Journal of medical ethics, I977, 3, 76-82

Strikes and the National Health Service: Some legaland ethical issues

Gerald Dworkin Faculty of Law, University of Southampton *

This paper is sadly opportune. The general public isangry and bewildered if not hurt by the variety ofstrikes which are brought more or less forcibly totheir attention. People used to understand what laybehind a strike - a demand for more pay, betterconditions - but today a political element oftenintrudes, and it is this that worries those who askthemselves whether this or that dispute is eitherlawful or morally acceptable.

Professor Dworkin, a lawyer, first sets out thelegal issues surrounding strikes and then advancesthe ethical arguments, closely relating them to thelegalframework. The most interesting part of thepaper, however, may well be that devoted to themoral obligation of example, in particular theexample to be set by members of the medicalprofession and by all those caring for the sick. Aspublic attitudes to industrial disputes 'become dulledand quiescent' it is absolutely necessary that thereshould be a reappraisal of the moral standards of thepast which coincide with a respect for the law. In thelast century the term 'anomie' was used to describea 'society which has shaken off its former restraintssuch as religion, respect for law and order and adefinite moral code as to what is right and wrong'. Weare living in that sort of society today, and one neednot be a professional 'ethicist' to recognize the signs,and hopefully, to workfor the return of 'ethical' values.

The object of this paper is to examine the legal andmoral arguments concerning strikes within the medi-cal profession for the purpose of maintaining thatthere is no adequate justification for such action. Asa preliminary, however, it is necessary to mentionsome of the arguments which are usually advancedby those who advocate or tolerate 'industrial action'- in itself a strange expression in health matters. It ispossible to acknowledge, certainly for presentpurposes, that the medical profession has over-whelming reasons for the anger and bitterness aboutthe way it has been treated by Government, andthat Government must bear much of the blame forthe very damaging confrontations which have takenplace in recent years. It has been argued thatindustrial action has only been taken reluctantly* This paper is based on a contribution to a symposiumof the Liverpool Medical Group: ' Should we strike?the health workers' dilemma', on I9 October 1976, andis not written in any National Health Service capacitywhatsoever.

and late in the face of extreme provocation byMinisters of State; that the medical profession haslost confidence in Government; that, at the mostimpersonal level, the whole future and freedom ofthe medical profession is at stake; that, at the morepersonal level, the morale of the profession is verylow as a result of its treatment in connexion withpay and conditions of work. That industrial actioncannot simply be condemned out of hand as whollyirresponsible may be seen by the fact that even theBritish Medical Association has given it a seal ofapproval. Further, there is nothing unique aboutsuch activity in our modern society. Thus, in Canadain the early sixties, there were doctors' strikes inSaskatchewan over the development of its healthservice; more recently, in the United States, therehas been a major strike in New York over long hoursand working conditions, and in California over thesignificant increase in damages awarded in mal-practice actions and the consequential, yet startling,increase in malpractice insurance premiums.

It is also necessary to acknowledge the unhappytruth that in today's sick society the process ofconfrontation and the use of industrial force aremore persuasive bargaining instruments than welldocumented, logical reasoning, and that thequalities of restraint and responsibility receive littlematerial recognition.The case against industrial action is primarily

ethical, the role of the law being limited, ambivalentand potentially abrasive. However, the legalposition merits consideration in order to set theethical arguments in perspective.

The legal positionTHE CRIMINAL LAWThe harsh nineteenth century anticombination lawshave been transformed during the course of thiscentury so that today most genuine industrialdisputes are not without more, unlawful, and strikerswho observe certain minimum guidelines are neithercriminally nor civilly responsible for the conse-quences of their actions. This so-called, thoughstrictly inaccurate, 'right' or 'liberty' to strike hasbeen won by most employees. However, untilrecently, there were certain groups who had beenexpressly prohibited from striking, namely, thearmed forces, the police, merchant seamen andpublic utility workers. The reason for singling out

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

Strikes and the National Health Service: Some legal and ethical issues 77

these groups was, presumably, the preservation oflaw and order and the essential functioning ofsociety, although there is no reason why othersections of society capable of bringing the countryto its knees might not also have been so included.Whether or not this illogicality was recognized orwhether it is simply a result of changing attitudes,even this small group of employees with no strikerights is diminishing. The criminal provisionsconcerning merchant seamen who take strike actionwere removed in I970, and gas, electricity and wateremployees were given their legal freedom to strike in197I. Also, there have been murmurings fromwithin the police force in recent months suggestingthe need for a right to strike. The only otherlegislation directed at specific groups is the AliensRestriction Act I9g9 which makes it a crime for anyalien to 'promote or attempt to promote industrialunrest in any industry in which he has not beenbona fide engaged for at least two years'. Thisprovision, passed soon after the Russian Revolution,is anomalous and unused, though in theory itmight be applicable to a health service situation!

Whilst there is no legislation directed specificallyagainst health service employees, the relevantcriminal provision which applies to them, as well asother groups, is set out in section 5 ofthe Conspiracyand Protection of Property Act I875: 'Where anyperson wilfully and maliciously breaks a contract ofservice or of hiring, knowing or having reasonablecause to believe that the probable consequences ofhis so doing, either alone or in combination withothers, will be to endanger human life, or causeserious bodily injury, or to expose valuable property... to destruction or serious injury, he shall onconviction ... be liable to pay a penalty not exceed-ing £20, or to be imprisoned for a term not exceed-ing three months. . .'. Thus, it is a criminal offencefor any health service employee wilfully andmaliciously to break a contract where there is a riskto a patient's life or limb.The Royal Commission on Trade Unions and

Employers Associations" in I968 could not traceany prosecution for an offence under this sectionand considered the possibility of repealing it.However, it concluded that it might be unwise torecommend this, since this would involve 'the riskthat it might be construed as an express licence to dothat which the ciminal law now forbids'. Eventhough there may have been no prosecutions it isarguable that the section stands and operates as adeterrent to certain employees, but this is unlikely.There are also some misconceptions about the scopeof the provision and the nature of strike action.The section is very limited in its operation becauseit applies only to those situations where a strikeinvolves the breach of a contract; it does not applyto industrial action which falls short of an actualbreach. Hence the development offorms ofindustrialsabotage which are within the legal scope, but not

the spirit, of most contracts of employment -the'work to rule', the 'work to contract', the refusal towork overtime hours, the letters of resignationfrom the health service.

In his Note of Dissent to the Royal CommissionReport1, Andrew Schonfield advocated a morerealistic and less technical approach and suggestedthat the criminal penalty should apply to peoplewho act dangerously, regardless of whether they areformally breaking their contracts or not. It 'wouldseem to be a valuable contribution to our laws tomake it clear that in our kind of society, in whichpeople are increasingly dependent on the punctualperformance of services by one another, the duty toavoid doing people or property serious damagewhen the risk is clearly apparent is what counts -regardless of the precise nature of the contractualobligation undertaken in one's job ... [O]rganisedworkers who contemplate lightning strikes will haveto think carefully about the effect of what they doon the ability of ordinary people to look after them-selves without danger to life and limb when aparticular service is suddenly denied them. This isnot an argument for the total prohibition of the useof the strike weapon by certain workers simplybecause the service which they supply is one whichpeople cannot do without, even during a shortperiod. It is, however, reasonable to demand...that the enterprise supplying the service concernedshould be placed under an obligation to do every-thing possible to ensure that its denial through strikeaction causes the minimum of physical harm toconsumers.... The trade union involved would bebound not only to refrain from lightning strikes of adangerous character, but also to avoid impeding theemployer in his efforts to minimise the risk tolife and health resulting from a stoppage whichoccurred after due notice had been given.' MrSchonfield then pertinently suggests, by way ofexample, that in a strike of nurses in a hospital thetrade union, or any other group of persons, wouldcommit a crime if it impeded the efforts of themanagement to mobilize a skeleton staff ofsubstitutes to carry out an emergency operation.These comments have much to commend them,particularly in attempting to create a balancebetween the right to strike and the duty to avoidharm; but they were made, of course, before theIndustrial Relations Act I97I and its subsequentdefeat by the unions and repeal. Much industrial-relations blood has been spilt since then, and anyattempt to widen the ambit of the criminal law,whether or not theoretically it might achievedesirable ends, is simply not realistic in the presentpolitical climate.The value of legislation such as section 5 of the

Conspiracy and Protection of Property Act I875was, until about a decade ago, simply to bolster up aconvention that certain classes of employee, althoughfree to take many kinds of industrial action, simply

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

78 Gerald Dworkin

did not do so. These groups included teachers, bankemployees, firemen and, of course, health serviceemployees. Such a convention has now virtuallydisappeared. Thus, one is now beginning to see, orsee threats of, strike action in the health servicewhich do in fact involve unlawful breaches ofcontract; the pretence of acting irresponsiblywithin the terms of one's contract is being aban-doned more frequently, for it is clear as a matter ofpractical politics that any criminal sanctions whichdo exist in a health service strike situation are notlikely to be exercised. The conclusion must be thathealth service personnel are not too concerned bythe criminal law when considering industrial action.To that it will be necessary to return later.

THE CIVIL LAWThere are few, if any, reported cases where patientshave sought compensation in the courts for injuriesthey have suffered as a consequence of industrialaction, but it is possible to visualize such actionsarising; English patients, though not especiallylitigious, are becoming more so, particularly with aslight increase in medical frankness, legal aid andthe extreme examples of United States medicallitigation to support them. Although there isalways the difficult problem of establishing causalconnexion between strike activity and a patient'shealth, the latter may claim that he has beenharmed in a number of ways. For example, he mayhave received no, or inadequate, attention duringthe dispute; treatment may have been delayed,postponed or cancelled to his disadvantage; he maysuffer severe emotional distress if, as a privatepatient, ancillary staff refuse to feed or attend onhim. A battery of causes of action are notionallyavailable to such a patient, and it is a fact that theprincipal form of sanction against strikes in thiscountry has been by way of civil actions for dam-ages. Over the years, however, trade unions andtheir members individually have had specialprotections conferred upon them. The politicalbattles of recent years have produced severalchanges in the detail of the law, but the presentposition, as contained in the Trade Union andLabour Relations Acts I974 and I976, can besummarized very shortly. First, the trade unionorganizations are given a blanket immunity from allactions in tort, that is from civil actions such asnegligence, conspiracy, intimidation, defamation,etc. But this immunity is cut down with regard toactions brought in respect of negligence, nuisanceor breach of duty resulting in personal injury(which includes any disease and any impairment of aperson's physical or mental condition) to any personor interference with property. In these cases thetrade union will avoid liability only if the actcomplained of was done in contemplation orfurtherance of a trade dispute. Secondly, individualsare in general immune from liability in tort for any

consequences of acts done in the contemplation orfurtherance of a trade dispute.

In short, then, the key to liability turns on whetheror not the patient suffered damage 'in contemplationor furtherance of a trade dispute'; a person will onlybe liable if the industrial action goes beyond a tradedispute and is, for example, politically motivatedand not concerned broadly with terms and condi-tions of employment. What industrial action in thehealth service is or is not protected as a trade disputeis not always clear, but it should be noted that thestatutory definition of 'trade dispute' is very wideand includes certain kinds of 'sympathetic' indus-trial action. There are many gray areas. There islittle doubt that junior hospital doctors takingindustrial action in connexion with pay and hours ofwork, or hospital consultants about the withdrawalof pay beds, are involved in trade disputes. Thefact that political arguments are intermingled wouldnot necessarily prevent the action being a tradedispute. If action is essentially political in nature,for example, a strike to demonstrate solidarity withthe workers in Ruritania, then clearly it is not a tradedispute. More arguable, however, are cases wherehospital workers refuse to tend pay-bed patients inNational Health Service hospitals, or industrialaction by doctors who are protesting in general atstate interference with the independence of themedical profession. These are less likely to beregarded as 'trade disputes'. Paradoxically, themore doctors protest that their actions are notconcerned with pay or conditions of work but, morealtruistically, with the fight against political inter-ference, the more they are arguing themselves out ofthe protection given to trade disputes.As with the criminal law, so too with the civil law,

no great deterrent presently exists in practice.

The ethical argumentsThe arguments against industrial action within thehealth service rest primarily on ethical grounds.There are, in fact, two kinds of obligation which areowed by the medical profession, and each will bediscussed in turn.

THE PROFESSIONAL MEDICAL OBLIGATIONIt is scarcely necessary to refer to the fundamentalmedical ethic expressed in the Hippocratic oath thatphysicians must act for the benefit of their patientsaccording to their ability and judgment and not fortheir hurt or for any wrong.

In most industrial disputes between employersand employees there are repercussions, sometimesserious, on innocent third parties and sometimes onthe country as a whole. The typical reaction of thestriker is to say that he is sorry that innocent peopleare being hurt, but that it is an inevitable conse-quence of the action against the employer. Weknow, of course, that usually such an argument isnonsense, since the striker must cause, or threaten

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

Strikes and the National Health Service: Some legal and ethical issues 79

to cause, harm to third parties in order to force theemployer to yield. It is not suggested that thiscalculated, callous approach exists to the samedegree in health service disputes. There is nointention deliberately to harm the health of un-involved patients. Equally, however, it is difficult toaccept the assurances of health service strikers thatevery care is taken to ensure that patients do notsuffer. One has only to look at the kinds of actiontaken in recent times to realize that accident andemergency departments ofhospitals have been closedfor weekends; outpatient appointments have beenpostponed and cancelled; waiting lists for appoint-ments and operations have lengthened, the latterdelay costing lives in the view of some consultants,eg, correspondence in The Times2. It surely must beimpossible objectively to deny that grief, distress,physical harm and, almost certainly, unnecessarydeath must occur as the result of industrial actionin the health service. In spite of this, those whofavour industrial action attempt to salve theirconsciences by proclaiming that patients will not beallowed to suffer, although they may be inconven-ienced; that emergencies will be dealt with; that adistinction can be drawn between disruptive actionaffecting administration, which is justifiable, andaction affecting patients' health, which is not. Thelatter distinction has been given additional weightby the fact that the British Medical Associationdeveloped a sanctions plan3 based upon it. 'Whenthe BMA is in serious dispute in some matterrelating to the NHS sanctions will be organized.In general they are designed: (a) To affectadministration rather than clinical care...' How-ever this aim was belied by some of the detailedstatements regarding non-cooperation: '(9) Doctorswill be recommended to suspend or restrict allservices and facilities which they normally provideby goodwill over and above their contractualobligations. Injured and acutely ill patients will ofcourse continue to receive the highest priority, andin many cases their treatment will occupy the wholeof the doctor's contractual time. However, thereneed be no delay and inconvenience in the treat-ment of non-urgent cases because doctors will offertheir services for non-contractual work... (io)Hospital doctors will be recommended to limit theirservices to those which can be properly performedwithin the notional half-days on which that re-muneration is based . . .The British Medical3Journal also seemed to accept

the need for a sanctions plan but initially glossedover the essential distinction. 'The sanctions, whichare divided into two stages (non-cooperation andthen withdrawal from the Service) are aimed athurting doctors' employers. It is not the intentionto harm patients but it would be naive not to expectinconvenience to them. For this reason manydoctors will instinctively dislike sanctions. Adistinction may be drawn, however, between

inconveniencing patients and imperilling theirhealth. Regrettably, the situation in the Servicehas been allowed to deteriorate to an extent whenmore and more doctors may see the use of sanctionsas the only course left to them. . . '4 However, theBritish Medical Journal became somewhat morerealistic in a later editorial: 'This restriction of theirwork by hospital doctors ... represents a regrettabledecline in professional self-esteem which couldpermanently damage relations between doctors andthe public.... There are very real practicaldifficulties for the doctor of conscience who tries toapply the doctrine of "emergencies only".... Theunpalatable truth... is that the more effectiveaction of this kind is made, and hence the stricterthe interpretation of "emergency", the greater therisk becomes that patients (and doctors' professionalconsciences) will suffer.'5Thus, the attempt to separate administration

which does or does not affect patient care may bepossible, although it is difficult; the attempt torestrict treatment to emergency cases only is in itselfa breach of the basic professional ethic, and theattempt to define an emergency case in a rational andcaring way almost impossible. Lord Amulree, in aHouse of Lords debate, expressed the view of manyin the health service that 'the decision to treatemergencies is ... humbug,because one cannot reallytell what is an emergency'.

Another argument, remniscent of an arid andfortunately abandoned piece of law known as 'thelast opportunity rule', attempts to shift the responsi-bility for the consequences of a dispute to the otherside because, philosophically, it is their refusal toyield which has 'caused' the harm. Thus, in thejunior hospital doctors' dispute a spokesman sug-gested that if patients die as a result of their actionthe blame would lie with the recalcitrant Mrs Castle.This shop-floor sophistry was denounced effectivelyin a letter by Dr F H Tyrer6: 'We have becomefamiliar with the utterances of terrorists whocontend that if they shoot a hostage or blow up anaeroplane the fault will be that of whoever refusestheir demands; they will be echoed by strikers whoblame their employers for damage which theythemselves wilfully inflict on the public. Whendoctors begin to use the same language to justifysimilar acts - for ethically they are similar, and thejustice of the grievance is irrelevant - it becomesnecessary for the profession to repudiate them in itsown interests and that of society. The consequencesof any action are the personal responsibility of theindividual performing it, provided it is undertakenvoluntarily.'

This last comment is also applicable to those inthe health service who would still doggedly denythat harm to patients is intended or has occurred.Whatever has happened, the risk of such harmoccurring during industrial action is very high, andin both moral and legal circles it is difficult for the

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

8o Gerald Dworkin

purposes of attributing responsibility to differentiatebetween harm caused by intentional conductdirected at patients and that caused by recklessbehaviour.

In recent years increasing interest has been shownin a wide variety of ethical medical problems: whenis a doctor justified in turning off a respirator; iseuthanasia justifiable; when is it justifiable to take akidney from a dying or dead potential donor; whenis life extinct ? In all these cases one is struck by thevery great concern shown for human life anddignity and the relief of suffering. It is, therefore, themore surprising that a profession which sets somuch store on the ethical obligations towardsindividual patients can contemplate disregardingsuch standards when a wider, less personallyidentifiable group is at risk. The difference is one ofdegree not of kind, and the patients who areaffected do not appreciate any distinction.

THE MORAL OBLIGATION OF EXAMPLEThe second ethical argument against a strikingmedical profession is perhaps a less familiar one.Disputes in the health service must be seen in thewider context of the industrial problems of ourpresent society. Until the last year or so, when oureconomic ills have, perhaps temporarily, introduceda more sombre note of reality towards industrialaction, the I970S have seen a marked and potentiallydangerous shift in the attitude of powerful groupstowards the hitherto generally accepted legal andmoral obligations we all have as citizens of a so-called democratic society.When the Royal Commission on Trade Unions

and Employers' Associations' pronounced, quitecorrectly, that it had been the traditional policy ofthe law as far as possible not to intervene in thesystem of industrial relations and that this policyshould continue, it was not perhaps realized thatmany people within the trade union movementincorrectly began to interpret this as meaning thatthe trade unions were beyond the law. A number ofevents leading up to, and following the IndustrialRelations Act I97I, contributed to the increasingreadiness to defy the law on political grounds. Thus,the major docks dispute in 1972 led to the jailing offive shop stewards - the Pentonville Five - forcontempt in refusing to obey court orders; thesedockers were shortly afterwards released, defiantand unrepentant, legal sanctions having been shownto be ineffective against them. Such a seeminglysuccessful exercise in disobedience towards the lawencouraged unions to react vigorously against thejailing of the violent Shrewsbury pickets in I973when even Mr Edward Short, a Cabinet Minister,was reported as saying that no one could rest 'whiletrade unionists are in jail'. Sentiments such as theseno doubt gave strength to a growing left-wing feelingthat it was not wrong to defy laws enacted by aConservative government; the best known illustra-

tion of this is the Clay Cross affair where localauthority councillors, who had refused on politicalgrounds to implement parts of the Housing FinanceAct 1972 and increase council house rents, weresurcharged, disqualified from office under theexisting law, and then later reinstated by a LabourGovernment which had been pressured intochanging the law retrospectively.The dangers involved in the development of such

attitudes of defiance are obvious. The basic struc-ture of a stable society is founded upon the assump-tion that there is a general habit of obedience to thelaw and that such changes as are required must takeplace in the proper constitutional way. Large-scaleresistance to particular laws which may happen tobe politically unpopular incurs the risk that thehitherto tacitly accepted general habit of obediencecan drift into general habits of disobedience, whichin turn are likely to upset dramatically the social andpolitical balance of the country.

In I974, Professor Kahn-Freund, a distinguishedmember of the Donovan Royal Commission, feltcompelled to admit that 'the danger has shifted. Itseems that there is a spreading belief that the lawcannot put any limits to any action taken in thecourse of industrial disputes.... Perhaps those whohave with so much justification always arguedagainst legal intervention beyond the point ofabsolute necessity should now consider the need foremphasizing the role which the law has, and alwayswill have, to play in industrial relations'.7A decline in respect for law also involves a decline

in moral standards. The nineteenth century socio-logist, Emile Durkheim8, used the term 'anomie'to describe a state of society in which normativestandards of conduct and behaviour are weak orlacking and in which traditional rules break down:in other words, a society which has shaken off itsformer restraints such as religion, respect for lawand order and a definite moral code as to what isright and what is wrong. 'Normally the moderatinginfluences of society serve to check one's wants, tokeep them within bounds. Under anomic conditions,however, the social brake gets out of order andindividuals' wants soar rapidly. A "sky's the limit"psychology develops....'What is the relevance of all this to health service

disputes ? Simply that here these patterns can beseen to be developing very clearly. It is difficult tobelieve that doctors would have considered strikeaction had the anomic germs not already beenincubating. One can understand the attitude ofmanual workers in the health service who complain,'Why should we not strike, if comparable workersoutside strike and obtain their demands ?'; one canunderstand the attitude of nurses who were con-stantly told that they must accept their lot as theirsis a vocation; if the teachers could strike, why notthey? The factor restraining these groups was, ofcourse, that the health service was a caring profes-

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

Strikes and the National Health Service: Some legal and ethical issues 8I

sion, with overriding responsibilities for the healthof patients. The ethics of senior medical personnelpervaded the whole service. Once that restraint wasbreached by one section of the health service, albeitthen condemned by colleagues, the way becameclearer for others, for example, for junior hospitaldoctors and consultants, to take similar action.But to understand such attitudes and behaviour is

not to condone them, nor can one fail to recognizethat this is part of the anomic disease which, when itreaches a profession such as the medical profession,is reaching epidemic proportions.There is, of course, no swift cure for an anomic

society. If there is to be a cure at all, part of theanswer lies in a gradual change in public attitudestowards the morally permissible limits of industrialaction; and it is peculiarly appropriate for themedical profession to render assistance.

There are certain basic facts of industrial lifetoday. First, unions are aware that mass civildisobedience of the law and a disregard for hithertoaccepted moral obligations are frequently effective.Secondly, attempts to use the courts to enforce lawswhich, rightly or wrongly, are not seen to be just bylarge groups are counterproductive in that respectfor the law and its officials is lessened. Thirdly, it isclear that the behaviour of large groups involved inindustrial strife is not always rational or responsible.Group attitudes tend to be shaped by the viewsexpressed by those in a position to influence them.Therefore, those persons in public positions whoare in a position to influence public opinion, if theyaccept the basic democratic ideals of our kind ofsociety, are under a moral duty not to support bytheir actions, conditions of disobedience andirresponsibility which in turn contribute towardsdeteriorating standards of behaviour.Who, then, are those candidates with special moral

responsibility to act as an example to their fellowcitizens? The list is debatable, and this is not theoccasion to go through it. Almost certainly, seniorpoliticians, members of the Cabinet and ShadowCabinet, do have such special responsibilities. Activeincitement or encouragement of civil disobedienceby them, as appears to have happened with theShrewsbury pickets and Clay Cross councillors,harms the fabric ofdemocracy and their position in it.Similar comments apply to those persons who areunder a duty to carry out some public office, and theClay Cross councillors were probably in this position.Not all employees within the health service at

present can be said to have identical moral obliga-tions of example: ancillary hospital workers do nothave the tradition of the Hippocratic oath butphysicians have. Thus, criticism of the medicalprofession must be harsher than of other groupswithin the service: 'In its present militant posture,the medical profession has lost a lot of publicrespect. One may surmize that, in the eyes of manyof its members, it is losing self respect as well. Not

long ago it was unimaginable that organized groupsof doctors would withdraw their service frompatients in need. Such conduct was held to beprofoundly inconsistent with the high calling ofmedicine. No one, of course, disputes a doctor's"right" to see himself as another industrial workerand behave accordingly. But until recently his viewof his job was based on a higher morality than theclaiming of rights. Society granted him, as a result,special respect and, in the higher ranks, goodrewards. Junior doctors and consultants are on thevery brink of forfeiting that special status irretriev-ably.' 9 A public lowering of standards by medicalpractitioners has an inevitable impact upon others;as also would be public pronouncements that, inspite of injustices, a caring profession refuses tostrike when the interests of patients are at stake. Itmay take time for all groups within the NationalHealth Service to follow suit, but this cannot comeuntil the example is set. Nor can attacks be madeupon the wider national malaise until examples andstandards are seen to be adopted by those with thegreatest responsibilities.

Can industrial action within the NationalHealth Service ever be justifiable ?The argument so far suggests that industrial actionwithin the National Health Service is rarely, if ever,justifiable. The fundamentalist will maintain that itis never so. However, categorical statements areoften later shown to be false, and it may be wiser toinvestigate whether there are any circumstanceswhich conceivably might justify such action.The overriding and restraining factor in health

care is the welfare of the patient. Therefore, if it ispossible to define industrial action which does notinvolve harm or the risk of harm to patients, thespecific moral constraints upon the medical profes-sion in that respect have less force. It has been seenthat the British Medical Association has paid lipservice to this distinction, but it has not beendemonstrated beyond doubt that such a cleardemarcation in fact exists.What, then, of industrial action where some harm

to patients can be foreseen. Is there ever anyjustification for this? As the professional ethicalduty imposed on the medical profession is so strong,any justification for breaking the obligation shouldbe discussed at the same level as that concerning themoral right to disobey the law. The fact that somemembers of society are under a greater moralobligation to obey the law than others does notmean, of course, that there should be no room forrational rather than irrational civil disobediencewithin a democratic system. In certain situations, asa 'last resort measure', civil disobedience must berespected and tolerated not necessarily by maintain-ing that there is a legal right to disobey, but byeither exercising a discretion not to prosecute those

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/

82 Gerald Dworkin

breaking a law or by the exercise of sensible dis-cretion in fiing a penalty. 'Along with such thingsas free and popular elections and an independentjudiciary empowered to interpret the constitution ...civil disobedience used with due restraint and soundjudgment helps to maintain and strengthen justinstitutions.' 10The key difficulty for those who advocate the use

of civil disobedience as a last resort measure ofprotest is, Who is to decide when it is morallyjustified? Those who sought to justify opposition tothe Industrial Relations Act I97i and the HousingFinance Act I972 drew analogies with the laws ofNazi Germany. A Shadow Opposition Ministerat the time, Mr Crosland, used a form of natural lawargument with regard to the Housing Finance Actand claimed that it infringed 'the tacit agreement asto what is permissible and what is not. By excludinga large group of our citizens from democraticprotection, it offended our basic sense of naturaljustice....' A forceful reply to this was made byProfessor Max Beloff11: the Act 'was passed inaccordance with its manifesto by a governmentwhich had been elected properly, according to theconstitution.... It was obeyed by a large majorityof those to whom it applied. It increased the rents ofbetter-off council tenants and provided rebates forthe poorer. No doubt it was a subject for politicaldebate but in what sense did it defy some basicprecepts of civilised morality ?'

This argument, it is suggested, is equally applic-able to those members of the medical professionwho, whilst they may be prepared to accept thatindustrial action is not justifiable simply because ofgrievances over pay and conditions of work, wouldwish to argue that governmental action presentssuch a threat to the freedom and integrity of theprofession that, as a last-resort measure, legal ormoral refusal to work within the system, regardlessof the health of the patients, is justified. Strongpolitical and professional disagreement there maybe, but there is as yet no case for civil disobedienceor abdication of fundamental professional standards.The nature of the problems facing the NationalHealth Service is still within the scope of legitimateconstitutional and political debate: whether therecould ever be a situation which could justify aprofessional health service revolt against govern-mental policy is a question which, it is submitted,should not be posed in connexion with the problemswhich, although serious, the medical professionpresently faces.

What of the future?Unless positive thought is given to ways of dealingwith disputes within the National Health Service,the problem will not only stay with us, but willalmost certainly worsen. Once the strike disease hastaken control the decline in responsibility is likely to

accelerate. One now reads, almost weekly, ofstoppages in the National Health Service by onegroup or another; the moral qualms about patienthealth become less acute; and, sadly, the publicresponse becomes dulled and quiescent. That is whythere is a need for a return to sanity where thehealth and comfort of patients are involved. But thisreturn to sanity cannot be a complete surrender bythe medical profession. The days are long since gonewhen just grievances could be ignored for thosewho had a vocation. There must be a quid pro quo.A lead to this quid pro quo may be seen in a recent

letter to the British Medical Journal: 'Unless lostdiscipline, the spirit of service, and mutual respectcan be restored our hospital communities. . . willslide progressively into anarchy or become whollyunion-dominated. To stop the clock of collectivebargaining backed by strike action, once established,may seem at first unrealistic; nevertheless there areprecedents to suggest that hospitals could be seenas a special case and plans worked out to satisfy allinterested parties. In the police force, for instance,union membership is strong but strikes are for-bidden, for reasons no less compelling in the publicinterest than those applying to hospitals.' 12

If industrial action could in fact be prohibitedwithin the National Health Service, the criminallegal sanction would reinforce the moral obligation.However, as has been pointed out earlier, theintroduction of a criminal sanction, for whateverpurpose, must be ruled out as unrealistic at thepresent time. But, if the Royal Commission on theNational Health Service were to consider establish-ing, in exchange for a moral commitment to indus-trial peace, effective machinery which is, and whichis manifestly seen to be, completely independent todeal not only with salaries but all grievances, therecould well be a movement back to the standards ofthe recent past - something much needed both forall persons within and those receiving help from thehealth service, and as an example to us all.

References

Royal Commission on Trade Unions and EmployersAssociations I965-I968, I968, Cmnd 3623

2 The Times, 1974, II December3 British Medical3Journal, I974, 4, 3574 Bitish Medical3Journal, I974, 4, 3056 British MedicalJournal, I975,4, 5446 Tyrer, F H, British MedicalJournal, I975,4,45237 Kahn-Freund, 0, 'The Industrial Relations Act I97I- Some Retrospective Reflections', I974, IndustrialLaw Journal, I86, 200

8 Giddens, A (Ed), Emile Durkheim: Selected Writings,I73, Cambridge University Press, I972Sunday Times, 1975, 23 November

10 Rawls, J, A Theory of Justice, Oxford, ClarendonPress, 1972

11 Beloff, M, The Observer, 1974, I2 November12 Smyth, E, 1975, British MedicalJournal, I, 153

on July 1, 2021 by guest. Protected by copyright.

http://jme.bm

j.com/

J Med E

thics: first published as 10.1136/jme.3.2.76 on 1 June 1977. D

ownloaded from

http://jme.bmj.com/