A tired healthcare practitioner may not be a happy one, and fatigue can cause accidents. In this article, the author looks at the reasons for which the European Union introduced a Directive in 1993 designed to limit working hours with a view to avoiding each of these concerns. The Directive also addresses continuous work periods, shifts, break time and minimum rest time in the working week. It appears that protection against fatigue experienced by health practitioners in the UK is still limited.
The UK finally adopted the Directive into the law in 1998 and amended the UK Working Time Regulations in 2003 to include certain categories of workers, which had for various reasons been excluded from the 1998 Regulations. In the matter of regulated working time, the UK has never been at the forefront of EU member states in espousing either the letter or the spirit of the EU Directive.
Health and safety at work: the basics
Accidents may or may not result from a faulty working regime, but they sometimes do. They are often one-offs, and serious instances can end a nurse's professional career. However, the number of hours worked can themselves affect the wellbeing of a practitioner, as well as that of their patient or client. Tired nurses may not be inefficient nurses, but fatigue is not the best route to the care they and their patients wish for.
An employer owes a duty at common law (that is, independently of legislation or legal regulations) to establish and maintain a safe system of work. This includes the duty to provide safe equipment, and there is a welter of legal rules pertaining to that aspect of the duty. In the context of working hours, the other two aspects of the employer's legal duty are important: these are the duty to provide reliable—‘safe’—colleagues and to provide a system in which it is safe for everyone to practise.
It follows that these two latter aspects of the common law duty and the regulation of practitioners' working hours are interrelated. It is the responsibility of a employer to build the working hours regime into the working system as a whole.
The legal position in UK law
The 1980s witnessed an increasing awareness of ‘workers rights’ across Europe. Trade unions had established a cental role in the workplace, and the time was ripe for detailed attention to conditions at work. As always, the impetus came from the characteristically European notion of social rights, applied in this instance to the workplace.
The focus of what may have been the first commentary on the EU Directive, published in the European Journal of Health Law in 1998, was the long hours worked by hospital doctors in training, against the background of concerns voiced by doctors' organisations about the deleterious effects of the then impending implementation of the Directive in UK law. In the event, the medical lobby succeeded in getting Regulation 18, which says that the restriction on working hours does not apply to ‘the activities of doctors in training’. Doctors received some protection when the Regulations were amended in 2003, and their situation may improve yet further under the NHS Long Term Plan published in January 2019 (King's Fund, 2019; NHS England, 2019).
The exception to the 1998 version of the Working Time Regulations, originally accorded to doctors but amended in 2003, was never applied to nurses, either those in training or in practice. Practical problems of implementation in the delivery of health services has by no means been confined to the medical context. In particular, the proliferation of fatigue in professional nursing practice, not least in the field of community and district nursing, has been a problem for a long time. Quite apart from the diversity of patients cared for, normally in their own homes, the question of travel and the time and the effort that it requires, can loom large in the working day and the overall working week of these health professionals.
Some details affecting nurses
The EU Directive of 1993 was adopted into UK law in 1998, successive governments having taken nearly 5 years to think about it. Under the working time regulations, an employee should not be required to work more than 48 hours per week. But here begin the wiggle-clauses. That number of hours is measured, under the 1993 Directive itself, over a period of 17 weeks. This is fine provided the worker is not too exhausted to last the whole 17 weeks. Further, the EU Directive allowed for ‘opt outs’, whereby an employee is permitted to opt out of the benefit provided by the Directive.
There may be many reasons why a worker might choose to opt out. In the field of community nursing one reason could be an admirably professional desire to provide optimal patient care. It comes as no surprise that the law counts work-related travelling time as working time, although that does not include travel to a single place of work at the beginning of a day or a shift and return home after it is done. The inclusion of travel time is likely to have an impact particularly on nurses working on a domiciliary basis in rural areas. Those managing the practice of such professionals should pay particular attention to this. The interrelation of the professional desires and instincts of community nurses and the wish of managers to ‘deliver on a target’ could be complicated, according to the demographics of the clientele and the adequacy of staffing levels among those charged with caring for patients.
All adult workers are entitled to a period of at least 24 hours' continuous rest in any 7-day period and a minimum holiday period in any given year. The regulations apply to all full-time and part-time workers, as well as to most agency workers and freelancers who have a ‘contract for services’ (as distinct from a contract of service, which means being an employee).
An interesting statistic in surveys of the practical incidence of working time laws comes from Germany. It appears that 90% of German employees choose to opt out of minimum hours. Similarly, a statistic from France is also of interest. While Germany has chosen to go for the maximum of 48 hours (measured in the way indicated above), France has chosen the figure of 35 hours. The French economy and productivity rate are among the best in Europe.
Who does not fall within the rules?
The Working Time Directive and the rules made in its wake by EU member states apply only to employees. This stands to reason, because it would be difficult to conceive of a law that turned people who work long hours into lawbreakers. The rules do not apply to self-employed workers, nor do they apply to heads of enterprises who are on overall charge of its management. Precisely who these latter people are is not prescribed in the Directive, although it gives as an example the Chief Executive Officer of an organisation. Literature on practical examples is very sparse, and there is no specific guidance either in the Directive or in UK law that might assist in the context of the delivery of health services in the UK.
Agency nurses are in all probability in the same position as other workers in an organisation, although again, this is specified neither in the Directive nor in UK regulations.
Any worker is free to opt out, but an employer who exerts pressure on an employee to opt out is breaking the law, and inappropriate pressure can be punished by a fine. Bullying an employee into opting out is punishable by a bigger fine.
Handover in community nursing
The principal focus of attention of UK healthcare services in the period leading up to the implementation of the working time laws in the UK was the effect they would be likely to have on the training of junior doctors in hospitals. The problem still exists, although UK healthcare services have made considerable efforts to address the issue.
The intervening years have seen the emergence of other practical questions across the nursing profession and, in particular, in community nursing. Staffing remains a perennial problem. Add to that the diversity of practice obligations in the community and the practical difficulties caused by the sheer travel distances that may be involved, and we have a potentially very complicated mixture of professional obligations and legal requirements.
Add to this the question of handover. The quality of the information given by one practitioner to another at handover has an important effect on the subsequent treatment received by the patient. Given the logistics and the demographics of the delivery of healthcare in the community, the time taken to arrange and to effect a proper handover are potentially very great, as well as very stressful. Full-time community nurses shoulder the burden of providing the continuity in the team (there are many part-time community nurses). It is tempting for organisations to rely increasingly on electronic records to ‘hand over’ rather than promoting face-to-face meetings of teams, thus maximising patient contact time. Many teams have gone ‘agile’ to free up staff time for patient visits—and due to limited office space—but this means community nurses are just working from home to plan their visits or complete patient records at the start or end of their day (this adds to their actual working hours, but is unpaid and often unrecorded).
Any handover, in whatever context, has the capacity to be the weak link in the chain of professional practice. The management of handover in community nursing practice requires the greatest attention by those charged with responsibility for the system.
Enforcing the working time rules
A question that remains to be addressed concerns how these rules are enforced in practice. The Directive, and with it the implementation across member states, depends on effective enforcement if it is to achieve its avowed purpose. An initial practical problem is caused by the verification of the average number of working hours over a 17-week period. Not only is practical verification going to require substantial human resources, but it is also going to take a considerable amount of time. Statistics on this aspect alone of the rules are patchy, and unsurprisingly so. It may be that some employers across EU member states might get through by taking measures to ensure that they do not get caught. Clearly, professional trade unions have a significant role to play in the implementation of working time laws and making sure that the implementation of such measures is unnecessary.