The Working Time (Amendment) Regulations 2009 will Affect Junior Doctors

The Working Time (Amendment) Regulations 2003 permitted a phased introduction of the 48 hour limit on average weekly working hours for junior doctors.  This resulted in the weekly working time limit for doctors as of August 2004 being 58 hours. This reduced to 56 hours in August 2007 and to 48 hours on 1 August 2009.

The Working Time (Amendment) Regulations 2009 came into force on 1 August 2009 and  provides limited derogation for some junior doctors, replacing the 48 hour limit with a 52 hour average working week over a 6 month period, until 31 July 2011. This derogation only applies to a minority of junior doctors but still provides a decrease in hours from the current 56 hour limit.  Regulation 3 inserts a new Schedule 2A into the WTR, listing the NHS Trusts and various categories of doctor covered by the new derogation. However, the 48-hour limit will affect the majority of junior doctors.

Spectators have argued such a move to reduce hours will lead to insufficient time for the training of junior doctors and have a subsequent impact upon patient care.  The government has refuted this maintaining patient care will not suffer and that junior doctors will still receive the desired standard of training.  In fact, the reduction in hours could be perceived as a good move as it could be better for patient care as the working environment may be safer if doctors are not working excessive hours.  The question still remains as to whether there will be sufficient time to train the next generation of doctors, or if the changes will result in poorly trained doctors unable to provide the variety and depth of service current qualified doctors provide.

Prepared for change?

Despite the Secretary of State having called for a review of the training given to junior doctors in light of the changes, the Government has reported 97% of NHS workers already meet the new requirements and that the changes will have no impact upon training.  This view is not shared by the majority of doctors as a recent survey of surgeons, conducted by the RCS, revealed two-thirds believe patient care has suffered since the changes were introduced.

The British Medical Association Junior Doctors’ Committee has expressed concern about the impact on medical training; suggesting hospitals have chosen to implement this directive but they have gone for paper compliance and it is ending up with people working more than 48 hours a week. There's no spare time for training.

Opt-out

Whilst junior doctors can still make use of the individual opt-out, the Department of Health does not consider it appropriate for NHS employers to plan rotas based on the opt-out, because doctors cannot be made to opt-out and may choose to opt back in again. In any event, junior doctors’ hours must not exceed agreed New Deal limits of 56 hours per week on average, or 72 hours including on-call work.  In general, contracts which ask doctors to work outside the Regulations will be illegal and all rotas must be based on a 48 hour week.

Whilst doctors can opt-out, this must be voluntary and they will be unable to opt-out of taking 11 hours continued rest in a period of 24 hours or taking 24 hours rest in each 7 day period.

“On-call” time

In 2003 the European Court of Justice (ECJ) ruled on two cases as to the definition of working time.  The cases concerned doctors employed in primary health care teams who were ‘on-call’.  The ECJ indicated that 'on-call' time will be working time when a worker is required to be at their place of work. However, when a worker isaway from the workplace when 'on-call' and is free to pursue leisure activities, on-call time is not 'working time' unless the worker is actually called in to work.  Therefore, it could be argued on-call working patterns will not be the most economic use of a junior doctor’s time.

The future

The Royal College of Surgeons (RCS) has called for a working week of 65 hours, including time on-call, to be introduced to ‘solve the problem permanently, allowing a safe service, good training and an optimum lifestyle for trainee surgeons’.  The 48 hour week therefore appears to be severely inadequate to enable doctors to complete their necessary training and raises concerns as to the standard of our future doctors. 

The Working Time (Amendment) Regulations 2009 has provided a gap of respite for the health profession by providing for a minor derogation to the 48 hour week enforced upon the majority of junior doctors.  However, such respite, which only relates to average weekly working time, will only last until 31 July 2011 at which point all junior doctors will be subject to a 48 hour week.  It is apparent from doctors dealing with patients on a day to day basis that training and patient care will suffer although the government remains optimistic that reducing hours will have no effect on the UK’s health care service.

October 2009