Junior Doctors and Hours of Work

795

Medicine and the Law Medical Defence and Crown Indemnity THE Government intends that health authorities should take over financial responsibility for medical negligence in the National Health Service. Prompted by the rising cost of defence subscriptions and the Medical Protection Society’s (MPS) proposals for differential subscriptions, the Department of Health, on March 20, issued proposals for crown indemnity to extend to doctors employed by the National Health Service. The aim is to put the plan into effect by July 1; comments are invited by May 5. The proposals mean that health authorities would no longer require their medical and dental staff to subscribe to a medical defence organisation. However, doctors and dentists would be free to do so at their own expense; where practitioners do retain separate representation the Department would expect this to continue to entail responsibility for costs and damages awarded for negligence. Doctors and dentists employed in the hospital and community health services are contractually obliged to subscribe to a defence organisation. The full rate, c 1080 in 1988, is the same for all clinical specialties (and for GPs). Between 1986 and 1988 Medical Defence Union (MDU) and MPS subscriptions trebled but in 1989 the MDU introduced a flat 25% increase to 1350 as from Jan 1, whereas the MPS (notwithstanding British Medical Association disapproval) announced differential subscriptions with effect from April 1. Thus doctors in high-risk specialties (eg, obstetricians) face premiums of C4000-5000 or a shift of allegiance. Following a recommendation made by the Doctors’ and Dentists’ Review Body, doctors who work wholly in the NHS now have had two-thirds of their subscriptions reimbursed. The cost of reimbursement to the NHS for 1988-89 is estimated at £ 30 million. GPs, being independent contractors, claim practice expenses, including defence subscriptions-indeed, they are not contractually obliged to take out a defence subscription, but this may be reviewed. The Department of Health considered seven options: (a) making doctors responsible for their own subscriptions (ie, a return to pre-1988); (b) continuing to meet two-thirds (or a similar proportion) of hospital doctors’ subscriptions; (c) NHS indemnity for negligence attributable to medical and dental staff of the hospital and community health services; (d) sharing costs with the defence societies (eg, by making the defence societies liable up to a certain figure, the NHS providing cover beyond that); (e) opening up indemnity insurance to commercial insurance companies; (f) "no fault" compensation; and (g) selective "no fault" compensation (eg, for brain damaged babies). In the Department’s view, the rising costs of defence subscriptions and the prospect of differential rates make options (a) and (b) unsatisfactory in the long term, while option (d) has "no obvious logical basis" and (e) would not deal with the problem since the costs arise from increases in the numbers of claims and sizes of awards. The "no fault" options are sidestepped as raising issues beyond medical failures. ADVANTAGES OF NHS INDEMNITY

Employers are responsible for the acts and omissions employees committed in the course of their employment

of their and the NHS has indemnified all staff other than doctors and dentists who have had to provide independent cover. The Department’s paper suggests that the proposed extension of NHS indemnity would produce some cost savings, quicker settlements, and advantages to practitioners. Nothing is said about patients. The consultation paper considers that the defence of many cases would be simplified since the health authority would have a clear responsibility. There would be no need for separate legal representation and separate experts. The expense of checking that locums or new staff are properly covered would be spared. Settlements, it is claimed, would be quicker because there would be no need to settle questions of relative blame between practitioners and other health authority employees. However, hospital administrators have not in the past been noted for their prompt settlement and handling of negligence claims. They may be less

likely to fight small claims on questions of principle rather than expediency, and this could benefit individual patients suing. There would seem to be advantages for practitioners in the avoidance of the divisive issues of differential subscriptions and of low-risk specialties "subsidising" high-risk ones. However, the NHS indemnity would not provide cover for other activities of the defence societies. CONCERNS

Some doctors believe that the financial responsibility of the defence societies safeguards clinical autonomy but the Department sees no reason why NHS indemnity should affects clinical freedom. However, health authorities have to meet the whole bill directly they may take more action to combat unsafe practices, understaffing, and poor equipment, which are seen as dangerous litigation hazards. This could be beneficial to patients and staff alike. Fears that indemnity could reduce the perceived deterrent effect of litigation seem unjustified, especially if health authorities were more inclined to settle than the defence societies have been, doctors still being left to justify their actions in the courts. The paper concedes that the defence societies have acquired great experience in dealing with claims and potential claims, and health authorities may wish to make arrangements with defence societies for advisory services and to retain some of their lawyers and other experts. The defence societies spent LI0 million on legal services in 1987 (not all in the UK): health authorities should be able to secure the additional legal services they need for considerably less than this, it is claimed. IMPLEMENTATION

The paper suggests that the proposals could be implemented in of two ways. The NHS could assume responsibility for claims relating to negligence alleged to have taken place on or after a particular date and defence societies would use their reserves to meet costs and damages on cases arising from earlier negligence. However, this option would leave the societies with a potentially long tail of liabilities and little new business or income coming in to fund it. The alternative would be for health authorities to take over responsibility for all claims, including outstanding ones. This would mean a transfer of defence society reserves in proportion to an actuarial assessment of the liabilities taken over. one

CONCLUSION

Dr John Wall, secretary of the MDU, has welcomed the proposals as "Neat, simple to operate and a scheme with which we could cooperate happily". It seems to be very similar to schemes in Israel and Australia, with which the MDU works well. In New Zealand, where there is comprehensive accident insurance, the

MPS continues to flourish. Most doctors will do well to remain members of their defence societies not only to take advantage of the advisory services but also to protect themselves against unfair dismissal, to ensure representation at tribunal and other inquiries, and to retain cover against claims for medical negligence arising outside their NHS employment (eg, assisting at the scene of an accident, writing a report for an insurance claim, and private work). DIANA BRAHAMS, Barrister-at-law

Junior Doctors and Hours of Work IN 1976, the Department of Health approved a new contract for junior hospital doctors. Except for the uneconomic rate of pay for overtime (one-third the normal hourly rate) the conditions appeared reasonable. The contract stipulated a minimum of ten 4-hour units of medical time (UMT) per week but the doctor was also contracted to any further agreed UMTs "as are required to meet the needs of the service" and, exceptionally, to "duty in occasional emergencies or unforeseen circumstances". Doctors fortunate in their employers or who do not require normal sleep and time from outside activities may benefit from a clause giving him or her the freedom

to

undertake other work.

796 No doubt it is beneficial for young doctors to be seasoned by working under pressure, up to a point. But the hours that many junior doctors are called upon to work in the NHS are excessive and cannot be in the best interests of patient or doctor. Lip (and pen) service may be paid to reduced hours and frequency of rotas for duty and on-call, but negotiations to limit hours worked to, say, 80 in a week, have ended in frustration. With overtime paid at only one-third the normal rate employers have a major disincentive to engage extra junior staff. Further, many junior hospital doctors would not welcome increased staffing, given the bottleneck for promotion to consultant.

Last summer it was reported that the British Medical Association’s Hospital Junior Staff Committee had negotiated successfully to produce an agreement covering hours of work.1 However, a few days later (on June 18) the juniors passed a resolution that, in the light of a New York case, a judicial review should be sought on the grounds that for a health authority to offer a contract requiring a doctor to work more than 80 hours a week "would be a decision which has been reached in breach of the rules of natural justice and that such a contract was invalid". The current weekly average is 86 hours. So far no legal action has been started on the grounds of judicial review and a failure of natural justice. According to Dr Dallas Brodie no doctor could refuse a contract requiring over 80 hours "if he or she wanted either a job in the short term or a career in the long term". There are clearly pressures on junior doctors to accept, unchallenged, the onerous and open-ended hours imposed by the employers’ contracts. Nonetheless, on March 23, 1989, Dr Christopher Johnstone issued a writ against the Bloomsbury Health Authority in which he claims, inter alia, an injunction to restrain the health authority from requiring him to work in excess of 72 hours per week on average and for continuous periods of more than 24 hours without a break of at least 8 hours; a declaration that he shall not be required to work more than 72 hours per week on average nor for more than 24 hours without a break of not less than 8 hours; damages for breach of an implied term in his contract that he should not be required to work such excessive hours as to endanger his own safety and that of patients; and damages for personal injury suffered and loss and expense incurred as a result of the failure of the authority to take reasonable care for the plaintiff’s safety by requiring him to work excessive hours. Dr Johnstone has a job in obstetrics but has said that he intends to train as a general practitioner. In serving the writ, he asked "what else can we do to protect patients from tired doctors and protect our physical and mental health?" In West Germany, until 1983, 1-in-2 and 1-in-3 rotas were common. Following the successful legal action by two doctors, a new agreement was reached which required doctors to have an 8 hour rest after 24 hours of continuous working (unless patient care could not otherwise be guaranteed). Rotas were limited to 6 or 7 per month, and duties were to be compensated by time off in lieu where possible. The German doctors’ victory has, however, been a pyrrhic one: the agreement has apparently not resulted in more posts, as the doctors had hoped. Instead, employers have tried to introduce shiftwork and to increase the number of departments for which an individual doctor remains responsible. Many doctors have found it impossible to take their time off in lieu, and thus work many hours

unpaid. Parliament has a Bill before it limiting the number of hours which may be worked but the government has so far shown no inclination to support it. Yet, Britain has long had legislation to limit the hours which may be continuously worked by airline pilots and the drivers of heavy-goods vehicles; and the State of New York is now poised to limit the hours which may be worked by junior doctors because of the risk to patients.’ DIANA BRAHAMS, Barrister-at-law

improve doctors’ duty rotas. Br Med J 1988; 296: 1682. 2. Brahams D. Excessive hours of work. Lancet 1988; ii: 56-57. 3. Brodie D. Excessive hours of work. Lancet 1988; ii: 456-57. 4. Brahams D. Monitoring equipment and anaesthetic failures. Lancet 1989; i: 111-12. 1. Anon. DHSS and BMA agree to

Obituary JAMES WHIGHAM AFFLECK FRCPGIas, FRCPE, FRCPsych

Affleck, physician superintendent at the Royal Edinburgh Hospital from 1967 until his retirement in 1980, Dr

March 6. He was a founder of community psychiatry and a skilled facilitator, renowned for promoting management by clinical objectives. died

on

On completing his training in Glasgow he moved to Leeds where, psychiatric adviser to the Regional Hospital Board, he was the driving force behind many developments based on studies of need. In 1947 The Lancet published (i, 355) a survey undertaken by him alone of 788 chronically sick patients in hospitals-long before computerised analysis. This work drew attention to the requirement for geriatric services "which might develop into one of the most important services of the future". In 1957 he came to Edinburgh, to what he perceived to be an orthodox job as consultant psychiatrist and honorary senior lecturer in psychiatry at the University. He was a member of the Lothian Health Board from its inception to 1982. This was a period of expansion and Jim Affleck was the facilitator, working closely with his academic colleagues, and persuading people in all layers of the NHS how best to provide ideal services. His own special interest was rehabilitation and long-term care, and he pioneered community services. He sought recognition of the sapiential authority of the psychiatrist, who in turn would be willing and able to coordinate a comprehensive clinical service crossing organisation boundaries. To the end of his life he worked closely with colleagues to measure rehabilitation status. With a clinical psychologist he developed the Momingside Rehabilitation Status Scale for psychotic patients; and after his retiral, he used a similar approach for physical disability and developed the Edinburgh Rehabilitation Status Scale (Lancet as

1988; i: 230). A sure foundation and support for patients, Jim Affleck was a major influence in the professional development of many psychiatrists and other staff. He disliked the rigid paternalism of the old mental asylum, but he himself was fatherly and kind. Some colleagues found it hard to convey directly their respect and affection because he was modest of his achievements and without sentimentality. He is survived by his wife, three sons (two of whom are general practitioners and one a headmaster), and six

grandchildren. R. C. B. A

International Diary A seminar on East/West Collaboration in Health Issues: Challenges for the Year 2000: London, UK, Oct 2-3 (Mrs Christine Booth, East European Trade Council, Suite 10, Westminster Palace Gardens, Artillery Row, London SWIP IRL). 9th international symposium on Medical Virology: San Francisco, California, USA, Oct 16-18 (Dr L. M. de la Maza, Department of Pathology, Route 84, University of California, Irvine Medical Center, 101 City Drive South, Orange, California 92668). Sclavo international conference on The Mollecular and Cellular of ML-1, TNF and Lipocortins in Inflammation and Differentiation: Siena, Italy, Oct 22-25 (M. Melli, Sclavo Research Centre, Via Florentina 1, 53100 Siena).

Biology

symposium on Current Status and Future in Transvaginal Ultrasonography: Rotterdam, Netherlands, Nov 3-4 (Hoboken Congress Organisation, Erasmus University Rotterdam, PO Box 1738, 3000 Dr Rotterdam). International

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