The European Working Time Directive, which came into effect on Sunday, provides for a reduction in the hours worked by non-consultant hospital doctors. They must not work in excess of 58 hours per week, averaged over a year; this limit is scheduled to drop to 48 hours per week on August 1st, 2009.
It is legally binding in all EU member states and neither the Irish Medical Organisation nor the Department of Health have sought a derogation from its implementation. Nor is there any provision in national legislation for an opt-out for either a doctor or individual hospital. Despite this, and many hours of negotiations between the IMO and the Health Service Employers Agency, the implementation deadline has passed without any change to junior doctors' working hours.
Admittedly, the shift patterns of almost one in six doctors are already compliant. But the majority of non-consultant hospital doctors, and their employers, are in breach of the legislation. No further talks are planned until the middle of August and it is unlikely the issue will be resolved for a number of months. As a result junior doctors could in theory seek compensation at an employment tribunal.
However, the real losers in this stand-off are patients. The legislation is designed to ensure that over-tired doctors are not looking after vulnerable in-patients. With mounting evidence of the dangers of healthcare error, any delay in implementing the directive constitutes an unacceptable risk to patients.
There are important health and safety issues at stake too. Doctors and indeed all workers can damage their long term health by continually working excessive hours. Under the directive, junior doctors must be given 11 consecutive hours of rest within each 24-hour period and 35 consecutive hours rest every 7 days. A Department of Health interpretation which would have allowed doctors work 91 hours a week and 11½ days in succession - by telescoping rest periods - is clearly against the spirit of the legislation. And the insistence of the IMO that doctors' core hours be 9 a.m. to 5 p.m., with hours in excess paid as overtime, is not consistent with the realities of modern shift work. What is more reasonable is the doctors' concern about wanting adequate training within safe working hours without compromising the quality of care of patients.
The European Working Time Directive was a driving force behind the Hanly Report which, in turn, made a number of recommendations to improve Irish healthcare. Among these was the doubling of consultant numbers over a 10-year period as well as a major investment in infrastructure and information technology. This is a reminder that health service reform is a complex process, any element of which cannot be taken in isolation. However, progress must start somewhere and just because the new working time legislation has come into effect first should not allow employers or trade unions to use it to forestall reform.