Wednesday, September 1, 2010

Legal opinion regarding whether healthcare workers may or may not strike.

Facts
Healthcare practitioners may on occasion want to exercise their constitutional right to strike at the same time that persons want to exercise their constitutional right to access health care.

Issue
The issue is firstly, whether it is legal for healthcare professionals to strike and secondly, whether it is ethical for healthcare professionals to strike.

Rule of law
There are three areas of consultation which provide guidelines in this regard:

1. The Constitution of the Republic of South Africa
a) Chapter 2 of the Constitution comprises the Bill of Rights and Section 23 refers specifically to labour relations. Section 23 (2) (c) confers the right of every worker to strike.
b) Section 36 allows for the limitation of rights and requires that any restriction on a right must be reasonable and proportional in that the impact or extent of the restriction must match the importance of the right.
c) Section 39 (1) (a) contains an important instruction to judges who apply the Bill of Rights, requiring that when interpreting the Bill of Rights, the court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.
d) Section 11 confers the right to life to every person.
e) Section 27 (1) states that everyone has the right to have access to healthcare, including reproductive healthcare.
f) Section 27 (3) states that nobody may be refused emergency medical treatment.
g) Section 28 (1) states that every child has the right to basic healthcare services.

2. The Labour Relations Act
a) Section 64 (1) recognises the right of every employee to strike.
b) Section 65 (1) (d) (i) places a limitation on the right to strike if that person is engaged in an essential service.
c) Section 213 defines an essential service (in part) as a service which, if interrupted, endangers the life or health of the whole or part of the population.
d) Section 70 and 72 set out the procedures for the establishment of the Essential Services Committee and the determining of agreed minimum services to be regarded as an essential service.


3. Ethical Guidelines of the Health Professional Council of South Africa
a) Chapter One reminds practitioners that the right and privilege to practise their profession comes with moral and ethical duties to others and society
b) Chapter Two reminds practitioners that the bioethical principles of autonomy, beneficence, non-maleficence and justice are duties that healthcare professionals are never relieved of.

Application
1) The element issue is whether healthcare professionals may strike.
2) Legal reasoning method:
a) Using the Constitution
1. Section 23 confers inalienable right to strike.
2. Section 36 sets guidelines for limiting this right.
3. Sections 11, 27 and 28 confer inalienable rights on persons which are provided by healthcare professionals

b) Using the Labour Relations Act
1) Section 64 recognises the right of every employee to strike, but section 65 places a limitation on the right to strike if the person is engaged in an essential service.
2) While some services are specifically named as essential services in the Act, medical services is not one of those mentioned.
3) The Essential Services Committee can set out agreed minimum services to be regarded as essential services.

c) Using the Ethical Guidelines of Healthcare Professionals of South Africa :
No healthcare professional should engage in an action which would endanger the life of a person. Emergency treatment cannot be refused by a healthcare professional and neither should a healthcare professional prevent a person from accessing a healthcare institution.

3. Comparing the definition of the element issue with the facts:
Healthcare Practitioners have the inalienable right to strike. This right can affect the inalienable right that persons have to access healthcare.

4. Result of the comparison:
The right of healthcare professionals to strike needs to be balanced with the rights of persons to access healthcare. For this reason, a limitation of the right is required. Such a limitation should allow for a strike by healthcare practitioners while at the same time ensuring that clearly defined minimum essential services are maintained, so that no person is endangered or refused emergency medical treatment during the strike. Such clearly defined minimum essential medical services have not yet been defined by statute. In the absence of all healthcare work being declared an essential service, healthcare practitioners therefore may exercise their right to strike, but need to ensure that emergency services continue without disruption for the duration of the strike.

Conclusion
Human rights are basic and fundamental rights to which every person is entitled. The Bill of Rights applies vertically (between Government and citizens) and horizontally (between one private citizen or private body and another). The right of healthcare practitioners to strike needs to be balanced with the right of persons to access health care. Because the language in the Bill of Rights is broad, these rights need careful interpretation by judges. Reasonableness and proportionality are two central concepts to be applied by them. Based on all the above, a strike by healthcare practitioners is legal and ethical if it does not result in endangerment to life and refusal of emergency treatment

Whether the State could impose a blanket ban on strike action by healthcare professionals in the absence of a minimum services agreement is an issue that will probably only be resolved by a Constitutional Court challenge.

A strike by healthcare professionals will always be an emotional issue and if Healthcare professionals are to garner public support, the issues which lead them to strike should be issues which are meant to ensure a better healthcare service for all.