Whistle-blowing: the curse of the Black Pearl Dr Phoebe-Anne Mainland MA (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 Act Health 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

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