|Montreal, April 15, 2004 / No 141|
by Ralph Maddocks
Recent events in Canada, upon which I touched in last month's article (see POLITICAL CORRUPTION: OF LARGE AND SMALL INSECTS, le QL, no 140), started me thinking about whistle blowing and why we don't hear more of it. One thing is immediately obvious, it is that without very specific legal protection, the forces of law and order cannot be relied upon to protect a whistle blower, especially if it illustrates something in which they are involved even if only tangentially. An example from Australia may make the point clearer.
A gentleman named Skrijel made disclosures about the illegal importation of heroin in South Australia using fishing vessels. As a result Mr. Skrijel, his family and business were subjected to threats and Mr. Skrijel was wrongfully imprisoned on drug charges. In an ensuing trial, the disclosures made to the court in establishing Mr. Skrijel's wrongful imprisonment led to allegations that State and Federal law enforcement agencies were corrupt, and were themselves involved in drug trafficking and in protecting that trafficking. After making his disclosures to the South Australian Police and the National Crime Authority both became involved in the fabrication of evidence with which Mr. Skrijel was prosecuted and imprisoned. In effect they turned their resources, powers and position of trust to the task of destroying every aspect of Mr. Skrijel's life.
The above may remind readers of an attempt to ruin the career and destroy the reputation of a certain bank president in this country. An attempt in which the perpetrators involved the presumably unwitting forces of law and order in their devious scheme, although luckily nothing of an incriminating nature could be found. One would hope that the victim in this case, although he could certainly be forgiven for wishing to write finis to the matter, would sue all those involved for a very large sum of money and that the judge would order restitution be paid from the personal assets of those behind the affair. If possible, the perpetrators of the outrage should also be charged with wasting police time, just to make the point perfectly clear.
Recently, an investigative programme on CTV investigated the abuse of elderly residents in some Ontario care facilities. Stout denials ensued from the homes involved until hidden cameras revealed that there was indeed abuse, which evidence enabled prosecutions of the offenders to begin. While this appalling example of abuse is probably not isolated, if it had not been for the determination of two friends of one of the abused the truth would never have seen the light of day. Obviously, neither the management nor the staff uninvolved in the abuse were going to report the matter to anyone. There have been reports of similar abuse in Quebec facilities, but here again the problem emerged only because of outside reporting by concerned relatives.
Reading of the above incidents, one might wish for employees with the stamina, persistence and professional pride of seven nurses in Australia who complained to their hospital's management about the inferior standard of care in their hospital. Fobbed off by their management, the seven were determined to make sure that their complaints were heard so they went to speak with the Australian Minister of Health. This gentleman, they claim, threatened one of their number, saying that she could lose her home and career over her "slanderous allegations." Something, perhaps the adverse publicity being generated, caused a change of the official mind because an investigation was undertaken eventually by the Health Care Complaints Commission. This body, to no one's surprise, declared that all was well. Undaunted, the magnificent seven continued to complain, eventually forcing the commission to re-open its inquiry.
The second investigation revealed that the hospital's health service was indeed shocking. Serious illnesses were being missed and wrong operations being performed, the whole resulting in nineteen deaths being referred to the Coroner. Most hospitals are dangerous places full of people afflicted with intractable diseases, but this hospital seems to have had more than its fair share. The commission determined that the hospital had too few doctors and nurses (are our Ministers of Health listening?), an insufficiency of specialists and too few of them skilled in emergency procedures. Many hospital protocols and procedures were found to be poor, being inadequate to prevent mistakes. The hospital culture was such that nurses who complained about the poor standard of care were harassed, investigated, bullied and in some cases even fired.
The State Government ordered a special commission of inquiry whose terms of reference appear limited to the nurses' allegations, although it is hard to see how it will avoid dealing with the government's poor management of the hospital during the previous ten years. Many other questions spring to mind as appearing to be in need of answers. Questions such as, will the patients who were mistreated receive compensation? Will the shattered careers of the nurse complainants be restored? Will they be rewarded for their persistence and professional concern? Will new policies be defined to avoid similar occurrences in the future? Will the Minister of Health see his career damaged irreparably? One also wonders how many, and whose, heads will roll as a result? Since this matter came to a head only last December the outcome will not be known for some time. However, here again we see the culture of an organisation being such that questions are far from welcome.
From reviewing the above and other cases, it becomes painfully obvious that institutions must encourage a culture of disclosure especially where corruption is known to exist. In this imperfect world the only way this is likely to happen is if there is a structure containing a single purpose authority to protect the rights and interests of the whistle blowers from the vindictiveness of those whose conduct is being exposed. This authority must be independent of all other government or near government authorities and, in the case of a governmental bureaucracy, it must be able to report only and directly to Parliament, not to some political hack within the system. Such an authority needs the resources and power to secure evidence and protect the whistle blowers, their witnesses and families from harassment. In addition, perhaps most important of all, the authority would need to create a climate in which the service rendered to the community by whistle blowers is respected.
In Canada, only New Brunswick has any legislative protection for whistle blowers. Section 28 of the NB Employment Standards Act, Chap. E-7.2 provides, in part, as follows:
Canada has seen its share of whistle blowers in the institutional and corporate worlds. Few will have forgotten the case earlier this year, when an inquiry into 12 infant deaths at a Winnipeg hospital concluded that at least five of the deaths were preventable – and that whistle blower legislation would have helped to protect nurses from reprisals when reporting a particular surgeon. Last year, we heard from two Health Canada scientists who complained that they were being forced to approve an unsafe growth hormone for cows. Their complaints resulted in their employer, the government's appointed protector of the health of all Canadians, imposing a gag order. Following this, a judge ruled that the scientists did have a constitutional right to speak if they had concerns about public safety. Recently, one of the two spoke out again, asserting that the Canadian ban of Brazilian beef was not based on science. The result? Another gag order!
The business and academic worlds are not exempt from trying to prevent its employees from speaking out and most will recall the case of Dr. Nancy Olivieri, a senior scientist at the Hospital for Sick Children and clinical professor at the University of Toronto. Briefly, Dr. Olivieri discovered evidence suggesting that a drug she was testing might be life threatening. The firm which partly funded her research insisted that she should not publish her results and threatened legal action if she were to inform the patients in the trials. Her brave employers, the Hospital, obviously dedicated to children's health and scientific honesty, reacted by stripping her of her responsibilities as director of its haemoglobinopathy programme. The U of T showed its concern for health and scientific integrity by refusing to intervene with either the hospital or the company involved. Of course, the fact that at that time the U of T was negotiating with the company involved for a multimillion dollar donation for a new building presumably had nothing at all to do with the matter. Unwilling to be silenced, Dr. Olivieri fought on and eventually won. The comments of the investigating committee are uncompromisingly clear; "The greatest academic scandal of our era" said Professor Arthur Schafer, Director of the Centre for Professional and Applied Ethics at the University of Manitoba.
Recent events in the federal government arena provides evidence, if any were needed, that what can perhaps only be described as political money laundering was discovered largely through the investigative efforts of the Auditor General and her staff. Evidence is emerging that even early internal attempts to raise questions about the affair were greeted with veiled, and perhaps not so veiled, threats to punish those who might be inclined to blow whistles. Certainly one sees no evidence that whistle blowers in this country, or in the federal bureaucracy, are being recommended for the Meritorious Service Medal. The British law with respect to whistle blowing – alleged to be the most far reaching in the world – even voids gagging clauses in contracts. The London Times' Higher Education Supplement has a regular whistle blowers column and there has even been a suggestion that whistle blowers should be included in the Honours list for their acts of citizenship.
So it should be obvious that there must be many in this country who would come forward to report on some malfeasance or other – abuse, health or environmental hazards, theft or corruption – provided they were certain that retaliation may not ensue. While there is no federal law about whistle blowing specifically, there are a number of other pieces of legislation, such as federal laws on business competition and health and safety and the environment, which do offer some limited protection to Canadians, but only if a complaint is made to a certain authority. Of course some legislation does require whistle blowing, everyone has a duty to report suspected child abuse for example. However, Canada has no overall legislation fulfilling the requirements noted earlier, e.g. providing the resources and power to secure evidence and protect the whistle blowers, their witnesses and families from harassment.
The famous 1993 election Red Book promised protection for whistle blowers, but as with most Liberal promises like that to abolish the GST, nothing came of it. A Public Service Integrity Officer, reporting to Treasury Board President Lucienne Robillard – who showed her passionate interest in the matter by opining that whistle blowing legislation should be a last resort – was appointed to deal with what the government was pleased to call its "internal disclosure" policy. The distinguished occupant of that post, Edward Keyserlingk, an ethics expert and former head of Biomedical Ethics at McGill University's Faculty of Medicine, soon found out the limits of the office. In his report last September he said that he and his investigators had been unable to do the job they were hired to do because of the office's structure and the weak policy that governed it. He added that public servants are rightly sceptical about his office's ability to protect them from reprisals, which he stated cost his office the credibility and trust needed to investigate and protect whistle blowers. So critical was he that he said, "We are, in fact, not getting the cases that this office was set up to deal with, I don't know if I'd go to this office myself. I would hesitate going."
Mr. Keyserlingk said he knew that there were accusations out there because of the string of allegations of wrongdoing and mismanagement that shook the Chrétien government in recent years, but no one ever filed complaints about them to his office. He said, for example, that the office never received a single complaint about the advertising and sponsorship scandal or about the management practices at the Privacy Commission.
The sponsorship scandal – about which nobody seems to have known very much – is being investigated by a Parliamentary Committee. However, after watching some of its televised activities, it appears to be largely an exercise in political posturing. Attempting to delay an election on one hand and covering up – by refusing to produce written evidentiary material which presumably might embarrass someone – on the other. Truly, amnesia is the handmaiden of hypocrisy. A judicial inquiry is promised later this year, an inquiry which one hopes will not be, as some in the UK, a mind numbing exercise in non-disclosure of the facts and the obfuscation of ministerial responsibility by applying tanker-loads of whitewash.
A piece of "whistle blower" legislation has been introduced finally but it has been criticized by many on several grounds. Firstly, the proposed Public Sector Integrity Commissioner does not report directly to Parliament but again through a minister's office, thereby seriously weakening the agency's independence and credibility among public service employees. Secondly, potential whistle blowers do not have the right to go directly to the agency, but are obligated to go first to their supervisors. Thirdly, there are penalties for whistle blowers whose reports are deemed "frivolous," in "bad faith," or who did not follow established procedures. This means any vindictive retaliation by a superior, or the government, can create a chilling effect on other potential whistle blowers. Once again, Liberal sleight of hand is hard at work, because they know well that the electors are unlikely to even read the legislation, let alone analyse it. As my French-speaking colleagues might put it, "Plus ça change, plus c'est pareil!"
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