Another 48 hours in the health service

Dara Gantly wonders why, despite having 11 years in which to plan, Ireland remains so ill-prepared for the implementing of the EWTD

For some, next Wednesday and Thursday will be just another 48 hours in the health service. There will probably be close to 300 people waiting on trolleys in our hospitals, the queues for the fracture clinics will be out the door (the ‘big freeze’ allowing), and the Minister for Health — now that the Dáil has finally reopened — will again be referring another parliamentary question on to the HSE for ‘direct reply’.
GPs in Cork, Roscommon, Waterford, the East Midland and North Dublin will all be gathering for their CME small group meetings; paediatric trainees will be attending a study day on communicating with patients; while surgeons at the RCSI will be reflecting on the previous day’s celebrations of the College’s 200 years on St Stephen’s Green.
For the Department of Health and the HSE, however, January 20 and 21 will not be just another 48 hours. Instead, the health authorities will be engaged in a legal battle over the implementation of the 48-hour week for NCHDs on two fronts, in the High Court and in Brussels.
The Executive is due back in Court on Thursday January 21 for an expected two-week trial to settle legal action initiated by the IMO over implementation of a previous Labour Court Recommendation and compliance with the European Working Time Directive (EWTD). The union is seeking aggravated damages from the Executive for what it says is a breach of a recommendation agreed to last year.
In its robust defence delivered to the High Court late last year, the Executive stated that any failure to implement the EWTD — to which it did not admit — was not due to any ‘culpable failure or neglect’ on its part, but rather down to factors ‘beyond the capacity of the HSE to address’.
However, the Executive will not escape sanction that easily, and it has already consulted its legal advisors as to the extent to which it can be held liable for the failure of HSE-funded agencies to comply with the 48-hour week.
Under Irish legislation, employees may seek a hearing with a Rights Commissioner regarding alleged breaches of working time legislation. If a breach has taken place, employers can be subject to a fine per occurrence per individual employee of more than €1,000. There are approximately 4,600 NCHDs working in the health service — a substantial proportion of which are working non-compliant rosters.
It would appear the HSE got some stark legal advice regarding its liability, prompting the National Director of Integration, Performance and Financial Management to instructed hospitals in November to take ‘whatever steps are necessary’ to implement EWTD-compliant rosters.
However, hospitals should have been reminded that such steps had to be ‘legal’ ones.
It was disappointing to hear reports before Christmas that management at one hospital in South Dublin were once again altering the time sheets of NCHDs — despite this being the legal claim for pay that the doctors had filled in, signed, and which their line manager had also signed off on. Can the HSE have forgotten that €15 million has already been paid out to NCHDs over this illegal activity in the past?
Ireland could also face significant fines from the European Commission for non-compliance with the EWTD, which brought in the 48-hour week for NCHDs in August.
As revealed by Irish Medical Times earlier this month, the Department of Health has until Wednesday January 20 to respond to a Letter of Formal Notice sent by the Commission in relation to Ireland’s failure to comply with the legislation.
While Greece has already been referred to the European Court of Justice over the working hours of its junior doctors, sources have indicated that Belgium and Portugal received similar warnings from the Commission at the same time as Ireland.
The Government has had two months from when this letter was sent (November 20) to reply to this first stage of infringement proceedings.
If the Commission receives no reply, or if the observations presented are not satisfactory, it may decide to issue a ‘reasoned opinion’ — the second stage in the infringement process. While the EWTD has been legally transposed in Ireland, the Commission is clearly unhappy with its implementation on the ground.
If the Irish Government continues to fail to fulfil its obligations under EU law, the Commission may then refer the case to the European Court of Justice, which has the power to impose significant fines for non-compliance.
The Department of Health requested that the HSE submit a plan to enable it to comply with the EWTD for submission to the European Commission. A draft of this plan was due to be completed by the end of last month.
HSE CEO Prof Brendan Drumm has acknowledged that the implementation of the 48-hour week for NCHDs may well impact negatively on the delivery of health services. Even at this early stage of the year, this may prove to be the understatement of 2010!
The Mater Hospital is reported to be planning bed closures and cuts of up to 50 per cent in the outpatient department so as to meet demands from the HSE to reduce the hours worked by hospital doctors. Other hospitals are facing similar dilemmas, and the country’s biggest acute hospitals are expected to be some of the worst affected.
Of course, we have all known about this potential time bomb for years. But leaving it to the last minute — or the last 48 hours — seems the Irish way.