Should strikes be an option for physicians and nurses?

Is collective bargaining a violation of ethics?

After unsuccessfully trying to negotiate a new contract for more than a year, registered nurses at Brockton (MA) Hospital walked off the job for more than two months this summer, primarily to protest the hospital’s continued demands that the nurses be compelled to work extra shifts, sometimes tacked on to the end of scheduled shifts, despite concerns that such mandatory overtime compromised patient care. The nurses returned to work in September after hospital officials agreed to end mandatory overtime after 18 months and severely restrict its use until then.

Frustrated by demands for mandatory overtime as well as their inability to have a say in staffing levels and patient care, nurses at two hospitals in the Minneapolis area also went on strike for a month this summer until hospital officials agreed to limits on mandatory overtime and let nurse managers close units to new patients when they felt staff ratios were too low to be safe.

Strikes becoming more common

Once considered unthinkable, strike actions by nurses and other health care providers are becoming more and more common across the country as hospitals institute severe cost-cutting measures in the face of declining reimbursements and higher rates of uncompensated care. In the past two years, nurses, nurse’s aides, and other providers staged strikes at multiple hospitals and nursing homes in New York and California as well as Massachusetts and Minneapolis.

"When I graduated from nursing school in 1970, we viewed collective bargaining as not the sort of thing that professional people did — we were interested in establishing a professional role where the patient is front and center, which I would say is still the case, but you would never consider a strike," says Gladys White, RN, PhD, director of the Center for Ethics and Human Rights at the American Nurses Association (ANA) in Washington, DC. "The view now is that we cannot afford to use that strategy in certain situations."

The ANA’s code of ethics for nurses with interpretive statements demands that nurses "address concerns about the healthcare environment through appropriate channels" and states that: "Toward this end, nurses may participate in collective actions, such as collective bargaining or workplace advocacy, preferably through a professional organization such as the state nurses’ association in order to address terms and conditions of employment."

In the current health care environment, nurses may be placed in situations that may ethically require them to take collective action, and such action may lead to a strike.

For example, mandatory overtime currently is a serious problem for many hospital nurses, White says.

"In many situations, at the end of a 12-hour shift, nurses are pressured to work longer, and their own views about whether they can function effectively after 12 hours aren’t taken into consideration," she explains. "In addition to concerns about appropriate patient load, patient acuity, what the appropriate nurse-patient ratio should be, mandatory overtime has been a really serious issue that nurses have been trying to deal with across the United States."

Few professions would require someone to work for 12 hours and then compel them to work additional hours despite their own professional judgment, White adds. On top of that, at many hospitals nurses have no say in how many patients a nurse might be required to care for at any given time, and may have no input into when a unit can be closed to new admissions because of low staffing or an already high number of new admissions.

"When nurses are put in a position where they cannot use their professional judgment about the delivery of care it compromises them morally and ethically," she notes. "They must exert their power collectively. We definitely support collective bargaining, and when necessary, strikes on the part of nurses, as needed."

The ANA’s code of ethics for nurses emphasizes that patients cannot be abandoned in the middle of acute episodes and nurses make every effort to give the hospital appropriate advance notice of a planned strike, says White.

"They alert the hospital in advance, and make every attempt to have attending physicians not admit additional patients to get the census very low, to continue to cover the emergency areas and, if necessary, transfer patients to neighboring hospitals," she explains. "In that way, we attempt to ensure continuity of care."

In one recent strike action, some nurses made arrangements with their union to continue to work in the hospital’s neonatal intensive care unit, continuing to care for two infants during the strike, because they felt transfer to another facility or to another provider would have compromised their care, she notes.

Not all health professionals, including nurses, support strikes by caregivers.

And, although the American Medical Association (AMA) two years ago decided to support collective bargaining on behalf of physicians, the organization still strongly opposes physician participation in strikes. According to AMA Policy E-9.025 (Collective Action and Patient Advocacy): "Strikes reduce access to care, eliminate or delay necessary care, and interfere with continuity of care. Each of these is contrary to the physician’s ethic. Physicians should refrain from the use of the strike as a bargaining tactic."

In the current health care environment, collective bargaining on behalf of physicians in negotiating contracts with managed care organizations and health care facilities is very important. But, changes can and should be brought about without resorting to work stoppages, says Susan Adelman, MD, a pediatric surgeon at the University of Michigan in Dearborn, president of the Physicians for Responsible Negotiation (PRN) the physician’s union established by the AMA in 1999. As a requirement for membership, physicians must agree not to participate in strikes or withhold essential medical services.

"We are committed to not using strikes as a strategy because they compromise patient care and, in most situations, are not necessary and can even be counterproductive," Adelman says.

National labor laws prevent many private practice physicians from participating in collective bargaining because they are considered independent contractors. Physicians on staff at public hospitals, or in publicly funded residency programs have been allowed to collectively bargain in the past. And, recent decisions by the National Labor Relations Board have expanded the number of physicians allowed to unionize and collectively bargain in certain situations.

Physicians wield power

Physicians as a group can have enormous power to effect change at their respective facilities without engaging in work disruption, says Adelman. "If a hospital were to negotiate in bad faith with the physicians, this could hurt them when it came time to negotiate with managed health plans. And, conversely, managed health plans who refuse to engage in appropriate negotiations with physicians will get a bad reputation when it comes time to bargain with hospitals."

Most physicians are ethically opposed to participating in strikes and are relieved to be able to be a member in an organization that will negotiate on their behalf, but will not force them to engage in activities that will compromise care, she says. "In some situations, if other unionized groups at their hospital went on strike, reciprocal agreements would require the doctors to go to the picket line as well."

Although many physicians are opposed to engaging in strike actions, it is important not to rule out strike as an option, argues Robert Weinmann, MD, president of the Union of American Physicians and Dentists, a 41-year- old union that represents 5,000 physicians in the state of California. "As long as people believe that nurses and physicians cannot take the strike action, they can always refuse to negotiate," he says. "They know there are no real consequences. Organizations that enter into the negotiations have to understand that obstructing negotiations has its consequences."

It is important that any collective actions taken be structured so that they do not adversely effect patient care, and this can be done, he states. "The strike has to be against the employer, not against the patient. You have to figure out ways of going on strike but ensuring there is triage, so that people who need care can still get it."

An example of such an action, he says, would be physicians continuing to provide care but refusing to fill out the paperwork necessary for the hospital to bill for the service. "The patients are still getting the care, but the hospital cannot collect its fees."

However, PRN warns its members that such actions can be considered "partial strikes," which are illegal under many state labor laws.

No health care provider wants to go on strike at their workplace, White emphasizes.

If hospitals and other facilities would act proactively to include different groups of providers in organizational decisions, most of these problems could be averted.

"No. 1, there should be nursing representation on the ethics committee," she says. "And, the committee should be attentive to issues like staff turnover rates among nurses and other health care professionals. They should know something about the context in which care is being delivered: about the number of unfilled positions, patient-staff ratios, and the level of experience on different units. The hospital ethics committee can exert a lot of positive power by speaking about issues related to the workplace, have orientation sessions for new staff, those kinds of things."

A significant increase in the number of cases referred to the ethics committee should also be a red flag that there may be workplace and staffing issues at the core of the problem. "If the committee is seeing more and more cases, this is a symptom of workplace issues that at least ought to be known about, if not remedied."

Sources

  • Susan Adelman, MD, 515 N. State St., 13th Floor, Chicago, IL 60610.
  • Robert Weinmann, UAPD, 1330 Broadway, Suite 730, Oakland, CA 94612.
  • Gladys White, RN, Center for Ethics and Human Rights, American Nurses Association, 600 Maryland Ave. S.W., Suite 100 West, Washington, DC, 20024-2571.