Dealing with ethical and legal dilemma of the doctors strike

Industrial actions by health professionals (no matter the category) severely affect health systems and when they last long, they create a bigger potential for collapsing health service delivery. This greatly threatens the integrity of the national health system. This situation raises a serious ethical and legal dilemma, which has to be understood and managed well as human life is involved.
The importance of human resources for the functioning of health systems is not doubtable. In fact, WHO indicates human resources for health as one of the six building blocks for a health system. Uganda continues to grapple with sustaining this important block in its health system. As a result of the gaps in the Uganda’s human resources for health, we have overtime experienced threats of industrial actions across all levels of the human resources in our health system.
On November 7, the membership of the Uganda Medical Association (UMA), began an industrial action, which was grounded in three major asks: First, reviewing the supply chain management of medicines, vaccines and medical supplier; second, immediate halt of the war on doctors, including a request to disband the Health Monitoring Unit; and third, immediate increase in salaries of all doctors, including the allowances and improvement of working conditions.
A number of issues have arisen since November 7, including the legitimacy of the industrial action by UMA, which seems differing from the opinion of the Medical Union, which will be a discussion for another day, the legal and ethical questions seem paramount.
As I have argued elsewhere, in medical practice, the duty to act ethically lies at the very origins of the profession. It is indeed striking that the Hippocratic Oath focuses more on ethics of the physician’s conduct than on the science of efficiency that a health professional should apply.
It is thus important for the striking doctors to maintain the highest level of ethical considerations. One of such considerations is the requirement that emergency care must be provided during a strike.
The ethical principles equally apply to the Ministry of Health, which should ensure that all the required resources are made available to the doctors in service during this period in sufficient amounts, including a sound governance structure for delivery of health services in times of the strike and show signs of commitment to ending the strike.
We should not have an expectation of our health professionals practicing ethically in an unethical environment, including an unethical approaches to resolving the dispute that resulted into the strike.
Legally, I will address the legal theory, which the Ministry of Health has taken on the advice of the Solicitor General.
The ministry has argued that the current industrial action by UMA is illegal and they have relied on section 7 of the Public Service (Negotiating, Consultative and Disputes Settlement Machinery) Act No. 10 of 2008.
Under this law, UMA was expected to issue a 90 days notice before withdrawing the labour in essential services and they had to secure a certificate signed by the chairperson of the Public Service Negotiating and Consultative Council.
This provision is, however, not a general rule as it has exceptions under section 8 of the same law, which allows withdrawal of labour due to unsafe and dangerous working environments even without issues such a notice.
A close look at the demands of UMA indicates that part of their request is to improve the ‘dangerous’ working conditions its members are subjected to. Without prejudice to the above, the Ministry of Health can only get a competent declaration on the legality of this industrial action from the courts of law and not the Solicitor General’s opinion, which is simply an opinion!
The Ministry of Health, needs to explore more tenable legal interim solutions during this industrial action. For instance, while our Constitution and the Employment Act, clearly forbid forced labour, one exception that would see the government compel doctors back to work is through declaring a state of emergency under section 5 of the Employment Act.
The consequences of such a declaration are, however, fatal for Uganda’s health system and this option only needs to be considered as last resort. It is also possible to do an interim legal task shifting effort.
This is specifically possible since the strike is only involving doctors. Under the medical and Dental Practitioner’s Act, a person authorised by the Director General of Health Services, may give medical or dental treatment in a government medical institution after undergoing appropriate training. Under this option, the Director General may authorise lower health professionals to undertake duties of Medical and Dental Practitioners as long as they have what the law prescribes as appropriate training.
In summary, the ethical and legal dilemmas are real in an industrial action by health workers. This needs to be managed through utilisation of the appropriate principles of the rule of law and exploring dialogues to end the industrial action as soon as possible.
Both the doctors on strike the Ministry of Health should not forget the basic ethical principles, which are a basis for the protection of life, which is a corner stone of the Hippocratic Oath.

Mr Mulumba is a lawyer practising Health Law and Policy – Centre for Health, Human Rights and Development.