Safeguarding human life at the risk of ruining a career
Some readers may have heard of Dr Raj Mattu, a cardiologist at Walsgrave Hospital in Britain, who was dismissed after blowing the whistle on what he believed to be unsafe practices at the hospital.
In 2001, Mattu publicly exposed overcrowding and his fears for public safety in the Cardiac Unit, claiming that there may have been avoidable deaths as a result. In particular, he was alarmed about a policy which required the accommodation of five patients in rooms designed for a maximum of four.
Mattu had earlier raised the concerns with his employer on multiple occasions. The concerns fell on deaf ears, however, so he went public.
A year after going public, Mattu was suspended on full pay by the National Health Service (NHS) trust. He remained on suspension for around five years until 2007, when a QC-led inquiry recommended that Mattu be allowed to return to work.
Subsequently, new allegations were raised against Mattu by the NHS trust and he was dismissed in 2010 while on sick leave.
Last month, an employment tribunal ruled that Mattu had been unfairly dismissed on grounds of disability. He was too ill to attend a disciplinary hearing because he was suffering from an auto-immune condition. While the tribunal did not state that Mattu was dismissed as a result of his public statements, it did find that he had suffered a series of "detriments" because he was a whistleblower.
The compensation Mattu should receive will be decided at a later date. He has submitted a claim for damages of more than £6.5 million ($12.7 million).
It is alleged that, over the many years of this long-running saga, the NHS trust spent more than £6m on legal fees. Additionally, it hired private detectives to discredit Mattu and engaged a public relations agency to handle media interest in the case.
The sympathy of readers will immediately go out to Mattu, given the overwhelming odds he faced and the huge sums of public money that have been squandered trying to discredit him.
Doctors employed in New Zealand have an obligation to behave in a way that promotes trust and confidence with their employer. The employer may be a district health board, private hospital or some other organisation. They will typically have confidentiality obligations, be it in their contracts or otherwise.
Employers don't like their staff exposing them in the media and few will tolerate this. No doubt they have financial constraints and pressure to constrain costs in their hospitals.
But, if human lives are at stake and the employee has done their best to persuade the employer to rectify what they might consider dangerous practices, what are they to do? Nothing?
Readers may recall the case of Neil Pugmire, our most famous whistleblower case.
Pugmire was a psychiatric nurse at Lake Alice Hospital. In 1993, Pugmire was concerned that legislation being considered in Parliament would result in dangerous patients being released into the community. Pugmire sent a letter to the minister of health which contained sensitive information about some of the more dangerous patients.
After one of the patients referred to in Pugmire's letter was released, he kidnapped and attempted to violate an 11-year-old boy. Pugmire made his letter available to Phil Goff, the opposition's justice spokesman at the time. As a consequence, Pugmire was suspended for releasing confidential information.
The Employment Court found, however, that Pugmire's actions were justified and he was reinstated to his role.
The law has changed since the days of the Pugmire decision. The Protected Disclosures Act now provides a clear process that whistleblowers must follow. There is, however, no general right to go to the media or the public with information.
At the end of the day, a person in Mattu's position in New Zealand will want to safeguard human life. If they follow the prescribed procedure in the Protected Disclosures Act, they will be safe. If they go to the media, they may be dismissed - as was the good doctor in Britain.
- Peter Cullen is a partner at Cullen - the Employment Law Firm. He can be contacted at email@example.com.
The Dominion Post