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The ongoing Irish journey towards compliance of NCHD working hours with the European Working Time Directive (EWTD) has been a long and arduous one.
In September 2013, inhumane working hours, jaded consultations and deteriorating health suffered by many NCHDs brought them to the precipice, with the prescient rallying cry of ‘enough is enough’. Their one-day national strike under IMO auspices marked a fork in the road.
In the months leading to the strike, the IMO contended that NCHDs were working on average 60-65 hours per week. It said many worked in excess of 100 hours per week and continuous shifts of up to 72 hours on-site, often without appropriate rest or sustenance.
After the industrial action, an agreement was reached at the Labour Relations Commission (LRC) between health service management and the IMO. The terms have included a joint verification process and hospital sanctions (including fines) where NCHDs are required to work in excess of a maximum 24-hour shift.
In the grander scheme of things, progress on EWTD implementation has been slow. The provisions of the Directive in respect of NCHDs were transposed into Irish law in July 2004.
In 2009, the European Commission initiated an infringement procedure against Ireland because it estimated that NCHDs worked very excessive hours and that there was a lack of guaranteed minimum rest periods. In 2014, the case was referred to the European Court of Justice, although the Commission lost on a technicality.
Last May, 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.
IMO Assistant Director of Industrial Relations Mr Eric Young told the Medical Independent (MI): “Compliance across the system with a maximum 48-hour week is now at 81 per cent, which is very good. Maximum 24-hour (shift) compliance is at 97 per cent and that fluctuates just a little bit – and the vast majority of that is where people are working 25 hours for to facilitate handovers.
“We are still doing a bit of work on that and trying to get it sorted but there isn’t a structural problem there; there is a minor issue in terms of getting handover sorted out in certain areas. So where somebody might start work at 8 and is due to go off at 8 the next morning, they are staying for handover, handing over at 8.30 or 9. That is where the vast majority of those breaches are taking place. But significant progress has been made overall on the EWTD and in fairness, the HSE and IMO are working well together to try and improve that.”
Commenting on the key measures instigated, Mr Young reflected: “The HSE has made it a key performance indicator for all of their hospital managers and there has been a rigorous verification process put in place at a national level.
“Where there are trouble spots, the national verification group performs verification visits — where we go and visit the hospital and go through the detail and see what can be resolved. They are the main things that have driven change.
“In a nutshell, the HSE is now taking it seriously and it has become a key performance indicator for them. It forms part of the agenda of all the Hospital Group meetings and all of the hospital meetings, therefore it is getting a very good focus. A lot of hospitals have effectively brought in shift working, where doctors are now working 12-hour shifts … ”
The strike action taken by NCHDs in 2013 focused minds — as did the spectre of potential multi-million euro fines for breaches of the Directive. Ireland submits quarterly reports to the European Commission on progression of EWTD compliance in respect of NCHDs.
Presently, the vibe from Brussels is notably sanguine. A spokesperson for the European Commission told MI that the “current co-operation process” and “atmosphere of mutual trust” between the Commission and Ireland are “key for gradually achieving results on the ground”.
She added: “The Commission is aware that the important changes required to come into compliance with the Working Time Directive entail major efforts to be deployed over several years.”
There were 4,367 NCHDs in January 2014 but by June 2016, this had increased to 5,467, equating to an additional 1,130 NCHDs. “The direct pay costs associated with this additional number of NCHDs is approximately €73 million,” outlined a HSE spokesperson.
The HSE has fined hospitals for non-compliance with 24-hour targets. These fines totalled €3,272,707 in 2015, with the single largest amount applying to Midland Regional Hospital, Mullingar (€291,668), followed by Midland Regional Hospital, Portlaoise (€277,084) and University Hospital Limerick (€270,830). The hospitals that were accorded no fines in 2015 were St James’s Hospital, Dublin; Cappagh National Orthopaedic Hospital, Dublin; and St Colmcille’s Hospital, Loughlinstown.
In the first quarter of 2016, fines totalled €794,688, with Our Lady’s Hospital, Navan (€87,500), University Hospital, Limerick (€81,250) and Our Lady’s Children’s Hospital, Crumlin (€72,917) accorded the highest amounts in that period.
Under the LRC agreement, it is a priority to ensure that sanctions cannot reduce the resources available for patient care.
Mr Young commented: “There are a number of projects that have been funded from that [fines], in terms of rostering-type projects, training-type projects and other induction-type things that have been used to be able to increase the number of NCHDs and increase their capacity to be able to work better and smarter within the system.”
Last month, Medical Council President Prof Freddie Wood noted that 38 per cent of Ireland’s medical workforce were international medical graduates, one of the highest proportions in OECD countries, and this was “probably driven to a large extent by the implementation of the European Working Time Directive”.
He added: “I would hope that with the development of the six Hospital Groups and rationalisation of particular services, and general improvement in delivery, that the overall requirement on the international workforce is actually reduced. It does create ethical dilemmas for us all, having such a high number.”
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 in train 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. For example, the report on a verification site visit to Dublin’s Coombe Hospital in November stated that the drive for 48-hour compliance was “adversely impacting on training exposure, which is impacting on trainee/consultants to deliver services”.
Prof Wood, speaking last month to MI at the launch of the Medical Council’s 2015 annual report and workforce report, referred to “accumulating evidence” that doctors could not be trained in a 48-hour week.
“[The EWTD] being applied aggressively does affect training quality and will ultimately affect the competence of doctors or surgeons in the future,” he said. In specialties that intervene on the human body, such as surgery, obstetrics/gynaecology, and anaesthesia, the difference between having academic knowledge and applying clinical skills is vast, he told MI.
Last year, the European Court of Justice recognised Ireland’s position that protected training time does not constitute working time. The verdict arose after the European Commission took a case against Ireland.
The LRC agreement between health service management and the IMO referred to the “need to ensure NCHD access to protected time as appropriate to their participation in a specialist training or professional competence scheme”. The agreement committed to engagement with postgraduate training bodies on the matter.
Speaking to MI, IMO President Dr John Duddy commented: “I am a surgical trainee myself and the reason I got involved with this campaign was to ensure that surgical training was protected, while people’s working hours were controlled.
“One of the things we did in the IMO to protect that was the protected time arrangement that was negotiated between ourselves, the HSE and the Forum of Postgraduate Training Bodies. That allows for additional time above the 48 hours that is considered training time and not working time, and that was agreed with all the training bodies.”
Dr Duddy recalled that when Prof Paddy Broe was RCSI President (2012-2014), he referred to an approximate 60-hour week as appropriate for surgical trainees, “and I think with the protected training time, it is around 58 hours”.
A specialist registrar in neurosurgery, Dr Duddy believes Ireland has taken a “more nuanced” approach to applying the EWTD when compared with the UK.
There are, however, variances between hospitals in the extent to which protected training time is being respected.
Dr Duddy commented: “What we have seen is a problem raising levels of awareness, particularly among ward staff, so that when trainees are having their protected training time — whether it is in a specific tutorial or they are in theatre, doing an endoscopy list, or whatever it may be — that staff on the ground don’t seem to be aware of the concept of protected training time, where the NCHD shouldn’t be contacted about routine stuff during that time, and that is something we are still working on.
‘In a nutshell, the HSE is now taking it seriously and it has become a key performance indicator for them’
“The level of awareness regarding the protected nature of intern teaching is pretty good across hospitals and it is about making the next step — that it is not just for interns but for all NCHDs. That is still an ongoing battle but that is a responsibility the hospitals need to take on as well, and that needs to be led from management and clinicians also, that this idea of protected training time exists, because it exists in other countries. I know of surgical residents in north America who would have specific teaching days or half days, or that kind of thing.”
According to Mr Young, a lack of data on protected training time needs to be addressed.
“The difficulty we have with protected training time is that it is not universally reported,” Mr Young told MI. “We are satisfied people are getting protected training time but it isn’t universal and it isn’t standardised across the system. So we don’t have a handle on protected training time that trainees are actually getting, which is obviously an issue of concern to us and something we are working on with the HSE, to try and figure out how we can get a common reporting system, akin to what is in the current EWTD system, which has good currency as it stands.”
Has he detected any negative impact on training in respect of EWTD implementation?
“There tends to be a bit of pushback from certain types of categories of trainees,” said Mr Young. “They seem to be mostly surgical in nature, but the whole concept of protected training time was established to try and deal with those issues, so people could get guaranteed training time where they are getting exposure to the skills, particularly in procedure-based specialties, which is what the protected training time was originally put together for…
“By and large, it seems to be well observed and it seems to have gained common currency and people are using protected training time for the purpose it was intended — to gain exposure to particular procedures that they need to get up-to-speed on and get trained on.”
Mr Kieran Ryan, Managing Director, Surgical Affairs, RCSI, said the EWTD, on its own, was not adversely impacting services or training.
The challenge is a lack of resourcing so that service levels and patient care are maintained, while still being compliant with EWTD requirements, he said. These resource deficits have a major impact on the number of operations being performed and trainees are finding it difficult to access theatre time.
He added that “from time-to-time” there are local challenges for trainees and trainers “to find the necessary protected time for training owing to the high service demands”.
According to the RCPI, all of its approved training posts are subject to “a rigorous process of inspection and accreditation” and such posts “must be compliant with EWTD”.
“RCPI monitors the impact of EWTD on service and training through on-site inspections, surveys and self-assessment exercises carried out by the sites themselves. Where issues emerge, RCPI actively works with the clinical site to address them in a satisfactory manner.”
Asked what guidance it has provided to trainees on protected training time, its spokesperson responded: “RCPI advises all our trainees that it is imperative that they have protected time for education and training activities, as appropriate to their participation in a specialist training or professional competence scheme. We give trainees a copy of Supporting NCHD Access to Protected Training Time drafted by the HSE, IMO and Forum of Postgraduate Training Bodies to support that agreement.
“Where a trainee may be concerned that their ability to meet their programme requirements is restricted due to EWTD, RCPI advises the trainees to bring this matter to the attention of their trainer, local NCHD training lead and RCPI training representative in the first instance to try to resolve.”
The College has also established a “confidential feedback telephone line” so that trainees can report issues of concern relating to training.
The IMO’s agreement in early 2016 with health service management, the INMO and SIPTU on the transfer of four tasks (IV cannulation, phlebotomy, first-dose antibiotics and delegated discharge) from NCHDs to nurses/midwives is also having some benefit, according to Mr Young.
Implementation of the agreement began in March and should have a greater impact as it continues to roll-out, he added.
“It is up-and-running in most areas to greater and lesser degrees, depending on the skill capacity in nurses… There are some places reporting great progress on it and some places are struggling and not getting quite as good traction on it, predominantly because the nursing skill-set there isn’t sufficient to roll it out.”
Mr Young conceded that bridging the final gap towards full compliance with the 48-hour week will present a “struggle”.
“There are certain specialties where it’s going to be a very, very long haul,” he said, citing paediatric cardiothoracic surgery as an example. “There are only a small number of (doctors) and the fact that they are spread over three children’s hospitals means it is going to be virtually impossible to sort that out, but it will be fixed once the [new national] children’s hospital comes on stream.
“A lot of the hard-core problem areas are where there are national specialties and the number of people on the teams you are talking about are very small, so to provide 24-hour cover with such a small number of personnel is proving challenging… It has been at 80 per cent for the last number of months and we are now working into the hard-core piece of actually getting up there to that final group; that is going to be much more difficult to resolve.”
Mr Young said registrars tend to be the most problematic grade in reaching EWTD compliance.
Asked if he had discerned patient safety issues arising from implementing the EWTD, Mr Young said: “No, not at all. One of the primary issues around all rostering and all things to do with the EWTD is patient safety, and everybody party to that recognises that is the primary concern… It is common sense that there has to be greater patient safety when doctors are not working in excess of 24 hours.”
Meanwhile, Dr Duddy said there were instances of NCHDs disputing the accuracy of hospital compliance figures. However, he said it was vital that NCHDs brought this information to the IMO to investigate.
“There may be issues with the accuracy of reporting from some hospitals, but as I said, that is anecdotal and if NCHDs are saying that, then they need to bring evidence of that to the IMO, because there is that verification process in place. If an NCHD has concerns that the figures or data being reported by their hospital is inaccurate, then they can bring their concerns to the IMO. If there is evidence of it, then the national verification group can come in and inspect that hospital, specifically, and require the hospital to provide detailed breakdowns on an NCHD-by-NCHD basis.”
There were also “some concerns” about the frequency of surgical registrars, in particular, doing on-call off-site, noted Dr Duddy.