The novel SARS-COV-2 virus is the cause of the most disruptive pandemic of the 21st century so far. The immense level of globalisation the world is seeing at the moment, which proved to be a recipe for disaster in combination with the high transmission rate of the novel coronavirus, prompted an immense response worldwide.
In spite of some of the efforts, which included travel restrictions, partial or total lockdowns and many others, public health systems around the world are often overwhelmed and undersupplied. Some medical professionals found themselves unprotected, risking not only getting themselves infected, which often happens, but also their loved ones.
The lack of (competent) action on behalf of governments determined many of those professionals to threaten resignation, thus sparking talks among government officials as to how they could prevent that from happening, making the debate at hand extremely relevant. Should governments revoke a medical professional’s medical license if they resign during a pandemic?
This question will be answered in the following debate. We invite you to read it and decide for yourselves which side is the most persuasive and convincing. We hope that you will find it just as interesting as we did!
Filip is a fourth-year Bachelor student at the Faculty of Law, Babeș-Bolyai University, who participated in numerous international competitions and conferences. The most notable are the European Social Innovation Competition 2018, where he was one of the semi-finalists, Model European Union Strasbourg 2018, Youth Innovation Competition on Global Governance (YICGG) 2018 Chongming and YICGG 2019 Jakarta.
Botond Zoltan Petres
Botond is a fourth-year Bachelor student at the Faculty of Law and a Master’s student at the Faculty of Economics and Business Administration of Babeș-Bolyai University. His main field of interest is International Commercial Law and International Arbitration. Botond has already published four scientific articles, with another being in the works, and is a grantee of the Faculty's special scholarship for scientific activity
Opening Statement - Filip
The question addressed seems at first easy to answer. One only has to look at a given state's legislation and at the contract signed between the employer and the employee (in this case the medical practitioner). A thorough lawyer can do this and easily find an answer. In reality, this apparently simple and straightforward approach offers no answer to the given question: whether or not governments SHOULD be allowed to do it, not whether they CAN do it. That means that this debate must revolve around the ethical and moral dilemmas presented in the question, not around matters of legality.
Having established the method I will employ to answer the question, I will now look at the underlying principles behind the dilemma; we need to see the bigger picture, so to say. In the following discussion I will not talk about whether or not governments should have the competence to give or revoke medical licenses, nor will I enter philosophical debates on the role of government or the boundaries of the 'limited' government. Instead I will focus on what I consider to be the underlying issue in this case: should doctors be forced to put the interests of society above their self-interests? In an extreme scenario, such as a pandemic, should the concerns of doctors for their safety, health, and well-being be trumped by their duty to society? Does such a duty even exist?
For the last question, an answer comes easily. Physicians, by definition, are really the only people who can fight the disease during a pandemic. Sure, the military or the police force may step in and enforce a lockdown, citizens may stay at home to limit the spread of the virus or bacterium, but doctors are the only ones who have the knowledge and abilities to treat a sick person. Just as a lawyer has a duty to represent a person in court, doctors too have a duty to help heal people. The comparison is actually lacking, since a lawyer may refuse a client based on any number of reasons, but there are very limited possibilities for a doctor to refuse a patient. Maybe a more fitting comparison would be to the judge herself, since she cannot decline to decide a case. Indeed, the existence of a duty to society is reflected even in the fact that doctors swear the Oath of Hippocrates when they begin their career, a highly solemn and meaningful ceremony, which proves the elevated importance of this profession in our society. This significance stems not only from the immense amount of work which is required to become a physician, but also from the vital role which medicine plays in the life and well-being of any community, hence the indispensable character played by them in times of emergency.
‘But surely there must be some limits to this duty?!’, one would say, ‘You cannot force people to work in a field just because they were trained for it - that would be forced labour’. And under normal circumstances, in a democratic and liberal society, such a person would be absolutely right. But even the most democratic and liberal societies recognise some forms of ‘involuntary’ labour as legitimate. Community service and (in some instances) mandatory military service are perfectly legal forms of such work. Furthermore, some occupations are considered vital in certain situations and people practicing them are not allowed to refuse to do the work. Think of a soldier, for instance. While she can leave the army almost freely in peace time, during a war such an act would constitute desertion and would be severely punished. Some democratic states do not allow even for teachers to go on strike, since they consider education to be of national interest and vital for society. The same argument can be extended to medical practitioners. In stable and peaceful times, doctors should have the freedom to quit and pursue whatever path they choose, subjecting their choice to common labour legislation and specific medical regulations. Yet during an emergency, just like in war, society cannot lose its frontline workers. Doctors, just like soldiers, are the only ones able to directly fight the disease. And they too, just like soldiers, have taken an oath to do so. Why should one be able to break his oath freely when most is expected of him/her, while the other will be punished greatly for such an act? How would you feel if the surgeon decided to quit in the middle of your operation?
Opening Statement - Botond
There is considerable literature regarding physicians’ ethical obligation to treat their patients during a pandemic, but from a legal point of view the situation is analysed in a concise fashion. The premise which I will be attempting to prove is that sanctioning a resignation (by revoking a medical professional’s license) can be a form of forced labour. To have a broader perspective, I will briefly present the ethical considerations standing behind the common perception regarding the duty of a physician. That perception is based on the following assumptions:
- physicians have ‘assumed the risk’ associated with infectious pathogens when they had committed themselves to their profession. A study conducted by Samuel J. Huber and Matthew K. Wynia published in the American Journal of Bioethics in 2004 analysed SARS and its relation to the healthcare system, claiming that any briefing of the medical literature from the last two decades shows that infections remain ‘ubiquitous and problematic’ and due to these dangers, medical professionals have consented by their very choice of profession to a greater than average risk;
- there is an existing ‘social contract’ which implies that healthcare professionals should work despite the greater risk. This assumption employs as a premise the fact that society guarantees these professionals a special social status and certain privileges in exchange for their role in promoting health;
- from the perspective of public interest, physicians are sole possessors of the ability to care for the population, thus being reasonably expected of them to do so.
The relevant legal provisions begin with the Forced Labour Convention, enacted in 1930 by the International Labour Organization. It defines forced labour as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. It also institutes cases of emergency as an exception. Also, we can take into account the Convention for the Protection of Human Rights and Fundamental Freedoms, which states in Art. 4 that compulsory or forced labour is forbidden.
As we are much more familiar with it, I will analyse forced labour in context of the European Convention on Human Rights, which also states that any service enacted in the context of an emergency, calamity or threat to the well-being of the community should be exempted. This exception is common to all conventions mentioned above under different phrasings. However, I firmly believe that the threat of revoking a medical license upon a resignation can produce a de-facto compulsory labour, which cannot not be accepted and I will explain below why this exception should not be applicable in this case.
A very important aspect of this debate is that no physician previously consents to the working conditions which usually exist under a pandemic, nor any possible sanctions for the decision to resign. Additionally, regardless of their profession, practitioners still have their right to life guaranteed, and its protection is a positive obligation for any government. The situations in which professionals threaten resignations are usually the ones in which that state does not fulfil its obligations to assure an effective right to life through proper protective equipment. As any matter regarding restrictions of human rights, a proportionality analysis is required. It becomes evident that expecting doctors to expose themselves to unsuitable conditions is highly disproportionate and unreasonable, even if someone has previously assumed a similar risk. And this is precisely the reason why I propose the inapplicability of the exception mentioned above, because it should be conditioned by the proper work environment provided by the government. As long as that is not assured, the exception should not stand and any sanction equates with forced labour. For example, a firefighter has the duty to rescue people from a burning house, but not when it is on the verge of collapse, moreover, not without proper equipment. How can we expect otherwise of health professionals?
Filip begins by setting the parameters of the debate, explaining how the primary question is not whether states could take such actions, but whether they should, therefore invoking the moral aspect of the discussion as being the most important. Furthermore, he underlines the vital role played by medical professionals during a pandemic and the exclusivity of the ability to act which comes along with a medical degree, which translates into a duty to act. This duty is only strengthened by the urgency brought forward by the pandemic. In contrast, Botond chose a more pragmatic approach, namely, if such an action is legal under the standard put forward by existing regional and international conventions. Looking at applicable provisions, he considers revoking the licenses of physicians a sanction which transforms their work into forced labour. Moreover, he argues that the exception enacted by the Forced Labour Convention and others he mentioned should only be applicable provided proper workplace conditions exist, therefore guaranteeing, to the extent to which it is possible, any medical professional’s right to life.
Rebuttal - Filip
The three main arguments my colleague has based the discussion on are the following: first, revoking the medical license in cases of resignation is a form of coercion and the work done in such conditions is to be considered forced labour under international conventions. Secondly, medical practitioners did not give their consent to work in such extreme situations, namely a pandemic, thus, the conditions under which they have pledged their oath are no longer current. And lastly, we cannot expect doctors to be willing to do their job, if the government does not fulfil its obligation to provide the necessary medical equipment to ensure their safety.
The first argument - that of legality - is quite easy to debunk. My colleague himself has brought the counterarguments forward. All conventions prohibiting forced labour have an exception to that principle: cases of emergency where the safety of the community would be severely and disproportionately affected. Article 2 paragraph 2 d) of the Forced Labour Convention specifically excludes the work exacted in cases of epidemics from the scope of forced labour. In a similar manner, the European Convention on Human Rights states that ‘the term <<forced or compulsory labour>> shall not include any service provided in case of an emergency or calamity threatening the life or well-being of the community’. The current situation falls, by any reasonable standard, within this exception and the provisions imposes no conditions which states must respect in order for labour to not be considered forced, precisely because the events which fall under it are of exceptional nature and require swift action in order to mitigate the danger which affects the community as a whole.
The assertion that medical practitioners should be able to resign, if the government does not fulfil its obligations to provide the necessary equipment is also vague and misreads what the discussion is about. What is the right amount of equipment? How modern and of what quality does it have to be? What if the government cannot afford it? These are technicalities that hijack the debate. Even if instances exist where there is an extreme lack of equipment, such arguments should be avoided because they open a Pandora's Box of particular and exceptional situations: what if the medical practitioners have small children? What if they have elderly people in their care? These hypotheses deviate the debate from its original dilemma by presenting a myriad of exceptional circumstances.
The question about consent - whether or not medical practitioners have previously assumed the risk of working in extreme conditions such as a pandemic - is both valid and hard to answer. Our society defends and guarantees the individual freedom of its citizens; and a core concept of our legal system (both criminal and civil) is consent. Yet is this really the case with doctors? Are pandemics so rare and unpredictable that they ought not to be taken into consideration when a would-be medical practitioner assesses the risks of her future career? I have previously drawn the comparison between doctors and soldiers, and some would say that this was a stretch. One could argue that soldiers assume the risk of going to war: this is what they are trained for, this is what they prepare for. Yet I fail to see why, in the current socio-political context, a war is more predictable than a pandemic. The last large-scale full-blown military conflict was the Second World War and most countries have not been involved in a war in more than 70 years (despite the vast media coverage of existing ‘small’ conflicts). On the other hand, there have been multiple pandemics and more than 50 epidemics/outbreaks since the year 2000. The truth is that in our globalised and highly connected world, a pandemic is a far more often and guaranteed occurrence than a war.
Therefore, given the predictable nature of the current situation and the number of public figures which have warned against a devastating pandemic for years, it is quite easy for medical professionals to envision the worst-case scenario they might encounter once they get licensed.
Rebuttal - Botond
In spite of Filip’s moral approach, I must present an illustrative case. The European Court of Human Rights analysed the case of Mr. Steindel from Germany, who was an ophthalmologist, operating a private practice. He was under an obligation to provide emergency services according to a programme implemented by local authorities. The Court highlighted the following coordinates when ruling out the case as inadmissible. Firstly, the activities did not fall outside the scope of a physician’s normal professional activity. Secondly, the activity was remunerated and the objected obligation was based on professional solidarity, as the services were part of a programme whose goal was to unburden practicing physicians in order to ensure the availability of medical services during the night and the weekends. But the most important factor was that the obligation was not disproportionate. He only had to work six days in a three-month period.
It might seem counterintuitive to present an inadmissible case, but the criteria put forward by the Court will help ground the debate and provide a reference when discussing the issue of proportionality, which was the most important point of contention in the analysis provided by the Court. Forcing a physician to provide additional services in a safe context might be a proportionate measure, but withdrawing his medical license for refusing to work seems more than disproportionate, especially in potentially life-threatening conditions. The dangers medical professionals face against this pandemic are already well-known and I assume uncontested in this debate. The number of deaths among them is proof enough. Filip is fairly reasonable when he implies that in the presence of danger affecting the whole of society we should all fight. However, under no circumstances can I accept that it is reasonable to impose such a disproportionate burden on the shoulders of every medical worker. To make matters worse, the pandemic has no end in sight. Revoking someone’s medical license, bearing in mind these circumstances – does not fit well in a democratic landscape.
Even the moral part of the debate is not as one-sided as one might think. I have previously stated the lack of consent in the face of the unknown, possibly continuous, and deadly conditions. It is erroneous to believe that only by accepting to work with infectious diseases one implicitly accepts every possible scenario, especially being unable to resign under any circumstances. It is safe to assume that generally civilians do not give away their right to protect themselves when making the decision to join a profession, no matter how dangerous it might become at times. A soldier knows from day one that he or she might be subjected to life-threatening situations and under no circumstances should they run away from danger. It is intrinsically related to the nature of the job. They consent to abolishing the standard by which their right to life and others are being measured compared to the rest of society. A medical professional’s job description and the oath they take expressly state their general duty to treat people and the manner in which they should do so, they don’t expressly waive their right to choose their life over someone else’s. Therefore, the decision to treat patients in unacceptable conditions should be strictly optional.
Continuing with the ‘social contract’ point of view, one can imagine that society offers a quid-pro-quo type of deal: sacrificing in case of a disease for certain privileges. Which might be true, but once again it does not imply that paying back must happen even when someone risks paying with their life. Similarly, regarding their specialised skills, having any does not create an obligation to use them to the point in which lives are at stake. We clearly have people working in equally indispensable positions, professions which are generally not even considered civilian professions (firemen, policemen) and even they do not face these sanctions. As I mentioned before, a firefighter is not obligated to enter a house when it is at the brink of collapse, police protocols require policemen to wait for backup before intervening and so on, all these examples illustrating how before any duty come safety measures.
On one hand, Filip continues the debate by challenging Botond’s interpretation of the exception which could be applicable to medical professionals during these times. He insists that there is no reasonable motive as to why this pandemic does not fall under it and therefore exempting the work of medical professionals from forced labour. Furthermore, he considers the issue of lack of protective equipment to be one of many circumstances which could be inefficiently invoked against the duty to treat patients, but also the inexistence of a standard by which these circumstances could be analysed and awarded efficiency in a just manner. Lastly, he argues that pandemics are becoming more and more frequent in our highly globalised world, which makes it difficult to state that the current pandemic is an exceptional situation which could not have been foreseen by medical practitioners. On the other hand, Botond begins his rebuttal by presenting an ECtHR case which contextualises the debate by providing an example of a reasonably imposed duty to treat patients outside the regular practice of a medical professional. He stresses the importance of proportionality and how the Court took notice of the general context, the environment and the length of time during which the obligation to work was imposed. He proceeds to highlight how in comparison with Mr. Steindel’s case, practitioners face not only significantly more dangerous conditions, but also a disproportionate sanction, which looks nothing like the circumstances which prompted the Court to consider the obligation to practice proportionate. Moreover, he makes a comparison between the expectations and vision of civilians when aspiring to the medical professions and those of military professionals, expanding on his argument regarding consent by underlining how it operates differently when it comes to these categories, making it incorrect to compare them and to have the same requirements of both. Lastly, when looking at other professions, according to Botond, policemen and firefighters (traditionally considered as non-civilian) we can observe that they put a high price on safety measures even when the duty to act is present
Conclusions - Filip
The question at hand is a delicate one with no easy and straightforward answer. Too often we view members of society as cogs in a machine and justify their existence through their purpose in society. We forget that the medical practitioners we are talking about are individuals just like us, vulnerable people with fears and families, in need of safety and security. However, on a societal level, a balance needs to be struck between the interests of the individual and the safety of society as a whole. Above I have tried to prove just that. After having established that the discussion is an ethical dilemma, rather than a legal debate, we have seen how medical practitioners have voluntarily taken on the obligation to aid people with health issues. Furthermore, the risk they assumed encompassed (or should have encompassed) extraordinary circumstances such as pandemics, since they are not really that rare or unforeseeable. Lastly, I have also proved that it is quite clear that mandatory labour in emergency situations such as pandemics is excluded from being considered forced labour under the existing international conventions.
All in all, revoking the license to practice for medical professionals who resign during a pandemic is both a legitimate and reasonable approach, in line with the ethical and legal principles of our society.
Conclusions - Botond
One of the fundamental principles of our society is the presumption of good faith. We assume that the people interacting with us will try to preserve their interests and maximise their outcome without violating our rights and interests. Although, when it comes to the current situation, there are attempts to ignore elements of the complete factual situation, pointing fingers at doctors for their alleged bad faith. To revoke someone’s license only because he resigns in a certain situation is not just a disproportionate measure potentially violating human rights conventions, but it is also based on the following premise, without duly investigating the factual situation: that resigning during a pandemic is an illegality deserving ‘capital punishment’ for one’s career. That is just the contrary of what I was previously talking about – namely, that we must act assuming the other side acts in good faith. Our society is increasingly individualistic, yet we expect from certain categories a high level of selflessness. We expect from a medical professional to dedicate many hours a day and to potentially give up their life. But when they fall short of this unachievable standard, we immediately call on their accountability as their actions must have been led by a good amount of bad faith and selfishness. We ignore the fact that in situations when resigning occurs, it turns out to be a highly complex and difficult situation.
By Patricia Cîmpian
Disclaimer: The arguments presented in this debate do not represent the opinions of the two authors.
This material was published in Lawyr.it Vol. 6, September 2020, available only online.