The SIMAP and Jaeger cases
On 3 October 2000 a judgement was passed at the European Court of Justice
(ECJ) in a case concerning the status of 'on-call' time.* The judgement
related to doctors employed in primary health care teams though a similar
approach may now be taken in other areas. It indicated that 'on-call' time
will be working time when a worker is required to be at their place of work.
When a worker is away from the workplace when 'on-call' and accordingly free
to pursue leisure activities, on-call time is not 'working time' unless the
worker is actually called in to work.
The recent ECJ judgment on 9 September 2003 in the "Jaeger" case
(Landeshauptstadt Kiel v Dr Med Norbert Jaeger, case C-151/02) has confirmed
the SiMAP judgment.
The implication of SIMAP and Jaeger for the NHS is>that time spent resident
on call for clinical purposes will count as "working time" in its entirety,
even if the doctor in training is resting (or even sleeping) for the whole
of the on call period.
This means that resident on call working patterns will not be a sensible use
of doctors' time in most cases. Where the intensity of work merits it,
doctors could work a full shift; where the work is of low intensity, a
non-resident on call arrangement would be preferable.
Employers will also need to go back to first principles and look at whether
the service for patients could be delivered completely differently, for
example by
using non-medical practitioners to provide first on call out of hours cover
collapsing tiers of cover and/or cross-covering between specialties
setting up multidisciplinary night teams
redesigning services across several sites in some cases.
Further examples are contained in HSC 2003/001 "Protecting staff, delivering
services: implementing the European Working Time Directive for doctors in
training".
This makes interesting reading, it is unlikely there will be many A&E SpR's
resident on-call in their bed from next year.
Also surgical specialties will have to be put on a shift rota/or made non
resident but available.
Andy Webster
-----Original Message-----
From: Accident and Emergency Academic List
[mailto:[log in to unmask]] On Behalf Of Adrian Fogarty
Sent: 30 November 2003 22:15
To: [log in to unmask]
Subject: Re: consultant being called in
> I wonder if the practice of calling a consultant on-call into the
department because of breaches happening throughout the country. [Ash]
I suppose there's nothing stopping management from locally negotiating this
arrangement, with either premium payment or time (and a third) off in lieu.
By the same token, however, I don't believe it would be sensible to opt for
such a working pattern. Like many, I don't mind working towards targets
during my shop floor shifts, but outside of this I believe consultants - and
middle grades on call, for that matter - should only respond for genuine
clinical needs.
> That needs to go in your diary, Ash, and then you need your 11 hours rest
for being disturbed. [Rowley]
I thought the 11 hours' rest rule only applied to the New Deal (for
juniors). Does it also apply to the WTD (for seniors)? If so, that's another
good argument to resist a pattern of working which involves responding to
out-of-hours breaches. As Ray rightly points out, such an arrangement would
certainly be attractive (i.e. cost-effective) to management. However, if
managers are concerned about out-of-hours breaches, then they simply need to
roster more staff for out-of-hours shifts (i.e. expensive).
> The BAEM advice is that Consultant staff should not queuebust under any
circumstances. [Rowley]
Out of hours, indeed, but I don't believe BAEM are prescriptive about "queue
busting" during a clinical shift.
Adrian Fogarty
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