Following recent instances of employees in nursing homes making disclosures to HIQA and in light of the government’s decision to abandon plans for a whistleblower referendum, it is timely to look at the legislation in force concerning whistle-blowing, particularly as it impacts upon the healthcare sector.
Whistle blowing describes a situation where a person makes a disclosure to an employer or regulator about a dangerous or illegal activity or omission. From 1 March 2009, whistleblowers in the HSE and other healthcare service providers were granted statutory protections under the provisions of the Health Act 2007 (the “2007 Act”) in circumstances where they make a statutory disclosure.
Under section 103 of the 2007 Act, a protected disclosure is one where an employee of a relevant body (which includes the HSE) makes, in good faith, a disclosure to an authorised person with reasonable grounds for believing that it will show one or more of the following:
- that the health or welfare of a person who is receiving a health/social service has been, is or is likely to be at risk;
- that the actions of any person employed by or acting on behalf of the relevant body has posed, is posing or is likely to pose a risk to the health or welfare of the public;
- that the relevant body or a person employed by or acting on behalf of the relevant body failed, is failing or is likely to fail to comply with any legal obligation;
- that the conduct of the relevant body or of a person employed by or acting on behalf of the relevant body has led, is leading or is likely to lead to a misuse or substantial waste of public funds.
An employee wishing to make a protected disclosure should set out the details of the disclosure in writing on the Protected Disclosures of Information Form and submit the form to the Authorised Person, who is an individual appointed by the HSE.
Following receipt of the disclosure, the Authorised Person will first make enquiries to establish whether or not the subject matter of the disclosure comes within the scope of the Act and, if so, what form the investigation should take. An employee who makes a disclosure in good faith shall not be liable in damages arising from the protected disclosure. In addition, an employee cannot be penalised by an employee for making a protected disclosure. Any penalisation is a ground of complaint by an employee to a rights commissioner.
Since the implementation of the 2007 Act, the HSE has published Procedures on Protected Disclosures of Information in the Workplace. This document is available here.
It is also possible for a whistle blower to make the disclosure to HIQA and we have seen several recent reported examples of one nursing home employee reporting another who had posed or was likely to pose a risk to the health or welfare of a patient/resident and disclosures relating to fraud.
The whistle-blowing provisions of the 2007 Act are relatively complicated, and it should be noted that there are severe penalties for the making of a disclosure that a person “knows or reasonably ought to know is false”. In addition to the 2007 Act, there are a number of other pieces of relevant legislation which provide protections for whistleblowers on a “sectoral” basis, i.e. they apply to employees in some specific professions and sectors. It should also be noted that there are no provisions for anonymity in the 2007 Act. The following list includes some of the other current legislative provisions safeguarding whistle-blowers;
- suspicions of child abuse/neglect (Protection for Persons Reporting Child Abuse Act 1998);
- matters related to workplace health & safety (Safety, Health & Welfare at Work Act 2005);
- The Criminal Justice Act 2011
On 8 August, 2011, the Criminal Justice Act 2011 (the “2011 Act”) was introduced which is aimed at strengthening Garda powers when investigating white-collar crime and legally protecting those who turn whistleblower. It creates a new offence of failing to report business and corporate-related crimes, which is punishable by a term of imprisonment of up to five years. Further, an employer who penalises a whistle-blower in any way can face up to two years in prison and the whistle-blower can sue for damages.
Recent media coverage has tended to focus on the impact this legislation will have for large commercial frauds, however, under Section 19 of the Act it is now a serious offence to fail to report any information without reasonable excuse which might:
- prevent the commission of theft and;
- secure the apprehension and, prosecution or conviction of any person for any theft.
The Act does not include any definition on the size of the theft/fraud, so in theory all theft cases, including theft in the workplace could fall within the scope of the 2011 Act. “Reasonable excuse” is also not defined in the Act so we will have to wait and see how the courts will interpret “reasonable excuse.” Section 22 of the 2011 Act also provides for similar offences by corporate bodies where the director, manager, secretary could be potentially liable. It remains to be seen how this new legislation will interact with the current Whistle blowing provisions applicable to the healthcare sector.