In a test case that threatens to cost the NHS millions, junior doctors are claiming they do not get enough rest and that patients are being put at risk.
Dr Sarah Hallett says it is up to NHS trusts to make sure that junior medics get a half-hour break after every four hours they are continuously on duty.
Now, on behalf of 20 other doctors who trained with her in Derby she has taken her fight to the High Court, where she is accusing the NHS of failing to honour junior medics’ contracts.
If she wins her case, Royal Derby Hospitals NHS Foundation could have to pay out £250,000 to the 21 medics for rest breaks missed over an eight-month period.
Dr Sarah Hallett says it is up to NHS trusts to make sure that junior medics get a half-hour break after every four hours they are continuously on duty
Dr Sarah Hallett
Dr Sarah Hallett, the junior doctors’ committee deputy chairman for education and training, is a paediatric doctor working in south London.
She identified herself as a Labour Party member when she signed a letter organised by Momentum’s NHS group in March 2016 calling for privatisation in the NHS to be reversed.
Last February Dr Hallett was a signatory to a letter in The Guardian urging people to join the ‘#OurNHS’ national demonstration, which was addressed by Mr Corbyn and supported by Momentum.
The letter branded Theresa May’s relationship with Donald Trump as ‘transatlantic appeasement spectacle’.
And NHS lawyers say the floodgates would open to similar claims by thousands of medics who trained at NHS hospitals all over the country.
NHS barrister, Richard Leiper QC, said: ‘The potential cost to the trust, let alone to the NHS as a whole, would be dramatic’.
John Cavanagh QC, representing Dr Hallett, said: ‘The case concerns the entitlement of junior doctors to take breaks during the course of their working duties.
‘This case is of general public importance…it is a test case which is of significance across the NHS.’
The barrister said NHS trusts are duty-bound to ensure that junior doctors take 30-minute ‘natural breaks’ after every four-hour working stint.
‘If they do not have the opportunity to take these breaks, this affects their safety and welfare, with consequent effects on patient safety.’
NHS trusts who do not comply with the rules have to pay junior doctors double their normal rate for missed rest periods, he added.
Dr Hallett, who is Chair of the British Medical Association’s Junior Doctor Committee, says she and hard-pressed colleagues did not get enough breaks during their foundation year in Derby in 2013 and 2014.
Her case is ‘not about money, but principle’, and Mr Cavanagh said her ‘primary objective’ was to make sure that NHS trusts meet their contractual duty to make sure junior doctors take enough breaks.
‘It is the responsibility of trusts to make sure that they do not run overly fatiguing or unsafe rotas. It is hoped that it is obvious why it is in the public interest that this does not happen.
‘Junior doctors who have to work for many hours in very stressful and high-pressure conditions without even a short break will be exhausted and this will potentially lead to risks to patient safety,’ the QC added.
‘This will also have an adverse effect on the morale and happiness of junior doctors which is both harmful in itself and is likely to have negative consequences, for example in junior doctors losing heart and leaving the profession.’
Dr Hallett pictured at a rally with Jeremy Corbyn and Shadow Chancellor John McDonnell in 2016
WORKING HOURS FOR JUNIOR DOCTORS
The European Working Time Directive (EWTD) protects the health and safety of doctors by restricting the number of hours an individual can work and imposing minimum rest requirements.
For Junior doctors it means:
- Working hours have been reduced from an average of 56 per week to 48, calculated over a period of 26 weeks. Doctors are entitled to choose to work additional hours if they wish.
- A period of 11 hours continuous rest a day (or compensatory rest to be taken at another time if this is not achieved).
- A day off each week, or two days off in every fortnight (or compensatory rest)
- A 20 minute rest break every 6 hours (or compensatory rest)
Under EWTD guidelines, a rest is:
A minimum of 11 hours’ continuous rest in every 24-hour period
A minimum rest break of 20 continuous 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 28 days or 5.6 weeks’ paid annual leave a maximum of eight hours’ work in each 24 hours for night workers.
Mr Cavanagh said the primary duty to monitor junior doctors to ensure they get enough rest lies on the NHS trusts who employ them.
‘It would be quite wrong to place the responsibility on the shoulders of junior doctors, many of whom, like Dr Hallett in 2013, are just out of medical school and are working in their first job.
‘If they are faced with extremely heavy workloads and very sick patients, it can be very difficult for junior doctors to take responsibility for the decision to stop what they are doing in order to take a break.
‘It is for the employer to take appropriate steps to protect patients and the junior doctors themselves,’ he told Mrs Justice Simler.
The Royal Derby Hospitals NHS Foundation Trust is defending the case, arguing through Mr Leiper that Dr Hallett’s case is based on a misinterpretation of junior doctors’ contracts.
Dr Hallett’s case has won the backing of the British Medical Association (BMA).
In a statement, the trade union said: ‘The BMA believes breaches are commonplace owing to widespread use and incorrect application of monitoring software resulting in trusts failing to apply the protections provided to doctors in their contracts of employment.
‘The BMA expects that the decision will set a binding legal precedent in England and Wales.’
The Department of Health and Social Care and the BMA have been contacted for comment.
The hearing, expected to last four days, continues.
If Dr Hallett wins her case, Royal Derby Hospitals NHS Foundation could have to pay out £250,000 to the 21 medics for rest breaks missed over an eight-month period. Pictured, junior doctors at a rally in London in February 2016
WHAT IS A JUNIOR DOCTOR AND HOW MUCH DO THEY EARN COMPARED TO PEOPLE IN OTHER PROFESSIONS AFTER THEY LEAVE UNIVERSITY?
|Banking or financial services||£31,250|
|Consulting or business services||£28,500|
|IT & Telecommunication||£28,500|
|Accountancy or professional service firm||£28,000|
|Energy, water or utility company||£26,750|
|Engineering or industrial company||£25,750|
|Construction company or consultancy||£25,500|
|Source: Association of Graduate Recruiters|
What is a junior doctor?
The term ‘junior doctor’ covers any doctor role that is below GP or consultant level.
The term encompasses a trainee coming out of medical school right up to a speciality doctor (a doctor working in a specific area such as emergency medicine, respiratory or radiology).
These doctors can be in charge of teams, making life-and-death decisions and carrying out surgery.
Junior doctors account for about 55,000 NHS staff in England – a third of the country’s medical workforce.
What do they earn?
Trainees coming out of medical school can expect a basic starting salary of £22,636.
This is currently boosted through bonus payments for working more than 40 hours or and/or time worked outside 7am-7pm Monday to Friday.
If a doctor in specialist training (which begins after a doctor has worked in a hospital for two years and can take a further eight years) the basic starting salary is £30,002, according to the NHS Health Careers website.
Again, if they are asked to work more than 40 hours a week and/or to work outside 7am – 7pm Monday to Friday, they currently receive an additional bonus which is usually between 20 per cent and 50 per cent of the basic salary.
This bonus is based on the extra hours worked above a 40 hour normal working week.
Doctors will typically move into a specialism such as emergency medicine or radiology. These basic salaries range from £30,000 to £69,325.
The NHS Employers Organisation, which is opposing the BMA, says the average salary of a junior doctor is £37,000.
How does their pay compare to other graduate professions?
Figures from the Association of Graduate Recruiters show graduates typically start out on salaries ranging from about £21,000 to £37,000.
A fully qualified nurse starts on approximately £22,000. Hours worked on Saturdays, Sundays, public holidays and on weekdays between 8pm and 6am receive a pay premium.
Professions at the top of the scale include law firms and financial services while those at the bottom include public sector employees and retail.
Someone going in to a law firm can expect a starting salary of about £37,000, banking or financial services, £31,250, consulting or business services £28,500 and IT & Telecommunication £28,500.
Meanwhile, those working in the public sector average £23,750, a teacher £23,000 and retail £21,500.