21 October 2011

Ghana: GMA Challenges Capacity of Health NGO to Sue As Court Rules On October 25

The Ghana Medical Association (GMA) has challenged the capacity of the Ghana Coalition of Non-Governmental Organisations in Health (GCNH) to sue it for embarking on a strike action over irregularities in getting them onto the Single Spine Salary Structure (SSSS).

According to Nene Amegatcher, counsel for the GMA, the court action initiated by the GCNH is bad, since it was only the National Labour Commission (NLC), which is vested with the power to sue anybody who does not comply with the labour act.

Nene Amegatcher was arguing a preliminary application yesterday before an Accra High Court, presided over by Justice Ernest Obimpeh, as he requested the court to dismiss the suit filed by the Coalition against his client.

The Counsel noted that the GCNH should have sought authority from the NLC before embarking on its action against the GMA, but asserted further that the NLC's power to sue could not be delegated to anybody, including the Coalition.

It was the view of Nene Amegatcher that since the NLC was currently negotiating with the doctors to solve the issue, it was not proper for the GCNH to come to court over the issue, adding that the Coalition could have offered advice to the NLC.

In reply, Counsel for the Coalition, Mr. James Odartey Mills, argued that even if there were irregularities, it did not affect the substance of the issue before the court.

The court has, therefore, fixed October 25, this year, to decide whether or not the GCNH had the capacity to sue the GMA in this instance.

The GCNH, and an elderly hypertensive patient, Madam Emelia Kwao, filed a motion on notice at the High Court seeking an order of the court compelling the GMA to call off its ongoing strike.

The applicants are further requesting the court for a declaration that the ongoing strike by the members of the GMA was illegal.

In an affidavit filed in support of the motion, the applicants pointed out that Madam Kwao, a babysitter, needs a regular medical care as a result of her hypertensive condition, and because of the indefinite strike declared by the GMA, she could not access treatment, even though she was registered and fully-paid-up beneficiary under the National Health Insurance Scheme (NHIS).

It is the contention of the applicants that Madam Kwao and patients needed medical attention, but this had been hampered by the actions of the striking doctors in government or state health facilities.

The Coalition further asserted that due to Madam Kwao's condition, which results in constant and repeated headaches and swollen feet, she frequently attends the Adabraka Polyclinic, a public health facility in Accra, as well as the Ridge Hospital, another public health facility, where she had been assigned a specialist doctor.

According to the applicants, even though there were private hospitals in town, Madam Kwao and other members of the public could not afford the expensive treatments there, let alone, have it on regular recurrent basis.

It is, therefore, the observation of the Coalition that the strike embarked upon by the defendant association was negatively affecting Madam Kwao and many other citizens of the country through no fault of theirs, as well as the work of the GCNH in promoting quality health care for the vulnerable in the various communities in the country.

The Coalition noted that its members in all 10 regions of the country indicated that the strike action by the GMA was posing a great risk to the health of persons in the communities covered by the GCNH members, particularly, pregnant women, and especially pregnant women who needed to undergo caesarian operations.

Additionally, the applicants indicated that by the Labour Act, service provided by doctors fall within the category of "Essential Services" so, therefore, the strike embarked upon by the doctors was contrary to Section 163 of the said Labour Act, and therefore, illegal.

The applicants have noted that all efforts by the government, patients, civil society groups, the Minister of Health, and the President to get the striking medical doctors back to work, had fallen on deaf ears.

"It is, therefore, very clear from the medical doctors' stance that they intend to continue their illegal strike without the intervention of this honourable court," it contended, adding that "although the doctors may have their grievances, the applicants are advised, and verily believe same, that there are ample provisions in sections 162-164 of the said Labour Act, through which their dispute could be resolved, and beyond which they could go to court," the applicants stated.

They had also observed that the lives of Ghanaians nation-wide were at stake, due to the doctors' decision to take the law into their own hands by declaring and embarking on a strike action that contravenes the statutory provisions in the Labour Act.

"That such show of impunity by the defendant and its members needs to be quickly nipped in the bud, as it has, not just the potential to encourage more disrespect for the law, but has, indeed, already even done by encouraging other health professionals in the essential services sector like pharmacists, to also declare their intention to follow in defendant's footsteps soon," the applicants stated.

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