RTÉ News has learned that Government has told the European Commission that it will not be in a position to fully comply with rules requiring junior hospital doctors to work no more than an average 48 hours a week for three more years.

The response follows a warning from the European Commission last year, that Ireland faces legal action unless it complies with the European Working Time Directive (EWTD), which required that working hours be capped at 48 hours a week from 2009.

Under the directive, doctors in training or Non Consultant Hospital Doctors (NCHDs) have, since 2004, been entitled to receive certain minimum breaks and rest periods during each working day, week and fortnight.

The directive also required the average working week for NCHDs be reduced to a maximum of no more than 48 hours from 2009.

But last September, the Commission told the Government that there were still numerous cases where junior doctors were being required to work continuous 36 hours shifts, to work over 100 hours in a week, over 70 hours a week on average and to continue working without adequate rest breaks for rest and sleep.

It gave the Government two months to respond to what it termed a "serious infringement", and warned that otherwise it would go to the European Court of Justice.

The Department of Health didn't respond by the deadline, but sought and was granted an extension, and filed a response with the Commission last Friday.

In the document, seen by RTÉ News, the department claimed that while there has been significant progress in implementing some of the measures required to meet the directive, it has not been possible to implement others.

The document outlines how some progress has been made since 2009 in improving the proportion of the 4,660 Non Consultant Hospital Doctors (NCHDs) who are getting the required daily, weekly and fortnightly rest periods.

But the situation has actually disimproved in relation to the proportion of NCHDs who are working a 48 hour week on average.

In 2009 that figure was 39%, but last week, it was just 33%, meaning more than two thirds of junior doctors are working more than 48 hours a week on average. Just 73% of NCHDs currently get the required daily breaks, and 69% get the required daily rest period.

The response says that planned new work patterns for NCHDs and the transfer of some of their work to other grades have not been achieved yet, although it says under the Croke Park agreement there is now considerable scope for much more flexibility to achieve the required changes.

It says planned changes to a consultant provided rather than a consultant led hospital medical service have had a limited effect on achieving the EWTD.

The number of consultant posts has risen by 31% since 2005, it claims. However, it admits that the increase has mainly been in previously understaffed specialist areas and therefore hasn't helped achieve the EWTD requirements.

The document also claims that planned changes to on-call services, the prioritisation of medical eduation and training in NCHD rostering and the use of cross cover between NCHDs of different grades within certain specialties have been achieved.

The document also outlines a number of administrative changes that have taken place to help improve compliance.

The response blames a number of factors for the slow implementation of the directive. This includes a lack of meaningful change in rostering arrangements due to ongoing negotiations with the Irish Medical Organisation.

It also says the changes in the reorganisation of acute services which are required to achieve compliance in a number of hospitals needs to be progressed. It also says the economic and budgetary situation is a key contextual issue. It also cites the recent difficulties the HSE has had in filling NCHD posts as having a detrimental impact on EWTD compliance.

The document sets out how the government plans to comply with the rules within a three year timeframe.

It points to the recent establishment of a National Implementation Group to spearhead the implementation of the directive.

It also refers to how key performance indicators are included in the HSE's service plan published today. It also refers to a number of high level initiatives, such as the department's Special Delivery Unit and the creation of a new grade between Specialist Registrar and Consultant, which it says will help progress plans to implement the EWTD.

The document lists 13 hospitals where it hopes compliance will be reached within 12 months, 22 where it will be achieved within 24 months, and 11 others where it will take 36 months to reach.