This essay will explore the Protected Disclosures Act, 2000, specifically how it impacts nurses. Aligning the Act with the Code of Conduct will show its importance to nursing overall. The Act will be explained in terms of general content, and purpose including a brief background to serve as a rationale. The essay will touch on moral context, the role of the Ombudsmen, explore how the Act became legislation drawing on Neil Pugmires story to illustrate, and finally provide an example of the utility of the Act in an everyday scenario. Originally the essay had planned to explore a contrast of past versus future uses of the Act, however, recent research has been difficult to find in a New Zealand health context, possibly due to the privacy constraints and protections utilised within the Act.
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The Code of Conduct has been provided by the Nursing Council of New Zealand to create a framework for nurses to work within, while ensuring health professionals are held accountable to a certain standard of care. Medical professional accountability is important in maintaining standards and fostering trust in the profession; to be accountable is to be responsible (Wallis, 2013). Key principles of the Code of Conduct include respecting privacy and confidentiality, working in partnership with patients, working respectfully with colleagues to ensure patients receive the best possible care, acting with integrity to justify the trust given to nurses, and to maintain public trust and confidence in the nursing profession (Nursing Council of New Zealand, 2012). The Protected Disclosures Act, 2000, provides a safety net, a forum and set of processes for circumstances when nurses or practitioners whom we may work alongside, act outside the guidelines of the Code of Conduct, and where these acts result in malpractice or serious wrongdoing. The Protected Disclosures Act protects people who under the act are considered an ‘employee’ of the organisation. ‘Employee’ includes former employees, homeworkers, contractors, volunteers and people seconded to the organisation (Protected Disclosures Act, 2000).
One of our roles as nurses is to act as advocates for our patients to ensure they receive the best possible care, are treated in a manner that upholds their rights, and ensure they receive the necessary care in a timely manner (Fry & Johnstone, 2008). The Protected Disclosures Act, 2000, provides security, protection and appropriate support to an employee who needs to make a complaint of serious wrong-doing against their employer (Office of the Ombudsmen, 2014).
The Protected Disclosures Act facilitates the disclosure and investigation of matters of serious wrong-doing in, or by an organisation, and protects employees who make these disclosures s5(a&b). Employees have the right to have their confidentiality upheld during the process and are protected from employers who may try to counter-claim or take legal proceedings against the employee who has lodged a disclosure s19. The act aims to focus on serious wrong-doings (outlined in the interpretation section s3), including misuse of funds, acts or omissions which cause a risk to public health, public safety or the environment, any action that is unlawful, or acts which may be construed as being oppressive, discriminatory, and grossly negligent or constitute gross mismanagement (Protected Disclosures Act, 2000).
Between 1999 and 2009 studies conducted in the US, UK and Australia found that between 4% and 16% of patients suffer from some kind of harm (including permanent disability or death) as a result of adverse events occurring while they are in the hospital (Brennan et al 1991; Department of Health 2000; Kohn et al 2000; Johnstone, 2009). Between 2004 and 2014 the New Zealand Health Practitioners Disciplinary Tribunals (2015) received charges against 344 health professionals most of whom were convicted of professional malpractice. While many organisations have policies and systems to prevent and detect serious wrongdoing, the people who work within an organisation may sometimes be in the best position to detect problems. Employee witnesses can provide a start to a serious investigation (State Services Commission, 2014).
In a nursing setting, where there are high pressures on staff, accidents can happen and are usually dealt with promptly. The Protected Disclosures Act can be used in matters which are sensitive in nature and result in serious malpractice. While advocacy for patients, in nurses, is a part of their duties, in many cases when the need arises for advocacy, it can be difficult for the nurse to act. Rest (1984) discusses a process called moral reasoning which is applicable here. Moral sensitivity speaks to our awareness of how our actions affect others. Moral judgement relates to weighing our actions against that sensitivity. Moral motivation explains how we weigh some values more than others, while moral character is what provides the strength for an individual to carry out a moral action. When a person commits a serious wrongdoing, they are making a decision (moral motivation) that puts their values for time or money, for example, higher than their need for patient’s rights. If a nurse sees these acts and advocates for the patient under the Protected Disclosures Act, this too is moral motivation, with different values. It is for this purpose that the Protected Disclosures Act is aligned closely with the Ombudsmen Act, 1975, the Human Rights Act, 1993 and the Employment Relations Act, 2000.
Under the Ombudsmen Act (1975), an ombudsmen may provide information and guidance to an employee on any matters concerning a protected disclosure; advise on what kinds of disclosures are covered as well as how and who to make a disclosure too, and ensure that no civil, criminal or disciplinary proceedings can be taken against a person for making a protected disclosure, or for referring one to the appropriate authority.
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It is unlawful under the Human Rights Act, 1993 to treat people who have made a complaint less favourably than other staff, in any way. The Act also states that an employee who suffers from retaliatory action from their employer after making a protected disclosure can file a personal grievance claim under the Employment Relations Act, 2000. This means if a person who makes a disclosure is dismissed (due to their disclosure), or suffers from victimisation or unfair treatment in the workplace, they are eligible to make a personal grievance complaint (Protected Disclosures Act, 2000; Office of the Ombudsmen, 2014; Ombudsmen Act, 1975; Human Rights Act, 1993; Employment Relations Act, 2000).
Nurses and employees in general are encouraged to follow a chain of command when things go wrong, but that is not always the most effective course of action. A highly publicized example of this occurred in 1993, when Neil Pugmire, a registered psychiatric nurse, wrote in confidence to the then Minister of Health to outline concerns he had in regard to the Mental Health (Compulsory Assessment and Treatment) Act 1992. In his opinion it failed to provide compulsory detainment of patients who were deemed ‘very dangerous’. To support his claims Pugmire named a patient who was deemed at high risk of re-offending serious sexual crimes against young boys. The Minister responded that ‘mental health legislation should not be used to justify the detention of difficult or dangerous patients’ (Liddell, 1994, p. 14; Johnstone, 2009, p. 366). Pugmire, unhappy with this response, sent a copy of his letter to the then Leader of the Opposition, Mr Goff. Unknown to Mr Pugmire, Mr Goff released the letter publicly, with the patients name deleted. However the patients name was later leaked by other sources, effectively breaching the patient’s confidentiality. Mr Pugmire was suspended for ‘serious misconduct’ involving the unauthorised disclosure of confidential patient information’ (Liddell, 1994; Johnston, 2009).
Mr Goff then presented the Whistleblower’s Protection Bill, in Parliament in June 1994. He is quoted as saying, “The reason for the Bill is that experience has shown quite clearly, that when a person tells the truth and speaks out in the public interest, but is without the protection of relevant legislation, the public tends to benefit from that action, but the victim invariably is the person who blows the whistle. Neil Pugmire … is a man who felt the need, on moral and on professional grounds, to speak out to warn the community about the risk that he saw… Ironically, the response from his employers when he spoke out was not to look at the substance of his concern, nor to listen to the message, but to shoot the messenger” (Goff, 1994). Neil Pugmire’s employer suspended him. Mr. Goff was successful and the bill was passed, initially as the Whistleblower’s Protection Bill, and later becoming the Protected Disclosures Act, 2000 (Goff, 1994).
An example of how the Protected Disclosures Act works today, can be seen in an individual’s right to privacy. Everyone has the right to privacy and any violation of this where a person’s information had been made public would, under the Act, constitute a civil wrong. In a healthcare setting people’s information is protected by the Personal Information section of the Health Act, 1956 and has been developed from the Privacy Act, 1993 (Burgess, 2008; Health Act, 1956; Privacy Act, 1993). The Protected Disclosures Act serves as a foundation for proceeding against the organisation or person who disclosed personal information in a public forum and would protect the person who was making the complaint.
In conclusion, this essay has outlined how valuable the Protected Disclosures Act, 2000, is. It ensures protection of employees in circumstances where serious wrong-doing results from breaches in the Code of Conduct or other malpractices. Statistics reflect the need for the Act and also the need for nurses to advocate and draw upon moral character. The Act has various ways to protect complainants and has been designed to be used in an accessible way, particularly involving the Ombudsmen. Neil Pugmire has been a prominent figure in ensuring that New Zealanders and health professionals alike have avenues to pursue when health practitioners need to be held accountable. The Act has particular relevance today, especially in cases involving the protection of a patient’s privacy.
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