Paying the price for failing to implement the EWTD

Paul Mulholland | 06 Apr 2017 | 0 Comment(s)

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Paul Mulholland examines new figures showing the extent of hospital compliance with the European Working Time Directive

The issue of how to enforce healthcare policy and directives is a difficult business. The task, first of all, is for managers and staff to be convinced of the need for the policy or directive to be implemented.

A plan and resources/incentives must be put in place for the implementation to be possible. If implementation is slow or not being achieved, thought must be given as to whether reprimands are necessary and, if so, what form they should take. These reprimands can be financial in nature. The logic of imposing financial penalties on already cash-starved institutions that are struggling in a tight financial environment may be questioned, but it is a method the Department of Health and the HSE sometimes employ to try and ensure their objectives are reached. A case in point is the implementation of the European Working Time Directive (EWTD).

How fines are imposed on hospitals for breaching the LRC 2013 Agreement

Where up to 2 per cent of NCHDs in a hospital are required to work in excess of a maximum 24-hour shift, 10 per cent of the relevant financial sanction will be applied. In cases where more than 50 per cent of those NCHDs working in excess of 24 hours are exceeding 28 hours, a 20 per cent sanction will apply instead of the 10 per cent sanction.

Where 3-to-7 per cent of NCHDs in a hospital are required to work in excess of a maximum 24-hour shift, 20 per cent of the relevant financial sanction will be applied. In cases where more than 50 per cent of those NCHDs working in excess of 24 hours are exceeding 28 hours, a 50 per cent sanction will apply instead of the 20 per cent sanction.

Where 8-to-11 per cent of NCHDs in a hospital are required to work in excess of a maximum 24-hour shift, 50 per cent of the relevant financial sanction will be applied. In cases where more than 50 per cent of those NCHDs working in excess of 24 hours are exceeding 28 hours, a 75 per cent sanction will apply instead of the 50 per cent sanction.

Where 12-to-14 per cent of NCHDs in a hospital are required to work in excess of a maximum 24-hour shift, 75 per cent of the relevant financial sanction will be applied. In cases where more than 50 per cent of those NCHDs working in excess of 24 hours are exceeding 28 hours, a 100 per cent sanction will apply instead of the 75 per cent sanction.

Where 15 per cent or more of NCHDs in a hospital are required to work in excess of a maximum 24-hour shift, 100 per cent of the relevant financial sanction will be applied.

EWTD background

For years, Irish hospitals were in flagrant breach of the Directive, which was designed to prevent employers requiring their workforce to work excessively long hours. Although initially exempt from the EWTD, in 2004 the working hours of NCHDs came under the scope of the Directive, which sought to reduce the working week to an average of 48 hours. However, many NCHDs continued to work hours well in excess of the Directive’s stipulation. In Ireland, the matter came to a head through the IMO’s ‘24 No More’ campaign in 2013, followed by the Labour Relations Commission (LRC) proposals later that year on a strategy to implement the Directive. The 2013 LRC proposals, which were agreed by the IMO and the HSE, identified a commitment to the elimination of shifts over 24 hours by the end of 2013. A joint IMO/health service management national group was established to oversee verification and implementation of measures to reduce NCHD hours.  In this context, fines were to be applied to hospitals that breached the agreement.

Our Lady's Children's Hospital, Crumlin: Fined €247,919 in first nine months of 2016

According to the agreement, “as a proactive provision to ensure hospitals move rapidly to compliance, the National Director of Acute Hospitals will withhold an annual sum of €15 million from the budgetary allocation to the public acute hospitals”. The financial penalties were to be applied on the basis of performance assessment undertaken by the designated local management/EWTD working group within each hospital on a monthly basis and as reported monthly to the HSE National Director of Acute Hospitals.

The financial penalties related to the numbers of NCHDs required to work in excess of a maximum 24-hour shift.

Hospitals were to be divided into three bands, with an annual applicable financial maximum sanction. In Band 3, the maximum penalty was set at €225,000; in Band 2 it was €350,000; while in Band 1, it was €650,000.

Where sanctions fall to be applied to a hospital, both parties will regard that as an emergency situation, according to the agreement. The parties agreed to respond to any such situation involving over 7 per cent of NCHDs on a site by convening a meeting of the local validation group within 10 days under the Chair of the LRC. The purpose of such an urgent meeting is to immediately secure the delivery of the previously-agreed steps for implementation of the maximum 24-hour shift commitment.

Midland Regional Hospital, Mullingar: Received the largest fine in 2015

The funding level is restored, as determined by the performance report for each hospital. The allocation of funds arising for distribution where sanctions have been imposed is reported on a three-monthly basis to the national group and the LRC.

Prospective funding is restored to hospitals on a pro-rata basis when they demonstrate compliance with a maximum 24-hour shift and/or implement agreed actions arising from the joint IMO / health service management verification process.

“This is to ensure that each hospital is appropriately incentivised to achieve compliance,” according to the agreement.

New figures

The Medical Independent (MI) has obtained up-to-date figures on the financial penalties imposed on hospitals from 2015 and 2016 for not complying with the maximum24-hour shift stipulation in the LRC agreement. Overall, compliance with the Directive and LRC agreement is high, but there is a lot of variability from hospital-to-hospital. In 2015, hospitals had to pay a total of €3.272 million for non-compliance with the agreement. Midland Regional Hospital Mullingar had to pay the most (€291,668); followed by Midland Regional Hospital, Portlaoise (€277,084); and University Hospital Limerick (€270,830). Other hospitals that paid high figures include: Midland Regional Hospital, Tullamore (€253,750); Our Lady’s Hospital, Navan (€245,000); Our Lady of Lourdes Hospital, Drogheda (€218,750); and Cork University Hospital (€184,167). Some hospitals totally escaped the imposition of any sanctions. These included: St James’s Hospital, Dublin; St Colmcille’s Hospital, Loughlinstown; and Cappagh National Orthopaedic Hospital, Dublin.

Our Lady of Lourdes, Drogheda: Accrued a fine of €141,457 in the first nine months of 2016

Looking at the first nine months of 2016, the total fines imposed on  hospitals was €2,125,626. At the end of September, the hospitals with the largest fines in descending order were: Our Lady’s Hospital, Navan (€262,503); Our Lady’s Children’s Hospital, Crumlin (€247,919); University Hospital Limerick (€243,747); Our Lady of Lourdes Hospital, Drogheda (€141,457); and Midland Regional Hospital, Mullingar (€131,249).

Hospitals with no fines at all were: Midland Regional Hospital; Tullamore; Naas General Hospital; St Luke’s, Rathgar; St Vincent’s University Hospital, Dublin; St Luke’s General Hospital, Kilkenny; Wexford General Hospital; South Infirmary Victoria University Hospital, Cork; Kerry University Hospital; South Tipperary General Hospital; Waterford University Hospital; and Sligo University Hospital.

As can be ascertained from the figures, compliance rates varied greatly between hospitals. While all of the latter group of hospitals were 100 per cent compliant for the first nine months of 2016, other hospitals had greater difficulty meeting the targets. For example, for the first two months of the year, Louth County Hospital was only 25 per cent compliant with the 24-hour limit. This rose to 80 per cent in May, but fell to 67 per cent in June and 50 per cent in July. The compliance rates or associated fines for August or September for the hospital were not included in the tabulated figures sent to MI. Our Lady’s Hospital, Navan, also struggled to meet the target, as seen by the fines imposed on the hospital. In the first three months of the year, its compliance rates were 57 per cent, 59 per cent and 70 per cent, respectively.

The highest compliance rate for the hospital was achieved in September, when 81 per cent of NCHDs worked within the 24-hour shift limit.

Disputes

Inevitably, tensions and disputes sometimes arise between the HSE and the hospitals over compliance. In correspondence seen by MI, the HSE pointed out how July 2016 data from St Colmcille’s and the Mater Hospital failed to be submitted on time as a result of staff shortages in both hospitals.

Sometimes the figures themselves are the subject of dispute.

In December, the Hospital Manager at Bantry General Hospital, Ms Jackie Daly, challenged figures produced by the HSE on the hospital’s compliance with the targets.

In an email to the South/South West Hospital Group CEO Mr Gerry O’Dwyer, Ms Daly wrote on 21 December 2016: “In the attached letter from Mr Liam Woods [HSE Director of Acute Hospitals], it is outlined that we were only 75 per cent compliant for September 2016. This is incorrect. I am enclosing herewith our September EWTD report, which was returned to the National Office and which demonstrates that we were 100 per cent compliant. Therefore, we should not be receiving financial sanctions.”

Mr O’Dwyer’s office subsequently passed the matter to Mr Woods’s office, asking it to check the figures against Bantry Hospital’s assertion that it was in full compliance.

48-hour week

While many hospitals are recording compliance with the 24-hour maximum shift, the 48-hour week is proving more challenging.

The target set in the HSE National Service Plan 2016 (and the 2017 Plan) is that 95 per cent of NCHDs will work a 48-hour week.

Many hospitals are still struggling to achieve this target. For example, in August 2016, while St Vincent’s University Hospital was 100 per cent compliant with the 24-hour limit, only 58 per cent of NCHDs worked within the 48-hour week target.

Similarly, while Tallaght Hospital, Dublin, was 95 per cent compliant with the 24-hour limit, it was only 47 per cent compliant with the 48-hour week target for the month.

St John’s Hospital in Limerick was 100 per cent compliant with the 24-hour measure but only 31 per cent compliant with the 48-hour week target.

However, improvements have been achieved in meeting the 48-hour week target. There has been an increase from 66 per cent compliance in January 2015 to 81 per cent in December 2016.

According to the HSE’s Performance Report for October to December 2016, this increase has been due to a range of factors. These include: Targeting those sites where performance was well below the national average; application of fines in respect of non-compliance with 24-hour targets; site visits and robust interrogation of performance data and rosters; and shared learning from sites that had effected sustained improvements, particularly where they may have “suffered from structural challenges, such as peripherality”.

The report stated that year-to-date compliance with a maximum 24-hour shift was at 97 per cent. There was variation between Hospital Groups: The report recorded University of Limerick Hospital Group compliance with the 24-hour maximum shift as 92 per cent (although the figure for the Group’s compliance with the 48-hour week was high, at 93 per cent). The Children’s Hospital Group and the Dublin Midlands Hospital Group had particularly low compliance with the 48-hour week target, at 64 per cent and 66 per cent, respectively.

“The Acute Hospitals Division has developed a plan to achieve full compliance,” according to the performance report. “It includes targeted actions in terms of under- performing sites, development of clinical networks and national or supra-regional specialist services.”

In May 2016, briefing notes for  incoming Minister for Health Simon Harris noted “a risk the Commission could (again) refer Ireland to the Court of Justice”.  The briefing notes stated that Ireland had reached 80 per cent compliance with the average 48-hour week, which was as low as 33 per cent in 2011 and 47 per cent in 2014. It said an implementation plan for achieving compliance “by 2017” had been submitted to the EU Commission.

The Department of Health has previously stated that full EWTD compliance will require “reconfiguration of some services” across Hospital Groups and completion of capital projects relating to paediatrics and maternity. Hawkins House also referred to difficulties recruiting and retaining certain categories of NCHDs and in attracting them to “smaller hospitals”, where the nature of the work “does not support a sufficient number of training posts”.

The impact of EWTD implementation on training has also presented some cause for concern in Ireland and elsewhere.

Mr Eric Young, Assistant Director of Industrial Relations with the IMO, told MI that sustained progress has been made in terms of implementing the EWTD and the 24-hour maximum shift.

“There has been a good improvement overall,” according to Mr Young.

Mr Eric Young, Assistant Director, Industrial Relations, IMO

“The matter of concern is that there are still some hospitals that are not fully compliant on 24 hours, which was discussed at the most recent national verification meeting. And a number of options will be taken to improve that now. The breaches are predominantly hour breaches — working 25 hours rather than 24 hours. Action has been taken on that at a national level.”

In terms of the 24-hour maximum shift, Mr Young said there continued to be “handover issues” in some hospitals, where there are delays in one team taking over from the previous team. In general, he said that the fining system has been good in terms of getting hospitals to be meet the target.

“The vast majority of hospitals do respond to fines and do actually modify their behaviour in terms of trying to avoid fines and becoming compliant,” Mr Young said.

The national verification group will meet hospitals that are struggling to comply and examine whether they need additional support.

“We need to import the learning from the successful hospitals and translate that into action for the ones who haven’t been able to do that, and try to cross-pollinate ideas and just give them some insight into how hospitals of a similar size and a similar service level do become compliant,” Mr Young said. “It is a case of giving it a focus and making it happen.”

Mr Young admitted that implementing the 48-hour EWTD requirement is challenging, but felt that progress has been made on this front as well.

“It is more challenging on some sites. Significant progress has been made. We are now up to 83 per cent. There are issues in some hospitals; there are specialties that are very hard to become compliant because there is a shortage of doctors within those specialities.”

Mr Young also said that there is an issue with interns not being compliant with the EWTD requirements, which needs to be examined and rectified. While progress has been made, more work is required in order to ensure that the objectives of the Directive are met across the hospital system.

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