Up to 36,000 junior doctors could be represented in class actions being filed against multiple Australian healthcare services in the ACT, NSW, and Victoria.
There are currently 10 class actions and the latest, brought by Gordon Legal together with Hayden Stephens & Associates in late 2022, alleges that Canberra Hospital and Calvary Public Hospital failed to pay Doctors in Training (DIT) for their un-rostered overtime.
The law firm is still seeking confidential registrations of interest (including a webinar this week) and Dr Lucy Crook, the VIC chair of the AMA’s Council of Doctors in Training, was the lead guest on 9MSN’s Today on 18 March 2023, to discuss the case for Australian DITs.
VIC currently has eight lawsuits underway against individual healthcare providers which hire independently, as opposed to NSW, where DITs are employees of the health department.
“None of us go into this job thinking that it’s going to be easy, but I think it’s got to the point where a significant number of us are thinking of completely leaving the profession” Dr Crook told Today.
“All of us have had to do many years of study to do this job. And for many of us, it’s been something that we’ve worked towards our entire lives.
“And to get to the point where a significant proportion of us are saying we’re not only going to get a new job or leave our current health service, but we’re also going to completely leave the profession and do something else – I think that has to start ringing alarm bells.
“Not a day goes by where I don’t receive a message or see a post by a junior doctor where they’re sort of at the limits of their energy: they’re burnt out, they’re tired, they’re overworked, and they’re just at their wits end and asking for help.”
Dr Crook pointed out that the most important issue was the impact that these conditions were having on the quality of care received by patients.
“That’s really the crux of the issue. The majority of us don’t get into this industry for the money and what these class actions are more about is the fact that these hours are unsafe both for doctors and for the patients that we look after,” she said.
“No one no one wants their loved ones to be looked after by a doctor who’s tired and overworked and burnt out. Maximum shift length in Victoria has just been reduced from 16 to 14 hours and it’s not uncommon to work consecutive 14-hour shifts.
“So, when you think of that as rostered working time, if you add to that the un-rostered time, it’s an incredibly dangerous situation.”
The AMA VIC’s 2021 Hospital Health Check surveyed more than 1,000 junior doctors working in public hospitals and found that:
- 47 per cent reported making a clinical error due to fatigue
- 50 per cent said they had made an error due to excessive workload or understaffing
- 47 per cent reported never being paid for un-rostered overtime
- 34 per cent raised serious concerns about their workload but were ignored
The lawyer spearheading many of the claims, Hayden Stephens, from Hayden Stephens & Associates told Today that the issue was clearly a widespread, systemic problem.
“We’ve had legal teams working with talking to doctors right throughout parts of Victoria, regional New South Wales and most recently in Canberra and Calvary Health Services in the Territory,” Mr Stephens said.
“I think this demonstrates that this is a problem that’s very much embedded in the business of running health right across our country. And doctors are now banding together to say enough is enough. This practice of excessive hours, dangerous hours must stop.”
For example, in August 2022, during the Victorian class action against Peninsula Health, the Federal Court was presented with an email from an executive staff member, dated April 2016, that stated, ‘We are getting 150-plus hours for free each week from our guys.’
“… 90% of the staff put down the rostered hours and not what they actually work. It looks like we are paying a lot, but we are getting 150-plus hours for free each week from our guys,” the email said.
Yet details from the statement of claim lodged on 21 December 2021 in another class action, this time against Alfred Health, show that in VIC at least, DITs are covered by an enterprise agreement, which states, in clause 25.1.1 that, for full-time HMOs, ordinary hours of work must be 38 hours per week or an average of 38 hours per week for up to 4 weeks.
In clause 25.1.3, ordinary hours of work for full-time registrars must be 38 hours per week plus five reasonable additional hours of training time, equalling 43 hours per week or an average of 43 hours per week for up to 4 weeks.
Andrew Grech of Gordon Legal, told ABC News on 20 March 2023, that hospitals were aware of the extent of unpaid, un-rostered overtime being performed by junior doctors and were “exercising wilful blindness” by ignoring it.
“What they say is … ‘Well, we don’t have claims for overtime, so therefore the working hours must be fine,'” he said.
“Of course, you don’t have claims because you actively discourage people from making claims for overtime, and when they do, every possible administrative and bureaucratic hurdle is put in their face.”
Mr Stephens told the ABC that mediation talks had not led to any resolution so far.
“We certainly hope these matters are able to be resolved earlier rather than later … but we are preparing as if the matter is going to proceed to trial,” he said.
“In that regard, we’re in the process of interviewing many, many doctors in respect to giving evidence and sharing their stories.”
The news that discussions between Hayden Stephens and Associates and healthcare services in the NT arrived just before Royal Darwin and Palmerston hospitals declared a ‘code yellow’ due to a steady increase in the number of patients.