Whistleblower Legislation: Letting Health Care Workers Speak their Minds

by: Shaun O’Brien

Health care workers who have concerns about employer wrongdoing may increasingly feel free to speak their minds. Recent legislative initiatives at both the federal and provincial level look to provide some protection to whistleblowers. In particular, health care workers may be in a better position to raise concerns for their own safety and that of the public.

The importance of whistleblowing by health care workers has recently been underscored in the aftermath of SARS. In the SARS Commission’s Second Interim Report, Mr. Justice Archie Campbell highlighted the importance of the freedom to speak out for health care workers. As Justice Campbell recognized, historically, health care workers have not been heard. He underscored the comments by Associate Chief Judge Murray Sinclair in the Report of the Manitoba Paediatric Cardiac Surgery Inquest, which looked into the death of 12 infants at a Winnipeg Hospital:

Historically, the role of nurses has been subordinate to that of doctors in our health-care system. While they are no long[er] explicitly told to see and be silent, it is clear that legitimate warnings and concerns raised by nurses were not always treated with the same respect or seriousness as those raised by doctors. There are many reasons for this, but the attempted silencing of members of the nursing profession, and the failure to accept the legitimacy of the concerns, meant that serious problems in the paediatric cardiac surgery programme were not recognized or addressed in a timely manner. As a result, patient care was compromised.

Nurses felt similarly disregarded during the SARS outbreak, particularly when they attempted to raise alarms prior to SARS II, to no effect.

Protections for whistleblowing health care workers arise from Criminal Code amendments and existing occupational health and safety legislation. Other newly passed federal legislation provides an example of where whistleblowing legislation could provide limited protection to whistleblowers in a health care setting.

Criminal Code

The federal government has recently passed an amendment to the Criminal Code to protect whistleblowers. The amendment creates a new criminal offence, with a maximum penalty of five years’ imprisonment. It includes broad language to capture the employer or its representative, targeting the “employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer”. It charges such a person with a criminal offence if he or she takes specified actions against an employee to compel the employee to abstain from providing information to law enforcement officials respecting an offence that the employee believes has been or is being committed.

The provision was included in the Criminal Code as part of the federal government’s response to the recent corporate scandals, including the Enron scandal, that have weakened investor confidence in capital markets around the world. While the corporate scandals were the impetus, the offence has a broad reach, protecting employees who report the commission of an offence contrary to any federal or provincial Act or regulation. Therefore, it would provide strong protection for a health care worker who wished to report an employer for offences under employment and health legislation.

Federal Public Sector – Bill C-11

The House of Commons has also recently passed a bill to deal with whistleblowing in the federal public sector. Bill C-11, which was passed on October 4, 2005, requires the establishment of a code of conduct applicable to the federal public sector. It provides civil protections for whistleblowers, including disciplinary action against a public servant who takes a reprisal against a whistleblower, and reinstatement or damages in lieu of reinstatement for whistleblowers who have been subject to reprisal.

The Bill also includes a broader definition of wrongdoing than does the Criminal Code offence. Wrongdoing is defined to include the contravention of relevant laws (rather than only “offences”), and also includes other types of wrongdoing, such as: the misuse of public funds or assets, gross mismanagement in the public sector, a serious breach of the code of conduct (which the Treasury Board is to establish) and the taking of a reprisal against a public servant.

Of particular interest to health care workers, “wrongdoing” is also defined to include:

an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of the public servant;

The underlined portion of this provision seriously compromises the proposed statute’s protections for health care workers, considering it could be argued that health dangers are “inherent” in the job. Indeed, this issue arose in the context of SARS for health care workers who were uncertain what their rights were to refuse to work with SARS patients. The question there was whether the danger posed by SARS was “inherent” in or a “normal condition of” the employment of all health care workers asked to deal with SARS patients (s. 43(1) of the Occupational Health and Safety Act). While the question may not have been definitively decided, employers certainly were taking the view that employees did not have the right to refuse. If the danger of every epidemic or other health care crisis was considered “inherent” in every health care worker’s employment, they would be seriously limited in taking advantage of the protections set out by Bill C-11.

Ontario

While there has been no whistleblower legislation recently tabled in Ontario, Ontario health care workers already receive some protection from s. 50 of the Occupational Health and Safety Act, which protects them where they seek enforcement or give evidence in respect of the enforcement of that Act. While that provision does provide some protection where workers’ health and safety is at risk, it does not protect whistleblowing about contraventions of other acts nor whistleblowing about public health hazards.

The possibility of more extensive protection for health care workers has arisen in a review of what went wrong during the SARS outbreak. In the SARS Commission’s Second Interim Report, Mr. Justice Archie Campbell has recommended that the Health Protection and Promotion Act be amended to provide health care workers with whistleblowing protection in relation to public health. In particular, health care workers would be free to alert public health authorities to a situation that involves the risk of spreading an infectious disease and to failures to conform with the Health Protection and Promotion Act. As with Bill C-11, reprisals against whistleblowers would be prohibited, the violating employer would be punished and remedies would be provided for the employee.

If Justice Campbell’s recommendations are taken to heart, health care workers in Ontario, then, will have threefold protection in raising alarms: (1) protection for whistleblowing in relation to occupational health and safety; (2) protection for whistleblowing about public health hazards; and (3) protection for whistleblowing about the commission of federal or provincial offences. In addition, health care workers in the federal public sector will be covered by the farther-reaching Bill C-11, though the extent to which it will provide them with meaningful protection remains to be seen. While not fully comprehensive, all of this legislation in combination should provide some measure of comfort to health care workers wishing to raise concerns for the protection of themselves, their patients and the public.