Published: 19/08/2004, Volume II4, No. 5919 Page 10 11

Trusts have been falling over themselves as they race to comply with the European directive limiting junior doctors' hours.But, as Alison Moore reports, three weeks after the deadline trusts are feeling the strain

The first day of August 2004 was a date imprinted on the minds of acute trust human resources directors across the UK.

As the deadline loomed, many remained fearful of whether the NHS would manage to hit European working-time directive requirements to bring the working week of a junior doctor down to 58 hours.

An NHS Confederation survey of chief executives in June suggested that one sixth of trusts might not be compliant. So, now that the rules have been in force for almost three weeks, how is the NHS actually faring?

The Department of Health refuses to supply figures for England, but it is clear that despite enormous efforts, 100 per cent compliance remains a fantasy. The confederation believes the true picture is probably slightly more positive than the June survey forecast. But that still means plenty of trusts did not meet the deadline.

And in many cases compliance appears fragile, relying on the goodwill of juniors.

Problems seem particularly acute in Scotland and Northern Ireland (see box) but many English trusts have also failed to get all their posts compliant in time.

The failure comes despite trusts spending millions of pounds on recruiting more staff, junior doctors' rotas being completely rewritten, and innovations such as using different skill-mixes and reconfiguring services. In some cases, trusts have technically complied only by asking junior doctors to opt out and voluntarily work longer hours. It seems highly unlikely that juniors will be willing to do this for long, however.

Even some of those trusts that are compliant at the moment are heading for trouble when doctors take leave or go sick. Many trusts have arranged junior doctors on to a full shift system requiring at least eight doctors. Unexpected absences will leave trusts searching for locums or asking other juniors to work longer hours.

Doctors who work a longer than planned shift - because, for example, emergencies put a department under pressure - have to be given 'compensatory rest' immediately, which may have knock-on effects on rotas.

But NHS Confederation policy manager Alistair Henderson says: 'I think there is some fragility, but in overall terms it is a remarkable job that trusts have done.'

A key problem for many trusts has been getting the right doctors in post. At Derby Hospitals foundation trust, about 10 out of 250 posts are not yet compliant, in some cases because it has not been possible to recruit doctors.

'There are just not the junior doctors, staff-grade doctors and locums out there to be plugged into the right posts in the last few weeks, ' says HR director Tony Riley. 'We are hostage to the labour market. I expect most [posts] to become compliant within the next few weeks, but one or two may be a hard nut to crack.'

With some posts, the trust is awaiting confirmation that they can be advertised as training posts rather than trust posts, which should make them easier to fill.

The Great Ormond Street Hospital for Children trust has not been able to make paediatric cardiothoracic surgery rotas comply because of a national shortage of doctors in this area. All other posts are compliant.

Maidstone and Tunbridge Wells trust expected to be compliant on 1 August, having recruited an additional 70 juniors over the past two years. However, four days before the implementation date a junior turned down a job - which, combined with sickness and holiday, left the trust three posts short.

With no locums available, six juniors agreed to work longer hours - opting out of the directive - to allow the trust time to fill the posts while remaining technically compliant.

Chief executive Rose Gibb says the directive is causing extreme financial and recruitment issues for the trust, especially in children's services: 'The position in our most vulnerable services is extremely fragile and not sustainable in the medium to long-term financially and physically, ' she warns. The directive has been a major driver behind a planned reorganisation of services across the trust.

According to West Yorkshire workforce development confederation, 10 juniors have signed an opt-out which waives their rights under the directive.

The other 1,434 are compliant.

At United Lincolnshire Hospitals trust, around 5 per cent of posts are not compliant, with juniors working slightly more than 58 hours. The trust is hoping to change some shift patterns and recruit more doctors to enable it to be compliant soon.

Around a dozen of the 600 junior doctors at Newcastle upon Tyne Hospitals trust are not yet working compliant rotas, but should be by the end of the month, according to personnel manager David Levy.

'We have rotas that are compliant without the need for compensatory rest, ' he says.

County Durham and Darlington Acute Hospitals trust is 95 per cent compliant and has plans in place for the other 5 per cent. South Manchester University Hospitals trust was 98 per cent compliant in the early days of August, and was hoping to get to 100 per cent within a few days. Pennine Acute Hospitals trust says only 93 per cent of its posts are compliant but this should rise in October.

Other trusts have managed to comply, but only with the help of locum staff, as at Royal Surrey County Hospital in Guildford and Gloucestershire Hospitals foundation trust.

The DoH is not releasing figures on compliance, but says 'a small handful' of trusts have still to reach agreement with juniors.

The British Medical Association says it is too early to tell what the overall picture is, but it is concerned that 'subtle pressure' may be put on juniors to opt out voluntarily.

The BMA has said it will support junior doctors in taking action against erring trusts, which could include employment tribunal cases or civil law suits. But the main targets are likely to be those trusts which have made little attempt to comply.

With many trusts only compliant on a good day, when no-one is off sick and there are enough locums available, relations with the BMA may soon become more fragile.

'The service will have to change': how the rest of the UK is coping

In Northern Ireland, around 72 per cent of posts are fully compliant.NI British Medical Association chair Dr Brian Patterson says: 'They've already had five years'extra dispensation, so you'd think they'd have got it right. I think ministers were hoping for a lastminute reprieve.'

Northern Ireland's problem is small hospitals, which makes cover at night particularly problematic: 'The Hospital at Night project... doesn't really work below a certain size of hospital, ' says Dr Patterson.

'I hate to be fair to managers, but I think they'll have a hard job to make all posts compliant without help from the Department of Health.'

Scotland's compliance rate at 85.5 per cent is rather better.That ranges from 72.1 per cent in Borders to 100 per cent in Lanarkshire.

According to the Scottish Executive, however, it is unfair to make comparisons as the number of doctors employed in different board areas varies so widely.

BMA Scottish junior doctors committee chair Dr Jason Long says: 'Many NHS boards are close to achieving compliance and I hope we can work with those that are struggling to find solutions.But where the directive is being flouted, the BMA will provide doctors with information, advice and, where appropriate, legal support.'

The BMA believes the challenges of delivering care in Scotland's remote and rural areas means that services will have to be redesigned.Controversially, that will have to include tough decisions on hospital closures.

'The service will have to change, ' says Dr Long.

'New patterns of working, new means of service delivery and possibly even rationalisation of services will need to be introduced so that patients continue to receive high-quality care and to ensure that doctors continue to receive high-quality training.'

Figures are not yet available for Wales, where the National Assembly is also considering new ways of working.A spokeswoman said: 'We are working with the junior doctors' taskforce to evaluate compliance.We will also continue to provide support through advice and guidance on working patterns, role redesign and innovative practice.'

Welsh NHS Confederation professional and policy manager Jonathan Davies says: 'The majority of employers seem confident of compliance by 1 January.But We are working with a huge change agenda, including Wanless for Wales, Agenda for Change and the new general medical services and consultant contracts.'

The challenges are enormous in all three areas: Northern Ireland has the added uncertainty of not knowing when its Assembly will be up and running again, Scotland is coping with the aftermath of abolishing its trusts, and Wales is dealing with Derek Wanless's Review of Health and Social Care in Wales .

Jennifer Trueland