Guest Post :
Doctors CBA is a very precarious Bargain
Its reported that a deal may be reached between doctors and the Government as the Collective Bargain Agreement (CBA) is back on the table. According to sources privy to the discussions, the two parties are set to delve into the contentious Article Four of the CBA that contains the new salaries. Of late, the parties centered the discussions on Article Three of the CBA, which entails the doctors’ rights. But are doctors’ celebration that the government now discussing CBA with them a worthy celebration?
I have my doubts, as I believe that doctors will be duped again and again until they really build what I call a bargaining chip. This would enable them enter this discussion in such a way that the government doesn’t have a win-win scenario as they have always had. In fact, discussing about doctors rights is a waste of time. Why? Because we know that when rights are split too much, it creates a situation where there is conflict of rights. We have basic human rights, then women’s rights, men’s rights, children’s rights, doctor’s rights, teachers’ rights, citizen’s and the rights of everything. In implementing these rights there will be a clash.
For instance, if the government was to pay everyone in this country what they ask, would they have money to invest in development? Will they have money to invest in public good which are the citizen’s rights? Remember these citizens are the same doctors, lecturers, teachers, nurses and public servants? What then should doctors focus on? Lets take a trip down the memory lane of this country’s industrial action and career choices.
Historical Background on Doctors Industrial Strike
Industrial action in Kenya is nothing new in all sectors of the economy. Kenyans have grown up with it, even some of the current doctors grew up knowing very well that doctors do go on strike. Historically there have been four sets of doctors’ strike. The first in 1972, then in the mid 90’s. The third followed in 2011 and the present being the fourth and longest. The doctors also know they are bound by the Hippocratic oath. Teachers, lecturers, pilots, policemen also had their share of strikes. It means that everyone grew up in full knowledge of the industrial action in their respective professions.
From the alleged 300% increment according to government sources, one can be forgiven to question their motivation for becoming doctors. Did they chose this profession expecting that the government will make their profession lucrative? Did they have a vision of the kind of doctors they wanted to be that could earn such money? Or they joined the profession for other reasons like prestige or the passion to serve humanity? If they joined the profession hoping that it will get more lucrative with time then its miscalculation. This is analogous to a young boy who wants to be a Roman Catholic priest with a wife and private wealth and joins the seminary before the Pope declares that Roman catholic priests can be married and have rights to private property.
If they joined the medical profession for service to society then the government has an obligation to improve their terms willingly without coercion. This is because according to Karl Max, every worker’s productivity is quantifiable, has a price, and can therefore be paid in legal tender. In that regard, doctor’s strike in Kenya is lawful. They have a right to proper terms and conditions of work, like any other Kenyan employee. It is, therefore, the duty of the employer to discuss and reach a middle ground without let or hindrance. But is it realistic in the Kenyan context? Can the kind of government we have be trusted with such a responsibility? The resounding answer is No! Should every time doctors being aware that the government won’t be responsible with regards to their well being be reminded about the Hippocratic oath? No, It won’t be fair either.
The Hippocratic oath that binds doctors from strike isn’t accurate, for priests, it’s a covenant whilst for doctors it’s a contract. The difference is that contracts can be broken but covenants can’t be broken. But the main issue is that doctors are dealing with an employer (government) that is notorious at breaking contracts especially CBA’s. They have broken this with teachers, nurses and lecturers, so there is precedence that they will break it again and that’s why I believe doctors aught to rethink their strategy.
Basing it on a CBA as it is, is precarious, as the government will just not honor. The fact that the government has never honored its pledge on any CBA in any sector should inform doctors that they need to change tact. I am told that being insane is to do the same thing over and over again expecting different results. That’s why I can bet that doctors won’t get what they are asking for even upon the renewed negotiation after the release of doctors’ union officials from prison. It is very dangerous to enter a negotiation with narrow alternatives, accept or reject especially where the giver has less to loose when you reject and you have all to loose whether you accept or reject since the giver isn’t trusted. I acknowledge that doctors are more organized this time round but what they don’t have is a bargaining chip and information that they can use to make the government blink first.
Strategic Turnaround Plan for Doctors
To overcome this, doctors need to do four things. First, bring citizens as the third party instead of having their patients. This because in any normal strike you would make the third party suffer so that the employer agrees terms with the service provider. For instance, in education lecturers and teacher will let students suffer so that government improves their terms. But when it comes to medicine, the third party is a patient that would loose their lives. This creates lots of moral dilemmas. There are several ways to do this and doctors are already trying that. But so long as the middle class don’t feel the pinch of the doctors strike and only the poor suffer, the government wont be under enough pressure to blink first.
They also need to educate Kenyans on what the CBA means in terms of its benefits to the public. In short, demystify healthcare so that the complex science that is so opaque to us can be more understood.
Second, instead of negotiating percentages, doctors should focus more on how to make the government implement the CBA. In fact, let them negotiate structures and policies not percentages as that’s what they have done too often and ended up with the same result, doctors strike. It true the CBA has some structures and policies that would help its implementation but if they are sufficient, why is the government finding it hard to abide? Doctors argue that the discussions shouldn’t be around renegotiating the CBA, as there was a tedious and informed process to the 2013 CBA. This is what informs the doctors sticking to their position of CBA or nothing. In that regard doctors are willing to negotiate from a position of how to implement rather than what should implemented.
On this basis, I would argue that doctors need more tools of implementation. The most effective way that doctors needs to involved in order to implement CBA is national budget process. A government speaks more through its budget. In that regard, doctors need to be at the center of action, budgetary allocation for healthcare with CBA allotted its share. Doctors need to include the budgeting element in the CBA this time.
The third thing, which I think, is more fundamental but I must be forgiven since I am neither a lawyer nor a medical doctor, is to review the Hippocratic oath and domesticate it within the Kenyan context. To address this, lets establish the origin of this oath. The Hippocratic oath is an ancient Greek document originating in approximately 400 BCE. It’s claimed that the document originate from a Greek philosopher, Hippocrates but there is lack of any evidence of the document having been written by him. Hippocrates born 430 BC was a Greek physician considered one of the most outstanding figures in the history of medicine. Historically, the oath has been used to swear in students at the beginning of a medical apprenticeship. The oath provides ethical guidelines for a singular doctor-patient relationship as opposed to a collective ethics code.
This individualistic approach to ethics completely changes after the medical experiments of World War II are discovered. This oath is still used in modern times but has been updated to fit with the contemporary language and culture.
In that regard, it is time Kenya updated it to fit Kenya’s modern language and culture. I understand the need for universality as doctors ideally can work anywhere in the world/ understand each other anywhere in the world but Kenya is a unique country given our governance history. There are so many things we borrow from the West and copy/cut paste them without knowing how they work within our context. What we don’t think about is that in developed world, people have respect for the law and even governments tend to adhere to the law. In Africa and Kenya for that matter that’s not the case. You can narrate all the government constitutional obligations that made us vote for the current constitution and find out that the government has implemented none of them and yet the government remains legitimate.
In developed nations, that would have never happened, someone would have resigned. Ask David Cameron, Gordon Brown, Tony Blair how they left office, they will tell you. For us when Mwai Kibaki lost in making the constitution for Kenya, he instead even became more legitimate and fired those who opposed him in the constitution making process and brought a lot of national division, post-election was the result of this. If it was in the United Kingdom, he was to retire as David Cameron did after loosing the Brexit vote.
Apart from government, Kenyans are not law-abiding citizens as such. Lets just take example of respect for public property, its really not upheld. That’s why anything that belongs to the public is to be looted and destroyed. Doctors’ obligations to patients can also be questioned at some point since there is lots of medical negligence and profiteering in healthcare. This raises the question whether there is a private sector interest in the sustenance of a dysfunctional/ collapsed public healthcare delivery system. Is there a hidden hand in frustrating the current attempt at revolutionizing public healthcare delivery because of the risk of eliminating private sector profiteering? How do we balance the interests? In that regard, the Hippocratic oath must have dependencies since both the doctors and government are guilty to some extent.
Contract or Covenant?
Doctors have responsibility and obligation to the patients but only when the government provides a conducive working environment. It’s a contract, not a covenant. With a Covenant you take and ask for God’s favor that’s why it ends with, “So help me God”. With a contract, I don’t think so, you just bind yourself and you need human intervention. With a covenant, you need God’s intervention. In that regard, in signing the Hippocratic oath, there must be the section, “so help me government”.
The fourth thing is that doctors need to change tact by negotiating from the point of view of interests, not position. This will get them the deal. Position here being CBA, that’s currently where they are. Why not negotiate from the point of view of interests. What is government’s interest and what are the doctors’ interests and how can we marry interests rather than positions.
According to Roger Fisher and William Ury, good agreements focus on the parties’ interests, rather than their positions. As Fisher and Ury explain, “Your position is something you have decided upon. Your interests are what caused you to so decide.” In that regard, defining a problem in terms of positions means that at least one party will “lose” the dispute. When a problem is defined in terms of the parties’ underlying interests it is often possible to find a solution, which satisfies both parties’ interests. This is what doctors need to get right!
This is a guest post from Dr.Fred Ogola, a Senior Lecturer on Strategy and Competitiveness from Strathmore University
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