Number 5– November, 2005
| Number 5– November, 2005 |
Whistleblower Legislation: Letting Health Care Workers Speak their Mindsby: Shaun O’Brien Health care workers who have concerns about employer wrongdoing may increasingly feel free to speak their minds. Recent legislative initiatives at both the federal and provincial level look to provide some protection to whistleblowers. In particular, health care workers may be in a better position to raise concerns for their own safety and that of the public. The importance of whistleblowing by health care workers has recently been underscored in the aftermath of SARS. In the SARS Commission’s Second Interim Report, Mr. Justice Archie Campbell highlighted the importance of the freedom to speak out for health care workers. As Justice Campbell recognized, historically, health care workers have not been heard. He underscored the comments by Associate Chief Judge Murray Sinclair in the Report of the Manitoba Paediatric Cardiac Surgery Inquest, which looked into the death of 12 infants at a Winnipeg Hospital:
Nurses felt similarly disregarded during the SARS outbreak, particularly when they attempted to raise alarms prior to SARS II, to no effect. Protections for whistleblowing health care workers arise from Criminal Code amendments and existing occupational health and safety legislation. Other newly passed federal legislation provides an example of where whistleblowing legislation could provide limited protection to whistleblowers in a health care setting. Criminal Code The federal government has recently passed an amendment to the Criminal Code to protect whistleblowers. The amendment creates a new criminal offence, with a maximum penalty of five years’ imprisonment. It includes broad language to capture the employer or its representative, targeting the “employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer”. It charges such a person with a criminal offence if he or she takes specified actions against an employee to compel the employee to abstain from providing information to law enforcement officials respecting an offence that the employee believes has been or is being committed. The provision was included in the Criminal Code as part of the federal government’s response to the recent corporate scandals, including the Enron scandal, that have weakened investor confidence in capital markets around the world. While the corporate scandals were the impetus, the offence has a broad reach, protecting employees who report the commission of an offence contrary to any federal or provincial Act or regulation. Therefore, it would provide strong protection for a health care worker who wished to report an employer for offences under employment and health legislation. To view a copy of the new Criminal Code amendments, click here.
The House of Commons has also recently passed a bill to deal with whistleblowing in the federal public sector. Bill C-11, which was passed on October 4, 2005, requires the establishment of a code of conduct applicable to the federal public sector. It provides civil protections for whistleblowers, including disciplinary action against a public servant who takes a reprisal against a whistleblower, and reinstatement or damages in lieu of reinstatement for whistleblowers who have been subject to reprisal. The Bill also includes a broader definition of wrongdoing than does the Criminal Code offence. Wrongdoing is defined to include the contravention of relevant laws (rather than only “offences”), and also includes other types of wrongdoing, such as: the misuse of public funds or assets, gross mismanagement in the public sector, a serious breach of the code of conduct (which the Treasury Board is to establish) and the taking of a reprisal against a public servant. Of particular interest to health care workers, “wrongdoing” is also defined to include:
The underlined portion of this provision seriously compromises the proposed statute’s protections for health care workers, considering it could be argued that health dangers are “inherent” in the job. Indeed, this issue arose in the context of SARS for health care workers who were uncertain what their rights were to refuse to work with SARS patients. The question there was whether the danger posed by SARS was “inherent” in or a “normal condition of” the employment of all health care workers asked to deal with SARS patients (s. 43(1) of the Occupational Health and Safety Act). While the question may not have been definitively decided, employers certainly were taking the view that employees did not have the right to refuse. If the danger of every epidemic or other health care crisis was considered “inherent” in every health care worker’s employment, they would be seriously limited in taking advantage of the protections set out by Bill C-11. To view a copy of Bill C-11, click here.
While there has been no whistleblower legislation recently tabled in Ontario, Ontario health care workers already receive some protection from s. 50 of the Occupational Health and Safety Act, which protects them where they seek enforcement or give evidence in respect of the enforcement of that Act. While that provision does provide some protection where workers’ health and safety is at risk, it does not protect whistleblowing about contraventions of other acts nor whistleblowing about public health hazards. The possibility of more extensive protection for health care workers has arisen in a review of what went wrong during the SARS outbreak. In the SARS Commission’s Second Interim Report, Mr. Justice Archie Campbell has recommended that the Health Protection and Promotion Act be amended to provide health care workers with whistleblowing protection in relation to public health. In particular, health care workers would be free to alert public health authorities to a situation that involves the risk of spreading an infectious disease and to failures to conform with the Health Protection and Promotion Act. As with Bill C-11, reprisals against whistleblowers would be prohibited, the violating employer would be punished and remedies would be provided for the employee. If Justice Campbell’s recommendations are taken to heart, health care workers in Ontario, then, will have threefold protection in raising alarms: (1) protection for whistleblowing in relation to occupational health and safety; (2) protection for whistleblowing about public health hazards; and (3) protection for whistleblowing about the commission of federal or provincial offences. In addition, health care workers in the federal public sector will be covered by the farther-reaching Bill C-11, though the extent to which it will provide them with meaningful protection remains to be seen. While not fully comprehensive, all of this legislation in combination should provide some measure of comfort to health care workers wishing to raise concerns for the protection of themselves, their patients and the public. Professionals and Multiple Proceedings: A Summary of the “Sclater” Decisionby: Philip Abbink In the recent case of The Simcoe County Board of Education and Elementary Teachers’ Federation of Ontario (Sclater Grievance) (2005), 140 L.A.C. (4th) 52 (Newman); [2005] O.L.A.A. No. 269, the arbitrator decided that there was no just cause to terminate the grievor when she had attracted attention and generated controversy based on earlier misconduct, but was not guilty of any new misconduct. The earlier events had been the subject of lengthy investigations, hearings and had finally been resolved between all involved parties. In 1998, Laura Sclater had inappropriately corresponded with her 13-year old male student. She was suspended from her employment, and the events were the subject of an investigation by the police and the Children’s Aid Society, and proceedings at the College of Teachers of Ontario. With respect to the College proceedings, the matter proceeded to a hearing before the Fitness to Practice Committee. The Committee decided that the writing and receiving of letters with a student crossed teacher-student boundaries and constituted serious misconduct. However, the Committee also concluded that there was no physical touching, a finding that was consistent with the investigations of the CAS and the police. By September 2000, Ms Sclater had unsuccessfully appealed the Fitness to Practice Committee’s decision to the Ontario Superior Court of Justice, and had her certificate of registration returned to her, albeit subject to certain conditions. The grievance arising from her suspension had been also been resolved by this time: she had been reinstated by the Board. In September 2000, Ms Sclater was teaching a grade three class. Ms Sclater’s return to the classroom attracted widespread media attention, and generated controversy in the community. The parents of the student to whom Ms. Sclater had written letters instituted a civil suit against the Board and Ms. Sclater. False allegations that the relationship had involved touching led to criminal charges and Ms. Sclater was once again suspended without pay. The College also laid new charges in light of these criminal proceedings. Ms Sclater was acquitted of the criminal charges related to allegations of physical contact between herself and her former student, primarily on the basis that the student and other Crown witnesses lacked credibility. The civil suit against Ms Sclater was withdrawn. After negotiations with the College, Ms Sclater pleaded guilty to conduct unbecoming a teacher and received a reprimand by the Discipline Committee. The plea was entered to avoid further litigation, and her certificate was returned immediately with the same conditions imposed by the Fitness to Practice Committee. Notably, there was no extension of the time during which the conditions were to apply. These additional matters had all been resolved by late 2002. Ms Sclater sought employment in the classroom again, but was terminated by the Board on October 23, 2003. The Board’s position was that Ms Sclater’s continued employment was inconsistent with the duties of a school board. In arriving at her decision that the Board did not have cause to terminate Ms Sclater, Arbitrator Newman noted several additional facts that were relevant. First, when the Board placed Ms Sclater back in the classroom in September 2000, it had relied on evidence that therapy had addressed the causes of her misconduct. Further, the arbitrator found that the conditions imposed by the College upon her return to teaching were not onerous for the Board. Although the level of disruption caused by Ms Sclater’s return to the classroom in September 2000 was intense and the level of controversy was extreme, these issues were also both temporary and manageable. The Board had been able to manage and quickly reduce the disruption caused by parents at the school. Arbitrator Newman found that following Ms Sclater’s return to the classroom the disruption and controversy had been renewed by the actions of the mother of the student involved in the 1998 allegations and sensationalized, unbalance media coverage. They had not been due to any act of misconduct on the part of Ms Sclater. While the Board’s prediction that Ms Sclater’s presence in a classroom would lead to controversy and media coverage was well-founded, it was not due to any misconduct that could be attributed to Ms Sclater. The Board took the position that it would have been inconsistent with their duties to continue Sclater’s employment. They argued that the plea of conduct unbecoming a teacher at the College in November of 2002 constituted a new and significant development in the public’s view. Since Ms Sclater’s presence in a school would generate controversy, the Board felt that their duty to maintain public confidence in the educational system would have been compromised had she been permitted to remain in their employ. Finally, the Board argued that the media interest and controversy created an unsafe and disruptive environment for the children, and created extreme stress for their administrative staff. “Continued employment of Sclater would, it submit[ted], erode public confidence in the educational system, generate continued controversy in the school and in the school community, and would disrupt the educational environment.” On behalf of the Elementary Teachers’ Federation of Ontario (ETFO), David Matheson argued that “to the extent that the jurisprudence reflects an obligation on school boards to protect the learning environment from controversy and disruption, the discussion of those factors is linked to the assessment of the seriousness of the misconduct, in any given case.” However serious her misconduct in 1998, Ms Sclater had already been disciplined for it and had been successfully reintegrated into teaching as of September 2000, after which time she did nothing wrong. In addition, the conditions that College attached to Ms Sclater’s teaching certificate did not generate hardship or risk for the Board’s employees. In her decision, Arbitrator Newman concluded that:
Arbitrator Newman also noted that media interest was sensationalized and sexualized, and was generated with no regard to the nature and quality of Ms Sclater’s actions after 2000, all of which had been to her credit. The arbitrator essentially applied the traditional test in discharge cases where a collective agreement guards against discipline or discharge except for just cause:
Applying this test, it was held that Ms Sclater’s termination was clearly disciplinary and that the collective agreement did not allow for termination without just cause. As Ms Sclater had not committed any additional act of misconduct, the inquiry did not need to proceed past the first stage. The importance of this decision is primarily that it reiterates the fact that just cause for termination does not exist absent a new act of misconduct. Where a collective agreement protects employees with a just cause provision, attention by the public or media, and whatever resulting disruption or inconvenience that may cause, cannot, in themselves, justify the termination of one’s employment. Ms Sclater’s case is also demonstrative of the importance of winning
legal battles in the variety of fora that professionals may encounter
where issues of workplace misconduct arise. In this case, the arbitrator
was deferential to the findings of credibility made at the criminal trial,
and the College findings that Ms Sclater was fit to teach. Since the standards
of proof required may vary, it is not necessarily the case that an acquittal
at a criminal trial will lead either to a similar finding in the College
or labour arbitration proceedings. Nevertheless, when professionals face
multiple proceedings arising out of the same set of circumstances, as
is often the case, the decision rendered in one proceeding can and often
does affect the others. Thus, early and thorough attention to proceedings
in each forum can have far-ranging effects for individual members.
The Review of the Regulated Health Professions Act by the Health Professions Regulatory Advisory Councilby: Mia London As part of its ongoing mandate to evaluate the effectiveness of the Regulated Health Professions Act (the “RHPA”), the Health Professions Regulatory Advisory Council (“HPRAC”) announced that it would be reviewing the current Act and the associated Health Professions Procedural Code. HPRAC solicited submissions and responses from interested stakeholders, including the unions who principally represent health care professionals covered by the RHPA. The focus of this aspect of HPRAC’s review was on the currency of certain recommendations from HPRAC’s last report, Adjusting the Balance, which focussed on the health colleges’ quality assurance and patient relations programs, and their complaints and discipline procedures. The recommendations found in Adjusting the Balance appear to be largely focussed on perceived concerns by members of the public with the complaints and discipline processes. Proposed changes to these college functions could have a serious impact on health care professionals who find themselves complained about or reported to their college. Some of the proposals include the following:
On behalf of our clients, we have made submissions to HPRAC objecting to a number of these proposals because of the considerable prejudice that would result to college members. HPRAC has presented little evidence that these proposals would result in a safer health care environment, nor has it indicated how public confidence in the system would be improved through these changes. The Minister has requested that HPRAC provide its Advice Memorandum containing its recommendations on all of these issues to him by March 31, 2006. Consultations with associations representing Health Professions were held in Toronto on October 23rd and 24th. Liz McIntyre attended in order to provide feedback and information to HPRAC. Included in the issues discussed with the associations were: how the RHPA can be improved to take account of changing methods of health delivery, Quality Assurance Programs implemented by the Colleges, Patient/Public Relations, public access to member information kept by the Colleges and use of Alternative Dispute Resolution to deal with complaints. HPRAC is also considering the written submissions filled by many of the Associations, the Colleges and others. As this process obviously has implications for any number of regulated health professionals in Ontario, we will continue to monitor the ongoing consultation process and will continue to update our clients as developments at HPRAC unfold.
Update for Professionals Archives | Cavalluzzo website | Human Rights Update We welcome your comments. If you have comments about the newsletter, we would value receiving them, or to unsubscribe to this newsletter, please send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail to the Editor, Brian Hanulik, at updateforprofessionals@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo@cavalluzzo.com with the word SUBSCRIBE in the subject line. To find out more information about the firm and its lawyers and the scope of our practice generally, visit our web site at www.cavalluzzo.com. If you have specific questions regarding the regulated professions, you may contact Elizabeth McIntyre at 416.964.5501 or at emcintyre@cavalluzzo.com. Providing this information does not constitute individualized legal advice, and does not establish any form of lawyer-client relationship with our firm or with any of our lawyers. Readers should not rely on or take any action based on this information; professional advice should be obtained. While we strive for accuracy, mistakes are possible and there may be errors and omissions. We disclaim any liability for such errors and omissions. Copyright 2005 © Cavalluzzo
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