There will now be a presentation by officials from the Department of Enterprise, Trade and Employment and the Department of Health and Children on COM (2004) 607. I welcome Mr. Michael Pender from the Department of Enterprise, Trade and Employment and Mr. Bernard Carey, Mr. Larry O'Reilly, Mr. Ciarán O Maoileain and Mr. Andrew Condon from the Department of Health and Children. I ask Mr. Pender to commence the briefing on COM (2004) 607, a proposal for a directive of the European Parliament and of the Council amending Directive (2003/88/EC) concerning certain aspects of the organisation of working time. Members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.
Scrutiny of EU Proposals.
Mr. Michael Pender
I wish the committee a good morning and thank it for this opportunity to outline the general background to the review of the European Working Time Directive. Article 18.6 of the original Directive 93104 EEC of 23 November 1993 provides that the European Commission should carry out a review of the directive's application and operation every five years. Against this background the European Commission published a consultation paper in the form of a Commission communication on the re-examination of the European Working Time Directive in January 2004. It then published a formal proposal — reference COM (2004) 607 final — to amend the directive on 22 September 2004 following a consultation process in the first quarter of 2004. This involved the EU's member states, its social partners and various Community institutions such as the European Parliament.
Critical issues such as the length of the reference period over which average working time is calculated were addressed in the new proposal. Ensuing from recent European Court of Justice rulings in the Simap and Jaeger cases, matters concerning the definition of working time, time spent on call, clarification of compensatory rest and the conditions for application for the opt-out from the 48-hour ceiling on maximum working hours were also addressed. The Dutch Presidency held a first exchange of views on the Commission's proposal at the Employment and Social Affairs Council at Luxembourg on 4 October 2004. In light of the above court cases, delegations welcomed the proposal on the grounds it would improve legal certainty concerning the time spent by doctors not working during on-call duty.
In December 2004 the Council made progress on a number of key issues. First, the possibility of extending the reference period for the calculation of the maximum weekly working hours — 48 hours — from four months to 12 months was raised. While the standard reference period should remain at four months, the Council agreed on a provisional basis to an option being given to member states to extend this to 12 months on the grounds of objective or technical reasons or for reasons concerning the organisation of work subject to compliance with the general principles of protection and the healthy and safety of workers provided the social partners were consulted.
Second, progress was made on the issue of on call time, the period during which a worker must be available at the workplace in order to carry out his or her activities or duties at the employer's request. The Council took account of the Simap and Jaeger cases, in which the ECJ ruled that doctors' periods of inactivity while on call must be regarded as work within the meaning of the directive. In view of this the Council reached broad agreement on the basis of a compromise text suggested by the Dutch Presidency involving the insertion into the directive of three new definitions. These relate to the workplace, the inactive time of on-call time — the period during which the worker is on-call but not required by his or her employer to carry out his or her activities or duties — and on-call time.
A new article providing that the active part of on-call time — when the worker carries out his or her duties — be regarded as working time was included. It also provided that on-call time should not be regarded as working time unless national law and collective agreement decided otherwise.
Third, broad agreement was reached on the issue of compensatory rest. This has to be granted in cases where a derogation is made to the directive's provisions on daily or weekly rest. The Council examined a Dutch Presidency suggestion that compensatory rest should be afforded within 72 hours or a reasonable period, for example a maximum of seven days as determined by national laws, regulations, administrative provisions or collective agreements.
Last, on the basis of further Dutch compromise proposals, the Council discussed in depth the policy provision allowing an opt-out of Article 6 of the directive, which limits the average weekly working time to 48 hours. A significant majority of member states regarded this suggestion as a good base for discussion but agreement could not be reached. The Commission proposal envisaged the introduction of the opt-out only by way of collective agreement and to limit individual opt-outs to cases involving no such existing agreements and no workers' representation empowered to conclude such an accord. An individual opt-out would be subject to strict conditions.
As a result, the Council instructed COREPER to continue its work on this aspect of the proposal pending receipt of the European Parliament's opinion with a view to an agreement being reached as soon as possible. No further progress is expected on this proposal until its first reading by the European Parliament under the co-decision procedure is completed. This is expected to take place in March or April 2005.
Ireland's position on the various elements of the proposal is set in the brief that has been circulated to the committee. Ireland welcomes the proposal in general and views it as part of a well balanced package intended to give workers and employers flexibility. The retention of the opt-out remains the most contentious issue. While Ireland does not avail of it and does not intend to, the Irish delegation believes that an agreed and balanced solution is obtainable and should be global, horizontal and interrelated. As borne out in December 2004, the post-enlargement political reality within the Council suggests the greater majority of member states favour a balanced package; the retention of the original opt-out, with improved safeguards, and the Dutch Presidency's bias towards social dialogue as a means of achieving solutions rather than recourse to derogations which may ultimately be justified on a transitional basis only.
The Commission's proposal affects all workers across the economy. The European Court of Justice rulings have caused particular difficulties for the health sector. My colleague from the Department of Health and Children will outline its perspective of the proposal and I will answer any questions committee members may have after Mr. Carey's presentation.
My colleagues and I are pleased to have this opportunity to outline the Department of Health and Children's response to the current EU Commission proposal for amending certain provisions of the European Working Time Directive. We will answer as best we can any questions the committee members may have.
While the directive applies to all sectors and workers, health service management has a keen interest in certain aspects of its implementation. Doctors in training have hitherto been excluded from any of its key provisions. We have an equal interest in many of the amendments proposed by the Commission. I do not propose to rehearse the full presentation already circulated to the committee but I will mention a few key points.
The making of regulations in July 2004 to transpose the directive as it relates to doctors in training marked a significant milestone in the ongoing improvement of their working conditions. Those regulations set out the framework for moving in phases from 1 August 2004 to a situation where doctors in training will enjoy the same maximum average working week of 48 hours and the same general working conditions as applicable to other employees. These provisions have applied to other staff in the health service since 1998 without much difficulty.
The directive has been transposed, its implementation for doctors in training is progressing and a national co-ordinator and support team are handling the preparation of draft rosters and recording of hours worked. Training principles for incorporation into the new working arrangements have been agreed by the health services employers, the postgraduate training bodies and the Medical Council. Implementing the full requirements imposed under these regulations has proven more problematic to date for reasons of industrial relations but I am glad to report there has been recent progress on this front.
Over the past four years the health service employers, in conjunction with the Department, have conducted discussions, under the auspices of the Labour Relations Commission since December 2003, in various fora with the Irish Medical Organisation with a view to implementing improved conditions for doctors in respect of working hours and conditions under the directive. Progress to date has been slow.
Last summer the LRC advised the management side and the IMO that they should continue to abide by their agreement to avoid unilateral or precipitive action while still engaged in talks before the commission and, specifically, that health employers should not, pending the conclusion of discussions in the LRC, unilaterally impose the significant roster changes required for full compliance with the directive. The Department and health employers have honoured and will continue to abide by that request.
While progress is slow, there have been positive developments in the recent past. The IMO has agreed to participate in pilot groups in nine hospitals which will map out and document how measures to reduce or reorganise NCHD hours can best be implemented. This process includes a "hospital at night" data collation exercise. Only last week in the LRC agreement was reached with the IMO on a data collection process in the pilot sites involving use of a hospital diary form. Agreement was also reached on the establishment of a national implementation group to drive compliance with the directive and on the recommencement of the non-consultant hospital doctor contract negotiations. We very much hope this progress will be built upon in order that doctors can, as soon as possible, begin to reap the benefits of the improved working conditions to which they are entitled under the directive. The full co-operation and active participation of the IMO and the Irish Hospital Consultants' Association are needed; otherwise the progress that can be made will be extremely limited.
Turning to the main reason for our attendance today, the European Commission published a proposal last September by way of amendments to the directive. While the proposed amendments would affect all workers, they stem in large measure from the need to address significant difficuilties in implementing the terms of the directive as it relates to doctors in training. The difficulties we face in Ireland in this regard are similar to those facing many other EU member states, particularly the United Kingdom and Germany.
My colleagues from the Department of Enterprise, Trade and Employment have outlined the details of the Commission's proposals. The following is the perspective of the Department of the Health and Children. The broad thrust of the proposals has been welcomed by the Department and this position has been advised to the Commission. Specifically, we welcome the proposed extension of the default reference period for calculating average weekly working hours to one year, an increase from 17 weeks in most sectors at present. On foot of a derogation in the directive, a one year reference period would apply to doctors in training until August 2007, falling to six months thereafter. We also welcome the proposal that compensatory rest may be taken within 72 hours of a doctor in training returning to work rather than immediately as required at present. We welcome, with certain qualifications, the proposal that "working time" be redefined with particular reference to time spent on-site on call but inactive, a significant issue in the medical context.
The Commission has proposed changes to the individual opt-out provision. However, as has been indicated to the committee, Ireland has not incorporated the provision into law and the proposals will have no implications in that regard. The Department of Health and Children has, therefore, made no observations on this aspect of the Commission's proposals. It is worth noting that the provisions of the existing directive will apply for a number of years to come, even if agreement on amending the directive is eventually reached.
The presentation circulated to members sets out the Department's position in more detail but my departmental colleagues and I will do our utmost to answer any questions members may have.
I thank the many representatives present for coming. They are welcome. I had to leave the meeting for a short while and I am only catching up on the presentation.
I have three brief questions. Have changes been made in accordance with the directive in all hospitals? If not, what percentage of hospitals have done so? Why are young NCHDs still working extremely long hours which seem to constitute a dangerously high level, even though they are in compliance with the directive because of the way time can be allocated in clusters to ensure such doctors work for a long period and then have a long period off? Is that not negating the purpose of securing shorter hours, thereby ensuring safer practice? Given that a major amendment to the working time directive is proposed by the Commission since the Hanly report was published, does this not have implications for the report, the genesis of which was based on the directive? If the directive is to be significantly changed, surely this will have an impact on the report's recommendations?
I welcome the delegation. I am bamboozled by the language used in the presentations which is not a criticism of those who made them. The reference to working time in terms of "on-site on-call but inactive" would lead to a bureaucratic nighmare. This is a serious point. The proposal has been devised by someone who has no concept of the work NCHDs do in hospitals. My understanding of the reference, on which I am open to correction, is that "on-site" means NCHDs are working in the hospital; "on-call" means they are ready to work while "but inactive" means they are either sitting down or, more likely, in bed. Will we get to a stage where NCHDs will be required to keep a diary beside their beds and if they receive a telephone request which can be dealt with over the telephone, they will log on and log off and that if they go to see a patient, they will have to log off and then log on again? This system is totally and utterly unworkable. Whoever devised it has no concept of what happens in a hospital.
Will Mr. Carey explain what is meant by the proposal to extend "the default reference period for calculating average weekly working hours to one year, an increase from 17 weeks in most sectors at present". It may be simple but I do not understand what it means. Where precisely does the Department stand with the IMO and the NCHDs on this proposal?
I thank the representatives for their presentations. Like Deputy Devins, with regard to some of the content, I find it difficult to understand how the directive will work in practice. There are plenty of surveys to show that more mistakes are likely to be made with patients in hospital if doctors have been on duty for a long time. With all the directives that have come through and all the delays, what will be the legal position if something goes wrong in treating a patient and he or she decides to sue and cite long working hours as the reason for such an error? It seems we are in a weak position because there is plenty of evidence to show we should have acted more smartly. This issue could all have been dealt with before the IHCA dispute with the Minister regarding the MDU and historical claims which has been ongoing for some time. I would have thought patients were in a strong position to argue that, having regard to the evidence, junior doctors should not be on-call for the length of time Deputy Devins and I used to be on-call but nothing has happened in that respect.
I will address, first, Deputy McManus's question about the Hanly report. It is important to understand that to date the directive has not been changed. What are before us are proposals to amend it which may take a number of years to come on line. The thrust of the Hanly report, the report of the task force on medical staffing, was to set out a road map for how Ireland would comply with the working time directive as it would apply to junior doctors. It is revelent that the Tánaiste announced the second phase of the work to be undertaken in scoping the rest of the country, other than the two pilot sites in the eastern area and what was the Mid-Western Health Board area. This task has been assigned to the National Hospitals Office but the principles remain the same in terms of increasing the number of hospital consultants and reducing the number of non-consultant hospital doctors. We are moving towards a 24-7 consultant-led service.
We are in discussions with the Irish Medical Organisation in the Labour Relations Commission and must have regard to due process. We have been trying to work on this issue since 1999. It is unfortunate that there are differences of opinion as to how we should move forward. A core issue is what exactly is the definition of "working time" and what constitutes a working week. The IMO position is that an NCHD works from 9 a.m. to 5 p.m., Monday to Friday, whereas we see this as unsustainable in the hospital service; it has to be done on a shift or rostered 24-7 basis.
Complex and protracted negotiations are ongoing and there has been a slight breakthrough in recent weeks. We always intended to set up local implementation groups in each of the hospital sites affected to ascertain what was required to ensure full compliance with the directive. Unfortunately, progress was hampered by the industrial relations difficulties that arose. However, we have nine pilot sites and hope we will secure agreement on the establishment of the national implementation committee which will be able to provide guidance. The committees will be representative, not only of hospital management but also of doctors, consultants and other professional grades, including nurses and midwives, where appropriate.
A number of technical questions were asked which I would like to pass to my colleague, Mr. Andrew Condon, particularly concerning some of the terminology used in the proposals.
Before we hear from Mr. Condon, I wish to return to another question. A period of six years, 1999 to 2005, is covered. Obviously, it is a sensitive issue but did Mr. Carey say there were nine hospitals in which an implementation body was working?
There are nine hospital sites where local implementation groups have been established. I can name them for the Deputy.
I am not particularly interested in that matter but would like to know what it means. Are they working?
They are scoping what is required to ensure a particular hospital is compliant with the provisions of the directive in reducing the hours of NCHDs to 58 per week.
How is Ireland complying with the directive?
We are in a similar position to other countries. I will ask Mr. Condon to deal with that question because he can outline some of the specialties in which we are compliant and others in which we are not. However, I must re-emphasise that, in deference to the request of the Labour Relations Commission, health service employers agreed not to take unilateral action. In attempting to work towards achieving compliance with the directive we must have the protection of patient care uppermost in our minds. We cannot do anything that is arbitrary and would interfere with patient safety. That has to be the bottom line.
Mr. Andrew Condon
As Mr. Carey noted, we have not moved towards unilateral implementation of the directive because he has not yet achieved agreement with the IMO on some of the key issues involved. During the past five years, with the report of the national joint study group on doctors' working hours and the report of the national task force in 2003, we have been engaged in a planning process, attempting to map out how we would proceed with implementation. We entered an IR negotiating process, on which we are awaiting agreement before we act unilaterally. We have a number of specialties in which there is semi-automatic compliance because of current work practices, of which psychiatry is one. As regards emergency medicine, junior doctors in accident and emergency units in our larger hospitals work a form of shift system. Therefore, they are readily compliant.
I wish to address the notion that one can be compliant and still work long hours. Currently, the directive limits a person to a 13-hour working day and an 11-hour rest period. If one works more than 13 hours, one must immediately have a compensatory rest period before the next period of work. Therefore, if I work 14 hours on a Tuesday, I have exceeded my normal working day by one hour and must have that hour back before I come into work on the Wednesday. Effectively, therefore, it is not possible to work long blocks of time and be compliant with the directive because of the requirement for immediate compensatory rest. The Commission has taken the notion of immediate compensatory rest into account and is currently proposing that it be given within 72 hours, as opposed to immediately.
Is it worse?
Mr. Condon
It is certainly a relaxation of the Court of Justice's ruling on immediate compensatory rest. From a worker protection point of view——
It is a lot worse.
Mr. Condon
From a continuity of care for patients point of view, it has been advocated by health departments, including our own, as an improvement.
I wish to address the point about fragmentation of working time and the monitoring of working time for those who are on-site, on-call. We highlighted to the Commission problems in getting an accurate record of working time where a judgment is made that inactive time when on-site, on-call is not classified as work. Currently, as a result of rulings by the Court of Justice, this means that if one is on-site, on-call, all the time one is on-site, on-call one is working. Therefore, it is all counted and whether one is resting, eating, sleeping or working, it is all classified as work. The Commission is proposing that inactive time during this period should not count. The problem that arises immediately is how one starts to measure inactive time. It will result in fragmentation. One can imagine that — given a situation where a doctor is called to the ward, leaves, has a cup of coffee, sleeps for an hour and gets back — there will be administrative problems. Our preference, as clearly expressed both in the report of the national task force on medical staffing and in subsequent documentation, has been to provide for specific periods when a doctor is working as opposed to fragmented periods when he or she is both working and resting.
I will ask my colleague, Mr. Pender, to talk about the term "default reference period".
Mr. Pender
On Mr. Condon's point about starting and finishing times, this has caused major headaches in the working groups in Brussels. At the December Council the Dutch Presidency floated the idea which is still being teased out at official level — short of putting a bleeper on somebody to account for where they are — of measuring starting and finishing times across a sector whereby one would look at a sector for a suggested period of two months to assess active-inactive patterns of work and draw up an agreement. The idea of a two month period was floated to try to remove administrative headaches from the equation. The situation stems from the decision of the Court of Justice that time on-call, regardless of whether one is working, is working time. This is causing major headaches across the board, not just in the health sector but also in security and caretaking services where people are resident in the workplace.
The idea behind the reference period is that under the original directive, from 1993, one had the option of calculating the 48 hour maximum working week over a period of four months. The idea was that one could work 50 hours one week and 46 the following week. Once the average figure did not exceed 48 hours over a period of four months or 17 weeks, there was flexibility for employers and workers. Not only did we follow this option in transposing the directive under the Organisation of Working Time Act 1997, we also provided for a provision, included in the directive, to allow the reference period to be extended to 12 months by means of a collective agreement. We have a system whereby there are collective agreements registered with the Labour Court under the Organisation of Working Time Act. We have 181 such agreements affecting approximately 11,000 workers in the construction, textile and service industries. The idea behind the reference period is to give flexibility to employers and workers reflecting, for example, seasonal work patterns.
Mr. Larry O’Reilly
To clarify a comment made by my colleague, Mr. Condon, the Department of Health and Children recognises all attendances on-site, on-call as work. We pay for all hours worked on-site, on-call. In that respect, we are slightly different from some of our European colleagues. The suggestion is that perhaps over time this might change.
As regards the point raised by Senator Henry concerning safety issues surrounding long working hours, these are recognised and acknowledged. However, from the point of view of patient safety and the health and safety of individual NCHDs, it emphasises our wish to implement urgently the directive in full. The current position, whereby NCHDs can and do work excessively long hours — well in excess of what would be the limit under the working time directive, 13 hours — needs to be addressed as quickly as possible.
This issue came to prominence in 1993 when the EU first proposed a 58-hour week. It is interesting that the IMO has stated that working hours for NCHDs are 9 a.m. to 5 p.m. When I was a junior doctor in the 1990s, I received half-time pay for the first ten hours of over-time and, because I was a doctor in training, quarter-time pay for any subsequent hours. The latter could sometimes amount to 100 hours per week. In 1999 the Department of Health and Children was suddenly obliged to pay junior doctors the same rate of pay for overtime as everyone else. People began to receive time and a half and double time for their overtime work. That is why the IMO stated that NCHDs work from 9 a.m. to 5 p.m. and why the Department of Health and Children tried to overturn the position and state that we were no longer doctors in training and that we should work shifts because of the substantial costs involved. The European working time directive went nowhere for the first six or seven years of its lifetime as a result.
In some respects, this is an industrial relations issue which has gone completely awry in the past five or six years. Regardless of what we say, the European working time directive — the position is similar with the Hanly report — will go nowhere until the consultants' contract is changed. Consultants currently work a 33-hour week and have no commitment to the hospitals in which they work after 6 p.m. In other words, they do not have to be on-site or on-call. It will, therefore, be impossible to implement a consultant-led 58-hour working week unless the consultants' contract is changed completely.
Deputy Devins and I were both junior doctors. I do not believe a 58-hour or a 48-hour week will be acceptable to such doctors. When I was a junior doctor, we used to work 80 to 100 hours per week. That was completely excessive. The junior doctors with whom I am familiar would have no difficulty working 55 or 60 hours per week if they thought they would obtain good experience and proper training. Many of the so-called training jobs in the hospital system are nothing more than service jobs. There is no training whatsoever for any junior doctor in that system. When I was a junior doctor, we thought we were receiving proper training and we had no difficulty working 60 or 70 hours per week.
The health service faces far greater problems than how to implement the European working time directive. No progress has been made since I qualified as a doctor in 1993 in terms of how the health service is run and how its manpower is organised. That is why we face disaster in respect of the European working time directive. It is simply unimplementable in its current form. I am surprised that when it was first mooted, the Department of Health and Children indicated that it could implement the directive without obtaining a derogation. How long is it since it was brought through?
Mr. O’Reilly
Seven years.
Time has proven that it would have been impossible to work with. The only place the directive can be implemented at present — because shift work for junior doctors has become acceptable there during the past ten years — is accident and emergency departments. These are probably the only locations in hospitals where one will see consultants after 7 p.m. When I worked in an accident and emergency department ten years ago, we did shift work and the consultants were very involved in the management and care of patients, 24 hours per day and seven days per week.
In my view our guests should, for the benefit of many members of the committee, provide a much broader background to what is happening in the health service at present. No matter how much the committee discusses the European working time directive, it will be completely unworkable until we deal with the industrial relations issues relating to doctors' working hours. The latter is the first issue with which the committee should be trying to deal.
I thank the delegation for coming before the committee. They referred to the hospital at night data collection exercise and stated that it now takes diary form. Could they expand on what was said earlier? Is it as Deputy Devins indicated, namely, that people write in diaries? Who will comprise the national implementation group? It was stated earlier that the full co-operation and active participation of the IHCA is required. Is there an indication that full co-operation has not been forthcoming from consultants? As far as our guests are concerned, what is the status of the Hanly report?
There has been a change of name.
I welcome our guests. I agree with Deputy Twomey that the directive is unworkable, particularly in the absence of a renegotiated contract. Are other countries experiencing the same difficulties in this area, particularly as regards industrial relations issues? Senator Henry referred to our legal obligations, while it exists, and our failure to meet them. In that context, should we be seeking an opt-out? I understand and appreciate why the directive was sought. However, because it is so unworkable, do our guests believe it might be abandoned?
Are the nine pilot sites to which Mr. Carey referred earlier fully operational? It was stated that they are "scoping them out". Does this mean that they are being checked out or are they fully operational? Who is described as working Monday to Friday, from 9 a.m. to 5 p.m.? Is it consultants or all hospital doctors? Is travelling time considered time at work, particularly in the case of those commuting from rural areas?
I will deal with some of the more simple questions first and pass the more awkward ones on to my technical experts. As regards the membership of the national implementation committee, it is proposed that it will contain two representatives from the Department of Health and Children, five representatives from the Health Service Executive -health service employers — this is to allow for representations, for example, from large voluntary hospitals — two representatives from the Irish Hospital Consultants Association, one representative from the Postgraduate Medical and Dental Board, one representative from the Irish Medical Council, four representatives from the medical training colleges, six representatives from the Irish Medical Organisation, two representatives from nursing and representatives from other relevant health care professions. It is intended that the group will be chaired by an independent chairperson nominated by the LRC. We believe the latter should be someone with a medical background because some of the issues that will arise at local sites will have to be referred for clarification by a person with relevant clinical expertise in such matters.
Will there be no representation on behalf of patients?
Not on the national group. There are arrangements for them to be involved with the local implementation groups but they will not be formally represented.
So they will not be represented.
We will note that fact and take it away with us. The local implementation groups have, following an agreement reached with the IMO, been up and running since October. These are broadly based and the various——
Are they fully operational?
Yes, they are up and running. When I used the term "scoping out" I meant that they are considering what is required in terms of resources to be put in place or changes to be made to practices in hospitals in order to bring them into compliance. They are to report back to the Department in that regard. The original intention was to establish a local implementation group at every affected hospital site. The agreement we have with the IMO relates to nine sites and will be fed into the Labour Relations Commission process.
The principles underlying the so-called Hanly report compiled by the task force on medical staffing are the same and central to which is the introduction of consultant-led 24 hours a day care in particular specialties. That has not changed. I agree with much of Deputy Twomey's contribution. The co-operation of hospital consultants is central not only to this report but the entire health service reform process. We have been anxious to engage with them to negotiate a new contract along the lines stated by the Deputy to give effect to this. It is unfortunate that they have not co-operated because of the stand-off over the clinical indemnity scheme and how historical obstetric liabilities will be dealt with but we remain hopeful. A great deal of work has been done by the health service employers regarding when we can sit down and engage with their representatives meaningfully on a new contract. We are clear in our minds about the changes that need to be made to the current contact to give effect to the health service reform programme. It will be a matter for negotiation at the end of the day.
Mr. O’Reilly
I acknowledge the points made about the need for shift work and the long hours NCHDs have been expected to work. The national joint study undertaken between 1999 and 2001, sponsored and agreed by both management and the IMO, acknowledged the long hours worked and that the only way to reduce them in the context of the working time directive was to introduce shift work. That is the only way it can be achieved on a 24 hour basis. The same level of staffing may not pertain over a 24 hour period but NCHDs would cover the entire day.
It may seem there has been a lack of activity in recent years and that it suddenly struck everyone involved the deadline for transposition was 1 August last or that people woke up to this within a number of months of that date. The preparations commenced in 1999 when the first study of working hours was undertaken. It took almost two years and there was agreement on the approach necessary to begin the implementation process.
As Mr. Carey mentioned, the national task force on medical staffing reported and reiterated many of the points that had been made but it recommended that the way to commence implementation was through the local implementation groups and the national group we have described. It is unfortunate that it has taken longer than was expected or desirable to get to that stage but local groups are up and running while a national group is being established. This is progress.
In the past 12 months a technical group jointly sponsored by management and the IMO has examined the technical aspects of the directive, the implications and how they will be implemented and achieved. Extensive guidance which was copied to the committee was prepared by the Department to assist local hospitals and managements in implementing the directive at the time of transposition. Given that the local groups have been established and a national group is under way, I hope serious negotiations on IR issues will commence in coming weeks. Progress may have been slow but, as a number of members mentioned, the issues are so complex and interrelated that when one is examined, three or four others must be resolved before proceeding.
The 9 a.m. to 5 p.m. Monday to Friday issue was raised. It was mentioned in the context of the normal working day for the purposes of payment of NCHDs and that overtime rates would apply outside these hours. That is the current position. We recognise, as does, I hope, the IMO, that shift work will not allow that pattern to continue; that there should be compensation, as applied to other grades, for shift patterns, unsocial hours and working weekends, and that this should apply in the normal course.
Have there been discussions with NCHDs to consider an extended working week? They are concerned about their training. They could work a 58-hour week but do not have the same power as consultants and could be forced into a difficult position. Could they be paid for extended hours if they must work for a consultant, whether as part of their training or the service they provide? We could end up returning to the bad old days prior to 1999 when NCHDs had to undertake training or extra surgery and work 70 or 80 hours but only received payment for 58. That happened in my time.
I refer to the lack of work on the Hanly report. This suits certain sections of the consultant community because they are not being hindered by the lack of implementation of changes to their contracts. I have visited various hospitals and when the ones most at risk from the Hanly recommendations seek additional consultants, the HSE tells them the posts will not be sanctioned because it does not know where it stands in regard to the Hanly report. Consultants have no difficulty taking up employment in the major hospitals. Nobody is in discussions regarding the Hanly report and the health service continues to be run on an ad hoc basis. Currently, 70% of consultants are employed in hospitals in Cork and Dublin which makes a mockery of regionalisation of the health service. When regional or local hospitals seek additional consultants, they are not sanctioned. The administrators of the hospitals concerned are told that because the Hanly report is not being implemented, the posts cannot be sanctioned. However, consultants are being appointed in the main hospitals.
What is the current position on the implementation of the working time directive? Does it have the slightest chance of being implemented or will Ireland remain in breach of it for the foreseeable future? NCHDs are doctors in training. Unfortunately, if they work a shift between midnight and 8 a.m., the amount of supervised training is virtually nil under the present structure. The bottom line is patient safety. While it might have been acceptable ten or 20 years ago for NCHDs to work between 60 and 80 hours a week, it is not nowadays due to the complexity of modern medicine. Patients will suffer. It must be remembered that these are doctors in training. This is a major issue. Is Mr. Carey attached to the Department or the HSE?
We are still attached to the Department but the health boards have been dissolved. There is now a single authority known as the Health Service Executive. I am the director of personnel management and development in the Department. In other words, I am head of external personnel.
The bottom line is that patients will suffer. If these young doctors are working 60, 70 or 80 hours a week, even though Europe has decreed they should be working 48 hours a week, patients will suffer and this is unacceptable in 2005.
I would like an answer to my previous question about the co-operation of the consultants.
I am anxious to respond also to previous questions from Deputies O'Malley and Gormley. To deal with the question about the consultants, unfortunately they are not co-operating with us at present because of the extension of the clinical indemnity scheme to include claims against hospital consultants with effect from 1 February 2004. The position is that formally they are not engaging with national groups. This was one of the reasons the second phase of the medical task force staffing implementation could not take place, in other words, developing the networks outside the two pilot areas. There is industrial action threatened which if it goes ahead will commence on 14 March 2005. That is the position as regards the consultants.
On the issue of the recruitment of hospital consultants and the fact that hospitals are being told they cannot recruit consultants because of the uncertainty about the situation, I wish to draw the committee's attention to a statistic. Since 1 January 2000, an additional 505 consultants have been recruited for the public health system. I will make this tabular information available to the committee. The number of consultants employed on 1 January 2000 was 1,440 and on 1 January 2005, the number was 1,945. Of those, 121 were recruited during 2004, a 40% increase over five years. I do not think the claim, made in certain quarters, that everything is frozen is correct.
Is Mr. Carey saying that in that period of time no consultant retired or died?
The net complement was increased.
If one adds the two figures, it gives exactly the figure Mr. Carey is coming up with, which means no one was lost from the original cohort.
Which two figures is the Deputy adding?
The number of consultants that were employed in 2000 and the number employed now.
It represents a net increase of 505. We are talking in terms of a growth of 505 which, by my calculations, is a 40% increase. I am quite happy to make the tabular information available to the members of the committee.
Is that a net increase?
A net increase, yes. It even allows for wastage and retirements. Much of it obviously also would be linked to service developments. The figures are there. In the same period, there has been an increase from 3,000 to 4,000 in the number of non-consultant hospital doctors, which represents a 33% increase. There is ongoing recruitment, albeit within employment ceilings.
Is that recruitment from outside Ireland as opposed to inside the country?
It would consist of a mix.
Were they consultants who were appointed?
Consultant posts were approved by Comhairle na n-Ospidéal.
How many consultants were appointed from within the Irish system in that period of time?
These are recruited for the Irish system.
No, I mean new consultants appointed.
Appointed within Ireland?
Yes.
Does the Deputy mean Irish consultants? We can supply that information. Does the Deputy wish to draw a distinction between those recruited from abroad and those——
No. I want to draw a distinction between those who were already consultants and came back to Ireland and those who were appointed as consultants from a more junior position within Ireland. That will probably give the committee a clearer picture of what is happening within that area.
Mr. Condon
To clarify that issue, in many specialties doctors need to leave Ireland to get the training necessary to obtain a consultant post. The position really might be better characterised by saying that currently 1,945 posts are approved but a number of them are vacant because they have not been filled by permanent appointees. We tend to say some of them are filled permanently and so many are vacant approved. The vacant approved are inevitably filled by temporary consultants who may be junior doctors in an acting-up capacity. In looking at the consultant cohort, about 12% of posts are currently vacant but approved so the post exists but it is filled by a temporary person who will be there for a number of months before the permanent appointee arrives. That temporary person is often a junior doctor in the current system who is acting up.
Is information available on the number of consultant posts for which requests have been made to Comhairle na n-Ospidéal and are not yet approved?
We can supply that information to the Deputy.
Does that list also show a breakdown of the regions to which these consultants were appointed and their specialties?
Yes. They are listed by specialty and that information can be made available immediately. We can send further information to the committee. I wish to address a question from Deputy O'Malley about the experiences and difficulties associated with compliance in the EU as a whole as it applies to doctors in training. My colleague, Andrew Condon will deal with that question.
Mr. Condon
First, we are committed to reducing the hours worked by junior doctors because working long hours is not a safe practice, either for doctors or patients. The second reason is that other EU countries, particularly Finland, Denmark, Holland and Spain, are largely compliant with the directive for various reasons. Their compliance has been characterised by a change in the way junior doctors work, changing the way consultants or specialists work so that they are available over the 24-hour period to provide training outside the nine to five period, changing the structure of medical education and training and reforming the hospital system.
A key issue in the UK is that they have moved to about 95% compliance with something called the "new deal" which is a 56-hour week in which on-site, on-call is counted as work so that 16 hours of rest spent on a hospital site has suddenly become work. They have moved from a position where they believe they were largely compliant to a position where the 16 hours of rest on site has become work and with which they have significant problems.
The directive is not impossible to implement but it does require significant reforms in a variety of areas and those reforms are extremely difficult. To give an example, in Denmark, doctors have been working a 39-hour week since the late 1980s but they are doing the same number of indexed training procedures as doctors in London who are working 75 and 78-hour weeks.
What is meant by "indexed training procedures"?
Mr. Condon
What it means is that the doctors are being exposed to the same amount of training as doctors working far longer hours. The issue for us is the quality of training exposure during the hours doctors work, as opposed to the actual absolute amount of time they work.
Mr. Ciarán O Maoileain
On the training side the key issue in terms of the quality of training has been the agreement between the employing authority, the employers, the postgraduate training bodies and the Medical Council of a set of training principles for incorporation into changed working arrangements to comply with the directive. I reiterate everything Andrew Condon said. It may be very complicated and very difficult but it is possible to re-organise medical education and training and the hospital system and how doctors work to achieve a compliance with this directive and to provide quality training. This has been addressed by the postgraduate training bodies and the Medical Council in conjunction with employers. One of the key recommendations agreed is that trainee rosters should be structured to preserve the maximum possible association and contact with their designated trainers, so long as this is consistent with being exposed to the full spectrum of experience necessary for training in the specialty concerned, including extended hours and-or night work, where appropriate. This is one in a quite comprehensive list of principles that has been agreed will be incorporated into the roster changes to ensure quality of training is maintained and hopefully enhanced.
I apologise for not being present earlier. I qualified in 1976 and worked a one-in-two rota in a hospital. That system possibly no longer exists. In 1981 I took up full-time practice as a GP until I was elected to the Dáil. Over the years I have seen how doctors have been treated by the system. I worked the one-in-two rota, involving half the time that could be worked during the week day and night. I did not receive the training I should have received, which was no fault of the consultants. No time was available for training because so much work needed to be done. Devising systems that will deprive NCHDs of this window of opportunity in the working week from 9 a.m. to 5 p.m. when they can receive training will not work.
The European working time directive is a good one. Airline pilots are not allowed to fly aeroplanes when they are tired and liable to make mistakes because it would put passengers' lives at stake. The same applies to the tachograph. The Department of Health and Children still has a difficulty with the directive which urgently needs to be implemented. Mr. Condon said it was not safe for NCHDs to work long hours. I ask him about the long hours — 168 hours per week — worked by rural GPs. I worked a one-in-one rota, not a one-in-two rota. GPs are still doing this. Where is the sincerity or commitment in this regard? The Department would not be bothered about NCHDs if it was not for the directive. That is the bottom line. I ask it to put its money where its mouth is and also think about rural GPs who are working the same hours. For many years the Medical Defence Union has highlighted the lack of training and long hours of the NCHDs which are putting patients' lives at risk. I put it to Mr. Condon that the same applies to GPs, particularly rural GPs who work these hours. The Department is doing nothing about it because the directive does not apply to GPs. This indicates its lack of sincerity.
The Hanly report is about manpower and hours. It also rightly suggests we need more consultants. We lack consultants, beds and doctors. If the Department honoured the European working time directive by employing the NCHDs and consultants who should be employed, we could reach parity with the rest of Europe. Is that too much to expect? It seems it is as the Department only considers the resource end of the matter. If the Hanly report were about more consultants, we all would have supported it. While it is clear that its findings have been shifted, the principle remains. If the report had been about improving services rather than removing them, we would all have been in favour of it, we would not have got the responses received and the recommendations in the report would have been implemented by now. As I mentioned at the last committee meeting, not only do we need casualty consultants in accident and emergency departments, we also need consultant physicians and a consultant surgeon on call in accident and emergency departments because the need for them to come from upstairs further delays the rate at which patients can get through the accident and emergency department.
We need more consultants and should try to meet the requirements of the European working time directive by employing more consultants. NCHDs have been used as fodder for long enough. I welcome the move towards employing more consultants. We now have fewer consultant urologists than work in Croatia. Implementation of the directive should mean we get more consultants in, for instance, the former Western Health Board area where two consultant urologists operate from UCHG, and there is one rheumatologist. I hope the directive will address these problems.
The only way for me to deal with this issue is by simplifying it. The solution lies in the way the workforce is reorganised. As one who has been involved with trade unions all my life, that should be a relatively easy task through negotiation. It is not about imposition but negotiation. I accept, however, that other influences come to bear. To say it is incredibly complex and technical as Mr. Pender said seems to be a mechanism for saying it will take another year or two. It is not that complex or technical. Companies do this every day of the week. As much as we like to think that what doctors do is somehow close to God, that is not the case. Their work is scientifically based with various training standards to be met, etc. As Mr. O'Reilly rightly said, in the lead-in to the implementation date everyone started to panic and realised it was about to hit. Only then did the Department of Health and Children start to discuss how to address the issue.
I do not believe doctors would have any objection to working shifts. They object to working for virtually one week on their feet. I have seen this at close hand and it is quite frightening from the point of view of patients. I do not understand why patients are not represented on any of the committees, as ultimately they will suffer if anything goes wrong, as Senator Henry said. Reorganising people is not a very complex business. The Danes have done so since 1981. Are we being told their system is so far advanced that they could do this so long ago, yet we are still struggling with it? I accept there is a problem with training which needs to be separated. However, the Danes have done this and we should consider their system.
Every day I tell people how difficult it is to be a Deputy. I expect officials to come here and tell us how difficult it is to work for the Department of Health and Children and how they struggle for 24 hours every day with the weight of the world on their shoulders. However, it is not that difficult and can be done. It is complex and will take negotiation. People's lives and how they operate must be taken into account. However, this has been done in all other industries and can be done here. It was of great concern to come across a person at 5 a.m. who, having been on his feet for the previous 72 hours, informed me he was about to operate at 9 a.m. the next morning.
Deputy Lynch has put her finger on the issue. Is such reorganisation possible? Clearly, we must also accept the point made by Deputy Cowley that the directive must also apply to GPs working in rural areas. As another presentation is due to be made at 11.30 a.m., we have only 20 minutes to wrap up this part of our meeting.
I agree with Deputy Lynch. We are anxious to advance this matter but this can only be done by agreement with, in this case, the Irish Medical Organisation with which we are actively engaged. Some progress has been made in recent weeks which I hope will lead to full implementation in the fullness of time. We have been working on the issue since 1999 and do not lack commitment in trying to advance it. This is another building block in the reform of the health service generally.
I am totally sympathetic to the point made by Deputy Cowley about rural GPs. Some months ago I had the opportunity to visit the Inisowen Peninsula where some doctors in remote villages represent the difference between life and death. I could not believe the sophisticated life-saving equipment they had because it would take an hour to get to the nearest hospital.
The Department is committed to the roll-out of the primary care strategy. As a GP, Deputy Cowley will be aware of the importance of the extended out-of-hours co-operatives and the benefits they have brought. We would like to see the scheme extended to other areas of the country. We have received very favourable feedback from GPs in the areas where it is operational that it has made a big difference to their lives. That is the way forward. We cannot always focus just on what happens in hospitals. Many referrals to hospitals are made because there are shortcomings or insufficiencies in services on the ground. We have a platform for moving forward and hope it will benefit the delivery of services generally.
I will ask Mr. Condon to respond to a couple of technical questions asked about ratios and the protection of patient care. The Department accepts that doctors in training have to be given proper training opportunities. Whether that needs to be done between 9 a.m. and 5 p.m. Monday and Friday is a moot point. It is planned to move some specialties to a consultant-led service on a 24 hour, seven day basis. The perfect opportunities for quality training may well be found outside the timescale I have mentioned. The matter is being negotiated by the IMO. The overall agreement that will be reached will ensure proper provision is made for quality protected training time for doctors in training.
Mr. O’Reilly
It was mentioned that management, the training colleges and the Medical Council had agreed the principles that should and will apply to new rosters for NCHDs. They will ensure there will not be a suggestion that training can be provided on any sort of regular basis between midnight and 8 a.m. It is recognised that such times do not provide quality opportunities for training. The colleges have made it clear they will not accept, sign up to or accredit training during such periods. In fairness, the colleges and the Medical Council have recognised that it should be possible to provide training at times other than between 9 a.m. and 5 p.m. It may be possible to stretch the times during which quality training is provided by an hour or two at each end. These principles have been agreed and rosters will be approved on that basis only.
While I appreciate that all the members' questions have not been answered, I would like to respond to queries about the involvement of NCHDs in the process. They are being represented by the IMO in the formal industrial relations negotiations. They are also represented at each of the local pilot sites and I assume they will be well represented on the national group. It is certain that they will have a full voice in the process.
A member asked whether it was possible, in some circumstances, to get NCHDs to assist consultants outside the 58-hour band, if requested or required. In other words, is the 58-hour band an absolute cap? The 58-hour timeframe has been established as an average period. There is some flexibility to allow people to work longer hours but it is obvious that one's average will creep up if one often works for too long a period and that one will then be in breach of the regulation. There is potential for flexibility in that regard on a daily or weekly basis as long as one meets the 58-hour requirement over the averaging period.
Questions were also asked about night shifts. It was argued that doctors had to work such shifts regularly, although they did not provide great potential for training. It is hoped regular or long-term night shifts will be kept to a minimum when data on hospital activity at night has been collected and new rostering arrangements have been put in place. There will be an improvement in this regard. We are examining the various strands of the process which need to be brought together. The purpose of the new arrangements will not only be to provide for increased patient safety but also to look after the health and safety of doctors who will be involved in the development of rosters.
How many of the 4,000 NCHD jobs are classified as training as distinct from service?
Mr. Condon
They are not openly classified. There is a mix of exposure to training. Reports over the past eight or nine years have indicated that approximately 50% of posts are not formally recognised as training posts. That does not mean every doctor working in such a post is not exposed to training or does not move on in the system. Such posts are not recognised by the colleges or the Medical Council for training purposes, or those holding such posts are simply not being exposed to the training system.
Approximately 50% of such posts are not recognised by the colleges as training posts
Mr. Condon
Approximately 50% of such posts are not proper training posts — that is probably the best way to describe them. That there are many forms of recognition is one of the issues the Department is trying to address as part of the implementation of the task force report. The Department can anticipate that the approximately 50% of doctors who are proceeding within a career structure will move on to become consultants or specialist GPs, etc. Approximately 50% of doctors are not involved in such a structure.
Does Mr. Condon envisage that the number of surgical training posts will decrease? If one removes local services, for example, by ceasing to hire consultants for local hospitals, the training colleges will state it is not safe. There are precedents for this. Will that continue? As I understand it, this is envisaged in the Hanly report.
No. The Hanly report envisages that there will be more consultant posts and, I hope, more training posts.
I invite the Deputy to say that to those involved in the local hospital in Waterford. Local hospitals will be deprived of services if consultants are removed. If they were being recruited to work in local hospitals——
Members should ask questions during this part of the meeting. I ask them to avoid any other form of debate as other witnesses have to be called. Members have had a good chance to ask questions. I thank the representatives of the Departments of Health and Children and Enterprise, Trade and Employment for attending.
I thank the members of the committee for their interest and courtesy.
I ask members to remain to consider in private session the recommendations the committee should make on the basis of the evidence we have heard.
The joint committee went into private session at 11.15 a.m. and resumed in public session at 11.45 a.m.