Therefore, "for a labor movement and collective bargaining to have any force behind it, the right to strike, and ability to do so, is fundamental to ensuring that labor organizing and the bargaining process function and remain credible" [ 2 ].
In most countries, the right to strike forms part of statutory law. South Africa is similar since the right to strike is enshrined in the bill of rights and constitution, perhaps as a consequence of the historical struggles for emancipation from apartheid oppression [ 44 ].
Strike action as part of collective bargaining is also protected by specific regulations under the South African Labour Relations Act LRA , when employee grievances cannot be resolved by alternative dispute resolution mechanisms [ 45 ].
In more developed countries such as the United States, collective bargaining mechanisms between HCWs such as nurses and their employers have been in existence since [ 5 , 42 ] and this is supported by federal law under the National Labour Relations Act NRLA [ 46 ].
Section 7 of this Act, summarizes protected employee activity as follows [ 42 ]:. Employees shall have the right to self-organization, to form, join, or assist labour organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.
Therefore one can agree that striking is a normal and necessary consequence of the organisation of labour markets in capitalist societies [ 33 ].
Collective bargaining has been described as an adversarial process which is designed to win over partial or full control of something that is held by another, especially where wages and improved conditions of service are concerned [ 3 , 41 , 42 ]. Unfortunately, in healthcare service delivery the affected third parties are usually vulnerable patients and the public who are powerless either because of sickness or lack of alternative means of obtaining healthcare, and who also lack the power to apply the necessary pressure on the employer and employees to break the impasse, due the asymmetric power relationship that exists between patients and the contesting parties, in this case HCWs and their employers [ 9 , 20 , 21 , 41 ].
The impact of HCW strikes on the community at large is usually significant [ 2 , 17 , 21 , 41 , 47 ]. It is this negative impact on healthcare service delivery that usually leads to public controversy and opprobrium being heaped on the striking HCWs from both within and outside the medical profession [ 9 , 10 , 18 , 20 , 48 — 51 ]. Some authorities have argued that the right to strike can be classified as a fundamental human right because "the right to strike is so important to the functioning of a democratic society that its suppression would be unjustified" [ 33 ].
The approach of the International Labour Organisation ILO has been to regard this right as a positive right which is subject only to the reasonable restrictions that may be imposed by law [ 33 ]. This position is further supported by a legal principle described by Lord Wright in as follows [ 52 ]:. Where the rights of labour are concerned, the rights of the employers are conditioned by the rights of the men to give or withhold their services.
The right of workmen to strike is an essential element in the principle of collective bargaining. It is, in other words an essential element not only of the union's bargaining process itself, it is also a necessary sanction for enforcing agreed rules. Bader Pop Pty Ltd [ 53 ] when the Court opined that:. The right to strike is of both historical and contemporaneous significance. In the first place, it is of importance for the dignity of workers who in our constitutional order may not be treated as coerced employees.
Secondly, it is through industrial action that workers are able to assert bargaining power in industrial relations. The right to strike is an important component of a successful collective bargaining system. According to the psychologist Maslow, human beings are generally motivated by the pressure to fulfill certain needs [ 32 ].
These needs can be arranged in a hierarchical model ranging from basic physiological needs to self-actualization and transcendence Figure 1 [ 54 ]. Maslow argues further that these human needs may be likened to vitamins in that: a One can never be healthy without them, b long-term deficiency may cause 'disease' and c there are no other substitutes for them.
He further suggests that any challenge or possibility of thwarting these basic human needs, or a danger to the defenses, which protect them, or to the conditions upon which they rest, could be considered a threat [ 32 ]. It is such threats against the fulfillment of human needs, starting from the basic physiological needs of hunger, shelter etc.
One of such emergency reactions, which humans would use defend themselves against a threat to the goal of achieving human needs is a strike action! Based on this analysis one can propose that the higher the level at which a particular community is in terms of satisfaction of basic human needs, the more stable such a community is.
Therefore in such communities, the incidence of emergency reactions such as strikes may occur less frequently and their impact is minimized. Conversely, the lower on the level of human development of a particular community, and the lower they are on the ladder towards the fulfillment of the hierarchy of human needs, the more frequent and fierce the struggle to fulfill basic human needs. This may explain why the incidence and impact of strikes is more frequent in developing countries where people are still struggling to achieve basic physiological needs such as food, shelter and healthcare.
According to one union leader in South Africa, the primary reason why we go on strike is "our stomach" i. Maslow's hierarchy of needs for human motivation. Chima SC, , Adapted from [ 54 ]. When doctors and other HCWs embark on strike, three themes appear to dominate the argument presented globally as a reason for their actions. These are generally no different from other causes of doctor disaffection which lead to work attrition or brain drain. According to some doctors leaving KwaZulu-Natal provincial public health services for greener pastures in private practice or overseas, their reasons were; " working conditions, infrastructure challenges, optimal management, and salaries" [ 55 ].
Thus the reasons given by doctors and HCWs for embarking on strikes may be classified under three themes as follows:. On-going changes in organization of healthcare services beginning from the middle of 20 th century to the present [ 2 — 5 , 34 — 36 , 38 ].
Failure by employers to honour collective bargaining agreements for improved wages and conditions of service [ 3 — 5 , 10 , 18 , 22 — 24 ]. One can attempt to analyse each of these reasons given for HCWS strikes as follows:. The changing face of healthcare delivery and the environment which it is undertaken has brought new challenges to healthcare professionals [ 32 , 34 — 36 , 38 ]. Some of these changes include the rise of 'consumerism' in healthcare [ 37 , 56 — 58 ] and the changing role of the physician from a purely professional role based on beneficent paternalism to that of a service provider and employee in a managed healthcare industry [ 2 , 34 — 36 , 59 ].
Starting from the late twentieth century till present, the practice of medicine has changed significantly from its Hippocratic roots.
While the requirement of competence endures [ 60 ], the doctor-patient relationship has changed, with more knowledgeable and demanding patients. Further, with the legal requirements of informed consent and respect for patient autonomy [ 57 ], the patient's welfare is often complex and contested [ 38 ]. The obligation of physicians to recommend interventions based on evidence of benefit and harm is challenged by patients who have the expectations of a consumer, in a capitalist and market driven economy [ 3 , 34 , 35 , 57 ].
Further, the professional role of the physician as the sole arbiter of patient care has given way to shared decision-making, not only based on the demands of the patient, but on the dictates of the employer, the health care insurance industry, as well as government regulations [ 34 — 36 ]. In the current dispensation doctors have become frustrated and 'disempowered', since their role has been reduced to that of an ordinary worker or employee in many jurisdictions [ 2 ].
Even where doctors are involved in private medical practice, their freedom of action is subject to oversight by government officials and regulatory authorities, coupled with willingness or otherwise of the employer or healthcare insurer to pay for the services rendered [ 35 , 36 ].
Because of the emergence of this regulatory framework and the demands of modern society, the doctor has become like any other employee who must occasionally negotiate for increased wages or third party payments to meet personal economic needs. Occasionally such wage negotiations may reach an impasse, demanding resolution by strike action or withdrawal of labor [ 2 , 4 , 11 , 12 ].
According to reminiscence by one commentator, forty years ago, before the evolution of managed care, health services were provided as a form of retail transaction.
In this scenario, patients went to physician or hospitals of their choice and their employers paid through their group insurance policy. The medical services were based on the cost of each procedure carried out on the patient.
The more the services rendered the greater the income for the physician or hospital and therefore the greater their ability to pay their employees or provide better healthcare equipment and services [ 5 , 42 ]. With the advent of managed healthcare, the charges for services are now negotiated at a set rate regardless of the number of procedures at each encounter [ 42 ]. This has severely the limited income and compromised the financial resources of doctors and HCOs [ 2 , 4 , 5 , 34 , 36 ].
While the above scenario may not apply to all jurisdictions, other changes in healthcare service industry within the later part of the 20 th century have also impacted on the doctor-patient relationship and medical practice generally. For example in the UK, increasing malpractice suits against HCWs and necessary provisions for the clinical negligence scheme for trusts have severely impacted on the amount of money available for patient care services within the national health service NHS [ 61 ].
Similarly, in less developed countries such as South Africa and Nigeria, recent political changes, poor leadership, and competing demands for limited resources from a large and growing population have impacted on the ability of governments to allocate adequate funds for healthcare service delivery [ 19 — 22 , 27 , 28 ].
One of the most frequently cited sources of friction and reason for embarking on strikes is the failure of employers, whether government or private, to adhere to the terms of negotiated wage agreements. The workers felt cheated and therefore embarked on a strike action [ 6 ]. Similarly, in Philadelphia USA, striking HCWs claimed longstanding failure by the employer to address issues of staffing levels, patient care, working conditions and also that some HCWs had been working without a valid contract for seven months [ 7 ].
In Nigeria, HCW strikes have started following the failure of various state governments to abide with the contents of a memorandum of understanding between the governments and HCWs regarding mechanisms for implementation of a federally negotiated salary scale [ 22 , 62 ].
In South Africa, the public service strikes of were partly caused by failure of government to implement parts of agreements negotiated with HCWs during previous strikes in and The strike resulted in the introduction of occupational specific dispensation OSD salary scales. But partial or shoddy implementation of these agreements as well as refusal by government to agree on a minimum service level agreement was cited as reasons for doctor and HCW strike [ 18 , 19 , 28 ].
Similarly, strikes in Israel, India, New Zealand, Czech Republic and elsewhere have generally occurred due a quest for improved wages and conditions of service for doctors and other HCWs [ 8 — 16 ]. Therefore it appears that adherence by employers to the terms of wage or conditions of service agreements negotiated through collective bargaining or arbitration may go a long way towards reducing the incidence of HCW strikes.
It must be recognized that doctors and HCWs are ethically obliged to provide the best possible care for their patients. The Hippocratic Oath to which doctors are required to adhere carries injunction: " the health of my patient will be my first consideration " [ 61 ]. Therefore in the circumstances where the health of the patient is threatened; for example where there is a failure to provide adequate drugs or proper facilities for patient care.
Doctors may feel ethically and morally obliged to intervene on behalf of their patients and this intervention may ultimately result in a strike action or withdrawal of services, in an effort to improve conditions for patient care [ 7 , 12 , 20 , 22 , 27 , 28 ]. Doctors' strikes appear to create an ethical conflict with the Hippocratic tradition and obligation to place patients' best interests as the primary moral consideration in medical practice.
However, the rise of consumerism in healthcare, and loss of power by doctors, many of whom now work as employees, subject to regulations imposed by different stakeholders, including governments, health-maintenance organizations, and healthcare insurers, has impacted on modern medical practice. Therefore, doctors, like other employees may occasionally resort to strikes to extract concessions from employers. 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 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 :. 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.
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. 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. 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. 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. During this time, only one hospital continued providing services to a population of 5. Even though their data is incomplete, authors from this study found that the number of emergency room visits decreased during the strike, but the risks of mortality in the hospital for these patients increased by 67 percent.
This could greatly influence variations between expected annual hospital mortality possibly due to extremes in weather that may exacerbate pre-existing conditions such as heart failure during warmer months or selecting months with a higher incidence of viral illness such as influenza. Importantly, all strikes ensured that emergency services were continued, at least to the degree that is generally offered on weekends.
Furthermore, many doctors still provide usual services to patients despite a proclaimed strike. For example, during the BMA strike, less than one-tenth of doctors were estimated to be participating in the strike.
Furthermore, the cancellation of elective surgery is likely to be responsible for transient decreases in mortality. Doctors also may get more rest during strike periods. Although doctor strikes do not seem to increase patient mortality, they can disrupt delivery of healthcare.
Additionally, people might need to seek alternative sources of care from the private sector and face increased costs of care. HCWs themselves may feel guilty and demotivated because of the strikes. The public health system may also lose trust as a result of service disruption caused by high recurrence of strikes. During the COVID pandemic, as the healthcare system remains stretched, the potential adverse effects resulting from doctor strikes remain uncertain and potentially disruptive.
In the US, the American Medical Association code of ethics prohibits strikes by physicians as a bargaining tactic, while allowing some other forms of collective bargaining. These statements seem too general and do not represent the complexity of why and how a strike could take place. Experts in law, ethics, and medicine have long debated whether and when HCW strikes can be justified.
If a strike is not expected to result in patient harm it is perhaps acceptable. Most fundamentally, strikes raise questions about what healthcare workers owe society and what society owes them. For strikes to be morally permissible and ethical, it is suggested that they must fulfil these three criteria: [40]. Strikes should be proportionate, e. Strikes should have a reasonable hope of success, at least not totally futile however tough the political rhetoric is.
The current strike does not fulfil the criteria mentioned. As Malaysia is still burdened with a high number of COVID cases, a considerable absence of doctors from work will disrupt health services across the country. Second, since the strike organizer is not unionized, it would be difficult to negotiate better terms of contract and career paths. Third, there are ongoing talks with MMA representing the fraternity and the current government, but the time is running out for the government to establish a proper long-term solution for these contract doctors.
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