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.