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FROM BULLETIN of MEDICAL ETHICS Editor, Dr. Richard H Nicholson, No. 170 AUGUST 2001 pp. 13-17
WHISTLEBLOWING HEROES – BOON OR BURDEN?
Anthony Frais
Introduction
Justifiable whistleblowing by health care professionals should not be considered morally wrong. If hospital authorities fail to take action over legitimate reported concerns, whistleblowing is likely to be the only means available to the individual to protect patients at risk of harm. Some individuals believe it is their professional duty to whistleblow. However, whistleblowing is not always praiseworthy – it depends on the motive, on the alternative remedies available, and on how serious the matter is.
As whistleblowers generally can expect to face career damage and vilification, their actions are considered heroic and supererogatory, i.e. acts that go far beyond the bounds of duty. This paper argues that there may be circumstances where whistleblowing is neither supererogatory nor heroic. More importantly, I argue that ill-advised whistleblowing brings the practice into disrepute.
Defining whistleblowing: I classify whistleblowing as an external disclosure of perceived wrongdoing by an individual to the public via the media. It is distinct from an internal disclosure.
Professional ethical guidelines Should a doctor witness evidence of malpractice, the General Medical Council makes clear that it is a doctor’s duty to protect patients by stating: ‘You must protect patients when you believe that a doctor’s or other colleague’s health, conduct or performance is a threat to them.’ (1) At this stage, the concerned doctor is encouraged to report his evidence to the appropriate hospital authorities. In the event that no action is taken, the General Medical Council states: ‘If your local procedures fail or are not suitable, you should refer the case to us.’ (2) The British Medical Association is more circumspect on this matter. Its guidebook on medical ethics states: ‘Since the B.M.A. considers there is an ethical duty for doctors to take action against unsafe standards of care, it follows that they should also support, and not discriminate against, those who are brave enough to speak out about standards which are indeed unacceptable.’ (3) The words ‘brave enough to speak out’ clearly imply that the B.M.A. are aware that disclosing on a colleague can be a dangerous activity. Neither the B.M.A. nor the G.M.C. imply that there is a professional duty to whistleblow. Therefore, it may be deduced that officially, one’s professional duty should go no further than an internal disclosure. But what if ‘local procedures fail’ leaving patients exposed to potential danger?
Supererogation and heroes
Individuals who whistleblow may be perceived as heroes by the patient’s relatives. These families were previously unaware that the harm suffered by the patient may have been the result of malpractice. Whistleblowers are also considered heroes by organizations that are devoted to the right of the individual to speak out against perceived wrongdoing. But do these heroes always deserve this acclaim? Should whistleblowing necessarily be classified as a supererogatory act? A moral theory may classify actions as:
- those which we are obliged to perform, - those that are permissible but not obligatory, and - those which are forbidden. In his article ‘Saints and Heroes’, J. Urmson (4) contends that this threefold classification fails to recognise those actions which are considered heroic. Heroic acts are not obligatory, but they are permissible. Urmson suggests a further category: those acts that go far beyond the bounds of normal duty. This forth category makes the distinction between acts that are required by duty and acts that go beyond duty, i.e. acts that are supererogatory.
Urmson’s own example is the distinction between the doctor who tends his own patients in a plague- ridden city and the doctor who volunteers his help in a plague- ridden city. The first example is heroic but dutiful; the second is heroic and supererogatory. Both are examples of heroic actions, which are praiseworthy. But not all heroic acts can be considered as praiseworthy. Some actions can appear to be praiseworthy and heroic but they may contain some self- serving reasons: for example, the whistleblower who acts in the hope that his efforts will receive public admiration. Some individuals may act heroically beyond duty and with the best intentions; however, their actions may be foolish and ill advised.
As many whistleblowers act when the odds of success appear to be stacked against them, this would appear to classify the practice as supererogatory. If they are in danger of sacrificing their career, they are considered blameless if they choose to remain silent. In modern day nursing, employers justifiably maintain that protecting the confidentiality of both staff and patients is especially important. There is good reason for this as Jean Orr states: ‘nurses frequently know much more than they ever disclose’ (5) This could imply that potentially, cases of whistleblowing are more likely to come from the nursing ranks.
Stephen Edwards argues that whistleblowing is a supererogatory act for nurses as it is likely to cost the nurse her career and subsequent loss of earnings. Edwards believes that as clause one of the 1992 United Kingdom Central Council for Nursing, Midwifery and Health Visiting Code of Professional Conduct states that a nurse should ‘…act always in such a way as to promote and safeguard the interests and well-being of patients and clients’, (6) it might imply that a nurse should whistleblow if the hospital takes no action. Loss of career and earnings may, however, be a justifiable reason why nurses may have this defensible option not to whistleblow. But, in addition, I would suggest that nurses lack the power base of doctors and this could make for even more difficulties in getting a nurse’s allegations to stick, particularly if the nurse is in the early stages of her career. It may therefore seem difficult to argue against Edward’s position.
However, is the behaviour of previous whistleblowers the main reason why whistleblowing is considered a supererogatory act?
Whistleblower: nurse Graham Pink
Edwards cites the fate of whistleblower Graham Pink as somewhat influential in nursing circles. He states: ‘Nurses frequently point to the adverse consequences of drawing attention to bad practice.’ (7) In 1989, Charge Nurse Graham Pink blew the whistle over staff shortages leading to an alleged reduction in standards of care at a Stockport hospital. Over the next four years, Pink persisted with his campaign. Professor Gerald Vinten’s account of the affair notes that apart from the main concern over alleged staff shortages, many of Pink’s complaints to his managers referred to the: ‘ inadequacies of his day-shift colleagues in failing to achieve his own perceived standards in such areas as filling in drug and nursing kardexes,[nursing records] and name bands, giving handover reports, washing medicine glasses and removing teacups from lockers at the end of a shift.’ (8)
Pink’s campaign finally ended in settlement only after costing the N.H.S. Trust thousands of pounds defending their right to dismiss Pink over his breaching of patient confidentiality. Professor Vinten quotes the opinions of a ward sister and former colleague of Pink: ‘ In view of the numerous occasions that Mr. Pink has now violated the most precious rights still left to the elderly (namely dignity, privacy and above all confidentiality) by his articles in the press, I would be grateful if you would consider removing him from this ward, therefore ensuring that the ‘most vulnerable members of our society’ [Mr. Pink’s own phrase] are indeed afforded the respect they deserve instead of being pawns in his campaign.’ (9)
One may perceive staff shortages as a moral wrong if it might compromise patient safety. But hospital wards are routinely and adequately staffed by a fixed number of trained staff. There may be extremely rare occasions when an unusually large number of patients on the same ward require attention at the same time. Does this mean ward-staffing levels should be permanently increased? Would anything be gained in permanently doubling a ward’s nursing staff, thus diverting resources from elsewhere merely to cope with a rare and unlikely event? Does it justify whistleblowing as a means to achieve change? It is noted that in Hunt and Shailer’s survey of 30 whistleblowers, the vast majority blew for arguably, semi-serious reasons such as staff shortages and alleged unfair treatment of staff. (10)
In common with these other whistleblowers, Pink’s intentions may have been sincere. However, in his case, the question is whether his whistleblowing strategy was appropriate in the circumstances. Pink was convinced that the public ought to be aware that some patients were suffering a degree of harm because of staff shortages. But it could be argued that one result of his action may have been to undermine the confidence and trust of patients. This might have been a short- term regrettable consequence, to be weighed against the possibility that publicity would result in needed reforms. However, staff shortages are more of a political issue. Acting heroically whilst facing impossible odds in taking on a government department, it would suggest that Pink’s persistent action may have been somewhat ill- advised.
Pink ignored the option not to whistleblow despite the repercussions on his career. With the odds of success against him, his action was undoubtedly supererogatory and heroic. But it is heroic whistleblowers such as Pink who undermine the practice of whistleblowing. Doctors or nurses who do hold compelling evidence of serious malpractice may have had their decision not to whistleblow influenced by the fate suffered by somewhat naïve or perhaps over zealous whistleblowers.
The Bristol baby case whistleblower
In June 1998, the Professional Conduct Committee of the General Medical Council struck off two surgeons and the former medical director of the United Bristol Healthcare Trust for serious professional misconduct. The surgeons had performed heart surgery on babies suffering from serious congenital heart conditions. Twenty nine babies were held to have died unnecessarily as a result of surgical procedures. Dr. Stephen Bolsin, who was an anaesthetist at the same Bristol hospital, witnessed a number of these operations and concluded that surgery time was up to three times longer than average and that the mortality rate was also above average. Dr. Bolsin believed he had good reason to disclose his concerns internally. However, the main surgeon Dr. Wisheart, was also the medical director responsible for medical standards of all practitioners within the Trust. (11) It seemed unlikely that this surgeon was going to take action against himself. Subsequent to the internal disclosure, no action was taken. Dr. Bolsin decided to whistleblow. (12)
Not all members of the profession approved of Dr. Bolsin’s action. There is a perception that the struck-off doctors may have been made scapegoats. In a letter to the British Medical Journal, Rachael Dawson, Senior house officer at The Queen Elizabeth Hospital suggested that ‘discreet inquiries and perhaps an invitation for Drs.Wisheart and Dhasmana to go on a sabbatical to a centre with higher survival figures ( if comparable ), long before the problem got out of hand, would have been the best answer for both sinned against and sinners.’ (13)
It could be asked whether Dr. Bolsin had taken into account the following factors:
- Dr. Wisheart, the senior surgeon involved, had an exemplary record until that point. - The babies mostly had very poor prognoses unless operated on. - Would the babies have stood any better chance at another hospital under a different surgeon? However, Dr. Bolsin clearly believed first, that there was compelling evidence of serious and persistent malpractice, and secondly that the accused surgeon was being protected by his own position as medical director. These were the conclusive moral reasons for whistleblowing and I would argue that the action was not beyond the boundaries of Dr. Bolsin’s professional duty. Consequently, it was not a supererogatory act. It also seems Dr. Bolsin acted in ignorance of the powerful culture of loyalty that existed between senior doctors. If heroism means facing what you foresee may cost you dear it is therefore open to question whether his was a heroic act, whether he had in fact foreseen the consequences for his career. In contrast with Pink, Dr. Bolsin’s success in achieving the aims of his whistleblowing was due not only to its being morally justified but also to the exposure being shrewdly managed. Dr. Bolsin carefully chose external organizations and institutions best placed to give an accurate and effective voice to the evidence. However, did Dr. Bolsin’s action ‘cost him dear’? Bolsin did experience some working difficulties and during the course of events at the Bristol hospital which included threats to his further employment. After whistleblowing, Dr. Bolsin claimed that he was: ‘shunned by the medical establishment and forced to seek a job abroad after applying unsuccessfully for posts in Britain.’ (14) It seems that Dr. Bolsin may have been taken aback by the strength of establishment feeling over his actions. It may be concluded that Dr. Bolsin did share one thing in common with other whistleblowers- a certain naivety that his actions would be appreciated and understood by the rest of the profession and its institutions. However, Dr. Bolsin eventually secured a senior position in an Australian hospital.
Concluding remarks
It may be argued that there can be cases in which, all things carefully considered, not whistleblowing may be the lesser harm. It could be further argued that reporting malpractice just to the hospital authorities is the limit to one’s moral and professional duty. However, there will be times and circumstances where evidence of persistent malpractice puts present and future patients at risk of harm; combined perhaps with a troubled conscience, it may be enough to persuade the individual of good moral character to speak out. This is the whistleblower who not only knows he or she is on firm moral ground but is also adept in delivering the message responsibly and effectively. Unfortunately, even well managed whistleblowing may have some hurtful repercussions. But perhaps with care, good judgement, sound strategy, and the knowledge of just how far to go with the exposure, it may be possible that the conscientious whistleblower could avoid becoming the tragic hero.
It should be reflected upon that a patient has at least the right to be treated competently and not to be harmed unnecessarily. In order that this right is protected, a whistleblower may in certain circumstances have a message that is important and perhaps crucial. It is for this reason that those who contemplate whistleblowing on less than certain grounds should refrain from using the practice in an injudicious way.
References
1. General Medical Council. Good Medical Practice, at para.23. GMC Pubns, London, 1998. 2. General Medical Council. Maintaining Good Medical Practice, at p14. GMC Publications, London, 1998. 3. British Medical Association. Medical Ethics Today. Its Practice and Philosophy, at p 264. BMJ Publishing Group, London, 1993. 4. Urmson J. Saints and Heroes. In Melden AJ, ed. Essays in Moral Philosophy. University of Washington Press, Seattle, 1958. 5. Orr J, Nursing Accountability, In Hunt G, ed. Whistleblowing in the Health Service, at p55. Edward Arnold, London, 1995. 6. United Kingdom Central Council for Nursing, Midwifery and Health Visiting. UKCC Code of Professional Conduct ( 3rd edn ). UKCC, London 1992 7. Edwards S. What are the limits to the obligations of the nurse? J Med Ethics ( 1996 ) 22, 90-4. 8. Vinten G. Enough is enough: an employer’s view-the Pink affair. In Vinten G, ed. Whistleblowing – Subversion or Corporate Citizenship? At p120. Paul Chapman, London, 1994. 9. Vinten, G. Ibid. at p119. 10. Hunt G, Shailer B. The Whistleblowers speak. In Hunt G, ed. Whistleblowing in the Health Service at p5, Edward Arnold, London,1995. 11. Bolsin S, Personal Perspective, Professional misconduct: the Bristol case. Med J Australia ( 1998 ) 169, 369-72. 12. Ibid. 13. Dawson R. Benefit of openness and teamwork must be emphasised. Brit Med J ( 1998 ) 317, 811. 14. Dyer C. Whistleblower in Bristol Case says funding was put before patients Brit Med J (1999 ) 319, 1387.
Acknowledgements
I would like to thank Ms. Jennifer Jackson of the School of Philosophy, University of Leeds for her useful comments in the preparation of this paper.
CONTACT AUTHOR afrais@tiscali.co.uk
