The legality of doctors’ strike

Reading time: 6-8 minutes.

“I shall use treatment to help the sick according to my ability and judgment… and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of men or women, bonded or free.”

Hippocratic Oath

On Monday, December 2nd, the Supreme Court, issued a notice to Indian Medical Association (IMA) to hold deliberations with the government to institute mechanism so that the critically ill do not get affected by the frequent doctors’ strike all over the nation.

The order was issued following a petition filed by the NGO ‘People for Better Treatment’, claiming that the nation-wide strike by doctors in June, 2019 left thousands of patients on the fritz and thereby stood in contempt of Supreme Court’s order of 2014, prohibiting such forms of protest.

Background

The nation-wide doctor’s strike was held in solidarity with the doctors striking in Kolkata. It was fuelled on the eve of 11th June, 2019 following the assault of two junior doctors at NRSMC hospital, Kolkata by the incensed relatives of a patient who died in the hospital.

The doctors demanded that the government hear their grievances and take measures to provide adequate security to health care professionals from being assaulted. The strikes continued till 13th June, even though zero tolerance to strikes was declared by the government.

These strikes started in peaceful forms like rallies, demonstrations and refusing to cater to patients’ needs in the ward and emergency rooms but it soon turned violent as the public attacked the protesting doctors which resulted into retaliatory violence from the doctors too. The strikes garnered support from the medical fraternity across the nation, causing the doctors to engage in mass strike actions, leaving the health care facilities slumping across the country.

SC’s prohibition on doctors’ strike (2014)

In 2014, the Supreme Court had passed an order stating that while they recognised the right of doctors to strike against genuine grievances, the doctors shall face disciplinary action if the general public suffered due to such deliberate disruption of health care services during such strikes. Further, the court maintained that access to health care services should be available at all times and any divergence shall make them liable for “medical negligence warranting action for misconduct”.

Why strike?

The instances of medical professionals being assailed with abuse (verbal and physical), blackmailing and death threats over poor delivery of medical and emergency services have grown exponentially. As per the survey of Indian Medical Association, 70% of such cases of violence were initiated by the angered relatives of the patient these doctors were seeing.

Poorly organised medical establishments (private and public), poor grievance redressal, improperly trained, callous health care staff and failed governmental health care schemes add to the frustration of the public which they inevitably take out on the health care professionals.

This has led to health care professionals coming down to the streets to get their demands heard and met. Their demands are broadly two-pronged. First of all, they want the government to establish strict safety nets and enforce punitive measures against those who attack the health care staff.

They have also put forth demands that the state governments should make violence against health care professionals a criminal offense by adding relevant provisions to the criminal codes like Indian Penal Code and Code of Criminal Procedure and specific state legislation should also be enacted to affect the same (public order and public health being state subjects under Seventh Schedule in the constitution)

They have also hinted at the peculiar problem of implementation of already existing laws. Many states have already enacted specific legislations to deter and punish violence against health care professionals. For example, West Bengal has The West Bengal Medicare Services Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2009.

Sections 3, 4 and 5 of the act make any act of violence against healthcare professionals and damage to medical institutions a cognizable, non-bailable offense, punishable with three years of imprisonment or fine or both. However, the existence of good laws on paper and their efficacy are two different things when they aren’t timely implemented.

The second demand is aimed towards the improvement of the sub-standard health care infrastructure of the nation. In the global healthcare access and quality (HAQ) index, India ranked 145th globally, even worse than many under-developed countries like Bhutan, Sudan etcetera.

The sector suffers a severe dearth of medical resources and equipment, thin budgets, poor patient to doctor ratio, leading to inhumane workload on the health care professionals and subsequently, ill-functional health care services.

They demand larger economic investments in public healthcare as well as higher recruitment of doctors and nurses which would entail the requirement of a more efficient and inclusive medical education which is currently riddled with corruption and red-tapism.

Doctors’ strike W.R.T. ESMA

One of the ways to portray dissent in a democracy is the right to strike and protest against injustices. The Industrial Disputes Act, 1947 recognises this statutory right of workmen and serviced individuals to have their voices heard through these means.

However, the right stands circumcised in certain cases. Delivery of certain “essential services”, as defined by the Essential Services Maintenance Act (ESMA), 1968 should never be clogged as it would adversely disrupt the normal life of the citizens.

These essential services include health and medical services and ESMA, in essence prohibits the right of doctors to strike if it results in the disruption of access to health care. Further, putting the patient into serious jeopardy due to denial of health care services also falls foul of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

International Labour Organisation also holds that such rights to strike can be prohibited when essential services like health care are denied, which might endanger the safety and health of the public.

Certain precedents, upheld by the Supreme court like T.K. Rangarajan vs. Government of Tamil Nadu and Others and Moti Lal Yadav vs. State of UP also state the same, that if due to withdrawal of health care services, the public suffers, it shall bring the striking doctors under criminal and tortuous liability.

Therefore, statutorily and customarily speaking, the doctors have no absolute right to strike to get their demands met if it at the cost of the public’s health.

Conclusion

It is a question of great ethical dilemma whether doctors should be allowed to strike or not. As violence against doctors is increasing, accountability by the state is decreasing. Current laws are also proving to be inefficacious in controlling the situation.

In such scenarios, it is unjustified to take away the health care professionals’ rights to protest against violence and poor treatment. They have rights to have a safe workplace but hapless patients also have a right to access to basic health care.

The recourse taken by them should not disproportionately harm those in need. The Hippocratic Oath administered to every doctor can be taken to understand that strike actions often result into unnecessary (and preventable) human suffering and therefore should be rationally avoided. Other inconsequential tested measures to portray dissent like advocacy, demonstrations, mediation should also be relied upon.

To indefinitely withhold healthcare services across the nation without providing any alternative to the ill is disproportionate and legally and morally unacceptable. Fundamental right to life as given by the constitution requires that human life be respected and that its protection must always be of ‘overriding priority’ and both the doctors and the patients fall under its ambit.

Author: Oshin Malpani from NALSAR, Hyderabad.

Editor: Tamanna Gupta from RGNUL, Patiala.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s