“There is an absolute commitment to support the NHS in achieving compliance with the EWTD by 1 August 2009.” “Trust Boards will want to understand the risks and that action is in place to remedy any potential breaches. The NHS Employers’ website provides more information about the substantial financial and penal consequences if remedial steps are not taken.” These are the words of David Nicholson, the Chief Executive of the NHS, in a letter sent on July 9th to all NHS Trust Boards and Chief Executives. In other words, a 48 hour week on 1st August, or else. I quote this letter to demonstrate the pressure being applied to NHS managers and staff to comply with the directive.

The profession will face major challenges over the coming months and all surgeons will have to show exceptional professional judgement and integrity. I am sending this letter now to update you with what is going on, and to advise you on some basic principles for dealing with what is about to happen.

As you know the College and the vast majority of surgeons believe that a 48 hour week for surgeons in the NHS is a major threat to safe patient care which will result in very thin medical cover with multiple handovers, and will devastate standards of training. In addition, the College knows from its surveys that it is not deliverable because the doctors to staff paper compliant rotas do not exist. My estimation is that fewer than half of all rotas will be truly compliant on August 1st. We have made this point repeatedly over the last six months to the Department of Health, to Ministers, to MPs and to the general public through the national media. We have also, working with the trainee organisations, offered a solution, the surgical opt-out to a maximum of 65 hours, which would solve the problem permanently, allowing a safe service, good training and an optimum life style for trainee surgeons. It is a matter of regret and frustration that government has not listened.

So what is likely to happen on August 1st? As the deadline approaches, we are already seeing Trust managers trying to paper over the cracks as their inability to recruit extra doctors becomes apparent. Junior surgeons are finding their training sessional time being transferred to providing out of hours service cover and are being told that they must not enter their hospital for more than their official 48 hours. However, patient safety always comes first and surgeons will never abandon a sick patient to comply with a European regulation. When unscheduled extra time is worked in such circumstances the usual tactic is to pay the hours back later from elective sessions, which means even fewer training opportunities.  Some of the pressure being applied, to make sure that diary cards do not show average hours worked as more than the magic 48, has moved from persuasion to bullying. Yet the government have been very assiduous in retaining the right of an individual to opt out, and work in excess of 48 hours, while still subject to the rest break rules. They realise that internal locum working is the only way that many services will survive.

I must emphasise that the individual opt-out is and must be voluntary. Individuals cannot be asked to opt out, they must volunteer. If trainees are asked to do an internal locum to fill a gap on a rota and have not opted out the extra hours will be counted as part of their 48-hour week and will be taken from their time for elective duties. Those individuals who do decide to opt out must ensure that they have a revised contract to reflect this. They should also clarify whether the extra work is for service or training, and make sure the employer provides full indemnity. This should be in writing.

Consultants are also bound by the EWTD and need to request an opt out if after 1st August they wish to work in excess of 48 hours a week. They too should ask for a new contract to reflect the agreed opt out, should clarify their position with regard to rest breaks (which is complex), and make sure they have full indemnity. I believe that very few consultants have opted-out, the majority believing unrealistically that the EWTD does not apply to them or that they can ignore it. Consultants should also be aware that if to achieve a 48 hour week a trainee is made to cover extra service duties at the expense of training, the trainee’s educational contract may well be broken, which could lead to withdrawal of trainees from the unit. I can only ask that consultants do all they can to preserve some sort of training in these difficult circumstances. I suspect that fulfilling elective waiting time targets will be at the bottom of the list of priorities.

The most important thing the College asks of you is that you maintain honest accurate records of what is going on. If a junior doctor works longer than the rota hours to look after a patient, write this down and do not be bullied into pretending that it did not happen. We will be providing yet more evidence to those who are not listening that the 48-hour week is undeliverable. If in your opinion inadequate cover or a rushed handover have harmed a patient, fill in an incident form. It is your duty as a doctor.

I find it difficult to believe that the Department of Health still apparently believes that 48-hour working can be delivered in 10 days time. These are very difficult times, but I remain confident that a long-term solution meeting the aims of surgeons will be achieved. Meanwhile, put patient safety first and speak and record the truth about what is happening in your hospital. The College will be circulating a questionnaire and I ask you to reply to it in full. Trainees will be receiving a complementary letter from ASiT or BOTA also asking for information. Please reply, as the more evidence we have the better.

Update - 30 July 2009

Following on from my EWTD guidance I am writing to highlight specific information on indemnity, on raising concerns about patient safety within your hospital and to give you a flavour of the feedback I had after my letter to you last week. I will revise this page as further information becomes available.

We are now working on a questionnaire for all members and Fellows which will help us keep up the pressure on the politicians to give us a sectoral opt-out.  We will be asking for evidence from you on effects on patient safety and training after August 1st. I will give you the details as soon as possible.

Feedback from colleagues

Thanks for your continued support on this issue and the feedback I receive is illuminating:

Some of you have written to me about bullying of our surgical trainees. ‘I think realistically the only people in a hospital trust who will be able to challenge trusts to ensure training at the expense of service commitments, is going to be deanery appointed trainees. The fellows, staff grades etc are likely to be put in very difficult situations by the trusts and their evident bullying tactics.’

This is very worrying and I would encourage you to keep honest accurate records of what is going on in your hospital.  In the long run this approach will backfire and put patients at risk, and we cannot allow that to happen. Detail about how to raise concerns about patient safety are given in the section below.

I am still pursuing a political solution to this problem. It is interesting that the feedback I am getting suggests that other European countries are ignoring the EWTD, even as close to home as Ireland. ‘…many of the larger European countries are simply ignoring this and using the get out clause that exists in European law.’

Another reported ‘I was in Paris for a laparoscopic colectomy training. I first asked the Swedish trainer what he thought of the EWTD. He said he did not know what it meant! He turned to his team who were also unaware! Next the German Professor – who said the Trainees continue to do what they are doing and finally the French Surgeon who said they just do a one in three! Why, then are we dotting the i’s and dashing the t’s like nobody’s business?’

The strength of feeling over EWTD is striking. There is desire for the Department of Health to offer some valid evidence that a reduction in working hours is safer for patients. This may prove difficult, as we are not aware of any. Some of you are so upset at the lack of thought in introducing EWTD that you are considering early retirement or emigrating. ‘I am actively seeking to emigrate… The latest fiasco on training is the last straw that has led me to look elsewhere for effective practice and ability to continue as a trainer. I suspect there are many others pursuing these drastic measures.

There is an appetite for local political pressure from individual surgeons. ‘…can I ask the President whether Fellows & Members have been asked to contact individual MPs about this problem and how it will affect their local population. Perhaps a standard letter could be drawn up and sent to MPs?’

Get in touch if this is something you want to do as we can support you from the College. Council members have already talked to their local politicians so you would be following their lead.

Indemnity

As hours are reduced the issue of indemnity for clinicians spending time additional to their contracted hours in their hospitals needs clear resolution. In 2007 the NHS Litigation Authority wrote to all NHS bodies confirming that doctors working for employers that are members of the Clinical Negligence Scheme for Trusts are fully indemnified against actions for negligence if they work in excess of the EWTD limits whether they have formally opted out and have a contract to reflect this or not. Further information.

Raising concerns about patient safety

The General Medical Council has specific guidance to help doctors raise concerns they have when patients might be at risk. The guidance can be found on their website.

Specific confidential advice, help and further information on how to raise concerns when you feel patient safety may be under threat can be obtained from:

• British Medical Association
  Contact: 0300 123 123 3 or support@bma.org.uk
• Public Concern at Work – an independent charity that is the official provider of support and guidance to all employees of the NHS in England. Contact: 020 7404 6609 or mailto:helpline@pcaw.co.uk
  

Questionnaire

The College is working with ASiT and BOTA and will circulate a questionnaire shortly. Further details will be available on this page in due course.

John Black
President of the Royal College of Surgeons