|Implemented in this survey?|
Despite the fact that all Australian jurisdictions have in place legislation protecting whistleblowers, recent events have demonstrated that there are still barriers to whistleblowing in relation to perceived problems in the health system. Reducing such barriers is an important strategy in quality improvement for the health system, as it increases the transparency of the system's processes for dealing with threats to the quality and safety of health care provision.
The main aim of whistleblower legislation is to reduce the barriers to reporting and therefore dealing with issues of quality and safety in an open and transparent manner. It provides for public accountability by protecting the disclosure of illegal, immoral or illegitimate practices committed by an organisation or an employee of that organisation. Whistleblowers are recognised as playing a vital role in the effective management of the public sector. Between 1993 and 2006, such legislation was introduced into all the States and Territories as well as nationally. Within the health system, a clinical governance framework is used to address issues of quality and safety.
However, despite the presence of legislation and clinical governance procedures, recent events in Australia involving whistleblowers and the health services indicate that additional measures may be needed. A major collaborative research project into the management and protection of whistleblowers in the public sector is underway in Australia to build an up-to-date view of how whistleblowing and related public interest disclosures are and should be managed. This is likely to have implications for the health system.
The common characteristics of all whistleblower protection legislation in Australia are:
It remains important to ascertain if the legislation in place is sufficient to protect whistleblowers in the health system and if the clinical governance systems in place in the health system are supportive of whistleblowing as a "last resort".
The incentives for reducing the barriers to whistleblowing are to improve quality and safety. In relation to health care, whistleblowers are normally attempting to alert the authorities to perceived instances of significant harm to patients and/or unnecessary deaths. Avoiding such events is important for the general public and the political system to maintain confidence in the health system. There is also an incentive for politicians to cover up such events because, in a democratic system, they are ultimately responsible.
Whistleblowers, patients, public health sector employees
|Degree of Innovation||traditional||innovative|
|Degree of Controversy||consensual||highly controversial|
|Structural or Systemic Impact||marginal||fundamental|
|Public Visibility||very low||very high|
Until further progress is made both generally and specifically within the health system, whistleblowers will be a) reluctant to come forward and b) regarded with suspicion when they do so.
Transparency and accountability in government is a fundamental part of the ideals of a democratic form of government. Whilst accepting that a certain level of confidentiality, privacy and even secrecy may be necessary at some levels of government activity, a democratically elected goverment is responsible for ensuring that the general public is fully informed about government processes and decision making. Legislation, such as that covering Freedom of Information and whistleblower protection are designed to ensure that the public becomes better informed about the processes of government and that those undertaking the process of government are accountable to the public. Numerous pieces of legislation have been enacted in all Australian States and Territories as well as at a national level.
At the same time as legislation has been enacted, the health system in Australia has boosted its response to concerns about quality and safety issues, largely through the introduction of a clinical governance framework. In NSW, for example, each Area Health Service (regional health authority) has established a Clinical Governance Unit which employs (among other staff), a Director of Clinical Governance and a Senior Complaints Officer.
|Implemented in this survey?|
The idea that a democracy must include provisions for public officials to voice concerns on matters of public interest is not new, nor restricted to Australia. However, since 2004, a number of whistleblowing "events" involving the health sector in Australia has led to some interest in evaluating the level of protection afforded by the relevant legislation and how the legal rights of whistleblowing intersect with notions of clinical governance and its processes. A national review of the legislation and other research into the general topic is underway but the extent to which this will be relevant to the issues associated with the health system "events" is not clear. Lawyers, politicians, public officials (including health sector bureaucrats) and clinicians all have an interest in this issue, as have the media and the general public when events occur.
The approach of the idea is described as:
There is a tension between the notion that major deficiencies in the provision of health care can be identified, addressed or prevented through routine quality and safety monitoring processes, no matter how rigorous these are, and the culture of both the health care system and providers which tends to militate against self-regulation, error reporting or investigation. In particular, whistleblowers tend to be regarded by their peers and colleagues as "informers" and report receiving little respect or support from individuals, institutions or professions. How the role of whistleblower can be incorporated into clinical governance processes and structures and the place of routine self-reporting is yet to be fully explored.
A recent review of whistleblower legislation in Australia reveals that, over time, different jurisdictions have experimented with the result that no two pieces of legislation are the same. The review concludes that no single existing piece of legislation provides a "best practice" model. Every piece of legislation contains some elements of "best practice" (eg. ie. obligation that the government will investigate a disclosure or allegation of illegal activities; obligation that the government will protect the identity of whistleblowers; right to take action to restrain reprisal) but all have problems - some of which are more common than others. The review recommends that a new set of laws be drafted (rather than continuing to amend the old laws) and that these be more uniform across Australia. However, even if this is achieved, it is not clear that the implications for clinical governance issues would be dealt with in the same way by the different jurisdictions.
There is a need for the Australian and State/territory governments to agree on a new general legislative framework AND for additional agreement to be reached about how the issues in the health care system should be addressed vis-a-vis the role of whistleblowers. The indications are that whilst there is general agreement that the role of whistleblowers must be formally acknowledged and incorporated as a "last resort" component of clinical governance structures, further work is needed before individuals who detect serious errors overcome their inhibitions to report them. As well as governments, the Australian Council on Healthcare Standards (ACHS) and the various State bodies set up to receive complaints and investigate specific issues of quality and safety (eg the NSW Health Care Complaints Commission), clinical organisations and individuals will need to be involved.
There are no formal monitoring or evaluation mechanisms foreshadowed. However, success could be judged if the following occured:
The enactment of whistleblower legislation was intended to protect public officials who speak out about illegal, immoral or unsafe practices. However, in all jurisdictions, the legislation does not meet "best practice" standards. In addition, there are significant barriers within the health system that discourage whistleblowers:
There is recognition that the governments and principal legal officers of all jurisdictions in Australia need to consider uniform legislation which meets "best practice" standards. However, there are not yet any moves afoot to take action on this front. There is no discernable progress within the health system to include whistleblowing as a recognised "last resort" within clinical governance procedures.
For example, in a policy directive issued by NSW Health, it is stated that a complainant (ie whistleblower) has the right to have their complaint taken seriously, properly investigated and to be given feedback on its outcome. There is no provision for protecting their identity and no mention of a response to any attempted or actual reprisal action.
|Quality of Health Care Services||marginal||fundamental|
|Level of Equity||system less equitable||system more equitable|
|Cost Efficiency||very low||very high|
The impacts of maintaining barriers to whistleblowing high and of not adequately protecting whistleblowers are that
i) fundamental problems concerning the quality and safety of health care are likely to go undiscovered until the problems are serious and
ii) whistleblowers, when they do report the issues they are concerned about are likely to suffer reprisals which have the potential to affect their health, work and life as a whole.
Brown, AJ. Public Interest Disclosure Legislation in Australia: towards the next generation. Report for Australian Research Council 'Linkage' Project 'Whistling While They Work' . www.griffith.edu.au/centre/slrc/whistleblowing/
Brown AJ. "Privacy and the public interets disclosure: when is it reasonable to protect "whistleblowing" to the media." Privacy Law Bulletin 2007; 4(2): 19-28
Faunce T, Bolsin S. "Three Australian whistleblowing sagas: lessons for internal and external regulation." Medical Journal of Australia 2004;181(1):44-47
McMIllan J. Freedom of Information and Whistleblower Legislation: an Australian perspective. Paper delivered to the 9th Asian Ombudsman Association Conference, Hong Kong, 30 November 2005.
Kruger P. "Doctor pays high price after whistleblowing." Australian Broadcasting Commission News, Monday August 27, 2007.
NSW Health. Policy Directive. Complaint or Concern about a Clinician - Principles for Action. Document number PD2006_007, January 2006.