Toward an Ethical Defense of Whistleblowing
You're one of a group of nurses noticing, with increasing alarm, the negligence and incompetence of a physician who practices in your hospital. You've reported what you think to nursing administration and certain physicians, but nothing has happened. As a result of some conversations with other nurses, you eventually decide to document what you see and report this to the proper authorities. If you decide to "blow the whistle," how do you ethically defend your position?
A recent court case in New Mexico centered on such a situation. However, in this scenario, what six nurses did was to agree to testify in support of two people bringing a lawsuit against a physician, alleging negligence and incompetence. One of the two had been a patient and the other was the husband of patient who had died. The nurses in question had apparently voiced concerns to nurse managers about the physician for several years. In fact, several nurses had not only spoken with nurse managers, but with other physicians regarding their concerns. (ANA Press Release See Below).
At issue for the nurses was the hospital's assertion that New Mexico state regulations prohibit the sharing of patient information, regardless of the reasons. The nurses began to experience some retaliation by the hospital when they went ahead and agreed to testify. The ANA filed an amicus curiae ("friend of the court") brief in support of the nurses' actions. Ultimately, the Court ruled in favor of protecting the nurses' right to testify. (ANA Press Release, See Below).
What is whistleblowing? Whistleblowing "is going public or speaking out to one's professional organization or to the media in order to protect the welfare of patients because of a perceived wrongdoing on the part of others"... (Erlen,). More generally, "Whistleblowing is the public exposure of organizational wrongdoing." (Wilmot). While the average patient's immediate response to whistleblowing would probably be a resounding hurrah!, for nurses, whistleblowing can create considerable moral distress as we weigh the consequences of our actions against the duties of our profession. The consequences will not only affect patients, but the nurse as well. "Nurses must carefully decide whether or not to blow the whistle. Advocating for improved patient care and exposing unethical and incompetent health care providers is not without risk." (Erlen, p. 70). The risk can take many forms, including negative reactions from co-workers, losing one's job, and, in the extreme, legal retaliation.
Does the nurse have a convincing ethical argument if he or she decides to become a whistleblower? Once we become nurses, we have the Code of Ethics as our guide. According to the Code of Ethics for Nurses with Interpretive Statements (See Below), there is justification for becoming a whistleblower:
Code of Ethics Provision 3: The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient.
Section 3.5: As an advocate for the patient, the nurse must be alert to and take appropriate action regarding any instances of incompetent, unethical, illegal or impaired practice by a member of the health care team or the health care system or any action on the part of others that places the rights or best interest of the patient in jeopardy." (ANA Code of Ethics with Interpretive Statements, 2001).
Blowing the whistle is, in fact, a form of advocacy!
So what tools might a nurse use as he or she engages in the task of deciding whether to pursue such an extreme course of action? In his thoughtful article on the subject, Wilmot offers an ethical analysis of whistleblowing as he outlines the particulars of the decision, reminding us that whistleblowing must be understood in "relation to its moral purpose." (Wilmot, p. 1051). He examines the dilemma in light of two ethical theories: consequentalist versus deontological.
The consequentalist argument, expressed in its utilitarian model, is essentially a cost/benefit analysis. Consequentialism requires that we first calculate both the good and bad consequences of an action and then determine whether the total good consequences outweigh the total bad consequences. If the good consequences are greater, then the action is morally proper. If the bad consequences are greater, then the action is morally improper. In the consequentialist theory of ethics, it is the end result of the action that is the sole determining factor of its moral worth.
The deficiency in this position is that it assumes that good and bad consequences are measurable. All one need do is the "cost/benefit analysis" and one will come to the correct moral decision. Unfortunately, the byproduct of this may be an unacceptable level of harm inflicted on a few people in order to achieve a good end for others. Since nurses are responsible for the safe care of each patient, the nurse runs the risk of causing an unacceptable level of "harm" to a few to benefit the majority.
What if a patient suffers an unbearable loss of privacy brought on by a whistleblowing incident? What if finding another provider becomes difficult because the physicians fear undue scrutiny? What if the ensuing publicity affects the institution's ability to carry on its mission as physicians and nurses find work elsewhere in order to distance themselves from this incident? Worse, what if nothing positive comes as a result of our whistleblowing, but several people (staff and patients) suffer because of it? As Wilmot reminds us, "Exposure of abuse or poor care does not necessarily lead straight to the achievement of good care." (Wilmot, p. 1053).
How do we logically defend our desire to achieve a positive consequence, knowing there may be some short term negative consequences? Wilmot suggests that the consequentialist theory be balanced by the second one: deontology. Based on Kant's view of individual autonomy and responsibility, deontological ethics views the individual as having general moral duties such as treating persons as ends in themselves, keeping promises and truth-telling. In deontological ethics, "we replace the idea of the consequences of a persons' actions with the idea of actions for which that persons is responsible." (Wilmot, p. 1053). In the end, deontology requires an acknowledgment of one's duty and taking responsibility for only those actions for which one is responsible. In other words, the actions of others are not my responsibility, but theirs, even if their actions are a response to something I have done.
Nurses have multiple duties and competing roles, which makes whistleblowing a wrenching decision. In this case, the nurse has a duty to the patient and a duty to the employer. After debating the merits of duty to patient versus duty to the organization, Wilmot offers a compelling argument in favor of duty to the patient. This even includes situations where a nurse has signed a "contract" of employment. He questions the moral status of an organization and, consequently, duties to organizations. He specifically questions the morality of being duty-bound to an organization that is no longer carrying out its intended goals and objectives, i.e. allowing an impaired practitioner to continue practicing. He concludes that while the "nurse is well-placed in terms of information to blow the whistle, she (he) is badly placed in terms of the balance of her (his) duties." (Wilmot, p. 1053).
Why does it matter whether the nurse understands the ethical framework in which this decision is made? Because understanding the ethical framework that goes into serious deliberation ultimately gives the nurse's decision increased legitimacy. The nurse puts him or herself at great risk by becoming a whistleblower and when that nurse can more clearly understand the underlying theories and principles at work in such a decision, then that nurse can more adequately defend his or her decision. As nurses are increasingly confronted with ethical dilemmas, bringing reasoned principles and sophisticated ethical thinking to the process only increases our moral autonomy, making us more powerful advocates for our patients while maintaining the integrity of our profession.
Nurses don't always know how to begin a process of reporting incompetent or negligent practice. For this reason, writes Erlen, "A mechanism needs to be in place that enables staff to speak freely and to bring inconsistent and/or potentially harmful situations to the attention of others...Policies need to be developed that clearly delineate the procedure for reporting unethical, illegal, or incompetent practice." (Erlen, p. 69). Only after all the avenues have been exhausted, with no response, does the nurse go public with his or her accusations.
Not surprisingly, even the most ethically sophisticated nurse may suffer unpleasant consequences brought about by whistleblowing. Most everyone agrees that, ultimately, legislation is needed to protect nurse whistleblowers and nurses themselves need to actively support such efforts. At the very least, nurses should not have to worry about legal retaliation when, after serious and careful consideration, they take the ultimate step in patient advocacy, and decide to blow the whistle.
References
American Nurses Association Press Release, 6/19/2001.
American Nurses Association Press Release, 7/10/2001.
American Nurses Association, Code of Ethics for Nurses with Interpretive Statements, Washington, DC, ANA Publications, 2001).
Erlen, J., (1999). What does it mean to blow the whistle?, Orthopaedic Nursing, 18(6): 67-70.
Wilmot, S., (2000). Nurses and whistleblowing: the ethical issues. Journal of Advanced Nursing, 32(5): 1051-1057.