Live Firing Exercise
Recently, the Commissioner of Charities has been seen running around a lot. Youth Challenge is the third charity he has gone after this year. For charities, there's the good old commisioner. For everything else, there's the Corrupt Practices Investigation Bureau. At present, what we have is a whole lot of legalese saying that these guys are entitled to do all the things that are related to their jobs, i.e. dig up dirt on dishonest buggers. But, why can't we help them? What the law should have added is a whole bunch of extra legalese saying that people are fully entitled to help out with the dirt-digging before these guys even have to step out of the office.
PREVENTION OF CORRUPTION ACT
An examination of our Prevention of Corruption Act merely states that if you or I were to be called up by the police to assist in investigations, then we are legally bound to help them. It also states that the state will keep the names and identities of all its informers concealed from the public, except in unavoidable cases where non-disclosure would prevent further prosecution.
Both of these clauses are inadequate. The first assumes a top-down perspective in inquiring into the matter, and does not provide for people who might want to volunteer information on matters that are not currently being pursued. Taken together with the second, it amounts to an attitude that does not go far enough to protect citizens. Once a name is made known to the public, any number of consequences could ensue, and the law could simply turn a blind eye.
Expecting the CPIB boys to run around and knock on all doors without any public help is very impractical. The better way would be to tap the knowledge and access privileges of those already on the ground and in position to know of any malfeasance. We can help them a lot. What should be considered, are:
WHISTLE. BLOWER. LAWS.
In 1996, Barry Adams, a registered nurse (RN) working on a sub-acute care unit in a New England hospital, blew the whistle on unsafe health care practices that he observed in his work setting. Adams became increasingly concerned about the quality, safety, and dignity of patient care as the hospital implemented staffing cuts and cost containment measures. He carefully documented unsafe practices and correlated these with inadequate staffing and a lack of adequate supervision of inexperienced nurses. There was an increased incidence of patient falls, instances where patients were left to lie in their own urine and faeces, treatments not being completed, and serious medication errors. These incidents resulted from a substantial increase in the nurses’ patient assignments.
For three months, Adams and other nurses followed precisely the process outlined by the organization to communicate concerns to hospital administrators. He soon realized that the administrators were not interested in using the information he provided to correct the situation; in fact, he was harshly criticized for collecting this information. He was threatened with the loss of his job and, in spite of previous performance reviews that were excellent, he was eventually fired. He sued and won his case (his attorney was an RN). The hospital appealed and lost again. Five units of the hospital have since closed "for financial reasons."
For the most part, organizations do not engage in unethical behaviour because the people in them are inherently evil or set out to do harm. Rather, unethical organizational misconduct is usually the cumulation of many of its workers saying to everyone down the line: "If it's bad news, I don't want to hear about it." In other words, nobody wants to hear that they've screwed up.
An axiom underlying all this is that nobody will tell the truth to a man with a gun. This form of groupthink is extremely insidious because it means that coupled with fierce competition, reports go whitewashed or censored, and everyone becomes so caught up with maintaining a clean record that survival becomes a matter of being able to outrun one's mistakes, and ethical matters become entirely practical concerns, to be covered up, or PR-ed over.
Managers like to make sweeping decisions about company policy, but do not want to hear about the gory details of how those goals are accomplished. They just want to be able to say in their resumes that they were responsible for these changes. This distancing between themselves and the specifics has also partly to do with wanting to maintain plausible deniability. As a result, credit gets pushed up, while the actual work and all the accompanying disgusting details get pushed down.
In Adams' case, his CEO orders senior management to cut costs. They, who do not want to lose any of their existing customer patronage, therefore cut the ony thing left to cut: staff costs. Nurses are axed, and the overall efficency of the HCO goes down. All this of course, goes unreported, and when attempts to actually report surface, mid-level managers become anxious to suppress the bad news.
An axiom underlying all this is that people will not tell the truth to a man with a gun. Fear pervades all layers of a company, and the obfuscation of relevant facts gradually builds up through the company hierarchy, until those at the very top live in almost imaginary worlds.
Let's not be overly happy and romantic about all this. Virtually ALL whistleblowers suffer negative repercussions as a result of their actions. We definitely need to make reparations to people who stick their necks out like this, but why should whistleblowing have to occur in the first place? It can be seen as a vent of sorts, an escape valve that has to be resorted to when all institutionally established ways of dealing with problems have been used up.
In Adams' case, he had exhausted all the procedures that his hospital had defined for reporting problems, only to be ignored. With nowhere else to go, he had to turn to outside help from the government.
Now, in Adams' case, what essentially happened was that he felt obligated to defend the interests of patients, as defined in the Nursing Practice Act, while the health care organization that he worked for was more interested in defending its profits. He has since asked why nurses should be the ones solely obligated to defend patient welfare, when they frequently have very little power in any HCO. The waters become even murkier, when you go to organizations where there are no established ethical codes for whistleblowers. And therein lies the key. Organizations without an established code of ethics are going to find themselves lost when torn between conflicting interests, such as patient welfare, and operational costs.
It's not enough to simply have a mission statement. Everybody has one. These are inspiringly vague when it comes to sorting out the vagaries of day-to-day decisions. What are needed as well are well-defined procedures that can be followed in the event of crises like the ones Adams faced. Roles should be clearly defined, as well as prioritisation of company interests, so that there isn't any confusion about what to do.
Corporations should declare and establish codes of ethics, for they're treated as virtual persons in the eyes of the law. To be taken taken seriously, there has to be a code of ethics that it can hold itself up to in court, similar to the way the Nursing Act can be held up to a nurse in court. Some may see this as limiting, but it's not, it's simply about saying what you'll do, and then actually doing it when the occasion arises. To think that there's even a choice at all is to suggest that you want the flexibility of being allowed to engage in behaviour that you yourself do not condone. To refuse to commit to a code of ethics is de facto admission that one is unethical.
For all that has been said about whistleblowing laws, it must be acknowledged that laws can still only do so much. There are real-world problems that whistleblowing laws are hardly equipped to deal with. The first of these is the fact that in the first place, company employees consult their superiors about problems in good faith. They hope that the problems they have identified will be resolved, much like fixing a leaky faucet. As such, they do not see themselves as whistleblowers in the first place, and as a result, are ill-positioned to collect evidence with sufficient thoroughness to withstand efforts to cover-up things, or record reprisals that affect them as a result of such revelations.
Another thing is that reprisals against employees are notoriously difficult to document. Things like denial of benefits, ostracization, being given inconvenient schedules, and other measures taken to ensure the employee's failure, and transfer to a backwater department, can be justified with the excuse of company restructuring and/or policy changes, and it is often very difficult to prove that such changes would not have taken place, had there been no animosity between manager and subordinate.
The last weakness about whistelblowing laws is that they pit the lone whistleblower against the faceless corporation, which has far greater legal resources to throw at any given case. Cases can be dragged out over years, and at the end of it all, the whistleblower is still in the spotlight, while executives that were involved in the original complaint will probably have moved on.
So if whistleblowing laws are so systemically crippled, why bother with them at all? Three main schools of thought exist with regards to this matter:
The first school believes that whistleblowing laws are pushed for and passed, out of genuine concern for the victims it strives to protect. Indeed, the intentions of civil society groups whose members consist of former whistleblowers who have suffered at the hands of corporations, cannot be questioned.
But intention does not equate with effectiveness of implementation, and this leads nicely into the second school of thought, which believes that whistleblower laws are a form of symbolic politics, passed by the government which does not want to be seen as being lazy about the mattter. Hence, the laws which have been passed in other countries should not be seen as measures that were taken as a result of an enlightened polity, rather, they are the absolute minimum that the governments of these countries acquiesced to in order to satisfy public demands for action. The most ideal of laws, without effective enforcement, will still prove to be nothing more than toothless paper tigers.
The last school of thought believes that whistleblowing laws actually make whistleblowers easier to target, by lulling them into a state of complacency, where they think they are protected by the law, when they actually are not.
This accusation is not without substance; despite the prevalence of whistleblowing laws in various developed countries, coverage is extremely sparse. For example, after the Sarbanes-Oxley Act was passed in 2002, over 750 cases have been raised in the years since, rising exponentially. Of these cases, only a paltry five have been won. If you consider that one was in the end overturned on appeal, that brings it down to four.
A corollary to this is that the act only offers protection to whistleblowers only if they go through official government channels for reporting breaches of ethics. In other words, in order to enjoy the benefits of the act, whistleblowers are forbidden from approaching the media. Given that most of the claims of whistleblowers are only investigated only after they have been reported in the media, this requirement betrays the act's intention to curb dissent more than to expose breaches of ethics.
This all points to a two-pronged solution: one: we need IMPROVED whistleblowing laws, which are more effective both in wording and in implementation compared to current systems. Such legislation depends on the benevolence of a government, and in Singapore, is simply unreliable.
Roussseau's social contract theory, of which the government and the populace are the two main actors, states that any social contract that either party signs up for, is done for the sake of an advantageous exchange, so any inconveniences that one may face in the entertaining of this contract are still, in the final analysis, worth it, from ONE'S OWN PERSPECTIVE. To rephrase things, if you signed up for it, and are still sticking around, you shouldn't really bitch too much about it, because you're still around, and you KNOW that at the end of the day, it's still a better deal than what you might be getting elsewhere. To interpret that in a more extreme light, the absence of an effective rebellion of the people is the best indicator that a regime still retains its legitimacy with them. What this means of course, is that any political regime can only do so much, when it comes to exploiting the populace.
Mind you, the Sarbanes-Oxley act was not passed because political leaders in the west are somehow more enlightened than we are. They are as ravenous for power as your average Singaporean politician. Nobody in a trade where power is the only real currency, is going to give it up if he or she can help it. The Sarbanes Oxley Act should be looked upon as the bare minimum acceded to, in order to keep the American public happy. But it was passed only because the American public demanded it, so if we want our checks and balances, we have to demand them. It is likely that such demands are unlikely to be met in full, however, they do at least establish a tentative baseline from which our whistleblowing battles can be fought.
Given that the first approach now looks like a knee stump, the second thing, which will hopefully give whistleblowers a leg up, is that we need improved whistleblowing itself. Poeple need to be taught how to whistle blow. A few key skills can be identified:
1) Evidence gathering. People should be taught to gather their evidence before speaking up. This skill is actually dependent on another ability, and which is the ability to understand:
2) Organizational dynamics. All too often, whistleblowers express regret at having placed too much faith in the internal systems that they originally reported to. People must be taught how to recognize when they are about to put themselves in situations that could spiral downhill into one where they will become whistleblowers. As outlined earlier, the most common reason why organizations get away with their cover-up efforts, is simply because of a lack of planning on the part of the whistleblowers that they go up against.
3) Coherent writing. The abilty to be concise and detached cannot be overstressed. If whistleblowers cannot remove themselves from the situations that they are writing about, the result is an emotional long-winded article that comes across as unconvincing, that few people will bother to take the time to read in the first place. And here lies the appeal of harnessing the support of people from the media, for they are very capable at summarising the facts of the case.
4) Building support. Instead of confronting "the system" head on in a violent presentation of facts, it is far better to garner support from fellow co-workers, outside agencies, and community groups. The relevant skills have to do with community building.
5) Self-undestanding. It's important that people be very clear about their motives in wanting to bring this up to the public, since whistleblowing efforts can be sabotaged by accusing the whistleblower of being guilty of malice, or to a lesser extent, self-interested motives like ambition. While these are realms with no clear borders, one can gain as much distance from them as possible, if stones like these are not left unturned.
This is only a starting list, and does not cover all the complexities involved in blowing the whistle. A gap that I've left uncovered is the aspect of legally covering oneself with regards to the release of sensitive information. But if you're thinking of doing so, you'll definitely find that you can never prepare enough, for firestorms like this.