Blowing the Whistle


An introduction to Part 14 of the Health Act 2007 on Protected Disclosures.

Since 1 March 2009, “whistleblowers” - people who want to raise concerns about the safety and quality of health and social care services in Ireland- have been granted statutory protections under Part 14 of the Health Act 2007.

The aim of Part 14 of the 2007 Act is to encourage individuals to voice concerns regarding the safety and welfare of patients and to foster what Mary Harney described as “a culture of openness and accountability throughout the health services”. As such it is to be welcomed with open arms.

In order to benefit from the statutory protections, the disclosures made must come within the definition of a “protected disclosure”. The two most common scenarios in which protected disclosure will arise are set out here.

In order to make a protected disclosure, employees of “relevant bodies” i.e. the HSE and those providing services on the HSE’s behalf or receiving HSE assistance, are required to complain to an “authorised person” who will usually be somebody either appointed by the HSE or with HSE approval. The disclosure must be made in good faith and on foot of a reasonable belief that the health or welfare of a recipient of healthcare services is at risk, the actions of a fellow employee are posing a risk to public health or welfare, there is a failure to comply with a legal obligation, there is a misuse or substantial waste of public funds or the destruction or concealment of evidence. If these criteria are fulfilled, the employee is not liable for damages by making a protected disclosure and nor shall they be penalised by their employer for having done so.

In certain circumstances i.e. due to urgency, because the initial complaint was not investigated or if the investigation resulted in no action being taken, these employees can also make disclosure to a number of other bodies including the Health Information and Quality Authority (HIQA) and the Irish Medicines Board and still benefit from the protections.

Anyone making disclosure in good faith to certain professional regulatory bodies in relation to a person who is registered with that body will also benefit from protection, provided there are reasonable grounds for believing that the person’s actions are posing a risk to public health or welfare. The regulatory bodies covered are An Bord Altranais, the Dental Council, the Medical Council, the Health and Social Care Professionals Council and the Pharmaceutical Society of Ireland. Members of the public can make disclosure in this manner and will be protected against civil liability that might otherwise arise. Employees of an entity that provides health services, whether inside or outside the remit of health legislation, be they in the public or private sector, can also make disclosure in this fashion and will be protected from civil liability and from victimisation at the hands of their employers for having made disclosure.

It is certainly hoped that that the spirit of Part 14 will be embraced and the level of uptake will be high. However, there are a number of factors that may affect the overall success of the whistleblower protections, particularly because there is no obligation on an individual to speak up.

• Employees of the HSE, those providing services on the HSE’s behalf and those receiving HSE assistance are required to make disclosure to an authorised person. This may cause a potential whistleblower to think twice due to a perceived lack of independence or the absence of a relationship of trust with the authorised person.
• While there is no prohibition on making disclosure outside the statutory regime, for example to a solicitor or a political representative, the whistleblower will not benefit from the protections.
• Despite the prohibition on an employer from penalising a whistleblower employee, including protection against dismissal or demotion, there may be an institutional and professional culture that regards a whistleblower as an “informer” and Part 14 provides scant protection for a whistleblower against the displeasure of their colleagues.
• Concerns have been expressed that employees working on temporary contracts, such as NCHDs, will have difficulty proving discrimination if they failed to get another job at the end of a contract.
• There is no indication whether a whistleblower can seek anonymity under Part 14 nor is there any guidance on the extent to which the whistleblower will be required to participate in the investigation of the allegations.
• In order to prevent malicious or false allegations, the penalties for making not only a false report, but also one that the whistleblower ought reasonably to have known was false, are severe. At the top end of the scale, the fine is €50,000 or 3 years in prison. While this is an important deterrent against making damaging false accusations, it means that a potential whistleblower is going to have to be confident that their allegations are more that mere suspicion.

It is too early to assess what impact Part 14 will have in the health care sector but it is likely that the ultimate success depends on a cultural change, away from an atmosphere of protectionism and looking the other way, towards an acceptance that bringing real and genuine concerns to light is a positive step in promoting a patient’s best interests. Something be encouraged and supported.

Hilary Muldowney recently spoke on this topic at a well attended seminar in our offices in conjunction with the Irish Healthcare Risk Management Association. The level of interest is a clear indicator of how seriously the health care sector is taking these new provisions.

For further information, please contact Martha Wilson, solicitor