Junior doctors Q&A

Days before the August 1st deadline Skills for Health – Workforce Projects Team (WPT) hosted an online interactive EWTD Q&A forum where junior doctors could put questions to a panel of experts who were on hand to answer live questions surrounding EWTD.

Facilitator Tim Lund, EWTD programme lead at WPT commenced the session by introducing fellow panel members consisting of: David Grantham, NHS Employers, Debs White, BMA Junior Doctors Committee and Masson Ahmed, Could 9 Consultants.

Below is a full transcript of the questions and answers from the session.

Q1. Is the panel confident that the NHS will be ready for EWTD from 1st Aug?

The NHS has taken some big steps forward in trying to meet the EWTD. Things won't be perfect but it is certainly a high priority in Trusts. The important thing is to keep the momentum going and for Trusts to continue their efforts to maintain compliance and improve training.

Employers have told us that they are, but of course they are concerned about the potential impact of pandemic. I expect there will be some areas where compliance is a bit shaky. Rotas need adjusting and arrangements working through. What we need to concentrate on now is really ensuring that within 48 hours, doctors are getting the training they need.

An independent evaluation of the EWTD pilot programme can be found at : www.healthcareworkforce.nhs.uk/wtdevaluation/

Is the NHS ready? Well I don't think the NHS will collapse on August 1st - but I do think there is still a lot of work to do to make sure sustainable EWTD solutions that are good for the service, good for training and good for doctors’ work/life balance are embedded in the NHS.

Q2. If we have vacant posts and are having difficulties recruiting and securing locum cover, would you suggest we apply for derogation at this stage? It is difficult to say when we will have a full establishment. We have a number of people who require work permits.

There will be a further opportunity for employers to apply for derogation (giving permission for a 52 hour week) in the next few months. SHAs have been asked to monitor the position over August. You will need to assess the position once recruitment is known. I guess you must also be supporting the vacancies at present through individuals who have 'opted out' or external locums. Again it's a local matter to consider how sustainable that is but there will be a further derogation opportunity.

If long term vacancies continue then it might be time for your trust to start looking at different types of solutions. For example, moving to a more consultant based service or the types of service redesign solutions introduced at the Homerton and Royal Liverpool & Broadgreen. All these pilot solutions have been independently evaluated and the results are on the Workforce Projects Team portal. www.healthcareworkforce.nhs.uk/pilotprojects

The Rota Design for 2009 document and the Compendium of Solutions are both useful resources to look at and share with your trust. These can also be viewed on the WPT portal: www.healthcareworkforce.nhs.uk/rotashandoverescalation.html
www.healthcareworkforce.nhs.uk/compendium

Q3. If junior doctors opt out of the 48 hour week, will employers be allowed to give us a 56 hour week rota straight or will they have to consult us to add the extra 8 hours a week?

The opt out is for an individual, so the trust would have to arrange the extra hours with you and agree how it was to be paid e.g. change in supplement or pay as a locum. Banding for the rota stays the same as others may not have opted out.

The normal New Deal and contract arrangements must be followed for rota changes. All the opt out option does is allow more than 48 hours.

The Junior Doctors’ Committee has just published new guidance on the individual opt out and on rights and responsibilities around rota gaps both of these pieces of guidance are linked from the EWTD section of the website. www.healthcareworkforce.nhs.uk/jdcguidance

The Academy of Medical Royal Colleges and other key stakeholders agree that it is best not to fill the core rota with opted out hours - that is high risk. The flexibility opt out gives for internal locums etc can be a real benefit though.

Any employer designing the service around 56h week rotas and hence banking on doctors VOLUNTARILY opting out is using a risky strategy.

Q4. If you wished to do extra locum shifts in your main or another hospital, would you still have to stick to the 48 hour or 56 hour week that you agreed to? What happens if an individual went over that? Is that an individual’s responsibility or the trust’s responsibility?

If doing locum work at the same trust, the employer should be keeping a record of your extra hours; remember the rest requirements stay the same so you can't break those rules even with the opt out. It's a good idea to let your main employer know if you are working elsewhere. Working too many hours may get you extra cash but if you are not rested then you may not be clinically at your best.

If you are working under the national junior doctor TC’s you cannot work more than 56 hours across all your employments, including locums in other organisations. If you are working more than 48 hours your employer will expect to know about this, and have an opt out from you.

Penalties for breaking the Working Time Regulations WTR (the UK law enacting the EWTD) include fines and imprisonment, though improvement notices are likely to be the first action from the HSE if they are asked to investigate WTR non-compliance.

This is right. It is often forgotten that EWTD is about the health and safety of juniors. Well rested doctors perform better and hopefully also achieve a better work life balance. Training is the major issue and that is the challenge we must tackle in order to maintain the current standard of consultants and GPs.

Q5. If doctors work extra hours outside EWTD will they be insured under the indemnity?

Doctors will be covered by an employers' usual indemnity, provided they are doing work for that employer. There is a model opt out on the NHS Employers: www.nhsemployers.org.PlanningYourWorkforce/MedicalWorkforce/EWTD/Pages/EWTD.aspx

Where you work over the limits 'accidentally' for service reasons (i.e. not under an opt out agreement) the NHS Litigation Authority has been pretty clear in statements they made when the 48 hour limit came in for other staff back in 1998, that their attitude is that work being done for the NHS will be covered.

The NHS Litigation Authority has given assurances that work / hours performed for the trust are covered by the indemnity (even if outside the exact EWTD requirements). www.healthcareworkforce.nhs.uk/indemnity

Q6. If junior doctors choose to stay after their rostered shift for training is this counted as worked time?

It depends on what you mean by staying behind. If it does happen occasionally because of an interesting case and provided you are not going to breech rest rules, then it should be OK. But if it is being done on a regular basis then the hours should be recognised as part of your roster. Training under the New Deal counts as work but under EWTD the interpretation isn’t always so clear

This is always a difficult question. If you absolutely voluntarily choose to stay and are having no part in delivering the service, then it MIGHT not be working time. A good roster should allow training in the rostered hours - not encroach on your own time for training purposes.

It'll depend whether the employer agrees that the work was required. If it's simply voluntary attendance and no work is needed or has been agreed an employer is not going to recognise it as work.

This is one area where the pay system, now we reach 48 hours, is perhaps unhelpful, as work over 48 hours can lead to a banding increase providing an incentive to work longer. I am sure no employer would be too bothered about staff being present in the work place beyond required hours where they weren't asking for extra pay for this. The rotation should provide that you get the training you need in the 48 hours, but we all recognise some people may want to see if they can take advantage of extra opportunities.

Q7. Is it right that I feel pressured to work and train during my rest breaks?

It sounds like there may be some problems with your rota or how you are expected to work it. It would be a good idea to speak to the Clinical tutor at your trust or contact the Deanery or SHA for advice.

If you are a BMA member, you should contact them on support@bma.org.uk. Even if you are not a member, your Regional JDC should be able to assist you. If you are not a member, contact info.jdc@bma.org.uk and they will put you in touch with your Regional JDC

You could also raise your concerns with the regional EWTD lead that chould be identified in the WTD FAQs on www.healthcareworkforce.nhs.uk/etd

Many Deaneries have an Associate Dean to support doctors in difficulty and this might be an option.

Agreements in the NHS covering WTD make it very clear that anyone raising issues or asserting their rights under the WTD should not be penalised for doing so.

Q8. Will the 48 hour week result in reduced pay?

It is important to make clear that EWTD is different to the New Deal which determines pay. Pay has overall been falling with falling hours for years since the New Deal was implemented in 2000 and many doctors have been working less than 48 hours a week for a number of years.

So pay may be reduced for some people, but this isn't a direct consequence of EWTD, and there certainly isn't going to be a big bang pay cut in August.

Most won't see their pay reduced unless they are currently working a Band 2A rota, that said the reduced pay does comes with reduced hours.

It might be worth adding that there is some work underway to explore whether; in light of EWTD, the junior doctor contract, and particularly monitoring requirements etc, need to be amended.

Q9. My department shares our on calls with another specialty so the 3 SHOs in our department cover nights/weekends once every 8 weeks. Our last 2 week monitoring exercise did not cover an on call period (and its additional hours). Is this exercise still valid?

The monitoring will have covered the on call duties but those duties would have been monitored by the other SHOs. That's fine because the monitoring can still determine the banding.

New deal monitoring should be representative of normal working patterns - if some on call is part of your normal work, this should be shown in monitoring. 2 weeks of monitoring is the recommended minimum, but longer is sometimes needed to be.

Q10. How does annual leave and study leave figure into New Deal and EWTD working hours?

Annual and study leave are taken into account under the New Deal in the rota calculations by including prospective cover. But this concept doesn't exist under EWTD so the actual hours for EWTD when monitored may be slightly lower than the New Deal hours.

The handling of annual leave and study leave for EWTD purposes is complex and different to the New Deal. The EWTD mandates a certain amount of Annual Leave. Some study leave is counted as working time - there is a definition of training that is counted as work under the EWTD, the Junior Doctors’ Committee is clarifying what study leave would be covered by this at the moment.

Guidance on counting EWTD leave can also be found on the Direct Gov website http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/index.htm

Q11. We are exploring International Recruitment, but it takes time to go through the process. In the interim what suggestions do you have for covering gaps within hours limits where locums are scarce? Changing rotas is not always feasible.

On overseas recruitment there are a few points to make. The first is that there are two main routes - Tier 2 which is where an employer sponsors a worker's immigration to fill a post they couldn't get a UK/EEA worker (for up to 3 years), and Tier 5, the Medical Training Initiative. This is for two years and covers posts that offer a training or educational benefit for the appointee, who is then expected to return home. There's more detail on our website www.nhsemployers.org Under both there are ethical codes on overseas recruitment to ensure that the NHS is not 'raiding' countries for doctors to their disadvantage.

In the short term and perhaps while trusts are waiting for doctors from international recruitment, then internal locums provide a sensible short term measure. But if the rota can not be covered, then it should be redesigned and other non-doctor options looked at to support the juniors

There is a checklist for employers on options for covering medical vacancies on our website: www.nhsemployers.org This is really a prompt list to see that all options are looked at. If none of these work then you are looking at service or rota re-design solutions.

Have you looked at consultant expansion, or changing the way your consultants work? Some departments are introducing hybrid consultant-middle grade second on call rotas for example. Consultant expansion is a real sustainable solution to EWTD compliance - though I appreciate you are also looking for short-term solutions.

The level of engagement the trust has with doctors on the ground underpins temporary solutions

Communication is key. I have seen that the trusts who have really embraced ETWD, have also forged good relationships with their juniors. Working together is the best way to find collaborative solutions that meet service and training needs.

Consultant roles and expansion is interesting and Workforce Projects Team are working in partnership with the Royal College of Paediatrics and Child Health on this - case studies can be found at http://www.healthcareworkforce.nhs.uk/childhealth/

Here is a link to the NHS Employers managing vacancies checklist http://www.nhsemployers.org/PlanningYourWorkforce/MedicalWorkforce/Medical_Education_and_training/Specialty-and-GP-training/Managing-medical-vacancies/Pages/Managing-medical-vacancies.aspx

It is also worth working closely with the Deanery and the relevant Royal College even if international recruitment is a medium to long term option in your trust because they can prove useful contacts generally with availability of doctors etc