Select Committee on European Union Ninth Report



3.1.  In the SiMAP case a Spanish court referred five questions to the European Court of Justice for a preliminary ruling on the interpretation of the Directive. The national court wished to know inter alia whether time spent by doctors on-call, either at medical centres or under a contact system, should be regarded as "working time" and therefore whether that time should be included in the calculation of working hours for the purposes of the 48 hour maximum weekly working time. The Court ruled that "time spent on-call by doctors in primary health care teams must be regarded in its entirety as working time and, where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be at the health centre". If they merely had to be contactable at all times when on-call, only time linked to the actual provision of primary health care services must be regarded as "working time". [46]


3.2.  The Jaeger case also concerned the definition of doctors' working time. Dr Jaeger, a hospital doctor, carried out a number of periods of on-call duty each month, where he stayed at the clinic (he had a room with a bed in the hospital) and was called upon to carry out his professional duties as need arose. The Court held that the Directive must be interpreted as meaning that on-call duty performed by a doctor where he is required to be physically present in the hospital must be regarded as constituting working time in its totality for the purposes of the Directive, even where the person concerned is permitted to rest at his place of work during the period when his services are not required. Periods when the doctor was on-call but not working should not be treated as rest periods. Compensatory rest periods must immediately follow the periods worked. [47]

3.3.  Our witnesses agreed that the SiMAP and Jaeger judgments go beyond the Directive's original underlying principles. They stressed that these judgments make compliance with the Directive extremely difficult for the health sector. (QQ 27; 145; 148; 216) Although both actions originated in the health sector, the rulings may also have wider repercussions for other employment sectors, as is discussed in paragraphs 3.53-3.60 below.

Extension of the Directive for Junior Doctors

3.4.  In 2000 an amendment to the Directive[48] brought sectors and activities formerly excluded from the Directive within its scope. This included doctors in training, otherwise known as junior doctors. A compromise amendment allowed a phasing-in over five years from 2004 of the 48 hour weekly limit for junior doctors.

3.5.  As the BMA explained to us, by 1 August 2004 rest and break requirements become law and junior doctors should not have to work in excess of 58 hours. By August 2007 their maximum working week should be brought down to 56 hours. Full application of the 48 hour a week limit for junior doctors is due by 2009. (pp 44-47)

NHS Changes Under Way

3.6.  The NHS Confederation, representing NHS employers, told us that reducing the hours worked by junior doctors had been a priority for the NHS long before the 2000 amendment to the Directive was agreed. It was consistent with an international trend to reduce hospital doctors' hours. (Q 222) They said the NHS had been working for some time to a contract negotiated between the medical profession and the Government called the "New Deal", under which NHS organisations will be required to move junior doctors to a 56 hour working week. (QQ 213, 215)

3.7.  We were told by the Confederation that the latest figures showed that 95 per cent of NHS organisations now had working patterns for junior doctors which complied with the 56 hour limit set by the "New Deal". Therefore, they would also comply with the 58 hour limit which will come into force for junior doctors with the Directive in August of this year. (QQ 213, 256, 260)

3.8.  The Department of Health (DoH) and the NHS Confederation told us that "New Deal" addressed the question of excessively long working hours for junior doctors in two main ways. The first looked critically at the distribution of work between different professionals and rationed work patterns in an innovative way. (QQ 27, 216)

3.9.  The NHS Confederation and the BMA argued that this reorganisation had already reduced the working hours of junior doctors significantly (QQ 157, 216).

3.10.  The Department of Health (DoH) reported that £46 million had been set aside by the Government over three years to help implementation of the Directive in the NHS through developing training programmes and new models of service delivery. (Q 28) They gave us evidence of NHS pilot schemes designed to test some of these initiatives.

3.11.  The NHS Confederation told us that these pilot schemes showed benefits to patients from more timely care to higher quality care, better coordinated care and doctors who are less tired, as well as benefiting staff themselves. (Q 218) However, the BMA pointed out that the NHS was a "long way off" being able to extend the methods to more than 20 to 50 hospitals by August of this year when junior doctors will be bound by the Directive. (Q 157)

3.12.  The NHS Confederation explained that the second, longer-term, Government aim for the NHS was to increase the number of junior doctors by providing more medical school places and new medical schools. (Q 216) The Rt. Hon John Hutton, MP, Minister of State at the Department of Health, told us that the Government wanted to see a consultant-led service, rather than the United Kingdom's health service's traditionally heavy reliance on junior doctors. (Q 260)

3.13.  The NHS Confederation stressed that an increase in the number of medical school places could not deliver immediate change, but should help to achieve the present 2009 deadline for a 48 hour week for junior doctors. (Q 216)

3.14.  The Confederation went on to explain that the 2000 amendment to the Directive, which brought junior doctors within its scope, necessitated considerable change in NHS working practices. Although these change were not always welcomed by health professionals, the Confederation claimed it was generally accepted that the Directive had been a catalyst for improvement in the NHS. They commented: 'when we reach the end of this period, this will have been seen as quite a useful set of changes even though it is fairly painful going through it and trying to deliver'. (Q 222)

Impact of the Directive on Medical Training

3.15.  The BMA told us that the reduction in the number of hours worked by junior doctors had already had a considerable impact on their training. We were surprised to learn that training hours had been reduced from 30,000 hours to about 8,000 hours since the early 1990s and that working towards the further reduction in junior doctor working hours required by the Directive by 2009 would cut this training time to 6,000 hours. The BMA said they were extremely concerned about the reduction in training time. (Q 158)

3.16.  The NHS Confederation, on the other hand, argued that training had to move away from the old apprenticeship model in which junior doctors learnt their profession 'by some undefined and vague osmotic process' to training delivered in a more pro-active and systematic way with more senior doctors spending time dedicated specifically to training more junior doctors. (Q 228)

Reactions to the SiMAP and Jaeger Judgments

3.17.  The Health Minister told us that: "we have been making very good progress in reducing the number of hours that junior doctors work every week in the NHS. Had it not been for the SiMAP and Jaeger rulings I do not think that we would have had a problem in the NHS in dealing with the Directive" (Q 256). He later reinforced his point by saying that, without the additional complications posed by the SiMAP and Jaeger judgments, the United Kingdom "could have met the 58-hour maximum working week for junior doctors in training by August this year". (Q 260)

3.18.  The Royal College of Physicians of England and Wales, applauded "the on-going efforts of Government, NHS managers and clinicians to implement" the Directive. But it also stressed that "full compliance with the Directive throughout the NHS is highly improbable by the August 2004 deadline". The College added: "we remain concerned that - in its present shape and form- compliance will have serious long-term effects for continuity of care, patient safety, and the education and training of doctors". (pp 148-152)

3.19.  The College pointed out that the NHS currently has insufficient trained doctors in all the acute specialities to maintain safe levels of patient care in every hospital if the full-shift working implied by the Directive is imposed on all residential junior doctors in August 2004. It commented that, while a maximum 48 hour working week "may be a laudable objective, it is unlikely that there will be enough consultant physicians in the United Kingdom for the next few years". (pp 148-152)

3.20.  The College stressed that "most of these tumultuous changes" were caused by the SiMAP and Jaeger judgments. Urgent clarification of the implications of these judgments, including a better definition of working time, was needed. The College supported what it described as the "common sense and pragmatic view" that "sleeping isn't working" and suggested that this was far more persuasive than the position adopted by the ECJ. (pp 148-152)

3.21.  It also suggested that the definition of working time should be left to national Governments to be interpreted in the light of their own circumstances. Endeavouring to comply with SiMAP and Jaeger would mean abandoning the traditional working pattern for junior doctors which had provided valuable experience, developed team work and assured hospitals of a strategic reserve of expertise to treat patients in emergency. (pp 148-152)

3.22.  The College thought the "New Deal" arrangements were an adequate safeguard against junior hospital doctors having too little sleep. But it estimated that 60% of NHS hospitals still did not have the necessary middle grades to adopt a robust full shift system. It was also concerned about the potentially serious impact on future recruitment to acute medicine. (pp 148-152)

3.23.  The Royal College of Physicians of Edinburgh broadly supported these views. It also asserted that the current supply of doctors was inadequate to provide a safe level of care in all hospitals and expressed particular concern about the staffing implications for remote and rural hospitals. (pp 152-153) This was echoed by the NHS Confederation. (QQ 220, 223)

3.24.  The Royal College of Obstetricians and Gynaecologists drew attention to the particular difficulties created by the need to have specialists in obstetrics, paediatrics and anaesthetics available on a 24 hour basis. The College pointed out that the shift pattern changes would be particularly difficult for the training and career development of women doctors. This would run counter to the steady increase in female trainees, especially in obstetrics, which the College was keen to encourage. (pp 145-147)

3.25.  The College also took the view that the ECJ rulings would "almost certainly" make it impossible for all hospitals to comply with the Directive in the near future. (pp 145-147)

3.26.  The NHS Confederation told us that both rulings were "a bridge too far". They were actively lobbying the Government, as well as elsewhere in the EU, to overturn both of them. SiMAP might be described as "aspirational": it had some desirable and some less desirable aspects, but the NHS could not implement it by 1 August without creating "a very difficult situation in terms of the sustainability of services". (Q 227)

3.27.  The Royal College of Nursing also expressed concern about the potential impact of the SiMAP and Jaeger judgments. The College called for clarification of the definition of compensatory rest and how it should be applied. It drew attention to the particular difficulty in calculating working time where 24 hour nursing care was provided by agency nurses living in patients' homes. (pp 143-145)

3.28.  The NHS Confederation also drew our attention to the possible risk to NHS trusts from litigation by individual doctors based on the SiMAP and Jaeger judgments. (Q 227) The Health Minister acknowledged that this risk existed and said that the best way to deal with it was to amend the Directive. (Q 256)

3.29.  The Royal College of Physicians in Edinburgh thought that changes in work patterns necessary to bring hospitals into line with the SiMAP and Jaeger judgments would adversely affect the education and training of junior doctors, as well as the work/life balance for hospital doctors. This would have consequent repercussions on future recruitment. (pp 152-153)

3.30.  The BMA contended that the SiMAP and Jaeger judgments had "shifted the goalposts" for interpretation of the Directive. (Q 154) It would be extremely difficult for health services throughout the EU to deliver good patient care in full compliance with these rulings. (QQ 159, 171, 182)

3.31.  The NHS Confederation agreed that "sizeable numbers" of hospitals in the United Kingdom could not comply with the Directive by 1 August 2004 because of these judgments. (Q 223)

3.32.  The BMA claimed that if the Jaeger ruling remained unchanged the effect would be tantamount to losing the equivalent of 3700 junior doctors by August 2004 and between 4300 and 9900 junior doctors by 2009 when the full 48 hour limit would come into effect. (pp 44-47 and Q 148)[49] One BMA witness commented that the United Kingdom would be in "real trouble". (Q 148)

3.33.  According to the BMA, SiMAP would have a particularly pronounced effect on the United Kingdom because the ratio of junior doctor to consultant and senior doctor service provision in the NHS was much higher than in other Member States. We were struck by the significant difference (as quoted by the BMA) between the prevailing ratio of 1.4 junior doctors to each senior doctor in the United Kingdom and the EU average of 4 seniors to each junior doctor. (Q 154)

3.34.  The BMA added that the United Kingdom would be also heavily affected by the SiMAP ruling because most hospitals in this country rely on doctors in training providing services: "at least 50% of our service is delivered by doctors in training" whereas in other Member States training is concentrated in far fewer hospitals. (Q 154)

3.35.  The Government and the NHS Confederation agreed that the SiMAP ruling went too far. (Q 227 and Q 259)

3.36.  The Health Minister told us that the Government did not think that SiMAP was "a sensible interpretation of the Directive" and that "it was certainly not within the intentions of the United Kingdom Government when we signed up for the Directive that time spent asleep would somehow magically count as time spent at work". (Q 259) But he thought that it was "perfectly sensible" for the NHS to look at ways of minimising resident on-call rotas and that there was a "strong case" for looking at how hospitals have been traditionally staffed at night. (Q 259)

3.37.  The BMA, on the other hand, told us that they were "broadly supportive" of the essence of the SiMAP ruling "that every hour spent in hospital now counts as work". They pointed to the regular pattern of disturbance involved in overnight on-call duty. In their view SiMAP represented "an overdue change". Although it could not be achieved in this short term they were hoping for "a common sense solution". They described a Danish proposal that compensatory rest should be taken within 72 hours as "commendably sensible". (Q 180)

3.38.  The Health Minister explained the implications of the Jaeger ruling for the NHS: "To require compensatory rest to be taken immediately would potentially have a massively destructive effect across the NHS and might mean that doctors could not work the following shift on rota that they were required to do. This would have knock-on consequences right across the hospital. At the end of the day, the only people who would be negatively affected would be the patients and that is a ridiculous result". (Q 259)

3.39.  The NHS Confederation put it in equally strong terms: "Jaeger makes no sense at all in terms of how you run NHS organisations" (Q 230). The BMA described how it might work in practice and commented "This is nonsense". (Q 180)

Reactions in other Member States

3.40.  The Jaeger judgment poses problems for other health sectors in the EU. In its Communication, the Commission cites Germany as saying that if both SiMAP and Jaeger were left unamended it would have to increase its doctors by 24% with costs running to €1.75 billion. It also reports that the Netherlands estimated the extra cost of both judgments to be €400 million to fund recruitment of 10,000 new staff. [50]

3.41.  In order to avoid the full implications of these judgments for hospitals, the Commission[51] reports that France and Spain have chosen to apply the individual opt-out for use in the health sector. Austria, Germany and the Netherlands are planning to do so. (Q 24) Of the countries that will join the EU on 1 May 2004, Slovenia has already applied the opt-out to the health sector. Estonia, Hungary, Latvia and Lithuania may also apply the opt-out to the health sector alone. [52]

3.42.  We were relieved to hear from the DTI Minister (Mr Sutcliffe) that, at the European Employment and Social Affairs Council on 5 March, the Commission acknowledged the difficulties that Member States are facing over SiMAP and Jaeger. Mr Sutcliffe told us that the Commission had promised to find a solution before the Summer. (Q 239)

3.43.  The Health Minister told us he believed the problems could be resolved in "a very sensible way which does not drive a coach and horses through the fundamentals of the Directive which is to provide proper protection for employees against working practices that are safe and unsound". (Q 259)

3.44.  We are encouraged by the positive preliminary reports of the pilot schemes aimed at reducing hospital doctors' working time which are currently being carried out in the NHS. We hope that it will prove possible to extend schemes on these lines to all United Kingdom hospitals as a contribution towards the attainment of the requirements of the Directive without detriment to standards of patient care or medical training.

3.45.  We note, however, the unanimous evidence we have had from Government and the medical profession that it will be impossible for the NHS to comply with the extension of the Directive to junior hospital doctors by August of this year if the definition of working time in the SiMAP ruling is applied as it stands.

3.46.  We also note that there are differences of opinion over the feasibility of applying the principles underlying the SiMAP ruling in the longer term. We look to the Commission to produce proposals as a matter of urgency that would have the effect of deferring the implementation of the Directive for junior doctors until a satisfactory solution to the problems posed by the SiMAP ruling can be devised and agreed with Member States.

3.47.  We also urge the Government to continue to work closely with representatives of the medical profession and NHS management, as well as with the Commission and other Member States, in attempting to devise a common approach to the definition of working time for hospital doctors on-call duties which is consistent with the spirit of the Directive as interpreted in the SiMAP judgment whilst being workable in practice and to agree on a reasonable programme to phase in whatever changes are needed without detriment to standards of patient care or medical training.

3.48.  As we understand it from the evidence we were given, we believe more attention should be paid to the particular difficulties which the SiMAP judgment will cause for the United Kingdom because of:

  • the relative shortage of doctors in the United Kingdom in comparison with other Member States,
  • the striking difference in the ratio of junior to senior doctors in the United Kingdom of 1.4 to one, compared with the EU average of 4 seniors to each junior doctor;
  • the long-standing British practice of delivering at least 50 per cent of hospital service through doctors in training, and
  • the British tradition of dispersing doctors in training to virtually every hospital, rather than concentrating them in fewer centres as in most other Member States.

3.49.  We note the Health Minister's optimism about finding "a very sensible way which does not drive a coach and horses through the fundamentals of the Directive which is to provide proper protection for employees against working practices that are unsafe and unsound". Nevertheless, it is clear to us from the overwhelming evidence we have received that the effect of the interpretation of the Directive in the Jaeger judgment is perverse and wholly impractical to implement.

3.50.  In view of the extremely serious situation created by the Jaeger judgment, we call upon the Government to indicate as a matter of urgency how they propose to deal with the problem of doctors' working time and compensatory rest from the extension of the Directive to junior doctors in August 2004 until such time as a satisfactory solution can be found.

3.51.  In the meantime, we encourage the Government to continue their efforts with other Member States to convince the Commission that the serious practical implications of the Jaeger judgment for all Member States demand rapid and effective remedial action through an amendment of the Directive.

3.52.  We agree with our witnesses that the best solution would be to get rid of the automatic requirement for immediate compensatory rest completely. Ways should be found of providing compensatory rest within a reasonable time.

Potential impact of these rulings on other sectors

3.53.  The UK Offshore Operators Association, on behalf of various trade associations within the UK offshore oil and gas industry, was very concerned by the possibility that these rulings might be interpreted more widely to include offshore oil and gas rig crews. This would have a profoundly damaging impact on staffing requirements and operating costs. They argued that the time spent on shore by rig crews more than adequately compensated for the necessary rest periods. (pp 111-113)

3.54.  The Road Haulage Association described the Jaeger judgment as "absurd" and claimed that it defied common sense. (pp 141-143)

3.55.  The English Courtyard Association drew attention to the potential impact on residential retirement and care premises where resident staff were employed. The resultant confusion was making it difficult for the Association to maintain its services. (pp 125-127)

3.56.  BNFL Commercial also called for a clear definition of on-call duties in the light of these judgments. (p 113)

3.57.  Concern about the potential impact on the motor sport sector was also expressed by the Motor Sport Industry Association. (pp 132-134)

3.58.  Amicus took the view that the judgments should be respected while recognising the difficulties caused by cost implications and a shortage of trained professional staff. It called for "social dialogue" about the problem, and for wider understanding of the nature of on-call working on employers premises. (pp 109-111)

3.59.  The DTI Minister told us that these rulings might well pose problems for both the private and local authority care sectors, as well as the emergency services and offshore workers. The Health Minister thought that the rulings were likely to have the biggest impact on small care homes which are usually run by small private firms or independent voluntary organisations. (Q 264)

3.60.  We are also concerned by the possibility which has been raised with us that the SiMAP and Jaeger judgments might be applied to other sectors. We call upon the Commission to produce detailed advice on this possibility for consideration by Member States as a matter of urgency.

46   Case C-303/98 Sindicato de Medicos de Asistencia Publica (SiMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana. [2000] ECR 1-7963 Back

47   Case C-151/02 Landeshauptsadt Kiel v Norbert Jaeger. Judgment of 9 October 2003. Back

48   Council Directive 2000/34/EC, 22 June 2000 amending Council Directive 93/104/EC. Back

49   The BMA witness explained that the apparent discrepancy between the estimated loss of the equivalent of between 4300 and 9900 junior doctors by 2009 was that the figure of 4300 was calculated on the basis of an estimate of the actual hours of work lost whereas 9900 represented an estimate of the hours of cover lost. (Q148) Back

50   COM (2003) 843 final/2 Back

51   Ibid Back

52   Ibid Back

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