Ethico-legal inquiry into strike action by doctors in Kenya

A Research Report submitted to the Faculty of Health Sciences, University of the Witwatersrand in partial fulfillment for the degree of Master of Science in Medicine: Bioethics and Health Law Faculty of Health Sciences University of the Witwatersrand, Johannesburg, South Africa. January 2017Doctors serving in public health services in Kenya under the employment of the Government went on strike in December 2011 and September 2012. The strikes were national and doctors withdrew all their services including attending to emergencies in hospitals. The reasons for the strikes were poor salaries, poor working conditions and poor state of public health services. The aim of this research was to analyse legal and ethical aspects of the strikes by doctors in Kenya and to explore ways to minimize harm to patients and society. The research examined the circumstances and contexts of the strike to enable an understanding of the status of health services and the nature of the demands by doctors. Kenyan laws relating to strikes were analysed to ascertain legal compliance or violations during the strikes. Obligations of the medical profession and ethical codes and rules of conduct for doctors were discussed in relation to the strike. Ethical theories of deontology, consequentialism and virtue ethics were applied to establish moral justification or lack thereof. Analysis of the legal provisions of the Labour Relations Act No.14 of 2007 revealed that it did not provide adequate processes for resolving trade disputes involving workers and employers in essential services. Suggestions were made on some ways to improve the conciliation process to foster appropriate resolution of disputes before strike action becomes necessary. Examination of the reasons for the strikes and status of public health services revealed that there were compelling reasons and circumstances for the strike action by doctors. It was acknowledged that harm and benefits resulted from the strikes. Some grounds for moral justification of the strikes were discussed and found valid. However, comprehensive justification of the strikes was difficult, considering the professional and ethical obligations of doctors to society and to patients. In particular the withdrawal of emergency services made it difficult to find moral justification for the doctors‟ strikes. Failure to provide emergency services expunged any moral justification for strike action.MT201