Cover Story

WHEN WHITE ANGELS WRITE BLACK WARRANTS

(Doctors’ Strikes)

All of us believe that no cause can be greater and nobler than the cause of saving a human life. However, the government may not subscribe to this view, as instead of creating avenues to address the causal factors of agonies relating to underserved patients and overworked doctors, the government resort to appease the doctors by promising to make special law of protection, which is absolutely a wrong assumption as at the root of doctors’ strike is the paucity of healthcare resources in the country.

The government need to identify the real issues behind doctors’ recurring strikes for bringing out the permanent solution of the problem instead of giving them lollypop of so-called protection law. The medical fraternity of late has made a practice to go on strike frequently on the slightest provocation or meaningless pretext, leaving behind thousands of critically ill patients to die mercilessly in the absence of medical care.

At the time of registration, each doctor takes the Hippocratic Oath, declaring, “ I solemnly pledge myself to consecrate my life to the service of humanity; I will practice my profession with conscience and dignity; the health of my patient will be my first consideration. I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient. I will maintain the utmost respect for human life from the time of conception.”

Whereas, there have been innumerable instances where on one pretext or the other, in total disregard to High Court and Supreme Court banning it, the doctors go on strike. At times ESMA has to be invoked, which too fails to bring back the doctors to work. Recently, there has been a spurt of cases of doctors going on illegal strikes, practising the institutional bias. Forgetting their commitment to Hippocratic Oath, doctors across the country resort to indefinite strike. To name a recent few, in March 2017, as many as 4,500 doctors in entire Maharashtra state had gone on strike to protest against the assault on colleagues by relatives of a patient. The six-day ordeal for patients at the public hospital came to end after the Maharashtra chief minister Devendra Fadnavis gave a warning to resident doctors to join work or face action. The expulsion notices had been issued but the same were condoned after the residents called off the strike.

In January this year, emergency services at Delhi’s Safdarjung Hospital were hit after the hospital went on strike following an assault on a doctor by a patient who happened to be the son of a Delhi Police head constable.

In June 2019, hundreds of thousands of people across the country were turned away from hospitals, clinics and laboratories in the result of an unprecedented nationwide week-long strike by doctors. About one lakh doctors across 17 states participated in the strike on the call of Indian Medical Association (IMA) which has a membership of around 3,50,000 doctors across the country.

A truce between the doctors and the West Bengal chief minister Mamata Banerjee reached on June 17, 2019. The strike was a fall out of an assault by relatives of a patient on doctors at the West Bengal government’s Nil Ratan Sircar Medical College and Hospital, after the patient died during the treatment.

On ‘Doctors’ Day’, July 1, a clash erupted between doctors and relatives of a patient at Delhi’s Bara Hindu Rao Hospital, when a patient Rajbala suffering from chronic kidney failure died during treatment.

On July 8, 2019, a doctor was attacked inside the ward of Delhi’s Lok Nayak Jai Prakash Narain Hospital, which led to a flash strike by the resident doctors. The strike was later called  off after Sanjeev Khirwar, Delhi’s Principal Health Secretary met the representatives of Resident Doctors’ Association and agreed to their demands including the deployment of marshals in the hospital.

On July 23, 2019, Lawyers Update attended the Press Conference of Indian Medical Association, where IMA President Dr Ravindra Wankhedkar and Dr R.V. Asokan, Hony. Secretary General, IMA (HQs) proudly annunciated that IMA has decided to oppose National Medical Commission Bill, 2019, and as such on July 24, 25 and 26 will carry out hunger strike by medical students in all medical colleges. On July 25, all 1700 local branches of IMA will burn the copies of NMC Bill, 2019.

On July 29, Delhi Andolan will be organised, in which the entire medical fraternity engaging more than 5,000 doctors will march towards Nirman Bhawan. The leaders of the doctors had no answers when asked about the suffering of patients during their proposed strike. Lawyers Update asked the leaders as instead of resorting to strike why don’t they approach the Supreme Court if they find NMC Bill full of arbitrary, discriminatory and fanciful clauses. Dr Asokan said that later on, they will take up this step too.

The IMA is the national body of more than 3.5 lakh allopathic medicine doctors with 1700 branches. IMA has since 2015 urged the centre to enact a law to ensure the protection of doctors from violence. As such, it has submitted a draft Bill, “The Protection of Medical Service Persons and Medical Service Institutions (Prevention of Violence and Damage or Loss of Property) Act, 2015”, for the centre’s consideration.

Accordingly, the Union health ministry has entrusted an eight-member sub-committee with the task of drafting a central law to check violence against doctors and other para-medical professionals. Union health minister Harsh Vardhan has strongly supported the proposed law.

Reacting adversely to proposed Bill, Professor of Law, Dr. Khan Noor Ephroz said, “The government is not moving in the right direction. It is beating about the bush or else hiding its incapability by appeasement tactics to silence the doctors for the time being. The health minister by promising to bring out the proposed law has written a wrong prescription for solving the critical problem.

Dr Khan Noor Ephroz pointed out that in Delhi, there is already a law in the name of ‘The Medicare Service Personnel and Medicare Services Institutions (Prevention of Violence and Damage to Property) Act, 2008”, but what benefit has it given to any body?

Dr. Khan argued that such laws besides being institutional biased, are one-sided and violative of Article 14. What is the purpose of such laws, when protection for every citizen including the doctors against assault, intimidation and all sorts of violence has already been provided in the Indian Penal Code?

Dr. Khan further said that the health ministry must realise that the real causal factors behind such nightmarish incidents are the absence of adequate medical services, a great shortage of hospitals, doctors and other medical facilities. The available public hospitals present a dismal picture, where heavy over-crowding of patients, long waiting queues for a check-up, multiple visits for want of investigations frustrate patients regularly.

Dr. Khan pointed out that the government instead of diverting the attention of doctors by offering to bring out an appeasement law of protection should focus on real issues, such as insufficient medical colleges; less number of seats; the number of hospitals and doctors disproportionate to the patient population.

Supporting Dr. Khan’s views, Dr. Yasir Islam of Delhi’s Suchita Kirplani Hospital, said that doctors never go on strike by choice. It is only when they find no other way to safeguard themselves from the probable assaults. In most of the cases, advance notice for the strike is given to authorities.

Dr. Islam further said that there is a big communication gap between the doctors and the relatives of the patients, especially the critically ill patients. The filling-up of the communication gap is the domain of counsellors.

For doctors and para-medics witnessing critically sick patients and mortality is an everyday affair. Whereas, for families who lose their member, it is the earth-shaking experience. In such a situation doctors and counsellors must give humane and compassionate support to the relatives. Practically speaking, hospital management should take precautions in such situations as they take precautions in fire or earthquakes safety.

Dr. Yasir Islam suggested, “In my opinion, officials responsible for hospital administration should be the management gurus instead of medical superintendents, who should focus exclusively on their profession. However, doctors should also be trained in soft skills. Finally, the adequate number of hospitals and availability of doctors is the right answer for under-serviced patients and overburdened doctors.”

Dr. K.K. Aggarwal, President, Heart Care Foundation of India, expressing his views through media pointed out that “There was hardly any mention of healthcare in the Union Budget presented by finance minister Nirmala Sitharaman. No significant announcements pertaining to this crucial sector were made. The only silver lining was that the Budget outlay for healthcare saw a 19% rise from Rs. 52,800 crore in 2018-19 fiscal to Rs. 62,659.12 crore in the 2020-21 fiscal.”

According to reliable sources, there is a big shortage of medical graduate and post-graduate seats. If 10 lakh candidates apply for admission, only 16,000 are selected. So there is a big possibility of corruption. The cost of medical education in India is very high; whereas, all over the world higher medical education is free of cost. In the result, brilliant students from poor families stay behind.

The privileged society does not ask the right question and the government does not come forward with the right solution. To escape from its incompetence, wrong policies and non-clairvoyance, government at the most promise doctors to make special laws, which is mostly irrelevant and irrational.

Due to inadequate medical services in India, every 12-minutes a pregnant woman dies. 3 lakh children die the day they are born. 1.2 lakh children die before celebrating their first birthday. 15% of women need a caesarean section. There is no adequate anti-natal check-up available. We need 2 lakh gynaecologists, we have 50,000 only. Half of them do not want to practice obstetrics as they do not want to be awakened during the night. Most of the gynaecologists live in urban areas; whereas, 60% of children are born in rural areas. We need 2 lakh anaesthetists; 2 lakh paediatricians, we have them less than 50,000. We need 1.5 radiologists, we hardly have half of them. On the contrary, the patient population during the years has increased manifold. How can it be possible for a few doctors to attend a large number of patients with the care they deserve for.

There are 11,57,771 allopathic doctors registered with Medical Council of India, of which around 9.26 million are in active service to treat 1.35 billion people. According to the World Health Organisation’s recommendations, the doctor-population ratio is 1:1000; whereas in India, this ratio is 1:1457.

Doctors have become habitual of going on strike on matters other than assault also. Acting on a petition filed by senior counsel, Prashant Bhushan, Hon’ble High Court of Delhi, in March 2008, had expressed serious concern over the spurt in strikes by doctors and sought an explanation from the Medical Council of India and the centre on this.

The strike-happy doctors have time and again been restricted by Hon’ble courts not to strike and abandon the work. The Delhi High Court in February 2011, had ruled that doctors at the All India Institute of Medical Services (AIIMS) can no longer go on strike. If they do so, they will not be only in contempt of court, but will also face the disciplinary action by the hospital.

Giving judgement on a public interest litigation, the court also directed the AIIMS to punish medical practitioners who had participated in the strikes that took place during the protest against OBC reservations in educational institutions in 2006 and 2007.

“It is obligatory on the part of the AIIMS authorities to see that no one in the institution shows any kind of deviancy by taking recourse to strikes, protests or demonstrations and he who engages in such activity would be liable for disciplinary proceeding and also for the contempt of this Court,” ruled the bench headed by the Chief Justice Dipak Misra. The court had also directed the health minister to constitute a committee to conduct an enquiry on the participants in the strikes.

“Thereafter, on such identification, proceed against them as per law,” the court said. Terming the strikes “illegal”, the bench noted that doctors, residents, interns, paramedical staff or any other person connected with AIIMS could not have gone on strike after exoneration by the apex court.

The court further slammed the AIIMS for not having taken action against the doctors. “The authorities cannot getaway by taking a specious plea or a mercurial stand that though there was a strike, yet they are not aware who was actually involved in the strike,” the the court said in its order.

“No authority, however high or low, can propagate for espousing a cause by way of strike or demonstration and no one can coerce the willing workers and the doctors to attend the patients,” the court said.

The court based its order on Article 21 of the Constitution which puts an obligation on the State to preserve life. “A doctor at a government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life,” the court ruled.

“Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life,” the court said. “No law can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession,” the court added.

In February 2016, The Youth Bar Association of India, had filed the petition in Delhi High Court against the MCD doctors’ strike. The doctors and nurses had gone on strike over alleged non-payment of their wages by Municipal Corporations.

Association’s President Sanpreet Singh Ajmani who filed the PIL had contended that doctors and nurses provide “essential services” and if the doctors and nurses go on strike, it would adversely affect the patients.

In June this year, the striking doctors approached the Supreme Court to pass directions for seeking greater security for doctors across the country. The SC’s Bench comprising Justices Deepak Gupta and Surya Kant found no urgency in taking up the petition, “List the matter after summer vacations before appropriate Bench.” The judges said in their order. When the petitioner Alakh Alok Srivastava, sought to persuade the Bench, not to wait for another incident to happen, the Bench observed, “Let it happen, we can’t pass an order that nobody should be murdered.”

The Bench asked how it could direct the police to provide security to doctors without ascertaining what is its strength in the respective states and whether it is feasible if strength is inadequate. “We can’t put other citizens to risk for the sake of protecting the doctors.”

Giving his views, learned lawyer Yawer Qazalbash  having to his credit 60 years of legal practice, said, “Hardly a fortnight not passes off during which news is flashed in the media circulating that some hospital had been vandalized and its doctors were beaten up on the allegations of their negligence, because of which someone under their medical care had died; and the relatives of the dead or the public had reacted in anger. As a chain reaction the doctors at large resort to go on strike en masse, perhaps to teach a lesson to all the concerned, resulting in deaths of more critically ailing patients.

Both the parties have various kinds of legal remedies open and available to them, but instead, both of them resort to unwanted violence of one kind or the other. Consumer courts are very strict in awarding penalties and compensations for negligent acts, found in medical facilities if allegations are found proved.

Whereas the doctors instead of reporting the matter to the police for hooliganism unnecessarily take the recourse to strikes. Commonly edgy mobs start violence on most trivial matters. The answer is proper training for inculcating compassion and decent social behaviour must be introduced at the earliest levels and emphatically implemented”, said Qazalbash.


Commenting on doctors’ strike, renowned lawyer Navin Jaggi and his associates Sayesha Suri and Aashna Suri said, “Doctors’ strikes should neither be morally acceptable nor be ethically allowable. It is like the paralysis of the health care system. The increasing cases of attacks on doctors by disgruntled relatives of the patients clearly show that there is a lack of security cover for them even after reporting various incidents. Doctors argue that they employ such activities when they feel hopeless and vulnerable and no one is listening to them. The government has long ignored their peaceful pleas. The government should be serious to identify and resolve the factors leading to such situations.

However, doctors shouldn’t be allowed to take away the emergency medical care in the same way as police and defence forces are not authorized to withdraw their vital services to the community. Doctors’ strike receives a great deal of criticism.”
“The doctors are explicitly forbidden from violating the Hippocratic Oath. While taking the Hippocratic Oath, it is a solemn promise that they will keep them away from harm and injustice and will tread with care in matters of life and death. When doctors go on a strike, they violate their Hippocratic Oath, and this misconduct is typically a matter of injustice not only to their profession but also to the whole society.”

“The profession of doctors is very reputable. They pledge to perform their duty of saving the lives of people as their priority. The doctors on strike are being deceitful to their profession and that too at the expense of the healthcare of common people who would suffer unnecessarily. The doctors should not go on strike leaving behind their patients struggling for life in the hospitals. People treat doctors like the second god. They should think from the perspective of those innocent patients and their family members who have to suffer without being guilty. Regardless of any condition, doctors have a duty of care and have a legal obligation to treat patients.”

“Poor class are the main sufferers of such strikes as mostly the poor patients seek free medical aid having no social security. They cannot afford to go to the private medical professionals who charge exorbitantly so they are the persons who suffer the consequences of the strike. Out of the doctors who go on strike, the majority of them are from government hospitals where poor people line up for treatment.”

“Doctors on strike are well aware that their absence could mean a serious shortage of treatment at the emergency health services, including taking care of accident patients, surgeries and providing post-operative care to those admitted in various hospitals and OPDs. Despite knowing all this they continue to remain on strike.”

“The government should take legal actions against the doctors going on mass strike causing death and aggravation of health of the poor and innocent patients. The doctors shall be liable for culpable homicide not amounting to murder. Their salaries should be deducted during the striking period. The government should invoke ESMA the moment it receives the news of the strike and take strict action against the striking doctors as per the orders of the Hon’ble courts from time to time”, concluded Navin Jaggi and his team.

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