Whistle-blowing: the curse of the Black Pearl

Dr Phoebe-Anne MainlandMA (Medical Law & Ethics)FANZCA FHKCA FACLM

Declaration Chinese University of Hong Kong Alfred Health Alfred Health Ethics Committee MDA National

Ethics and reporting colleagues Voluntary and mandatory notification of

health professionals Does codifying address problems of

voluntary reporting? Ethical & moral approach to aberrant

behavior

Whistleblowing Reporting behavior or an action that fails to

conform to standards of law or morality

July 2010

Australian Health Practitioner Regulation Agency

AHPRA

National organization for registration & accreditation of 10 health professions Including doctors

The ActHealth Practitioner Regulation National Law

Act

Requires of registered HP ‘Mandatory Notification’ of other HP

Whose professional practice has placed the public at risk of substantial harm Notifiable conduct

Notifiable conduct Practised the practitioner’s profession while intoxicated

by alcohol or drugs; or Engaged in sexual misconduct in connection with the

practice of the practitioner’s profession; or Placed the public at risk of substantial harm in the

practitioner’s practice of the profession because the practitioner has an impairment; or

Placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

Previously Moral & ethical reasons to report conduct

that could place a patient at harm

Principalism Virtues Codes of ethics

Principalism Beauchamp & Childress

Autonomy Beneficence Non-maleficence Justice

Virtues Honesty Integrity Respectfulness Compassion Tolerance

Patience Diligence Professionalism Collaborativity Humility

ANZCA Code of Professional Conduct

http://www.wma.net/

A PHYSICIAN SHALL Deal honestly with patients and colleagues,

and report to the appropriate authorities those physicians who practice unethically or incompetently or who engage in fraud or deception.

WMA International Code of Medical Ethics

Other health professions Not all had codes of ethics or practice

A PHYSICIAN SHALL Deal honestly with patients and colleagues,

and report to the appropriate authorities those physicians who practice unethically or incompetently or who engage in fraud or deception.

WMA International Code of Medical Ethics

A PHYSICIAN SHALL Deal honestly with patients and colleagues,

and report to the appropriate authorities those physicians who practice unethically or incompetently or who engage in fraud or deception.

WMA International Code of Medical Ethics

Doctors have a long history of codes of ethics

Advance for other health professions

Why did Australia codify? Perceived failure of voluntary notification

Jayant Patel, Bundaberg Hospital

How did this occur? Failure of appointment system to identify

problem practitioner Exposure by media

After Google search

Failure of attempts by colleagues to be heard Failure of voluntary reporting

Problems of Voluntary Reporting Not reported Reported

Whistleblower Subject Profession Public

Process

Not reported Harm to the patient Harm to standard of health care Lack of trust of professions by society Undermining professionalism

Whistleblower Whistleblower protection legislation

‘Grassing on mates’ Discredited Personal life dredged

Subject Professional and personal life upset

Mud sticks

Indignation of being investigated Refusal to accept

Profession Destabilize the profession Destabilize team

Public Blame, accusations, accountability Suspicion of profession

Process How to report, to whom? Conflicts of interests of institution/employer Consequences of reporting Transparency Mandate of those making judgments

Will codifying address these problems?

Cross professional reporting Recognize team Other professions in better position to observe Empowering, as requirement & pathway is

unambiguous

Not reporting Opposite problem

Overwhelming reports Vexatious notifications

Whistleblower Same issue of ‘disloyalty’

Justification ‘I had to’ Protection for vexatious reports Detrimental to relationships

Subject No progress for subject

Harrowing even if exonerated Denial

Denial after investigation Lack of insight Unchangeable

Accusation cascade Confronts sense of self

Professionally Personally

Defensive Mistrust Abandonment Destructive to self Counterproductive

Subject No progress for subject

Harrowing even if exonerated Denial

Further problems No warnings No performance management No remedial intervention Discourage HP own health care Conflicts with other ethical duties

A PHYSICIAN SHALL Act in the patient’s best interest when

providing medical care.

Behave towards colleagues as he/she would have them behave to him/her.

WMA International Code of Medical Ethics

Process Suspicion for both voluntary & mandatory

notification Lack of confidence worse No solution to

Unknown consequences of reporting Lack of transparency Mandate of authority

Bottom line There will be outliers of performance

Need to protect patients Responsibility to look after colleagues

Is mandatory notification necessary?

Ethical and moral values Reinforce principles & virtues

Role models, leadership & example Curriculum and ongoing professional development

‘Normalize’ peer review, self audit Reflection, awareness, insight Whistleblowing unnecessary

Ethical and moral values Transparency of process

Acceptance of reviewers Engage professionals in appointment

What is the ‘appropriate authority’?

‘…if Dr Patel had been working in a major tertiary hospital, any sub-standard performance would have been "very evident.” ’

The MVSA Audit

Support Subject Whistleblower

Profession Public