Analysis: Do we have to balance the right to health with the right to strike or do we have to ask different questions of government?
South Africa’s public health sector strikes often come down to pitting two rights against each other – the right of workers to strike and the rights of patients to access healthcare services.
It’s a flawed match-up, a guaranteed lose-lose. The no-win situation leaves two vulnerable groups in society equally disadvantaged and deserves deeper interrogation, some public health and labour experts argue.
They suggest the debate needs to move beyond the theoretical tussle of whose rights matter more and should focus instead on how government continues to fail to act on addressing systemic collapses in healthcare. They also suggest it is time for a reckoning on why – a generation into democracy – violence and destructive actions by some strikers still stand in as go-to tactics to advance workers’ demands.
This March, the nationwide National Education, Health and Allied Workers’ Union (Nehawu) strikes were marked by high-stakes disruptions. There were arrests of protesters on charges of public violence; there was destructive burning of tyres and other debris at hospital entrances as part of demonstrations and blockades; threats and intimidation of non-striking workers; total shutdowns of some hospitals across the country; the deployment of the army; legal action to interdict strikers; and ultimately, reports of four deaths of patients that the Minister of Health, Dr Joe Phaahla, attributed directly to disruptions as a result of strike action.
They suggest the debate needs to move beyond the theoretical tussle of whose rights matter more and should focus instead on how government continues to fail to act on addressing systemic collapses in healthcare.
These were not the first strikes to split public opinion and they won’t be the last.
Roots of the problem
Professor Luke Sinwell of the University of Johannesburg’s Centre for Sociological Research and Practice, says it does not need to be that one right must trump another, when both are rights society needs. “Both these groups – the striking workers and the patients – are just trying to get what they need to survive, be it living wages and better working conditions or access to healthcare.
“If we don’t look at the root of what is causing these things, then we are going to be misguided because people are going to continue to use forceful, non-institutional, and sometimes violent means to try to achieve their objectives,” he says.
It’s the slow violence of a deteriorating body that cannot access the hospital. There’s a slow violence of having to be humiliated by being shouted at by nurses or having to give birth on a clinic floor; a slow violence of exclusion from society, and from the economy. – Prof Luke Sinwell
Sinwell says driving down wages for people, even as living costs soar, is unsustainable and edges people closer to using “extra-institutional, including violent means with which to achieve their objectives”. He also warns that it cannot be ignored that the demographic context in which violence (including in some strike action) unfolds is “the people who have historically been victims of violence, of the violent legacies of apartheid and colonial dispossession”.
Sinwell expands on violence as not just riots and physical threats, property destruction, and disruption but also structural violence, a kind of “slow violence”, he calls it.
“It’s the slow violence of a deteriorating body that cannot access the hospital. There’s a slow violence of having to be humiliated by being shouted at by nurses or having to give birth on a clinic floor; a slow violence of exclusion from society, and from the economy,” he says.
For Professor Keith Behrens of Wits University’s Steve Biko Centre for Bioethics, the ratcheting up of violence and destructive actions during cycles of strikes marked by demands over similar issues, begs the bigger question of how the government can continue to claim legitimacy when it continues to fail on service delivery and gets away with betraying society’s most vulnerable.
Healthcare workers are facing increasing burden of moral injury when they aren’t able to do their work to save lives or are prohibited from working and intimidated if they don’t choose to join their striking colleagues. – Prof Keith Behrens
Service delivery, as he sets out, must include functioning hospitals and clinics that serve patients adequately and are also workplaces that support employees to be able to get on with improving patient lives, also saving their lives. They have to be facilities in good condition and have workplace standards and operate with fair wage structures.
“Healthcare workers are facing increasing burden of moral injury when they aren’t able to do their work to save lives or are prohibited from working and intimidated if they don’t choose to join their striking colleagues,” he says.
Behrens says government’s failures as employer drive away suitable employees from public healthcare and instead attract people who look to healthcare as just a job that they could get. It means the motivation of a salary will come before an oath or pledge to serve. And the idea of being an essential services worker with limits on rights to strike simply doesn’t hold weight for such an employee.
For Behrens, there needs to be a reframing of the social contract between healthcare workers and the public. He says it begins with thinking differently about rules, regulations, and codes of ethics for healthcare staff and essential workers. For his students, it’s inculcating in them that professional actions and conduct are not about “things that can get you into trouble” but more about developing personal conscience and personal responsibility as an individual who is also a member of society.
No MSA in place
Andy Gray, a senior lecturer in Pharmaceutical Sciences at the University of KwaZulu-Natal, also believes that government has a lot to answer for in how strike action has turned into a spiral of disorder that puts patients’ lives at risk.
Not having a minimum service agreement (MSA) in place is a key management blunder, he says.
Most healthcare workers and support staff at health facilities are legally designated as essential workers (see the full list of designated essential workers here). In terms of the Labour Relations Act, it is unlawful for essential workers to strike if there is not an MSA in place. An MSA could, for example, set out which minimum level of services must continue during a strike and which workers are needed to provide these services. In theory, MSAs could provide a way to balance the right to strike without limiting the right to access healthcare services to the extent seen in March.
The state has to ask if it’s creating the very circumstances that make people desperate to find a way to be heard – like through burning things or threatening their colleagues. – Andy Gray
The Nehawu strikes in March ended with a breakthrough in negotiations that will compel government to have an accepted minimum service agreement in place within six months.
Earlier this month, public sector unions, including Nehawu, suspended the strike and returned to negotiations with government. Gray said it was overdue and necessary. “An agreement will give us a very clear understanding of what protest means and what limits there are in withdrawing labour while balancing the right to protest.”
Gray adds that limits are not just about minimising patient harm but also ensuring that growing criminality during strikes can never be shielded by the right to protest. He says government as the employer needs to find their own ethical backbone.
“The state has to ask if it’s creating the very circumstances that make people desperate to find a way to be heard – like through burning things or threatening their colleagues.”
Health professionals are being forced to practise in unethical ways by the circumstances at hospitals, according to Gray. He worked in the public sector for many years before joining academia. For example, he says, a former colleague who still works in the public sector recently told how he’s expected to fill 250 to 300 prescriptions a day.
“He asked how he can possibly do his job safely, but he has the MEC in his province complaining that queues are not moving fast enough while no new posts are created. This colleague said he’s under immense pressure and can’t help thinking about the day when he does make a mistake.
“Government has to ask if it’s living up to Section 27 of the Constitution and if it’s in breach of the Bill of Rights,” says Gray.
‘Destroying collective bargaining’
Meanwhile, Nehawu spokesperson Lwazi Nkolonzi says, “This sixth administration is hell-bent on destroying collective bargaining and the rights of workers. It has made it its task to reverse and roll back the gains made by workers over the years.”
He says government still hasn’t produced a report to substantiate the deaths of the four patients allegedly as a direct result of strike action, but he acknowledges that “sporadic incidents [of violence and intimidation] were unfortunate”.
Nkolonzi says the finer details of the minimum service agreement will be concluded at the Public Service Co-ordinating Bargaining Council.
Spokesperson for the Department of Health, Foster Mohale didn’t comment on how strikes can move to become more structured and constructively organised, saying that issues of salary increases and job dissatisfaction fall under the Public Service and Administration Department.
Mohale says government had sufficient contingency plans during the March strikes that included moving staff from less affected areas to hot spots “to mitigate the impact of strike action and to [ensure] the provision of essential health services because ours is about saving lives of innocent patients and their families”. He added that elective procedures were rescheduled, and the department worked with law enforcement to “ensure striking members did not violate the Constitutional rights of those committed to serve”.