Europe's highest court has held that Ireland is in breach of EU law because it does not consider the training of junior doctors as part of their normal "working time."
In an opinion published this morning, the European Court of Justice held that the Government was wrong to assume that the training of junior doctors did not fall within the remit of the EU Working Time Directive, which governs the maximum hours that EU citizens work and minimum rest periods.
The opinion noted that junior doctors are required to both provide a medical service and to carry out training to a high level, and that according to HSE rules themselves there was no "artificial barrier" between both requirements.
However, the rule book also held that in practice the hours devoted to training were not considered part of the non-consultant hospital doctors' working time, even though it was part of "paid employment."
The court's Advocate General, however, regarded the two aspects of the activity performed by NCHDs, their provision of medical care and their training, as "intrinsically linked."
He also concluded that the training periods for junior doctors should be regarded as "working time" even if they were not on call.
"Irrespective of whether training takes place at a hospital or on the premises of the training body, what is important is that NCHDs are required to remain during those training hours in a place that they are not free to choose, but which depends on the training programme that they are required to follow," the Advocate General held.
"That obligation for NCHDs to be physically present in a particular place for their training hours constitutes a constraint which prevents them from freely engaging in their personal activities."
Commenting on the ECJ's opinion, Taoiseach Enda Kenny said: "This is something that has gone on for very many years, and in the meantime Ireland has measured up greatly as one of the leading countries in terms of implementing directives.
"There has been a deal of improvement here [on the junior doctors’ issue]. It's not concluded yet. But there is quite a deal of discussion between the [European] Commission and the Department of Health and the HSE.
"The [ECJ] opinion will be studied carefully by the Minister and the department and the HSE. In the meantime discussions will continue with the Commission", he added.
According to the court's opinion, junior doctors were also under "managerial authority" which suggested this was the normal part of working time.
At the same time, medical directors would be in a position to "penalise" junior doctors if they did not fulfill the terms of the training requirements.
The Advocate General also opined that junior doctors' training was "professional in nature" and that it could only be treated as personal time if it fell "outside the employment relationship".
Furthermore, by placing the training element of junior doctors' responsibilities outside the framework of normal "working time" Ireland was encroaching on a minimum rest period, which the Working Time Directive was supposed to protect.
"Rest periods serve... to compensate for fatigue arising from periods of work. It would undermine that essential function of rest periods if they were deemed to encompass the time that NCHDs spend in training," the Advocate General concluded.
The opinion was published ahead of a full judgment later this year.
In 80% of cases the Advocate General's opinion is confirmed in a full judgment.
The assistant director of industrial relations at the Irish Medical Organisation, said he welcomes the opinion by the European Court of Justice, and urged the Government to act immediately.
Eric Young told RTÉ's News At One there are significant costs involved in not implementing the EU Working Time Directive.
He added that it has been difficult to get agreement from Government to implement its responsibilities.
He said that what is needed is a focused strategic effort from the HSE, given that a third of doctors are still working more than the legal limit.
Mr Young said that while some progress has been made, the current situation is worse than previously thought.
