Manitoba doctors and whistleblowing

Opinion

Hey there, time traveller!
This article was published 05/10/2024 (337 days ago), so information in it may no longer be current.

On Sept. 25, this newspaper ran a front page story by Tyler Searle headlined “MDs raise serious concerns about CancerCare Manitoba” (CCM), the provincially mandated cancer treatment agency. The story quoted major portions of a letter sent by Doctors Manitoba (DM) to oncologists and hematologists at the agency seeking information about such alleged dysfunctional working conditions as: excessive workloads, inadequate support, poor communications, a lack of trust in senior management, and fear of reprisal for speaking up about serious problems.

Given the central importance of doctors within the health-care system, it is important that they be willing to communicate honestly and candidly their concerns about actions or inaction which impair the delivery of safe, quality, and effective health-care services. It is in everyone’s interest (patients, doctors, other health personnel, managers, institutions, governments and society) that there are safe communications channels doctors can use to speak up without detrimental consequences for their patients, the institutions in which they work, and their own careers.

This raises the questions of whether physicians fall under the provincial whistleblowing law, and if so, under what circumstances would they qualify for protection against reprisal for raising their concerns internally and/or externally.

In Manitoba, encouragement, support and protection for public sector employees who engage in the good faith disclosure of serious wrongdoing falls under the Public Interest Disclosure Protection Act. PIDA was originally passed in 2006 and was last extensively amended in 2018. The recent amendments improved the law, but it still falls short of what reformers see as best practice.

The complexities and limits of Manitoba’s whistleblower regime create uncertainty and risks for the province’s busy, often overworked, physicians. In June 2024, DM released survey results, including the finding that only 38 per cent of the respondents were confident they could raise concerns without fear of negative consequences. The same survey found that two-thirds of the respondents felt they did not have adequate input into their working conditions, which could include concerns about overwork or faulty equipment leading to poor care.

Fears of reprisals are not unique to Manitoba. A 2024 survey by the British Medical Society found that 26 per cent of doctors said they would not feel confident acting as whistleblowers, compared to eight per cent in 2018. It should be noted the PIDA in that country covers both public and private health institutions.

In Manitoba, PIDA applies only to public sector organizations. It presumes that whistleblowing occurs within an organizational framework where employer-employee relationships exist. Most doctors, however, are private contractors who provide services within a wide variety of institutions or as family doctors. Whether or not a particular doctor is performing professional duties on the basis of an employer-employee relationship is the first source of confusion.

PIDA applies to Manitoba’s five public health authorities and by extension to the institutions, like hospitals and long term care facilities, which operate under their authority. This means that all personnel in such institutions, except for doctors providing contracted services, usually qualify for protection under the whistleblower protection regime.

A provision within PIDA allows for the designation by regulation of other bodies to fall within the scope of the law. A long list of health institutions have been designated under the law, but many doctors are unlikely to know these details.

There can also be uncertainty about what types of wrongdoing justify good faith disclosure which qualifies for protection against reprisals. In the public mind, whistleblowing is usually associated with illegal actions like fraud or gross mismanagement involving public money.

However, there is a provision in the PIDA definition of wrongdoing which potentially applies to health care: “an act or omission that creates a substantial and specific danger to the life, health or safety of persons.” Another provision of PIDA provides protection to whistleblowers who disclose, even to external bodies like the media, substantial, imminent threats to public health and safety.

PIDA intersects with multiple other laws, regulation, codes of professional conduct and administrative policies within the health-care system, which means that doctors must figure out in complicated situations which rules take precedence.

Violations of health and safety codes and ongoing use of faulty medical devices would be examples of wrongdoing under PIDA. Concerns over the quality of care provided to an individual patient or a single preventable error during care would be raised as concerns with the appropriate authorities but would not be reportable under PIDA.

The wording of PIDA creates an onus on whistleblowers to first raise their concerns internally. Unlike leaks which involve the unauthorized disclosure of sensitive information which can lead to sanctions, whistleblowing requires adherence to prescribed procedures in order to qualify for protection against reprisals.

Under PIDA, reprisal can involve actual or threatened actions such as disciplinary measures, demotion, termination or “any measure that adversely affects” the employment or working conditions of an employee. Based on the 2018 amendments to PIDA, reprisal complaints now go to the Ombudsman rather than the Labour Board, a change meant to provide greater protection of the identity of the whistleblower.

Salaried doctors working in institutions would have more protection than doctors providing services on a contract basis. The latter category of doctors are very much in the majority and they could be vulnerable in such ways as the loss of admitting privileges to hospitals, access to operating theatres, non-renewal of contracts for work in a long-term care facilities, or ongoing access to facilities and equipment for research.

The main difficulty with achieving protection in practice lies in showing that the detrimental impacts are linked to the disclosure. Legally, it must be proven that a disclosure directly resulted in a reprisal. In many cases, this will be unclear. Raising a matter of wrongdoing and securing redress from retaliation can be both distracting and time consuming, two conditions doctors should ideally avoid.

Pressures are building in Canada and elsewhere to bring doctors more explicitly within the scope of whistleblower protection laws. Inquiries into health tragedies have recommended strengthened laws, as have national and provincial medical associations.

Laws are important but even more valuable would be professional and institutional health-care cultures which value and create safe spaces for speaking up. Educational materials on PIDA provided to doctors in general and legal support to those contemplating disclosures should be features supporting that culture.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.