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Can Health Care Providers Ethically Go on Strike?

The right of many American workers to strike as a form of objecting to unfair labor terms or conditions is one that has found both fervent support and fervent opposition.  Although the federal National Labor Relations Act generally permits strikes, in certain industries the right of employees to strike is restricted or prohibited altogether under federal and/or state law.  For example, federal law prohibits U.S. government employees from striking, as well as railroad and airline employees.  In many states, firefighters and police officers are prohibited from striking.  In other states, such as New York, all public workers are subject to the ban on striking.  One industry where employee strikes are an increasing subject of controversy is health care.

Health care providers—including physicians, nurses, physical therapists, nurse practitioners, and mental health counselors—are indisputably entitled to a voice in the terms of their employment, just as employees in any industry are.  However, much like firefighters and police officers, these workers provide an essential public service.  Without hospital staff to care for them, sick patients may languish in their pain and their suffering.  Injured persons may face worsening conditions, or find their injuries becoming irreversible or vastly more complicated.  Why, then, are nursing strikes and strikes by other unionized health care workers not only legal but even commonplace in some states, such as California?

Rather than delve into the nuances of labor law in this column, I instead explore the ethical dilemma presented by the decision of health care workers to go on strike.  On one hand, the unjust treatment of employees is intolerable.  In the health care context, unjust treatment often means understaffing, overworking, and underpaying employees not only to their detriment, but also to the detriment of patients who depend on the attentive care of their medical providers.  On the other hand, nurses, doctors, counselors, and most other care providers must abide by ethical guidelines imposed by state licensing boards.  One ethical principle in particular is imposed universally on all providers in all jurisdictions: the provider’s first duty is to care for the patient.

I first will describe the normative frameworks for choosing the most ethical option from two untenable choices.  Then I will apply one framework to the context of strikes by health care providers.  I conclude that the risk of harm to patients outweighs the need to use the strike as an objection to working conditions in most circumstances, and that the strike is only an ethical option in exceptional situations.

For the purpose of brevity, this column focuses on the individual as the decisionmaker.  However, the factors surrounding the decision to strike are much more complex.  The employer, as an institutional provider of health care, has ethical obligations to both its patients and its employees.  (A discussion of the norms of business ethics is essential to a comprehensive look at the ethical issues surrounding health-care-provider strikes but is outside the scope of this column.)

Choosing the Most Ethical Option

In classical philosophy, there are various ways of approaching an ethical question.  In a few circumstances, the most ethical decision depends on what approach one uses. Here, I discuss three approaches to normative ethics for the purpose of applying them to the circumstance of health-care-provider strikes.  These three are:

  • Virtue Ethics: “The ethical choice is the one that develops moral virtue in our self and our community.”
  • Deontological Ethics: “The ethical choice is the one that conforms with one’s duty.”
  • Utilitarian: “The ethical choice is the one that produces the greatest benefit to the greatest number of people.”

Virtue ethics focuses on the role of one’s character or being, rather than on the nature of one’s actions.  Under this approach, there are certain desirable characteristics—“virtues”—the mere possession of which makes one moral.  What constitutes a virtue depends on the context and the society.  Aristotle identified nine important virtues: wisdom, prudence, justice, fortitude, courage, liberality, magnificence, magnanimity, and temperance.

While many might agree that these are important qualities for a person to possess, a modern society might list a different set of attributes.  For example, in our society and in many others, altruism is considered a virtue.  By contrast, in an ideal world as imagined by objectivist Ayn Rand, egoism would be a virtue.

Deontology emphasizes a person’s duty or responsibility.  Perhaps the most known form of deontological ethics comes from the German philosopher Immanuel Kant.  According to Kant, the moral action is one that arises out of one’s duty, and the motivation for the action determines whether the action was right or wrong.  In other words, a moral action is one that is done willingly and out of respect for one’s duty.

Finally, utilitarian ethics focuses on the balance of good and harm.  Using this approach, the ethical option is the one that maximizes happiness and minimizes suffering.  Traditionally attributed to British philosophers Jeremy Bentham and John Stuart Mill, utilitarianism focuses exclusively on the consequences of a given action (in contrast with the other two approaches, which look, respectively, to being and motive).

Because virtue ethics is widely viewed by the medical community as an acceptable framework for ethical decisionmaking, I will discuss only that approach in this column.

Applying a Framework to Strikes by Health-Care Providers

The question before us is this:  Is it ethical for health-care providers to go on strike?  Taking the virtue ethics approach, we would ask whether going on strike is an action that a virtuous nurse/physician/surgeon/health-care worker would take.

The medical community has widely accepted certain principles, first proposed by Thomas Beauchamp and James Childress, as the pillars of the code of the virtuous health care provider: beneficence, non-maleficence (“first, do no harm”), autonomy, and justice.  To abide by these principles, a virtuous provider would strike only for the purpose of benefiting the patient.  Assuming that a strike is based on the complaints previously described in this column—understaffing, underpay, and overwork—the goal of the strike may be aligned with keeping the patients’ best interests in focus.

There are two broad categories of patient benefits, which I categorize as “hard” and “soft” benefits.  If the concern is that there are not enough providers to care for the number of patients on the service, or if due to overwork the providers are too exhausted to perform their duties effectively, then the goal of negotiations would be a hard benefit to patients.  In contrast, a soft benefit for patients would be having providers who are fairly compensated and content with their jobs.  While the soft benefits may be a matter of subjective measurement, objective statistics such as clinical outcomes and provider-to-patient ratios are more easily classified as adequate or inadequate.

There is concededly a limited circumstance in which a strike may be primarily for the purpose of something other than the benefit of the patient (such as for individual compensation) while still being ethical.  In such a circumstance, the striking individuals must have preemptively ensured that patient care would not be negatively impacted by the strike.  If such assurances have not been made before the strike, then the decision to strike would be ethically wrong because a strike presents a risk of harm to the patient.

If the purpose of the strike satisfies the first prong of the value ethics framework—that is, if it is entirely or substantially for the benefit of patient—then the second question is whether the provider has exhausted all other avenues of negotiation before resorting to the strike.

Because of the potential harms to patients that could be caused by striking, a virtuous provider must first exhaust all other avenues of negotiation that do not present such a risk.  Some have advocated for the use of the symbolic 24-hour strike, which raises public awareness of the dispute, but has arguably fewer potential negative consequences for the patients due to its short duration.  Another less drastic device to raise awareness of working conditions is the picketing protest, which may last anywhere from one hour to several.

Part of the power of the worker strike lies in the potent message that the system cannot function without those workers.  There is a widespread stigma among workers toward the replacement workers who are hired during a strike, pejoratively called “strike breakers,” as these replacements diminish the message of the strike.  However, any efforts by the striking workers to impede the ability of replacement workers to care for patients effectively contravenes any notions of virtue.

Health-Care-Provider Strikes Are Ethical Only in Exceptional Circumstances

No one can reasonably argue that health care providers do not deserve fair terms of employment, nor can it reasonably be disputed that the treatment of the sick and the infirm should always be paramount for those charged with their care.  The failure of a hospital or other health-care institution to act ethically (by unfairly or inadequately providing for its employees) cannot be corrected by serving injustices to patients.  Only when the benefit of the patient is the ultimate goal, and only after all other avenues of negotiation have been exhausted, can health-care providers ethically leave their patients’ bedsides to go on strike.  If we as a society allow those who care for our sick to abandon their oaths and their duties any more readily than this, then we too have abandoned our sick.

David S. KempDavid S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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