Running out of time

Stand off

Over the past four years, national governments and the European parliament have been discussing revisions to a new text of the working time directive drafted by the European Commission. Discussions are tense because MEPs and governments of member states hold polarised views. The main bone of contention relates to two issues.

The first is allowing countries to retain their right to opt-out—Britain is among 15 member states that use an opt-out that allows individual workers the right to work longer than 48 hours if they choose to.

The second is the extent to which time spent on call counts as working time. Judgments by the European Court of Justice suggest that all on-call time spent at the place of work, irrespective of whether it is active or inactive (resting or asleep), should be counted as working time. The court has also ruled that “compensatory rest” should be taken immediately after work shifts.

Last December, the parliament voted to end member states’ right to the opt-out and for the Court of Justice rulings to be observed. The European Council wants to retain the opt-out and to allow countries leeway on how much on-call time counts as working time and when rest is taken—a position which clearly offers health authorities more flexibility.

Expectations that these bodies will reach a compromise are fading. A recent conciliation meeting failed to reach agreement on a revised text. If agreement is not reached in their meeting later this month—and few predict it will be—the draft legislation will fall because the legal deadline for settling differences between the two institutions will have expired.

The view from Brussels is that the commission is unhappy about this impasse. If a compromise is not agreed, the status quo will prevail and, theoretically, the commission will be in the invidious position of contemplating legal action against countries that are not fully observing the 1998 directive and court rulings. In practice it will be unwilling to do this and may draft new proposals on on-call time and compensatory rest.

Implementation

Just how many countries are failing to implement the European Working Time Directive is not known. The commission carried out a survey of member states’ compliance last year, but the results are not yet available. In the health sector anecdotal evidence from a BMA survey of representatives of national medical associations suggests that many countries are not in a position to meet the August 2009 deadline. In the UK the picture is mixed. The Department of Health has suggested that six of the 13 strategic health authorities want more time to achieve full compliance, although most trusts maintain they are reaching the 48 hour goal.

Half of the respondents to a questionnaire survey of all specialist registrars in training, college tutors, and regional advisers carried out last December by the Royal College of Physicians, said their hospitals were unprepared for the 48 hour target. A more recent survey carried out by BMA News suggested an even greater proportion is unprepared. Compliance is of course hard to define. Trusts try to ensure that junior doctors fill in their hours of work forms accurately, but it’s acknowledged that a degree of “fudge” is possible. Senior doctors observe that some trainees voluntarily use their legal option to spend more time at work than they are rostered for (eight hours extra a week is allowed) to gain more hands on clinical experience; a move that many welcome.

But while the issue of compliance is straining the administrative ingenuity of managers to its limits, doctors are exercised by its impact. The BMA has long held the view that implementing the working time directive, which was introduced to protect the health and safety of employees, is unequivocally in the best interests of doctors’ work-life balance and patient safety. The Department of Health takes a similar view, and its website provides advice for hospitals who need guidance and support to make their rotas work (www.healthcareworkforce.nhs.uk/workingtimedirective.html).

The position of the Royal College of Physicians of London is more guarded. The statement on its website says it does not support the introduction of the 48 hour week unless “certain conditions” are met. Foremost among these are that patient care and the quality of training are not compromised.1 A worrying finding from its 2008 survey was that around two thirds of the trainees and trainers who responded said they thought that implementing the directive would worsen patient care and medical training. Concern was also expressed about the difficulty of finding enough locums to cover gaps in hospital rotas and the quality of care provided by external locums.

Evidence that the quality of medical care is suffering is “inconclusive,” says Andrew Goddard, director of medical workforce at the college. “We are scarcely in a position to do a controlled study,” he added. “We do, however, feel that it’s essential to be alert to any changes in surrogate markers of quality.” In the case of patient care, this would be reflected in lapses in safety and the number of complaints made by patients, he suggests. For quality of training, the indicators are the rate of successful applicants for certificates of completion of specialist training and sickness rates among junior doctors.

Surgeons are pushing hardest for revisions. The Royal College of Surgeons of London believes that a 48 hour working week for surgeons is neither achievable nor desirable.2 Its survey of surgeons in training suggested that the move to shift work to comply with the directive has already increased the number of medical errors, adversely affected training, and increased fatigue among junior doctors. It also found that some trusts re-employ their junior staff as locums to plug gaps in their rotas. The college maintains that 65 hours is the optimum number of working hours for surgeons in training.

Amid these conflicting views some senior doctors, including those in the Department of Health, admit that although the UK has had a long time to implement the directive, competing priorities have seen it “sleep walk” towards the August 2009 deadline. The profession as a whole, they suggest, has underestimated the scale of the required organisational change and the implications for medical staffing.

Irrespective of whether agreement to amend the directive is reached in Brussels in the next couple of weeks there is no turning back for the profession. Medical training in the UK has shifted from an apprenticeship model to a shift work one in which service commitments for consultants are increased. Patients are likely to welcome this but it certainly requires an expansion in the number of consultants. Many claim to be working harder than ever. Although consultants are covered by the directive, in practice they have a degree of autonomy and can work longer hours by using the opt-out. (General practitioners’ are considered to be self employed and exempt from the directive.)

Talking to senior doctors is revealing. Some are quick to proffer the view that, paradoxically, life for their juniors has become more stressful as their hours have come down from 56 to 48. When they are on call they cover more patients and are unfamiliar with the history of most of them. Ties with consultants are weaker and mentorship reduced. Consultants are also concerned about loss of continuity of care, a cause of medical error. Some juniors say that their training is being neglected in the drive to cut hours.

The reality is that no one knows what an optimum training schedule for doctors looks like. In the US, junior doctors work up to 80 hours a week, but debate on the risks associated with these long hours is growing. Currently the Institute of Medicine has sanctioned an 80 hour week but with certain provisions.3 Given the US position and the varied situation in Europe there has to be scope for mutual learning on best practice as doctors’ hours are reduced. There is also force in the argument that the UK should assess the impact of the reduction of junior doctors’ hours to 48.4 Legislation that was never designed to regulate the way hospitals function and doctors work and train cannot be assumed to be beneficial in the absence of evidence to show that this is the case.