EU Working Time Directive (NHS)

Simon Burns Excerpts

Thursday 26th April 2012 Westminster Hall

[Andrea Leadsom]

That is very interesting. Clearly, my hon. Friend’s contractual employment was not correct because she should not have been asked that question at the same time as signing the contract.

I would like to cite a case study of a junior doctor who was employed under the working time directive in foundation training between 2009 and 2011. This is his story:

“When I was on my surgical placement as part of my training, we were told by the hospital to take a mandatory ‘zero hours’ day off every week, as we were working 8 am to 6 pm on the other weekdays, as well as some longer on-call days and on-call weekends at times. The purpose was to keep our average working week within the 48-hour limit.”

That is utterly bizarre.

“We rotated who took the day off among our team, but this meant that on any particular day only one or two doctors would know the patients who had been admitted the day before. However, those particular doctors might not be there the next day, so would have to hand over patient information to a colleague. Unsurprisingly, much information was ‘lost in translation’. Trainee doctors would also not know which registrar, or even consultant, to expect on any particular day, due to the irregular working patterns of these people also caused by the limits on working time.

Furthermore, patients no longer knew who would see them on the ward round. The effect was poor patient experience, as patients were unable to build a rapport with individual doctors. People would be very frustrated that the doctors seeing them did not know what the same medical team had planned/achieved the day before.

There is also much less time for on-the-job training for junior doctors. This was compounded by the fact that we often had to cover for other trainees who were rostered off due to the working time directive, missing our regular teaching sessions. Lack of training time has made it difficult for us to establish a rapport with our seniors, and gain adequate support in terms of mentorship and career advice. In fact, trainee doctors no longer feel that we ‘belong’ to a team, given the new shift patterns that have broken up teams of trainee doctors and their seniors. Morale is certainly lower and junior doctor sickness rates much higher. This is a negative spiral—more doctors off means that when you do turn up, your working day is more hectic and stressful, and you are much more likely to fall ill and take time off yourself.

Diary carding exercises (whereby doctors record the actual hours they work) have shown almost universally high rates of non-compliance with the working time directive. During my general medicine attachment in training, I ended up working 1.5 to to 2 extra hours (unpaid) per day and was consistently non-compliant…Doctors that do opt out of the 48-hour limit on the working week are sometimes not sure whether they will be remunerated appropriately for their time.”

That is interesting and highlights some of the problems faced by doctors who are trying to do the right thing by their patients. Of course, this is not only about doctors but about patients. My right hon. Friend the Minister will be aware of two recent cases where coroners have recorded problems associated with the working time directive. They said that it impacted on the ability of doctors to understand what was going on with patients, and that was one of the factors that caused the untimely death of a patient. The other case involved a patient undergoing a routine operation.

Let me quickly turn to the solutions.

[The Minister of State, Department of Health (Mr Simon Burns)]

It might be helpful if I give my hon. Friend the answer to her question about when one can opt out and whether one gets paid. A doctor can opt out at any time with the agreement of the employer, and the junior doctors are expected to work up to 56 hours because of their contracts. If they work more than 56 hours and it is agreed, they will be paid for those hours.

[Andrea Leadsom]

I am grateful to my right hon. Friend for that important clarification. He will note the experience of the case study that I have just read out. There is an uncertainty about payment for extra hours and the recording of extra hours. That is clearly an issue that needs to be resolved at the sharp end, if not in the principle.

[Mr Burns]

If it is of any help to my hon. Friend, I will re-clarify the matter. Junior doctors will be paid for hours over the 56 hours in their contract, but it is only with the authorisation of the employer that they can work those hours.

[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.

--- Later in debate ---

[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.

[Mr Simon Burns]

My hon. Friend might find it helpful to know—he is talking about the Nicholson challenge and asking, “What were we doing during this”—and might take some comfort from the fact that, since May 2010, the cost of locums has fallen by 11%.

[Chris Skidmore]

I appreciate that information. I only have pre-coalition data from 2007-08 and 2009-10, although they are not inaccurate. It is interesting to note that, before the coalition came in, the cost of locums was rising enormously, from £384 million to £758 million. The coalition’s inheritance was enormous. It is good to hear that there has been an 11% saving, which is roughly £75 million.

[Mr Burns]

Let me give my hon. Friend the precise figures on the savings. The number of people employed as locums by the NHS has fallen by 11% since May 2010, and the number of doctors in the NHS has increased by about 4,000.

--- Later in debate ---

[Mr Burns]

I really do not want to be a clever clogs. My hon. Friend has accurately described what happens in the Netherlands, but even with the opt-out, weekly hours in that country are limited, in that case to 60 hours.

[Chris Skidmore]

Sixty hours would be a start—65 is what most people seem to be calling for. It is about getting a balance. We do not want to go back to the 80, 90 or 100-hour working week, but nor do we want to face the consequences of the 48 or 56-hour working week. There is a balance to be struck, and I would be very interested to hear what the Minister thinks can be done. This debate is obviously an interesting one because it can go down a European direction, which I know a Health Minister cannot say very much about today. However I would be interested to hear what he has to say about the NHS in his capacity as a Health Minister.

--- Later in debate ---

[The Minister of State, Department of Health (Mr Simon Burns)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Howarth. I congratulate my hon. Friend the Member for Bristol North West (Charlotte Leslie) on securing this debate. Anyone who listened to her speech this afternoon would realise that she is an expert in this area and cares passionately about improving the current situation, which, as it will become clear during the course of my remarks, is a problem for the national health service. I have considerable sympathy with the aim of her contribution—to get improvements and changes that will aid the NHS to help those who work within it.

We have had a particularly high-level and intelligent debate in which there have been some powerful contributions—surprisingly, not from many Opposition Members—from my own hon. Friends and the hon. Member for North Antrim (Ian Paisley). I would like to call him an hon. Friend because of the kind things that he said about me, but protocol forbids me as he is not a paid-up member of the Conservative party. None the less, my thoughts are with him in that respect.

There was an excellent speech by my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter), who spoke with the authority of someone who was a consultant in a national health service hospital before coming to this place. Another powerful and highly informative speech came from my hon. Friend the Member for Totnes (Dr Wollaston), whose knowledge of the NHS has been gained through direct experience of working within it for many years before coming here.

We had a very interesting contribution from the hon. Member for Vauxhall (Kate Hoey), who cares passionately about this issue. My hon. Friend the Member for Stafford (Jeremy Lefroy) made a customarily well-informed speech based on knowledge gained partly from his experiences as an MP with the Mid Staffordshire NHS Trust in his constituency, and partly from his background interest in all health matters. I congratulate my hon. Friend the Member for South Northamptonshire (Andrea Leadsom) on a very powerful contribution. She rightly holds very strong views on these issues, and they are an important part of the debate. I congratulate my hon. Friends the Members for Hastings and Rye (Amber Rudd) and for Kingswood (Chris Skidmore), who both, in their own way, fight vociferously for their own local health economies in Hastings and in Kingswood, and show an interest in health debates.

All hon. Members are aware that this issue has been simmering, in one way or another, for many years. Recent news has shown us that dealing with the EU never seems simple, regardless of what is being discussed. I can understand the impatience of a number of my hon. Friends, because I, too, am impatient when I want something to be done that I think is sensible and should be done. Sadly, as we all know from our experiences of working within the European Union and of how that organisation works, we cannot always have instant gratification.

[Dr Wollaston]

Does my right hon. Friend think that one of the problems with the EU’s priorities is that it is demanding a 6.8% rise in its budget, rather than dealing with more pressing problems?

[Mr Burns]

I am tempted to go down that path, because I have considerable sympathy with my hon. Friend. However, time is short and I do not want to upset you, Mr Howarth. I will avoid temptation and keep myself on the straight and narrow.

We could not be clearer about how we want things to move forward. In the coalition agreement almost two years ago, the Government resolved to limit the application of the working time directive in the NHS. That position has not changed. We still believe strongly that working people should be able to work the hours they want. That means they should be able to choose to opt out of the directive’s limit on working hours. However, no one wants a situation where tired doctors are working for far too long, and for that reason it is important that doctors who choose to opt out, and their employers, agree working hours that ensure that patients are not at risk. A common thread running through the contribution of every hon. Member was the importance and necessity of not returning to what is known as the bad old days. Nobody on this side of the House, in any shape or form, would want that to happen. However, it is equally viable and intellectually respectable to argue for more flexibility, as the current situation —as highlighted in many speeches—is causing problems for the NHS. That has to be done in an ordered way. We cannot unilaterally take any action that would compromise the legality of how the European Union works, our contribution and how we operate within the EU.

[Andrea Leadsom]

Does my right hon. Friend recognise that Sweden agreed legally to join the euro and has failed to do so, and so our inability to implement all our commitments might be seen by some as trivial in comparison?

[Mr Burns]

My hon. Friend makes an interesting point that could tempt me, but I will not be tempted. Each member state of the European Union is answerable for its decisions and behaviour. I believe that if one is a member of an organisation and has signed up and committed oneself to certain procedures and legal ways to do business, it is only right that the British Government—

[George Eustice]

Will the Minister give way?

[Mr Burns]

I will not, if my hon. Friend will forgive me, simply because I have only seven more minutes. I was hoping to address some of the points raised by my hon. Friend the Member for Bristol North West.

We have to abide by the legalities. Otherwise, chaos will ensue and we will not in the longer term achieve what we are hoping to, even if we might on that narrow issue. Until the negotiations in Europe come to a successful end we are obliged to comply with the European Court of Justice and we cannot unilaterally go against it. The Department of Health and the Department for Business, Innovation and Skills are working very closely together on how the WTD will apply to the UK health care sector. Both Departments agree that we need to keep the opt-out and it would be a grave error to surrender it or to abandon it for other concessions. That is a red line for us. We have to keep the opt-out.

We also want to solve the issue of flexible on-call time and compensatory rest that allows the NHS to work within the current constraints of the working time directive. Those are both very important issues to the Government and to the NHS, but as I said, the bottom line is that the opt-out must stay. European social partners have opened negotiations to amend the WTD. At this stage, as hon. Members will know, it is not national Governments directly who are conducting these negotiations; they are being done through what is known as the social partners. In our case, it is NHS Employers and the Local Government Association with regard to local government and the knock-on effect for social care; that is an important part of the delivery of NHS services and social care.

That process is autonomous, and operates independently of the Commission and Council. The social partners have nine months at most to reach an agreement. That takes us up to September 2012. If an agreement is reached, it would be submitted to the Council for approval. But if an agreement cannot be reached, it will be up to the Commission to issue a proposal to change the directive. The Government have made it patently clear to everyone that long-term, sustainable growth must be the EU’s key priority. Every decision the EU makes must be geared towards that. So we will carry on working with our partners to make sure that EU measures support labour market flexibility and do not impose unfair costs on member states or businesses, or services like the NHS, that could hold back our economy and the delivery of services.

For the NHS specifically we are keen to ensure that an amended directive provides more flexibility, particularly in the areas of on-call time and compensatory rest, provided that a workable opt-out can be maintained. Responding to concerns about how the directive is being applied, particularly with regard to medical training—an issue raised by a number of hon. Members—Medical Education England, the Government’s independent advisory body on medical education, commissioned an independent review chaired by Professor Sir John Temple. My right hon. Friend the Secretary of State for Health has asked Medical Education England to help improve our training practices in line with Sir John’s recommendations.

In response, Medical Education England has set up a programme known as Better Training Better Care, which will improve patient care by increasing the presence of consultants and by ensuring that service delivery supports training. It includes two important components: identifying, piloting, evaluating and sharing good education and training practice; and improving the curriculum so that training leads directly to safe, effective patient care. From an education and training perspective, handovers present an excellent opportunity for training. The Better Training Better Care programme includes pilots that will hopefully show how education and training practice can improve in that area and take advantage of those opportunities.

NHS trusts in England have responded very positively to this programme: 96 trusts applied for part of the £1 million available for NHS pilots in 2012-13. Following that competitive process, last month 16 projects with 16 NHS trusts were awarded funding for those pilots. I look forward to seeing what developments they come up with.

As I am running out of time, I say to my hon. Friend the Member for Bristol North West, who wants to make a contribution to end the debate, that I will write to her with answers to a number of important issues that she raised. However, I will deal briefly with two issues now.

First, my hon. Friend asked what will happen in emergency situations such as a flu pandemic. I hope I can give some reassurance on that point. In such circumstances, as long as health and safety are protected in the round and the employer has correctly judged that the circumstances are exceptional, the rest requirements of the directive can be suspended.

Secondly, my hon. Friend the Member for Kingswood and other Members raised the vital issue of locums, including the cost of locums and their number. I share the concern of my hon. Friends about the use of locums. They play an important role when there are short-term staff shortages, or when there is illness or holidays, and there may be a limited impact of the EWTD that means that trusts will be employing locums when they might not otherwise do so. However, the evidence about the extent of that practice is not as extensive and meaningful as we would like it to be; we would like to get a fuller picture. Nevertheless, whatever the reason for the use of locums, we are concerned across the board about their extensive use and the add-on costs that brings to the NHS. That is why we are working through our training programmes and through the Quality, Innovation, Productivity and Prevention programme to seek to minimise unnecessary use of locums and to bring down the number employed, thereby reducing costs. As I said to my hon. Friend the Member for Kingswood, there has been an 11% reduction in the employment of locums, and at the same time there has been an increase in doctors.

In conclusion, I also hope I can give some reassurance to my hon. Friends about staffing levels, particularly in specialised areas, because the situation is slightly more encouraging than they may have feared. For example, if we take the current year and general surgery—

[Mr George Howarth (in the Chair)]

Order. I call Charlotte Leslie.