on
the ward, does not require him to come in, but disturbs him every
hour to hour and a half with a phone call to give a progress update.
This is a not an unknown situation. Theoretically he has only
got to come in about 60 minutes late that morning, but in reality
he is completely shattered and would frankly be a danger if he
were to work that day. We would like some measure of qualitative
compensatory rest. In many instances we believe it would be entirely
sensible to accrue that and to take it in blocks of rest which
have a far less deleterious effect on patient care, but comply
with the legislation. As we understand it, the Danes have put
forward a proposal that that rest should be taken within 72 hours,
which seems commendably sensible to us. We are trying to work
with our colleagues in Europe to come to a sensible agreement
on this. Roughly: SiMAP yes, Jaeger no, if one can
be over-simplistic.
Q181 Baroness Howarth of Breckland: Are
you talking to the Department of Health and other colleagues in
order to try to achieve that change through the EU processes?
Mr Johnson: The UK, via the Department of Health,
has joined other countries, specifically Germany, Denmark and
Ireland, to approach the European Commission with a view to changing
the law on these matters. This has gone out to a six-month period
of consultation in Europe and given the speed at which Europe
works, it will be virtually inconceivable that the law will be
changed before some time in 2005; it may well take longer than
that and it may well not happen at all. That is the position:
there is a coalition of countries which is looking at these two
judgments because they affect all countries, but they affect us
more because we have fewer doctors.
Q182 Baroness Howarth of Breckland: What
is the practice now in those sorts of situations? Are people just
applying common sense or the laws?
Mr Eccles: Yes; common sense. To a certain extent
I speak here on Paul's behalf for consultants, but also for juniors
who are on call from home. If you have had a particularly bad
night, you do not work the next day if you are unsafe to do so
and your colleagues cover. That has been an established matter
of principle for some considerable period and we are used to doing
that. If your total actual hours of work are somewhat higher because
you are disturbed a little each on-call, then you tend to take
a half day a week and that brings the whole thing down to a sensible
average to allow your hours to be reasonable. What I would mention
on the collective governments' approach is that they are proposing
to get rid of the SiMAP ruling as well, which we think
would be deleterious to patient care. The two are very different
pieces of legislation.
Mr Johnson: I have to say, as always, as nice
as Simon has just painted the picture, we very often have to come
in and do the operating list even though we have been up the night
before, because there is no-one else to do it. It is either that
or you send all the patients home. It would be nice if it were
always like that, but in fact it often is not, particularly for
consultants.
Q183 Chairman: I think that your calculation
that it cannot be before 2005 is probably very accurate, because
we have European Parliament elections as well in between. We are
quite attached to trying to influence the European Commission's
future proposal—not the decision but the proposal—and
there are so many problems about the Jaeger judgment, that
it is not impossible we could get a proposal on the table which
would change the effect of the Jaeger judgment, which would
perhaps be valuable for both you and for us. We are thinking practically
as well here. On the SiMAP and Jaeger judgments,
do you think they will be extended more widely in terms of covering
doctors who are non-resident, but on-call? We all understand that
there are all sorts of categories of working in hospitals and
elsewhere. Do you think it is going to cover a wider range before
we have finished?
Mr Johnson: That is probably more one for the
lawyers. It may do. We would stress that the real problem here
and the reason why there will be a crisis in August and there
is not a crisis now is because this suddenly extends something
to resident doctors. It is the time they spend resident, even
when not working, which is suddenly counted against the hours.
At the moment, they are not meant to work more than 56 hours,
but this is going to change to not being resident for more than
58 hours and that changes the complexion of the whole thing completely.
Whether or not it might be extended to being on call from home
seems probably unlikely, because we are looking at whether it
should be reduced even for the doctors who are resident, because
of the review we have just been talking about. The real crunch
is about the residence issue and how you regard it in terms of
the 48-hour week.
Chairman: Thank you very much. We should
like to thank you very much indeed. It was extremely helpful on
a subject which we think is very important, which is why we set
off to look at it. Having just been created as a committee, we
thought that was our number one priority. We will come forward
with a report in the not too distant future; we want to get something
on the record. I would just remind you that you will receive a
copy of the transcript and if you have any corrections, or anything
you want to deal with, please do that and send it back rapidly,
if you could; within seven days if possible, because we are keeping
moving here. I am not sure whether we are breaching regulations,
but we are certainly working quite hard and quite long hours,
which is traditional in the House of Lords. Thank you very much
indeed.
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