NURSE WHISTLEBLOWERS IN AUSTRALIAN HOSPITALS: A CRITICAL CASE STUDY by Sonja Cleary MHlthSc, GradCertTertEdn, BN, RN, DipApSc Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Deakin University 3 July 2014 ACKNOWLEDGEMENTS The completion of this study would not have been possible without the unwavering support and guidance of many people. I would like to acknowledge my supervisors Professor Megan-Jane Johnstone and Professor Maxine Duke, for their high standards, valuable feedback and guidance. I have developed a level scholarship and inquiry inconceivable at the beginning of this journey. My sincere thanks must be extended to my immediate family, my husband Darren for his patience and my daughter Amy who has spent some of her formative years wondering why Mum sometimes put study before her needs. To my extended family, friends and work colleagues thank you for listening and encouraging when I needed it. Thanks especially to Steve Blackey for being my sounding board, friend and writing mentor and colleague and Dr Heather Pisani for her support during the final stages of the thesis. This research would not have been possible if the nurse whistleblowers had not spoken out and their actions setting in motion a series of events that culminated into Commissions of Inquiry. ŝǀ ABSTRACT Background Between 2002 and 2005, two high-profile Australian cases of whistleblowing by nurses received widespread media attention: the Macarthur Health Service in New South Wales, and the Bundaberg Base Hospital in Queensland. The nurses in these cases ‘blew the whistle’ after their attempts to have patient safety concerns raised with appropriate personnel within their employer organisation failed. Despite the widespread attention that the above two cases attracted, whistleblowing by nurses is a rare event. Little is known about the contextual processes that might influence a nurse to engage in whistleblowing behaviour or the aftermath of engaging in such behaviour. In light of the lessons learned from Bundaberg Base Hospital and Macarthur Health Service cases and their implications in regard to the codified obligation that nurses have to ‘take appropriate action’ when patient safety and quality care are placed at risk, a critical investigation of the social phenomena of nurse whistleblowing is warranted. Aims of the study The key aims of this study are three-fold: 1. To provide a comprehensive account of the social phenomenon of nurse whistleblowing of substandard practice, unprofessional and unethical conduct in healthcare contexts. 2. To explain the contextual effects of power, information dissemination and ethics on the reporting behaviours of nurses. 3. To describe the ethical issues nurses face when witnessing substandard practice, unprofessional and unethical conduct in acute health services and their sequelae. ǀ Research questions The research questions which this study aims to address are: • What is the nature of the social phenomenon of whistleblowing of substandard practice, unprofessional and unethical conduct in healthcare contexts? • What are the contextual effects of power, information dissemination and ethics on the reporting behaviours of nurses? • What ethical issues do nurses face when witnessing substandard practice, unprofessional and unethical conduct in acute health services? Method/approach The study was undertaken as a critical case study using Fay’s Critical Social Theory as an interpretive frame and progressed as an unobtrusive research inquiry. Existing data generated by the respective Commissions of Inquiry held into Bundaberg Base Hospital in Queensland and Macarthur Health Service in New South Wales were accessed and analysed. Data were analysed using content and thematic analysis strategies commonly used in qualitative case study research. Findings The nurse whistleblowing in the cases studied occurred in response to a fundamental breakdown in clinical governance and incident reporting processes. When the nurses at Bundaberg Base Hospital and Macarthur Health Service first reported their concerns they wrongly assumed that ‘something would be done’ and that their concerns would be addressed. Instead, the respective organisational responses were retaliatory leading to a ‘social crisis’ in the organisations involved. Four structural bases contributed to this crisis: the need to assign blame, the exercise of wilful blindness on the part of hospital administrators, the presence of a ǀŝ network of hierarchical gaze and discipline and, finally, the use of confidentiality as a mechanism to silence dissent and prevent external disclosures. A key driver motivating the nurses to take the action they did was the need to find internal psychological peace, which they believed would come from standing up for a personal non-negotiable principle: patient safety. Conclusions Failures in clinical governance can set the context for whistleblowing. When managers fail to give due attention to reports of possible and actual risks to patient safety, the ability to capture and learn from such reports and to take remedial action is undermined, leaving patients and the hospital vulnerable to preventable harm. In such circumstances nurses may reason that they have little choice but to raise their concerns to an authority external to their employer organisation. Whistleblowing need never occur if effective clinical governance processes are in place and contain provisions for ensuring that those responsible for receiving and acting on reports of patient safety concerns (including senior managers) take appropriate and timely action to address the concerns reported. ǀŝŝ TABLE OF CONTENTS ACKNOWLEDGEMENTS iv ABSTRACT v TABLE OF CONTENTS viii LIST OF ABBREVIATIONS xv LIST OF TABLES xvii LIST OF FIGURES xvii LIST OF LEGAL CASES xviii INTRODUCTION 19 1.1 Introduction 19 1.2 Focus of inquiry 19 1.3 Research questions 21 1.4 Aims of the study 22 1.5 Clarification of key terms 23 1.5.1 The whistleblowing definition used for this study 24 1.5.2 Substandard practice 25 1.5.3 Unprofessional conduct 25 1.5.4 Professional misconduct 27 1.5.5 Unethical conduct 28 1.6 Synopsis of chapters 31 1.7 Conclusion 33 BACKGROUND 34 2.1 Introduction 34 2.2 Etymology of whistleblowing term 34 2.3 Whistleblowing as a contested notion 36 2.4 Alternative terms and negativity surrounding the term whistleblower 38 2.5 Whistleblowing in nursing and healthcare: An historical overview 41 2.5.1 Florence Nightingale – Scutari hospitals 1856-1858 41 2.5.2 Laura Goodley –The London Hospital 1909 42 2.5.3 Frances Gillam Holden - The Children’s Hospital Glebe 1887 44 2.5.4 Mrs Edwards - Victorian Infant Asylum and Foundling Institute 1906 46 2.5.5 The Holden and Edwards cases 47 2.6 Contemporary nurse whistleblowing cases 48 ǀŝŝŝ 2.6.1 Australian case – Kevin Moylan 48 2.6.2 United Kingdom (UK) cases 50 2.6.2.1 Margaret Haywood 50 2.6.2.2 Barbara Allatt 52 2.6.3 United States case – The Winkler County Texas Nurses case 54 2.7 Internal reporting and patient safety 58 2.7.1 The development of hospitals and the authority of medicine 58 2.7.2 Impact of bioethics and patient rights movement 64 2.7.3 Responsibility to report – development of professional codes 65 2.7.4 The National Law 67 2.8 Conclusion 69 REVIEW OF RESEARCH LITERATURE 70 3.1 Introduction 70 3.2 Whistleblowing research: Contemporary findings 70 3.3 Whistleblowing research in nursing 76 3.3.1 Frequency of events observed 81 3.3.2 Methods of reporting 82 3.3.3 Not being listened to 84 3.3.4 Support 85 3.3.5 Retribution/Retaliation 86 3.3.6 Impact of whistleblowing on nurses’ health 88 3.4 Conclusion 91 METHODOLOGY AND THE STUDY METHODS 92 4.1 Introduction 92 4.2 Social phenomenon 92 4.3 Methodology 93 4.3.1 Ontological considerations 93 4.3.2 Epistemological considerations 95 4.4 Critical theoretical orientation 96 4.4.1 The origins of Critical Social Theory 97 4.5 Study Methods 98 4.5.1 Comparative case study 99 ŝdž 4.6 Fay’s basic scheme of critical social science 101 4.7 Examinations of power 102 4.7.1 Etymology of the term ‘power’ 103 4.7.2 Giddens on power 104 4.7.3 Parsons on power 105 4.7.4 Foucault on power 106 4.7.5 Fay on power 108 4.7.6 Wartenburg on power 109 4.7.7 Forms and bases of power 110 4.8 Philosophical inquiry and ethical reasoning 110 4.9 Justice - the central bioethical interpretive frame 111 4.9.1 Justice 111 4.9.2 Justice as fairness 112 4.9.3 Distributive-redistributive justice 113 4.9.4 Retributive justice 115 4.9.5 Restorative justice 117 4.9.6 Open disclosure 118 4.9.7 Therapeutic jurisprudence 120 4.10 Selection of comparative sample cases 121 4.10.1 Data collection 122 4.11 Data analysis 124 4.11.1 Documentary analysis 125 4.11.2 Authenticity of documents 125 4.11.3 Credibility of documents 128 4.11.4 Representativeness of documents 129 4.11.5 Meaning of documents 131 4.11.6 Content/thematic analysis informed by critical discourse analysis 131 4.12 The strengths and weaknesses of the study 136 4.13 Ethical considerations 137 4.14 Conclusion 139 dž LEGISLATIVE AND CLINICAL GOVERNANCE CONTEXT 140 5.1 Introduction 140 5.2 The importance of context 141 5.3 Legislating for whistleblowing 141 5.4 Australian legislation on whistleblowing 145 5.4.1 Public sector protection 149 5.4.2 Private sector protection 150 5.4.3 The current status of Australian whistleblowing legislation 151 5.5 Clinical governance 152 5.5.1 Australian context 154 5.6 Reason’s Swiss cheese model of system failure 155 5.7 Incident reporting systems 156 5.8 Conclusion 158 CASE STUDY 1 - THE