LW556 INTELLECTUAL PROPERTY LAW
Whistleblowing in the health service
Sonja Helminen
seminar group 4 (Alan Story)
student no. 09990064
Word count: 4914
LW556 Intellectual Property Law
Policy paper Sonja Helminen
ABSTRACT
Whistleblowers raise concerns about malpractice in their workplace. They disclose
information that is confidential, information which they might have acquired in their
professional capacity. The whistleblowers breach confidentiality of such information but
they do it among other things because their conscience says that something is done wrong
and they believe that the public ought to know. The Public Disclosure Act was enacted to
protect whistleblowers from mistreatment by their employer after disclosing confidential
information in the public interest. In addition there are many other independent
organizations and charities which support, guide and encourage whistleblowers. However,
the protection offered today is not comprehensive enough. Many potential whistleblowers
are too scared to take the risk or think that whistleblowing does not help to stop
mistreatment of patients. Those who blow the whistle are confronted with career,
relationship and reputation issues. Attitudes towards whistleblowing need to be changed,
we should encourage people to act morally right and employers should see the advantages
of whistleblowing for example in their risk management.
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CONTENTS
1. Introduction
2. The problem: breach of confidence
3. The defence: public interest
4. Consequences of whistleblowing
5. Justifications for whistleblowing
6. Whistleblower protection
7. Conclusion
8. Bibliography
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1. Introduction
In this paper I will concentrate on whistleblowing in health service. A whistleblower can be
defined in the following way: “a present or former employee who discloses confidential
information that he reasonable believes evidences violation of law, rule or regulation,
mismanagement, mistreatment or a danger to the public health or safety”1.
The problem with whistle blowing in the health sector is that it breaches the confidentiality
of the employer-employee or healthcare worker-patient relationship by disclosing
confidential material to those who are not part of the original confidential relationship.
However, it is important to blow the whistle in the health service to protect patients from
mistreatment and, on the other hand, the public or individuals from patients who might
carry contagious diseases or impose a threat in some other way. In addition, the
wrongdoers have to be made accountable and the standard of care in the health service
monitored and kept high.
The decision to choose to whistleblow is hard and whistleblowers still face the unfair
consequences of their actions, for example unfair dismissal. There are laws and other rules
regulating whistleblowing but the protection they offer is uncertain and insufficient. The
courts and employers need to respect the laws and value whistleblowing.
But is whistleblowing the only way to protect patients and the public in whistleblowing
cases? Perhaps the whistleblowing of health care should be done by an official authority
1
The definition is formulated with the help from the US definition on Yvonne Cripps book “The Legal Implications of
Disclosure in the Public Interest” (2nd edition, Sweet & Maxwell, 1994) p.330
The Oxford English Dictionary for Students defines a whistleblower by “a person who informs on someone engaged in
illicit activity”. The word itself comes from how the police blew a real whistle when they saw something illegal taking
place.
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and not by individual people. Nevertheless, today’s whistleblowing cases show that at
present there is no such effective authority which is why whistleblowers, who blow the
whistle with good intention2, need protection from the government and from the public to
help us all live in an ethical and safer world knowing that we can trust our fellow human
beings, especially healthcare workers to whom we give great trust.
First I will look at the breach of confidence and the use of the public interest defence, then I
will move on to explain the consequences and justifications of whistleblowing. In the end I
will explore in more detail the whistleblower protection today, consider ways of additional
protection and channels to support encourage and make whistle blowing easier.
2
Those acting in bad faith, looking for personal gain and reputation are another matter and should not be entitled to
the protection in case of breach of confidence. As said in Lucas v Chichester Diocesan Housing Assocition Ltd
EAT/0713/04:“…an Employment Tribunal must consider all the evidence and decide for itself whether the dominant or
predominant motive is an ulterior one in which case it will not attract the protection. As in all cases where improper
motivation is alleged, it should be made explicit in advance, and it should be put squarely to the Claimant. In a case
like this the chronology of events and the impression given by a witness are very important.”
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2. The problem: breach of confidence
The problem with whistleblowing is that the revealed information is confidential, if it were
not it could be freely disclosed. The act of disclosing confidential information without
authorisation is called breach of confidence and in the Coco v AN Clark3 the court defined
three requirements for breach of confidence.
Firstly, the information has to have necessary quality of confidence about it. There is no
clear definition4 of this in case law but it is obvious that it cannot be information that is in
the public knowledge5. It would be absurd to protect something that is already common
knowledge. On the other hand, even though information is no longer confidential the law
must control what the recipient can use it for, so that it cannot for instance be used as a
springboard6, this has been said for example in the Schering Chemicals v Falkman7 case. The
information in question also needs to be clearly identified, as was seen in the Suhner v
Transradio8. The subject or the format of information is not usually relevant; nevertheless
there are four exceptions to this. Trivial9, immoral10, vague11 and as mentioned earlier,
public information is not confidential information according to the common law. The status
3
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 92
5
Francis Curry refers to this in his book Breach of Confidence (Oxford University Press, 1984) as inaccessibility. This
means that if the information requires time, labour and effort to reproduce it is considered as confidential. The
inaccessibility does not have to be absolute.
6
a person who has obtained information in confidence is not allowed to use that information in detriment to the
person who gave that information in the first place, neither should they be able to use that information in order to get
a head start from those who didn’t have that information. See in addition the Seager v, Copydex Ltd. (1967) RPC 349
case.
7
Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321
8
Suhner & Company v. Transradio Limited [1967] R.P.C. 329
9
This is seen from cases such as Douglas v Hello! [2008] 1 AC 1, 81-3, Coco v Clark [1969] RPC 41, 48 and McKennitt v
Ash [2007] EMLR 113. Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1010
10
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p.1011
11
This would lead to unjustifiable burdens of confidentiality on issues that are very general. Brad Sherman, Intellectual
Property Law (3rd edition, Oxford University Press, 2009) p. 1012
4
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of the information is a matter of fact, and thus it is not a breach of confidence if a confidant
discloses material that he thought was confidential even if it in reality was not.
Information imparted in the health service is usually confidential information because it is
usually very sensitive information about a person’s private life and medical history. This
information is usually also protected by the article 8 of the European Convention on Human
Rights, the right to respect for private and family life. There was no free-standing right to
privacy in England before the HRA 1998. And on the other hand even in 2003 in the
Wainwright v Home Office12 Lord Hoffmann held that there was no general tort of invasion
of privacy in the UK.13 In the Campbell v MGN the court came up with 3 principles in
regards to determining whether information is private: the confidant’s reasonable
expectation of privacy in the disclosed information and that there does not have to be a
pre-existing confidential relationship and in addition that information can be private even
though it derives from a behaviour that occurred in a public place.14
Concrete examples of information in the medical field could include for example
information about person’s physical and mental conditions and their treatment, and on the
other hand information about the equipment of the hospital and the skills of the medical
staff.
Secondly, the information must have been imparted in circumstances where the confidant
ought reasonably to have known15 that the information had been imparted in confidence.
This means that there must have been an obligation of confidence. This can arise from a
12
[2003] UKHL 53
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 126
14
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 130
15
This means that the test is objective.
13
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contract or other circumstances, in other hands equity16 or the relationship between the
confidant and the confider. This means that there does not have to be an express
agreement of confidentiality between the healthcare worker and the employer or patient,
instead confidentiality can arise from the nature of the relationship or the manner of
communication17. In health service the obligation of confidence is based mainly on the
nature of the relationship, professional capacity and on the healthcare workers duty of
fidelity to his employer, but it could also be based on contract in case of private health care.
Contracts in the healthcare can be done between a patient and the doctor and/or with the
hospital or other place of treatment. In the NHS there is usually no contract between the
patient and the physician but as mentioned earlier, private healthcare is normally given in a
contractual relationship.18 The obligation of confidence between the employer and the
healthcare worker can be based on a contract or in equity.19 If there is no express contract
the employees’ duty of good faith and fidelity is implied, and as was seen in Faccenda
Chicken Ltd v Fowler20 the duty of confidence is part of this general duty. Gagging clauses
and clauses that restrict the healthcare workers ability to pursue a career after resigning
are void and they do not pose an obligation of confidence to the healthcare worker.
Gagging clause purport to stop the worker from making a protected disclosure and they are
void insofar under the Public Disclosure Act 1998.
16
Seager v Copydex [1967] 1 WLR 923: “The law on this subject does not depend on any implied contract. It depends
upon the broad principle of equity that he who has received information in confidence shall not take unfair advantage
of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent.” This principle was
also accepted in the Saltman case.
17
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1024-1028
18
Michalowski, Medical Confidentiality and Crime (Ashgate Publishing Limited, 2003) Chapter 2
19
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p.107
20
Faccenda Chicken Ltd v Fowler [1987] 1 Ch. 117
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The fact that an obligation of confidence can arise from a particular relationship such as the
doctor and patient “patient confidential information” as well as employee and employer21
has been recognised in law for long.22 The professional obligation of doctor not to disclose
confidential information of a patient which he has gained in his professional capacity has
been stated in Hunter v Mann23, in Wyatt and Wilson24 and it also forms part of the medical
Hippocratic Oath25 and international conventions, such as the Declaration of Geneva and
European Convention on Human Rights and Biomedicine26. However, medical
confidentiality is not protected as an individual right in a statute.27
According to the Code of Professional Conduct for the Nurse, Midwife and Health Visitor
they shall respect the confidential information they have obtained and not disclose it
without the patients consent except in situations where the law, order of court or public
interest requires it.28 According to the General Medical Council the doctors have a similar
duty not to disclose confidential information about their patients.29
A person who accidentally receives someone’s medical records can be under an obligation
of confidence if he knew that the information was confidential and it was given to him by
someone who was under the obligation of confidence.30 In addition a third party who
comes across information for example in the NHS could be under a duty of not to disclose
21
In the Faccenda Chicken Ltd v Fowler the court defined some of the general principles of breach of confidence
between employers and employees.
22
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 107
23
[1974] 1 QB 767, 772
24
cited in the Prince Albert v Strange [1849) 1 Mac
25
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 148
26
Michalowski, Medical Confidentiality and Crime (Ashgate Publishing Limited, 2003) p. 37
27
Michalowski, Medical Confidentiality and Crime (Ashgate Publishing Limited, 2003) p. 124
28
http://www.nmc-uk.org/aArticle.aspx?ArticleID=3057
29
http://www.gmc-uk.org/static/documents/content/Confidentiality_core_2009.pdf
30
Spycatcher. Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p.1028
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that material even though there is no relationship between the parties.31 This was
discussed in the Douglas v Hello!32 in which the court decided that obligation of confidence
arises when the person knows that the material is confidential, compared to the previous
situation in law which focused on whether the person had acted illegally or not.
It is important that to have a confidential doctor-patient relationship because otherwise
the patients could not be willing to see the doctor and receive treatment. Some things
people do not even tell to others than doctors, which is why there is a large emphasis on
the confidentiality of such sensitive matters. In addition it is in the public interest that
people get treated for their illnesses, otherwise for example contagious diseases could
spread uncontrollably.
Thirdly, there must be unauthorised use or disclosure of that information to the detriment
of the party communicating it. The use or disclosure is in this case a matter of fact and the
confidant’s state of mind at the moment of disclosure is irrelevant. In this case the
healthcare worker might be liable even though he did not know that his act was a breach as
can be seen from the Seager v Copydex Ltd case33. The detriment part of the third
requirement is uncertain. It has been suggested that detriment to the general public
interest or even that the confider did not want the information to be disclosed is enough to
satisfy this requirement.34
In the health service disclosures are for example made internally to co-workers or
externally to the press or another official body or to an individual. Disclosures can breach
31
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1030
Douglas v Hello! Ltd [2005] EWCA Civ 595
33
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 116
34
Lord Keith has raised this question in the Spycatcher case. Jennifer Davis, Intellectual Property Law (3rd edition,
Oxford University Press, 2008) p. 117
32
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both patient and employer confidentiality. The purpose of the disclosure can either be to
protect one individual as in case of trying to stop the spread of HIV to the patient’s partner
or to protect many as in case of disclosing material about the adequacy of necessary
hospital equipment.
Some real life disclosures that have been made in the health service include disclosures
about the missing of basic fundamental care in an elderly ward (Margaret Haywood)35,
understaffing in a geriatric ward to the Guardian (Graham Pink)36, a nurse who abused
patients (Ken Callanan)37, nursing shortages (Helen Zeitlin)38 and high mortality rates of
babies in heart surgery (Stephen Bolsin)39.
35
http://news.bbc.co.uk/1/hi/england/sussex/8002559.stm
http://www.guardian.co.uk/society/2008/mar/12/nhs.health
37
http://www.communitycare.co.uk/Articles/2000/05/31/8820/Ready-steady-blow.htm
38
http://www.bmj.com/cgi/reprint/305/6865/1343.pdf
39
http://news.bbc.co.uk/1/hi/health/1384854.stm
36
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3. The defence: the public interest
The disclosure of confidential information is not illegal if it is done in the public interest.
This means that sometimes the public interest of confidentiality is taken over by the public
interest of disclosure and that the obligation of confidence has its exceptions.40 The public
has the right to know if mistreatment or criminal and fraudulent behaviour has taken place.
This is especially important in extreme situations of trust where health is at stake as is in
health care. The defence has its origins in the common law, in Gartside v Outram41 in which
disclosure of employer’s fraudulent practise was done in the public interest. The defence
applies to both contractual42 and equitable43 obligations of confidence. Currently it is
regulated in the statute by amendments made by the Public Disclosure Act 1988 (PIDA) to
the Employment Rights Act 1996.
At first the defence only included cases of iniquity and was called the iniquity defence. It
concentrated on the unauthorised disclosure of commercial information rather than
personal and private information, as was later seen in Argyll v Argyll44. As the common law
developed the scope grew broader and by Lion Laboratories Ltd v Evans45 the defence was
called the public interest defence. In the Initial Services v Putterill46 the scope was extended
to any misconduct that ought to be in the public interest such as crimes, frauds and
misdeeds, both to those committed and those in contemplation. And for example in the
Kitson v Playfair47 a doctor had the right to inform the Public Prosecutor if he had found out
40
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 325
(1857) 26 LJ Ch
42
Initial Services Ltd v Putteril [1968] 1 QB 396
43
Fraser v Evans [1969] 1 QB 349
44
[1967] Ch. 302
45
[1985] QB 526
46
[1968] 1 QB 396
47
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 329
41
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that a crime was in contemplation. The defence is not justifiable in medical matters that do
not represent a danger for the present or future public. Thus for example if a doctor
presented a risk for the public in the past but not anymore there are no grounds to justify
the breach of confidence.48
At first the defence only included contractual obligations but after Fraser v Evans also
equitable ones. Now the defence is more of a balancing exercise between the two public
interest, confidentiality and disclosure.49 The courts have taken this approach in the
Spycatcher case50.
The public interest defence is also protected by the PIDA 1998 which added sections to the
Employment Rights Act 1996. According s. 43B(1) of the ERA 1996 disclosures can be made
concerning (a) criminal offences, (b) legal obligations, and the most relevance in disclosures
in the health service (d) the health or safety of individuals. Disclosures can be made in cases
where they have already happened or are likely to happen.
The PIDA states to whom a disclosure has to be made in order to be protected. According
to s. 43C(1)(a) it can be made to an employer, according to s. 43C(1)(b) to another person
who is legally responsible for the matter or conduct, according to s.43D to lawyers, or to a
prescribed person51 according to the s. 43F. The most relevant in the PIDA are protected
disclosures that are made “in other cases” to other than the already mentioned people and
it is regulated by the s. 43G and 43H (exceptionally serious failure) of the ERA 1996. These
sections protect disclosures made for example to the media or the police. It is important to
48
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 335
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 120
50
A-G v Guardian Newspapers Ltd
51
A prescribed person is someone who has been named by an order from the Secretary of State for the purposes of
this section.
49
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note that there is no general defence in these cases, the outcome will depend on the
circumstances of each case and it could be hard to determine beforehand.
According to the sections 43G and 43H a whistleblower has to act in good faith, not for
personal gain, believe that the information is substantially true and that it is reasonable for
him to make a disclosure regarding the circumstances of the case. In addition, a protected
disclosure has to fulfil one of the following conditions: the whistleblower has to reasonably
believe that he could be subjected to detriment or that the evidence is likely to be
concealed or destroyed if he makes the disclosure to his employer, or that he has already
made a disclosure of a substantially similar matter to the employer or a prescribed person.
In regards of whether it was reasonable for the whistleblower to have made the disclosure
regard is paid particularly to whom the disclosure is made, the seriousness of the failure, is
the failure likely to continue, and for example whether the whistleblower had complied
with the procedures offered to him by his employer. A disclosure that is made for an
exceptionally serious nature does not have to fill the requirements of s. 43G(1)(d) and
regard should be made particularly to the person whom the disclosure is made.
The common law requirements are similar to the statute but it also offers more advice to
matters that have to be taken into account when solving whistleblowing cases. In the Initial
Services Ltd v Putterill lord Denning stated that disclosure should be made to one who has
proper interest in the information.52 And if for example matters that affect the public at
large justify a more general disclosure, such as a disclosure to the media.53 This would give
a justification to whistleblowing in the media because some medical issues affect the whole
public or at least the people’s trust in the health service.
52
53
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 344
Francis Gurry, Breach of Confidence (Oxford University Press, 1984) p. 345
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To decide whether a disclosure is qualified regarding the person to whom the disclosure is
made is difficult. The disclosure should always be made in a way that causes the least harm
for the confider but sometimes the person to whom the information is disclosed is not
enough in terms to protect the public and the disclosure has to be made to the media. It
can be hard to prove that the disclosure to the broader public was justifiable and that all
the internal procedures were already used and they were unsuccessful or that other
requirements of s. 43G are fulfilled and it is hard to foresee for a whistleblower who is the
right person to disclose the information.
It can be difficult for a whistleblower to decide whether the failure amounts to public
interest, also the evidence of the failure might be difficult to obtain. This is of relevance
because according to the Campbell v Mirror Group Newspapers Ltd54 it is not a defence if
someone has published material which he knew was confidential in the honest but
mistaken belief that it was in the public interest.55 And as mentioned earlier also the Act
requires the whistleblower to have reasonable beliefs that the disclosure is in the public
interest.
To conclude the following factors should be taken into account when deciding whether the
defence exists56: the nature of the information57, the consequences of non disclosure58, the
54
[2004] UKHL 22
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008) p. 121
56
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009), p. 1048
57
In this it is relevant to separate matters that are serious misdeeds and important to the country and matters that
are for the amusement and curiosity of the public. Brad Sherman, Intellectual Property Law (3rd edition, Oxford
University Press, 2009) p. 1049
58
Even though there has not been wrongful behaviour or misconduct the disclosure can be made to protect the public
health and safety. See for example the case Malone v. Metropolitan Police Commissioner [1979] Ch 344, 362. Brad
Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1049
55
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type of obligation59, the beliefs of the confidant60 and the party to whom the information
was closed. Other factors the court might take into account are: how the information was
acquired, did the confidant receive money or other personal benefit for the disclosure61,
was the confidentiality of the information expressed to the receiver, is it easy to isolate
from other non confidential information and whether the information was already common
knowledge.
Concrete matters that could be disclosed in the health service in regards of the public
interest are for example financial mismanagement, workplace safety, public safety,
discrimination, abuse in care, unethical or unprofessional conduct or the cover up of the
above.62 The courts have not yet developed a defence in the private interest63, in which for
example a doctor would have a defence if he made a disclosure to the partner of a person
who has AIDS. But these are matters that have been discussed for example in the guidance
offered by the General Medical Council.
However this is only what the laws and other regulations say about whistleblowing. It does
not mean that it is efficient in regards of the protection of whistleblowers nor does it mean
that it is followed by the employers.64
59
In regards to doctors the disclosure is rarely justified, see for example X Health Authority v Y [1988] RPC 379, 395.
Also obligation which arises from a contract has more weight than another duty of confidentiality. Brad Sherman,
Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1050
60
There can be a just cause for the defence even when there is no misconduct but the discloser reasonably believed
that there was. Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009) p. 1050
61
disclosures should be made in good faith
62
http://www.westessexpct.nhs.uk/pubs/pdfs/policywhistleblowing.pdf
63
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009)p. 1051
64
There are laws but do they actually offer any help to whistleblowers (like Australian Brian Martin says in his Illusions
of whistleblower protection , Published in UTS Law Review, No. 5, 2003, pp. 119-130
(http://www.bmartin.cc/pubs/03utslr.html))
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4. Consequences of whistleblowing
Whistleblowing affects the whistleblower, the public, patients and the health care provider.
Most of the adverse effects are on the whistleblower which is why we shall focus on them
with the help from individual cases.
Margaret Haywood experienced tough consequences after filming basic care in an elderly
ward in Sussex hospital in Brighton for a television and disclosing confidential information
without the patients’ prior consent. Prior to the disclosure there had been many complaints
and both she and the producer felt that filming was the appropriate way to proceed. But
after the disclosure she was struck of the nursing register by the Nursing and Midwifery
Council even though the hospital admitted serious lapses in basic fundamental care. This
case illustrates how a whistleblower, who has not done anything wrong65 gets punished
and the wrongdoers do not face responsibility.
Stephen Bolsin, an anaesthetist, who raised concerns about the paediatric cardiac surgery,
is another victim of the consequences of whistleblowing. He tried many years to improve
the care by different means but eventually he felt that the only way to protect the lives of
babies was to go to the media. After his disclosure he had to move to Australia because he
was unable to get a position in the UK. This seems unfair because thanks to his many efforts
many babies were saved and the standard of care in Bristol rose after the disclosure.
The reasons for not blowing the whistle and the consequences of whistleblowing overlap.
According to the Public Concern at Work / Nursing Standard Whistleblowing Survey 2008:
whistle is not blown because nurses fear that nothing will be done, or that they fear
65
she obtained the consents of the patients even though not prior to filming.
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hostility from colleagues. Other reasons might include belief that there is not enough
evidence to show the wrongdoing, that their careers will be ruined or that they do not
know who they should tell about the mistreatment. In addition whistleblowers can fear
blacklisting, rumours, legal action, stress and the effect on it has on their personal
relationships and reputation.66
66
As was said in The Guardian, Saturday 18 April 2009, Nursing council must review this case: “If you observe threats
to the dignity, quality of care or life chances of those in your care, or in the care of others you work with, you're better
off looking away, saying nothing and hoping nothing happens.”
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5. Justifications for whistleblowing
Whistleblowing can be justified in order to report failures in the duties of the health care
providers. This means that not only the health care workers such as doctors have duties but
also the health authority and the NHS have in addition to their vicarious liability a duty of
care to the patient. The duty of care of the health authority was for example discussed in
the Wilsher v Essex AHA67 in which they ought to have provided properly skilled medical
staff and adequately equipped hospital. To add, the NHS is financed by money that comes
from the taxpayers. This means that the NHS should comply with a certain standard of care
and in case of mistreatment the payers are entitled to know that their money is not used
wisely.
Freedom of expression (article 10 of the European Convention on Human Rights) provides a
justification for whistleblowing. However, the right is not absolute and it needs to be
balanced for example with article 8, the right to private life.68 For example in the X v Y69, in
which two GPs were HIV positive, the newspaper argued that the disclosure of this
information was acceptable among other things to protect the freedom of the press and
the importance of free speech. However, in this case the court granted injunction on the
grounds that AIDS is an illness which by nature needs to be extremely confidentially
protected. It implicates that the disclosure of sexually transmitting diseases in the public
interest can be very risky to a whistleblower. Compared to AIDS it is interesting to see that
on the other hand physiatrist examinations are often in the public interest, as was seen in
67
[1987] QB 730
In the Spycather case Lord Goff said that if there is a conflict between right to privacy and freedom of speech the
interest should be balanced.
69
[1988] 2 All ER 648
68
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the W v Edgell70 and R v Crozier71. But in these cases the disclosure was made to the
hospital or the Crown instead of the press and it is thus important to notice how the
recipient of the information pays an important role in whether the disclosure is justified or
not.
As was mentioned in the beginning health care workers have a duty of confidentiality but
they might also have a duty to disclose information. For example the Nursing Code of
Conduct72 provides that information must be disclosed if a worker believes that someone
maybe at risk of harm, and the disclosure should be made instantly. This implicates that
nurses have an actual duty to disclose in some situations and it provides a clear justification
for their disclosure. However, these disclosures must be made in accordance with the law
and cooperation with the media should be done only if the confidential information and
dignity of those in care can be confidently protected.73
According to the general Medical Council doctors have similar rules to report failures in
clinical standards to the management and Department of Health. The duty of
confidentiality and on the other hand the duty to disclose information can put the doctor
into a difficult position unless proper guidance is offered. For example in the US case
Tarasoff v Regents of the University of California74 a therapist was liable for not disclosing
information that could have prevented a murder.75 In the case Hunter v Mann a doctor was
obligated to tell the names of two persons who he had treated, but who also had been
involved in a car accident. These cases show that sometimes the normally emphasized duty
70
[1990] 1 ALL ER 835
[1990] 8 BMLR 128
72
approved by the NMC’s Council on 6 December 2007 for implementation on 1 May 2008. It can be found at
http://www.nmc-uk.org/aArticle.aspx?ArticleID=3056.
73
The NMC’s Code of conduct
74
529 p 22d 553 118 Cal R 129 (1974)
75
Jean McHale and Others, Health Care Law: Text and Materials (2nd edition, Sweet & Maxwell, 2007) p. 92
71
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of confidence is suddenly overridden by the duty to disclose. In addition, doctors have a
duty to disclose confidential information sometimes in a courtroom for example to prevent
and support investigation and punishment of serious crimes.76
There is no general legal duty to inform that a crime has taken place.77 However, a moral or
social duty may exist. This duty consists of patient and public safety and wellbeing, things
like dignity, openness and trust in the society. And one would think that saving lives is
enough to justify whistleblowing. It is important to notice that in reality lawful
whistleblowing cannot be done purely on moral grounds as is seen in the requirements of
the PIDA.
76
77
Jackson, Medical Law: Texts, Cases and Materials (2nd edition, Oxford University Press, 2010) p. 379
McHale, Medical Confidentiality and Legal Privilege (2003, Routledge) p. 87
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6. Whistleblower protection
There have been many improvements in the whistleblower protection such as the PIDA
1998 but the ongoing media coverage about unfair dismissals and the public debate are
signs that more protection and improvements are needed.
For example, the word worker is defined in the s. 43K (c)78 of the ERA 1996 quite broadly,
but for instance it does not include volunteers. And in addition there is no limit in the awards
that can be given to a whistleblower and they are offered full compensation in case of unfair
dismissal. Also complaints can be made to the Employment Appeal Tribunal and every NHS
trust and health authority should have local policies which protect whistleblowers against
victimisation, take staff concerns seriously and guide the staff what to do in case of
malpractice. But as mentioned earlier it is not enough to have laws to protect
whistleblowers. The laws have to be followed by the courts, health councils and employers
and the whistleblowers need to be able to believe that the laws are followed.
The ERA 1996 requires whistleblowers to blow the whistle only when they are doing it in
good faith. This has been disputed79 and some say that the motive for disclosure is not
relevant. I believe that a bad motive should not be relevant if it is not the main reason for
blowing the whistle. The Act does not expressly protect those who are attempting to make
a disclosure. This means that unless the judges decide to protect those who have not yet
blown the whistle but are planning to, they are not protected.80 Neither does it protect
78
works or worked as a person providing general medical services, general dental services, general ophthalmic
services or pharmaceutical services in accordance with arrangements made—(i) by a Health Authority under section
29, 35, 38 or 41 of the National Health Service Act 1977...
79
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?”
Journal of Business Ethics (2008) 82:497–507 p. 504
80
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?”
Journal of Business Ethics (2008) 82:497–507 p. 503
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whistleblowers against discrimination81 when they are searching for new jobs which would
be very important for a whistleblower in order to continue his career.
The PIDA did not establish an individual advice-giving agency82, which is why
whistleblowers have to turn to charities and legal advisors for help. It would be important
to have an advising body so that whistleblowers would know if their case will be protected.
In addition, it is the government’s duty to protect whistleblowers not for example charities
such as The Public Concern at Work. Also the Act does not require the person to whom the
disclosure is made to take any action83, which could easily lead the whistleblower to turn to
the media because he feels that nothing is done otherwise.
81
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?”
Journal of Business Ethics (2008) 82:497–507 p. 504
82
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?”
Journal of Business Ethics (2008) 82:497–507 p. 501
83
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?”
Journal of Business Ethics (2008) 82:497–507 p. 501
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7. Conclusion
The reasons why whistleblowers do not blow the whistles have to be solved and something
done in order to remove the reasons for not blowing the whistle. We have to think of ways
how health care workers can be encouraged to trust their instincts when they feel that
something is wrong or unethical. There needs to be even clearer guidance in what to do
when concerns need to be raised.
The laws are inadequate because otherwise there would not be that many other
nongovernmental channels for whistleblowers, such as hotlines organised by charities and
other independent organisations. In addition official channels are slow and the
whistleblowers can be left without any protection to fight against big entities like the NHS.
There has to be adequate official ways to raise concerns without having to go to the media,
whose main goal is usually to make money.
The protection of whistleblowing is important because it simply costs lives for letting
people and agencies like the NHS mistreat patients and provide insufficient care.
Whistleblowers are the first to notice mistreatment and that something is wrong,
inspectors will realise it later which is also a reason in support of whistleblowing.
Whistleblowing has to look good and valued, only that way we can increase the reportage
of mistreatment without having to fear the consequences which could be devastating to an
individual who has not done anything wrong. It is not the whistleblower who needs to be
punished it is the health care authority and other individual wrongdoers.
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8. Bibliography
Articles:
Bentley, R., “Blowing the whistle”, (2006) Employers' Law. April. pp 12-13.
Boyle Robert D, “A Review of Whistleblower protections and Suggestions for Change”,
(1990) Labour Law J 821
Craik, D., “Whistling while at work”, (2008) Employers’ Law. September. pp 14-15
Levis, D., “When do employees have a contractual duty to report wrongdoing?” I.L.J.
2004 33(3), 278-280
Levis, D, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers
Adequately Protected?” Journal of Business Ethics (2008) 82:497–507
Lomnica Eva, “The employee Whistleblower and his Duty of Confidentiality”, (1990) 106
LQR 42 ok
Books:
Yvonne Cripps, The Legal Implications of Disclosure in the Public Interest (2nd edition, Sweet
& Maxwell, 1988)
Jennifer Davis, Intellectual Property Law (3rd edition, Oxford University Press, 2008)
Peter J Groves, Sourcebook on Intellectual Property Law (Cavendish Publishing Limited,
1997)
Francis Gurry, Breach of Confidence (Oxford University Press, 1984)
Jean McHale and Others, Health Care Law: Text and Materials (2nd edition, Sweet &
Maxwell, 2007)
Brad Sherman, Intellectual Property Law (3rd edition, Oxford University Press, 2009)
Alan Story, LW 566 Cases and Material Pack –Vol. 3 (Kent Law School, 2009-2010)
Legislation:
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The Employment Rights Act 1996
The National Health Service Act 1977
The Public Disclosure Act 1988
Online-sources:
Corinna Ferguson, Do workers have the right to speak out against their employers? (27
October 2009)
http://www.guardian.co.uk/commentisfree/libertycentral/2009/oct/27/whisteblowersfree-speech-protection accessed 29.1.2010
Russell, To sack a nurse for exposing cruelty is a farcical injustice (Tuesday 28 April 2009)
http://www.guardian.co.uk/commentisfree/2009/apr/28/nurse-exposing-cruelty-nhs
accessed 29.1.2010
Roger Kline, Time to make a noise in support of the whistleblowers (24.4.2009)
http://www.guardian.co.uk/society/joepublic/2009/apr/24/whistleblowers-culturechallenge accessed 29.1.2010
Letters, Nursing council must review this case (Saturday 18 April 2009)
http://www.guardian.co.uk/society/2009/apr/18/letters-nursing-council-margarethaywood accessed 29.1.2010
Martin, B., “The whistleblower’s handbook: how to be an effective resister” (1999)
http://www.bmartin.cc/pubs/99wh.pdf accessed 7.1.2010
Public Concern at Work: www.pcaw.co.uk accessed 29.1.2010
The Guardian: www.guardian.co.uk accessed 29.1.2010
http://www.nursinghomes.co.uk/articles.php
Nursing and Midwifery Council: http://www.nmc-uk.org/ accessed 11.2.2010
Care Quality Commission:
http://www.cqc.org.uk/guidanceforprofessionals/socialcare/careproviders.cfm accessed
11.2.2010
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Department of Health: http://www.dh.gov.uk/en/index.htm accessed 11.2.2010
BBC, panorama, Who’d be a whistle blower?
http://www.bbc.co.uk/iplayer/episode/b00k36vp/Panorama_Whod_Be_an_NHS_Whistlebl
ower/ accessed 11.2.2010
The British Medical Journal: http://www.bmj.com/ accessed 21.3.2010
NHS employers: http://www.nhsemployers.org/Pages/home.aspx accessed 21.3.2010
27