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3.5 Physicians and Job Action

Ross Langley, MD, FRCPC, MACP; and Charles Weijer, MD, PhD, FRCPC

Educational Objectives

Following review of this case , the learner should be able to:

  1. Define physician job action;
  2. Discuss the key ethical issues concerning job action; and
  3. Outline the regulatory issues with respect to physician job action.

Case

You have recently become the president of your local branch of the provincial medical association. The agenda for your first meeting of the provincial association arrives, and among the many items listed, one especially piques your interest: a report from the negotiation committee that talks for the next contract are not going well.

At the meeting, you learn that negotiations for a new contract have been ongoing for nearly two years. The association is asking for a 12 per cent increase in fees over the life of a three-year contract, higher standby fees for physicians on call for intensive care units outside cities and incentives to encourage physicians to relocate to areas such as yours. The association objects to the removal of certain insured services from the reimbursement schedule. The government wants the association to accept reduced fees for some services, and saved costs will be used to increase fees for undervalued services. You observe considerable polarization among the members with respect to physician job actions and whether it is ethical to undertake them.

You must now report back to your local branch, and you expect that the same concerns about the ethics of job actions will surface there. Two senior colleagues advise you to develop a framework outlining the ethical issues that you can use for discussion at the meeting.

Questions

  1. What is physician job action?
  2. What sources can you consult to learn more about the ethics of physician job action?
  3. What sections of the "CMA Code of Ethics" produced by the Canadian Medical Association are relevant? Do they seem to permit physician job action or not?
  4. What positions have provincial medical colleges taken on the issue? Do these positions reflect agreement or disagreement on the ethics of physician job action?
  5. Ought physician job action to be permitted? Support your position with an argument.

Discussion

Q1. What is physician job action?

Physician job action refers to the partial or complete withdrawal of services by a group of physicians usually to force a desired conclusion in negotiation with the relevant provincial health authority. Physician job action may be motivated by perceived threats to professional autonomy, inadequate reimbursement schemes for services provided or declining quality of health care delivery. Physician job action is a collective act and does not refer to the actions of an individual physician in declining to provide a particular service on grounds of conscience or terminating a particular physician-patient relationship.

Q2. What sources can you consult to learn more about the ethics of physician job action?

As with any medical issue, the first step in addressing an ethical issue is to research the relevant literature. Important policy documents include the "CMA Code of Ethics" by the Canadian Medical Association,1 "Medical Professionalism in the New Millennium: A Physician Charter"2 and the American College of Physicians' Ethics Manual.3 Further guidance may be found in specific policy statements of the Royal College of Physicians and Surgeons of Canada, the Canadian Medical Association or provincial medical colleges. Finally, the scholarly literature is an important source of historical perspective and ethical argumentation.

Q3. What sections of the "CMA Code of Ethics" produced by the Canadian Medical Association are relevant? Do they seem to permit physician job action or not?

The "CMA Code of Ethics" contains no specific statement on the permissibility of physician job action. It does, however, contain a variety of statements that are relevant to the ethical permissibility of physician job action:1

Statement 1: Consider first the well-being of the patient
Statement 11: Recognize and disclose conflicts of interest that arise in the course of your professional duties and activities, and resolve them in the best interest of patients.
Statement 19: Having accepted professional responsibility for a patient, continue to provide services until they are no longer required or wanted; until another suitable physician has assumed responsibility for the patient; or until the patient has been given reasonable notice that you intend to terminate the relationship.
Statement 46: Recognize that the self-regulation of the profession is a privilege and that each physician has a continuing responsibility to merit this privilege and to support its institutions.

It is not accidental that the "CMA Code of Ethics" opens with the injunction to "consider first the well-being of the patient."1 The physician has fiduciary obligations to each patient that require that the medical interests of the patient be given primacy. Accordingly, the physician has a duty of fidelity to the patient, requiring the physician not to exploit patients for personal advantage and to recognize and disclose conflicts of interest and resolve them in favour of the medical interests of the patient. These core duties can be interpreted as a strong cautionary note against physician job action when such action may adversely affect the medical interests of one's patients.

It might be argued that the "CMA Code of Ethics" does leave some room for physician job action under restrictive circumstances. Physicians are required to respect self-regulation and "support its institutions." This could be interpreted as allowing physicians to follow a call from a provincial medical association to partially or completely withdraw services. A critical caveat severely restricts the tenability of this position. The physician has an obligation to continue to provide services to a patient accepted into the physician's practice "until they are no longer required or wanted; until another suitable physician has assumed responsibility for the patient; or until the patient has been given reasonable notice that [the physician] intend[s] to terminate the relationship."1 Thus, even under this permissive interpretation, physicians must exercise considerable caution when contemplating job action.

Q4. What positions have provincial medical colleges taken on the issue? Do these positions reflect agreement or disagreement on the ethics of physician job action?

Provincial colleges of physicians disagree currently as to whether physician job action is permitted. Adopting a relatively permissive position, the Colleges of Physicians and Surgeons of Ontario and Nova Scotia "acknowledges the right of physicians to withdraw their services under specific circumstances."4 Consistent with the restrictions noted in the above section, the Ontario policies states that discontinuing services to existing patients without arranging alternative services or providing reasonable notice is professional misconduct. Given the difficulty of fulfilling these caveats, the policy makes explicit the college's obligation to communicate its expectations of the medical profession in Ontario during a physician job action.

A restrictive position with regard to physician job action is found in policy of the College of Physicians and Surgeons of Alberta. The Alberta policy makes clear that an individual physician is entitled to set limits on his or her professional activities based on such considerations as training, personal health and personal moral principles. But "the rights of physicians individually must not be used to justify collective withdrawal of service as decided through group planning or action."5 Accordingly, the policy does not permit physician job action since it would untenably restrict or eliminate patient access to needed health care.

Q5. Ought physician job action to be permitted? Support your position with an argument.

Ethical argument may be offered in favour or against physician job action. We consider one instance of each. One might argue in favour of physician job action by stating that physician fidelity to the patient is not absolute. As recognized in the "CMA Code of Ethics," individual physicians may terminate a physician-patient relationship by arranging for alternative medical care or by offering the patient sufficient notice.1 If individual physicians may withdraw their services ethically, then surely groups of physicians may do so, particularly if important issues, such as the quality of health care provision in general, are at stake. In a 1997 article in CMAJ on physician job actions, Nicole Baer quotes a lawyer who, in advising a provincial medical association, makes just this point: "Physicians withdraw their services all the time: when they go on vacation, retire, move to another community or begin a legal strike. Their only ethical obligation is to ensure that patients are duly forewarned so alternate arrangements may be made."6

We see an important difference between an individual physician's right to terminate a particular relationship with a patient and a physician job action. In an existing physician-patient relationship, the physician's duty of fidelity demands that he or she may terminate the relationship only when "another suitable physician has assumed responsibility for the patient; or until the patient has been given reasonable notice."1 The requirement of "reasonable notice" can only sensibly be interpreted as permitting the patient sufficient time to find another practitioner to care for him or her. The problem with a physician job action is that it predictably restricts or bars patients in an entire region or province from access to medical services. In these circumstances, providing patients with "reasonable notice" is a meaningless gesture.

An argument against physician job action might be formulated as follows. The "CMA Code of Ethics" states that the physician must "consider first the well-being of the patient."1 This statement reflects the primacy of the physician's obligation to his or her patient. However well motivated, physician job action is designed to restrict or deny patient access to needed health care. It is therefore inconsistent with the moral "prime directive" of the physician. An orthopedic surgeon, formerly dean of one of Canada's faculties of medicine, captured this sentiment well: "Strike action against patients is non-negotiable. We have a sacred trust toward people who are in need or have been rendered vulnerable by virtue of illness or injury and to deny them care is not acceptable at any level."6 Physicians may pursue other means to achieve political ends, such as patient awareness campaigns or lobbying politicians, but they may not ethically participate in job actions.

Conclusion

Recognizing the right of our colleagues to disagree, we support the view on physician job action taken by the American College of Physicians. We conclude by quoting — and endorsing — their view:3

"Changes in the practice environment sometimes adversely affect the ability of physicians to provide patients with high-quality care and can challenge the physician's autonomy to exercise independent clinical judgment and even the ability to sustain a practice. However, physicians' efforts to advocate for system change should not include participation in joint actions that adversely affect access to healthcare or that result in anticompetitive behaviour. Physicians should not engage in strikes, work stoppages, slowdown, boycotts or other organized actions that are designed, implicitly or explicitly, to limit or deny services to patients that would otherwise be available. In general, physicians should individually and collectively find advocacy alternatives such as lobbying lawmakers and working to educate the public, patient groups and policymakers about their concerns. Protests and marches that constitute protected free speech and political activity can be legitimate means to seek redress, provided that they do not involve joint decisions to engage in actions that may harm patients."

References

  1. Canadian Medical Association. CMA code of ethics (update 2004). Ottawa: Canadian Medical Association; 2004. Available from: http://policybase.cma.ca/PolicyPDF/PD04-06.pdf
  2. Medical professionalism in the new millennium: a physician charter. Annals of Internal Medicine 2002; 136(3): 243–6. http://www.acponline.org/running_practice/ethics/physicians_charter/
  3. Snyder L, Leffler C; Ethics and Human Rights Committee, American College of Physicians. Ethics manual: fifth edition. Annals of Internal Medicine 2005; 142(7): 560–82. http://www.acponline.org/running_practice/ethics/manual/
  4. The College of Physicians and Surgeons of Ontario. Withdrawal of physician services during job actions. Policy #2-99. Available from: http://www.cpso.on.ca/Policies/withdrawal.htm and College of Physicians and Surgeons of Nova Scotia Policy on Withdrawal of Physician Services during Job Actions. Available from: http://www.cpsns.ns.ca/publications/withdrawal-service.htm
  5. College of Physicians and Surgeons of Alberta: Physicians Withholding or Withdrawing Services http://www.cpsa.ab.ca/publicationsresources/attachments_policies/Physicians%20Withholding%20or%20Withdrawing%20Services.pdf
  6. Baer N CMAJ 1997 Despite some PR fallout proponents say MD walkouts increase awareness and may improve healthcare; Can. Med. Assoc. J. Nov 1, 1997:157 (9)

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