“Compliant Rotas” Do Not Mean Safe Working Hours

The Times published an article following my blog of 23 April 2020 (see here). A Scottish Government spokesman has provided The Times with comments which I will address here.

The first of these is his assertion that “All junior doctor rotas in Scotland comply fully with the legal requirements”. This statement is misleading because there is no mention of rotas in the legislation which has implemented the Working Time Directive. For as long as I have been conducting my campaign, the Scottish Government has hidden behind the claim that junior doctors’ working hours comply with the Working Time Directive because the hours in the rotas average 48 over 26 weeks. This is false because compliance with the WTD depends on the number of hours a junior doctor actually works, i.e. a worker’s working time, including overtime, in any reference period must not exceed an average of 48 hours for each seven days.

Averaging rostered hours over 26 weeks is statistical sleight of hand designed to give the appearance of compliance with the WTD when the reality is very different. It conceals the fact that rotas can include prolonged periods of working during which fatigue can increase and consequently render junior doctors’ working hours unsafe. Lauren’s shift rotas contained one period of working 91.5 hours and four others in excess of 107.5 hours, one as many as 117.5 hours. Working such long hours is a common experience for many junior doctors (see here and here). In addition, like large numbers of her colleagues, she routinely worked in excess of the rostered hours. But the legal requirement to capture and count these hours when determining compliance with the WTD has never been fulfilled. These are the real-world facts which the Scottish Government conveniently ignores as it continues with the pretence that junior doctors’ working hours comply with the WTD.

The second is his claim the “we have gone beyond the minimum requirements”. Here he lists a number of changes which the Scottish Government has introduced since I began my campaign. In 2014, the Government committed to abolish the 7-Nights in Succession rota in Scotland. Consequently, in February 2015, no junior doctor would be permitted to work more than a maximum of 4 nightshifts of 12.5 hours in a row. The Government then stipulated that by February 2016 no junior doctor should work more than 7 days in a row. A further improvement came into effect in August 2019 which allowed junior doctors a break of 46 hours after a 3-night or 4-night run of nightshifts and before recommencing work.

These changes are welcome but are improvements only because the previous 7-Nights in Succession rota was dangerous and was putting the health and safety of junior doctors at significant risk. In 2006, the Royal College of Physicians branded this rota as “essentially the worst possible rota that can be devised in terms of safety and sleep requirements. This rota is associated with the greatest risk of accidents and the highest levels of fatigue.” They advised changing to a safer rota (see Page 8). Despite this clear condemnation, the NHS in Scotland continued to require junior doctors to work this dangerous shift pattern for at least nine more years. Even though no junior doctor in Scotland should have been working more than four nightshifts in a row by February 2015, only one NHS board had implemented the measure by October 2015 (see here). In response to a Freedom of Information request, The Times revealed on 27/12/2016 that junior doctors in Glasgow and Lanarkshire were being scheduled to work 12 days in a row, with some rotas requiring them to work 117.25 hours between days off. “We have gone beyond minimum requirements” sounds a hollow boast when confronted by these facts. Assertions of this nature by the Scottish Government cannot be relied on as has been demonstrated by the hard evidence.

It is also ironic that the spokesman has made this claim when asked to comment on the fact that the Scottish Government have ceased to perform one of their legal obligations. On March 23, they announced that for the period February to August there would be no periodic checks on the number of hours junior doctors actually worked, in flagrant breach of the legislation that requires an employer to keep and retain adequate records which show whether the working time limits are being complied with. Periodic checks are a poor substitute for real-time recording of hours and for six months junior doctors will not have even this imperfect safeguard to protect them. At least the spokesman has not sought to justify the cessation of periodic checks as it is an indefensible violation of a legal obligation.

What will safeguard the health and safety of junior doctors is the implementation of the Working Time Directive as the Health and Safety legislation it is intended to be. Prolonged periods of working must be eliminated and a record maintained of actual hours worked in order to demonstrate that Working Time limits are being adhered to. These principles drive the objectives of my campaign:-

• Junior doctors should not work more than 48 hours in any 5-day period
• Working periods should be followed by 2 days off
• Actual working hours should be recorded.

It is not realistic to expect the Scottish Government to adopt these measures during the current health crisis, as I have acknowledged. What I did not anticipate, however, was that they would take this opportunity to remove one of the mechanisms to ensure that junior doctors will not be more overworked throughout this period than is usually the case. Restoration of periodic monitoring of hours must resume as quickly as possible not only to protect junior doctors now but also to ensure that they will not be further overstretched when the health emergency has ended and pent-up demand for medical services is released.

The national scandal of overworked and chronically fatigued junior doctors must end. I hope you will join my campaign to achieve this.

We must take better care of those who take care of us!