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Protecting the disclosers

Sometime in 2011, a young agency nurse contacted the helpline run by Transparency International (TI) Ireland. 

The nurse had witnessed elder abuse at a private care home and reported it to the manager. Her agency then received an ultimatum from the manager: Lose the nurse or the contract. 

This troubling scenario is outlined to the Medical Independent (MI) by Mr John Devitt, Chief Executive of TI Ireland. It highlights the perennial difficulties associated with whistleblowing: The spectre of denial, the threat to livelihood and reputation.

As the nurse did not provide contact details, TI Ireland is unaware of her current status. However, legislation effected in July 2014 has enhanced the protections available to whistleblowers across sectors. The above situation is a case-in-point. 

Under Section 13 of the Protected Disclosures Act 2014, an employer of a whistleblower can “sue a third party for threats made against the employer”, said Mr Devitt. Therefore, if the care home manager “tried to or even threatened breach of contract against the agency, they could find themselves subject to legal action under Section 13”.

The Protected Disclosures Act 2014 is Ireland’s first overarching law on whistleblower protection. The legislation was developed in the Department of Public Expenditure and Reform (DPER) and drew on international best practice. It is applicable to public and private sectors.



Reasonable belief

A protected disclosure under the Act involves a report of ‘relevant information’ by a ‘worker’. The relevant information comes to the worker’s attention in connection with their employment, and the worker reasonably believes that it tends to show a ‘relevant wrongdoing’ (for example, that the health and safety of an individual has been, is being or is likely to be endangered).

The legislation does not compel a worker to report to their employer in the first instance, although this is broadly encouraged (workers employed by a public body can also make a report of relevant information to an appropriate Government Minister).

Reports can be made to journalists, TDs and civil society organisations, but certain conditions must be met to qualify these as protected disclosures (for example, the worker must have a reasonable belief that the relevant information and allegations are substantially true).

There are also criteria whereby reports can be submitted to ‘prescribed bodies’ and qualify as protected disclosures under the legislation.

Compensation of up to a maximum of five years’ remuneration can be awarded in the case of an unfair dismissal for having made a protected disclosure. Moreover, limitations relating to length of service that usually apply in the case of unfair dismissals are “set aside in the case of protected disclosures”, according to DPER.

Chilling effect

The HSE has not yet updated guidance for employees on protected disclosure, which only refers to measures in the Health Act 2007.

The provisions of the Health Act (which have applied since March 2009) state that if employees in the HSE and HSE-funded services (including agency workers) report a workplace concern “in good faith” and “on reasonable grounds” in accordance with the procedures, it will be treated as a protected disclosure.

However, the ‘good faith test’ is notably absent from the Protected Disclosures Act. In the UK’s experience, it was found to discourage disclosures, among other difficulties (although the Protected Disclosures Act provides that compensation can be reduced where an investigation of wrongdoing was not the main or only motivation for disclosing).

‘I find the health service very reactive, as opposed to proactive. They react to crises. And if a crisis is disclosed, then they tend to try and react to that as best they can’

The report, An Alternative to Silence – Whistleblower Protection in Ireland, published by TI Ireland in 2010, identified further inadequacies in the provisions within the Health Act.

This report described as an “unwelcome anomaly” that making a claim someone ‘ought to know’ is false is accorded the highest penalty of all such offences in Irish law. “This caveat can only have a chilling effect on any prospective whistleblower who might look to the law for comfort.”

The penalties provided are a fine not exceeding €5,000 and/or 12 months’ imprisonment upon summary conviction and a fine not exceeding €50,000 and/or three years upon conviction on indictment. 

Attorney General

A spokesperson for DPER told MI that existing sectoral protections were retained on the advice of the Office of the Attorney General, pending the planned statutory review of the Protected Disclosures Act.

“This approach was adopted to guard against what was assessed to be an unlikely scenario that a disclosure would not qualify for protection under the 2014 legislation but could potentially be protected under relevant sectoral legislation.”     

There is no requirement to ‘claim’ the protection of the Act or any other legislation, added the DPER spokesperson.

‘Good faith reporting’

The HSE also has a Good Faith Reporting Policy, which applies to employees who have a “genuine concern” about “possible improprieties in the conduct of the HSE’s business, whether in matters of financial reporting or other malpractices”. Employees who do not wish to make a protected disclosure “can make a good faith report”, advises the policy.

There were no ‘good faith’ reports received in 2014 or 2015, a spokesperson for the HSE informed MI.

Asked if reports made under the Good Faith Reporting Policy enjoy the benefits of protected disclosure legal protections, the HSE’s spokesperson responded: “Any disclosures that fall within the remit of the legislation and the HSE’s procedures will attract statutory protection.”

The Good Faith Reporting Policy is described as part of “a suite of policies” and should be read in conjunction with the Code of Standards and Behaviour; Policy on Fraud; and the explanatory leaflet on protected disclosures (under the Health Act).

The policy notes that employees concerned about speaking to another employee can telephone 01 662 6984, the same number that applies to the protected disclosures process.

The HSE says the Good Faith Reporting Policy allows for people “to voice concerns anonymously, about possible improprieties pertaining to financial, clinical or social services”.

The HSE “applauds employees who courageously raise genuine concerns”, states this policy.

However, it communicates a warning in the next line that “mischievous reporting will be taken very seriously and perpetrators will be disciplined appropriately”. It also advises that reporting to line management should be considered first, or to relevant National Directors, if preferred. 

Confidential recipient

The Confidential Recipient for Vulnerable Persons, a position created by the HSE following the Áras Attracta care home scandal in late 2014, is another vehicle for receiving concerns, specifically relating to vulnerable persons residing in HSE or HSE-funded facilities.

HSE senior management consider that the Confidential Recipient model is working well. Meeting minutes of the HSE Directorate on 13 October 2015, published on the HSE website, stated: “The number of protected disclosures (45 since 2009) and good faith reports (18 since 2006) versus the number of concerns raised with the Confidential Recipient in six months (45) was welcomed as evidence of good awareness and use of the new arrangements. The need for adequate resourcing of these areas prior to [an] awareness-raising campaign was agreed.”

Statistics released by the HSE to MI show that 16 protected disclosures were made to the HSE’s authorised officer in 2014 and 2015 (procedures established under the Health Act provide that reports are made to ‘the authorised person’).

A total of seven disclosures were made in 2014 and nine in 2015. Some 12 of these disclosures were made under the Protected Disclosure Act 2014 (which took effect in July 2014) and four under the Health Act.

Thirteen reports concerned the health/welfare of patients, one related to staff health/welfare, one concerned alleged financial mismanagement and one related to alleged financial mismanagement as well as a patient health/welfare issue. 

On 1 January this year, the HSE’s Quality Assurance Verification Division took responsibility for the operation of the protected disclosures process across the public health service. 

“It is putting in place a framework for widespread dissemination of the procedures and for monitoring the ongoing operation of protected disclosures within the HSE,” an Executive spokesperson told MI

Guidance

All public bodies are obliged to have procedures on protected disclosures under the 2014 legislation and to make this available to their workers. 

Mr Devitt said public sector bodies “seem to be very nervous about publishing anything that might contradict that which is [being] prepared by Brendan Howlin’s department”.

He added: “I think that might be a reason why [the HSE] haven’t updated the guidance. But that shouldn’t stop them from their own in-house legal team or own legal advisors preparing guidance for their staff, particularly for an employer that is as big as the HSE and where whistleblower reprisal appears to be very common.”

A HSE spokesperson said the Protected Disclosures Act is intended to provide a “robust statutory framework” within which workers can raise concerns regarding potential wrongdoing in the workplace.

The spokesperson said that DPER is preparing guidance for public sector bodies on protected disclosure procedures, following a period of public consultation in October 2015. They also referred to the Department of Health carrying out a comparative analysis of the Health Act/Protected Disclosures Act.

However, HIQA has proceeded to update its guidance for staff on protected disclosures and it appears DPER’s work on guidance has been substantively completed.

Last September, DPER published guidance on its website on the implementation of the legislation. This followed an “extensive consultation process with public bodies”. Its spokesperson told MI that changes are being made to take account of responses received to the public consultation that concluded in October 2015, but these “will not be substantive”. 

Meanwhile, medical professionals confirmed a lack of awareness within the profession about the Protected Disclosures Act.

Dr Fergal Hickey, spokesperson for the Irish Association for Emergency Medicine, estimated that “very few” of the approximately 80 emergency medicine consultants in Ireland “would know the specifics” of the Act and its protections.

Dr Hickey recalled that 1997 saw the first case of a patient spending the night on a trolley in the old Meath Hospital, now incorporated into Tallaght Hospital. Since that time, he said doctors in emergency departments have consistently highlighted risks to patients with management.

While there is no sense of ‘compassion fatigue’ on the part of doctors, Dr Hickey said some may have experienced “situation fatigue”, after raising the same issues with the same people to little avail.

Dr Hickey noted that, in recent times, more doctors have been speaking out publicly. This has often been precipitated by a particular incident (often on foot of previous unresolved incidents) or a disingenuous statement from a politician.

Nevertheless, doctors may fear breaching their contract or falling foul of management if they take their concerns outside the hospital domain.

Dr Hickey said that, in respect of speaking to the media, colleagues in voluntary hospitals were less likely to do so, as there is often a requirement that doctors obtain their CEO’s permission prior to speaking to media. He said voluntary hospitals tend to be “very sensitive to any negative publicity” because of its perceived impact on fundraising activities.

Speaking on behalf of a representative organisation may dissipate the anxieties of some doctors, in respect of discussing issues in the media, he added.

Dr James Gray, Emergency Medicine Consultant, Tallaght Hospital, Dublin, maintained that doctors have a duty to highlight risks to patient safety.

Over the years, Dr Gray has engaged with local management, HSE management, and bodies such as HIQA and the Health and Safety Authority in an effort to improve patient and staff safety.

“If all of the attempts to try and rectify the situation are exhausted locally you have to progress outside, so HIQA, the Health and Safety Authority and also people like the Group CEO of Dublin Mid Leinster Susan O’Reilly, people like Liam Woods, who is current HSE Acute Division Director, people like that… And they would get letters, memos and emails, and so on, certainly on a weekly basis from us — not just from myself, but from colleagues as well. Some of them get leaked into the public domain. The one in November, I suppose, would be the one that comes to mind.”

This memo concerned a 91-year-old man who endured 29 hours on a trolley at Tallaght Hospital. Dr Gray said “quite a broad number of people” would have been included in the memo, notably the Hospital CEO, HIQA, the HSE Acute Division, and Minister for Health Leo Varadkar.

“That particular one in November got leaked into the political and public domain and ended up in the media and the hospital response was pretty swift… ”

Dr Gray recounts that Tallaght hospital announced it would investigate the leak of the memo, but said little on investigating the “actual problem itself, which is the fact that there was a 91-year-old on a trolley for 29 hours”.

“This backfired hugely for them,” he said.

Dr Gray said he wouldn’t term the Protected Disclosures Act a “game-changer”, but acknowledged it does provide significant protections.

He felt that knowledge of the 2014 legislation among consultants was variable. “Some consultants would bury their head in the sand; they are very busy and they just get on with their business and the job they do and they manage the situation as it is. There may be failures around them but they just deal with the situation as they find it, and let other people — managers, the HSE, the CEO — sort out the problems.

“When people like me constantly memo whoever it is — either at a local management level [up] to the higher echelons who have stakeholder interests in health, including Leo Varadkar — that clearly creates a pressure. And that’s the kind of pressure that keeps, I suppose, a focus on that particular problem.

“I find the health service very reactive, as opposed to proactive. They react to crises. And if a crisis is disclosed, then they tend to try and react to that as best they can.”

Internal processes

Healthcare staff who have raised issues internally can face particular challenges.

A clinical nurse manager (CNM), who spoke to MI on condition of anonymity, recalled her experience of raising concerns about a medical professional.

She said the consultant was carrying out a procedure in a manner that she believed posed risks to patient safety, a view shared by nursing colleagues. The CNM raised the concern with her line manager, with an influential specialist working at the hospital, and subsequently with the hospital manager.

Consequently, the CNM attended a meeting with the hospital manager and the consultant about whom she had raised concerns. She outlined her concerns in front of the consultant, who insisted that they were undertaking the procedure safely. However, the consultant was stopped from doing the procedure, in a turn of events that the CNM’s medical and nursing colleagues openly remarked was ‘not easily achieved’.

More broadly, the CNM was also of the view that the consultant was not undertaking procedures as efficiently as other specialists in the field, increasing the likelihood of complications. Other nurses were also concerned. Nevertheless, there was no evidence of adverse outcomes arising from the consultant’s restricted practice.

To the CNM, it seemed there was a grey area: at what juncture did the doctor’s deficits tip the balance into demonstrable unsafe practice, and could her concerns and that of nursing colleagues be construed as a personal crusade against this doctor?

Reprisals

TI Ireland has had 94 clients raising concerns about the health sector from May 2011 to present. Some 37 clients were whistleblowers and 19 said they were penalised for speaking up. This is a “very high” rate of whistleblower reprisal, said Mr Devitt.

Nine said they were dismissed, three said they were harassed, two said they were suspended and two said they were defamed by their employer. Constructive dismissal, disciplinary action and diminished career prospects were reported as arising in one case each. These contacts had reached a service that was not widely publicised.

Other TI Ireland research, such as the Speak Up Report 2015, has identified the health sector as attracting a high number of calls in comparison to other areas.  

Mr Devitt said it is crucial that employers provide a platform, not just for whistleblowing but for dialogue on broader concerns.

“The introduction of the legislation is, I believe, the first step on the road to changing culture and cultural attitudes to wrongdoing more generally,” Mr Devitt told MI. “It is important that people are given the opportunity to act and say something they believe is consistent with the values they and their employer hold, or values they are expected to live up to. That sometimes involves providing a safe space for worker-employer conversations, for dialogue and not just for blowing the whistle.”

He added that TI Ireland has imminent plans to launch an “independent law centre” that can provide free legal advice on reporting wrongdoing. 

Reading between the lines on disclosure

In recent months, HSE Director General Mr Tony O’Brien has been at pains to describe a culture of growing openness and transparency in the organisation. Some observers have suggested that, if this is the case, the Executive’s contracts and employee handbooks require some rewriting.

The HSE Consultant Contract 2008, under ‘Advocacy’, states: “Information given to the public should be expressed in clear and factual terms. It must never cause unnecessary public concern or personal distress, nor should it raise unrealistic expectations.”

Moreover, the HSE Employee Handbook states: “The giving of interviews, statements or any other information connected with the services provided by the organisation should not be undertaken without the approval of the National and/or Regional Communications office. Such unapproved actions have the capacity to prejudice the interests and reputation of the organisation and, in this regard, will be considered to be a disciplinary matter to be dealt with under normal procedures.”

Mr Devitt commented: “Some of that guidance or some of those provisions might now be unlawful, and certainly won’t be enforceable, because the Protected Disclosures Act makes it clear that no employer can contract out of the Act, so that a medical professional is entitled, where they follow the steps or where they comply with the Protected Disclosures Act, to report in certain circumstances outside the organisation, irrespective of whether it causes ‘public concern’ or ‘personal distress’… ”

As to clearing interviews with the HSE Communications Office, Mr Devitt said he understood, broadly-speaking, why the Executive would wish to ‘manage its message’. But it should also make clear to staff that this does not infringe on whistleblowing rights.

“Any reference to giving of interviews should make clear that this should not prejudice the rights of any medical professional to make a protected disclosure. So I think a line needs to be drawn here — a clear distinction needs to be made between media management and the making of a protected disclosure or blowing the whistle.”

The Protected Disclosures Act 2014 took effect against the background of disquiet around a clause in the draft under-sixes contract for free GP care.

The controversial stipulation to not “do anything to prejudice the name or reputation of the HSE” was removed from the final contract agreed with the IMO.

An IMO spokesperson told MI: “The IMO has always resisted attempts by the HSE and Government to limit doctors’ right and duty to advocate for patients and for better services.”

Recommended reading: Speak Up Safety: Transparency International Ireland’s Guide to Whistleblowing and Making a Protected Disclosurewww.transparency.ie.

 

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