To Indefinitely Withhold Healthcare Services Is Legally And Ethically Unacceptable

In Kolkata, a junior doctor in government-run Nil Ratan Sircar Medical College and Hospital was brutally attacked and beaten by the relatives and an accompanying mob, following the death of a patient and on alleged charges of negligence. Mob violence against doctors in government hospitals in West Bengal has been an ongoing issue for years. This particular incident has sparked protests in the medical fraternity resulting in indefinite striking by doctors across government hospitals in the city and has consequently led to major disruption and halting of healthcare services in the state.

Photo by Anshuman Poyrekar/Hindustan Times via Getty Images

In the midst of these massive strikes and shutdown of government-run healthcare services by doctors in Kolkata (spreading to other cities in India) one perspective has been subverted, a right dehumanized and made less significant. That is the perspective of the sick and the public right to have access to healthcare and in effect, the fundamental right to life.

While on the subject of rights and the law, it is worth noting that the Indian Constitution does not provide for the “right to strike” as a fundamental right. In fact, it is only a statutory right under the Industrial Disputes Act, 1947. Further, though the Constitution does provide for the fundamental right to form associations under which a protest can be covered, constitutionally, even fundamental rights are not absolute and subject to reasonable restrictions—one of which is of public interest.

Additionally, the Supreme Court in T.K. Rangarajan vs. Government of Tamil Nadu and Others held that government employees have no right to strike. If applied to this situation, government doctors being employed by a state hospital do not have the right to strike either. Also, in Moti Lal Yadav vs. State of UP, upheld by the Supreme Court, it was stated that “such activities of abstention, protest, strike etc. amount to a serious misconduct justifying major penalty and also criminal and tortuous liability if any patient suffers on account of such action of such a doctor”. To summarise, the Court held that in these circumstances, the rich are not affected and that the withdrawal of healthcare services due to striking doctors aggravates the health and livelihood of the poor, “when even the minimum facility of attendance of doctors disappears”.

NEW DELHI, INDIA – JUNE 14: Patients wait outside the OPD during doctors’ strike against the assault on junior doctors in West Bengal and in solidarity with their demands, at AIIMS Hospital on June 14, 2019 in New Delhi. (Photo by Amal KS/Hindustan Times via Getty Images)

The court went on to provide that any such doctor’s license should be suspended and that they would be open to action on the basis of criminal or tortious liability. Finally, there is also the legal recourse to ESMA, the Essential Services Maintenance Act, 1968 that was passed by the Parliament to ensure the delivery of certain “essential services”, including health and hospital services, which if obstructed would affect the normal life of the people or would result in the infliction of grave hardship on the community. Previous governments have invoked ESMA, including the BJP government to stop doctors from striking. Under it, one can be arrested without bail.

Not only India, but also the International Labour Organization, a United Nations body, while recognizing the right to strike, has laid down a strict list of “essential services” that may not be denied, including hospital services and so it provides that it is “admissible to limit or prohibit the right to strike in essential services, defined as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.” Thus, constitutionally, legally and even by international standards, one does not have the absolute right to strike.

Despite everything mentioned above, I do believe that workers including healthcare providers in the public sector should have the right to protest and have their demands heard and met, specifically in a state where violence against doctors by mob-patient populations has become the norm. However, reasonableness and basic respect for human life do not allow me to agree with the method of their recourse. So, the issue poses an ethical dilemma. On one hand, violence against any human being including against doctors by a patient mob and lack of accountability by the state are unacceptable.  On the other hand, an ultimate ethical consideration that comes with the job: the provider’s first duty is to care for the patient. Superseding both is the consideration of basic and essential services to the public, in this case, of the people’s access to care.

To indefinitely withhold healthcare services across the board in all government hospitals, for the 7th day in a row today, without rendering any alternative to the users of these services, that are disproportionately the poor of this country, is ethically and legally unacceptable. The medical fraternity continues to state that emergency services are up and running. However, the ground reality, as is true of any developing country, is that these services are not adequately covered, staffed or even open in several hospitals as is being reported from the ground by journalists and accounted for by independent eye-witnesses and the patient population’s own experiences.

What is even more daunting and hypocritical in a democracy, is the fact that while agitating for their own violence-free environment and championing the freedom of speech and association, the same medical fraternity is bent on silencing and shaming any dissenter, or contrary public opinion, as anti-doctor and anti-democracy. In recent memory, the last time doctors went on strike in Kolkata was against affirmative action in 2006, thus denying patients care, while protesting against lower castes and other backward classes gaining entry into medical schools through the legitimate and constitutional means of affirmative action in a society that is fiercely unequal and discriminatory. Thus, the choice of cause by the fraternity has not always been righteous.

On the same note, it is also significant to remember, the silence of the medical fraternity on several other violent incidents also perpetuated on their own. No protests, let alone even silent vigils were held by the same fraternity when caste-based bullying partaken in by doctors and future healthcare providers, led to the death of Payal Tadvi or when Dr. Kafeel Khan was arrested, beaten and maltreated for saving babies in Uttar Pradesh, effectively targeted by the Yogi-led BJP government. No sparks ignited any fire across the medical fraternity, no chants of solidarity even squeaked, nor any condemnation from the AIIMS was issued. So, it is a little unpalatable for the public now to fully accept that the only recourse in this particular situation is the withdrawal of essential healthcare services in the government sector and continued deprivation of those in utmost need.

Further, there are several non-emergency cases that too deserve serious treatment. For instance, dialysis or chemotherapy might not be considered “emergent” by definition but these are still critical to the patient’s care and survival. People being turned away like herds and told to get care elsewhere with no real alternative means, people dying, people suffering, delayed surgeries do not meet the definition of a justifiable strike by any standard world-wide. If all government hospitals continue in work stoppage, where will the vulnerable go, especially when the crux of the matter is that those who go to government hospitals (the majority of our population) cannot afford private healthcare—the crisis does not touch the privileged. To leave the majority of the patient population with no alternative means of treatment and care is a violation of their fundamental right to life and access to healthcare.

One loses all moral ground when as a doctor they refuse to treat even cancer patients and deny children chemotherapy for supposedly a more important “cause” and argue that the Hippocratic oath has undergone change. It is aggravatingly ironic that one is protesting against violence by causing real violence to the most vulnerable and poor of our society by cutting off their access to the only healthcare they can get in the government sector.

Additionally, why should any treatment at all (urgent or not) be indefinitely refused across the board in all government hospitals? One does not need to articulate the financial and emotional struggles the sick have to go through, not to mention how crucial timeliness is in matters of treating cancer and other debilitating illnesses. And nor should one have to. Doctors are not here to “serve”, however, they are also not better than the rest of the people or “saviours”. This is their profession. Neither the poor nor anyone else should have to thank them for it. While their anger, demands, and call for action are completely understandable, one cannot agree with their method of protest i.e. by indefinitely stopping treatment to the most vulnerable of our society.

In trying to achieve their just objective, the doctors in disregard of public health, are inflicting disproportionate harm on patients whether by abstaining from treating or blocking access. In other words, ordinary people are collateral damage. Their actions and cause could garner more support, if they upheld the spirit of their cause, protest as well as their profession – by treating patients for free, using government hospital resources without charge, symbolically holding dharnas at alternative periods of time with adequate coverage of services by others, and mandatorily ensuring that critical, emergency and serious cases are continued to be taken care of.

Most importantly, they should and could still go to court to petition the court to take suo-moto action and direct the government to take action, investigate every case of violence against doctors and provide secure conditions of work. However, by not going to court (maybe because of the possibility that the court could too disagree with the method of withdrawal of healthcare services), more moral ground is lost as the strikes do not appear to be the last resort, not that even in such circumstances, a complete and indefinite stoppage of essential services can be justified either legally or ethically in any civil society.

The movement seems to also have been hijacked by the right-wing BJP that robs it of further legitimacy. The issue was first given a communal colour by BJP leader Mukul Roy who stated, “Trouble broke out at NRS over the death of a patient from a particular community.” He suggested that the TMC government was shielding a particular community,’ it’ being the Muslim community. This has been the long-time stance of the BJP trying to sow seeds of division and polarization in the state for electoral gains.

There is no doubt that the TMC government and CM Mamata Bannerji has mishandled the situation to the extent of its worsening and that there are serious issues still unresolved. However, while there is no indication that the junior doctors are affiliated either way, the real cause of demanding safe working conditions seems to be escalating into more of anti-CM movement that is taking attention away from the actual issue at hand, and between embattled egos and political parties, the price is being paid by the poor with the severe disruption of their care and wellbeing.

The healthcare sector has a right to negotiate and rightfully demand a violence-free workspace, but patients also have a right to get uninterrupted access to care. While similar strikes occur globally, the impact on developing countries is always greater in severity given socio-economic conditions, stark infrastructural deficiencies, and lack of any alternative means of affording healthcare, and the poor are the only ones disproportionately affected. It is undeniable that there should be real change and a violence-free work environment for doctors but the means of depriving the public from all care for days on end with no respite in sight and without proper alternative coverage, do not justify the ends, not at the cost of real lives—even if we as a society find little value in these lives and the perspective of the sick. Isn’t denying care to the most vulnerable, putting the doctors above the very violence they protest? It says even less of us as a society that allows it.

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