Whistleblowing and Ethics in Health and Social Care. Angie Ash
book The Whistleblowers was A New Tradition of Courageous Dissent. Mansbach (2011) was of the view that whistleblowing protects the community, promotes the public good and extends the rule of law. Lewis, Brown and Moberly amplified this: ‘…whistleblowing is now established as one of the most important processes – if not the single most important process – by which governments and corporations are kept accountable to the societies they are meant to serve and service’ (Lewis, Brown and Moberly 2014, p.1; emphasis in original). The accountability of huge corporations, industries and governments is, in a deft twist of logic, outsourced to the individual whistleblower, who also, of course, depends on that institution for their livelihood. The challenge that whistleblowing might once have presented to the company is thus co-opted and incorporated into huge organizations and governments, who then claim self-regulating ‘social responsibility’ (Pemberton et al. 2012).
WHAT WHISTLEBLOWING IS
Despite periodic media coverage, the social phenomenon that is ‘whistleblowing’ is underdeveloped both empirically and theoretically in the social sciences (Miceli and Near 2005; Pemberton et al. 2012). Internationally, and historically, most published studies and research have been carried out by US academics on US organizations (although that is now changing). Caution is needed before transferring lessons and learning from that economy and culture, with its particular approach to labour law, to other jurisdictions with very different legislation, legal protection, and approaches to employee rights protection in the workplace. There is a dearth of systematic analysis of the relationships between organizational characteristics that help whistleblowing: aggressive, neo-liberal, competitive and highly individualistic economies and economic frameworks such as in the US, are very different from the labour market and employment practices of, say, Norway (Pemberton et al. 2012; Skivenes and Trygstad 2010).
‘Whistleblowing’ itself is a US term, although it may have British origins in the practice of old-style police officers blowing a whistle if they suspected wrongdoing (Evans 2008). Whistleblowing is not complaining, suing or arguing. A whistleblower discloses information across a particular organizational boundary, whether internal (say, from one part of the organization to another) or external (from within the organization to the public domain) (Bouville 2008; Evans 2008). In the UK, whistleblowing in its legal sense is action taken by an employee under the Public Interest Disclosure Act 1998 (PIDA). Under this law, which is discussed below, a member of staff may assume protection against subsequent harassment or dismissal by employers when the employee makes a qualified disclosure of fraud or malpractice to a designated officer.
The commonly used definition of whistleblowing was set out by US academics Near and Miceli in the 1980s: ‘…the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action’ (Near and Miceli 1985, p.4). Skivenes and Trygstad (2010) widened this to include all forms of communication where critical voices are raised about wrongdoing in the presence of someone who can stop the misconduct; and that includes day-to-day communication and critical discussions between managers and employees that are part of work, or should be. Skivenes and Trygstad regarded Near and Miceli’s definition, above, as ‘weak whistleblowing’, or the first step taken when an employee raises concerns. They contrasted this with ‘strong’ whistleblowing, which ‘focuses on process and on cases where there is no improvement in, or explanation for, or clarification of the reported misconduct from those who can do something about it’ (Skivenes and Trygstad 2010, p.1077). In these cases, the employee has to report the matter again, hence Skivenes and Trygstad’s notion of ‘strong’ whistleblowing, or turning up the volume on raising concerns, not giving up, and going outside the organization with the matter.
For Jubb (1999), six elements were necessary for the act of whistleblowing:
1.the act of disclosure itself
2.the person disclosing
3.the subject of the disclosure
4.the target of disclosure
5.the disclosure recipient
6.the outcome.
Jubb regarded whistleblowing, variously, as a public act of dissent, of conflicting loyalty, a deliberate non-obligatory act of disclosure. For the purposes of this book, ‘whistleblowing’ is used in its widest sense – that is, to describe acts of speaking out to raise concerns about the standard, legality and probity of practice in health and social care, and whether these matters are raised inside or outside the organization. These may be acts of dissent, as Jubb characterized whistleblowing. The act of whistleblowing may be about an organizational system, a process, or an entire sector, such as Wigand’s disclosures on the tobacco industry in the US. Fundamentally however, whistleblowing (whether internal or external to the organization) has three defining features: first, intentional disclosure of information by an employee; second, the disclosure of concerns, malpractice or wrongdoing over which the organization has control or responsibility; and third, the purpose of the disclosure is to put right the malpractice or wrongdoing (Tsahuridu and Vandekerckhove 2008).
Whistleblowing itself is a dynamic process, in that the dynamics between the people involved and the particular situation interact when protected disclosures are made. This way of seeing whistleblowing assumes three (or more) parties: the person doing wrong, the person observing wrongdoing and the person who receives the report of wrongdoing (Near and Miceli 1996). This triad assumes the supposed wrongdoing is committed by an individual, rather than by some, or many, behaving and acting in accord with institutional practices, such as when corrupted health and caregiving become normalized, or systemic. Although whistleblowing gets personalized – the individual whistleblower is named (and often shamed for their trouble) – the concerns they raise may be about bad, poor or dangerous practices that have become embedded, institutionally and structurally, in health and social care systems. The disaster of early twenty first-century healthcare in England at Mid Staffordshire NHS Foundation Trust was not that of a few isolated incidents, but systemic failures that many employees had tried to raise concerns about, and over a long period of time. Systematized bad practice – where workplace culture, ways of working or of treating people, becomes institutionalized and normalized – have been features of some of the worst health and social care scandals in the UK. Understanding this is critically important to prevent future harm, suffering, and sometimes death, being visited on sick or vulnerable people, and to recognize that those speaking out about harm are the organization’s early warning system of failure.
WHO IS LIKELY TO WHISTLEBLOW AND ABOUT WHAT?
The sort of wrongdoing or bad practice that may lead to someone whistleblowing covers a wide spectrum. Your bad practice may be my self-justified corner-cutting to get the job done, please managers and hit targets. Brown (2008) pulled out six categories of wrongdoing from a large survey into public interest whistleblowing in Australian public sector agencies:
1.conflict of interest
2.improper or unprofessional behaviour
3.defective administration
4.waste or mismanagement of resources
5.perverting justice or accountability
6.personnel or workplace grievances.
This survey found whistleblowing to be more commonplace in the Australian public sector than had been expected; the most serious reported wrongdoings involved corruption, defective administration or waste.
As to who whistleblows, spotting personality traits and individual characteristics of the whistleblower doesn’t provide a coherent picture of their profile. The search for the personality attributes, beliefs and motivations of whistleblowers yields a very mixed picture (Pemberton et al. 2012). Age is not a predictor of the propensity to whistleblow, but then employee age is usually inextricably bound up with other occupational variables, such as the employee’s length of service, experience, nature of their tenure and supervisory status. Depending on the sector and industry, for example, older employees with security of tenure and more experience may be more likely to hold supervisory positions. In a review of the 2003 US National Business Ethics Survey, Stansbury and Victor (2009) found that individuals