“All that is needed for evil to prosper is for people of good will to do nothing”—Edmund Burke The Whistle No. 61, January 2010 Newsletter of Whistleblowers Australia Media watch Whistleblowers afraid to they fully understand how it works Confidential hazardous incident before they entrust their fate to this reporting has its roots in the aviation speak despite new laws deeply flawed process.” industry, where death is more readily Glenn Kauth Among the problems, according to evident and the consequences of such Law Times, 19 October 2009 FAIR, is that the legislation doesn’t an incident can be more severe. The provide ironclad protection for workers idea of “no-blame” reporting has IN a recent documentary, CBC’s The who report wrongdoing. So, if they become quite well-established over the Fifth Estate highlighted yet more feel they’ve suffered retaliation for years. A pilot makes a mistake, problems with Canada’s record on their actions by a manager, for exam- perhaps turning a control knob clock- enforcing airport safety rules. ple, they can make a complaint to the wise when he ought to have turned it The story stemmed from a stu- public sector integrity commissioner, the other way. He realises his mistake, dent’s discovery of a computer Christiane Ouimet. takes the corrective action and disaster memory stick in a coffee shop. On it She may then start an investigation is averted. But he realises that if he were warnings from a government but, FAIR says, procedures for doing could make this mistake, others might security inspector that officials are so are problematic for three reasons: do so with catastrophic results, and a compromising public safety in favour employees have just 60 days to file a programme is in place to enable him to of “profit and convenience.” complaint; they have little legal report his lapse. It could be that this But besides shedding light on a support compared to the government; points to a potentially serious design safety issue that would disturb most and they face the onus of proving their deficiency, or something that can be Canadians, the report drew attention to problems at work were the result of easily prevented by a small “tweak” in yet another problem in our laws: the retaliation. In other countries, laws the design, or additional training. But lack of adequate protection for whis- provide for a reverse onus that requires the mere fact that such a system was tleblowers who report wrongdoing. the employer to show the adverse available has encouraged its use, and That’s because the inspector who treatment wasn’t due to whistle- saved lives. The fact that the reporter issued the warnings wouldn’t talk blowing. will not be blamed, or thrown out of about them. The Conservatives, of course, can his job on account of this lapse, is a He feared reprisals for what he had justly argue that their Federal further encouragement to use this done and told reporter Hana Gartner Accountability Act brought in useful system. that he knew of other government reforms. But the reaction by the airport It is some years since the UK employees who had suffered badly for security inspector shows government Department for Transport, conscious coming forward with problems. In the employees are still very fearful of of the value of such an incident- end, he instructed her never to call him reporting wrongdoing. reporting programme to aviation, again. Canadians deserve better. That decided to fund the establishment of a His reaction isn’t surprising, of would require changes to our laws, but marine equivalent, the Confidential course, but it is troublesome given until the public speaks up, we’ll Hazardous Incident Reporting Pro- both the gravity of the safety issue at depend on lost memory sticks in coffee gramme (CHIRP). It has now been in hand as well as the fact that the federal shops to find out what’s really going operation for more than five years and government was supposed to have on within our government. is beginning to make a positive impact addressed the reticence of whistle- on marine safety. Interestingly, al- blowers to come forward in the wake though it is a UK initiative, it of the sponsorship scandal several welcomes reports from ships and years ago. The value of seafarers sailing under any flag. It is Obviously, changes by the former confidential reporting successfully reaching the leisure Liberal government to the Public Watchkeeper boating industry as well as commercial Servants Disclosure Protection Act and BIMCO, September 2009 and Marine shipping and trying hard, with limited later amendments to it under the Engineers Review, November 2009 success, to penetrate the fishing Conservatives’ Federal Accountability industry, where too many deaths and Act aimed at making it easier for WE live in an unforgiving world where injuries still take place. bureaucrats to report problems haven’t the “culture of blame” is well estab- It is, of course a wholly voluntary worked. lished, legal liabilities abound and the system, and it is individuals who report In assessing the legislation, in fact, concept of an “honest mistake” has incidents to its headquarters in the organization FAIR (Federal become almost redundant. That is Farnborough, in the UK. And while Accountability Initiative for Reform), perhaps why a system that enables initially attitudes in the shipping includes this warning to government people to report hazardous incidents in industry might have been suspicious of employees on its web site: “Public a confidential manner is very valuable something akin to “whistle-blowing,” servants who are considering making a indeed. there has been growing support for disclosure under the new legislation CHIRP and encouragement of its aims should first pause and make sure that 2 The Whistle, #61, January 2010 in the industry. Good companies have whistleblowers and deter other profes- their concerns about patient safety in processes for “near-miss” reporting, sionals from coming forward. the out-of-hours GP service were not but experienced people also recognise The IoS (Independent on Sunday) taken seriously. that the embarrassment of a mistake has learnt of children in Stoke-on- Francesca West, a policy officer at might prevent an individual reporting Trent needlessly losing organs after PCaW, which provides legal advice to an incident. CHIRP encourages open- safety issues highlighted by a senior whistleblowers, said: “Bad employers ness and a public spirit, through its surgeon — who was suspended after are using super gags to hush up promise of absolute confidentiality. coming forward to voice concerns — problems rather than sort them out, and CHIRP also takes action to address were ignored. In one of more than 20 many people feel scared and pushed incidents, in a navigational near-miss, serious incidents, a newborn baby girl into accepting these terms. That’s why for instance, contacting the owners of needed an ovary removed after a we are pushing for whistleblowing the “other ship” to find out what went standard procedure to remove a cyst claims to be made public so we can wrong. In a recent report published by was delayed because of staff shortages. identify problems and hold employers CHIRP about a navigational incident, a According to Public Concern at accountable.” range of failures were identified by the Work (PCaW), two-thirds of all The introduction of the 1998 Act company of the ship complained about, whistleblowing cases settle before was hailed as a huge step forward. Yet and all were being addressed. reaching court. The details of these whistleblowers still risk facing Of course, knowing that CHIRP is claims, including allegations of “trumped up” allegations of miscon- there and knowing what it does are dangerous practice, dishonesty and duct, improper behaviour or mental very important, this being undertaken misconduct, are never disclosed to the illness if they feel compelled to voice by regular reports published as CHIRP public. concern. Margaret Haywood, for Feedback several times every year in However, judges are also failing example, a nurse who filmed under- newsletter form. As a result of this, it the public by agreeing to NHS gagging cover to expose shocking care of has been possible to detect certain orders when presiding over whistle- elderly patients in Sussex, was struck trends, and these can be addressed. blower cases in court. Such orders off for breaching patient confidential- Some might be obvious, like regular leave future patients exposed to poor ity, even though no patient or relative failures to keep a good lookout and practice, while past ones remain complained. She was reinstated by the poor knowledge of the regulations. unaware that they may have been a High Court last month after wide- Others are more singular, but no less victim, says Dr Peter Wilmshurst, spread public outrage at her dismissal. important, such as a cook concerned at consultant cardiologist at Royal According to Peter Gooderham, the risk of poisoning from food kept in Shrewsbury Hospital. lecturer in law and bioethics at the a press in the mess for too long, or University of Manchester Law School, equipment failures. CHIRP is proving there are too many legal hurdles to increasingly useful, as confidence in it jump over for a whistleblower to grows. ensure their full protection. “The legal protection for whistleblowers does not work. The NHS is littered with whis- tleblowers whose lives have been NHS is paying millions damaged or destroyed. For protection, to gag whistleblowers the whistleblower must have a reason- Patients’ lives put at risk able belief in their accuracy, and the by tactics used against those Peter Wilmshurst disclosure must be made in good faith. who highlight safety fears A whistleblower may not understand Nina Lakhani This evidence of widespread gagging what ‘reasonable belief’ and ‘good The Independent on Sunday comes amid government insistence that faith’ mean, and indeed may not wish 1 November 2009 whistleblowers are fully protected to run the risk that a court or tribunal under the 1998 Public Interest Disclo- might find against them on these NHS whistleblowers are routinely sure Act, which made it illegal for points.