Doctors' right to strike not absolute
THE right to strike distinguishes employment from slavery.
This is one of the reasons there was instantaneous revulsion when one very powerful country mendaciously claimed that Zimbabwe is using child labour in its diamond mines.
The people of Zimbabwe and their Government abhor any form of servitude.
This Government was founded on building critical mass against the Native Labour Act, also known as the Chibharo, amongst other national grievances.
This was after the passing of the Land Apportionment Act of 1930, which legalised an apartheid-like system that separated blacks from whites.
So, this strong aversion to servitude and the socialist history of the governing party should remain in the subconsciousness of the reader as we navigate this piece.
At the heart of all this is the fact that the Government of Zimbabwe respects the medical profession and wants to resolve the current impasse with the doctors, but it has serious reservations on whether the other side sees things the same way.
Values
Dr David Metcalfe of Harvard Medical School believes that strikes are calculated to hurt a neutral third party, who is then motivated to exert pressure on the employer to accede to the demands of the striking employee.
That sounds straightforward enough and many professions can identify with this.
However, in the case of doctors, the moral case is different. Firstly, in many cases, the third party cannot bring pressure to bear on the employer due to their vulnerability, which results from their condition.
Then, there is the issue of the professional value of the medical profession itself. Out of moral and ethical virtue, it is the doctor’s duty to put the interests of the patients ahead of their selfish ones.
This is why one can see that striking Zimbabwean doctors prefer to talk of medicines and equipment when they face the public, but in closed-door meetings they never refer to these matters.
Instead, they only seem concerned about their emoluments.
This is a strategy or rather a cynical ploy to get public sympathy to their cause, and yet they have little regard to the public’s safety.
This is just a public relations (PR) scam, to whip up public sympathy and support.
But, being one who has been in these closeddoor meetings with the doctors, the writer can authoritatively say never had these doctors talked about patients’ needs, except their own.
We are now in a place where patients’ lives are being callously put at risk.
It is doctors, and not the authorities, who are gambling with people’s lives.
The current impasse between doctors and their employer is based on greed.
There is an accepted moral hierarchy: the right of an employee is trumped by their responsibility as a doctor.
This is because when doctors abdicate their responsibility, it may result in deaths.
Whilst it is accepted that industrial action naturally causes harm or disruption, there is nothing like an ethical doctors’ strike.
Our doctors seem to have decided to strike endlessly, but quite frankly, this is untenable because they deal with matters of life and death.
Can we continue blackmailing each other by using the lives of innocent patients to extract concessions? There is a collective bargaining platform called the Bipartite Forum, which is an impasse resolution platform that doctors should not have walked away from.
The stakes are much higher here. When we juxtapose professional self-interest with patients’ welfare, the choice should be a no-brainer.
But, of course, we are now living in very selfish times.
Surely, when doctors decide to strike, should that not be just a very short-term consideration?
It is the doctors that decided to walk away from the negotiating table.
Whilst withholding labour is a weapon for increasing bargaining power, bargaining with human lives is immoral extortive behaviour.
People are dying because the medical professionals in Zimbabwe are disregarding the sanctity of human life.
The current strike is calculated to paralyse service delivery, maximise fatalities as a way of forcing Government to pay them amounts that would tank the economy.
But, the first dictum of medicine is primum non nocere, which translates to “first do no harm”.
Our doctors’ actions are causing a lot of harm.
In our very polarised political environment, we have those that feel Government cannot do anything right and are sympathising with doctors that are holding society to ransom.
But, the same doctors are failing to empathise with society, which is losing some of its members on a daily basis through lack of medical care.
Lay individuals have somehow found it necessary to sympathise with highly educated individuals that have put avarice ahead of saving lives.
They have put a price tag on the lives of the people and abandoned their fiduciary responsibility.
Society cannot justify a total shut down of the public health delivery system.
There is a shared value across the globe that recognises that the welfare of patients should be put ahead of everything else.
Zimbabwean doctors have to adopt a more humane approach to human life and suffering, which is not evident even when they are not on strike. To all intents and purposes, the medical profession is bound by that moral commitment to help those in need and bring healing and relief to the suffering.
The right to withdraw their service is acknowledged, but that right is not absolute.
In the global village that we currently live in, it is opportune to look at practices elsewhere.
India
The Delhi government has banned job action in all government hospitals, which implies that strikes are not in the interests of the public.
Strikes, as experienced in Zimbabwe, can only happen under some very exceptional circumstances.
But, let us face some very modest reality: there is no strike which is for the benefit of patients.
In Tamil Nadu (South Indian state), in 2003, the Supreme Court ruled that government employees cannot hold society at ransom by going on strike.
The Medical Ethics Council of India (MCS) Act stipulates that doctors cannot deny any patient needing emergency medical care treatment.
The central government can issue special orders to ban strikes in any essential services cited in the order.
Thus, the government is empowered to ensure continued administration of essential services.
This is under the Essential Services Maintenance Act 1981 (ESMA).
South Africa
Whilst Section 23 of the Bill of Rights provides for the right to strike as a fundamental right, this right is limited by Section 36 of the constitution and further limited under Section 65 of the Labour Relations Act, which speaks to workers in essential service, of which medical care is. To ensure there is no total disruption of services, Section 72 of the Labour Relations Act provides for partners involved in essential services to enter into Limited Services Agreements.
If no essential services agreement is signed, then the Essential Services Committee will make a determination of the minimum essential services that must be maintained throughout strikes.
Europe
Legal attitudes in the rest of Europe on employees’ rights to strike are normally quite liberal.
But, even the most open-minded jurisdictions like Belgium, Ireland and Italy lay down statutory restrictions on the right of doctors to withdraw labour.
They cannot completely withdraw services. In Belgium, they have the Essential Services Law. This law compels the medical industry to continue to provide some service even in the event of a strike.
The European Union got involved in labour cases on the right to strike by members of an essential service. In this case, it was the case of Junta Rectora Del Ertzainen Nazional Elkartasuna (ER. N.E.) versus Spain. In this case, the European Court of Human Rights upheld Spain’s decision to ban members of police officers union from exercising the right to strike.
The court found that the need for an uninterrupted service and preservation of public safety were good enough reasons to ban the police from striking
essons
This tells us that there are circumstances, even in fully fledged and mature democracies, under which restrictive caveats can be placed on the right to withdraw labour, and public safety is chief among such reasons.
Let us call things as they should be called: doctors are not simply withdrawing their labour, they are withdrawing treatment.
If the main aim of medical practice is to save life, preserve, promote and manage health, how do some sleep at night knowing that they want to use corpses strewn in wards as leverage to draw maximum wage concessions?
A responsible union does a thorough risk assessment and impact analysis and puts mitigatory measures in place before calling a strike.
Section 4 (1) of our Constitution speaks to the right to life. The doctors’ strike is falling foul of that provision. Surely, the right to life overrides any other rights doctors are relying on as underpinning their right to withhold patient treatment.
Section 86(2)(b) of the Constitution provides that certain rights can be limited in the interests of (among other things) public safety, public health or general public interest.
There is no doubt in the mind of this writer that these limitations prove that the doctors’ right to strike is therefore not absolute.
A labour impasse between employer and employee should not result in the death of the patient, who clearly is not part to this stalemate.
If we were to rank moral values hierarchically, the right to life would trump the right to strike many times over.
Zimbabwean doctors are inflicting disproportionate harm on patients.
We have established their right to push their employer to pay them a living wage, but patients cannot be viewed as dispensable collateral damage.
The doctors’ demand to be paid in US dollars shows they are playing games with people’s lives because their chances of success are not better than zero.
◆ Nick Mangwana is the Permanent Secretary in the Ministry of Information, Publicity and Broadcasting Services. He wrote this article for The Sunday Mail.