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BMA British Medical Association House of Lords Select Committee flanking the European Union Sub-Committee G (Social Policy and Consumer Affairs) February 2004 Introduction 1. The BMA be the organization liaison and export grouping rainy-day select of doctors, beside higher than 125,000 UK member. As the trade union recognised using the Government for dialogue on the expressions and stipulations of employ for all doctors employed in the NHS, the BMA is liable for reaching agreements with the Department of Health and form department in the devolve nation on planning to implement the requirements of the EWTD in awe of employed doctors.
Background General Practitioners (GPs) 2. The majority of GPs be sovereign contractor and that`s why the Directive do not apply. However, with an on the intensification digit of salaried GPs employed by habit and foremost attentiveness organisations (currently on all in its side 8,000 but expected to rise further with the prologue of the topical contract), effecting of the Directive will become more of an part. The Directive does as expected apply to practice support.
Junior doctors 3. Agreement be reach in May 2000 concerning the European Parliament and the Council of Ministers on the arrangements and timetable for doctors in groundwork (also sure by manner of junior doctors) to be built-in within the Directive. The Directive will be applied to junior doctors as follow: Date June 2000 Deadline Timetable preset to take on flat timber junior into the charge Date August 2000 Deadline Interim 58 hour maximum serviceable week Rest and sanctuary requirements become imperative Date August 2007 Deadline Interim 56 hour maximum working week Date August 2009 Deadline Deadline for 48 hour maximum working week This may be across-the-board by another intervening time of 3 years at 52 hours if wonderful circumstances apply Many of the concern set out in the evidence attached are particularly applicable to junior doctors.
4. Historically the NHS have relied very badly heavily on the service input of junior doctors. Traditionally tile at dimness has be bring by junior doctors who loiter resident in the medical centre providing care to the patients whilst the practitioner has been on-call from dwelling.
Established working model for junior doctors suppose resident on-call where on earth the junior general practitioner will slog a crammed year, remain in the hospital over and done with night on-call from a legroom in the property and after work a full day the subsequent day.
This working pattern enmesh 32 hours resident in the hospital which will compute, in execute, to the weekly hours constraint prescribed by the Directive after August 2004. This working affair accounts for with the only one of its kind meaning a day and a partially of cover in the hospital but will count as over half of the weekly hours limit from August 2004 and two thirds of the finishing 48 hour limit.
5. The Junior Doctors Committee has calculated that from August 2004 the hours of junior doctor cover that will be mislaid respectively week subsequently of the implementation of the EWTD will know how to 213,000, one and the same to 3,700 junior doctors working an EWTD biddable 58 hour week.
Following the contention of the 48 hour limit, the hours of junior doctor cover that will be lost each week as a service of the implementation of the EWTD will be between 208,296 and 476,638 equivalent to between 4,300 and 9,900 junior doctors working an EWTD compliant 48 hour week. This is the chief factor that make the EWTD for junior doctors such a great issue.
6. There are a numeral of pilots man amity with by the Department of Health examining new ways of working to aid the implementation of the EWTD.
However, extend for these pilots be not invite until April 2002, almost four years after the implementation of the EWTD and less important article than two years since the new building of the Directive to junior doctors. The final grades of these pilots will not be at your disposal until latter this year and are incredible to be in time to aid the implementation of the EWTD for junior doctors.
Senior hospital doctors 7. The European Working Time Directive (EWTD), succeed to obligate on 1 October 1998 for all upper hospital doctors; junior doctors were excluded. The BMA and the Department of Health negotiate a combined agreement for all senior hospital doctors employed beneath national terms and conditions of service, both with: consultant, show a relationship sway, staff level doctors, hospital practitioners and clinical assistant, going on for the implementation of the 48 hour limit on working hours per week contained in the EC Working Time Directive.
8. The weekly 48-hour limit on working hours is a catch for services provided by senior hospital doctors. A BMA opinion poll of consultants in January 2003 show that 77% of consultants work more than 50 hours per week 1 and that 46% work more than 60 hours per week 2.
9. A recent BMA survey of staff and associate spe******ts' working hours found that 35% of these grades of doctors are working more than 48 hours per week. We suspect that several of these doctors be full of not sign agreements opt out of the 48-hour weekly working hours limit although we are mindful that within are trust that apply constraint to doctors to legitimately opt out.
The EC information-gathering 10. The just very forthwith launch European Commission Consultation on the EWTD focus on five main issues: The length of insinuation possession The definition of working time The conditions for the application of the opt-out Measures to augment the set stale between work and not public flesh and blood existence How to find the first-rate balance of these measures 11. The BMA perceives the switch issues to be all along reference period, the definition of working time in pale of the SiMAP and Jaeger judgment in the European Court of Justice and the application of the opt out. The BMA also has concerns about the application of compensatory rest and would benevolence more definitive guidance on, amongst other point, whether compensatory rest should be taken during working and therefore salaried time.
12. Outlined fur is the legislation as it discoloration on now stand for both of the key points in the consultation (in italics) follow by the BMA placement on how the legislation should be amended.
Reference period Under the Regulations 2 as they currently abide the reference period for the 48 hour working week for medical staff is a swelling 26 week period or the period elapsed since he started work for his/her employer if less than 26 weeks. This is extended from the belief 17 week reference period in the Directive by Regulation 21 which allows the exhaust of a 26 week reference period in vip cases including: 'where the worker's accomplishments involve the want for continuity of service or harvest, as may be the overnight case in percentage to services relating to the reception, informative or care provided by hospital or corresponding power that be, residential institution and prisons' The amendment 3 provide for a differing midpoint working week for doctors in training. From 1st August 2004 until 31st July 2000, the average must not go one better than 58 hours; from 1st August 2007 until 31st July 2009, the average must not 56 hours. The amendment Regulations provide for a rolling reference period of 26 weeks, or the period which has elapsed since the member of staff started work, if that period is less than 26 weeks.
The Regulations also provide for the reference period to be extended to a period not exceeding 52 weeks by a collective or workforce agreement where it is foal by ambition hi-tech reason or for a point concerning the organisation of work.
13.The BMA consider that the reference period should be set at 26 weeks or the period elapsed since starting in remit if that period is less than 26 weeks.
14. It is striking to entrance the variance between the wording of this paragraph and the in existence legislation. Doctors, in exceptional junior doctors are in the outlandish position that they normally move/rotate on a even principle to other post, often within copy trust. These different posts can be with the same employer and in isolation would be class under the Regulations as they currently stand as being sector of the same employment for the purpose of the reference period. However these posts in a bend, although in the same trust, can be in different specialties or even different hospitals. Specifying that the reference period should be narrow to the length of post where this is less than 26 weeks aims to shun the situation where, if a rotation include a minimal height post; then the next post is allowed to exceed the hours limit consequently that, averaged out over the integral period, the limit is not violation. This is an altercation that has already been nearly new by a few trusts in an seek to reasonably breach the working time limit.
Opt out Under the Regulations 4 individuals have the supplies to opt out of the 48 hour week by entering into an opt out agreement with their employer. An opt out must be agreed in scribble, it may apply to a specified period or apply indefinitely and branch of learning to any administration in the agreement for a different period of sight (not exceeding three months), can be terminated by the worker by giving a minimum seven days' notice to his/her employer in writing. The employer is needed to land stirring to date collection of all human resources who have opt out.
15. The BMA has no objection to maintain the opt out for those doctors competent to discover their personal working hours, nevertheless the BMA considers that there are a few diet that must be meet if the opt out remains a part of the legislation; any opt out must be truly for worship and no undue pressure or coercion should be placed on doctors, markedly doctors in at risk position, to work shell the EWTD hours and rest requirements and under no circumstances should an opt out be a necessity for a post or sort part of any covenant.
16. The BMA supports the provision in Article 18 of the EWTD 5 that: 'no worker is subjected to any detriment by his employer because he is not of a consciousness to furnish his agreement to convey out such work' Definition of working time Under the Regulations as they stand currently, the definition of work and rest are commandingly defined and there is no provision for time to be anything except work or rest. Working time in relation to a worker is defined as a. any period during which he/she is working, at his/her employer's disposal and carrying out his/her pursuit or monies, b. any period during which he/she is reception useful training, and c. any extramural period which is to be pleasure as working time for the purpose of these Regulations under a relevant agreement; The SiMAP judgement 6 and subsequently the Jaeger sensitivity 7clarified the definition of working time to include the time when doctors are grateful to be donation and available at the workplace with a seascape to providing their professional services (on-call). Even if doctors are slumbering on ring up, providing they are at work, that time has to be good opinion as coming within the ambit of the ceremony of their duties and so count as working time for the purposes of the Directive. The judgments also state that working time is mutually restricted to rest and therefore any period which doesn't knob into the requirements down above to be classed as working time is by definition rest.
The Regulations deem relevant training as working time but where the training or training is provided by an visual institution or a personality whose main durable is the provision of education or training, and which is provided on a path administer by that institution or person. However the Regulations make not expand on this vertebral column further to set down what this 'education/training time' should be classed as except working time. The problem that arise is that elsewhere in the Regulations a rest period is defined as any period which is broken time. Hence if the time spent on education/training meet the conditions that allow it not to be count as working time, it could be counted as rest for the purposes of the Regulations.
17. The BMA is of the evaluation that to the point periods of rest in a hospital on-call room are entirely different to periods spent sleeping in one's own bed and as a result should not be classed as equivalent for the purposes of the Regulations. The BMA therefore agrees with the definition of working time that define time spent compulsorily resident in hospital as working time.
18. The BMA also agrees that time spent not working whilst non-resident on call should not be classed as working time and therefore could be counted as rest for the purposes of the directive. However note that all time spent working (including touchtone phone calls) whilst non resident on call should count as working time from the point of imposition to the point that the individual returns to rest.
19. The BMA considers it essential that all education/study 8 should be counted as working time and as part of the conformist working week for the purposes of the Directive.
Compensatory rest The Regulations call for that individuals receive a on a daily basis entitlement of 11 hours eternal rest where a day is a 24 hour period commencing at midnight. The UK has derogated from this provision but must provide an equivalent period of compensatory rest 9 where it is impracticable to provide the full period of continuous rest. The Jaeger judgment in the European Court of Justice examine the provision of compensatory rest and stated that 'equivalent periods of compensatory rest made up of a number of shortest hours alike to the slimming down applied and from which the worker must ability before commencing the next period of work' The prerequisite that the period of compensatory rest should be taken before commencing the next period of work is not going away nothing to the imagination in the Directive.
20. The BMA has concerns about how compensatory rest should be implement. The legislation as it currently stands provide no guidelines to help employers/employees in decisive what counts as 'equivalent' rest.
21. The BMA on behalf of senior hospital doctors reached an agreement with the Department of Health to trademark use of the derogation in the Regulations 10 to allow compensatory rest to be taken by employees where they are not able to transport the rest break as specified in the regulations e.g. 11 hours rest in every 24 hours. The BMA guidance on implement the Directive stated that where interruption to the rest is consequential, doctors will be appropriate to the full 11 continuous compensatory rest to be taken at another time. This appraisal was arrived at during negotiations with the Department of Health and later confirmed in note. However, since 1998 the implementation of the collective agreement across the province has been principally penniless, with many trusts resist because of the paucity of a readable definition of compensatory rest in the Regulations. The BMA has cyclically bid the Department to ensure trusts implement the agreement in respect of compensatory rest according to the agreed interpretation. The Department have taken no ladder to do so.
22. The BMA considers that the requirement made in the Jaegar judgment that compensatory rest should be taken before returning to work has huge service and workforce planning implication and is likely to be unworkable and in account cases useless. Account should be taken not simply of the quantitative aspect of rest but also of the qualitative aspect. To require compensatory rest to be taken before the next period of substantive work would effectively expiration the thought of non-resident on-calls where there are any procedure for known commitment the following day - even if even-handed qualitative rest has been obtain.
23. The issues which need to be considered are the time of compensatory rest and whether it should be taken during the normal working week; whether compensatory rest should be paid and whether compensatory rest should count as working time for the purposes of the EWTD; The knock-on effect of the SiMAP and Jaeger judgments of the European Court of Justice (ECJ) on on-call requirements.
The SiMAP and Jaeger judgments deal explicitly with doctors who were working resident on-call although some comparison were made in the Jaeger judgment with non-resident on-call. The consequences for on-call work of the judgments are threefold: - All time spent resident in the hospital, even if sleeping, is to count as working time for the purposes of the directive (SiMAP and Jaeger) - When non-resident on call, only time related to actual work should be regarded as working time for the purposes of the directive (Jaeger) purposes of the directive (SiMAP and Jaeger) - Compensatory rest must be taken immediately following the period of work which it is aimed to defuse i.e. before commencing the next period of work (Jaeger) 24. The main consequences of the SiMAP and Jaeger judgment have been summary above in the section on compensatory rest and definition of working time.
Sally Watson Director Representational & Political Activities References 1. Including time spent non-resident on-call which does not count as working time for the purposes of the directive.
2. Statutory Instrument 1998 No. 1833 The Working Time Regulations 1988 (WTR 1998), Regulation 4 3. Regulations Statutory Instrument 2003 No. 1684 The Working Time (Amendment) Regulations 2003 (WT(A)R 2003) Regulation 7 4. WTR 1998, Regulation 5 5. Council Directive 93/104/EC of 23 November 1993 concerning certain aspect of the organisation of working time Official Journal L 307 , 13/12/1993 P. 0018 - 0024 6. European Court of Justice, Case C-303/98, Sindicato de Mdicos de Asistencia Pblica (Simap) and Conselleria de Sanidad y Consumo de la Generalidad Valenciana 7. European Court of Justice, Case C-151/02, Landeshauptstadt Kiel and Norbert Jaeger 8. Including company at course, lectures, tutorial, and periods of voted for personal chamber 9. WTR 1998, Regulation 24 10. WTR 1998 Regulation 21
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