Legal, ethical dilemma in healthcare strike

By APOLLO MBOYA

The 2010 Constitution marked a milestone for advancing the right to health as part of the Bill of Rights. Article 43(1) of the Constitution guarantees every individual the highest attainable standard of health which is also recognised in regional and international human rights instruments such as in Article 12 of the International Covenant on Economic Social and Cultural Rights and Article 16 of the African Charter on Human and People’s Rights.

The Constitution further provides that no individual may at any moment be denied emergency medical care which is important to realisation of the right to life. On the other hand, Article 53(1)(c) specifically provides for the right of every child to adequate health care.

Some of the key components of the right to health incude adequate health facilities, healthcare workers and access to affordable medicine, which has been the subject of litigation with the successful challenge of the provisions of the Anti-Counterfeit Act 2008 as violating the right to health, life and dignity.

There are other laws that significantly impact on the right to health including the Public Health Act, primarily for the enforcement of national health policies for prevention of infectious and communicable diseases; the Penal Code on offences relating to unlawful or negligent spreading of infectious diseases; commission of unlawful acts or omissions that lead to death; acts or omissions that prevent a child from being born alive; among others. There are ongoing efforts at consolidating all these laws into one Health law for clarity of enforcement.

Kenya National Union of Nurses, Kenya Medical Practitioners, Kenya Health Professionals Union, and the Pharmacists and Dentists Union, called on their members to go on strike to protest a move by the Transition Authority to devolve health services to counties as provided for in the Fourth Schedule to the Constitution. It is no doubt that workplace grievances including the right to strike are a vital part of the labour movement for over a century.

Article 41 of the Constitution confers on every worker the right to fair labour practices including fair remuneration, reasonable working conditions, to form, join or participate in the activities and programmes of a trade union and to go on strike.

But rather than delve into the nuances of labour law, we need to explore the ethical dilemma presented by the decision of health care workers to go on strike. In the healthcare context, the oft-stated grievances include understaffing, overworking, and underpaying.

On the other hand, nurses, doctors, counselors, and most other care providers are also expected to abide by ethical guidelines imposed by their calling.  One ethical principle in particular imposed universally on all healthcare providers in all jurisdictions is the duty to care for the patient.

There are three ways of approaching an ethical question: The ethical choice that develops moral virtue in our self and our community (Virtue Ethics); or the one that conforms to one’s duty (Deontological Ethics); or the one that produces the greatest benefit to the greatest number of people (Utilitarian).

Taking the virtue ethics approach, we would ask whether going on strike is an action that a virtuous nurse/physician/surgeon/healthcare worker would take.

hostage taking

Because of the potential harm to patients that could be caused by striking, a virtuous provider must first exhaust all other avenues of negotiation that do not present such a risk.

Some have advocated for the use of the symbolic 24-hour strike, which raises public awareness of the dispute, but has arguably fewer potential negative consequences for the patients due to its short duration.

Another less drastic tactic is to raise awareness of working conditions through picketing, which may last anywhere from one to several hours. Article 37 of the Constitution grants the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

Workers in general and especially those in “essential” services such as police, fire and health services, have an obligation to observe ethics in the name of the public good. Labour unions were designed to prevent abuses of power and should not abuse their own power for gain at the expense of public good.

There can be many arguments on this but essential services are non-negotiable and denying them to the public as part of a labour negotiation process is akin to hostage taking.

If workers do not like their working conditions, they are free to seek employment elsewhere. If conditions are really bad, many employees will leave and employers will have trouble retaining employees unless they improve conditions.

Only when the benefit of the patient is the ultimate goal, and only after all other avenues of negotiation have been exhausted, can health-care providers ethically leave their patients’ bedsides to proceed on strike.

If we as a society allow those who care for our sick to abandon their oaths and their duties any more readily than this, then we too have abandoned our sick.  

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke