COMMENTS
Criteria for a just strike action by medical doctors
Mpho Selemogo
DOI: https://doi.org/10.20529/IJME.2014.010
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):
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Doctors are already overpaid and cannot justifiably
continue to demand more.
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Doctors should be selfless healers who are not really in it for
the money, but to care for the sick.
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Doctors cannot strike because if they do, it will result in
avoidable deaths and suffering to the sick.
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A strike by doctors amounts to holding the sick and weak
to ransom for material gain.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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