The only standout success as a law for whistleblowers is the United States ‘False Claims Act’.
Whistleblowers can go to a lawyer and file a claim in Court. The claim is for the value lost to the Public (taxpayer) by fraud, corruption or incompetence in the public service, plus the penalty.
The total penalty under the False Claims Act is treble the value of the fraud. The whistle blower gets 15% to 30% of the penalty. The government gets the rest.
The US government has recovered one Billion US Dollars a year since 1986.
The Washington Post published today that the law is to be changed to include fraud in companies regulated by the Securities and Exchange Commission (SEC). The controversy is whether the employer or company should be alerted by the whistleblower before filing the claim in Court.
The problem with forcing the whistleblower to go to the employer or company first is that whistleblowers are more frequently subjected to reprisals and destruction of their careers by the employer than they are to be valued. Their careers are often destroyed by bullying and mobbing. Employers appear to be more likely to ‘cover-up’ the fraud than they are to applaud the whistleblower.
There appears to be too great a conflict of interest for an organisation to regulate itself. Regulation needs to be external.
Hopefully Australia will embrace a law similar to the False Claims Act. Although intended to addresses fraud, it appears that it can be used to address the waste of taxpayer’s funds through negligence or incompetence as well.
Professor William Tarnow Mordi was protected by Sydney West Local Health District for nearly a decade.
An articles in the Sydney Morning Herald slams Westmead Hospital and Sydney West Local Health District (SWLHD) for not acting on damning external investigations spanning seven years that exposed William Tarnow Mordi’s lack of managerial and clinical skills. Thousands of taxpayer and charity dollars were wasted on equipment that no one knew how to use. And babies were put at risk by concerning clinical practices.
The first report was in 2001 by Professor Ross Haslam who found ”considerable variability in the work practices of the consultants”.
In August of 2008 William Tarnow Mordi was allowed to step down quietly after the report by Professor David Tudehope and specialist nurse Sandie Bredemyer was critical of Professor Tarnow Mordi’s clinical and managerial skills.
A Westmead Hospital spokesperson said that between August 2008 and the appointment of a new director, Professor Tarnow Mordi took periods of leave and undertook further training.
Taxpayers and those who donate to charities might well be concerned that Westmead Hospital and SWLHD took no effective action to correct a problem that had been brought to their attention seven years earlier in 2001. They might be concerned that taxpayer’s dollars might now be wasted on possibly avoidable legal cases and damages for at least one baby who was allegedly harmed during those seven years.
Taxpayers would be relieved by Westmead Hospital’s reassurance that Professor Tarnow Mordi was not the director of the Unit and did not perform research on babies in the Unit after August 2008.
Dr Lynette Downe’s Courageous Stand.
Dr Downe appeals in the Supreme Court against her unlawful treatment by Sydney West Area Health Service. Copy and paste this link into your browser’s address bar: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2008/159.html
There appears to be an ongoing lack of accountability, transparency and governance at Sydney West Area Health Authority as shown by the bullying and reprisals against Dr Downe, the one doctor who was willing to speak out for the her patients. The systematic campaign to silence Dr Downe and rob her of her career was fully exposed in the judgement of his Honour Justice Rothman in the Supreme Court. But there is little to show that anything has changed since then.
The judgement is discussed below in detail because it illustrates a problem with our health system that needs to be addressed. It is a judicial document in the public record and is examined as fair comment and is educative of the need for a public inquiry because the identified problems in the renamed remnants of the old Sydney West Area Health Service remain unaddressed.
Sydney West Area Health Service has been split into a number of networks (now called Districts) with new names. Two of the networks that were formed from the original Sydney West Area Health Service are now called the Nepean and Blue Mountains Local Health District which manages the Nepean Hospital and the Western Sydney Local Health District which manages Westmead Hospital.
Australian tax-payers have the right to be concerned that their tax is not being wisely spent. They have a right to be concerned if tax is wasted targeting good doctors who care about their patients and the quality of service that they provide. And they have a right to be concerned about the tax wasted on poor and deficient decision making by the management. The Sydney West Area Health Service spent Millions of dollars in managerial salaries, lawyer’s fees, court costs and damages in a failed and unlawful bid to silence and harm Dr Downe. Millions of dollars that could have been better spent on caring for patients.
Sydney West Area Health Services was shown to violate its own policies and procedures, to apparently view itself as above the law and to lack transparency and governance. It was shown to be willing to systematically bully anyone who speaks out.
The judgement of Justice Rothman in the Supreme Court of New South Wales documents the mobbing of Dr Lynette Downe by the very people who were her colleagues and by those managers who had a duty of care to protect her. Downe v Sydney West Area Health Service (No 2)  NSWSC 159 (3 July 2008)
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2008/159.html Numbers in brackets in the text below refer to the paragraph numbers in Justice Rothman’s judgement.
In summary Justice Rothman found that Sydney Area Health Service had acted unlawfully and granted injunctive relief to Dr Downe preventing Sydney West Area Health Service or NSW Health from suspending her indefinitely at their will. (466). His Honour also found that Dr Downe was an excellent clinician who was correct to be concerned about the quality of care that was being provided in her unit.
Dr Lynette Downe was, and is, the Director of the Nepean Hospital Neonatal Intensive care Unit. The other neonatologists (baby specialists) were Dr Mark Tracy, Dr Heather Coughtrey and Dr Jan Klimek. From Dr Downe up the managers were an Obstetrician Dr John Pardey who was Clinical Director of Woman’s and Children’s Health, a nurse Maya Drum, a Professor of Nursing Jane Gordon who was Director of Clinical Operations, and a Master of Health Services Management (MHSM) Mr Mark Cormack who was Executive Director of Nepean Hospital.
Dr Downe was of the opinion that general paediatricians had no place in treating babies requiring intensive or special care in a dedicated Neonatal Intensive care Unit. This view is shared by the specialists in most NSW Neonatal Intensive Care Units. And yet the management at Nepean Hospital failed to implement the finding of three external reviews at Nepean Hospital that supported Dr Downe’s views. Non-medical managers, Mr Cormack in particular, simply imposed their own views on the Unit in order to placate the paediatricians (189, 190).
Dr John Pardey insisted that Dr Downe must attend high risk deliveries at the Nepean Private Hospital. Dr Pardey delivered private patients there and no doubt they would be reassured to know that a ‘baby specialist’ was on hand at their deliveries. Dr Downe’s usual medical indemnity insurance, which covered her as Director of the neonatal intensive care unit at Nepean Hospital where she was employed, did not cover her at the Nepean Private Hospital (86) where she was not employed. And her attendance at the Private Hospital was not required by her employer Sydney West Area Health Service. Dr Downe declined to attend Dr Pardey’s private deliveries at the Private Hospital. She was employed full time, at tax payer’s expense, in the public health system by Sydney West Area Health Service.
That Dr Downe found it difficult to deal with Dr Pardey is shown by Dr Pardey’s own complaint that Dr Downe refused to meet with him unless her Union representative was present (A13). Presumably Dr Downe had a right to have a representative present if she felt she needed one.
In March 2004 the Client Liaison Officer at Nepean Hospital disclosed a pattern of complaints against Dr Coughtrey from parents of patients in the Neonatal Unit (170). Shortly after that Mr Mark Cormack suggested and initiated an external investigation and Report of the Neonatal Unit (the Reynolds Review) (171, 175). Mr Cormack, however, knowingly allowed the other doctors in the Neonatal Unit to mistakenly believe that the investigation was initiated by Dr Downe for the purpose of discrediting Dr Heather Coughtrey (180-184). Predictably this led to a breakdown of trust between Dr Downe and the other doctors in the Unit (150, 183).
On the 28 June 2004 Dr Downe wrote a letter to Mr Mark Cormack, Executive Director of the health service. The letter raised a series of matters that were said to give rise to a pattern of victimisation of Dr Downe as a result of her raising genuine concerns about matters of patient safety and medico-legal issues. (36 – 38)
Unfortunately for Dr Downe she went on two months long service leave three days later.
Dr Mark Tracy was appointed Acting Director of the Unit while she was away. Dr Downe believed herself to be on friendly terms with Dr Tracy at this time. Dr Tracy had asked Dr Downe to be a mentor to his daughter.
On the 17 August 2004, fourteen days before Dr Downe was due to return from Long Service Leave, Dr John Pardey submitted a formal complaint about Dr Downe. A flood of complaints followed. Justice Rothman said that “the timing of the complaints was beyond coincidence” (35). The complaints appeared to have been coordinated.
The further complaints were from Dr Heather Coughtrey 19 August, Dr Mark Tracy 23 and 24 August and Professor of Paediatrics Ralph Nanan 25 and 26 August.
Justice Rothman noted a pattern of emails ending on the 16 August, the day before Dr John Pardey’s formal complaint, between Mr Mark Cormack, the Chief Executive of Nepean Hospital, and Mr Geoff Murphy of the workplace relations (Human Resources) department of Sydney West Area Health Service. They were advising at least one of the ‘complainants’ about how to structure their formal complaints (35).
Dr Downe was suspended before she could return from long service leave on the 6 September.
Mr Cormack and the Sydney Area Health Service (now the Blue Mountains and Nepean Local District) used these complaints as a reason to suspend Dr Downe pending an investigation by the Honourable Russell Peterson SC into the complaints. Later the suspension was unlawfully continued indefinitely despite the Peterson Report being overwhelmingly in Dr Downe’s favour (56, 103).
Dr Downe had already felt that she was the victim of a systematic campaign against her (37).
Sydney West Area Health Service insisted that in the alternative Dr Downe would be transferred to the Westmead Hospital Neonatal Service where Professor Tarnow Mordi was Director.
The Terms of Reference for the review were agreed between Dr Downe, the complainants and Sydney West Area Health Service. It should be noted that an incorrect and detrimental version of the terms of reference was given to the Honourable Russell Peterson by Sydney West Area Health Service (40) until this was belatedly corrected by Dr Downe. Mr Mark Cormack also detrimentally briefed (prejudiced) Mr Peterson about matters not related to the Terms of Reference (205).
The correct terms of reference are given at (40) including the complaints against Dr Downe (A) and submissions in reply by Dr Downe (B).
Sydney West Area Health Service knew that at least one of the allegations that they made was false. None of the allegations necessitated suspending Dr Downe (50).
It was clear to Justice Rothman that the Honourable Russell Peterson QC found that most of the allegations against Dr Downe were not substantiated and those that were substantiated were minor or inconsequential (56). The finding of a complete breakdown of relationships between Dr Downe and the other doctors was spurious and arose from the actions of Mr Mark Cormack and his briefing of The Honourable Russell Peterson rather than from the facts (150, 184, 205).
Dr Downe’s continuing suspension by Sydney West Area Health Service and the Department of Health was found to be unlawful (466) and unwarranted (56). In theory Dr Downe could anticipate a speedy return to her position as Director of the Neonatal Unit at Nepean Hospital.
Demeanour in Court
His Honour Justice Rothman commented on the demeanour (behaviour) of the witnesses in Court.
Dr Lynette Downe
“I reiterate that Dr Downe was a person whose evidence I accept for the reasons set out already and that conclusion applies to all of her evidence and the conflicts that arise in the evidence” (78). “Dr Downe has exceptional clinical capacity” (2).
Dr John Pardey
Dr John Pardey was willing to swear (on oath) to the details of a conversation, but under cross examination Dr Pardey changed his storey and agreed that the conversation probably never took place. This was consistent with the general behaviour of Dr Pardey in Court said Justice Rothman (82).
Justice Rothman accepted that Dr Downe felt intimidated by words used by Dr Pardey (88).
Dr Jane Gordon
Professor of Nursing Jane Gordon was the Director of Clinical Operations for Sydney West Area Health Service. Her attitude was to sheet home the blame to Dr Downe for the breakdown of personal relationships. “In doing so, Professor Gordon disadvantages Dr Downe”. On the contrary his Honour found that “a very significant part of the personal relationship breakdown has been caused directly by management action or lack of action” by Sydney West Area Health Service. The management’s actions were inappropriate (97).
Professor Gordon expressed the view that the Peterson Report was not in favour of Dr Downe despite being taken to various findings of the Report showing that all the complaints were either not substantiated or were inconsequential (95).
Mr Geoffrey Murphy
Law graduate and health administrator Mr Geoffrey Murphy was the Human Resources person involved in Dr Downe’s unlawful suspension by Sydney West Area health Service. Mr Murphy accepted that the findings of the Peterson Inquiry were overwhelmingly in favour of Dr Downe (103). He accepted that he did not let other staff involved in the case know of this view.
Ms Maya Drum
Nurse Ms Maya Drum and Paediatric Professor Nanan investigated an allegation that Dr Downe had said “I have to stop paediatricians from killing babies on level 4”. Ms Drum recorded that she supported the person making the allegation. Ms Drum’s note records that “as there were no witnesses willing to take a stand we have reached an impasse”.
In Court it was shown that not only was there a witness willing to take a stand, but that witness was willing to give evidence that Dr Downe had NOT said the words alleged (129). Yet Sydney West Area Health Service persisted in making this allegation to the Peterson Inquiry and in the Supreme Court. Justice Rothman considered this behaviour to be inappropriate (131).
Dr Jan Klimek
Dr Jan Klimek said that Dr Downe said at a meeting “Heather (Dr Heather Coughtrey) is lazy, incompetent and inefficient.” All the Neonatologists except Dr Coughtrey were present. None of them disagreed with Dr Downe. (133)
Dr Mark Tracy
Dr Mark Tracy had a friendly relationship with Dr Downe. Dr Tracy had asked Dr Downe to be a ‘mentor’ to Dr Tracy’s daughter. When she went on long service leave Dr Downe still believed that she had a friendly relationship with Dr Tracy.
Dr Mark Tracy was appointed Acting Director of the neonatal Unit while Dr Downe was on long service leave. He continued in that position when Dr Downe was unlawfully suspended in part due to his own complaints (136).
Justice Rothman found that “Dr Tracy’s evidence in cross-examination was obfuscatory and his recollection convenient” (137).
While Dr Mark Tracy was in the position of Acting Director he changed the clinical practice of Dr Downe and allowed general paediatricians to work in the Neonatal Intensive Care Unit. This was inconsistent with the recommendations of the independent reviews that had been done and inconsistent with the practice in other neonatal intensive care units in NSW. This was done at the direction of Mr Mark Cormack prior to the finalisation of the Peterson Inquiry and prior to the finalisation of the Reynolds Report (190).
It appears that Dr Tracy acquiesced to a non-medical administrator dictating medical policy in the unit.
Dr Heather Coughtrey
Dr Heather Coughtrey asserted that she was clinically on an equal footing with Dr Downe. But Justice Rothman accepted that the evidence proved the opposite (138).
“During her evidence, Dr Coughtrey sighed in exasperation, rolled her eyes, did not make eye contact and crossed her arms. She continually shrugged her shoulders and smirked…. Her demeanour was arrogant in the extreme, her memory at best convenient and she gave the impression that she was reluctant to give evidence and very careful to ensure that the minimum information was given, to the point of being obfuscatory. She was, at times, disparaging and dismissive of other staff in the answers that she gave in the courtroom” (142).
One of Dr Coughtrey’s complaints against Dr Downe was that she was required to work 1 day per year extra than she felt she should (165).
“ Dr Coughtrey said she could not remember recent criticisms …(but) when it became clear that there were notes of the meeting relating to those criticisms, her memory returned” (143).
“ Unless otherwise accepted by another believable witness, or subject to independent documentary corroboration, I do not accept Dr Coughtrey’s evidence.” (143).
Mr Mark Cormack
Mr Mark Cormack was the Executive Director of Nepean Hospital.
“Mr Cormack was a difficult witness. He seemingly deliberately gave evidence that was ambiguous or misleadingly short” (147).
“Mr Cormack’s actions are at the heart of the dispute between the parties. A proper analysis of the acceptable evidence attributes to Mr Cormack the responsibility for the breakdown in personal relationships to the degree that occurred” (150).
Justice Rothman found that SWAHS was undeserving of trust or belief. “It is to the discredit of senior management of the Health Service that this matter was even the subject of a serious investigation. Nevertheless, it was and, given the role of Mr Cormack, it is understandable that it was” (169).
Justice Rothman found that Mr Cormack knew, and even caused, the mistaken belief that the other doctors held to the effect that Dr Downe had initiated the Reynolds Review to discredit Dr Coughtrey (183), and then had encouraged them to complain about it, and then had used those complaints to call the Peterson Inquiry and to suspend Dr Downe (184).
Mr Cormack said that there was a possibility of reprisals against the other doctors by Dr Downe. “It is an allegation by Mr Cormack” without basis in fact “of alleged mala fides of Dr Downe, if not her criminal behaviour. Yet it was contained in an affidavit settled by the Health Service” (145).
His Honour found Mr Cormack’s evidence to be marked by obfuscation and most unsatisfactory (147).
After further obstacles were placed in her path Dr Downe was finally reinstated functionally as Director of the Neonatal Unit at Nepean Hospital. It had taken over four years.
Mr Mark Cormack left the Area Health Service to become the Chief Executive of ACT Health and then the first Chief Executive Officer of Health Workforce Australia.
Professor Jane Gordon was on the Board of Directors of the College of Nursing in 2007 and became Director of Nursing Rashid Hospital, Dubai, UAE.
Dr Mark Tracy was promoted by Sydney West Area Health Service to Director of the Neonatal Unit at Westmead Hospital. Professor tarnow Modi had not been reappointed Director.
Dr Jan Klimek transferred to the Neonatal Unit at Westmead Hospital.
Dr Heather Coughtrey remained at Nepean Hospital.
Dr John Pardey remains in private practice and at Nepean Hospital.
Legal issues of Note
A large part of the findings were of legal interest. Perhaps a precedent was set regarding the misuse of Health Administration Policies for unlawful purposes. Certainly infinite suspension had been found to be unlawful see Baker Mckenzie and Sydney West Area Health Service was found not to have appropriately addressed bullying Lucinda Schmidt Brisbane Times.
The Australian Salaried Medical Officers’ Federation (ASMOF) NSW was very concerned that Health Services (now Local Health Districts) simply choose not to follow their own Health Policies, including their anti-bullying policies, and did not accord due process to its employees. ASMOF believes that Health Districts’s Human Resources personnel require training in the notion of procedural fairness Section 2.2 Suspension ASMOF submission to NSW Health.
ASMOF appears to point to Human Resources manager Mr Geoffrey Murphy rather than Mr Mark Cormack as the main actor in unlawfully continuing the suspension of Dr Downe.
Many of the issues brought up during the Supreme Court Appeal were rightly not relevant to the Judgement of His Honour Justice Rothman. These issues still remain unaddressed by the Nepean and Blue Mountains Local health District (and its precedent, Sydney West Area Health Service). These issues are still of public interest. There is still no visible response to, or consequences for, unacceptable behaviour and actions. There is still no visible response to unlawful conduct by management, there is still no visible response to questionable behaviour in Court and there is still no visible response to valid questions of patient safety, fitness to practice and accountable governance in Obstetrics, Paediatrics and the Neonatal Unit.
This comment is largely confined to issues of public interest regarding unacceptable administrative action, patient safety and concern for the best use of taxpayer’s money.
The Cost to the Taxpayer.
According to Natasha Wallace of the Sydney Morning Herald SMH Here Dr Downe spent almost One Million Dollars on her case. Dr Downe was later awarded costs so Sydney West Area Health Service and the Health Department paid most of her costs in addition to the costs of the Area Health Services and Dr Downe’s salary during the years she was unlawfully suspended. This money was unwisely spent. There is an irony in Sydney West Area Health Services’ alleged Aims and Objectives which include “Providing a Service that is accountable and value for money” and “Supporting our skilled workforce”.
The Department of Health noted in their Annual Report 2008 NSW Health Annual Report 2008 pg 241 that His Honour also found there were implied terms of mutual trust and confidence, as well as an implied term of good faith, in Dr Downe’s contract of employment. It is a sad indictment that his Honour would need to make a finding on an issue that all doctors would hope they could take for granted. The public would prefer that NSW Health would base its relationships with doctors on confidence and good faith.
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This blog aims to support Whistleblowers in Australia and to fight reprisals, bullying and mobbing.
Whistleblowing is a legitimate method, and often the only method, of alerting the public to fraud, waste and deplorable behavior by those in charge of private companies and public services. The same private companies and public services make it part of their Code of Conduct that such disclosures are grounds for immediate dismissal and include disciplinary policies which allow reprisals through bullying.
The Media is the one of the most powerful and essential forces maintaining free speech. Not surprisingly, going to the Media is often grounds for dismissal. Going to the media in any useful way is also not allowed by the Australian Protected (or Public) Disclosures Acts. If dismissal and disciplinary action are not an issue, then going to the media can be very effective.
Often the disclosure that could be made is of no interest to the the established Media. In that case the Independent Media, Social Networking Sites or Anonymous sites might be useful.
Before writing comments to this blog, if you are disclosing anything (whistleblowing) one should ensure one’s anonymity by:
- not using a work computer, and
- downloading and installing the Tor bundle on your computer, and
- using Tor and Firefox to write to this or any site when one wishes to remain anonymous. One must NOT visit any other site like your own hotmail, banking or other sites connected to you while doing this, and
- not saying anything that can only have come from you. Nor saying anything that could identify you. Nor saying anything that only you could know, and
- logging out of Tor and Firefox when you have finished writing to the blog or other site. Only then can you open another browser (or browser session) and visit the sites that may be associated with you.
This site is not the whistleblowers Australia support site Whistleblowers Australia Inc which can be found at www.whistleblowers.org.au .