The final. countdown. The rush to reband training posts explained PLEASE KEEP THIS GUIDE FOR FUTURE REFERENCE

Transcription

1 The final Junior Doctors Committee countdown The rush to reband training posts explained This guide contains everything you need to work out which band your post should be in, how your rota should (and should not) be regulated and what to do if it goes wrong. It also contains the rules and regulations covering your working t i m e PLEASE KEEP THIS GUIDE FOR FUTURE REFERENCE

2 What is in this guide? An explanation of: the New Deal the Junior Doctors banded contract the European Working Time Directive and the introduction of a 48hr week in 2009 How to work out your correct pay band The proper way to change your rota What to do if it all goes wrong Why this is happening What we are doing about it Where to get help Foreword This guidance was originally developed for the initial 2004 implementation of the EWTD for junior doctors. With the 2009 deadline for full implementation fast approaching the JDC has updated and re-issued this guide to help explain the EWTD and its implications for those caught up in changes to their rotas and working patterns. As junior doctors, we know that across the country juniors working patterns are being changed, our posts rebanded, and a whole raft of measures to reduce our hours is being implemented, often in a seemingly haphazard way. The best way for you to make sense of the opportunities and threats that this presents for you is to have as much information as possible. We hope that this is a useful summary of what is happening and why, as the legislation comes into full force. Please check the BMA website from time to time, as we will be issuing more guidance on this and other issues over the coming months. What are the rules? New Deal: controls on junior doctors hours A 1991 agreement between government, medical royal colleges and BMA It responded to health and safety concerns over long hours (previously rotas with a one in two frequency of on-call working were common, with up to 120 hours/week) Staged implementation to 1996 Implemented a maximum 56 hours of actual work (i.e. on your feet treating patients etc. See below for definitions) Formalised full and partial shifts All parties agreed education and training could be delivered within the limits and with shifts. Table 1: New Deal summary Maximum duty hours Maximum actual weekly hours Maximum continuous duty hours on call rota (56 at w/e) 24hour partial shift Minimum time off between duties (h) Minimum off duty (h) every 21 days every 28 days partial shift every 28 days full shift every 28 days All patterns of work are entitled to a 30 minute break for each period of 4 hours worked. (OOH means out-of-hours, defined as all time outside 8am to 7pm, Monday to Friday) Rest 8h/32, 5h continuous at night 6h/24 4h continuous at night 4h or 1/4 of OOH period Only breaks Ram Moorthy, JDC Chairman Andrew O Brien, JDC Deputy Chairman (Terms and Conditions of Service & Negotiating) What is going on? Many junior doctors have found either that their posts are being rebanded in ways that do not seem fair, or have complained that they are being pushed into a rota pattern that they do not want to work. There are huge pressures to reduce junior doctors hours at the moment. The phased introduction of the EWTD for juniors is now starting to bite. All employers around the country must ensure all their junior doctor rotas are in Band 1 by August Why? Read on. New Deal definitions of work and rest Actual work: the definition of hours of actual work will be that definition used in the New Deal (ie includes all time carrying out tasks for the employer, including periods of formal study/teaching, but does not include rest while oncall). For the purposes of defining work after 7pm, work begins when a doctor is disturbed from rest and ends when that rest is resumed. This includes, for example, time spent waiting to perform a clinical duty * and time spent giving advice on the telephone. Rest: All time on duty when not performing or waiting to perform * a clinical or administrative task, and not undertaking a formal educational activity; but including time spent sleeping. Natural breaks (of at least 30 mins every four hours) do not count as rest. * For example, a doctor waiting for the operating theatre to be prepared. 2 The rush to reband training posts explained

3 EWTD The European Working Time Directive (EWTD) is designed to protect the health and safety of workers by restricting the number of hours an individual can work and imposing minimum rest requirements on all workers. The EWTD dictates how many hours an employee can work and how much rest they should take. It is enshrined in UK and European law and is therefore not optional. The EWTD states that employees (with few exceptions) should not work more than 48 hours a week and that the following rest requirements should be met: a minimum of 11 hours continuous rest in every 24 hour period a minimum rest break of 20 minutes after every six hours worked a minimum period of 24 hours continuous rest in each seven day period (or 48 hours in a 14 day period) a minimum of four weeks paid annual leave a maximum of eight hours work in each 24 hours for night workers *. * junior doctors are unlikely to be classed as night workers. Under the EWTD, night workers are defined as those who work at least three hours of their daily working time during the night. This cannot be assumed for junior doctors. The EWTD became part of British law and applicable to the majority of workers on 1 October Consultants and other career grade hospital doctors were included in this initial legislation but junior doctors were excluded. A timetable for doctors in training, to be included within the Working Time Directive (Amending directive [2000]), was agreed in May 2000 between the European Parliament and the Council of Ministers. It was agreed that the EWTD for junior doctors would be implemented gradually over five years. This meant that the limitation to 48 hours work per week would only be introduced in August An interim 58 hour week was applicable from August 2004 this reduced further to a 56 hour week in August Opting out : Any employee can choose to opt out of the hours limits. However, for junior doctors this is not straightforward because they work in teams on a rota. Junior doctors don t have control over their own working patterns, unlike career grade doctors, and as a result opting out individually will be complicated. The JDC s view is that only those junior doctors who have independent control over their working hours should be able to consider opting out. Rest breaks: It is not possible to opt out of the Directive s rest breaks. However, if the full 11 hours rest cannot be taken on any day, the missed rest can be made up later as compensatory rest. This is only allowed because a derogation from the 11 hour rule was agreed for doctors. For more information on compensatory rest see below. SiMAP/Jaeger A 2000 European Court of Justice (ECJ) ruling, in a case brought by Spanish doctors against their employers (SiMAP), declared that all hours spent compulsorily resident at the place of work should count as work. Therefore, old style on-call rotas with assumed periods of rest must now count as continuous duty. The SiMAP ruling was reinforced in 2003 by the Jaeger ECJ case, which also dealt with aspects of compensatory rest. These rulings do not apply to those working on-call from home. Pay Banding Introduced in December 2000, the new banded pay system for junior doctors was the result of lengthy negotiations between the Department of Health and the JDC. The prime aim was to secure fairer out-ofhours pay and the secondary aim was to give trusts the incentive to reduce the number of hours junior doctors were working. The New Deal hours and rest requirements of 1991 were enshrined into contracts and thus, for the first time, became legally binding for PRHOs from August 2001 and for all other grades of junior doctors from August There have been no changes in the rules of the New Deal. There is a legal obligation on both trusts and juniors to monitor hours every six months. Band 3 penalty pay rates proved a lever for trusts to take junior doctors hours and New Deal issues seriously. By August 2009 all doctors must be working no more than 48 hours per week on average, which means all posts must be in Band 1. An explanation and flowchart of how to find out which band you should be in, and how to reband a post are on pages 4 & 5. What do I do? Your trust will wish to reband your post as soon as possible if it is currently Band 2 or 3. Volunteer to take part in this, as it is the only way to influence any changes. You need not worry about taking a pay cut as a result because your existing banding payments will be protected (see below). Print out the Approval to Change Band Form from the Department of Health (DH) website and ensure it is explicitly followed: Managingyourorganisation/Humanresources andtraining/modernisingpay/juniordoctor contracts/dh_ How to design a compliant rota is too lengthy to explain here but it is explained in the JDC s guidance Rota design made easy and the Junior doctors handbook both free to BMA members. Also very useful is a joint DH, JDC, and NHS Confederation document available from the same DH weblink Guidance on working patterns for junior doctors. In-post pay protection Pay protection applies to existing post-holders if their rota is down-banded. If a post is downbanded while you are working that rota, then you will receive pay protection for the duration of your post. Although the banding supplement that the post attracts will have changed, and future postholders may be paid according to this new banding, your pay will be protected at the pay band you received before the post was rebanded. This in-post pay protection will apply for the duration of the post, or for as long as it is more favourable than the actual banding of the rota. (Continued on page 6). The rush to reband training posts explained 3

4 Which band should I be in? The key to knowing which is your correct band, is to know how many actual hours of work you do each week. This varies for almost everyone and rarely follows the exact rota you have been given. You will need your monitoring data. Many employers have their own diary form, but we have developed a model that is available on the BMA website. Either way, keep careful records, which will allow you to see what time you are really finishing work and how long your breaks or rest periods really are. Now use the flow chart below. The New Deal rest requirements are in table 1. This flow chart is for full-time trainees. Flexible trainees should refer to the contracts section of the BMA website or the junior doctors handbook for How can they reband my post? The JDC is aware of many recent instances where juniors have been told that their rotas will change and that they will be paid less as a result, often with little or no notice. This lack of notice is not allowed under your terms and conditions of service, and because of pay protection, no one should find that their pay goes down when bandings change. There are very specific rules about how a post can be rebanded. These are contained in the Rebanding protocol available from the DH website. A summary, taken directly from the proforma is listed in Table 2. The full proforma must be signed off by all parties to indicate all steps have been followed. If not, then the post has NOT been rebanded properly and the salary should remain at the previous level. If there is any dispute an appeal can be lodged. The BMA has been successful in the vast majority of the appeals that have taken place since the system was introduced in Please note, you must approve the changes, does not allow you to demand to stay in Band 3 or a higher band than the proposed new rota but does allow you to ensure the new rota is workable and agreed by those concerned. Incoming post-holders means anyone who knows they will be rotating into that post. AskBMA can give additional information or clarification to members if required. 4 The rush to reband training posts explained

5 Table 2: The stages necessary to reband a training post Stage Evidence Required Documentation 1a. Consult post-holders on proposed changes and obtain agreement of the majority participating in the working arrangements 1b. Submit details of the new working arrangements to the action team (or successor body) for information and invited comment 1c. Obtain agreement from clinical tutor for education purposes Approval of majority of current/incoming post-holders Full details of proposed working arrangements and/or rota summary (eg from DRS or RotaWorks software) Full details of proposed working arrangements Comments of action team Template signed by trust junior doctor representative confirming agreement of majority of current/incoming post-holders Letter signed by action team chair or delegated authority confirming theoretical compliance of working arrangements Letter signed by dean or delegated authority confirming educational acceptability of working arrangements If exceptionally and because of the impracticality of full implementation of new working arrangements * a trust wishes to offer future posts at an expected banding in advance of actual monitoring, approval must be sought from the regional action team (or its equivalent) in advance of making any such offer. Any offer made in these circumstances will be strictly provisional, and must be confirmed by monitoring following the implementation of new working arrangements. 2. Submit request for provisional approval * of working arrangements to action team 3. Monitoring of working pattern and confirmation of banding Signed letter from trust giving reasons for inability to fully monitor before rebanding Evidence of full or partial testing/monitoring of proposed arrangements Completed monitoring returns from 75% of doctors on rota over full 2 week period Summary of monitoring results Letter signed by action team chair or delegated authority authorising an offer of provisional banding This signed template (Meaning whole proforma as explained above table) * The protocol for the rebanding of posts states that provisional rebanding will only be needed in rare circumstances, such as service reconfiguration or a merger of employers. The employer must be able to demonstrate why it was impossible to test/implement the rota in advance of rebanding. What to do if it has gone wrong They tell us it s 2B but we never finish at 5 There s a week of nights followed by two days off, it s not enough Rotas are being changed up and down the country. When done well, trainees, consultants and managers are happy that the best balance has been struck between training, quality of life and service need. At its worst there seems to be no training, no one sees their friends or family and yet the hospital complains they can never find the right doctor when they want them. There are ways in which you can challenge your rota s band see the flow chart below. What to do to get the best rota: juniors must be part of the team devising their own rota, as imposed rotas are much more likely lead to unhappiness all sides must be realistic New Deal and EWTD will mean there are fewer junior doctor hours available something will have to give training should be protected it is what trainees are meant to be doing if no one is getting rest it will have to be a fullshift rota. Look at monitoring data/diary cards or word of mouth. Can the rest requirements of an on-call or partial shift be met? (summarised in table 1, full explanations in the Junior doctors handbook) do you need all the tiers of cover you have (ie FHO1, FHO2, ST1-2, ST3+)? Could one or more tiers be merged? can other staff take some of the load (where appropriate)? nurse practitioners, physicians assistants etc full-shift rotas with prospective cover need at least ten people. They can nominally be done with eight but they are very antisocial, often deliver poor training and are consequently unpopular look ahead to 2009, even if you design an intermediate rota until extra resources become available. What to do if you have been wrongly down-banded: Ask yourselves these questions: Same as it is presently paid Was the rebanding protocol followed correctly? What band should this rota (as we work it) be in? Check your facts read the rules for each work pattern, ask the BMA for advice if needed. Different from how it is presently paid What did the last set of monitoring show? Yes No Agreed with juniors Agreed with trust Enjoy the job! Inform medical staffing that the rebanding process needs to be followed, giving them a reminder copy if needed. They say: Ask medical staffing to pay you the band you have been monitored at, back dated to the last change of rota/juniors or compliant monitoring. They say: Ask for re-monitoring OK No No OK You should be protected on your previous salary until the proper process has been followed Write a joint letter to the regional action team equivalent and the BMA (regional office) Enjoy the job! The rush to reband training posts explained 5

6 What about training? One of the most common and entirely understandable fears is that the reduction in hours will adversely affect training. The JDC has been making this point repeatedly for years to government, the medical royal colleges and the deaneries. Most recently this has been done through the JDC s representation on all the DH groups formed to respond to the 2009 changes. We continually impress upon the Departments of Health that the need to ensure that there is the minimum impact on training time must not be underestimated. Australia and many Scandinavian countries have been training their doctors to high standards in under 48 hours a week for years we should be able to do this too. The barriers include antiquated training methods, service load (a high proportion of the workload in NHS hospitals is undertaken by doctors in training), and targets amongst many other things. We must ensure training is of a high quality and teaches all the skills required. A Specialty Registrar running a clinic on their own may be learning how to cope, but this may not enhance their clinical knowledge or benefit patient care. Better supervision, maximising use of training opportunities and improved workplace based assessments testing knowledge and skills needed to perform our jobs will all help. There are a variety of things that can be done if junior doctors have concerns about adverse effects on training when rotas are changed. The clinical tutor should be informed in the first instance but concerns about training can also be raised with the regional specialty advisor or postgraduate dean. Ultimately PMETB has the final responsibility for ensuring that junior doctors training is of the required standard. Highlighting concerns about training is always best done if all the junior doctors on a rota agree about the problems and can suggest potential solutions. Regional Junior Doctors Committees can usually provide additional advice and support. Clinical tutors must take responsibility for ensuring that rotas with reduced hours still provide adequate training. One of their key roles is to approve redesigned junior doctor rotas: this is an essential mechanism for protecting training time and is an essential part of the Approval to Change band protocol, without which the band of a post cannot change. Areas we are working on Protecting training As discussed above, the JDC has long been concerned about the impact of the EWTD on delivery of high quality training. We have been supportive of the medical royal colleges attempts at developing new ways of training in fewer hours per week. We have also been researching through surveys the extent of the impact on training of the drive to reduce hours and collecting good practice examples where well-designed working patterns have delivered good quality training. We hope to build on this work and publish further information about innovative working patterns and training during the coming months. Compensatory rest If junior doctors are awoken at night whilst on-call from home (e.g. to provide telephone advice or attend to a patient in hospital or in the community) then compensatory rest is mandatory under the EWTD. The directive specifically forbids being paid in lieu of rest, but says little more about how compensatory rest should be taken. We have been lobbying in Europe to request amendments that clarify how this important entitlement should be delivered but until that happens, the JDC believes that compensatory rest should not normally be taken during time that is already scheduled as time off. We also believe that it is very poor practice for rotas to include prospective compensatory rest in order for them to be EWTD compliant. Your employer may have its own policy on compensatory rest, but you should check through your local representative that this has been approved by the BMA. Hospital at night project The issue of who should remain in the hospital and who can work on-call from home remains fundamental to whether this concept can work. The NHS does not have the manpower to continue to support all the existing hospitals on the basis of full shifts alone. Trusts will need to decide who they actually need to be present, on-site, overnight and who could be on-call from home. Doctors will have to engage in those tasks that require medical training; those other tasks will need to be moved to the daytime or performed by others. In 2003 the JDC and the Strategy Unit of the DH worked together to decide what core functions within a hospital needed medical staff out of hours. A large amount of research was undertaken and a number of pilots were carried out to uncover how night-time cover could be trimmed down safely in order to release more time during the day for junior doctors training. This project developed into the Hospital at Night initiative, and still has a large amount of success. The JDC supports the original Hospital at Night (H@N) policy concept, but is concerned that many schemes set up under the H@N name do not follow best practice. Some schemes put undue pressure on junior doctors to cover single-handedly areas of medicine that are outside their expertise and ability, endangering patient safety and leaving junior doctors exposed to liability when things go wrong. We would advise all doctors working in a H@N scheme to check their employer s policy against national guidelines. Accommodation Those who are not compulsorily resident, but on-call from home, will need to be accessible. For juniors on rotations who live a significant distance from their hospital this may require on-call rooms to be made available for their use on a voluntary basis. In addition, those on-call (either from home or voluntarily resident) will need compensatory rest if they are disturbed (see above). Some trusts have reacted to the increasing introduction of full-shift rotas by reducing or re-designating their on-call accommodation. The EWTD does not signal the end of the need for oncall rooms. Many doctors doing full-shift nights will have opportunities to gain short periods of sleep (naps). These anchor sleeps have been shown to significantly improve the performance of those working nights and this, in turn, benefits patient safety. Also there may be a need for voluntary accommodation for those who live far from the hospital. In addition, the Selby rail crash ruling has shown the importance of staff being adequately rested before driving home and we believe on-call rooms should be available for anyone who does not feel safe to drive. The JDC opposes any attempts to introduce aircraft lounge style seating in place of on-call rooms. The Terms and Conditions of Service & Negotiating Subcommittee has constantly highlighted sleep deprivation issues with all stakeholders and 6 The rush to reband training posts explained

7 supports the recent work by the Royal College of Physicians on Surviving the night shift. We have also recently relaunched our Where are you sleeping tonight? campaign to raise awareness of the issues. Who to turn to/where to get help If you have exhausted the avenues outlined in What to do if it has gone wrong (see pages 4 & 5) external help is required. For BMA members the first port of call remains askbma on or askbma@bma.org.uk and The JDC national office address is info.jdc@bma.org.uk Do not forget the deaneries. They may be able to help with poor rota decisions, particularly where training has been compromised. Lastly, get involved attend a regional meeting, come to national JDC or this year s conference. These decisions affect your future. If you would like to be more involved, info.jdc@bma.org.uk and we will contact you to explain how. Websites details of regional offices and the latest news updates and guidance. ndtraining/modernisingpay/juniordoctorcontracts/dh_ copies of virtually all DH documents referred to in this paper, downloadable as PDFs. These include: Protocol for rebanding training grade posts Guidance on working patterns for junior doctors Terms and conditions for hospital doctors The New Deal 1991 HSC 2000/036 Living and working conditions for hospital doctors in training circular and guidance. for information from NHS National Workforce Projects on the EWTD. References 1. The New Deal: NHS Management Executive Junior Doctors (1991) The New Deal. London: Department of Health. 2. Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service, Department of Health, July The EWTD: Council Directive 93/104/EC. Official Journal of the European Community 1993; L307: The SiMAP ruling: Judgement of 3 October 2000: Case C-303/98 Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad. 5. The EWTD Amending Directive: Directive 2000/34/EC of the European Parliament and Council. Official Journal of the European Community 2000;L195: The Jaeger case: Opinion of Advocate General Ruiz- Jarabo in case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger. 7. Department of Health (2000) HSC 2000/031 A General guide to the new pay system. London: Department of Health. 8. Department of Health (2002) Protocol for the rebanding of training grade posts. London: Department of Health. 9. Department of Health (2000). Junior Doctors Hours Monitoring Guidance. 10. Judgement in case of Selby rail crash, Crown v Gary Hart 13/12/03, Leeds Crown Court. 11. Designing safer rotas in the 48 hour week, Nicholas Horrocks and Roy Pounder, Royal College of Physicians. September Working the night shift, Nicholas Horrocks and Roy Pounder, Royal College of Physicians Contributors This guidance was produced by the 2007/08 JDC Terms & Conditions of Service & Negotiating Subcommittee: Andrew O Brien (Chairman, JDC TCS & N Subcommittee) Andrew Rowland (Deputy Chairman, JDC TCS & N Subcommittee) Ben Carrick Shree Datta Debs White Tim Crocker-Buque (Medical Students Committee representative) Ram Moorthy (JDC Chairman) Eleanor Draeger (JDC Vice Chair) Sarah McCarthy (Industrial Relations Officer) Kevin McFadden (Senior IRO) Mirembe Wells (Senior Policy Executive) Susannah Gray (Executive Officer) with thanks to Andy Thornley (JDC Education and Training Subcommittee) The rush to reband training posts explained 7

8 For updates and further information PLEASE KEEP THIS GUIDE FOR FUTURE REFERENCE Junior Doctors Committee, BMA House, Tavistock Square, London, WC1H 9JP April 2008