HONG KONG: The Court of Final Appeal yesterday upheld a lower court ruling that the Hospital Authority (HA) is not required to pay doctors' overtime but that, nevertheless, the doctors must be compensated for being on-call.

The unanimous decision of the Court of Final Appeal puts an end to a seven-year legal wrangle that threatened to bankrupt Hong Kong's public medicare system.

Judge P. J. Chan wrote in the judgement that the doctors "are expected and indeed required to work extremely long hours".

The court also rejected the appeal of the HA to overturn a ruling by the Court of First Instance concerning doctors on-call. The Final Appeal Court judges found that doctors cannot be considered to have had a day off, if on designated days of rest they're required to respond to calls for their services.

"When a doctor is on non-resident call (away from the hospital) it is common ground that he must remain within 30 minutes of the hospital; he must not drink alcohol; and he must remain mentally ready to respond to calls for his services," wrote judge P. J. Ribeiro in the judgment.

The most important difference between yesterday's ruling and last year's ruling by the Court of First Instance is that the doctors are to be paid for an entire day even though they may have worked for as little as an hour.

The court found that a doctor is deprived of a rest day as long as he is not allowed freedom to enjoy the day.

The work dispute between the HA and doctors under its authority began in March 2002, when 165 public hospital doctors filed a lawsuit with the Labor Tribunal over their on-call duties and overtime pay. The case was later referred to the Court of First Instance. After the court handed down its ruling in January. Both the doctors and the HA appealed.

In the course of proceedings, the HA has reached a HK$5-million settlement deal with more than 90 percent of some 4,000 doctors working in public hospitals.

According to legislator Leung Ka-lau, one of the plaintiffs, 65 of 165 plaintiffs have also settled with the HA before yesterday's ruling.

At a press conference following yesterday's court ruling, Leung expressed disappointment and confusion over the final result.

He said the judges seemed to be solely concerned with the "non-resident calls", pointing to a paragraph in the judgement that says, "we're concerned with claims relating to non-resident call duties (which I shall refer to simply as "on-call" duties), it being common ground that resident call duties constitute work by the doctors qualifying for recompense in every respect."

But the most important issue as far as doctors are concerned is the long hours resident physicians are required to work. Many often are on call for more than 30 hours and resume normal working hours afterward.

"It seemed to me the final appeal court believes the problem has already been dealt with and that part of work has been properly compensated," Leung said.

He said the ruling doesn't help solve the problem of long working hours for doctors.

The problem is not exclusive to doctors. As he released a survey conducted by his office, at yesterday's press briefing, he said doctors' lack of rest affects the quality of public hospital services.

According to the 306 responses to Leung's mail survey among public hospital doctors, 45 percent said long hours have compromised their clinical judgement and 3.6 percent said long hours have caused medical accidents.

More than half the respondents said long hours have caused family conflicts and illness for themselves. And 8.5 percent said they were involved in traffic accidents as a result.

Nearly 90 percent of doctors said they work overtime, including 30 percent putting in 11-20 extra hours a week and 40 percent, more than 20 hours.

Siu Yuk-leung, a public hospital doctor who is also the vice chairman of Frontline Doctors' Union, said he's worried the ruling will remove the pressure for the HA to improve the working conditions of doctors.

The doctors' aim in filing the lawsuit was not to get more money but to force the HA to alleviate their work load, Siu said.

The HA has been talking to media about its reform in reducing the doctors' work hours to under 65 hours a week.

"Most doctors have a sense of responsibility so we wouldn't leave when there're still patients waiting. As a result, the 65 hours are only on paper," Siu said.

The HA issued a statement yesterday that it respects the judgment of the final appeal court. To lighten doctors' work loads, it has implemented measures including "the opening of extra weekday operating theater sessions; establishing of Emergency Medicine wards; and introduction of 24-hour Technical Care Assistant service".

Secretary for Food and Health York Chow Yat-ngok said that the lawsuit is "lose-lose" for both the HA and doctors. It's a breakdown in the relations between the HA and public hospital doctors and the trust is yet to be rebuilt.

"The HA needs to take measures to ensure the doctors have a good rest and a good work environment. Meanwhile, the measures should not cause the medical care system to collapse," he said.

(HK Edition 10/21/2009 page1)