It has been many months since I provided an update on my campaign to make junior doctors’ working hours safe. This will be achieved by the following measures:
- maximum working hours of 48 in any 5-day period of work
- consecutive working periods of 5 days followed by 2 days off
- accurate recording of actual hours worked by junior doctors.
By taking these actions, the Working Time Directive will have been implemented in spirit as well as the letter of the law as the Health and Safety measure it is intended to be.
I had anticipated that by this time the Scottish Government would have published its plans to implement the actual 48-hour working week for junior doctors and I would have been able to comment on them. The Cabinet Secretary responsible for health matters first committed to do so in July 2014 and the First Minister restated it to the Scottish Parliament on 30th March 2017. In November 2017, the Scottish Government proposed to set up an Expert Working Group and to charge it to produce a work plan to implement the 48-hour actual working week for junior doctors as promised.
The Expert Working Group completed its work in January and I wrote to the current Cabinet Secretary, Ms Jeanne Freeman, in February requesting a copy of the report and asking her to communicate the next steps the Scottish Government will take to keep its promise. I was informed that Ms Freeman was in the process of considering the report and would be working with the British Medical Association to discuss its recommendations. By the time I received this letter, it was obvious that dealing with the coronavirus outbreak should take precedence over other matters. Therefore, on 30th March I wrote to Ms Freeman that I would not press her further under the current circumstances. I also stated that I hoped that the Scottish Government would make wise decisions and would do its utmost to support the heroic efforts of our health professionals throughout the coronavirus emergency.
Now is not the time to fully evaluate the strategies which the Scottish and UK Governments and the medical and scientific communities have chosen to manage the health emergency. This will come after the coronavirus outbreak has passed. Then we can make a sober assessment of their preparedness in dealing with a long-anticipated pandemic and how effective their actions have been in minimising the number of lives lost and in reducing the societal and economic impacts. The Governments’ commitment to “Protect the NHS” must translate into meaningful actions to protect the people working in the NHS, else it is nothing but an empty slogan. Yet it has become evident that some recent Government actions may adversely impact the health and safety of junior doctors and will also deprive them of the necessary protection for themselves, other health professionals and their patients.
On 23rd March 2020, the Scottish Government issued a memo to the Medical Directors and Directors of Workforce, NHS Scotland, suspending the monitoring of junior doctor rotas across Scotland for the period February to July 2020. During this health emergency period, it is no surprise that exceptional measures will come into force. Medical professionals have responded to changing service pressures and to fill in absences caused by colleagues either being on sick leave or in self-isolation. Junior doctors already work excessively long hours, some “working up to 100 hours in a week” according to an article in the Scottish Sunday Express on 16th February 2020. It is likely that they will be further overstretched by the additional demands being placed on them during the coronavirus outbreak. As a result of the Scottish Government suspending the monitoring of rotas, there will be no sampling to know exactly how many additional extra hours junior doctors will have worked during the period.
The instructions which have been issued (see here) contain reassuring statements concerning Health and Safety, e.g. compliance with the Working Time Directive and no-one working excessive hours that would compromise safe practice. As I’ve explained in previous blogs, rotas may comply with the WTD on paper but, because they average out rostered hours over 26 weeks, in practice contain prolonged peaks of activity which cause the exhaustion which the legislation is intended to prevent. The WTD legislation originally required employers to maintain adequate records for two years to show that a worker’s working time did not exceed an average of 48 hours for each seven days. This loose requirement was changed in May 2019 when the ECJ ruled that member states and employers were obliged to introduce systems which objectively and reliably measured the time worked each day by an employee. Although employers are not strictly speaking in breach of the WTD unless or until the UK legislation is amended to take account of this decision, the clear intent of the Court was to place additional obligations on employers to protect workers’ rights regarding Health and Safety. This contrasts sharply with the actions of the Scottish Government who, with the stroke of an administrator’s pen, have reduced the working rights of junior doctors and may have compromised their Health and Safety.
Another area where administrative fiat has over-ruled Health and Safety concerns is the provision and use of protective equipment by front-line staff. The Department of Health and Social Care document Covid-19: Personal Protective (PPE) Plan explains how essential it is that anyone working within two metres of a confirmed or suspected Covid-19 patient is protected by PPE. For those performing aerosol generating procedures (AGPs), it is “fundamental” that they are supplied with the highest level of PPE “so that they can do their job safely”. For these procedures, it is very clear that “all PPE worn during the highest risk AGPs should be single use.” Yet Public Health England has now issued a document which has approved the sessional and reuse of PPE even when designated by the manufacturer as single use (see here). For those performing high risk AGPs, the document has authorised the use of alternative types of gowns and coveralls, such as washable surgical gowns, long-sleeved laboratory coats, and long-sleeved patient gowns, with a plastic apron worn on top.
Public Health England has approved these lower standards for when PPE is in short supply, which has been the case for many weeks. It also states that they have the approval of the Health and Safety Executive who recognise “that some compromise is needed to optimise the supply of PPE in times of extreme shortages. It has agreed that the use as outlined in this document is appropriate within health and safety legislation and provides appropriate protection for health and care workers.” Nowhere in the document is there any supporting medical evidence which has proven that sessional and reuse of PPE, or that wearing alternative equipment, will provide the same level of safety to medical staff or their patients as the use of PPE specifically designed for that purpose. Medical and healthcare workers are putting their lives at risk on a daily basis from being exposed to extremely high doses of the Covid-19 virus due to being in prolonged close contact with extremely sick and infected patients. As of 22nd April 2020, the Guardian has recorded the deaths of 102 health workers who have lost their lives working in hospitals, surgeries and care homes. Many of their family members believe that they were not given adequate protective equipment as they dealt with coronavirus cases. It is unacceptable that the standards of protection for health workers has been lowered because of administrative failure to procure and to distribute the required PPE which would keep them safe. To quote the Secretary of State for Health and Social Care: “We owe it to them to get them the kit they need to protect themselves.”
Every Thursday evening at 8 p.m., the public take to the streets to show their support and to say thank you to NHS and Care Home workers for their work during this health emergency. They are joined in these mass demonstrations by politicians of all parties, eager to be seen with ordinary people whose interests they should be acting in. Is it in our interests that junior doctors’ hours are far in excess of those of the people they deliver healthcare to, and that they experience exhaustion and burnout as a result? Should a grateful Government decide not to fulfil its statutory health and safety obligation to monitor the number of hours junior doctors work because it is administratively inconvenient to do so during a health crisis? Can anyone justify doctors, nurses, care workers being deprived of the highest standard of equipment designed to protect their lives, their patients and to stop the spread of the virus? If staff decide that their safety has become compromised by using replacement equipment to the extent that it is no longer safe for them to work, what happens then?
Only a health service which is properly resourced will deliver the health care we need without endangering the lives of workers and patients.
The public have demonstrated their appreciation of the NHS and its staff on Thursday evenings but the loud drumbeat of support for the NHS must not fade into a faint echo once the coronavirus emergency is over. Politicians need to be deluged with letters, emails and phone calls so that they hear a very simple message from the public, loud and clear:
We Must Take Better Care of Those Who Take Care of Us