Whistleblowers be warned  

Quality of care Regulation

When considering the mandatory reporting of patient abuse in the UK, it may help to consult the American system, as the  dilemmas and legal considerations are similar in both jurisdictions. A caveat to this is that although there is an office of Adult Protective Services (“APS”) in all 50 states, each state’s legislation may differ. In Colorado, on and after July 1, 2014, for instance, a very comprehensive list is given of those who have a mandatory duty to report serious harm or injuries. Indiana: An individual who believes or has reason to believe that another individual is an endangered adult shall make a report under this chapter. Ind. Code Ann. §12-10-3-9(a) (West 2013). Texas: A person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation. Tex. Hum. Res. Code Ann. § 48.051(b) (West 2013). Utah: A person who has reason to believe that a vulnerable adult has been the subject of abuse, neglect, or exploitation. Utah Code Ann. § 62A-3-305(1) (West 2013). Some states specify where an initial complaint is to be lodged. Delaware: Any person having reasonable cause to believe that an adult person is impaired or incapacitated as defined in § 3902 of this title and is in need of protective services as defined in § 3904 of this title shall report such information to the Department of Health and Social Services. Del. Code. Ann. tit.31, §3910(a) (West 2013). North Carolina: Any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information to the director. N.C. Gen. Stat. § 108A-102(a) (West 2013). APS are not necessarily a state run service, North Carolina defining them as: services provided by the State or other government or private organizations or individuals which are necessary to protect the disabled adult from abuse, neglect, or exploitation. They shall consist of evaluation of the need for service and mobilization of essential services on behalf of the disabled adult. N.C. Gen. Stat §108A-101(n) (West 2013). Much might depend on what is deemed reasonable.

Generally, those with a mandatory duty of reporting serious harm or injury are given variations the following legal advice. The Wisconsin Caregiver Law  (WI Caregiver Law Ch. DHS 13), defines serious harm or injury as:

  • ‘An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that, when contrary to the entity’s policies and procedures, not a part of the client’s treatment plan and done intentionally to cause harm, does any of the following:
  • Causes or could be reasonably expected to cause pain or injury to a client or the death of a client, and the act does not constitute self–defence as defined in s. 939.48, Stats.
  • Substantially disregards a client’s rights under ch. 50 or 51, Stats., or a caregiver’s duties and obligations to a client.
  • Causes or could reasonably expected to cause mental or emotional damage to a client, including harm to the client’s psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.
  • An act or acts of sexual intercourse or sexual contact under s. 940.225, Stats., by a caregiver and involving a client.
  • The forcible administration of medication or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.
  • A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could be reasonably expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.
  • Abuse does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

Nursing homes must immediately report all incidents of alleged mistreatment, abuse and neglect of residents, misappropriation of resident property and injuries of unknown source to the DQA. (Division of Quality Assurance). CMS defines “immediately” to be as soon as possible but not to exceed 24 hours after discovery of the incident. Failure to provide the information to DQA within 24 hours of discovering an incident may result in a citation under federal or state codes.

In addition to federal and state reporting requirements, providers should notify local law enforcement authorities (immediately) of any situation where there is a potential criminal offence.

One (Oregon) county’s District Attorney gives a simplified list of offences which should result in  immediate notification to the police:

Abuse may include:

  • Physical harm or injury.
  • Failure to provide basic care. (Would less UK care homes provide poor care if their owners were liable to prosecution and serious consequence, i.e. prison?).
  • Financial exploitation, theft or misuse of money or property.
  • Verbal/emotional abuse, threat, cursing, or blaming.
  • Confinement or Isolating from family & friends.
  • Wrongful restraint.
  • Unwanted sexual touching.
  • Withholding medicine.
  • Over medicating.

Advice which is common to most American states:

  • If the abused is in a Skilled Nursing facility, call the Department of Health Services (DHS), Licensing and Certification Program for your county. Submit a complaint, which can be done anonymously. The DHS is charged with giving complaints of serious harm and abuse the highest priority. An example of a timeframe for  an investigation is  30 days to complete an investigation unless extenuating circumstances require an extension. The investigation must begin within 24 hours. The DHS are the parent body of the APS.
  • If the abused is in a Residential Care Facility for the Elderly (RCFE), contact your county’s Community Care Licensing Division. Like the DHS, the CCLD will conduct an investigation.
  • The following persons are mandatorially required to immediately report abuse and suspected abuse to the Division or law enforcement agency: physicians, licensed practical nurse or registered nurse,  nursing facility employee or any individual who contracts to provide services,  licensed social worker; physical, speech or occupational therapist; and family member of a resident or guardian or legal counsel for a resident. The local law enforcement agency shall be called first when the suspected abuse is believed to be a crime (for example: rape, murder, assault, burglary, kidnapping, theft of controlled substances). The local law enforcement agency shall be called if the offices of the Division or designee are closed and there are no arrangements for after hours investigation.
  • Contact your local Ombudsman’s Office – the patient advocate for the facilities. The involvement of the Ombudsman’s office in America is seen as a subsidiary, and not a primary course of action, when reporting suspected serious abuse. They tend to become involved if investigations by DHS and CCLD are the subject of unsatisfactory (to the complainant) outcomes. The UK Ombudsman will not investigate a complaint if it has proof, or infers that, the complaint is to take a legal course. That is, they do not involve themselves in a legal process which may result in a business interest being fined. They steer people toward complaining about failures in the UK healthcare system, and away from complaining about the system.

Despite clearly defined guidelines, the New York State Elder Abuse Prevalence Study (2011), found that for every case known to programs and agencies, 24 were unknown. This is because although the American Nurses Association (ANA) Code of Ethics for Nurses stipulates that nurses must act for the public benefit, whistleblowing about abuses in the nursing workplace can harm employment prospects. Also, given the severity of punishments in America, to both organisations and individuals involved in proven abuse, it may be that whilst the American system is like a shark with sharp teeth, because of this, fewer people are willing to throw a colleague or employer its way. The obvious solution to this problem is the mandatory instillation of  cameras in all areas of all healthcare facilities. This meets with obvious opposition from care providers in the social care market, although the use of cameras is becoming more acceptable to regulators. Guidance for people who install hidden cameras to check on standards of their own or a relative’s care has been approved by the UK’s Care Quality Commission (CQC). The guidance is expected to be published in the new year. A BBC report (November 19, 2014), states: The care regulator says it neither encourages nor discourages camera use. It added that it does look at footage which is brought to its attention. Information is also being published for care providers on what they need to take into account if they are thinking of installing hidden or visible cameras in their homes … That hidden camera showed Yvonne calling for a nurse 321 times when she needed the toilet. It was over an hour before anyone came to check on her. Once the home was presented with that evidence change happened. “The information we will publish for providers makes clear the issues we expect them to take into account – for example, consulting with people using the services and staff – if they are considering installing hidden or public cameras”.  Nadra Ahmed, chairman of the National Care Association, which represents care providers, said it was “quite sad” that covert surveillance was being discussed and it was “really disappointing” that the CQC had “pursued this course”. Of course, most employers would find mandatory cameras “really disappointing” – the would be able to record staff shortages. The point is, surely, change needs to happen. Healthcare businesses in America are also against the use of cameras in their facilities, disguising their real worry by claiming concern about the ethical issues surrounding the use of surveillance cameras.

Whistleblowers should be aware that not meeting best practice guidelines does not  constitute abuse. In June, 2014, the New Jersey Supreme Court found against a nurse who claimed he was fired for reporting allegedly improper patient care to government agencies. He had claimed that his dismissal was in violation of the Conscientious Employee Protection Act (CEPA), designed to protect whistle-blowers. He had also claimed that his professional code of ethics for nurses was the basis of his reporting his employer. The judges, by a majority verdict, found that  justices found that this code “does not govern” (his former employer’s) patient care”. Thus, nursing guidelines of best practice are not binding on an employer.

In another case (Lark v. Montgomery Hospice),a nurse complained to her supervisor about the mishandling of narcotics. The nurse was fired, she then filed a complaint against the employer for wrongful dismissal, alleging that the employer violated Maryland’s Health Care Worker Whistleblower Protection Act. The court found that the employer’s failure to correct the procedures for narcotics (employ best practice) was not covered by law, and the law only required the employee to file an internal complaint.

It is clear that what a healthcare professional deems best practice is not binding on an employer, who is only required to operate within the law. Best practice and law are seperate entities.

The advice to anyone involved in healthcare, who is considering reporting an incident to external authorities, is to ask themselves: How serious is the problem? Is your nursing license in legal jeopardy if you do not report? Was a law violated? Have you exhausted your employer’s procedures for reporting problem? In most cases, you meet the advocacy duty with a routine report, and have no duty to go outside this chain of authority. If a problem is not resolved, some American states employ a ‘practice specialist’, to whom you can relay a scenario in a hypothetical manner. The ‘practice specialist’ is a service provided by available the National Council of State Boards of Nursing.

In the UK, whilst such as the Royal College of Nursing (RCN), offer guidelines of good practice, the Nursing and Midwifery Council (NMC), do not give ‘practice specialist’ advice. There seems to be a reluctance to commit to any position which may be legally challenged. Understandably so, yet the question arises – which is as pertinent to the UK as it is to America –  why are best practice guidelines not legally applicable to healthcare providers? Why are healthcare providers allowed more leeway than proprietors of abattoirs?

The RCN  do offer a  whistleblowing hotline: ‘This is an additional service for RCN members who have urgent concerns over clinical and staff safety in the workplace. It is important that health care professionals raise concerns directly with their employer. Registered nurses have a duty under the NMC to report concerns where patient care may be affected’.

The Whistleblowing Helpline also ‘offers a free-phone service for employees, and organisations working within the NHS and social care sector’. They give: ‘Free, confidential advice to NHS and Social Care staff that witness wrongdoing and are unsure whether or how to raise their concern … and also give: ‘Advice and support to managers or those responsible for matters of policy development and best practice within the health and social care market’. It is noticeable that staff who may raise a ‘concern’ might work under a manager who is given advice on how to deal with the ‘concern’, and that such ‘concerns’ exist within the social care market –  a creation of free-market capitalism, which, ironically, may have given rise to the ‘concern’ (in its use of low staffing levels, etc.).

My impression is, in both cases, whistleblowers are advised to keep their concerns in-house, which, indeed, may be stipulated in their contract. The UK experience is more akin to containing a fire than putting it out. There seems to be little written about some forms of abuse being prosecutable under The Human Rights Act or British law, and, therefore, reportable to the police. This is not a stricture which the social care market wishes to be subjected to.

The American experience is that those who whistleblow are strongly advised to seek legal opinion before they act, and contacting media outlets without full redaction of patient’s details is likely to be detrimental to their case.

It is vital to keep a full record of time, place, person, and witnesses (if any), when making a complaint. Lack of detail will be picked open in court. It is noticeable that hospitals and other nursing facilities are not required by law to keep a back-up of their medical records on an external computer. Many cases of complaint, both in America and the UK are hindered by claims that records have gone missing. Should not the loss of medical records attract a very hefty fine? – perhaps to an amount of 30% of the cost of an award which may have been granted if records had not been ‘lost’.

There are non-profit organisations in America that assist whistleblowers and those furthering their case. ‘The Whistleblower Support Center and Archive is (an) organization that was founded to provide support to whistleblowers. The center’s Web site provides helpful information, including the 10 steps for effective whistleblowing … A major focus of the effort here to support whistleblowers is the International Whistleblower Archive, an extensive online search engine that provides thousands of articles related to whistleblowing. Attorneys, journalists, whistleblowers, and others can tag almost any aspect of the process and then gain access to a vast array of online resources. Former whistleblowers are available to provide peer-support to future whistleblowers’.

A general sense arising from court cases in America is that ‘justice’ favours business interests. The UK follows this lead. It is the lead of the social care market, which may as well read cattle market.

I recommend:

  • Install surveillance cameras in all areas of all healthcare facilities.
  • Institute draconian punishments for those found committing abuse, whether workers, managers, or business owners.
  • Make it mandatory for all healthcare workers to report serious abuse, failure to do so to result in prosecution.
  • Make losing medical records a criminal offence.
  • Make the use of best practice guidlines mandatory.
  • All serious cases of serious abuse to be immediately reported to the police as crimes.
  • All complaints to be submitted to a regional authority charged with conducting a vigorous, impartial inquiry.
  • The regional authority to be responsible for all healthcare and social servives, whether private or public.
  • All complaints to receive a regional authority response within 30 days.
  • Abolish the Healthcare Ombudsman.
  • Abolish the CQC.
  • Establish a regional authority inspectorate unit, with a 24 hotline, and a remit to investigate complaints within 48 hours.