Michael Clifford: Is price too high for whistleblowers?

Notwithstanding the protections in place, it still takes courage to come forward, particularly with information that exposes a pathetically weak moral compass in a major government department
Michael Clifford: Is price too high for whistleblowers?

Shane Corr, a senior civil servant at the Department of Health, went public with details of the secret dossiers. Picture: RTÉ Investigates/RTÉ

Shane Corr isn’t out of the woods yet. The whistleblower who revealed that the Department of Health was maintaining dossiers on autistic children performed a worthy public duty. He has shown courage and persistence. But the law is such that in doing so he may have left himself legally exposed. That is no reflection on the man himself, but it says something about the law.

Before examining the plight of Mr Corr as a whistleblower, let’s look at what he exposed. He availed of the Protected Disclosures Act to highlight what he saw as wrongdoing in the department where he worked. 

Files were compiled on autistic children who had been engaged in legal actions against the state. These files consisted of confidential information gleaned from doctors employed by the state and educational information accessed through the Department of Education. Reportedly, there were 270 cases involved.

The state is perfectly entitled to gather information relevant to a case in which it is being sued. Ordinarily, access to such information would come through application to a plaintiff’s solicitor. Therefore, it would have the knowledge and express consent of the person suing.

In these cases, the state, through the Department of Health, took advantage of its access to information about citizens. There was no application to a solicitor for a client’s medical records. Instead, they went directly to the state employed doctors and, crucially, asked the doctors not to inform patients about this. Similarly, school reports were accessed.

Such practice is highly questionable and raises ethical issues. Beyond that, the legal actions were dormant. Typically, the parents of a child who was suing over an absence of services would have just let things lie after accessing the services. 

So the dossiers were compiled over a long period of time about children whose parents and legal representatives hadn’t an iota this was going on.

Legally, the department may well have been on solid ground. But the litigants in this case were not businesspeople suing over a lost contract. They were not state employees with a sense of injustice about a missed promotion or unfair dismissal. They were citizens with serious vulnerabilities for whom the state was legally obliged to provide services and education. Their parents were, typically, exhausted from trying to access these services which they believed – and had been led to believe – were a legal right.

The political masters of the civil servants compiling the dossiers had passed legislation enshrining the rights that these children and their parents were being forced to pursue in the courts.

In compiling the dossiers the state had a few different motives. Firstly, it could be used in the event of the plaintiffs resurrecting the initial case. It could also be presented as an incentive to bring a case to a finality and save on legal costs. But also, the department would be well aware that services for those with additional needs are required right through childhood and adolescence.

Parents would typically let a case lie dormant on accessing, for instance, an assessment for their child, or obtaining a place in the first rung of primary education. In all likelihood, at a later stage of the child’s development, the absence of services would once again become an issue. The prospect of the state being once again sued would rear its head. By projecting into the future for that possibility, those compiling the dossiers ensure that the state will be properly armed for any trip to court.

In normal circumstances this could be viewed as legally prudent. There is, however, nothing normal about a state girding its legal loins to defend itself from citizens attempting to access rights for the most vulnerable.

A properly functioning democracy might concentrate on actually providing the services required rather than spending energy and money on defending to the hilt the failure to provide those services.

This was encapsulated by junior minister for health Anne Rabbittee in the Dail on Thursday. “While what happened may have been lawful, that does not mean it was right,” she said. All of which is true but by the same token it is the responsibility of the political masters to ensure the prevailing culture changes.

Then we come to Mr Corr, the whistleblower. He made his complaint about the dossiers under the Protected Disclosures Act. The act provides protection against retribution to employees who blow the whistle. The department followed up by retaining a senior counsel to investigate. That senior counsel compiled a report and came to the conclusion that retention of the dossiers was “lawful, proper and appropriate”.

Mr Corr was informed of the outcome but was told he would not be furnished with the full report unless he signed a confidentiality agreement. The act does not oblige an employer to provide the discloser with a full report.

Unhappy with the outcome, Mr Corr went to RTÉ investigative reporter Conor Ryan. Legally, having made his complaint and having had it investigated, Mr Corr may have been on shaky ground in bringing it further. He has now released confidential information outside the scope of the Protected Disclosures Act. However, in light of the public and political reaction to the item, it would be extraordinary if the department were to pursue him now with the full force of the law.

Overall, the Protected Disclosures Act has had a positive impact right across the public sector and beyond. Those who believe wrongdoing is being perpetrated can speak out secure in the knowledge that there are some protections in place against dismissal and other forms of retribution.

Not that it’s all plain sailing now. Last December, the anti-corruption body Transparency International Ireland (TII) published its annual Speak Up report on the experiences of whistleblowers. It found that between 2018 and 2020 a quarter of those who spoke up about wrongdoing suffered some form of retribution. The problem was at its worst in the health service where 40% of whistleblowers were subjected to this kind of treatment.

Further protections will be added to the law this year when the government legislates for an EU directive on whistleblowers.

“It will offer stronger safeguards than already exist but it shouldn’t be seen as a silver bullet,” says John Devitt, chief executive of TII. “Whistleblowers will continue to be at risk of penalisation so long as employers and regulators are unwilling or unable to act on the concerns that are raised.” 

Notwithstanding the protections in place, it still takes courage to come forward, particularly with information that exposes a pathetically weak moral compass in a major government department. For that, Mr Corr deserves our gratitude. He has done some service for the concept of the state observing proper standards.

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