Medical Profession
and Strike: IMA Stand
Right of the Medical profession to protest and even to go on
strike is a right which IMA will not compromise. Every citizen has the right to protest and
even go on strike in rare situations and this right is ingrained in Article 19
of our constitution.
IMA has a sense of satisfaction that the Supreme Court
refused to ban strike by Doctors and opined that MCI is the body to receive
complaints on ethical issues related to Doctors strike.
But it is unfortunate that MCI which should look after the
interest of the Modern Medical Profession and rise voice in favour of the
Medical Profession whenever there are issues which affect smooth medical
practice, preferred to do the job of policing the medical profession by wrongly
interpreting the Supreme Court verdict and instructed State Councils to take
action against striking doctors.
IMA strongly protest against the MCI circular. IMA want to inform MCI and State Councils
that IMA and Medical Profession reserve the right to strike whenever necessary
inspite of the MCI circular.
Doctors rarely resort to strike when there is no alternative
to make the authorities to listen to our just demands. It is the responsibility of MCI to see that
the just demands of the doctors are considered by the Government.
Vide circular dated 22-04-2015 MCI has written to all State
Councils, referring to SC judgment and also to 2002 Regulations to take action
against doctors going on strike. There is nothing in the said judgment and
Regulations to hold that it is against law on the part of doctors to go on
strike.
Regulations nowhere even contain the word "strike". The MCI
circular does not advise the SMCs as to which regulation restrains a doctor
from striking work in pursuance of just demands that remain unaddressed by the
authorities. The circular has created an unnecessary confusion and scare among
doctors all over India because, coming from the MCI, an ordinary person feels
intimidated by it. The circular can be misused by the SMC's. SMCs, feeling
dictated by the MCI, are likely to pass adverse and illegal decisions against
the accused doctors.
Article 19 in The Constitution Of India 1949: talks about protection of certain rights
regarding freedom of speech etc: (1) All citizens shall have the right; (a) to
freedom of speech and expression; (b) to assemble peaceably and without arms; (c)
to form associations or unions; (d) to move freely throughout the territory of
India;
Doctors rarely resort to strike when there is no alternative
to make the authorities listen to their just demands. Strike is a fundamental
right of workers and, till today, there is no ban on strikes in India.
The scheme of the Industrial Disputes Act, 1947 implies a
right to strike (vii) in industries. A wide interpretation of the term
'industry' (viii) by the courts includes hospitals, educational institutions,
clubs and government departments.
SC judgment has drawn
a parallel with the Bar Council of India and has suggested that all
professionals, whether medical or legal, should be treated alike and should be
judged by the respective professional council and not by the Hon'ble SC in a
matter concerning strike. A continuous
22 day strike was held by all lawyers in all district courts of Delhi, paralyzing
court work and harming the interest of clients, but the bar Council has not
taken any action against striking lawyers this time or even earlier occasions.
Doctors' strike are not peculiar to India but have taken
place in other countries also, including USA and UK.
The question of striking work arises usually in case of
doctors in service. It is best to let the employer deal with strike by
employees. For those not in service, it is up to the private practitioners to
decide for themselves about when they want to open their clinic and for how
long. No restrictions can be placed upon private practitioners except under
law.
Pertaining Laws of MCI: Basic norms are not to
neglect emergencies
MCI Ethics regulation 2.4 The Patient must not be neglected: A
physician is free to choose whom he will serve. He should, however, respond to
any request for his assistance in an emergency. Once having undertaken a case,
the physician should not neglect the patient, nor should he withdraw from the
case without giving adequate notice to the patient and his family.
Provisionally or fully registered medical practitioner shall not willfully
commit an act of negligence that may deprive his patient or patients from
necessary medical care.
Regulation 2.4
mandates, not ignoring emergencies and giving adequate notice to non emergent
patients
MCI Ethics Regulation
2.1 Obligations to the Sick: 2.1.1 Though a physician is not bound to treat
each and every person asking his services, he should not only be ever ready to
respond to the calls of the sick and the injured, but should be mindful of the
high character of his mission and the responsibility he discharges in the
course of his professional duties. In his treatment, he should never forget
that the health and the lives of those entrusted to his care depend on his
skill and attention. A physician should endeavour to add to the comfort of the
sick by making his visits at the hour indicated to the patients. A physician
advising a patient to seek service of another physician is acceptable, however,
in case of emergency a physician must treat the patient. No physician shall
arbitrarily refuse treatment to a patient. However for good reason, when a
patient is suffering from an ailment which is not within the range of
experience of the treating physician, the physician may refuse treatment and
refer the patient to another physician.
The above regulation
again indicates that strike should be the last resort
The Essential
Services Maintenance Act (ESMA) 1968 is an act of Parliament of India which was
established to ensure the delivery of certain services, which if obstructed
would affect the normal life of the people. 2. (1) Definitions. In this Act,- (a)
" essential service" means- (i) any postal, telegraph or telephone
service; (ii) any railway service or any other transport service for the
carriage of passengers or goods by land, water or air with respect to which
Parliament has power to make laws; (iii) any service connected with the
operation or maintenance of aerodromes, or with the operation, repair or
maintenance of aircraft; (iv) any service connected with the loading,
unloading, movement or storage of goods in any port; (v) any service connected
with the clearance of goods or passengers through the customs or with the
prevention of smuggling; (vi) any service in any mint or security press; (vii)
any service in any defence establishment of the Government of India; (viii) any
service in connection with the affairs of the Union, not being a service
specified in any of the foregoing sub- clauses; (ix) any other service
connected with matters with respect to which Parliament has power to make laws
and which the Central Government being of opinion that strikes therein would
prejudicially affect the maintenance of any public utility service, the public
safety or the maintenance of supplies and services necessary for the life of
the community or would result in the infliction of grave hardship on the
community, may, by notification in the Official Gazette, declare to be an
essential service for the purposes of this Act;
Recently in South Africa Portfolio Committee on Labour, the
ANC unanimously rejected the Labour Relations Amendment Bill 2014, which seeks
to prevent the high incidence of violent strikes in South Africa
Finally MCI has not banned strikes and even if there is a
BAN by MCI on Doctor's strike, IMA will
go for it, If the situation warrants.
In a recent news published in THE TRIBUNE it was stated that
IMA headquarters endorses the decision of MCI regarding the actions to be taken
against striking doctors. This was never communicated ort said by IMA.
IMA want to reiterate and conclude that the right to protest
and even to strike is a fundamental right of the Medical Profession and we will
safe guard this right.
Prof. Dr. A. Marthanda Pillai Prof. Dr. K. K. Aggarwal
National President, IMA.
Honorary Secretary General, IMA.