Too many heart patients discharged without follow-up care

Support grows for retaining the opt-out to the 48 hour week

Rory Watson

Moves by the European Union to establish a clear legal definition for active and inactive on-call time for medical staff and other essential services, and to abolish the opt-out from the 48 hour maximum working week, have become entangled in the wider political debate on the future of the 25 member bloc’s economic policy.

Social affairs and health ministers were unable to reach agreement on the latest proposed changes to the EU’s working time directive last week. Some argued that its flexibility was essential for strengthening the union’s economy and competitiveness. Others maintained that its existence opened the door to exploitation of employees.

The contrasting positions pit the defenders of Europe’s social model, such as France, on one side against the more liberal reforms being championed by the United Kingdom. The differences reflect the more fundamental debate on the very nature of the union, after French and Dutch rejection of the draft EU constitution. "This is a classic policy area where the two philosophies meet head on and nothing will be resolved until EU leaders have agreed among themselves on the general way ahead," said one Brussels official after the negotiations.

The UK appears to be gaining support for retaining the opt-out, although the commission would like to see it removed by 2012. At last week’s talks, the UK was backed by Germany, Poland, Austria, Hungary, Malta, Cyprus, and others. Such a group would be able to block any moves to impose its abolition by legislation.

That outcome is likely to satisfy the BMA, which, although determined to prevent any exploitation of vulnerable junior doctors through this provision, believes that the opt-out should remain for those consultants who are able to control their own hours and wish to work more than 48 hours a week.

Faced with a deadlock over the opt out, the only way that other elements of the draft working time amendments, notably more precise definitions of on-call time, could survive would be if they were tabled as separate legislation. This is a move that the European Commission, the European parliament, and several governments currently oppose.

The BMA believes that all on-call time for which staff have to be resident at their place of work should count as part of the working week. The latest proposal states that the inactive part of on-call time should not count, however. But the commission concedes that some of the on-call time may count if national law, practice, or an agreement between both employers and employees agree.

In such a situation, it suggests that part of on-call time "may be calculated on the basis of an average number of hours or a proportion of on-call time, taking account of the sector concerned" on the basis of a collective agreement or after consultation with the social partners.

If the Luxembourg government, as current EU president, is unable to broker a deal this month, there is little chance of an agreement for at least a year, since its successors, the UK and Austria, are strongly opposed to key elements of the draft legislation.