Focus on Rights

Is there a doctors' right to strike?
One remembers a somewhat grimly hilarious moment not so long ago when a one time predecessor of the present Minister of Health (held equally to ransom by striking doctors at that time), pointed out, desperation writ all over his face, that if Sri Lankans had the right to life constitutionally protected, 'then surely the doctors will be stopped from resorting to such action'.

Possibly, the exquisite agonies suffered by the then government must have been forcibly recalled to the mind of People's Alliance parliamentarian Nimal Siripala de Silva when he advised the members of the striking Government Medical Officers' Association (GMOA) this week, that they must first secure the needs of patients before engaging in any action on behalf of their trade union.

For the GMOA, however, the issue has been very clear. The dispute concerned a matter of salary anomalies which they say, has been prevalent for a long time and which has resulted in discrepancies between salaries of Assistant Medical Officers/Registered Medical Officers and graduate medical officers.

The former, however, claim that the 44 percent increase in the starting salaries of doctors that the GMOA is demanding, is grossly disproportionate and concedes only a lesser increase of some 8% (on an average). While the dispute went on and the unfortunate Minister of Health wavered between one or the other of these two lobbies, we witnessed patients who are at the receiving end of the strike action, becoming the first victims, despite so called 'emergency services'.

In a country where consumer rights are virtually non-existent, patients' rights are a similarly highly disregarded category. The recent formation of a National Association for the Rights of Patients is therefore a salutary development. The Association has called for a ban on strikes by doctors and is considering requesting the government to provide safeguards in this regard by law.

In India, with its highly proactive consumer rights bodies and considerable public interest jurisprudence enforcing duties upon hospitals and doctors based on the right to life expressly contained in the Indian Constitution, there is clear reasoning as to why the right to adequate health comprises an essential part of the right to life.

Thus, the Supreme Court of India has categorically pointed out that the right to life does not mean an animal existence but connotes access to basic nutrition, health care, clothing and shelter and fundamentally, the right to live with human dignity.

Many thought provoking judgements have been delivered in this regard by the Court, including one particularly stern judicial reprimand to as many as seven government hospitals in Calcutta who refused to admit a seriously injured agricultural labourer on the basis that they did not have vacant beds. The hospitals were warned to be more responsible about patient care. Similarly, other decisions by the Court have established the rights of patients as consumers to protest with regard to questions of inadequate health care.

Framers of Sri Lanka's constitutional documents, past and present, have not been as far sighted as in India, as far as rights provisions are concerned. We do not therefore, curiously enough, have the right to life. Consequently, the actions of doctors in state hospitals in refusing all but the most dire medical emergency care for patients remains arguably contestable only under the general prohibition against arbitrary action. Thus, a patient able to afford only the services provided by the state hospitals could very well plead that the action by the striking doctors amounts to unequal treatment in that the end result of the strike action affords medical care only to the well heeled.

In this respect, it is also relevant that an April judgement of the Sri Lankan Supreme Court referred to Article 12 of the International Covenant on Economic Social and Cultural Rights which recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health". The reference by the Court was in the explicit context of ordering the State to bear the private medical expenses of a man who had been arrested, detained and tortured by police officers of the Wattala Police station, horrendously enough due to mistaken identity. (Gerald Perera vs OIC, Wattala Police Station and Others, SCM 4/4/2003)

In this instance, responding to an argument by the police officers that the man could not claim medical expenses incurred after being taken for treatment at the Nawaloka Hospital, the Court specifically took the view that citizens have the right to choose between State and private medical care. The fact that the wife of the petitioner in the case took him to a private hospital, (which was moreover in consequence of medical advice given when he was first admitted to an ayurvedic hospital), was held to be not unreasonable and was probably motivated by nothing other than the desire to save his life.

Notably, the Court pointed out that, how ever good the standard of treatment in State hospitals may be, there is no doubt that many Sri Lankans do opt for treatment in private hospitals - sometimes in the belief that treatment and care is better, and sometimes because of fears in regard to delays, over-crowding, strikes, shortages of equipment and drugs, etc.

Optimists could further take heart from the fact that the proposed Draft Constitution of 2000 also contains unequivocal rights provisions in this respect, guaranteeing not only the right to life but also the right of every citizen to health care services, including emergency medical treatment. These provisions would therefore directly cover situations where medical personnel at state hospitals refuse treatment of patients on the basis of trade union action or the right to strike.

For the moment, however, a temporary way was found out of the present impasse not with the striking doctors summoned to a stronger sense of their essential responsibilities, despite a juggernaut lobby that ostensibly speaks on their behalf but with the Government giving way to their demands.

The truth is that if their complaint regarding their salaries being unreasonably lower than medical officers in other categories (or indeed, as contrasted to other public officers in general), are justified, then the public should have been apprised of this fact by comprehensible data and won over. In contrast, resorting to strike action in this peremptory manner only signified an insensitive arrogance, which the medical profession can ill afford to boast of.

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