Professional obligations to report harmful behaviours: Risks to patient safety, child abuse and elder abuse





Learning Objectives


Upon the completion of this chapter and with further self-directed learning you are expected to be able to:




  • Define ‘notifiable conduct’ as set out in legislative provisions regulating health practitioners.



  • Distinguish between ‘notifiable conduct’ and ‘health-impaired conduct’ as set out in legislative provisions regulating health practitioners.



  • Discuss critically four principles that might be appealed to for guiding decisions about whether to make a notification to a practitioner regulating authority.



  • Discuss critically the ethical requirements for reporting wrongdoing by a registered practitioner or student to a practitioner regulating authority.



  • Define child abuse.



  • Discuss critically the significance of child abuse and its prevention as a moral issue.



  • Explore possible ethical issues associated with the identification and prevention of child abuse.



  • Examine critically the moral responsibilities of nurses and the broader nursing profession in regard to the mandatory and voluntary notification of child abuse.



  • Define elder abuse.



  • Discuss critically the significance of elder abuse and its prevention as a moral issue.



  • Explore ethical issues commonly associated with the identification and prevention of elder abuse.



  • Examine critically the moral responsibilities of nurses and the broader nursing profession with regard to intervening and preventing elder abuse.



  • Discuss critically the similarities and differences between child abuse and elder abuse.





Introduction


At some stage during the course of their work, nurses will encounter a situation in which they may be required either by law or by professional conduct standards to report to an ‘appropriate authority’ (either internal or external to their employer organisation) the harmful behaviour of another, or intervene in some other way to prevent the harm that might be caused by the behaviour in question. In either case, even though making a notification or initiating some other protective intervention is the ‘right thing to do’, it is not necessarily an easy thing to do – not least because of the moral quandaries that a nurse contemplating a protective intervention might experience in the process. This chapter discusses some of the ethical issues associated with requirements to report ‘wrongdoing’ or to initiate a protective intervention. Three key requirements will be considered: (i) reporting the notifiable and / or health-impaired conduct of practitioners and students to a practitioner regulating authority; (ii) reporting known or suspected cases of child abuse and neglect to a child protection agency; and (iii) engaging in a protective intervention in cases of elder abuse and neglect.




Reporting notifiable and health-impaired conduct of practitioners and students


Most jurisdictions in Western democracies have legislative provisions requiring health professionals (including nurses) to report to a practitioner regulating authority (in the case of nurses, a nursing board or council) any conduct or health impairment that is reasonably believed to place the safety of the public at serious risk.


Legal requirements to report wrongdoing


As noted in the previous chapter, reporting sources of risk and actual incidents resulting in patient harm is widely recognised as being the ‘cornerstone of safe practice and, within a hospital or other health care organisation, a measure of progress towards achieving a safety culture’ ( World Health Organization (WHO) 2005b : 7). Reporting, however, is not restricted to notification solely of clinical incidents or adverse events. It can also include notifications of ‘disruptive behaviour’ defined as ‘any behavior that can undermine a culture of safety’– for example, ‘any inappropriate behavior, confrontation, or conflict ranging from verbal abuse to physical or sexual harassment that can potentially negatively impact patient care’ ( Rosenstein 2017 : 62).


In Australian jurisdictions since 1 July 2010, registered health practitioners (including nurses), employers of practitioners, and education providers have been mandated under the Australian Health Practitioner Regulation National Law Act (2009) (referred to hereon in as the ‘National Law’) to report to the Australian Health Practitioner Regulation Agency (AHPRA) any ‘notifiable conduct’ or ‘notifiable impairment’ as defined in Section 140 of the National Law ( AHPRA 2014 ). For the purposes of the Act, ‘ notifiable conduct ’ is taken to mean any conduct whereby the health practitioner has: practised while intoxicated by alcohol or drugs, engaged in sexual misconduct in connection with the practice of their profession, practised while suffering from an impairment that places the public at risk of substantial harm, or practised the profession in a way that constitutes a significant departure from accepted professional standards (National Law, Section 140). The relevant section of the Act is reproduced in Box 12.1 .



Box 12.1

( Health Practitioner Regulation National Law Act 2009 , Section 140, p 100, current as at 9 June 2018)

Definition of ‘notifiable conduct’


Division 2 Mandatory Notifications


140. Definition of notifiable conduct


In this Division –


notifiable conduct , in relation to a registered health practitioner, means the practitioner has –



  • (a)

    practised the practitioner’s profession while intoxicated by alcohol or drugs; or


  • (b)

    engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or


  • (c)

    placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or


  • (d)

    placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.




‘Impairment’, in turn, is taken to mean conduct in relation to a person (i.e. practitioner or student) and where the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect their capacity to practise their profession, or, in the case of students, their capacity to undertake clinical training as part of the approved program of study, or arranged by an education provider (National Law, Schedule 5). The relevant section of the Act is reproduced in Box 12.2 .



Box 12.2

( Health Practitioner Regulation National Law Act 2009 , Schedule 5, Part 1 Preliminary, pp 13–14, current as at 9 June 2018)

Definition of ‘impairment’


5. Definitions


In this Law –


impairment , in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –



  • (a)

    for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession; or


  • (b)

    for a student, the student’s capacity to undertake clinical training –



    • (i)

      as part of the approved program of study in which the student is enrolled; or


    • (ii)

      arranged by an education provider.





In addition, the National Law contains provisions for making voluntary notifications ‘for behaviour that presents a risk but does not meet the threshold for notifiable conduct’ ( AHPRA 2014 : 5). Under these provisions, a voluntary notification about a registered health practitioner may be made to AHPRA on a number of grounds, including: where the practitioner’s professional conduct, knowledge and skill are, or may be, of a lesser standard than that which might reasonably be expected by the public or the practitioner’s professional peers; the practitioner is not, or may not be, a ‘fit and proper person’ to hold registration in the health profession; the practitioner has contravened the Law, or a condition of practice given by the practitioner’s registration board; or the practitioner has improperly obtained registration by providing false or misleading information. The relevant section of the Act is reproduced in Box 12.3 .



Box 12.3

( Health Practitioner Regulation National Law Act 2009 , Schedule, Part 8 Health, Performance and conduct, pp 103–104, current as at 9 June 2018)

Grounds for voluntary notification


Division 3 Voluntary Notifications


144. Grounds for voluntary notification



  • (1)

    A voluntary notification about a registered health practitioner may be made to the National Agency on any of the following grounds –



    • (a)

      that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;


    • (b)

      that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;


    • (c)

      that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;


    • (d)

      that the practitioner has, or may have, an impairment;


    • (e)

      that the practitioner has, or may have, contravened this Law;


    • (f)

      that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board;


    • (g)

      that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.





Under these provisions, a voluntary notification about a student can also be made to AHPRA on the grounds that the student has been charged with, found guilty and convicted of an offence that is punishable by 12 months imprisonment or more; has, or may have, an impairment; or has contravened a condition of the student’s registration or an undertaking given by the student to a National Board. The relevant section of the Act is reproduced in Box 12.4 .



Box 12.4

( Health Practitioner Regulation National Law Act 2009 , Section 144, p 173, current as at 9 June 2018)

Voluntary notifications about students


Division 3 Voluntary Notifications


144. Grounds for voluntary notification



  • (2)

    A voluntary notification about a student may be made to the National Agency on the grounds that –



    • (a)

      the student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or


    • (b)

      the student has, or may have, an impairment; or


    • (c)

      that the student has, or may have, contravened a condition of the student’s registration or an undertaking given by the student to a National Board.





It is important to note that the threshold for making a notification to AHPRA is high and must be based firmly on a ‘reasonable belief’ (as opposed to a mere suspicion) that the behaviour in question meets the criteria for ‘notifiable conduct’ or ‘notifiable impairment’. To assist those contemplating making a notification, the Australian Health Practitioners Regulation Agency (AHPRA) has devised the following principles:





  • 1.

    A belief is a state of mind.


  • 2.

    A reasonable belief is a belief based on reasonable grounds.


  • 3.

    A belief is based on reasonable grounds when,



    • (i)

      all known considerations relevant to the formation of a belief are taken into account including matters of opinion and


    • (ii)

      those known considerations are objectively assessed.



  • 4.

    A just and fair judgement that reasonable grounds exist in support of a belief can be made when all known considerations are taken into account and objectively assessed.

( AHPRA 2012 : 6)


Further clarifying the nature of what constitutes a ‘reasonable belief’, AHPRA explains:



A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gives rise to the notification, or, in the case of an employer, it could also involve a report from a reliable source or sources. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief. ( AHPRA 2014 : 6)


Forming a reasonable belief and deciding to act on it, in turn, requires both professional judgment (discussed in Chapter 11 ) and moral justification (discussed in Chapter 3 ). To help guide the decision-making processes, the AHPRA (2014) published a set of guidelines pertinent to the kinds of notifications that health practitioners (including nurses) are required to make. These include examples of decision guides for significant departure from accepted professional standards and for impairment in relation to practitioners and students respectively ( www.ahpra.gov.au/notifications/make-a-complaint/mandatory-notifications.aspx ).


In New Zealand, under the Health Practitioners Competence Assurance Act (2003) similar provisions exists requiring health practitioners to make notifications of practice that ‘may pose a risk of harm to the public by practising below the required standard of competence’ and / or when a practitioner has an ‘inability to perform required functions due to [a] mental or physical condition’ (Section 3).


Professional requirements to report wrongdoing


Some nurses might worry that making a notification, even though a legal requirement, is a breach of professional ethics. This might be especially so in cases where making a notification requires breaching privacy and confidentiality (discussed in Chapter 7 ), or violating the nurse–patient relationship (e.g. in instances where the nurse being reported is also a patient). Nurses might also experience a profound quandary where the legal mandate to make a notification involves and would violate an important interpersonal relationship (e.g. in instances where the nurse needing to be reported is a spouse or intimate partner, a relative, a close friend and / or a trusted and highly valued colleague).


As mandated reporting requirements are fundamentally based on the moral imperative to prevent or mitigate harm to the public, making either a mandatory or a voluntary notification is not generally considered to be a breach of professional ethics or a departure from accepted ethical standards of conduct ( AHPRA 2014 : 5). Moreover, as nursing codes of conduct in Australia, New Zealand and elsewhere make clear, reporting to an appropriate authority behaviours such as those described in the Australian National Law ( AHPRA 2014 ) is not only a legal obligation, but, in clearly defined instances, also a moral one. Consider the following.


The codified moral obligation of nurses to report to an ‘appropriate authority’ any conduct or behaviour that places others at risk of serious harm is well established. For example, The ICN c ode of ethics for nurses ( ICN 2012a ) states (Element 4: Nurses and co-workers, p 3):



The nurse takes appropriate action to safeguard individuals when their care is endangered by a co-worker or any other person.


Other national nursing codes and standards take a similar stance, with appropriate action described as including but not limited to questioning, reporting and intervening to redress an instance of questionable behaviour.


The codified obligation to ‘take appropriate action’ is not unique to the cultural context of Australia. The Nursing Council of New Zealand (NCNZ 2012a ), the UK Nursing and Midwifery Council (NMC 2015 ), the Canadian Nurses Association (2017) and the American Nurses Association (ANA 2015) have each articulated similar requirements in their respective codes of ethics and conduct.


Interestingly, most codes and guidelines stop short of addressing how a nurse should respond in instances where he / she has an intimate personal relationship with the nurse needing to be reported – for instance, the notifiable or impaired conduct at issue is being exhibited by a spouse or intimate partner, an immediate relative, a close friend, and / or a trusted and highly valued colleague with whom the nurse is on a close collaborating professional relationship (e.g. co-researcher). Not only is the nurse faced with a conflict of obligation in such situations, but he / she also risks significantly damaging and possibly even destroying irrevocably the personal relationship(s) in question. This is so even if an intended or actual notification is well intended, and made in good faith and without malice, and in the hope of, say, getting the partner, relative or good friend assistance to ‘get back on track’ professionally.


In the USA, some states exempt the reporting of ‘spouses by spouses’ and nurses who are in a professional–client relationship ( Buppert & Klein 2008 : 6). Most also limit the reporting requirement to ‘directly observed incidents’ – that is, not ‘confiding’ disclosures made to an intimate partner or spouse ( Buppert & Klein 2008 : 6). Despite the obvious conflict of interest involved in partner reports, the Australian National Law and related guidelines are, however, silent on this matter. Controversially, exemptions are not made for treating practitioners (e.g. a medical practitioner, psychologist, dentist, nurse or chiropractor) who are treating other registered practitioners – although, at the time of writing, this was under review. In a discussion paper ‘Mandatory reporting under the Health Practitioner Regulation National Law’, the Australian Health Ministers Advisory Council (AHMAC) has proposed a change to the National Law to allow an exemption for treating practitioners – clarifying, however, that if the amendment goes ahead, ‘the employers and other registered health practitioners who are not treating practitioners, such as colleagues, would continue to be under an obligation to report notifiable conduct’ ( AHMAC 2017 : 4).


The possibility of making spouse-by-spouse / friend-by-friend notifications conditional or voluntary seems not to have been considered. For example, decisions to make notifications could be made using a modified version of what Hickson and colleagues (2007) have described in another context as a ‘complementary approach to professionalism’. This approach involves the following steps:



informal conversations for single incidents, nonpunitive ‘awareness’ interventions when data reveal patterns, leader-developed action plans if patterns persist, and imposition of disciplinary processes if the plans fail. ( Hickson et al 2007 : 1040)


In the case of spouse-by-spouse / friend-by-friend reporting, this could be made conditional on a reporting nurse first going directly to the wrongdoer / health-impaired practitioner to have an informal conversation (e.g. ‘I have observed you do X, can we talk about this and the option of you making a self-report to the Board to get help’; or ‘I have observed you do X, if you do this again I will have no option but to make a notification’). This would also have the effect of being a ‘non-punitive awareness intervention’ (what might be termed colloquially as a ‘wake-up call’ for the wrongdoer / health-impaired practitioner to acknowledge ‘they have a problem’ and to take personal responsibility for their own actions).


‘No blame’ culture and patient safety


Some nurses might also worry that reporting errant practitioners to an appropriate authority goes against the principles of human error management, which have been widely adopted and operationalised in health services locally and globally. There is some foundation to this concern, although, in recent years, the basis upon which such concerns might have rested has since been called into question for the reasons given below.


In 2002, in response to growing international concerns about the alarming incidence of preventable adverse events in health care, patient safety was, for the first time, situated as ‘a worldwide endeavour, seeking to bring benefits to patients in countries rich and poor, developed and developing, in all corners of the globe’ ( Donaldson 2002 : 112). This endeavour was informed by the influential publication of the US Institute of Medicine’s To err is human ( Kohn et al 2000 ). In the intervening years, health services around the world have embraced a ‘no blame’ model in their approach to managing human error and attempts to reduce the incidence and impact of preventable adverse events in their organisations. This model has been adopted in good faith and in response to a well-argued need to shift away from what had traditionally been a punitive hospital culture of ‘naming, blaming and shaming’ individuals who, due to their human fallibility (including ‘forgetfulness, inattention or moral weaknesses’) made an honest mistake; this approach has been termed the ‘person approach’ by safety scientists ( Reason 2000 ). In its place, an alternative approach was proposed – the ‘system approach’, which, unlike the person approach, ‘concentrates on the conditions under which individuals work and tries to build defences to avert errors or mitigate their effects’ ( Reason 2000 : 768). Whereas the person approach singled out individuals to blame when things went wrong, the system approach focused on the weaknesses and failures of ‘the system’ (not individuals), which enabled what James Reason (2000 : 769) famously called a ‘trajectory of accident opportunity’ that brings hazards into ‘damaging contact with victims’. In this approach, when things go wrong, the question to ask is not ‘ Who messed up?’ but ‘What contributed to the system failing?’ As Reason argues, if the same system weaknesses and conditions persist (e.g. poor storage and labelling of drugs), the same errors (e.g. medication errors) will continue to be made regardless of who it is at the interface of the patient–provider relationship.


A key objective in encouraging the organisational cultural change from a ‘person approach’ to a ‘system approach’ was to encourage errant practitioners to report their mistakes voluntarily and to increase voluntary incident reporting generally. It was held that, once reported, a careful analysis of the adverse events in question could be made, and staff and their employer organisation afforded an important opportunity to learn from their mistakes and put in place processes that would help prevent their reoccurrence ( Reason 2000 ). Safe reporting, in this instance, was thus seen to be not only of practical value, but also quintessential to achieving patient safety outcomes because, as Bagian and colleagues (2001 : 524) put it: ‘You can’t fix what you don’t know about’.


Although initially resulting in a productive cultural change in health care organisations, the ‘no blame’ approach had an unintended consequence: it saw professional accountability for poor behaviour shift away from individual practitioners to ‘the system’. The poor behaviours in question included practitioners’: intentional and routine rule violations (i.e. knowingly disregarding rules or procedures, including wilfully ‘cutting corners’ and the ‘normalisation of deviance’ – for example, routine failures in everyday practice to perform hand hygiene ( Goldman 2006 ), or failures by staff to don personal protective equipment to prevent the transmission of infectious agents ( Krein et al 2018 )), reckless conduct (involving a ‘conscious disregard of substantial and unjustifiable risk’) and negligence (failing to exercise due care) ( Banja 2010 ; Marx 2001 ). Concerned about the risks posed to patient safety by ‘repeat offenders’ and ‘bad apples’ – defined as ‘individuals who repeatedly display incompetent or grossly unprofessional behaviours’ ( Shojania & Dixon-Woods 2013 : 529) – proponents of the new patient safety movement started to experience disquiet about the ‘system approach’ and seriously questioned whether the right balance had been achieved between ‘system failure’ and ‘personal accountability’ ( Goldman 2006 ; Levitt 2014 ; O’Connor et al 2011 ; Shojania & Dixon-Woods 2013 ; Wachter & Pronovost 2009 ; Walton 2004 ; Wong & Ginsburg 2017 ). While recognising that every safe industry has its ‘transgressors’ ( Wachter & Pronovost 2009 : 1402), the growing tradition of what some described as the ‘lax enforcement of safety rules’ was perceived to have led many clinicians to ignore them ( Wachter & Pronovost 2009 : 1403). Recognising the need for the early identification, management and, where able, the remediation of ‘problem clinicians’, the imperative to reinstate individual accountability as a cornerstone of patient safety thus gained traction.


An important step towards identifying problem clinicians and reinstating personal accountability is the mechanism of internal reporting. Although research has suggested that clinicians cannot be relied upon to report ‘poor conduct or performance’, internal reporting nonetheless stands as an important mechanism for weeding out ‘bad apples’ ( Shojania & Dixon-Woods 2013 : 529). To be effective, however, other more robust mechanisms for improving an organisation’s patient safety culture need also to be in place. Drawing on Walton’s (2004) clarion call for finding the ‘right’ balance between individual accountability and patient safety, the following three processes warrant consideration, notably that:






  • professionalism in the workplace becomes part of the safety agenda



  • methods for managing and responding to intentional violations by individuals in the workplace are devised and operationalised (this should include ‘building in sanctions for routine violations and rewards for workplace compliance’)



  • clinicians are taught not only about the inevitability of mistakes but also how best to respond to them.

(Adapted from Walton 2004 : 164)


Attitudes and experiences of reporting patient safety concerns


As noted above, reporting patient safety concerns is the right thing to do. This is because hiding of patient safety concerns can have serious adverse consequences at a moral and a practical level. For instance, the hiding of clinical errors, substandard or unethical practice may result in otherwise preventable harm to patients on account of the relevant parties being deprived of information that is otherwise necessary to effect the prevention or mitigation of possible adverse outcomes. This, in turn, risks undermining the fiduciary / trust relationship between stakeholders both within and outside of a given agency and ipso facto its otherwise good standing and reputation in the community. Despite these risks, research has shown that clinicians (including nurses) have mixed attitudes to and experiences of fulfilling this professional obligation to report, with instances of adverse events, substandard or inadequate care, unethical or ‘poor’ behaviours by staff towards patients and co-workers, and health-impaired practice tending to be substantially under-reported ( Bismark et al 2014 , 2016 ; Firth-Cozens et al 2003 ; Malmedal et al 2009 ; Monroe & Kenaga 2010 ; Roberts 2017 ; Weenink et al 2014 ). Despite the radical shift in attitude and organisational culture that has occurred in recent years, notably from a ‘name, blame and shame’ culture to a ‘just culture’ ( Dekker 2012 ), research suggests that practitioners remain reluctant to make notification even when legally mandated to do so ( Bismark et al 2014 , 2016 ; Spittal et al 2016 ). There is a particular reluctance to report disruptive behaviour (unprofessional conduct) even though it is known that such behaviour can adversely affect patient safety ( Bismark et al 2016 ; Wong & Ginsburg 2017 ). In their analysis of the outcomes of notifications to AHPRA, for example, Spittal and colleagues (2016 : 9) found that notifications concerning the health, conduct or performance of a health practitioner were ‘a rare event’.


Robust comparative research on this subject is not available (mostly because of researchers confusing or conflating ‘regular’ internal incident reporting with ‘irregular’ whistleblowing events, their using vignettes and hypothetical case scenarios instead of interviewing or surveying nurses who actually made reports , and various methodological weaknesses – including small samples, poor response rates, and nurses choosing not to participate). Even so, there are sufficient studies to suggest that, where nurses feel certain and confident, and that their concerns are well founded (i.e. they have ‘proof’), they tend to have a strong attitude towards reporting poor care and behaviour ( Firth-Cozens et al 2003 ; King & Scudder 2013 ; Moumtzoglou 2010 ; Weenink et al 2014 ).


Research also suggests that most nurses who have actually made internal reports of substandard care did not have a negative experience. A study by Firth-Cozens and colleagues (2003 : 334), for example, found that most of the nurses surveyed ( n = 342) did not have a negative experience and, furthermore, that ‘almost all would report again in such circumstances’. Nonetheless, a minority ( n = 19, or 27%) of the nurse respondents reported experiencing stress and, in one case, victimisation by a ward manager (e.g. ‘not being given holidays or off duty when requested’) ( Firth-Cozens et al 2003 : 333). Several participants in that study also reported ‘disillusionment’ on grounds of ‘no action being taken’ in response to their reports, or, in some instances, being made the subject of counter-accusations.


A study by King and Scudder (2013 : 626) meanwhile has found that, when faced with reporting a colleague, nurses experience a struggle between maintaining ‘their own ethical standards and personal survival within the social system of their nursing environment’. Of the 238 registered nurses who participated in this study, 30% ( n = 71) reported having directly observed a wrongdoing and, of these, 90% ( n = 64) reported the incident. Concurring with the study by Firth-Cozens and colleagues (2003) , the King and Scudder study also found that only a minority ( n = 67, or 28%) of respondents reported a negative experience upon reporting a wrongdoing. Significantly, the main reasons given for making the reports were a perceived threat to the wellbeing of patients as well as a ‘strong sense of personal and professional ethics’ ( King & Scudder 2013 : 633).


The moral motivations behind peer-reporting by registered nurses were similarly identified in an earlier study by King. In a study of 372 nurses, King (2001 : 10) found that the nurses’ decision to report a peer was strongly influenced by their perceptions of intentionality of the wrongdoing, the severity of the wrongdoing and the blatancy of the wrongdoing – especially in the case of unethical conduct. Decisions not to report, in contrast, were primarily influenced by the nurses’ perception that the wrongdoing was not intentional; in these instances, rather than report the wrongdoing, the nurses tended to confront the wrongdoer directly. Other factors previously identified by King and colleagues have been the individual characteristics of the observer (e.g. personal ethics), situational factors (e.g. severity of the wrongdoing) and organisational issues (e.g. compliance or non-compliance with policy and procedure) ( King 1997 ; King & Hermodson 2000 ). Research by King and colleagues has also found that nurses who are ‘newcomers’ to an organisation, who are unfamiliar with the correct reporting procedures, who perceive themselves as powerless to bring about effective change, who fear reprimand and / or who perceive the climate of their employer organisation as being retaliatory are less likely to report a wrongdoing than are others ( King & Hermodson 2000 : 320).


Another relatively unacknowledged factor influencing whether nurses will report a wrongdoing is ‘interpersonal closeness’ – including friendships and other close interpersonal relationships with colleagues ( King 1997 ). In an early study by King, involving the survey of 261 registered nurses employed at an acute care non-profit hospital in a large metropolitan city, respondents indicated that they were less likely to report a close friend’s wrongdoing to an immediate supervisor, but would report the conduct to an administrator ( King 1997 ). Reasons for this were speculated to be twofold: ‘First […] reporting a close friend would likely foster the perception of disloyalty or betrayal, resulting in the loss of a friend. Second, employees within the organisation may perceive the betrayal as grounds to ostracize the person’ ( King 1997 : 430).


Although limited, research on reporting a health-impaired (as opposed to an errant or unethical) practitioner has yielded mixed results. Although nurses have an obligation to report peer substance abuse and other impairments to a nurse regulating authority, many are reluctant to do so ( Monroe & Kenaga 2010 ). Even so, a small US study involving 120 nurses found that the psychologically validated estimate of the odds of a nurse reporting a co-worker for substance use while at work were 5 to 1 (92.5% / 20.4%) ( Beckstead 2005 : 329). Despite a suggested reluctance to report, one recent US study by Cook (2013) has found that, of the 119 nurses surveyed, nearly all indicated that they would report a nurse colleague who was impaired by alcohol (99%), illegal drugs (99%) or prescription medicine (98%). Significantly, respondents also indicated that they were ‘willing to trust their recovering colleagues’ and strongly agreed that nurses in recovery ‘should be allowed to return to the healthcare profession’ ( Cook 2013 : 21; see also Miller et al 2015 ). This study is limited, however, as the survey had as its focus what the nurse participants believed they would do (e.g. ‘I would report a nurse …’) rather than what they had actually done in a practice context (e.g. ‘I reported a nurse …’).


In a small study by Monroe and Kenaga (2010) it was found that nurses were also generally reluctant to self-report their own health-impaired practice. The main reason for this was fear of reprisal (including deregistration and termination of employment) even though the nurses in question were in need of help and despite the fact that nurse regulating agencies having in place remediation or ‘alternative discipline’ programs ( Monroe & Kenaga 2010 ).


In Australian vernacular, reporting a colleague could be construed as being tantamount to ‘dobbing in a mate’ – something that, culturally, is generally regarded as being outside the boundaries of decency. In cases of ‘mateship’, spouse by spouse, and other intimates making notifications, irrespective of the mandatory reporting requirements and the moral justifications that might underpin an obligation to report, making a notification might nonetheless be deemed by notifiers to be intrusive of the private sphere of their personal relationships and, all things being equal, insufficient to override personal loyalties and the personal relationship ethics underpinning these loyalties. What moral weight ought to be given to the ‘loyalties’ in question, however, is open to question.


Loyalty has been equated with ‘dutifulness’. As Ladd (1967 : 98) has classically argued:



Loyalty includes fidelity to carrying out one’s duties to the person or group of persons who are the object of loyalty; but it embraces more than that, for it implies an attitude, perhaps an affection or sentiment, towards such persons. Furthermore, at the very least, loyalty requires the complete subordination of one’s own private interests in favour of giving what is due, and perhaps also the exclusion of other legitimate interests. (quoted in Ewin 1992 : 404–5)


Notwithstanding judgments about what objects (persons, groups, causes) are worthy of a person’s loyalty, as Ewin (1992 : 411) points out, one of the things about loyalty is that ‘it appears to involve as part of itself a setting aside of good judgment, at least to some extent’. What is at issue in professional contexts, however, is the demand to invoke good judgment (not set it aside) and to complement this with sound moral justification (discussed in Chapter 3 of this book). It is also fundamentally about ‘doing the right thing’ and somehow finding the ‘right balance’ between competing loyalties where these are in play.


Whether loyalties to a particular person, group or cause are deemed ‘good’ or ‘bad’ it is understandable that a nurse might feel compelled to ‘set aside good judgment’ and to exclude ‘other legitimate interests’ when faced with the obligation to mandatorily report a wrongdoing or an instance of health-impaired practice by a spouse or a ‘mate’. The failure to take into account the ‘split loyalties’ that a nurse in such a situation might have is a significant oversight in legislative provisions and guidelines on mandatory reporting and one that stands in need of being redressed.


Interestingly, the issue of resolving the possible tensions that might exist between personal loyalties and ‘doing what is right’ is not new, with recorded debate related to the subject dating back to the Ancient Greek Socratic dialogues, notably Plato’s Euthyphro (circa 399 bc ). In this dialogue (Book IV, Sections 4–5), Euthyphro reveals that he (Euthyphro) has brought a murder charge against his own father for allowing one of his workers to die ( Plato 1886 edn: 7–9; see also 2003 edn: 11–12). The worker had, in a drunken rage, killed a slave belonging to one of the family’s estates. Not sure what to do, Euthyphro’s father bound and gagged the worker and left him in a ditch while he sent a messenger to seek advice from a seer in Athens on what he should do. While waiting for the messenger to return, Euthyphro’s father totally neglected the worker ‘thinking that he was a murderer, and that it would be no great matter, even if he were to die’ (IV-4) ( Plato 1886 edn: 7). It was under the conditions of being bound, starving and exposed to the cold that the worker died.


Euthyphro’s family was astonished and indignant that he sought to prosecute his father for murder, an act which they regarded as ‘unholy’ (‘It is unholy for a son to prosecute his father for murder’) (IV-4) (p 8). Against Euthyphro’s stance, the family argued that the father ‘did not kill the man at all’ and that ‘even if he had killed him over and over again, the man himself was a murderer’ (IV-4) (p 7). Underscoring this indignation was that, in Athenian law, only relatives were permitted to sue for murder, thus Euthyphro’s actions were ‘unnecessary’. Euthyphro was, however, unmoved by these assertions, arguing that ‘holiness means prosecuting the wrong doer […] whether he be your father or your mother or whoever he be’ and that ‘unholiness means not prosecuting him’ (V-5) (p 9). Euthyphro further defends his decision to bring the murder charges against his father, arguing (IV-4) (p 7):



What difference does it make whether the murdered man was a relative or a stranger? The only question that you may ask is, did the slayer slay justly or not? If justly, you must let him alone; if unjustly, you must indict him for murder, even though he share your hearth and sit at your table. The pollution is the same, if you associate with such a man, knowing what he has done, without purifying yourself, and him too, by bringing him to justice.


Euthyphro brought the charges ostensibly on grounds that it was the ‘pious’ (supremely right and virtuous) thing to do since, regardless of the fact that the offender was his father, to kill someone without justification deserves to be punished. Socrates, however, is not taken by this argument and questions how much justification is ‘enough’ to distinguish pious from impious actions.


Although the Euthyphro is primarily concerned with attempts to define piety and holiness, it nonetheless provides a useful frame for examining the question under consideration here, namely: ‘When, if ever, is it “right” for a spouse, partner, close friend, etc. to report a wrongdoing to a regulating authority?’ and ‘What is to count as a reasonable justification for making a decision either for or against making a notification?’ A Socratic irony also emerges in this instance, notably: ‘Is reporting an instance of wrongdoing by an intimate “right” because it is required by law, or does the law require the reporting of a wrongdoing by an intimate because it is right?’


To date, the attitudes and experiences of nurses reporting patient safety concerns and the related ethical issues they have faced in fulfilling their obligations in relation to both mandatory and voluntary reporting requirements is an area that is under-investigated. Meanwhile, nurses have a responsibility to check the mandatory reporting requirements (and possible exceptions) of the jurisdictions in which they work and also to be familiar with their national codes of conduct and ethics relating to these requirements. Ultimately, however, the decision to report a wrongdoing must be based not only on a blind obedience to law, but also on sound professional judgment and moral justification.




Legal requirements to report wrongdoing


As noted in the previous chapter, reporting sources of risk and actual incidents resulting in patient harm is widely recognised as being the ‘cornerstone of safe practice and, within a hospital or other health care organisation, a measure of progress towards achieving a safety culture’ ( World Health Organization (WHO) 2005b : 7). Reporting, however, is not restricted to notification solely of clinical incidents or adverse events. It can also include notifications of ‘disruptive behaviour’ defined as ‘any behavior that can undermine a culture of safety’– for example, ‘any inappropriate behavior, confrontation, or conflict ranging from verbal abuse to physical or sexual harassment that can potentially negatively impact patient care’ ( Rosenstein 2017 : 62).


In Australian jurisdictions since 1 July 2010, registered health practitioners (including nurses), employers of practitioners, and education providers have been mandated under the Australian Health Practitioner Regulation National Law Act (2009) (referred to hereon in as the ‘National Law’) to report to the Australian Health Practitioner Regulation Agency (AHPRA) any ‘notifiable conduct’ or ‘notifiable impairment’ as defined in Section 140 of the National Law ( AHPRA 2014 ). For the purposes of the Act, ‘ notifiable conduct ’ is taken to mean any conduct whereby the health practitioner has: practised while intoxicated by alcohol or drugs, engaged in sexual misconduct in connection with the practice of their profession, practised while suffering from an impairment that places the public at risk of substantial harm, or practised the profession in a way that constitutes a significant departure from accepted professional standards (National Law, Section 140). The relevant section of the Act is reproduced in Box 12.1 .



Box 12.1

( Health Practitioner Regulation National Law Act 2009 , Section 140, p 100, current as at 9 June 2018)

Definition of ‘notifiable conduct’


Division 2 Mandatory Notifications


140. Definition of notifiable conduct


In this Division –


notifiable conduct , in relation to a registered health practitioner, means the practitioner has –



  • (a)

    practised the practitioner’s profession while intoxicated by alcohol or drugs; or


  • (b)

    engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or


  • (c)

    placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or


  • (d)

    placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.




‘Impairment’, in turn, is taken to mean conduct in relation to a person (i.e. practitioner or student) and where the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect their capacity to practise their profession, or, in the case of students, their capacity to undertake clinical training as part of the approved program of study, or arranged by an education provider (National Law, Schedule 5). The relevant section of the Act is reproduced in Box 12.2 .



Box 12.2

( Health Practitioner Regulation National Law Act 2009 , Schedule 5, Part 1 Preliminary, pp 13–14, current as at 9 June 2018)

Definition of ‘impairment’


5. Definitions


In this Law –


impairment , in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –



  • (a)

    for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession; or


  • (b)

    for a student, the student’s capacity to undertake clinical training –



    • (i)

      as part of the approved program of study in which the student is enrolled; or


    • (ii)

      arranged by an education provider.





In addition, the National Law contains provisions for making voluntary notifications ‘for behaviour that presents a risk but does not meet the threshold for notifiable conduct’ ( AHPRA 2014 : 5). Under these provisions, a voluntary notification about a registered health practitioner may be made to AHPRA on a number of grounds, including: where the practitioner’s professional conduct, knowledge and skill are, or may be, of a lesser standard than that which might reasonably be expected by the public or the practitioner’s professional peers; the practitioner is not, or may not be, a ‘fit and proper person’ to hold registration in the health profession; the practitioner has contravened the Law, or a condition of practice given by the practitioner’s registration board; or the practitioner has improperly obtained registration by providing false or misleading information. The relevant section of the Act is reproduced in Box 12.3 .



Box 12.3

( Health Practitioner Regulation National Law Act 2009 , Schedule, Part 8 Health, Performance and conduct, pp 103–104, current as at 9 June 2018)

Grounds for voluntary notification


Division 3 Voluntary Notifications


144. Grounds for voluntary notification



  • (1)

    A voluntary notification about a registered health practitioner may be made to the National Agency on any of the following grounds –



    • (a)

      that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;


    • (b)

      that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;


    • (c)

      that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;


    • (d)

      that the practitioner has, or may have, an impairment;


    • (e)

      that the practitioner has, or may have, contravened this Law;


    • (f)

      that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board;


    • (g)

      that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.





Under these provisions, a voluntary notification about a student can also be made to AHPRA on the grounds that the student has been charged with, found guilty and convicted of an offence that is punishable by 12 months imprisonment or more; has, or may have, an impairment; or has contravened a condition of the student’s registration or an undertaking given by the student to a National Board. The relevant section of the Act is reproduced in Box 12.4 .



Box 12.4

( Health Practitioner Regulation National Law Act 2009 , Section 144, p 173, current as at 9 June 2018)

Voluntary notifications about students


Division 3 Voluntary Notifications


144. Grounds for voluntary notification



  • (2)

    A voluntary notification about a student may be made to the National Agency on the grounds that –



    • (a)

      the student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or


    • (b)

      the student has, or may have, an impairment; or


    • (c)

      that the student has, or may have, contravened a condition of the student’s registration or an undertaking given by the student to a National Board.





It is important to note that the threshold for making a notification to AHPRA is high and must be based firmly on a ‘reasonable belief’ (as opposed to a mere suspicion) that the behaviour in question meets the criteria for ‘notifiable conduct’ or ‘notifiable impairment’. To assist those contemplating making a notification, the Australian Health Practitioners Regulation Agency (AHPRA) has devised the following principles:





  • 1.

    A belief is a state of mind.


  • 2.

    A reasonable belief is a belief based on reasonable grounds.


  • 3.

    A belief is based on reasonable grounds when,



    • (i)

      all known considerations relevant to the formation of a belief are taken into account including matters of opinion and


    • (ii)

      those known considerations are objectively assessed.



  • 4.

    A just and fair judgement that reasonable grounds exist in support of a belief can be made when all known considerations are taken into account and objectively assessed.

( AHPRA 2012 : 6)


Further clarifying the nature of what constitutes a ‘reasonable belief’, AHPRA explains:



A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gives rise to the notification, or, in the case of an employer, it could also involve a report from a reliable source or sources. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief. ( AHPRA 2014 : 6)


Forming a reasonable belief and deciding to act on it, in turn, requires both professional judgment (discussed in Chapter 11 ) and moral justification (discussed in Chapter 3 ). To help guide the decision-making processes, the AHPRA (2014) published a set of guidelines pertinent to the kinds of notifications that health practitioners (including nurses) are required to make. These include examples of decision guides for significant departure from accepted professional standards and for impairment in relation to practitioners and students respectively ( www.ahpra.gov.au/notifications/make-a-complaint/mandatory-notifications.aspx ).


In New Zealand, under the Health Practitioners Competence Assurance Act (2003) similar provisions exists requiring health practitioners to make notifications of practice that ‘may pose a risk of harm to the public by practising below the required standard of competence’ and / or when a practitioner has an ‘inability to perform required functions due to [a] mental or physical condition’ (Section 3).




Professional requirements to report wrongdoing


Some nurses might worry that making a notification, even though a legal requirement, is a breach of professional ethics. This might be especially so in cases where making a notification requires breaching privacy and confidentiality (discussed in Chapter 7 ), or violating the nurse–patient relationship (e.g. in instances where the nurse being reported is also a patient). Nurses might also experience a profound quandary where the legal mandate to make a notification involves and would violate an important interpersonal relationship (e.g. in instances where the nurse needing to be reported is a spouse or intimate partner, a relative, a close friend and / or a trusted and highly valued colleague).


As mandated reporting requirements are fundamentally based on the moral imperative to prevent or mitigate harm to the public, making either a mandatory or a voluntary notification is not generally considered to be a breach of professional ethics or a departure from accepted ethical standards of conduct ( AHPRA 2014 : 5). Moreover, as nursing codes of conduct in Australia, New Zealand and elsewhere make clear, reporting to an appropriate authority behaviours such as those described in the Australian National Law ( AHPRA 2014 ) is not only a legal obligation, but, in clearly defined instances, also a moral one. Consider the following.


The codified moral obligation of nurses to report to an ‘appropriate authority’ any conduct or behaviour that places others at risk of serious harm is well established. For example, The ICN c ode of ethics for nurses ( ICN 2012a ) states (Element 4: Nurses and co-workers, p 3):



The nurse takes appropriate action to safeguard individuals when their care is endangered by a co-worker or any other person.


Other national nursing codes and standards take a similar stance, with appropriate action described as including but not limited to questioning, reporting and intervening to redress an instance of questionable behaviour.


The codified obligation to ‘take appropriate action’ is not unique to the cultural context of Australia. The Nursing Council of New Zealand (NCNZ 2012a ), the UK Nursing and Midwifery Council (NMC 2015 ), the Canadian Nurses Association (2017) and the American Nurses Association (ANA 2015) have each articulated similar requirements in their respective codes of ethics and conduct.


Interestingly, most codes and guidelines stop short of addressing how a nurse should respond in instances where he / she has an intimate personal relationship with the nurse needing to be reported – for instance, the notifiable or impaired conduct at issue is being exhibited by a spouse or intimate partner, an immediate relative, a close friend, and / or a trusted and highly valued colleague with whom the nurse is on a close collaborating professional relationship (e.g. co-researcher). Not only is the nurse faced with a conflict of obligation in such situations, but he / she also risks significantly damaging and possibly even destroying irrevocably the personal relationship(s) in question. This is so even if an intended or actual notification is well intended, and made in good faith and without malice, and in the hope of, say, getting the partner, relative or good friend assistance to ‘get back on track’ professionally.


In the USA, some states exempt the reporting of ‘spouses by spouses’ and nurses who are in a professional–client relationship ( Buppert & Klein 2008 : 6). Most also limit the reporting requirement to ‘directly observed incidents’ – that is, not ‘confiding’ disclosures made to an intimate partner or spouse ( Buppert & Klein 2008 : 6). Despite the obvious conflict of interest involved in partner reports, the Australian National Law and related guidelines are, however, silent on this matter. Controversially, exemptions are not made for treating practitioners (e.g. a medical practitioner, psychologist, dentist, nurse or chiropractor) who are treating other registered practitioners – although, at the time of writing, this was under review. In a discussion paper ‘Mandatory reporting under the Health Practitioner Regulation National Law’, the Australian Health Ministers Advisory Council (AHMAC) has proposed a change to the National Law to allow an exemption for treating practitioners – clarifying, however, that if the amendment goes ahead, ‘the employers and other registered health practitioners who are not treating practitioners, such as colleagues, would continue to be under an obligation to report notifiable conduct’ ( AHMAC 2017 : 4).


The possibility of making spouse-by-spouse / friend-by-friend notifications conditional or voluntary seems not to have been considered. For example, decisions to make notifications could be made using a modified version of what Hickson and colleagues (2007) have described in another context as a ‘complementary approach to professionalism’. This approach involves the following steps:



informal conversations for single incidents, nonpunitive ‘awareness’ interventions when data reveal patterns, leader-developed action plans if patterns persist, and imposition of disciplinary processes if the plans fail. ( Hickson et al 2007 : 1040)


In the case of spouse-by-spouse / friend-by-friend reporting, this could be made conditional on a reporting nurse first going directly to the wrongdoer / health-impaired practitioner to have an informal conversation (e.g. ‘I have observed you do X, can we talk about this and the option of you making a self-report to the Board to get help’; or ‘I have observed you do X, if you do this again I will have no option but to make a notification’). This would also have the effect of being a ‘non-punitive awareness intervention’ (what might be termed colloquially as a ‘wake-up call’ for the wrongdoer / health-impaired practitioner to acknowledge ‘they have a problem’ and to take personal responsibility for their own actions).




‘No blame’ culture and patient safety


Some nurses might also worry that reporting errant practitioners to an appropriate authority goes against the principles of human error management, which have been widely adopted and operationalised in health services locally and globally. There is some foundation to this concern, although, in recent years, the basis upon which such concerns might have rested has since been called into question for the reasons given below.


In 2002, in response to growing international concerns about the alarming incidence of preventable adverse events in health care, patient safety was, for the first time, situated as ‘a worldwide endeavour, seeking to bring benefits to patients in countries rich and poor, developed and developing, in all corners of the globe’ ( Donaldson 2002 : 112). This endeavour was informed by the influential publication of the US Institute of Medicine’s To err is human ( Kohn et al 2000 ). In the intervening years, health services around the world have embraced a ‘no blame’ model in their approach to managing human error and attempts to reduce the incidence and impact of preventable adverse events in their organisations. This model has been adopted in good faith and in response to a well-argued need to shift away from what had traditionally been a punitive hospital culture of ‘naming, blaming and shaming’ individuals who, due to their human fallibility (including ‘forgetfulness, inattention or moral weaknesses’) made an honest mistake; this approach has been termed the ‘person approach’ by safety scientists ( Reason 2000 ). In its place, an alternative approach was proposed – the ‘system approach’, which, unlike the person approach, ‘concentrates on the conditions under which individuals work and tries to build defences to avert errors or mitigate their effects’ ( Reason 2000 : 768). Whereas the person approach singled out individuals to blame when things went wrong, the system approach focused on the weaknesses and failures of ‘the system’ (not individuals), which enabled what James Reason (2000 : 769) famously called a ‘trajectory of accident opportunity’ that brings hazards into ‘damaging contact with victims’. In this approach, when things go wrong, the question to ask is not ‘ Who messed up?’ but ‘What contributed to the system failing?’ As Reason argues, if the same system weaknesses and conditions persist (e.g. poor storage and labelling of drugs), the same errors (e.g. medication errors) will continue to be made regardless of who it is at the interface of the patient–provider relationship.


A key objective in encouraging the organisational cultural change from a ‘person approach’ to a ‘system approach’ was to encourage errant practitioners to report their mistakes voluntarily and to increase voluntary incident reporting generally. It was held that, once reported, a careful analysis of the adverse events in question could be made, and staff and their employer organisation afforded an important opportunity to learn from their mistakes and put in place processes that would help prevent their reoccurrence ( Reason 2000 ). Safe reporting, in this instance, was thus seen to be not only of practical value, but also quintessential to achieving patient safety outcomes because, as Bagian and colleagues (2001 : 524) put it: ‘You can’t fix what you don’t know about’.


Although initially resulting in a productive cultural change in health care organisations, the ‘no blame’ approach had an unintended consequence: it saw professional accountability for poor behaviour shift away from individual practitioners to ‘the system’. The poor behaviours in question included practitioners’: intentional and routine rule violations (i.e. knowingly disregarding rules or procedures, including wilfully ‘cutting corners’ and the ‘normalisation of deviance’ – for example, routine failures in everyday practice to perform hand hygiene ( Goldman 2006 ), or failures by staff to don personal protective equipment to prevent the transmission of infectious agents ( Krein et al 2018 )), reckless conduct (involving a ‘conscious disregard of substantial and unjustifiable risk’) and negligence (failing to exercise due care) ( Banja 2010 ; Marx 2001 ). Concerned about the risks posed to patient safety by ‘repeat offenders’ and ‘bad apples’ – defined as ‘individuals who repeatedly display incompetent or grossly unprofessional behaviours’ ( Shojania & Dixon-Woods 2013 : 529) – proponents of the new patient safety movement started to experience disquiet about the ‘system approach’ and seriously questioned whether the right balance had been achieved between ‘system failure’ and ‘personal accountability’ ( Goldman 2006 ; Levitt 2014 ; O’Connor et al 2011 ; Shojania & Dixon-Woods 2013 ; Wachter & Pronovost 2009 ; Walton 2004 ; Wong & Ginsburg 2017 ). While recognising that every safe industry has its ‘transgressors’ ( Wachter & Pronovost 2009 : 1402), the growing tradition of what some described as the ‘lax enforcement of safety rules’ was perceived to have led many clinicians to ignore them ( Wachter & Pronovost 2009 : 1403). Recognising the need for the early identification, management and, where able, the remediation of ‘problem clinicians’, the imperative to reinstate individual accountability as a cornerstone of patient safety thus gained traction.


An important step towards identifying problem clinicians and reinstating personal accountability is the mechanism of internal reporting. Although research has suggested that clinicians cannot be relied upon to report ‘poor conduct or performance’, internal reporting nonetheless stands as an important mechanism for weeding out ‘bad apples’ ( Shojania & Dixon-Woods 2013 : 529). To be effective, however, other more robust mechanisms for improving an organisation’s patient safety culture need also to be in place. Drawing on Walton’s (2004) clarion call for finding the ‘right’ balance between individual accountability and patient safety, the following three processes warrant consideration, notably that:






  • professionalism in the workplace becomes part of the safety agenda



  • methods for managing and responding to intentional violations by individuals in the workplace are devised and operationalised (this should include ‘building in sanctions for routine violations and rewards for workplace compliance’)



  • clinicians are taught not only about the inevitability of mistakes but also how best to respond to them.

(Adapted from Walton 2004 : 164)




Attitudes and experiences of reporting patient safety concerns


As noted above, reporting patient safety concerns is the right thing to do. This is because hiding of patient safety concerns can have serious adverse consequences at a moral and a practical level. For instance, the hiding of clinical errors, substandard or unethical practice may result in otherwise preventable harm to patients on account of the relevant parties being deprived of information that is otherwise necessary to effect the prevention or mitigation of possible adverse outcomes. This, in turn, risks undermining the fiduciary / trust relationship between stakeholders both within and outside of a given agency and ipso facto its otherwise good standing and reputation in the community. Despite these risks, research has shown that clinicians (including nurses) have mixed attitudes to and experiences of fulfilling this professional obligation to report, with instances of adverse events, substandard or inadequate care, unethical or ‘poor’ behaviours by staff towards patients and co-workers, and health-impaired practice tending to be substantially under-reported ( Bismark et al 2014 , 2016 ; Firth-Cozens et al 2003 ; Malmedal et al 2009 ; Monroe & Kenaga 2010 ; Roberts 2017 ; Weenink et al 2014 ). Despite the radical shift in attitude and organisational culture that has occurred in recent years, notably from a ‘name, blame and shame’ culture to a ‘just culture’ ( Dekker 2012 ), research suggests that practitioners remain reluctant to make notification even when legally mandated to do so ( Bismark et al 2014 , 2016 ; Spittal et al 2016 ). There is a particular reluctance to report disruptive behaviour (unprofessional conduct) even though it is known that such behaviour can adversely affect patient safety ( Bismark et al 2016 ; Wong & Ginsburg 2017 ). In their analysis of the outcomes of notifications to AHPRA, for example, Spittal and colleagues (2016 : 9) found that notifications concerning the health, conduct or performance of a health practitioner were ‘a rare event’.


Robust comparative research on this subject is not available (mostly because of researchers confusing or conflating ‘regular’ internal incident reporting with ‘irregular’ whistleblowing events, their using vignettes and hypothetical case scenarios instead of interviewing or surveying nurses who actually made reports , and various methodological weaknesses – including small samples, poor response rates, and nurses choosing not to participate). Even so, there are sufficient studies to suggest that, where nurses feel certain and confident, and that their concerns are well founded (i.e. they have ‘proof’), they tend to have a strong attitude towards reporting poor care and behaviour ( Firth-Cozens et al 2003 ; King & Scudder 2013 ; Moumtzoglou 2010 ; Weenink et al 2014 ).


Research also suggests that most nurses who have actually made internal reports of substandard care did not have a negative experience. A study by Firth-Cozens and colleagues (2003 : 334), for example, found that most of the nurses surveyed ( n = 342) did not have a negative experience and, furthermore, that ‘almost all would report again in such circumstances’. Nonetheless, a minority ( n = 19, or 27%) of the nurse respondents reported experiencing stress and, in one case, victimisation by a ward manager (e.g. ‘not being given holidays or off duty when requested’) ( Firth-Cozens et al 2003 : 333). Several participants in that study also reported ‘disillusionment’ on grounds of ‘no action being taken’ in response to their reports, or, in some instances, being made the subject of counter-accusations.


A study by King and Scudder (2013 : 626) meanwhile has found that, when faced with reporting a colleague, nurses experience a struggle between maintaining ‘their own ethical standards and personal survival within the social system of their nursing environment’. Of the 238 registered nurses who participated in this study, 30% ( n = 71) reported having directly observed a wrongdoing and, of these, 90% ( n = 64) reported the incident. Concurring with the study by Firth-Cozens and colleagues (2003) , the King and Scudder study also found that only a minority ( n = 67, or 28%) of respondents reported a negative experience upon reporting a wrongdoing. Significantly, the main reasons given for making the reports were a perceived threat to the wellbeing of patients as well as a ‘strong sense of personal and professional ethics’ ( King & Scudder 2013 : 633).


The moral motivations behind peer-reporting by registered nurses were similarly identified in an earlier study by King. In a study of 372 nurses, King (2001 : 10) found that the nurses’ decision to report a peer was strongly influenced by their perceptions of intentionality of the wrongdoing, the severity of the wrongdoing and the blatancy of the wrongdoing – especially in the case of unethical conduct. Decisions not to report, in contrast, were primarily influenced by the nurses’ perception that the wrongdoing was not intentional; in these instances, rather than report the wrongdoing, the nurses tended to confront the wrongdoer directly. Other factors previously identified by King and colleagues have been the individual characteristics of the observer (e.g. personal ethics), situational factors (e.g. severity of the wrongdoing) and organisational issues (e.g. compliance or non-compliance with policy and procedure) ( King 1997 ; King & Hermodson 2000 ). Research by King and colleagues has also found that nurses who are ‘newcomers’ to an organisation, who are unfamiliar with the correct reporting procedures, who perceive themselves as powerless to bring about effective change, who fear reprimand and / or who perceive the climate of their employer organisation as being retaliatory are less likely to report a wrongdoing than are others ( King & Hermodson 2000 : 320).


Another relatively unacknowledged factor influencing whether nurses will report a wrongdoing is ‘interpersonal closeness’ – including friendships and other close interpersonal relationships with colleagues ( King 1997 ). In an early study by King, involving the survey of 261 registered nurses employed at an acute care non-profit hospital in a large metropolitan city, respondents indicated that they were less likely to report a close friend’s wrongdoing to an immediate supervisor, but would report the conduct to an administrator ( King 1997 ). Reasons for this were speculated to be twofold: ‘First […] reporting a close friend would likely foster the perception of disloyalty or betrayal, resulting in the loss of a friend. Second, employees within the organisation may perceive the betrayal as grounds to ostracize the person’ ( King 1997 : 430).


Although limited, research on reporting a health-impaired (as opposed to an errant or unethical) practitioner has yielded mixed results. Although nurses have an obligation to report peer substance abuse and other impairments to a nurse regulating authority, many are reluctant to do so ( Monroe & Kenaga 2010 ). Even so, a small US study involving 120 nurses found that the psychologically validated estimate of the odds of a nurse reporting a co-worker for substance use while at work were 5 to 1 (92.5% / 20.4%) ( Beckstead 2005 : 329). Despite a suggested reluctance to report, one recent US study by Cook (2013) has found that, of the 119 nurses surveyed, nearly all indicated that they would report a nurse colleague who was impaired by alcohol (99%), illegal drugs (99%) or prescription medicine (98%). Significantly, respondents also indicated that they were ‘willing to trust their recovering colleagues’ and strongly agreed that nurses in recovery ‘should be allowed to return to the healthcare profession’ ( Cook 2013 : 21; see also Miller et al 2015 ). This study is limited, however, as the survey had as its focus what the nurse participants believed they would do (e.g. ‘I would report a nurse …’) rather than what they had actually done in a practice context (e.g. ‘I reported a nurse …’).


In a small study by Monroe and Kenaga (2010) it was found that nurses were also generally reluctant to self-report their own health-impaired practice. The main reason for this was fear of reprisal (including deregistration and termination of employment) even though the nurses in question were in need of help and despite the fact that nurse regulating agencies having in place remediation or ‘alternative discipline’ programs ( Monroe & Kenaga 2010 ).


In Australian vernacular, reporting a colleague could be construed as being tantamount to ‘dobbing in a mate’ – something that, culturally, is generally regarded as being outside the boundaries of decency. In cases of ‘mateship’, spouse by spouse, and other intimates making notifications, irrespective of the mandatory reporting requirements and the moral justifications that might underpin an obligation to report, making a notification might nonetheless be deemed by notifiers to be intrusive of the private sphere of their personal relationships and, all things being equal, insufficient to override personal loyalties and the personal relationship ethics underpinning these loyalties. What moral weight ought to be given to the ‘loyalties’ in question, however, is open to question.


Loyalty has been equated with ‘dutifulness’. As Ladd (1967 : 98) has classically argued:



Loyalty includes fidelity to carrying out one’s duties to the person or group of persons who are the object of loyalty; but it embraces more than that, for it implies an attitude, perhaps an affection or sentiment, towards such persons. Furthermore, at the very least, loyalty requires the complete subordination of one’s own private interests in favour of giving what is due, and perhaps also the exclusion of other legitimate interests. (quoted in Ewin 1992 : 404–5)


Notwithstanding judgments about what objects (persons, groups, causes) are worthy of a person’s loyalty, as Ewin (1992 : 411) points out, one of the things about loyalty is that ‘it appears to involve as part of itself a setting aside of good judgment, at least to some extent’. What is at issue in professional contexts, however, is the demand to invoke good judgment (not set it aside) and to complement this with sound moral justification (discussed in Chapter 3 of this book). It is also fundamentally about ‘doing the right thing’ and somehow finding the ‘right balance’ between competing loyalties where these are in play.


Whether loyalties to a particular person, group or cause are deemed ‘good’ or ‘bad’ it is understandable that a nurse might feel compelled to ‘set aside good judgment’ and to exclude ‘other legitimate interests’ when faced with the obligation to mandatorily report a wrongdoing or an instance of health-impaired practice by a spouse or a ‘mate’. The failure to take into account the ‘split loyalties’ that a nurse in such a situation might have is a significant oversight in legislative provisions and guidelines on mandatory reporting and one that stands in need of being redressed.


Interestingly, the issue of resolving the possible tensions that might exist between personal loyalties and ‘doing what is right’ is not new, with recorded debate related to the subject dating back to the Ancient Greek Socratic dialogues, notably Plato’s Euthyphro (circa 399 bc ). In this dialogue (Book IV, Sections 4–5), Euthyphro reveals that he (Euthyphro) has brought a murder charge against his own father for allowing one of his workers to die ( Plato 1886 edn: 7–9; see also 2003 edn: 11–12). The worker had, in a drunken rage, killed a slave belonging to one of the family’s estates. Not sure what to do, Euthyphro’s father bound and gagged the worker and left him in a ditch while he sent a messenger to seek advice from a seer in Athens on what he should do. While waiting for the messenger to return, Euthyphro’s father totally neglected the worker ‘thinking that he was a murderer, and that it would be no great matter, even if he were to die’ (IV-4) ( Plato 1886 edn: 7). It was under the conditions of being bound, starving and exposed to the cold that the worker died.


Euthyphro’s family was astonished and indignant that he sought to prosecute his father for murder, an act which they regarded as ‘unholy’ (‘It is unholy for a son to prosecute his father for murder’) (IV-4) (p 8). Against Euthyphro’s stance, the family argued that the father ‘did not kill the man at all’ and that ‘even if he had killed him over and over again, the man himself was a murderer’ (IV-4) (p 7). Underscoring this indignation was that, in Athenian law, only relatives were permitted to sue for murder, thus Euthyphro’s actions were ‘unnecessary’. Euthyphro was, however, unmoved by these assertions, arguing that ‘holiness means prosecuting the wrong doer […] whether he be your father or your mother or whoever he be’ and that ‘unholiness means not prosecuting him’ (V-5) (p 9). Euthyphro further defends his decision to bring the murder charges against his father, arguing (IV-4) (p 7):



What difference does it make whether the murdered man was a relative or a stranger? The only question that you may ask is, did the slayer slay justly or not? If justly, you must let him alone; if unjustly, you must indict him for murder, even though he share your hearth and sit at your table. The pollution is the same, if you associate with such a man, knowing what he has done, without purifying yourself, and him too, by bringing him to justice.


Euthyphro brought the charges ostensibly on grounds that it was the ‘pious’ (supremely right and virtuous) thing to do since, regardless of the fact that the offender was his father, to kill someone without justification deserves to be punished. Socrates, however, is not taken by this argument and questions how much justification is ‘enough’ to distinguish pious from impious actions.


Although the Euthyphro is primarily concerned with attempts to define piety and holiness, it nonetheless provides a useful frame for examining the question under consideration here, namely: ‘When, if ever, is it “right” for a spouse, partner, close friend, etc. to report a wrongdoing to a regulating authority?’ and ‘What is to count as a reasonable justification for making a decision either for or against making a notification?’ A Socratic irony also emerges in this instance, notably: ‘Is reporting an instance of wrongdoing by an intimate “right” because it is required by law, or does the law require the reporting of a wrongdoing by an intimate because it is right?’


To date, the attitudes and experiences of nurses reporting patient safety concerns and the related ethical issues they have faced in fulfilling their obligations in relation to both mandatory and voluntary reporting requirements is an area that is under-investigated. Meanwhile, nurses have a responsibility to check the mandatory reporting requirements (and possible exceptions) of the jurisdictions in which they work and also to be familiar with their national codes of conduct and ethics relating to these requirements. Ultimately, however, the decision to report a wrongdoing must be based not only on a blind obedience to law, but also on sound professional judgment and moral justification.

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Oct 7, 2019 | Posted by in NURSING | Comments Off on Professional obligations to report harmful behaviours: Risks to patient safety, child abuse and elder abuse
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