GHANA: Doctors Dragged to Court … As GMA Prepares to Withdraw Emergency Services Today.

April 2013 The Chronicle; An Accra-based legal practitioner, Tuinese Edward Amuzu, has a filed writ at an Accra High Court, seeking a declaration that the strike action embarked upon by the members of the Ghana Medical Association (GMA) is unlawful, and that it contravenes section 163 of the Labour Act 2003 (Act 651). The plaintiff is also seeking an order of perpetual injunction to restrain the defendant from ever embarking on a strike action, or a partial withdrawal of services.

The General Secretary of the GMA, Dr. Frank Serebour, whose outfit has embarked upon a strike action in protest against discrepancies in their salaries, issued a brief statement over the weekend that “I am directed by the National Executive Council of the Ghana Medical Association (GMA) to remind all doctors of the second phase of the roadmap, as put up on the 14th of April 2013 by the GMA.

The statement continued: “Per this roadmap, all doctors are directed that from Monday April 22, 2013, all doctors should withdraw emergency services, and attend to only in-patients till their discharge.

“This has become necessary, because the issues of the conversion difference and reduced pensions have not been resolved as at now.”
But, in his statement of case accompanying the suit, the plaintiff argued that Section 163 Labour Act, 2003 (Act 651), prohibits members of the essential services, and this includes those providing medical services, from embarking on strike actions, whilst Article 42(b) of the Constitution enjoins Ghanaians to uphold and defend the law.

According to him, on 8th April, 2013, the Defendant/Respondent announced a partial withdrawal of services from all public health institutions in the country, contrary to section 163 of Act 651.  According to Edward Amuzu, being a citizen of Ghana, he seeks to uphold and defend section 163 of Act 161, and to protect his legal right to access health services in public health institutions.

Dr. Frank Serebour told Citi FM over the weekend that although the Association was yet to be served with the writ, the developments come to them as no surprise.

“This not the first time somebody has filed a writ against us for embarking on a strike action. They can file, we have our lawyers. Our lawyers will meet him in court, and then they will battle it in court. Nobody can force us to work; we are not worried at all,” he noted.

The following is the unedited version of the suit filed at the court.

1. FACTS

Section 163 Labour Act, 2003 (Act 651) prohibits members of the essential services, and this includes those providing medical services, from embarking on strike actions. Article 42(b) of the Constitution enjoins Ghanaians to uphold and defend the law. On 8th April, 2013, the Defendant/Respondent announced a partial withdrawal of services from all public health institutions in the country, contrary to section 163 of Act 651. Being a citizen of Ghana, the applicant seeks to uphold and defend section 163 of Act 161, and to protect his legal right to access health services in public health institutions.

2. ISSUE FOR DETERMINATION

Whether the Applicant has a right, which this Honourable Court ought to protect by compelling the Respondent to suspend or call off the strike action pending the final determination of the instant suit.

3. STATEMENT OF LEGAL PRINCIPLES

By Order 25 rule 1(1) of the High Court Civil Procedure Rules, 2004 (C.I 47) this Houourable Court “may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just.”

On the authorities, an applicant seeking an injunction must establish the following:

(i) the applicant must have a legal or equitable right that can be asserted in law;

(ii) whether on the balance of convenience the applicant will suffer more harm if the injunction is not granted ;

(iii) whether damages will adequately compensate the applicant in the event that the dispute is finally resolved in his favour. Owusu v Owusu-Ansah [2007-2008]2 SCGLR and Vanderpuye v Nartey [1977]1 GLR 428.

4. LEGAL ANALYSIS

EXISTENCE OF LEGAL OR EQUITABLE RIGHT

Article 42(b) of the Constitution enjoins every Ghanaian to uphold and defend the law.

Upholding and defending the law includes the right to bring an action to ensure that the law is complied with.

Section 163 of the Labour Act,2003(Act 651) states, inter alia, that workers engaged in an essential service shall not resort to a lockout or strike in connection with, or in furtherance of any industrial dispute involving the workers in the essential service. Section 175 of Act 652 says that “essential services” includes areas in an establishment where an action could result in a particular or loss of life, or pose a danger to public health and safety, and such other services as the Minister may by legislative instrument determine.

Because the Respondent falls within the essential service category, and its members are prohibited by the law from embarking on strike actions, the Applicant, pursuant to article 42(b)of the Constitution, is entitled to defend section 163 of Act 651, by bringing an action for the enforcement of the said section 163 of Act 651.

Furthermore, every Ghanaian is entitled to access health services within the terms of the law.

This entitlement finds expression in section 3(2) of the Ghana Health Service and Teaching Hospitals Act, which stipulates that the Ghana Health Service has a duty to “ensure access to health service at the community, sub-district, district and general levels, by providing health services or contracting out service provision to other recognised health care providers.”

Without doubt, a critical component of access to the healthcare is the availability of the doctor to attend to all manner patients and health concerns.

That being so, the public sector doctors have been employed and are paid out of public funds to provide medical services to Ghanaians. Embarking upon a strike action or a partial withdrawal of services, the Respondent has denied or curtailed the right of Ghanaians, including the Applicant, to access fully medical services in the public health institutions. This unlawful restriction or curtail of access to the health constitutes a serious threat to the health of many Ghanaians, including the Applicant. Therefore, the Respondent’s strike action violates the right of the Applicant to access in the public health institutions. This is the case, even if the defendant association is dissatisfied with the decision of the NLC, regarding the schedule for their payment. If the respondent association is dissatisfied with the decision of the NLC, it must take advantage of the appeal processes provided for under the Labour Act, for a resolution of their grievance through a lawful channel.

WHO WILL SUFFER MORE HARM?

The applicant and Ghanaians will suffer more harm if the injunction is not granted. The circumstances for accessing health services have become more difficult with the strike action by the Respondent. Every day this unlawful strike persists, it unlawfully curtail access to healthcare for Ghanaians, leading to immense pressure being put on the few hospitals such as 37 Military Hospital that still provide full medical services. As such, as by logical inference, the quality of service in the health institutions that provide full medical services will be negatively affected, and their facilities will be unreasonably stretched. On the contrary, no harm is suffered by the Respondent if this injunction is granted. If this court holds eventually that the Respondent has a legal right to strike, the Respondent can embark on a strike action.

DAMAGES INSUFFICIENT

Damages cannot adequately compensate the Applicant in the event the dispute is finally resolved in their favour. The lost period for accessing health can never be regained through the payment of damages. Patients who lose their lives on the count of the strike cannot be brought back. No amount of damages may be sufficient to cure impunity, as is being demonstrated by the Respondent. In light of the above, we pray this Honourable Court for an order of the interim injunction to compel the Respondent to suspend, or call off the strike, until the final determination of the instant suit.

 

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