Introduction

In response to a strike action by some doctors at the Safdarjung Hospital, the Delhi Medical Council issued a statement, in December 2010, that it was “…of the view that under no circumstances doctors should resort to strike as the same puts patient care in serious jeopardy and such actions are also in violation of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002” (1). Statements such as this are common responses of medical councils across the world whenever they are confronted with the increasingly difficult issue of striking doctors. Evidently, these statements are not effective in stopping doctors from repeatedly engaging in strike action. In India, the statement by the medical council was, for instance, followed by many strikes, amongst which was the well-publicised nationwide strike initiated by the Indian Medical Association in June 2012 (2). It is not difficult to see why strike action by doctors will continue, in India and elsewhere, despite opposition by the medical councils. The usual reasons why doctors go on strike relate to issues concerning pay, contractual relationships, and work conditions. It would appear that as long as doctors maintain their employee status, they will, just like other occupational groups, engage in industrial disputes with their respective employers.

Strike action by doctors always precipitates intense ethical debates. Those who see strike action as unethical often cite some of the following arguments in support of their view (3):

• Doctors are already overpaid and cannot justifiably continue to demand more.
• Doctors should be selfless healers who are not really in it for the money, but to care for the sick.
• Doctors cannot strike because if they do, it will result in avoidable deaths and suffering to the sick.
• A strike by doctors amounts to holding the sick and weak to ransom for material gain.
• Doctors are supposed to adhere to a professional code of conduct that prohibits them from participating in strikes.

Academic writers on this subject tend to either offer arguments supporting the above, or offer counterarguments. This approach is appropriate for answering the question of whether strike action by doctors is always unethical, as held by the Delhi Medical Council, for instance. A number of ethicists have argued persuasively that strike action by doctors is not always unethical and may, in fact, be justified under some circumstances. This conclusion is usually reached after providing counterarguments to the list of arguments enumerated above (3, 4, 5). This paper builds on the work done by the latter group, and attempts to establish certain general criteria to clarify the circumstances under which strike action by doctors may be justified.

Why the need for criteria?

Perhaps before setting out the criteria, our first task is to defend the need for such criteria in the first place. The role of criteria in addressing moral problems, it may be argued, is limited and futile as criteria in themselves seldom provide solutions for moral problems.

While criteria are often not sufficient in addressing moral issues, their utility in ethics cannot be dismissed lightly. They are often employed as useful checklists of important issues to be considered whenever a highly valued ethical principle or ideal is to be breached. The Siracusa principles are, for example, a set of criteria to be borne in mind by any government considering the restriction of individual human rights for a public health course (6). These safeguard the highly valued ideals of human rights and provide a way by which human rights may legitimately be restricted in the interests of public health. One can draw a parallel to the jus ad bellum (or just war criteria), which provides moral criteria for determining whether war is morally justified or not (7). These criteria are not meant to make the decision to go to war an easy one, but rather to safeguard the general presumption in favour of peace, and represent a general checklist of rigorous conditions to be met if war cannot be rationally avoided.

In the context of a strike by healthcare workers, in which human life needs to be safeguarded and unnecessary human suffering prevented, criteria would, in a similar way, provide a moral calculus for determining whether the strike is morally justifiable.

Six criteria for a just strike action by medical doctors

In medicine, as reflected in the Hippocratic Oath, there is a general presumption against a strike action by doctors as the action may result in unnecessary (and preventable) human suffering. If a strike action cannot be rationally avoided, however, rigorous conditions must be met for the strike action to be justified. It is suggested that any strike by doctors that meets all of the following criteria may be deemed to be reasonable and perhaps justified.

1. Just cause and right intention: Doctors may go on strike only for a just cause, backed by right intentions. Strike action may not, for instance, be initiated for self-enrichment, or out of revenge or hatred towards the government of the day. In the healthcare context, a just cause is one that is intended to confront a real and certain danger to the health of the population. Put differently, it is one that seeks to secure and preserve the conditions necessary for the health of the population, as well as to defend (or stop grave violations of ) the right to the health of individuals or communities. The just cause, so construed, does not exclude the issue of wage disputes, which often lead to strike action. Wage disputes, however, constitute a just cause only if the wages of the doctors can be shown to be so poor as to compromise public health. Two of some of the well-known strike actions by doctors – those in Israel and Malta – are good illustrations of situations in which poor wages were a significant threat to public health. The Israel strike in 1983 involved an estimated 90% of the country’s doctors working in the public sector. At the time, doctor’s salaries were far below the mean standard for the country. To earn a salary equivalent to that of a nurse or an x-ray technician, for example, doctors often had to compensate by adding an additional six to eight night shifts per month to their 45-hour working week (8). The issue of wages was of public health importance in this situation as the poor wages of the doctors forced them to work excessively long hours, compromising the quality of the medical care they offered and their ability to act in the best interest of their patients (8). In the case of Malta, the low pay of medical officers led to problems in recruitment, as new graduates left the country to work elsewhere. Also, faced with long working hours for low pay, the teaching staff from the medical school left the country. As a result of this, the General Medical Council derecognised the Malta Medical School and the Maltese medical degree also stopped being internationally recognised (3). In both examples, what could on the surface be characterised as strikes over low pay were actually acts to defend public health by preventing further collapse of the respective health system.

The criterion of just cause often demands a utilitarian calculus which demonstrates that ultimately, the beneficial repercussions of the strike on the health system would outweigh the temporary disruption and suffering caused by it. While one may not know for certain that there will indeed be any benefits, this criterion places on those seeking to strike the burden of stating explicitly how they have weighed the risks and the possible benefits of the strike action.

During the strike action, the doctors must demonstrate the right intention, meaning that they should remain faithful to their cause and avoid unnecessary destructive acts (or imposing unreasonable conditions) that may compromise their just cause. Destructive acts and unreasonable conditions include refusing to engage in negotiations with the employer, vandalism of public property, adding more (and often counterproductive) demands, and failing to adhere to the conditions set forth at the start of the strike.

2. Proportionality: In trying to achieve the just objective of the strike, the doctors should not inflict disproportionate harm on patients. In other words, unintended “collateral damage” resulting from the strike action should be minimised. This suggests that doctors on strike should continue to provide at least such critical services as emergency care.
3. Reasonable hope of success: This criterion, which is admittedly difficult to apply, ensures that the public’s health is not disrupted for a futile cause. It prevents irrational resort to strike action, the outcome of which is clearly bound to be futile. It entails a considered calculation of the probability that the strike action will achieve its intended results, ie, of the reasons for thinking that the strike action would eventually succeed in bringing about the desired change. A recent strike action in Botswana provides an example of this. The doctors demanded a pay rise of 16% during an economic recession, when the government (the employer) was suspending major developmental projects and putting on hold the process of hiring new public officers. The demand, even if just, had no reasonable prospects of succeeding, considering the prevailing economic conditions. This example suggests that it would be difficult to come up with a general formulation for how to determine the “reasonable hope of success”, as such a judgment must take into account specific contextual issues in each case.
4. Last resort: For a strike to be justified, all less disruptive alternatives to a strike action must have been tried and failed. The criterion is thus met if the conflict persists despite reasonable attempts at less disruptive measures. Such methods include advocacy, dissent and even disobedience, as suggested by Ogunbanjo (5).
5. Legitimate authority: The legitimate authorisation of a strike action lies with any recognised entity which partly plays the role of safeguarding the welfare of doctors. Examples of such entities are medical associations and unions. Most of these bodies have procedures and processes which ensure the participation of their members in decision-making. They can thus be reasonably thought to have the legitimacy to act on behalf of doctors and project their interest. Giving such bodies authority is intended to bring some legal legitimacy to strikes and, to some extent, guarantee that strikes are used only for just ends. This criterion may also be useful in preventing situations in which a group consisting of a few militant doctors who claim to represent the profession, but who do not actually represent the general sentiment of the doctors in the country, declare a strike and cause illegitimate harm in the name of the profession. The central issue with which this criterion deals is whether or not the decision to go on a strike action represents the collective view of the majority of doctors. If the criterion is met, it suggests that the decision to go on strike represents the view held by the majority of doctors, that the cause of the proposed strike is just, there is a reasonable hope of success, and the condition of last resort has been fulfilled.

Evidently this condition will not hold in settings where such an authoritative body does not exist. It may also not hold in countries where the medical associations are repressive and undemocratic, and in settings where decisions do not necessarily project the wishes of the general membership, but represent the view of a few elite doctors instead. Under this criterion, such nonparticipatory, non-deliberative medical associations in which the voice of the members is not given its rightful place cannot count as a legitimate authority.

6. Formal declaration: Before engaging in any strike action, the legitimate authority should make a formal public declaration of the intended strike. The declaration gives the authority an opportunity to delineate for the public the moral justification of the strike action. The aspects of the justification, as already described, would include (i) demonstrating that there is a just cause for the strike and showing that it is backed by the right intentions, (ii) an argument regarding why the strike action is expected to achieve its results, and (iii) demonstrating that the strike action is the last resort. The declaration also serves as a mechanism to help patients prepare in advance for the unsettling effects of the strike, eg, by relocating, stocking medication, and booking appointments with alternative providers.

A justification for the criteria

Those who are already familiar with the traditional just war theory would recognise that these criteria borrow heavily from that theory. The theory, originally used in the context of war, provides a moral calculus for determining the moral justifiability of going to war. In 1983, it was enshrined in a document, entitled “The Challenge of Peace”, adopted by the United States Bishops Conference (9). According to Peter Singer, the document has received a good amount of praise, has been repeatedly cited as a careful and authoritative statement of the theory of just war, and enjoys wide acceptance even beyond religious circles (10).

Since the just war criteria have already been scrutinised by many others and have generally enjoyed such wide acceptance in the context of war, I see no need to defend them here, except to justify their use in the context of a strike action by doctors. Several considerations serve as a justification for applying the criteria in the current setting.

1. Both war and strike action represent a dispute situation in which this last-resort, confrontational action is used to force the other party to yield to one’s demands. In fact, even the doctors involved in the strike often refer to their action as a fight or a war being waged against the employer.
2. Both actions are disruptive and may result in unintended “collateral” damage. These may include the loss of the lives of innocent people who may themselves not be directly part of the dispute. In acknowledgement of this, both doctors and soldiers often make a pledge before their confrontational action to do whatever is possible to minimise such collateral damage.
3. Both doctors and soldiers are charged with the noble duty of preserving life and preventing human suffering. A soldier is trained to fight with the ultimate aim of safeguarding innocent human lives and peace. It can be said that by restoring or defending peace, they play the role of preventing human suffering. Similarly, the mission of doctors is to prevent and reduce suffering resulting from an enemy which, in this case, is disease. The doctor’s act of going on strike is similar to the soldier’s act of going to war as it increases human suffering for some time at least – an outcome which, on the surface, would appear to contradict the missions of both.

How and when to use the criteria

Strike action is justified only when all six conditions are fulfilled. None can be left out as each represents a safeguard mechanism related to an important consideration, as already described above. Second, the criteria should be applicable whenever a strike by medical doctors is being contemplated. The use of the criteria ensures that the general presumption against a strike is upheld by forcing the organisers of the strike to consider a series of important questions, such as whether the cause for going on the strike is just; whether the strike is the last resort or have some non-disruptive alternatives been left unconsidered; whether in the current circumstances, the strike is likely to achieve its objective or would just be a futile exercise; whether the declaration of the strike action projects the view of the majority of the peers in the profession; and how to warn the patients beforehand and finally, how to ensure that they are not disproportionately harmed by the strike action.

Conclusion

This piece has argued for the pragmatic view that strike action by doctors that is prima facie unethical may be morally justifiable only under six conditions. These are that (i) the cause of the strike is just, (ii) the strike action has reasonable prospects of success, (iii) it is a last-resort action, (iv) the decision to go on strike is taken by a legitimate authority representing the doctors, and (v) a formal declaration of the strike is made to the public. The criteria uphold the prima facie moral presumption against strikes and do not encourage strike actions by doctors, but at the same time, recognise that special circumstances may arise which justify a strike.

Acknowledgement

The author would like to thank the reviewers of this journal for their thoughtful comments which helped improve the quality of this paper.