Working hours of junior doctors unsustainable

In the face of action planned for tomorrow, junior doctors are considering HSE proposals for hospital rosters in compliance with working time regulations.

Our stretched public health system is expected to give around-the-clock care, but can an adequate service be provided in compliance with the EU working time directive and our domestic implementing legislation? Let us look at the culture of long working hours and the challenges of meeting healthcare needs within the constraints of working time legislation.

The Marine Casualty Investigation Board report on the 2012 Tit Bonhomme tragedy, in which five fishermen lost their lives in west Cork, stated that insufficient rest time for the crew was the overriding causal factor to the accident. In the 40 hours that the vessel was at sea, crew members had at most four to five hours of sleep. This was found to have had a detrimental effect on watch-keeping arrangements. The investigation board's recommendations included that the Minister for Transport enforce the working time regulations for workers on fishing vessels.

Spectrum
Fatal incidents represent the extreme end of the consequences of long working hours. However, possible adverse effects cover the spectrum. Research indicates that a lack of rest causes work accidents, adversely affects the wellbeing of workers and is simply counter-productive.

When the European Commission originally proposed to legislate for working time, it did so on the basis that work fatigue sets in after eight hours and that working more than 50 hours a week has adverse consequences. The regulation of working time thus began at EU level in 1993 and was followed by Irish implementing measures in 1997 with the Organisation of Working Time Act.

The working week is limited to 48 hours, averaged over reference periods of four, six or 12 months, depending on the sector or local agreement. Minimum rest periods between shifts apply and workers are entitled to one day off in every seven or two in every 14.

Initially, the legislation did not cover junior doctors. Specific, incremental regulations for doctors in training came into force in 2004 which limited the working week to 58 hours, averaged over a year, until 2007. This was reduced to 56 hours to apply until 2009 and thereafter, training doctors’ hours were capped at an averaged 48-hour week. Working time includes hours during which doctors are on call, as they are at the disposal of their employer and this covers periods in which the doctor is provided with a room and a bed. The law is clear and current rostering practices are clearly in violation of it.

Health and safety legislation requires employers to ensure, as far as practicable, both safe places and safe systems of work. It is difficult to see how requiring staff to work in excess of 24-hour shifts, on a regular basis, can sit easily with this duty.

Compliance
The Irish Medical Organisation wants an end to shifts over 24 hours and calls for a move towards compliance with the working time directive by the end of 2014.

Formal notice from the European Commission of Ireland's disregard for working time rules was first sent in November 2009. This was followed by a reasoned opinion by the European Commission in 2011 regarding Ireland's non-compliance with the directive. The Department of Health submitted a plan to the commission in 2012 on how to deal with the issue. The IMO has lodged a formal complaint and argues that continuing breaches could lead to the State facing substantial fines in infringement proceedings.

Of the estimated 4,000 junior doctors in Irish hospitals, about 1,800 are reported to be unionised and the threatened strike action evidences their unwillingness to sustain what the organisation has referred to as “dangerously long working hours”.

The potential effects for the public of industrial unrest among our hospital personnel overshadows wider issues – in particular, the repercussions, in terms of mental and physical health and work-life balance, for workers who consistently work punishing hours.

Alicia Compton is a partner in the William Fry Employment Practice Group