by Nazahath Ahmed
From Spanish Flu (1918-1920), Asian Flu (1957-1958), Honk Kong Flu (1968-1969), Russian Flu (1977-1978), SARS (2002-2004), H1N1 Flu Pandemic (2009-2010), avian influenza A (H7N9) Virus (2013) to the ongoing Covid-19 Pandemic, numerous epidemics have emerged throughout the past century.1 While these epidemics and pandemics can lead to long term effects such as high mortality, economic recession, its short term effects such as high healthcare demands, rationing healthcare supplies, extraordinary stress and high absenteeism are inevitable.2 It is the consensus that the healthcare sector bears the brunt of these viruses more than any other sector as it is often assumed that healthcare professionals have a duty to work, even at the expense of their own lives and the lives of their loved ones.
Historically, physicians were often shamed for their lack of involvement in times of pandemics, their response was often regarded as being erratic.3 This is also evident from the laws that were enacted to forbid health workers from leaving during epidemics.4 However, the literature suggests that there has been an evolving acceptance of the sense of duty and records show that during the SARS epidemic, the overall response of health care workers was generally regarded as exemplary.5 As uplifting as the statistics are, when compared to the previous epidemics and pandemics, there is still a lot of perceived stigma associated with the duties and obligations of the healthcare workers. However, in the light of the recent events, healthcare workers from all over the globe have taken to social media raising their concerns, their exasperated voices clearer than ever.
Human Rights Watch has reported that the Health Ministry in Egypt sent doctors and medical teams to a quarantine facility without their prior consent and knowledge of the risks involved.6 JAMA Network Open, has confirmed that in China, a total of 1716 (3.8%) of the positive cases were healthcare workers out of which 14.8% cases were classified as severe or critical.7 Similarly, Médecins Sans Frontières (MSF) (Doctors without borders) have reported that more than 3,500 health workers in Italy have tested positive for COVID-19.8 Amnesty International has also reported that Russian authorities have detained the leader of a medical workers union, Dr Anastasia Vasileyeva, who exposed flaws in Russia’s healthcare system’s COVID-19 Pandemic preparedness.9 Also, the numbers on websites such as covid-heroes.com, www.medscape.com and aljazeera.com paying tribute to the doctors, nurses and medical staff from around the world who lost their lives in the fight against COVID-19, has exponentially increased.
Considering the impact of this COVID-19 Pandemic globally, and the possible strains it could have on the health care system of Maldives, it is important for healthcare workers to understand their rights and responsibilities.
Statutory and Regulatory Obligations
The two statutes that are potentially relevant to health care professionals are the Healthcare Professionals Act10 and Health Services Act11. The Healthcare Professionals Act provides a basic guideline for practising healthcare professionals in the Maldives and lays down the mandate and powers of the Councils responsible for monitoring and implementation of such healthcare standards. The Health Services Act, on the other hand, provides a more indepth look at the standards that health service providers must adhere to and also highlights the rights and responsibilities of patients.
While these two statutes serve as a basic guide to regulate the code of conduct, unfortunately, none of the Acts provides much guidance on the duty and standard of care that must be provided in healthcare emergencies such as pandemics. So the questions still remain, do the healthcare workers have a duty to work during pandemics? What is the applicable standard of care?
(a) Healthcare workers’ duty to work during a pandemic
It is the common consensus that healthcare professionals have an inherent obligation to treat patients during disasters, regardless of the potential dangers. The Health Services Act, in stating the code of conduct of healthcare workers denotes that healthcare workers must put the welfare of the profession and nation before self-interest.12 Also, the Health Services Act, states that service providers must provide services that are evidence-based and in alignment with the national and professional standards.13 It is worth noting that none of the above mentioned Acts, nor does the Public Health Act14 place any direct obligations or speak of any implications on the healthcare workers in general for not carrying out work during epidemics and pandemics.
However, the Regulation, Guidelines and Rules of Procedure15 published by the Maldives Medical and Dental Council (“MMDC”), states that Physicians should enlighten the public concerning quarantine regulations and measures for the prevention of epidemic and communicable diseases and when an epidemic prevails, a physician must continue his labours without regard to the risk to his own health. Also, the Good Medical Practice: A Code of Conduct for doctors in the Maldives,16 published by the MMDC states that During emergencies, the good medical practice involves taking decisions effectively and providing care with the objective and best outcome for the patient, taking into account own safety, skills, available options, resources and the impact that might bring to other patients who witness the event. Doctors are expected to continue care until it is no longer required.17
The Ethical and Professional Code of Conduct for Nurses/Midwives, published by the Ministry of Health provides that nurses and midwives must, (a) act ethically, uphold and maintain the reputation and standards of professional practice, knowledge and competence, and (b) support the nursing profession to attain and maintain public trust and confidence while serving the broader interest of the society.
The Healthcare Professionals Act established three councils to set standards and to self govern the Healthcare professionals. The three councils created are (a) Maldives Medical and Dentistry Council, which has the mandate to oversee doctors and dentists, (b) Maldives Nursing and Midwifery Council (“MNMC”) which has the mandate to oversee nurses and midwives and (c) Maldives Allied Health Council which has the mandate to oversee healthcare professionals other than doctors, dentists, nurses and midwives. Each of these councils is entrusted to set standards and has the power to take steps against any professional within their mandate, who fails to adhere to established professional and ethical standards.
Reflective from the language of the law and the provisions in the codes of conduct, it can be inferred that the healthcare professionals do have an obligation to provide their services in epidemics and pandemics. However, given that both MMDC and MNMC have not enacted the necessary regulations, not much can be said about the punitive measures that can be taken against healthcare professionals who are found in breach for malpractice or misconduct.
That being said, it is to be noted that from an employer/employee perspective, the law offers various exceptions to the presumed duty to work during pandemics. For instance, Section 42 of the Employment Act18 states that employers must grant 30 days of paid sick leave and Section 47 of the Act provides that each employee is entitled 10 days of family responsibility leave in order to attend to important obligations such as caring for ill family members. Thus, family responsibility leave and sick leave can be considered two scenarios where healthcare workers can stay away from work without being subject to any sort of liability or jeopardizing their employment status.
The World Health Organization’s Interim Guidance19 published on 19 March 2020, which highlights key considerations for occupational safety and health, provides that healthcare workers should be provided adequate Infection Prevention and Control (IPC) and Personal Protective Equipment (PPE) supplies (masks, gloves, goggles, gowns, hand sanitizer, soap and water, cleaning supplies) and that they should be given training on occupational safety and health, including refresher training on infection prevention and control. The guideline advises healthcare workers on staying home when ill and maintaining appropriate working hours with breaks. It further states that employers must allow healthcare workers to exercise the right to remove themselves from a work situation where they have reasonable justification to believe in imminent and serious danger to their life or health and to protect the healthcare workers exercising this right from any undue consequences.
In addition to this, the Employment Act makes it mandatory to implement and safe workplace procedures and for employers to provide protective equipment in the event that the nature of the work is such that it is not possible to eliminate or control health hazards arising out of work.20 The Act also provides that employees have a right to refuse work given that there are reasonable grounds to believe that a serious hazard to health or life exists.21
Based on the above-mentioned provisions in the Employment Act, one may argue that healthcare workers have a reasonable ground to refuse to work during pandemics. While such a matter has never been decided by any of the judicial authorities in the Maldives, it has been brought before courts in other jurisdictions. Although it appears that the courts are a bit reluctant to buy into this argument, their main contention being that risks are an inherent part of healthcare workers’ jobs and that pandemics are naturally occurring dangers that are out of the control of the employer, there have been instances where it has been decided that the imminent danger need not be abnormal.22 Also, some courts have protected individuals who are seen to use the right to refuse work given that they have done so in good faith.23
(b) Applicable standard of care during a pandemic
Standard of care can be simply defined as the standard of conduct to which one must conform to and is that of a reasonable man under like circumstances. A person in breach of this standard is often found and held liable for negligence.
Even though, the enacted laws have not provided a precise idea of what constitutes as the standard of care, Healthcare Professionals Act, states that healthcare workers must provide care with honesty, faithfulness and care, provide care in a manner that does not cause any harm intentionally or knowingly, or be negligent on taking necessary steps to avoid such harm, provide care without discrimination, and conduct in a way that upholds professional and ethical standards and the rights of the recipient.24
While similar provisions are laid down in the Good Medical Practice: A code of conduct for doctors in the Maldives, it is the courts that have shed light on this obscure issue. In the case, Ahmed Ihsan v Ministry of Health25, the Supreme Court of Maldives has laid out the three elements that must be established in order to prove negligence. Firstly, the medical service provider must be in breach of the duty of care owed to the patient. Secondly, a loss must have been incurred due to the said breach. Thirdly, a causal relationship must be established in the chain of events.
Nonetheless, it is important to stress on the fact that none of the healthcare laws, codes of conducts nor the case laws provide any insight on an altered standard of care or “crisis standard of care” that could be applied during the times of disasters. Meaning that healthcare professionals are held to the ordinary standards of care and that a breach of this standard will likely prove a healthcare professional negligent. This can be rather detrimental as it can lead to a lot of frivolous malpractice claims.
The currently enacted laws only provide the basic guidelines for regulating the sector, there is no denying that the law needs to address a lot of the mainstream issues. While amending the current laws will prove to be an administratively burdensome task, specifically during tough times where the functions of the legislative body cannot be resumed in full force, the enactment of a special sunset law is more appropriate. Such an Act can contain a number of provisions intended to support the health care system in its efforts to prevent, detect and treat patients for COVID-19, including, without limitation, provisions that:
- Grant paid leave for the vulnerable categories of healthcare workers such as those with disabilities, pregnant ladies etc;
- Establish liability protection of healthcare workers working during this pandemic by means of altered standard of care;
- Limit the liability of volunteers and volunteer organizations providing volunteer services during this pandemic;
- Expedite licenses for retired or inactive healthcare professionals to re-enter the practice;
- prioritize the mental health and safety of healthcare workers;
- address the liability of the employer for injury attained at work;
- Address the limited liability immunities for suppliers of essential protective equipment, drugs and devices for combatting COVID-19; and
- Financial relief for healthcare providers
The above being a baseline for issues that needs to be addressed in lieu of the current pandemic, we ought to do more for healthcare workers. Because our healthcare workers on the front of this pandemic deserve more than our gratitude.
1 Saunders-Hastings, P. R., & Krewski, D. (2016). Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission. Pathogens (Basel, Switzerland), 5(4), 66.
2 Damery, S., Draper, H., Wilson, S., Greenfield, S., Ives, J., Parry, J., . . . Sorell, T. (2010). Healthcare workers’ perceptions of the duty to work during an influenza pandemic. Journal of Medical Ethics, 36(1), 12-18. Retrieved March 28, 2020, from www.jstor.org/stable/20696709.
3 Huber, S. J., & Wynia, M. K. (2004). When Pestilence Prevails … Physician Responsibilities in Epidemics. The American Journal of Bioethics, 4(1), 5–11.
5 Coleman, C. H. (2008). Potential Penalties for Health Care Professionals Who Refuse to Work During a Pandemic. JAMA, 299(12), 1471.
6 Human Rights Dimensions of COVID-19 Response. (2020, March 31). Retrieved from https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response.
7 Wu Z, McGoogan JM. Characteristics of and Important Lessons From the Coronavirus Disease 2019 (COVID-19) Outbreak in China: Summary of a Report of 72 314 Cases From the Chinese Center for Disease Control and Prevention. JAMA. Published online February 24, 2020.
8 Protecting hospital staff from coronavirus COVID-19 in Codogno, Italy (2020, March 30) Retrieved from https://www.msf.org/protecting-hospital-staff-coronavirus-covid-19-codogno-italy.
9 Russian authorities detain doctor who exposed flaws in COVID-19 response. (2020, April 03). Retrieved from https://www.amnesty.org/en/latest/news/2020/04/russia-authorities-detain-doctor-who-exposed-flaws-in-covid19-response/.
10 Law Number 13/2015
11 Law Number 29/2015
12 Section 50(b)
13 Section 35(e)
14 Law Number 7/2012
15 Retrieved May 04, 2020, from http://mmc.gov.mv/ethicals-codes-and-guidelines/good-medical-practice/.
16 Retrieved May 04, 2020, from http://mmc.gov.mv/ethicals-codes-and-guidelines/regulations-guidelines-and-rules-of-procedure/.
17 Section 2.4
18 Law Number 2/2008
19 Coronavirus disease (COVID-19) outbreak: Rights,roles and responsibilities of health workers, including key considerations for occupational safety and health (2020, May 04). Retrieved from https://www.who.int/publications-detail/coronavirus-disease-(covid-19)-outbreak-rights-roles-and-responsibilities-of-health-workers-including-key-considerations-for-occupational-safety-and-health.
20 Section 75
21 Section 77
22 Marshall v. Daniel Const. Co., Inc., 563 F.2d 707 (5th Cir. 1977).
23 Banyard v. N.L.R.B, 505 F.2d 342 (D.C. Cir. 1974).
24 Section 27
25 Case Number 2016/SC-A/05