Advice to members when other health sector employees are on strike or take other forms of industrial action.
The issue of industrial action in the health sector is a vexed one. The question of our members’ obligations during industrial action by other health sector employees is one that we occasionally come across. The Association offers the following advice to members when faced with a strike or industrial action by other health sector employees. Note that parts of this advice relate only to doctors working in the public sector. If after considering this advice you have further questions you should contact the Association or the Medical Protection Society.
Since this advice was last issued the key change has been the enactment of the Health Sector Code of Good Faith as Schedule 1A of the Employment Relations Act 2000. The Code defines a category of ‘life-preserving services’ that must be maintained in the event of industrial action. Life-preserving services are discussed under ‘your employer’s obligations’ below.
Your obligations
Patient wellbeing is of crucial importance and you should do what you can to ensure that this is maintained. Doing so will meet your ethical and legal obligations.
However, legally and ethically, members must also take responsibility for their own health and safety. You should know your limits and should not work beyond them, to ensure you remain safe to practice.
As to how you respond to requests to do the work of striking employees that does not directly relate to patient safety, that is your choice. You do not have specific obligations to striking employees but it is worth considering how your actions may affect their ability to bargain collectively and reach a satisfactory outcome in their negotiations. You may wish to consider the following factors:
Your employer’s obligations
The primary responsibility for dealing with the consequences of industrial action rests with your employer. It is important to draw a distinction between life preserving services on one hand and the rest of the work of striking employees on the other.
Life preserving services
The Code of Good Faith for the Health Sector defines life preserving services as:
(a) crisis intervention for the preservation of life;
(b) care required for therapeutic services without which life would be jeopardised;
(c) urgent diagnostic procedures required to obtain information on potentially life-threatening conditions;
(d) crisis intervention for the prevention of permanent disability;
(e) care required for therapeutic services without which permanent disability would occur; or
(f) urgent diagnostic procedures required to obtain information on conditions that could potentially lead to permanent disability.
A DHB served with a strike notice is obliged to urgently arrange a contingency plan to ensure that life-preserving services continue to be provided. The DHB needs to take all reasonable and practical steps to arrange for continuing life-preserving service provision without the striking employees. This may include asking non-striking employees or contracting locums to perform the life-preserving services.
If the DHB is unable to provide life-preserving services without the participation of the striking employees it may request the union whose members are on strike to release sufficient striking members to provide the “life-preserving” services, but only to the extent necessary to provide these services.
Other duties
Your employer may ask you or other employees (or in some limited circumstances, contractors) to perform other duties normally done by striking workers. It may be that you will consider your professional and ethical obligations require you to undertake such duties. However unless you are ethically obliged to do this work, our strong advice is that you should refuse to do the work of striking employees. Doing otherwise may only serve to prolong the period of the strike: this is in no one’s best interest. Consider also the ‘golden rule’ that you should do unto others as you would have them do unto you.
If you feel obliged to agree to perform extra duties, you may negotiate a premium rate for this work, agree not to undertake other less critical tasks or both. The Association has assisted members in these negotiations in the past. You will also need to ensure that you continue to practice safely and with regard for your own health.
Performance of striking workers’ duties
The Association acknowledges the final decision is a personal one to be taken by each member. However as with many difficult decisions, it may be easier to make and sustain if it is taken in consultation with other colleagues in the department or the hospital.
Your decision should be conveyed in writing to the Chief Executive or other senior managers acting under their express delegated authority. Before sending this letter we recommend discussing a draft with either the Association or the Medical Protection Society.
The letter should clearly spell out the likely consequence for the organisation and patient care if the strike goes ahead or continues. It should also note the employer’s responsibility for preparing for and dealing with those consequences. The letter should also advise:
(a) That you will continue to do your best for your patients within the constraints imposed by the strike.
(b) What you are unable to do on account of patient safety and standards. This may require your changing or cancelling some of your usual duties (e.g. cancellation of lists or clinics; transferral of existing or new patients; refusal to admit new patients).
(c) What you will and will not accept responsibility for during the strike.
(d) The consequences in terms of patient care and safety if the measures outlined are not adopted.
(e) That you have informed the Association of Salaried Medical Specialists and/or the Medical Protection Society and noting at the bottom of the letter that copies have been sent to these organisations.
Revised and approved by the National Executive: 31 October 2007
Also refer to MCNZ’ Good medical practice http://www.mcnz.org.nz/Publications/Goodmedicalpractice/tabid/293/Default.aspx#core%20standards
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Advice to ASMS members on their rights and obligations to participate in or lead public debate and discussion on the state of New Zealand's health services in general and their employer's planning and delivery of health services in particular.
INTRODUCTION
Medical practitioners have ethical and professional obligations that may well override their duties and obligations as employees and state servants. However, as employees of District Health Boards or other health providers doctors have well defined legal obligations to their employers, which they should ignore only after careful thought and having sought advice from appropriate agencies.
Speaking out and participating in public discussion about health services and their delivery is not a simple right that every doctor may take for granted. In the past, when speaking out a doctor might simply invoke: their status as the patient’s advocate; their professional and ethical obligations; the Hippocratic Oath; or some other lofty justification. For the most part, Society accepted a doctor’s right to speak out on its behalf and were grateful when he or she did so. In the matter of health services and hospital care, doctors were generally accepted as their community’s guardians.
Subject always to the over-riding need to preserve patient confidentiality, by-and-large, speaking out was a matter of making a political point at the expense of the Government of the day, any one of a number of public agencies and the local health care providers or hospitals.
THE CONTEMPORARY LEGAL FRAMEWORK
The rules surrounding a doctor’s right to speak out and engage in public debate on health related matters are derived from a variety of sources, in particular:
THE KEY CONSIDERATIONS
Under the MECA
MECA clause 40 quite explicitly recognises your role as patient advocate; your responsibilities and obligations in relation to the Medical Council and its relevant policy statements and guidelines and your obligations in respect of the ethical codes and standards of relevant colleges and professional associations.
MECA clause 41 contains the express recognition by your employer of your right to comment publicly and engage in public debate on matters relevant to your professional expertise and experience.
MECA clause 42 deals with the somewhat narrower issue of serious concerns you may have over actual or potential patient safety risks and includes the procedures you should follow before speaking out on such specific matters .
Under the Code of Good Faith
Clauses 14, 15, 16 & 17 of the Code of Good Faith essentially replicate the rights you have under the MECA with the proviso that you must first raise with your employer any concerns you may have about their operations and allow your employer reasonable time to respond before going public.
FURTHER CONSIDERATIONS
As a general rule, neither an employer nor an employee should without reasonable cause conduct themselves in a manner which is likely to destroy or damage the relationship of trust and confidence that the law recognises an essential ingredient of any employment relationship.
Nevertheless doctors continue to enjoy widespread respect within the community and that respect, coupled with their contractual, ethical and other obligations to lead and participate in public debate on health matters is likely to ensure a great deal of protection when speaking out professionally and dispassionately. This will be the case even if their public comments might be construed as being critical of their employer or otherwise undermine public confidence in their employer’s operations.
The important point to remember is that you should not personalise your public comments and you should avoid direct or sharp criticism of your employer. Express your views and make your comments in a firm, professional and dispassionate manner.
Consult widely and speak collectively
You are more likely to avoid a personal and retributive response from your employer if you take steps to ensure wide support or “ownership” of the public statements and criticism you are about to make.
Ideally, if time permits you should consult widely with your colleagues before making your public statements and wherever practical the statements should be made on behalf of a group or organisation to ensure the individual doctor is one - removed from them and thereby protected from any critical reaction.
This will not always be possible; nevertheless such collegial support will add independent “objective” weight to the concerns being expressed.
ASMS recommendations in particular cases
If you believe that the standard or quality of care you and your colleagues are being called upon to provide has been or will be compromised by any action, (including the inadequate provision of staff and resources) or policy of you employer, we recommend that you:
Having decided to make your statement, we recommend you advise your employer what you are about to do and that you restrict your statement to your specific area of clinical responsibility and expertise; furthermore it should be couched in terms that reflect your responsibility to your patient(s) and the wider community.
Whenever possible such statements should discuss issues and not individuals.
If your statements are of a more general nature relating to funding or funding priorities, you should bear in mind that under the current funding regime, it is probably the planning and funding arm of the DHB, (your employer) that is immediately responsible for the concerns you are raising. Effectively, you will be criticising the decisions or actions of your employer.
Above all, you should ensure that any direct or indirect criticism of your employer, or a division of your employer, is couched in terms that are calm, professional and dispassionate.
Revised and approved by the National Executive: 30 August 2007
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In 1998 the Annual Conference discussed a request from the Tairawhiti Branch for the Association to support members who find themselves facing the prospect of onerous and brutal on-call schedules over and above contracted frequency because of staff shortages.
The Conference was very sympathetic to that request and resolved:
That the Association draw up a procedural pathway to follow in the event of a member being required to provide service cover over and above contracted frequency because of staff shortage. The pathway would define when and what steps should be taken when the member considers their health or their patient's health is threatened by the onerous service necessary through staff shortage.
Since then the National Executive has developed the proposal outlined below. It was presented and discussed at the Association's 1999 Annual Conference.
The Conference endorsed the general direction of the proposal and authorised its implementation subject to further consideration by the National Executive. In accordance with that decision we invite members to comment on the Procedural Pathway. In particular we would like your practical suggestions as to how the Association's members in larger hospitals and departments could assist their colleagues in smaller units when they have to deal with a shortage of senior staff.
Perhaps the most important step in the Pathway is the early identification of an impending problem. At that point colleagues, managers and the ASMS should be advised and consulted. When locums are in short supply the more time you have to find them or to develop other options, the better. It will also enable the Association to assist in negotiations for fair and realistic compensation for the onerous additional work.
As a rule of thumb, we would expect the salary of the "missing" SMO or the cost of employing a locum to be distributed as remuneration to those who plug the gaps and do the extra work. In a small but growing number of services and DHBs this arrangement has been accepted and such payments are now regularly made. The Association's advice is not to accept additional remuneration based on normal job sizing principles. That may have been acceptable a few years ago but it is no longer.
Some Applicable Underlying Principles
The Employment agreement
The provisions of the employment agreement will determine whether or not there is an obligation to be on-call. Some members are not required to undertake on-call duties.
Other agreements will expressly limit on-call obligations to a specified roster, e.g. 1:3.
Others have express provisions that limit the length of time a member will be required to cover a gap on the roster, e.g. 1:2.5 after 2 days; <1:4 after 1 week; 1:4 or greater after 3 weeks etc.
Others require negotiation and agreement before someone is obliged to do 1:1 call roster.
The Association will continue to submit claims in the course of CEC negotiations that seek to:
However where the agreement is silent or does not have a particularly strong clause on the subject the Association and groups of members have been quite successful in securing relief from or reasonable payment for additional and onerous on-call duties.
Advice To Members - A Procedural Pathway
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Policy Statement
Adopted by the ASMS Annual Conference November 1999
Subject to its Rules, the Association will represent members in respect of disputes arising from their employment contracts, on the following basis:
Representation
Using its best endeavours and by taking all reasonable steps, the Association will represent a member in negotiations with their employer or in mediation, arbitration or other legal proceedings;
The Association will closely consult the member on the direction and planning of the claim and seek the member's prior approval for all significant steps taken in pursuit or defence of the claim;
A copy of this policy will be given to and discussed with any member who seeks representation on a matter that is likely to result in legal proceedings, before those proceedings are initiated or occur;
Any dispute that might occur over the application of this policy statement will be referred to the National Executive.
Responsibility for Costs
The Association will normally meet its own costs in representing a member, including any filing fees and the usual disbursements associated with any particular proceedings;
However in a case that may have special requirements, including the calling of expert or numerous witnesses, the preparation of special reports or the carrying out of special investigations, after consulting the member concerned the National Executive may require the member to contribute towards the cost of those special requirements;
The Association may, in its absolute discretion but under the direction of the National Executive, seek professional advice or other assistance from a barrister, solicitor or other advocate;
Any order for costs made in the member's favour in the proceedings or any negotiated allowance for costs in a settlement package shall be payable to the Association, as a contribution towards its costs in bringing the proceedings;
The Association shall discuss with the member concerned and seek agreement in advance as to the responsibility for paying any costs that may be awarded against the member, if the proceedings are unsuccessful.
Control of the Case
If there is disagreement between the Association and the member over any step to be taken in pursuit of the claim, including a decision to seek a settlement or the terms on which a claim should be compromised or settled, the Association reserves the right to cease representing the member in respect of that claim;
Appeals
If the proceedings brought on behalf of a member are unsuccessful at first instance, the Association is not obliged to continue to represent the member or meet the costs of doing so in any appeal that the member may wish to take;
However following discussion with the member concerned, the National Executive may agree to continue to represent or otherwise assist that member with an appeal, against a first instance decision, on such terms and conditions as the National Executive considers reasonable in the circumstances.
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