Memorandum by the NHS Confederation
INTRODUCTION
1. The NHS Confederation welcomes the Committee's
inquiry into the EU Working Time Directive and the opportunity
to present evidence.
2. The NHS Confederation is a membership
body that represents over 93 per cent of all statutory NHS organisations
across the UK. Our role is to provide a voice for the management
of the NHS and represent the interests of NHS organisations. We
are independent of the UK Government although, of course, we work
closely with the Department of Health and the devolved administrations.
The Confederation is expecting to take over responsibility from
the Department of Health for national negotiations over pay, terms
and conditions for NHS staff in England later this year.
3. Our evidence sets out our general views
on the Directive but then concentrates on the implications of
the SiMAP and Jaeger judgments
4. Implementation of the Working Time Directive,
particularly in respect of doctors in training, is a crucial issue
for our member organisations and has been highlighted by them
as one of the key operational risks for the health service this
year.
5. In summary, NHS organisations support
the intent and provision of the Directive itself which, they believe,
is important in terms of staff and patient safety and has also
provided a catalyst to examine the optimum way to provide care.
But they do have real concerns about the implications of the subsequent
SiMAP and Jaeger judgments which significantly extend
the practical implications of the Directive and, they believe,
could seriously impair their ability to provide appropriate patient
care.
SUPPORT FOR
THE DIRECTIVE
6. NHS organisations in the UK fully understand
and support the Directive. They recognise the adverse health and
safety effects of long working hours on staff and, equally, the
serious safety implications for patients.
We recognise that initiatives to restrict working
hours for doctors in training are not simply a European phenomenon.
Similar moves are underway in Australia, Canada and the USA. In
all cases these are based on a recognition of the safety implications
for patients and staff themselves of doctors (or other staff)
working excessive hours.
7. We therefore acknowledge that previous
working arrangements in the NHS for doctors in training are no
longer acceptable for staff themselves and for service provision.
The NHS has already made major reductions in the working hours
of doctors in training through the "New Deal" arrangements
and is continuing to do so.
8. We also recognise that the requirement
to address this issue has been a catalyst for NHS organisations
to take a detailed and radical look at how their services are
best configured and provided. Planning and safety considerations
should probably have led NHS organisations to considering these
issues at some point but WTD considerations have prompted them
to act now. This has already led to more effective and efficient
use of resources and better service provision in many hospitals.
The Department of Health's "Hospital at Night" project
has produced remarkable findings in terms of better utilisation
of resources and provision of services.
9. We believe that the very large majority
of NHS organisations would have met the original requirements
of the directive by August 2004 although a number, particularly
some District General Hospital in rural areas, might have had
difficulties.
10. However many NHS organisations do have
major concerns over the subsequent judgements in the SiMAP
and Jaeger cases. These significantly extend the practical
implications of the Directive to the extent that many organisations
may find it difficult to provide adequate patient care in compliance
with the Directive.
SIMAP—DEFINING
TIME RESIDENT
ON CALL
AS WORKING
TIME
11. The effect of the SiMAP decision,
ratified in the Jaeger case, is to make the planning of
work rotas for doctors in training extraordinarily difficult for
many organisations. Many NHS organisations, particularly smaller
or medium sized hospitals simply do not have enough doctors to
staff rotas. The problem is particularly severe in certain specialties
where 24-hour cover is required.
12. Individual doctors who can currently
cover 72 hours of the week through on-call rotas will only be
able to cover 56 hours. This means that rotas that are currently
typically formed of five or six doctors would need eight to 10
doctors if no other factors change. In many hospitals, and for
many specialties, such rotas are not likely to be possible. It
seems very unlikely, therefore, that current rota working will
be compatible with the EWTD from August 2004.
13. In seeking solutions trusts are having
to ensure that most senior house officers, and those specialist
registrars who are resident on call, move to new working patterns
such as shift systems. Alongside this change, trusts are seeking
examine the way all their services are delivered and to involve
the whole healthcare team in the delivery of services. This means
a close examination of the tasks that are undertaken at night
and an assessment of who is the most appropriate person to do
the tasks (if indeed they need to be done at all at that time).
This means challenging assumptions over what have been regarded
as "doctors' tasks" or "nurses' tasks". As
we acknowledge in paragraph 8 above this has prompted innovative
and positive solutions in many areas.
14. However there remain a proportion of
hospitals where, even with changes in working patterns and reorganisation
of the way services are provided, severe difficulties will remain.
Inability to solve these problems is not a case of management
failing but fundamental difficulties where the figures just do
not add up. These trusts will not be able to continue to provide
safe medical care in particular specialties if they seek to introduce
compliant rotas. This would clearly put NHS organisations in the
unacceptable position of either having to damage patient care
or failing to comply with the Directive.
15. In these cases the NHS will only be
able to provide a safe standard of care by reconfiguring services
in a way that may not be compatible with local community wishes
or the intent of Government policy as set out in "Keeping
the NHS Local—a New Direction of Travel".
16. A further concern that has been articulated
by the medical profession itself but is supported by NHS employers
is over the potential damage to the training of doctors. The profession
is concerned that in undertaking the rota patterns now required
to meet the Directive doctors will lose access to daytime training
opportunities with consultant doctors. Whilst, as with the case
of service provision, this is already leading to innovative and
radical new approaches to training, we do share the anxiety of
the medical profession that the Directive should not provoke unintended
adverse consequences in this area.
JAEGER
CASE—COMPENSATORY
REST
17. We are also concerned at the apparent
implications of the Jaeger judgement on the provision of
compensatory rest with the ruling that compensatory rest should
be taken as quickly as possible after the end of the working period.
This implies that should a doctor be called into work from home
whilst-on call s/he should take the compensatory rest the following
morning and thus would disrupt any scheduled work.
18. NHS organisations recognise the quite
proper requirement for compensatory rest. However until the Jaeger
judgement they were working with their doctors in training to
arrange proper compensatory rest arrangements within the flexibilities
allowed under derogation to best fit local circumstances. The
NHS Confederation was about to publish guidance on compensatory
rest produced in conjunction with the Department of Health and
the BMA Junior Doctors Committee that would have set out the range
of possible approaches to compensatory rest that could have been
taken by trusts.
19. However, as we understand the position,
those flexibilities are now no longer available. It will not be
sufficient to give the compensatory rest at a slightly later time
or aggregate the rest available to an individual over a period
and assume that the minimum requirements have thus been met. We
will not, therefore, be publishing our proposed joint guidance.
20. The new ruling will cause a further
considerable difficulty for the planning and delivery of services.
COMPATIBILITY BETWEEN
WORK AND
FAMILY LIFE
21. In the past the health service has been
poor at recognising the need to balance work and home life. The
requirements for service provision coupled with training arrangements
based around a medical culture of long-hours for junior staff
meant home requirements were often squeezed out.
22. That position is changing as societal
expectations change. The NHS Confederation recognises the need
to seek to maintain an acceptable balance between work and home
life. We acknowledge that the Working Time Directive requirements
play a part in ensuring a proper work/home balance. However it
is important to recognise that NHS organisations have already
done a great deal in seeking to improve the working lives of staff.
One of the aspects of the Improving Working Lives initiative,
which we believe is contributing to improvements in staff morale,
is to ensure a reasonable work/home life balance. In addition
one of the key benefits of the increased numbers of medical and
nursing staff is to reduce workload pressures on existing staff
and, hence, contribute to an improved work/home life balance
23. Whilst the NHS has taken major strides
in improving the work/home life balance it is important to remember
that the NHS does have to provide 24 hour, 365 day a year services.
The demands of patient care do require staff to work unsocial
hours. This obligation will continue and, indeed, pressures to
increase access to services are likely to increase rather than
diminish.
CONCLUSION
24. In conclusion the NHS Confederation
would repeat that NHS organisations in the UK fully support the
original intent of the Directive and are committed to providing
safe working arrangements for staff and safe services for patients.
However the subsequent changes to the Directive will cause real
problems for NHS organisations. The result may be that some trusts
will not be able to continue to provide adequate services for
patients whilst complying with full requirements of the Directive.
10 February 2004
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