EU Working Time Directive (NHS)

Andrea Leadsom Excerpts

Thursday 26th April 2012 Westminster Hall

[Dr Daniel Poulter (Central Suffolk and North Ipswich) (Con)]

It is a great pleasure to speak under your chairmanship, Mr Brady. I pay tribute to my hon. Friend the Member for Bristol North West (Charlotte Leslie) for securing this debate on an important issue in medicine and in improving front-line patient care that affects every MP’s constituents, whatever the constituency. I also pay tribute to the hon. Member for North Antrim (Ian Paisley) for a real tour de force in his speech just now. In my contribution to the debate, I will touch briefly on some of the points that he made, but I will try to expand on some of the points made by my hon. Friend.

My hon. Friend made a couple of very good points. Early in her speech, she pointed out the effect of the European working time directive, saying that it has effectively taken 4,000 doctors out of circulation. Effectively, therefore, hospitals throughout the country have to recruit an extra 4,000 doctors as a direct consequence of the EWTD. That is a huge financial burden, but it is something that hospitals have effectively had to do in many cases and in many specialities in a very quick fashion—indeed, almost overnight. That has been very difficult to do.

Many hospital services in many parts of the country, particularly the more remote rural areas, are reliant on locum doctors, who are often not necessarily trained in Britain—not that that is a bad thing, because a huge contribution is made to the NHS by overseas workers. However, as has been very publicly highlighted by the Dr Daniel Ubani case, some overseas doctors are not necessarily familiar with the British medical system.

The failings of the EWTD and its implementation go further than just increasing the strain on doctors and the loss of continuity of care for patients. They relate to the way that hospitals have been forced to deal with the shortfall in their rotas and the problem of how they will look after their patients and to the fact that the system that is used to employ locum doctors is not fit for purpose. The General Medical Council and the British Medical Association are looking into those matters. Nevertheless, the failings of the EWTD have exposed a very important issue, and patients are suffering.

My hon. Friend also said that medicine is a profession and a vocation; I know that, too, and I obviously speak from personal experience. Medicine is not about clocking on and clocking off. It is about looking after patients effectively, whenever that may be. The result of introducing the EWTD has been to encourage hospitals, through fear of litigation, to encourage doctors to have a clocking-on and clocking-off culture. That is wrong; it is against the duties of the doctor, as laid down by the GMC; it is against what medical professionals want to do, because they care about their patients; and it is actually bad for patient care, for all the reasons that were outlined earlier by my hon. Friend.

My hon. Friend said that we do not want to go back to the bad old days of 100-hour weeks. I worked those 100-hour weeks, and I am sure that the other medical doctors who are in Westminster Hall today did so, too. It was certainly not ideal to work 100-hour weeks; it was not good for patient care. However, the point that was made earlier is that there is actually a happy compromise between doctors working a rota pattern—one that allows for training, continuity of care and proper treatment of patients—and ensuring that doctors have proper rest and are in a fit state to look after their patients. That happy compromise can be achieved. As has been highlighted already in speeches and interventions, it has been achieved in many countries within the European Union, and we should be able to achieve it effectively in this country, too.

The point that has been highlighted is that the previous Government dressed up the introduction of these reforms in the idea that they would be better for doctors with families and better for doctors’ training. In fact, neither of those things have actually come to pass. Doctors’ training has suffered as a result of the introduction of the EWTD in this country. Doctors do not get enough on-the-hour time with patients, and because many hospitals are forced into looking at service provision—in other words, having enough doctors on the ground as a direct consequence of the EWTD—the time allocated for junior doctors to receive proper training has been reduced massively. Given the rigid nature of the rotas introduced under the EWTD, they are often less family-friendly than rotas were in the past when doctors were asked to work more hours than now.

My hon. Friend highlighted the increased rates of sickness, particularly among physicians but also in other specialities where—quite rightly—an increasingly high proportion of women are entering the medical profession. In many cases, the reason why those women are finding things difficult and taking time off work is that they are unable to meet the demands of looking after their family properly. The fixed rotas are damaging to family life. My hon. Friend has made some excellent points.

I will now talk about a few other issues that are important to highlight in this debate. The Minister is working hard on our behalf to address the EWTD issue, by raising it in Europe for the Government and ensuring that we can put right what the previous Government got wrong. The issue of locum doctors goes to the heart of out-of-hours care. Many hon. Members, particularly those of us with more rural constituencies, have experienced the previous Government’s reforms of out-of-hours care by GPs. Thanks to those reforms, we now have a system that is not fit for purpose. We have locum companies running local out-of-hours care on the basis of care models that are, in many respects, not fit for purpose. Many locum companies often employ out-of-area doctors who do not understand local patients to run those services.

[Andrea Leadsom (South Northamptonshire) (Con)]

I am grateful to my hon. Friend for giving me the opportunity to make my point. Does he agree that there is also a great concern about the fact that other European legislation means that the GMC cannot systematically check locum doctors’ ability to speak English and communicate with their patients and that that is also putting patients’ health at risk?

[Dr Poulter]

My hon. Friend makes a very good point and the issue that I was just raising—that of locums and out-of-hours care—ties in very well with it, because those checks and balances very much occur in the sector of locum work. To fill staff vacancies in GP rotas in primary care and in hospital rotas, doctors are often rushed in at short notice from locum firms, even though we have not necessarily got the proper checks that would be in place when doctors are working in hospitals.

As I have said, doctors from overseas make a huge and valuable contribution to the NHS, but they do so when they have been familiarised with the British medical system and they are embedded in our hospitals up and down the country. However, there is a real danger: when we have an over-reliance on locums, which is a direct consequence of the EWTD, the problems that my hon. Friend has highlighted occur, and that has damaging effects for patients.

The key issue for me in this debate is the continuity of care. The point has already been made in interventions that bad things happen to patients at weekends and out of hours, because there are fewer doctors, nurses and members of staff working in the hospital. If we have a system in place whereby doctors are clocking on and clocking off and they are encouraged to do so because hospitals are worried about the dangers of litigation and that encourages the handover of information to another professional because people think, “I’ve finished now; it’s not my job anymore,” that will encourage bad things to happen out of hours.

--- Later in debate ---

[Andrea Leadsom (South Northamptonshire) (Con)]

I am delighted to follow my hon. Friend the Member for Totnes (Dr Wollaston). What a fascinating speech, and what a fantastic insight. I congratulate my hon. Friend the Member for Bristol North West (Charlotte Leslie) because, so often, discussions about EU legislation revolve around the EU itself, but she brought to life the practical implications of EU legislation that is having a real impact on our society and patient care in the UK.

Article 168 of the EU treaty states:

“Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them.”

It is fundamental in the treaty that health is simply not an EU area of competence. All that we are hearing about today is the unintended consequences of something that was introduced for an entirely different purpose. I want to go into the background of that.

Hon. Members will know that I have been involved with an all-party group on EU reform, and with the Conservative end of that—the Fresh Start project. It is trying to look at precisely how Britain could renegotiate a better relationship with the EU that would work in Britain’s better interest. The very first area we looked at was the working time directive. We looked at the headline figure that the cost to the UK economy is about £2.6 billion per annum, which is a real issue for us at this time. In its research, Open Europe suggested that halving regulation could deliver a £4.5 billion boost to GDP in the UK. What was slightly less expected from the research was the fundamental effect on the NHS, precisely because health is not an EU competence.

Why should that be the case? The all-party group recently visited the EU to talk to our MEP group and to commissioners about the working time directive and the impact on the health service. Our MEPs told us that the directive is the least popular piece of legislation ever introduced by the EU, and that 16 of the 27 member states have negotiated opt-out arrangements. Interestingly, under the Lisbon treaty, if a majority of member states get together and propose a reform, the European Commission and the European Council have to look closely at it and consider repeal of the legislation. I find it astonishing that we have not taken the lead so far in doing just that. It would certainly be worth considering.

[Mr Nuttall]

Is this country one of the 16?

[Andrea Leadsom]

Yes, Britain does have an opt-out.

[Mr Nuttall]

But not obviously for the NHS.

[Mr George Howarth (in the Chair)]

Order. If the hon. Gentleman wishes to make an intervention, he should stand up and do so in the approved manner and not mumble from a sedentary position.

[Andrea Leadsom]

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

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

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

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

[Andrea Leadsom]

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

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

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

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

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

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

[Charlotte Leslie]

Does my hon. Friend agree that there are inconsistencies across the landscape? When I applied to work for the BBC, although I cannot remember exactly how it was worded in my contract, I was left under no illusion that if I wanted a job, I was to tick the little box that signed me out of that 48 hours business.

[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.

[Debbie Abrahams]

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

[Andrea Leadsom]

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

[Debbie Abrahams]

Will the hon. Lady give way?

[Andrea Leadsom]

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

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

--- Later in debate ---

[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—