Whistleblowing -- raising concerns about research misconduct, clinical practices that harm patients, or financial fraud -- is not easy. Patients can benefit, but employers and the authorities may be less than supportive of doctors who bring unethical practices or unsafe care to light. More enlightened employers are coming to realise that helping employees to raise concerns can not only improve patient safety but help avoid damage to institutional reputation and costly lawsuits.
"We will not get people to expose poor practice or misconduct unless they have proper protection," the seasoned British whistleblower Peter Wilmshurst told The BMJ. "Many whistleblowers have become unemployed and poor, with their careers destroyed. I do not know one who has fared well," he said, adding that protections should include "sanctions against those who victimise and bully whistleblowers."
Reluctance to speak out
Reluctance to speak out against fellow healthcare professionals, especially doctors or the managers of healthcare institutions, stems from fears that it could lead to harassment of or disciplinary action against the complainant and may damage career prospects (box). In extreme cases, whistleblowers have been found dead in suspicious circumstances. For example, two chief medical officers were murdered in Uttar Pradesh in 2012 after officials had raised concerns about alleged corruption surrounding the National Rural Health Mission.1
Indian medical whistleblowers
Sanjiv Chaturvedi, chief vigilance officer at the All India Institute of Medical Sciences, was sacked in 2014 after he had blown the whistle on corruption. The health ministry denies that his departure was linked to his determination to expose malpractice.2 The newly elected Delhi government wants to appoint him as top anti-corruption officer, which will require approval from the health ministry3
H K Jethi, central vigilance officer of the Medical Council of India (MCI), has complained of "statutory and physical harassment" in retaliation for his drive against corruption in the council4
Kankokkaran Vadakkeveetil Babu, an ophthalmologist, alleged that the Indian Medical Association (IMA) was endorsing commercial products, in violation of the association's ethical code. The MCI upheld his complaint in 2010, but no action has been taken. Babu claims that he has been harassed by IMA officials5 6
"Unlike in the West, doctors, even the 'good' ones, are reluctant to give their honest medical opinion for fear of retaliation," Kunal Saha told The BMJ. Saha is a doctor based in the United States who set up the campaigning group People for Better Treatment after his wife, Anuradha Saha, died from proved medical negligence in India.7
Retaliation may include pressure to withdraw the complaint from peers and others who have a vested interest in maintaining the status quo, explained Saha. "In some cases, outspoken doctors have been subjected to retaliation in a more direct fashion." Anil Gupta has talked about the harassment that he received after speaking out against fellow doctors after the death of Anuradha Saha.8
Petitioning the courts against errant doctors and hospitals can be time consuming and costly, particularly if you have lost your job and don't have the cushion of social security.
Legal protections in other jurisdictions
Legal protections and the political will to enforce the law can help to facilitate whistleblowing. Many countries lack specific legislation, but from 2000 to 2009 the proportion of members of the Organisation for Economic Co-operation and Development with legal protection for whistleblowers jumped from 44% to 66%.9 Legal protections may include protection against all forms of retaliation and discrimination in the workplace linked to or resulting from whistleblowing (dismissal, punitive transfers, harassment, withholding promotion), the right to anonymity and confidentiality, placing the burden of proof on the employer, the right to a timely response, the use of incentives to encourage the reporting of unethical conduct or malpractices, and telephone lines to facilitate the reporting of wrongdoing.
Whistleblower legislation should provide a clear definition of the scope of disclosures that are afforded protection to ensure legal certainty to potential whistleblowers. For example, Japan's Whistleblower Protection Act expressly lists violations of food, health, safety, and environmental laws.10
In the United Kingdom, the Public Interest Disclosure Act 1998 was passed after the high death rates in paediatric cardiac surgery in Bristol were reported in the 1990s.11 The act protects most of the working population. The US has several federal and state laws as well as regulations that seek to protect US whistleblowers subjected to retaliation. US whistleblowers can also claim lost pay with interest, damages, and other litigation costs.12
After years of delay, India's Whistle Blowers Protection Act 2011 became law on 9 May 2014, but no date has been set for it to be enforced.13 It seeks to "establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint." It can be applied up to seven years retrospectively.
The act will cover anybody who wishes to disclose fraud, corruption, or mismanagement in a public office, but it offers no protection to those who wish to raise concerns about private sector healthcare. Nearly 900 000 doctors are registered with the MCI, but no data are available on how many work for the government and how many are in the private sector.
Christine Liu, a New York lawyer, posted an analysis of the act on the Global Anticorruption Blog.14 The central government's Central Vigilance Commission will receive complaints, assess public disclosure requests, and safeguard complainants -- for example, it can order reinstatement of whistleblowers who are sacked.
The law requires public officials to show that any action they have taken against a whistleblower was not retaliatory. It also assures confidentiality and penalises any public official who reveals a complainant's identity, with up to three years' imprisonment and a fine of up to Rs50 000 (£530; €710; $805). Organisations and individuals who fail to comply with requests for information, or who knowingly provide incomplete, incorrect, or misleading information, may be subject to additional penalties. The law also allows for up to two years' imprisonment and fines of up to Rs20 000 for bringing false or frivolous complaints.
Liu said that the law is an important step but "not enough." She noted, "First, the law lacks specific criminal penalties for physical attacks on whistleblowers -- and given the number of violent attacks on complainants in the past, this is not a minor concern. Second, the law does not provide civil penalties for workplace retaliation. Thus, protection for whistleblowers under the bill is still inadequate."
She also said that the act did not define "victimisation" and had a narrow definition for "disclosure," which limits the effectiveness of any complainant safeguards. "Other countries such as the US, the UK, and Canada define disclosure more widely and define victimisation," an analysis by PRS Legislative Research, a Delhi based independent research initiative, said.15
How the statute will work in practice is also unknown. "No guidance exists on this law as it has not been enforced," Venkatesh Nayak, programme coordinator at the Commonwealth Human Rights Initiative in Delhi, who has critiqued the legislation,16 told The BMJ. "It also does not contain any provision requiring the central and state governments to spread awareness about this law or provide counselling and guidance [to whistleblowers]."
In a scathing commentary in The Mint newspaper G Sampath asked, "In a country where corruption is so endemic that it's now an emotive electoral issue, why is a supposedly anti-corruption piece of legislation more eager to establish the identity of the complainant than to ensure that complaints are received, are investigated, and that the complainant is protected from retaliation?"17
But before the act the only options for a would-be whistleblower were to go to court, potentially inviting disciplinary action, or to remain silent. India already had the Public Interest Disclosure and Protection of Informer Resolution, but this provides only a mechanism for whistleblowing. "It has no provisions for ensuring that someone actually inquires into the complaint and takes effective action on it," said Nayak. "The CVC [Central Vigilance Commission] only forwards it to the concerned public authority, seeking a report if it finds it necessary to do so. Or else the organisation is told to look into the matter with hardly any monitoring done. When I asked for the status of action taken on each whistleblower complaint, they said that they do not maintain that data in a compiled form and that they are to be found in different case specific files," he said.
What protections do professional bodies provide?
"In theory, bodies like the MCI and the IMA have an important role to play. In reality, they have really not stepped up. The IMA, which serves the interest of its membership, has shown little interest in also ensuring those who might expose corruption or practices which endanger patient safety are provided support," Anant Bhan, an independent researcher in bioethics and global health in Mangalore, told The BMJ.
Many health advocates point to controversies surrounding the MCI and say that it needs to do a lot more to protect those who want to blow the whistle. "The MCI will have to develop a mechanism for protecting doctors and care givers in the private sector along the lines of what is provided in the Whistle Blowers Protection Act," said Nayak. Saha said that it offers "absolutely no provision for any protection for any whistleblower like myself."
Krishan Kumar Aggarwal, senior national vice president of the IMA, disagrees. He cited section 1.7 of the MCI's Code of Ethics Regulations 2002, which states, "A physician should expose, without fear or favour, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession."18 He is a member of the MCI ethics committee and said that the code is merely a recommendation. "Some people do not report as not reporting is not a violation of MCI ethics," he said.
Aggarwal explained that members of the IMA can "raise their issues in respective branches, in state branches, or to the central IMA through elected representatives" and that non-members can also bring grievances to the association. If complainants are unhappy with how their concern is handled they can ask for it to be escalated to the next tier of the IMA and ultimately to the president. But he said that from January 2015 the association will entertain complaints for mediation and reconciliation.
It is important for whistleblowers to have their concerns dealt with promptly. One result of public interest litigation that People for Better Treatment has introduced, Saha said, is the introduction of sections 8.7 and 8.8 to the MCI's Code of Ethics Regulations in 2004,18 which mandate that complaints of medical negligence and ethical violations must be dealt with within six months. "Before then, complaints against doctors were kept languishing by the MCI for years," Saha said.
Helping doctors speak out
"Hospitals do not have whistleblower policies," said Girdhar J Gyani, director general of the Association of Healthcare Providers (India). The association is formulating a code of ethics for its members (10 000 hospitals), but a date for the code's publication has not been set. Gyani made no mention of any specific protections that this code may offer to individual whistleblowers.
The media and non-governmental organisations -- such as the National Whistleblowers Center in the US and Whistleblowers UK -- often campaign on behalf of healthcare whistleblowers.19 20 "NGOs [non-governmental organisations] also need to develop specialisation in counselling and guidance, as potential whistleblowing employees might respond better to people they can trust outside their own organisations," Nayak said. The Whistleblowing International Network helps local organisations worldwide to facilitate whistleblowing.21
Brave doctors and health advocates are also pushing things forward slowly. Sunil Nandraj, an independent health researcher, launched the website Medileaks in November 2014.22 It offers a platform where anyone can "share information about various malpractices, scams, irrational practices . . . in the public domain without their identities being revealed," Nandraj explained. He hopes that eventually the publicity of "a critical mass of ethical doctors who are against such practices" can "lead to changes in the way medicine is practised."
"As far as we know, there is no public or private organisation in India to give advice to doctors for whistleblowing. We welcome and encourage the 'good' doctors to step forward for cleansing the system. Of course, we also provide help for the alleged victims of malpractice to find justice," said People for Better Treatment's Saha.
Materials provided by BMJ. Note: Content may be edited for style and length.
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