NHS organisations have to be compliant with the European working time directive by 1 August and only a tiny minority can reasonably expect any exception to the rules

The European working time directive means that by 1 August 2009 all staff in all NHS organisations, with the exception of a very small minority, should be working no more than 48 hours a week.

The directive is health and safety legislation aimed at ensuring both the safety of patients and of staff. As a positive by-product it will also, if implemented properly by trusts, serve to safeguard the quality of training and the work-life balance of junior doctors.

In January all 10 strategic health authorities, all the medical royal colleges (under the Academy of Medical Royal Colleges) and the British Medical Association joined forces to create the working time directive reference group. The group aims to help trusts better understand the directive and, most importantly, move towards meeting the deadline.

The Department of Health has recognised there is some way to go to become compliant and trusts should realise they have to plan and implement systems to meet the directive.

SHAs are submitting monthly returns which give trusts a red, amber or green rating on compliance. The latest returns show that two thirds of trusts are, or will be, compliant with the 48-hour average week and this must be made sustainable past 1 August.

In March the information we received from trusts highlighted that there were still some individual specialties in individual trusts that need work. Trusts must also understand that if they do not achieve compliance it will have a knock-on effect for other local trusts.

The government recognises meeting the directive is more challenging for some trusts than for others and they have tended to fall into three categories in terms of readiness.

A minority of trusts have so far stuck their heads in the sand and not done the planning; however, they are often on the SHA radar for other reasons. They are clearly going to need targeted support and many have already got that through the national working time directive programme and the East of England’s workforce programmes team.

The second group has problems with specific services, for example in some surgical specialties and in split-site trust, and we think it likely derogation will be used by some of these.

In the third group there are real issues. In some cases derogation may help, but there will need to be some central leadership on changes to the organisation of services in these places, which will often be in very rural areas and may need more consultants.

Tailored solutions

It is important for trusts to recognise there is a degree of flexibility on the 48-hour week within the directive. The measurement of whether a member of staff is working more than 48 hours will be referenced over a 26-week period.

Doctors in an emergency situation will not be expected simply to stop work because their shift has finished, but rotas and working patterns should be built to make this situation unlikely.

We do not expect this to be easy, but there are a number of practical solutions and resources already in place that trusts can use and tailor.

Skills for Health workforce projects team has worked with more than 30 pilot trusts to trial rotas and working solutions.

At London’s Homerton University Hospital foundation trust clinical leaders and managers have developed a rolling rota for trainees over four months. Junior doctors spend two weeks doing emergency care and the rest in their base specialty. The trust is not wasting their training time and trainees are not being pulled out of a training opportunity to cover an emergency. Crucially, they are working within a 48-hour week.

The government has already made it clear to the European Commission that there will be some derogation in 24-hour acute emergency specialties, but this is not an excuse for trusts to ignore the August deadline. By the end of May the European Commission will inform the government as to whether derogation has been granted. Organisations that can genuinely present a strong case for derogation to the DH’s external national reference group will be able to do so, but this will need to be developed rota by rota, specialty by specialty. They will also need to show a clear future plan for meeting the target.

Unfortunately, there appears to be a myth among a lot of NHS staff, including senior clinicians, that it will be easy to apply for derogation and effectively opt out of achieving a 48-hour week for staff. This is not true. Trusts need to make sure they are doing all they can to achieve compliance by August and beyond.