EU Working Time Directive (NHS)

Debbie Abrahams Excerpts

Thursday 26th April 2012 Westminster Hall

[Andrea Leadsom]

Thank you, Mr Howarth. Occasionally it is difficult to remember that we are not having a conversation.

The point about the opt-out is that, under the working time directive, individuals can opt out of the maximum 48 hours per week if they choose to do so—they cannot be compelled to do so.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Is the hon. Lady suggesting that we opt out of, for example, co-ordination on public health strategy or communicable diseases? Co-ordinating at an international level on bird flu and other pandemics is hugely important.

[Andrea Leadsom]

All I am saying is that, under the Lisbon treaty, member states that do not like certain legislation have the opportunity to club together and to propose that the European Commission look at it for possible deletion or significant amendment. That happened with the working time directive at two points in the past, in 2004 and 2010, but the attempts to amend it came to naught. The great tragedy is that with 27 member states there is simply a Chinese whispers effect. Someone says, “This is ridiculous, it is harming our national health service”; everyone agrees, “Yes, it’s ridiculous”, and therefore an amendment is proposed; but by the time it has gone around 27 member states, it is completely lost and gets nowhere. That is the fundamental problem with negotiating amendments.

My original point was about the importance of the time line of the working time directive. In 1990, the European Commission tabled the proposal for the working time directive as a health and safety measure. In November 1993 the UK was outvoted 11 to one at the European Council negotiations. The European Commission stated that the working time directive was

“a practical contribution towards creating the social dimension of the internal market”—

it was all about health and safety for employees, and employees in the real economy overworking; it was not intended to have the profound impact it has had on the national health service. David Hunt, who was Employment Secretary under the then Conservative Government, said that he would fight the legislation and not accept it. He tried hard, by going to the European Court of Justice to challenge the legal basis of the directive as health and safety legislation, but the UK was outvoted.

In 1996 the ECJ ruled against the UK, and Labour implemented the working time directive in 1998. The directive requires a maximum working week of 48 hours, a rest period of 11 consecutive hours a day, a rest break when the day is longer than six hours and a minimum of one rest day per week, as well as the statutory right to four weeks’ holiday. Such a list of requirements highlights the directive’s complete inflexibility; it clearly cannot be applied to absolutely every type of worker in our economy. In the end, the European Union had to admit that there were certain exceptions, which is why in some countries trainee doctors are treated as autonomous—in other words, self-employed. That is used as a means to get round the rules, because it is never going to be possible to enforce that kind of rigidity on people who are self-employed. There are all sorts of unintended consequences from a prescriptive and damaging set of rules.

In his response, will the Minister confirm whether the NHS has caused some of those problems—not necessarily deliberately—by offering contracts to doctors and junior doctors that are subject to a maximum of 48 hours? We should remember that the NHS is not allowed to invite new employees to opt out of the 48-hour working week at the same time as they sign their contract, because of fears of coercion. Does the Minister have a view about whether the NHS has created part of the problem by telling junior doctors and other health workers in their contracts that they will be paid for a 48-hour week, and then inviting them to opt out at a later date? There is a wealth of evidence to suggest that many doctors are working hours that are unpaid because their contract allows them to be paid for only 48 hours a week. Perhaps the Minister will comment on that in his response.

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[Andrea Leadsom]

I am grateful to my right hon. Friend. As my hon. Friend the Member for Bristol North West pointed out, representatives of doctors and NHS staff do not agree among themselves about whether they support the European working time directive. Certainly, the Royal College of Physicians, NHS Employers and the Royal College of Surgeons are concerned not only that the working time directive causes a problem for doctors and patients, but that it does not do what it sets out to do, which is to deal with the exhaustion of doctors themselves. The Royal College of Surgeons says:

“We know from our members that working in a full shift pattern is more tiring when compared to working using an ‘on-call’ system, and creates a working environment that is impairing to patient safety.”

The British Medical Association believes that the European working time directive is entirely right in all of its manifestations. Patient and doctor representatives need to resolve the question of where they stand, as representatives of health service workers, on the implications of the working time directive.

Turning to the options for change, the Fresh Start project has done a great deal of work on this. Certainly, there are things Britain could do in isolation to try to improve the situation, and we have heard about some of them today. Some doctors in other European Union countries have two contracts, which has been used as a way of getting round the working time directive. We have heard about all sorts of workarounds that Britain does not tend to use, and the Government might want to consider what other countries have done. Certainly, MEPs in Europe have told me that some doctors will take on two 48-hour contracts, which seems to be going back to dangerous practice. Nevertheless, if an impossible situation is created, we end up with people just trying to defeat the problems.

A far more likely scenario is that we negotiate for change with other members that are unhappy with the consequences of the working time directive. We should get together with the 16 other member states that are determined to see change and that have negotiated an opt-out, so that we can get the directive changed specifically in relation to the NHS and make our economy more flexible.

What we are proposing is a concrete option for change. At the time of the European members’ attempt to get their recent fiscal consolidation agreement into the main treaties, there will be an opportunity for Britain to go to the EU Council with its own proposal for change. This is a clear opportunity, which has arisen from the need for fiscal consolidation in other EU countries, for Britain to prepare a list of changes to various elements of the treaties that it would like to see, and to go all out to negotiate those changes when the time comes, in three or four years. In line with the proposal put forward at the all-party parliamentary group for European reform, I recommend a triple lock whereby Britain arranges to opt out.

[Debbie Abrahams]

This is an interesting and useful debate. Is the hon. Lady aware of the recent systematic review—the highest level of evidence we have—that was inconclusive on the impact of the working time directive? I think there has been only one UK study undertaken since 2009, and one recommendation in the systematic review is that there should be more research. Is that not one of the outcomes we should be pressing for here, so that we have a full, evidence-based understanding that will enable us to ensure that policy is adhered to correctly?

[Andrea Leadsom]

I thank the hon. Lady again, but a mistake that many Opposition Members fall into is to think that only the European Union can legislate to protect the British NHS. Of course, that is simply not the case. Britain is perfectly able to legislate for its own NHS needs without the support of the European Union.

[Debbie Abrahams]

Will the hon. Lady give way?

[Andrea Leadsom]

I would like to finish now. I have given way to the hon. Lady twice.

The first lock would be for the UK to argue that it should opt out completely from the social policy section of the EU treaties. The second lock should be for the UK to have the ability to opt out of any future EU proposal that it believed would impact intolerably on its social and employment law. The third lock would be for Britain to negotiate that the ECJ should not be allowed to have jurisdiction over ruling whether the UK was right to opt out of that legislation. That is the only way, once and for all, to enable Britain again to have control over its own working time hours—not only for the NHS, but for the future of the whole of our British economy.

[Amber Rudd (Hastings and Rye) (Con)]

It is a pleasure to follow my hon. Friend the Member for South Northamptonshire (Andrea Leadsom) who, as always, speaks with such authority on the relationship between this country and Europe. I was particularly interested to hear the relevant experience of my hon. Friend the Member for Totnes (Dr Wollaston). Most hon. Members have said that we do not want to go back to 100 hour weeks; her rather shocking and frightening examples remind us all why that is so. What we want is flexibility—F for flexibility, as the hon. Member for North Antrim (Ian Paisley) so helpfully put it—so that we can try to get a better outcome for everybody.

So much has already been said and covered, particularly by my hon. Friend the Member for Bristol North West (Charlotte Leslie), who did so well to secure the debate. As she made her remarks, I was concerned that she was going to cover absolutely everything. She pretty much did, so I will just concentrate on one area—surgery—where the effect of the working time directive has been particularly damaging.

Although, as some hon. Members have pointed out, the British Medical Association has said that all training can fit into 48 hours, surgeons I have spoken to are concerned. The body that represents trainee surgeons, the Association of Surgeons in Training, has stressed that surgery is very different from all other aspects of the medical profession. It has clearly taken on the BMA in trying to make that point. As the hon. Member for Vauxhall (Kate Hoey) said, surgery is a craft specialty like chefs, for example—a lot can be learnt from books, but in the end there is nothing like hands on practical experience. Operative and procedural skills define the surgical craft and they are finite in number, with the majority to be gained during working hours. By limiting those hours, we are working against their training and therefore their competency as future consultant surgeons. As the ASIT survey confirmed, the majority of surgical trainees would welcome the opportunity to work in excess of the hours permitted—we are not doing them any favours by restricting their hours.

The Royal College of Surgeons estimates that 400,000 hours of surgical time are lost every month. ASIT believes that the restrictions imposed by the directive will be detrimental to the quality of training for junior surgeons and, therefore, to the quality of surgical service and provision in the future. Ultimately, as said by many of my colleagues today, the restrictions will be harmful to patient care. We also risk deterring junior doctors from specialising in surgery, as they are only too aware of the consequences of the restrictions. The royal college and ASIT both call for flexibility to enable UK surgeons to work up to a maximum of 65 hours per week, including time spent on call.

In addition to the effect of the working time directive on doctors’ training, the legislation is impacting on the continuity and quality of patient care in our hospitals. According to a survey by the Royal College of Surgeons, 80% of consultant surgeons and 66% of surgical trainees said that patient care had deteriorated as a result of the directive. Those consequences are worrying, and we need to focus on them.

[Debbie Abrahams]

In an earlier intervention, I referred to the systematic review. I appreciate that surveys give a certain amount of one-off evidence, but systematic reviews are the strongest form of evidence, and there were no conclusive results regarding an impact on patient outcomes. Whatever action we take, it surely should be based on the strongest evidence and not on evidence of lesser quality.

[Amber Rudd]

I am talking about evidence, and every Member present has been talking about their own evidence—

[Debbie Abrahams]

But not the strongest form of evidence.

[Amber Rudd]

Anecdotal evidence is absolutely relevant. We get such evidence from talking in our hospitals to consultants, patients and surgeons. That is much more relevant sometimes than the box-ticking consequences from a more desk-driven survey.

Our 24-hour health service has had to make dramatic changes to how hospitals are staffed. The effects of the reduction in hours have been further compounded by the Jaeger and SiMAP rulings of the European Court of Justice, referred to by my hon. Friend the Member for Bristol North West. Those decree that all time spent in the workplace should be regarded as work, whether at rest or not, which is a dramatic change from previous arrangements. As a result, hospitals have had to scrap all on-call arrangements in favour of full shift rotas, which is creating a multitude of problems. Consultants at the Conquest hospital in Hastings told me that, in order to staff a full shift rota in one department, they now need eight people instead of the six they used to have on the old on-call system. Sometimes there is not even enough work. Indeed, the exposure of each doctor to training opportunities in the day is diluted, and the extra doctors are employed purely to service a working time-compliant rota.

The rota and the system are driving health arrangements, which is surely wrong. It is an inefficient and costly way to manage doctors, and it is damaging to the quality of their training. It is particularly harmful for district general hospitals such as my own, the Conquest, which find that they are no longer able to support certain specialties, such as the neurology department in my example, which has now largely moved to the nearby Eastbourne general hospital. Unfortunately, as we have heard from other Members, the same impact on certain specialties is being experienced in their district hospitals. The doctors at the Conquest do a fantastic job, and I am extremely grateful for the hard work and commitment that they put in; but, from my conversations with the consultants, I know that those doctors are being stretched too thin.

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[Debbie Abrahams]

Is that not the point? This is about ensuring that we have quality data to inform policy development. It may not be working as it should be—I will accept that—but we cannot use incomplete, poor data to propose solutions. We need to ensure that we have quality data to inform that process. What if I made a statement now and that was regarded as evidence? Surely we are not going to base policy on just one person or on poor data.

[Chris Skidmore]

I agree. I am sure that all hon. Members would echo such a call. We should have complete data. The complete data, if we had them, would show that the situation is far worse and that, instead of the £1 billion a year cost, the hidden cost is, according to the data that I have, perhaps £2 billion. We do not know.

My hon. Friend the Member for Bristol North West, almost like a Cassandra, warned that this would be a problem back in 2010, and started the campaign with no data at all. Two years down the line, we find what she said to be true, in respect of data from individual trusts. We will know more, probably, by the end of this year and there will be more stories in the Sunday papers and it will become an ever bigger issue. That is why it is so important to have this debate now, because when the public and patients who use the NHS ask, “What were you doing about this, as MPs?”, we can say, “We’ve had this debate. Okay, it’s not come up with all the solutions just yet”—we are interested to hear what the Minister says about possible solutions—“but we are on the case.” That is important, because an avalanche of cases will come forward in the near future. It is important to recognise that.

There is a challenge from Nicholson and we need to make those savings. The problem is that this matter is standing in the way of the Nicholson challenge being effectively delivered. Either we have to push harder to gain those efficiency savings—the problem now is that we have inefficiencies of the worst kind and are essentially having to make more efficiencies elsewhere to reinvest in front-line care—or the money will not be reinvested back into front-line care. Working time directive costs are classed as front-line care, when clearly they are not, so money is being removed that could be spent on nurses or on alternative equipment for the NHS that would have benefited patients.