A distinctive ethics

There are two intuitive ways in which strikes by doctors are ethically distinctive. The first is the scale of the risks which are in principle involved: there may be far more serious consequences to suspending medical care than, say, public transport or postal services. In practice, when emergency care continues to be provided, the best evidence currently available suggests that doctors' strikes are not dangerous.2 ,3 Indeed, on the day of the English doctors' strike on 21 June 2012, inhospital mortality rates for admitted patients fell slightly for both elective and emergency care, repeating ‘the paradoxical pattern that mortality is either reduced or stays the same’.4

The second is the need to safeguard the patient–doctor relationship, ‘both now and for the future’.5 Besides the stakes involved, that relationship is precisely what makes the medical profession different from many others: maintaining trust and respect is important in medicine in a way that is simply not the case elsewhere. In Britain, the General Medical Council details how doctors who value that relationship are ‘competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law’.6 In the USA, the American Medical Association lists a comparable range of demands, including that doctors provide care ‘with compassion and respect for human dignity and rights’ and, ‘while caring for a patient, regard responsibility to the patient as paramount’.7

As it happens, neither of those two distinctions demands that strikes be justified only by reference to patient outcomes. A strike should be less easy to justify the greater the threat which action poses to patients' trust in their doctors, but if patients understood why doctors were striking and were not dangerously disturbed by their reasons for doing so, it is far from obvious that it should matter in any additional way whether long-term patient well-being was the motive for the strike. The literature is full of claims that the ethics of doctors' strikes is more distinctive still—that strikes fall ‘uncomfortably close to conflicting with the primary role of the doctor’,8 or that the patient–doctor relationship is in some mystical way ‘sacred and ennobling’9—but it is short on substantive arguments for it being so. My suggestion here is that we do not have obvious reason to expect it to be more distinctive: the two points above capture what intuitively sets the medical profession apart.

Developing a framework

One of the best theoretical treatments of the ethics of doctors’ strikes is a paper by Mpho Selemogo, published in the Indian Journal of Medical Ethics in early 2014.10 Asserting an analogy between the intentional suspension of medical care and military conflict, Selemogo draws heavily on Thomist ‘just war’ or jus ad bellum theories to develop six ethical and political theoretical conditions for legitimate industrial action.

From an academic perspective, the advantage of the connection Selemogo makes is the extensive literature on just wars which is brought within easy reach. The disadvantage is that Selemogo's own theory, at least, either ignores or assumes away that in-principle distinction between the questions of how one should conduct oneself while working as a doctor and when and how one can suspend that work.

Selemogo does not trouble to argue why, in ‘the healthcare context’, strikes can only be justified by desires ‘to confront a real and certain danger to the health of the population’. Instead, he goes so far as to suggest that disputes over pay ‘constitute a just cause only if the wages of the doctors can be shown to be so poor as to compromise public health’. Yet if strikes, unlike wars, can be conducted without real threats to human safety, then ‘why shouldn't doctors have the same employment rights as other workers?’11 Selemogo's ethics of doctors strikes seem those of medicine reimagined as monasticism, resting on something like ‘a somewhat antiquated myth of sainthood’ and all-encompassing idealism.12 ,13 Nevertheless, the other five of his six ‘just war’ criteria have at least some claim to be independently plausible, and it is not obvious that the failure of the militaristic analogy extends to discredit them too.

The first is that strikes should be proportionate: they ‘should not inflict disproportionate harm on patients’, and hospitals should as a minimum ‘continue to provide at least such critical services as emergency care’.10 Since strikes can be and have been conducted safely, it is not implausible that they can be proportionate even if that constraint is challenging to define precisely. Second, there should be a reasonable hope of success, at least in the minimal sense that—however tough the political rhetoric—strikes should not be obviously futile. Third, it should be treated as a last resort: ‘all less disruptive alternatives to a strike action must have been tried and failed’, including where appropriate ‘advocacy, dissent and even disobedience’.

Selemogo's final two criteria relate to how legitimate industrial actions are coordinated and communicated. Strikes should, where possible, be organised through a body which can ‘be reasonably thought to have the legitimacy to act on behalf of doctors and project their interest’. In the case of the recent English junior doctors' strikes, that body is both politically and legally the British Medical Association (BMA), and the British Dental Association (BDA) for striking junior dentists. The last criterion is that the relevant body has made ‘a formal public declaration of the intended strike’—enabling patients to prepare for the disruption, and affording doctors' employers a final chance to compromise—and that the body has attempted ‘to delineate for the public the moral justification of the strike action’.

The injunction to safeguard the patient–doctor relationship feeds into the first and last of the conditions above: proportionality, and adequate communication. The need to protect such relationships does not self-evidently rule strikes out or mean only patient outcomes carry any ethical weight, but it is an essential factor which distinguishes the calculus for doctors' strikes from those in other industries. It need not be necessary that majorities of service users support the industrial action, but it does clearly matter whether patients' trust and faith in their doctors is put under threat by any strike proposed. Effective communication of the reasons for and details of any action is plausibly a vital element in the defusing of such risks.

Junior doctors' strikes

Toynbee, Al-Diwani, Clacey and Broome reached the conclusion in this journal that the recent strikes by English junior doctors were most likely morally permissible.1 They distilled the requirements for ethical industrial action down to three: that all patients ‘still have access to emergency care’; that maintenance of patient well-being be ‘a goal’; and that strikers believe ‘that all possible other forms of communication have failed’. That third condition translates straightforwardly enough into the framework proposed here—strikes ought to be viewed as a last resort—and the first two are derivatives of a criterion of proportionality. Taken independently of the rest of that paper, however, what those requirements do not capture is how the permissibility of a strike might vary with both the seriousness of the issues disputed and the likelihood of industrial action affecting the dispute positively. On the framework suggested, it also matters first how and by whom strikes are coordinated, and second how effectively the details of and justifications for industrial action are communicated.

The question of whether the recent strikes have been legitimately organised seems straightforward enough to affirmatively answer. The coordinating body is the BMA, the trade union and professional association for British doctors. The BMA first balloted junior doctors in England on a proposal of industrial action in November 2015, with 98% of those voting stating that they were ‘prepared to take part in industrial action including strike action’.14 The leading industrial relations barrister, John Hendy, rebuffed a suggestion by a National Health Service (NHS) Trust that participating in a strike might be nevertheless unlawful.15 It is also clear that the BMA has taken an exemplary approach to communicating the reasons for and details of the action taken, aided by substantial—if declining16—media coverage.

Despite the British government's ongoing threat to impose the new contract at the heart of the dispute, it has never been self-evident that strikes could not pressure the Department of Health into compromises. Indeed, scheduled strikes were cancelled in both January and early December because of indications that the Department was newly willing to negotiate.17 ,18 Threats of industrial action have also successfully drawn public attention to the dispute. In an opinion poll by YouGov at the beginning of February, 45% of respondents believed the government was ‘most to blame’ for the ongoing conflict, with only 12% making that assertion of the BMA.19

The hardest question to answer about any industrial action is whether it is proportionate, for the simple reason that it seems to demand an assessment of the dispute itself. Consider, however, how plausible it is that the 99.4% of junior doctors on a 76% turnout who voted in favour of some form of industrial action in November were deluded en masse about the reasonableness of their position.14 Those figures do not prove beyond doubt the propriety of any action, but they make a compelling prima facie case for the existence of robust arguments in the BMA's favour. As YouGov's Will Dahlgreen has noted, majority public support for strikes ‘is relatively rare’,19 and yet as of the end of March 2016, the public supports strikes by junior doctors which do not affect emergency care by 59–23%.20 Even among voters for the governing Conservative party, opposition to such strikes outnumbers support by only 1:0.8; by contrast, opposition to 1 day of teachers' strikes in March 2014 stood at 1:0.6 among the population at large, and at an overwhelming 1:0.1 among Conservative supporters.21

Toynbee et al1 note how junior doctors ‘face increasing debt from tuition fees and student loans, significant real-term reduction in wages, no real control over their hours and increasingly intense and unsupported roles where the outcomes, patients’ well-being and lives for which they are responsible, are increasingly out of their control’. The BMA has further claimed that some of the government's proposals have, besides being ‘unfair for doctors now and in the future’, also been ‘unsafe for patients’,14 ,22 with the supporting BDA emphasising that any supposed restrictions on safe working hours, ‘no matter how good they may seem on paper, simply won't have any teeth’.23 Most recently, the Department of Health's own analysis of the disputed contract's likely impact has suggested that it may adversely affect women, carers and those who work part-time.24 ,25 There are here ample bases for legitimate industrial action if it can be carried out safely.

Employers' responsibilities

The first aim of this article has been to offer a framework for constructive and rigorous discussions of the ethics of doctors' strikes, beginning with an in-principle distinction between the questions of how one should conduct oneself while working as a doctor and when and how one can suspend that work. The second has been to explore how that framework applies to the contemporary British case of strikes by English junior doctors, with my suggestion being that those strikes do meet all of the criteria proposed.

Many debates about the ethics of strikes stop there. I want to suggest, in closing, that this is a mistake. In discussing what was distinctive about the ethics of doctors' strikes, I focused on the need to safeguard doctors' relationships with patients. It is vital that health service users are confident in their doctors' integrity and competence.

Doctors are by no means unique in having the capacity to undermine that crucial confidence; indeed, in the context of an industrial dispute, they may not even be the most likely to do so. How doctors' industrial opponents—primarily their employers—choose to frame both the terms of the dispute and doctors' morals and motives is a distinctly medical ethical issue: effective medicine's own needs and aims may be alarmingly menaced.

Consider, for example, the claim that English junior doctors risk serious harm to patients by taking industrial action, which has been made—among others—by the Health Secretary,26 the Prime Minister's office27 and an influential Conservative pressure group.28 The implication is that doctors are being reckless with patients' welfare: an assertion which, if made from a position of visibility and authority, has the potential to impact how patients view their doctors. In reality, action is carefully planned so as to minimise such risks, and—as noted—the best available evidence does not undergird those concerns.2–4

Consider also the open letter sent by the medical director of NHS England, Bruce Keogh, which was widely criticised for attempting to connect strikes by junior doctors to vulnerability in the event of a terrorist attack. Two months after that letter was sent, The Independent revealed that the text had been negotiated with the Department of Health, who had encouraged that it be as ‘hard-edged’ as possible.29

It is hard to conceive of an ethical defence for such media strategies. If, however improbably, they were to weaken rather than harden doctors' resolve in their dispute, the mechanism through which they would do so would be that of public shame: of making doctors as a group seem negligent rather than caring, or mercenary rather than vocationally devoted, and in this way threatening the bases of the patient–doctor relationship. Employers' responsibilities do not end at the negotiating table, and we need to make it clearer that this is true.