If the European Court of Justice upholds the opinion of the advocate general that Ireland is in breach of the EU's working time directive in relation to doctors' working hours, it could have significant implications not only financially but also for the structures of the Irish hospital system.
For more than a decade now medical organisations have argued that non-consultant doctors were being forced to work hours that were far longer than those permitted under the directive.
The directive sets out a number of measures to protect workers’ welfare and safety. These include:
* a maximum 48 hour working week, averaged over a reference period,
* a 20 minute break for every 4 hours and 30 minutes worked or a 30 minute break for every 6 hours worked,
* 11 hours daily rest or equivalent compensatory rest and 35 hours consecutive rest every 7 days; or two periods of 35 hours or one period of 59 hours of consecutive rest every 14 days.
Breached
However, the Irish Medical Organisation has consistently maintained that these these rules were being widely breached.
The Government for its part has contended that ongoing progress had been made in relation to achieving compliance with the provision in respect of non-consultant hospital doctors.
It maintained that data collected by the HSE showed that average working hours for NCHDs had fallen significantly in the past five years or so.
The European Commission was not satisfied with the rate of progress in Ireland in putting in place the terms of the directive and in November 2013 it decided to refer Ireland to the European Court of Justice.
Earlier in September 2013, around 3,000 non-consultant hospital doctors staged a one-day strike in protest at lengthy working hours.
Under the settlement proposals at the time, the HSE agreed to the elimination of shifts in excess of 24 hours by January and for the working time directive to be implemented in full for non-consultant hospital doctors by the end of 2014.
Some progress was achieved in reducing the working hours for non-consultant doctors particularly in tackling working weeks in excess of 68 hours and of continuous 24-hour shifts. However, problems remained in other areas.
Difficulties
In a briefing note prepared for the Minister for Health Leo Varadkar last July the Department of Health said achieving full compliance with the directive including the 48-hour week by the end of 2014 would be "challenging", particularly given difficulties in recruiting and retaining certain categories of non-consultant and consultant doctors.
The Department of Health said service re-organisation would be required.
The Irish Medical Organisation said at the end of last December 67 per cent of non-consultant doctors were compliant with the 48-hour working week, meaning that one third were not.
However doctors’ trade union said that much of the progress was based on the principle that protected training time for non-consultant doctors were considered to be outside of the scope of the working time directive.
The opinion by the advocate general published on Thursday basically said that the limits on working hours as set out in the directive should cover both time spent in training as well as that devoted to treating patients.
It said the Government was wrong to assume that the training of junior doctors did not fall within the remit of the EU Working Time Directive.
This would mean that the compliance rate could fall from 67 per cent to possibly about 55 per cent, according to some informed sources.
Non-consultant doctors, while fully qualified, are considered to be still in training in a particular medical or surgical speciality.
Different grades of non-consultant doctors have different levels of protected training time, when they could, for example attend a class or participate in a ward round outside of their duties to treat patients.
Interns have protected training time of about 20 hours per month while the figure for more senior doctors is about 27 hours per month.
Fines
The decision on Thursday by the advocate general does not represent a judgement or finding of the European court of Justice. But in most cases, the ultimate finding is in keeping with these preliminary views.
A number of employment lawyers said on Thursday that if the opinion was upheld by the Court in a few months, the Government could face fines for breaching the directive.
The door could also be open for individual doctors to sue if they believed their rights under the directive had been consistently breached.
The Irish Medical Organisation said that the fines could be in the region of €100 million and €1 million for every day the breach of the working time directive continued.
It said it believed a number of individual doctors were in the process of taking cases against their employer for breach of the directive.
The advocate general opinion comes at a time when hospitals are finding it difficult to secure sufficient medical staff.
Medical organisations have contended that there has been a “brain drain” of young doctors from Ireland in recent years as a result of pay cuts and better career opportunities abroad.
Last week a study found that 90 per cent of medical students said they would consider emigrating when they qualified.
Earlier this year the government was forced to reverse significantly unilateral pay cuts of 30 per cent introduced in autumn 2012 for consultants appointed after that date as it had become increasingly difficult to fill senior medical positions.
