Thursday 20 June 2013

Who's afraid of the Working Time Directive? - Part 2: NHS

Yesterday I ran through the contents of the Working Time Directive (WTD) and the UK Regulations that implement the law in Britain. With a minimum break of 20 minutes for those who work for 6 hours or longer, and an opt-out-able prohibition on a working week longer than 48 hours (when averaged out over 17 weeks), the rules seem reasonable. In fact, you rarely hear anyone argue against the substance of the Directive in connection with everyday workers. However, the WTD is increasingly linked with the NHS in political debate.

Since the rules apply to doctors, consultants and nurses, concerns have been raised over whether the WTD was impacting on patient care in the National Health Service, with changing doctors breaking the continuity of care and leading to mistakes. Two ECJ rulings – Sindicato de Médicos de Asistencia Pública, which held that “on call” time counted as working time whether or not it was spent at the hospital, and Norbert Jaeger (PDF), which defined when compensatory rest should be taken – are key to this debate. It should be noted that health service workers can opt out of the 48 hour week in their contracts too.

The Royal College of Surgeons is one group of medical professionals against the current rules:

“These on-call arrangements have been scrapped in favour of full-shift rotas. The nature of working a full shift pattern is more tiring when compared to an ‘on-call’ system because of doctors working irregular shift patterns which create a working environment that is impairing patient safety by reducing the number of doctors covering patients and increasing the number of patient handovers between staff, correspondingly reducing continuity of care.


We believe that proposals to classify on-call time differently and the requirements on the timing of compensatory rest will provide a framework to start to address these concerns for surgeons, but we would also encourage the Commission to look in detail at the sectoral problems for doctors in training with a view to allowing a solution of excluding this group of doctors from the scope of the Directive.”

However, the British Medical Association is in favour of the WTD:

"'The BMA opposes further attempts to renegotiate the [EWTD] or to overturn rulings by the ECJ (European Court of Justice).

'Previous attempts to change legislation have taken many years and securing significant improvements to junior doctor training within the parameters of the EWTD must remain the priority,' the association says.

The BMA also stresses that it strongly supports the ECJ rulings that all time on-call, including inactive time, is considered work."

And the BMA’s Juinor Doctors’ Committee chair, Ben Molyneux has said:

"Tired doctors make mistakes, and we must think of the welfare of doctors and the resultant impact fatigue can have on patient care.

'There is a mounting body of evidence to support the move to reduced working hours in terms of patient safety. While flexibility may be appropriate, scrapping the [EWTD] is not.'"

The Royal College of Nurses supports the rules, pointing out the level of skill and preparedness that needs to be maintained for on-call hours, and call for the definition of on-call time to be included in legislation and for the end of the opt-out (PDF):

“The RCN has called for a phasing out of the opt out on health and safety grounds. There is evidence to support the impact of long working hours on safety and the health and wellbeing of nursing staff. A recent study of the health and wellbeing of 11, 000 health care staff in England found a link between long working hours and increased absenteeism. It also found higher rates of presenteeism (with staff attending work when they didn’t feel well enough to be there). Sleep deprivation was identified as a risk factor for wellbeing.


The same survey [the RCN’s working well survey] found that 58% of nurses working on call or standby did not receive any compensatory rest. The nature of on call work, particularly in the health sector, often means carrying out safety critical procedures in a relatively unsupervised environment. For this reason, it is essential that compensatory rest is timely and adequate. As mentioned earlier there is a real need for clarity from the Commission around the issue of on call and compensatory rest.”

In this debate there seems to be three different, but related, issues: the protection of workers through regulating working time, protecting patients and care continuity, and the number of healthcare staff. As Molyneux remarked, tired doctors make mistakes, so it’s not self-evident that scrapping WTD rules for healthcare workers – effectively saying that they deserve less rights than other employees – would be to the benefit of healthcare workers or patients. Again, when scrapping the WTD is suggested, there is little to no reference to any policy decision – what this means for the mix of healthcare workers’ rights, patient care, and the shape of the healthcare workforce – so seemingly working doctors and nurses longer is the simple answer to these issues.

Notably, the quotes above are taken from the Commission’s consultation with the industry over how to reform the WTD, and from reaction to debates in the UK Parliament.Currently there are on-going talks between the social partners (employers and employees) in this area, and the Commission is likely to try to introduce reforms for the Council and Parliament to consider if the talks fail. So this isn't necessarily a static area of policy, and it shows that there can be continued policy debates in the EU on existing laws.


So where does that leave us on the WTD and social and employment matters being a part of the single market? Essentially there are two separate issues when it comes to the WTD and legislation like it: (1) is it a topic for valid debate and legislation at a European level? and (2) is the Directive itself any good?

Since the single market covers an economy of around 500 million people, who are employers, employees, and consumers, how the market is run and regulated affects everyone. The single market isn't some sort of alternate dimension that delivers food and drink from France and Italy to supermarket shelves, but an economy that people work and live in, so social and environmental standards are naturally an issue for consideration. The need for minimum European standards in these areas is a valid topic, and, especially as Member States and citizens want to protect their welfare states, actually important to the legitimacy of the single market that it can recognise these issues.

And the WTD? It's clear from these 2 posts that I'm personally in favour of it, but it's more important that the debate when it comes to this kind of legislation has more substance. If a political party thinks that these minimum standards should be scrapped, then that's a pretty radical proposal and deserves a full debate on the alternatives.

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