thirty something surgeons ewtd and beyond The first real by kyliemc



                   ewtd: 2004 and beyond

                                     The first real hurdle of the European Working Time Directive (EWTD) is, by the time you
                                     read this update, perhaps only five months away. What has changed since September
                                     2003? Roger Currie reports

                   It is significant that the Surgical Royal Colleges and     acute medicine. This route may provide a way
                   the Academy of Medical Royal Colleges (AoMRC) have         for the transfer of certain services after 10pm to
                   all realised that this is coming and are taking steps to   geographically adjacent hospitals.
                   address the problem. No one suggests that this will
                   be easy and it will involve a combination of changes
                   to working practice, education of the public and the       ‘The ability of consultants to opt out
                   words dreaded by politicians, both north and south         of the EWTD will be reviewed by the
                   of Hadrian’s Wall, ‘service redesign’. Put bluntly, this
                                                                              European Parliament, and may well
                   will mean some hospitals will not be in the position
                   to offer all services. Surgeons, including surgeons-in-    be withdrawn’
                   training, have a role to educate the public that it may
                   not be in their interest to be treated at the ‘closest’
                   hospital and that travel to a ‘bigger’ hospital may well   Much has been written about the Hospital at Night
                   be a better option.                                        project, the main thrust of this project is the move
                                                                              from cover requirements defined by profession to that
                   The Academy of Medical Royal Colleges represents           defined by competency. Examples may well include
                   the views of all Colleges and faculties to the             nurse-lead triage after 10pm, or the generic surgical
                   government and the DoH. Many physicians feel               resident. This project cannot be divorced from the
                   the EWTD will hit their service provision harder           EWTD debate and, as surgeons-in-training, we must
                   than that of their surgical colleagues. To that end,       contribute to the discussions.
                   the physicians are developing a model for out of
                   hours hospital cover (OOH Model). Essentially, this        The second concern is that, from November 2003
                   will alter the provision of service after 10pm. It         and after the recent contract vote, the ability of
                   is widely accepted that the model for obstetrics           consultants to opt out of the EWTD will be reviewed by
                   and paediatrics will be different; however no one          the European Parliament, and may well be withdrawn.
                   is suggesting the divorce of acute surgery from            In reality, very few UK consultants have formally opted
april 2004
vol 3 - issue 2
out of the directive, however many have indirectly          It is probable, as a result of both SiMAP and the Jaeger    surgeons
chosen to ignore the limits on both rest and duty. The      case, that the Commission will order a review, not of
                                                                                                                        e   w     t   d
contract vote was clearly based on the fact that under      the definition of work, but more likely the definition
EWTD legislation it would be unwise for consultants         of rest. Until that time, when the definition of rest is
to offer more than 48 hours to the NHS. A significant       legally clarified, we must concentrate all efforts on the
problem for the health service may well be created if       58-hour deadline that looms in August 2004.
these limits are enforced if, as expected, the ability to
opt out is withdrawn.                                       It is now known that the European Commission
                                                            (EC) has adopted a report calling for the end of
The SiMAP judgement is well known to many                   the opt out by 2006. The original opt out, along
surgeons,    most      would   agree   that   its   exact   with the staged implementation for various sectors
interpretation    and    implementation       would   be    including doctors in training, was negotiated by the
unhelpful to surgical training. It has been helpful to      UK government in 1993. The EC is concerned that
note that the European Commission was beginning             the clause is now well past its ‘sell by date’ and
to consider the legal position and full ramification of     has become increasingly abused. A consultation
this judgement. It is widely accepted in Europe that        processes is currently underway with a deadline of
this judgement went further than the intention of           31 March 2004.
the Commission, and created more problems than
it solved.                                                  Roger Currie is a recently appointed Consultant
                                                            Maxillofacial Surgeon, is Chairman of the Trainees SAB,
Unfortunately, a further case, known as the ‘Jaeger         RCSEd and is Chairman of AoMRC Trainees group
case’ has recently been the subject of a judgement
from the European Court of Justice. This case
essentially reinforces the position taken in SiMAP and
is based on a German doctor asking for clarification
between being at rest whilst ‘on call’ and working
                                                             The Royal College of Surgeons
whilst ‘on call’. The judgement stated that, ‘the                    of Edinburgh
doctor cannot be regarded as being at rest during             7th Postgraduate Course in General Surgery
the periods of his on call duty when he is not actually
carrying on any professional activity.’ It also means              This course will take place from
that national, i.e. UK, legislation cannot be passed to
                                                                       15 -19 November 2004
alter this position.
                                                              at the Image Hospital, Hyderabad, India.
The sting in the tail is that this judgement stated                   The Course fee is £150.00
that the rest requirements must be met in full                 Please contact the Information desk for
before the next duty period. This is very unhelpful
                                                             an application form 0131 668 9222 or you
and this legal opinion, along with others counter to
it, must be debated and clarified before effective               can book online at
rota planning can occur.                                                                                                april 2004
                                                                                                                        vol 3 - issue 2

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