Whistleblowers deserve protection

RNs who report abuse need assurances their employer can’t discipline them for complying with the law.

Fay Brunning, Lawyer, Sack Goldblatt Mitchell LLP,

This article was first published as the Legal Column for the January/February 2012 edition of The Registered Nurse Journal.

On October 26, 2011, the City of Cornwall was convicted of illegally retaliating against Diane Shay, a registered nurse who went to the Ministry of Health and Long-term Care in 2008 to report elderly abuse at Glen Stor Dun Lodge. The city was ordered to pay a fine of $15,000, plus a 25 per cent victim surcharge. This is the first time Ontario’s Ministry of Health has prosecuted an operator of a long-term care home.

Shay’s story dates back more than three years, when she complied with the law and her professional and ethical obligations to report abuse. In the months that followed, she was bullied, disciplined and harassed by three managers. Her position was terminated in September 2009, when she was notified that after 17 years with an unblemished record, she had to go due to restructuring.

Provincial Health Minister Deb Matthews responded to the City of Cornwall conviction – and to media coverage about other instances of elder abuse in Ontario – by supporting the creation of a task force to investigate resident abuse in long-term care.

Despite the conviction, city officials show no remorse for violating the law. In fact, the city claimed in its first media release that it pleaded guilty to save taxpayers the legal costs of a trial, inferring it was not really guilty. Three managers (the chief administrative officer (CAO), the director of the lodge, and the director of human resources) and municipal councillors have offered no apologies to Shay or to the other employees of the lodge for violating the whistleblower protections under provincial legislation and the city’s own policies. There was no apology to the public or to the residents of the lodge.

“In the months that followed her report of elder abuse in a Cornwall lodge, Diane Shay was bullied, disciplined and harassed by three managers. Their actions led to a serious stress-induced medical condition.”

In November, Shay asked the ministry to appoint an external monitor to provide ongoing whistleblower protection because the city’s CAO misled the public and the media when he stated that resident abuse had not been found. This statement inferred that Shay stirred up a fuss about nothing. The CAO later retracted his comments because the ministry confirmed to Shay and to the media that its investigation of the incident confirmed resident abuse. The ministry declined to appoint a monitor, claiming it does not have authority to do so.

In her quest to expose resident abuse, Shay discovered the dangers of becoming a whistleblower. She suffered so badly from her managers’ behaviours that she developed a serious, stress-induced medical condition. She is still unable to work because her condition has relapsed and worsened. She does not believe any nurse should go through what she has endured over the past three years.

So, what have we learned? The media and members of the public in Cornwall have been demanding answers. Two of the three retaliating managers are no longer employed by the City, although the terms of their departures have not been disclosed to the public.

Shay hopes this situation will be studied by the ministry and operators of long-term care homes so it can be avoided in the future. She believes whistleblower protection must be more than just words on paper. Nurses have to believe the legal system will immediately enforce their right to legal protection. When the retaliation was happening in 2008/09, the ministry did not react to Shay’s pleas for help. She had to launch her own civil action for reinstatement, after which the province finally invoked its powers to charge the employer. Both the Ministry of Health and the Ministry of the Attorney General have admitted to Shay that they have learned from this case, and that more can be done to give proper effect to the intention of the legislation.

Shay believes the province must ensure long-term care home operators are educated to prevent abuse from ever happening. However, if abuse does happen, and if it is reported in good faith, provincial authorities must ensure there is no retaliation towards employees of the home. If there is retaliation, the province must charge and prosecute offenders, as it did in Shay’s case. And if there has been a conviction for retaliation, the ministry must ensure it does not happen again. Bullies should not be working in long-term care homes, at any level.

Shay hopes the government’s willingness to prosecute, and the conviction in this case, will support members of the profession who report resident abuse.