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medical discussion

Medicolegal Aspect Of Strike By Doctors

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2015-06-24 19:48:33

Introduction:

Today each country of the globe gives right to strike. Prior to 1926, there was no law governing the strikes in India. The Trade Union Act 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute. In India, right to protest is a right under Article 19 of the Constitution of India but right to strike is not a fundamental right but a legal right and with this right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the Industrial Dispute Act, 1947.

Industrial conflicts are inevitable in spite of best of relations between workers and the management. Statesmanship lies in reducing their frequency, tonight down its intensity and in re-establishing the disrupted labor and management relationship. In a competitive world today, no organization can afford o have disruption in the particularly important in health care sector where question of patient’s life is involved.

Strikes are not uncommon to Health Care Sector. Very often Doctors, Nurses and other staff of the hospital resort to strike as their demands have not been met by the management or the authorities concerned. In March 2012, nurses employed in various major private hospitals in south including Apollo, Fortis and Madras Medical Mission Hospital resorted to strike for 7 days demanding hike in their basic salary besides other benefits. As per a RTI, Resident doctors in a Government Hospital in Delhi went on strike five times from 2006 to 2011. ESMA was introduced twice in this period. In Kerala hospitals nurses continued their strikes for 115 days.

Definition

Strike: As per section 2(q) of I D Act 1947, strike means cessation of work/suspension of work/ or work stoppage by a body of persons employed in any industry acting in combination, or a concerted refusal under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment with a view to persuade, force, or coerce their employer to accept the terms of condition of employment.

CAUSES OF STRIKE AND LACKOUT

Causes: Any Industrial dispute, however minor, may sometime leads to strike if the dispute is not addressed expeditiously or the management is insensitive to the point of view of the staff. Generally the reasons as under leads to strike;-

Dissatisfaction with company Policy

Salary, increment and incentive problem

Wrongful discharge or dismissal of workers

Withdrawal of any concession or privileges

Hours of works or rest intervals

Leave with wages or holidays

Bonus, Profit sharing, Provident Funding & Gratuity

Retrenchment of workers and closure of establishment

Disputes connected with minimum wages

Violence by patient and their attendants

In hospitals, the common factor for the strike has been misbehaviour by patients and attendants with resident doctors & nurses. [March Strike of GSVM Medical College, Kanpur] Resident doctors often resort to strike for reasons concerning their safety and better working conditions.

Types of Strike:

General Strike: Strike of members of all or most of the unions in a region or establishment. It may be strike of all the workers in a particular region and is generally meant to put on the ruling government to accede to their demands.

Work to Rule: Here employees do, no more than minimum, required by their rules of contract e.g. nurses refusing to answer telephone, refusal to work overtime and travel on duty et.

Go Slow: Strike staged with workers not quitting their work but merely slackening or reducing their normal work output.

Hunger Strike: Workmen resort to fasting near the work place.

Sit down strike: Declared and staged without filing the required notice of strike and without the majority approval of recognized bargaining agent or trade union.

WHEN IS STRIKE LEGAL OR ILLEGAL?

The right to strike in Indian constitution set up is not absolute right but it flows from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go in strike and the state can impose reasonable restrictions.

Under the Industrial Dispute Act 1947, the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike would be illegal. Sections 22 & 23 of the Act lay down Prohibition of strikes and lock-outs as under.-

Without giving to the employer notice of strike, as herein-after provided, within six weeks before striking; or

Within fourteen days of giving such notice; or

Before the expiry of the date of strike specified in any such notice as aforesaid; or

During the pendency of any conciliation proceedings before a conciliation officer and seven days after conclusion of such proceedings

Similarly no employer carrying on any public utility services shall lock-out any of his workmen without giving them notice of lock out within six weeks before locking out, further no workman can go on strike and no employer of any such workman shall declare a lock out-

During the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;

During the pendency of proceedings before Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings;

During the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings,

Contravention of these conditions makes the strike or lockout illegal. Delhi Government has banned strikes in all government hospital saying that they were against the public interest. Divisional bench headed by Hon Chief Justice M K Sharma said that the strikes by the doctors both in central and state government were illegal. Banning strikes would ensure patient’s fundamental right to life. Court has also ruled that doctors, residents, interns, Para Medical Staff or any other person of AIIMS can no longer go on strikes including protests and demonstration.

In code of Ethics and Regulations by MCI Act which is blinding on all doctors also a strong prohibition against any doctor’s strike. Doctors cannot refuse treatment to the patient who is in need of emergency care.

Recent circular of MCI, dated 22nd April 2015 issued after Hon’ble Supreme Court order dated 11th Nov 2014 mentions “It is to inform you that in pursuance to the order dated 11.11.2014 passed by the Hon’ble Supreme Court of India in W.P.(C) No.253 of 2012, Titled as People for Better Treatment vs. Secretary, India Medical Association & Ors. the matter was considered by the Ethics Committee at its meeting held on 28th January 2015 and observation/decision of the Committee is as under:

“The Ethics Committee perused the Order dated 11.11.2014 of Hon’ble Supreme Court of India  in W.P.(C) No.253 of 2012, Titled as People for Better Treatment vs. Secretary, India Medical Association & Anr., with regard to concern over the doctors going on strike.

The Ethics Committee discussed the matter in detail and is of the view that every doctor registered in the State Medical Council/Medical Council of India are required to abide the Code of Medical Ethics.

In view of above, the Ethics Committee decided that a copy of the order of the Hon’ble Supreme Court of India be forwarded to all the State Medical Councils with the request to take the cognizance into the matter related to strike by doctors, in case any such incidence is brought to their notice and take necessary action against the doctors concerned in accordance with the order of Hon’ble Supreme Court.”

The above recommendations of the Ethics Committee approved by the Executive Committee at its meeting held on 16.03.2015, while considering the minutes of the Ethics Committee.

In view of above, you are requested to take the cognizance of the directions of the Hon’ble Supreme Court, in case any incident of strike by doctors in the state is brought to your notice and take necessary action against the concerned accordingly.

ACTION PLAN FORHANDLING A STRIKE IN HOSPITAL

As already stated earlier, the strikes in hospitals are not uncommon though it is generally presumed that hospital workers are not as union minded as the other industrial workers because of the environment under which they operate. When a strike in the hospital starts, initially, it may involve a particular section of workers but other staff members may join in support of striking workers if the demand made appear to be justified. This has to be kept in mind while making any strategic operation plan. A well thought out plan prepared in advance will maintain service’s effectiveness.

Prevention of strike

Open Channel of Communication: worker should feel free to communicate so that any dissatisfaction or discord can be ripped in the bud. Complaint arising from any section should not be brushed aside and must be addressed appropriately and promptly.

Regular Electronic Surveillance: Through the CCTV covering the entire premises to monitor any usual or untoward incidence.

Regular rounds by the Security Officer: To detect any untoward activity and to keep a watch on the activity within the establishment.

One patient and one attendant norm to be implemented.

Display of gate passes by the attendants to be made compulsory to deny access to any unsocial elements in the hospital premises.

Management plan

On receipt of the strike notice, all concerned departments such as labour department, Ministry of Health Department of state government, HQs of the concerned organizations etc. must be informed The ready list of all such officials including the formats of report or letters must be available for prompt action.

Officials for internal coordination must be detailed by name.

Mechanism for regular update must be in place.

Management should get involved in negotiations with the representatives of the striking employees. If required top management gets involved so that decisions taken can be implemented.

All out efforts must be made to resolve the conflict. All communication channels must be reinforced.

Patient care plan: The most important part of the strategic plan. This will involve:

Patient Census, particularly patients in ICU/ other critical areas and bed bound patients.

Patient evacuation plan in case required. Reduction in the number of the patient and name of the hospital where patients will be evacuated. The details of staff to be contacted in such contingency.

OPD Policy: whether restricted OPD or attend only emergency patients.

Policy for surgical patients: Planned surgery to be postponed.

Identify facilities where patient’s referral / transfer will be done. Closest hospital must be identified and agreement between the two hospitals must be in place in advance.

Human Resource Management Plan

Identify staff by name that will be overall responsible for all coordination and operations.

Name and title of the staff which will be on duty during the strike,

Staffing details for all the three shifts of the staff not on strike.

Contingency plan for recruiting new staff in case is expected for a longer duration. Support plan of staff from other facility.

Training and development plan for the new staff.

Available staff may be given multiple responsibilities besides their own job. Orient the staffs before making them do such task.

Deployment of senior professionals on duty in case junior doctors is on strike.

Senior Nursing staff, including Administrative nursing staff to be detailed in case of strike by Junior Nursing Staff.

Security Contingency Plan

Special Security arrangement to ensure safety of patients, attendants, staff not participating in strike.

Facility safety which includes building, equipment and all other assets of the establishment.

Keep local police in loop. Police personnel to be available within the premises.

Name of officers responsible and their emergency telephone numbers of the departments like fire, water, gas, ambulance, electricity and telephones etc.

Ensure safe access to the staff wiling duty as striking employee may stop them from entering the premises. This may happen far away from the premises.

Logistic Plan

Plan for at least one week’s stock of pharmaceuticals and other medical supplies, linen and laundry, fuel and gas, food and beverages supply and review the same on further developments. Aim should be to maintain essential services without disrupting the patient care services. All basic support services should remain functional.

The Essential Services Maintenance Act, 1981: The Act provides for the maintenance of certain essential services and normal life of the community and extends to the whole of India. Section 2 of the Act gives the details of services included in essential services, some of which are postal, telegraph or telephone, railway or any transport service aerodromes, major port, customs armed forces of the union, public conservancy, sanitation or water supply, hospitals or dispensaries and banking to cite a few.

The Act defines strike as the cessation of work by a body of persons while employed in any essential service acting in combination or concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept work assigned, and includes :-

Refusal to work overtime where such work is necessary for the maintenance of any essential service;

Any other conduct which is likely to result in, or results in, cessation or substantial retardation of work in any essential service;

Power to prohibit strikes in certain employments: If the Central Government or appropriate authority is satisfied that in the public interest it is necessary or expedient to do so, it may, by general or special order, prohibit strikes in any essential service specified in the Order. It can also prohibit Lockout and layoff if considered necessary.

An order made under sub-section (1) of the Act shall be in force for six months only which can be further extended another period not exceeding six months, if it is satisfied that in the public interest it is necessary or expedient to do so.

Upon the issue of an Order

No person employed in any essential service to which the order relates shall go or remain on strike;

Any strike declared or commenced whether before or after the issue of the order by the persons employed in any such service shall be illegal.

Disciplinary action for participating/ instigating an illegal strike:

Any person who commences or instigates or take part in a strike which is illegal shall be liable to disciplinary action including dismissal. He or she can be arrested without a warrant and awarded imprisonment for a period extending from 6 months to one year.

Summary and Conclusions

The right to protest is a fundamental right of each individual as enshrined in the constitution of India. However, the right to strike is only conditional available only when certain pre conditions are fulfilled. Even the appropriate government is authorized to prohibit a strike or it continuance when essential services are affected.

The strike in health care sector are not uncommon and the same but nursing, paramedical staff and junior doctors are being reported time and again. An organization needs to develop a strategic plan in advance to handle strikes so that services are not unduly affected. Any strike in a hospital may severely affect patient care services or even loss of life.

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