Whistle-blowing: the curse of the Black Pearl

1. Whistle-blowing: the curse of the Black Pearl Dr Phoebe-Anne Mainland MA (Medical Law & Ethics) FANZCA FHKCA FACLM

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

3. Ethics and reporting colleagues • Voluntary and mandatory notification of health professionals • Does codifying address problems of voluntary reporting? • Ethical & moral approach to aberrant behavior

4. Whistleblowing • Reporting behavior or an action that fails to conform to standards of law or morality

5. July 2010 Australian Health Practitioner Regulation Agency AHPRA • National organization for registration & accreditation of 10 health professions • Including doctors

6. 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

7. Notifiable conduct • Practisedthe 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.

8. Previously • Moral & ethical reasons to report conduct that could place a patient at harm • Principalism • Virtues • Codes of ethics

9. Principalism • Beauchamp & Childress • Autonomy • Beneficence • Non-maleficence • Justice

10. Virtues • Honesty • Integrity • Respectfulness • Compassion • Tolerance • Patience • Diligence • Professionalism • Collaborativity • Humility ANZCA Code of Professional Conduct

11. http://www.wma.net/

12. 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

13. Other health professions • Not all had codes of ethics or practice

14. 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

15. 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

16. Doctors have a long history of codes of ethics • Advance for other health professions

17. Why did Australia codify? • Perceived failure of voluntary notification

18. Jayant Patel, Bundaberg Hospital

20. 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

21. Problems of Voluntary Reporting • Not reported • Reported • Whistleblower • Subject • Profession • Public • Process

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

23. Whistleblower • Whistleblower protection legislation • ‘Grassing on mates’ • Discredited • Personal life dredged

25. Subject • Professional and personal life upset • Mud sticks • Indignation of being investigated • Refusal to accept

27. Profession • Destabilize the profession • Destabilize team

28. Public • Blame, accusations, accountability • Suspicion of profession

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

30. Will codifying address these problems? • Cross professional reporting • Recognize team • Other professions in better position to observe • Empowering, as requirement & pathway is unambiguous

31. Not reporting • Opposite problem • Overwhelming reports • Vexatious notifications

32. Whistleblower • Same issue of ‘disloyalty’ • Justification ‘I had to’ • Protection for vexatious reports • Detrimental to relationships

33. Subject • No progress for subject • Harrowing even if exonerated • Denial • Denial after investigation • Lack of insight • Unchangeable

34. Accusation cascade • Confronts sense of self • Professionally • Personally • Defensive • Mistrust • Abandonment • Destructive to self • Counterproductive

35. 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

36. 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

37. Process • Suspicion for both voluntary & mandatory notification • Lack of confidence worse • No solution to • Unknown consequences of reporting • Lack of transparency • Mandate of authority

38. Bottom line • There will be outliers of performance • Need to protect patients • Responsibility to look after colleagues • Is mandatory notification necessary?

39. 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

40. Ethical and moral values • Transparency of process • Acceptance of reviewers • Engage professionals in appointment • What is the ‘appropriate authority’?

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

42. The MVSA Audit

43. Support • Subject • Whistleblower • Profession • Public