Lindeberg's statement to House of Reps Standing Committee on Health - March 2006

As if to hammer home to all concerned, by curious happenstance and arrangement from Canberra, that Queensland is "...the sick man of Australian politics", a significant Opening Statement was poignantly delivered by a whistleblower to the House of Representatives Standing Committee on Health and Ageing regarding health funding at Mt Olivet Hospital, a renown hospice for the dying.

What made the following statement all the more alarming and probative of the charge that Queensland is indeed "...the sick man of Australian politics" is that it was not reported by either local ABC Radio, ABC TV, or The Courier-Mail. Instead, the media carried segments of the address given by Mr Tony Morris QC, former Commissioner into the Bundaberg Hospital scandal, as if to suggest that his contribution, important thought it was, was singly worthy of reporting including his declaration that Mr Beattie was "...the best premier we have had in living memory in this state, and that is from someone who has traditionally been associated with the other side of politics."

It is as if the doctor, in this case the media, has decided not to tell his dying patient the truth about his real state of health out of fear that his own doctoring of the patient, and "media spin", may become the real issue because had he done what he ought to have in the early stages of the disease, it may have been curable. In short, the role of the Queensland media is part of Queensland's current malaise.

A prognosis of Queensland's true state of (governance) health by Whistleblowers Australia, earlier provided in the shape of two submissions to both the Morris and Davies Inquiries into the Bundaberg Hospital and the conduct of rogue Doctor Jayant Patel - but which were not revealed to the Queensland public by those inquiries - was subsequently accepted into evidence by the Federal Standing Committee on Health and Ageing, and made public. They are currently available on the Committee's webpage, and ought to be read by every Queenslander because neither the ABC nor The Courier-Mail are likely to air their contents.

By any reasonable measure, they are alarming reading.

The question to be considered therefore is who is truly providing the Queensland public with an accurate prognosis of our State's true state of health, either regarding our public health system or its governance? On the one hand, certain media organs and politicians would have us believe that our State has sufficient checks and balances to keep its state of governance sound and clean, and that institutions like the Crime and Misconduct Commission are functioning in an honest, impartial and trustworthy manner, including the media itself, while others, who have gone through the system, tell a very different story and speak of its terminal state of health.

LINDEBERG, Mr Kevin, Member, Whistleblowers Australia and Whistleblowers Action Group

SENEWIRATNE, Dr Brian, Member, Whistleblowers Action Group (Queensland)

CHAIR—I am required to tell you, as I have told all other witnesses—so do not take this personally—that the committee does not require you to speak under oath. You should understand that these hearings are formal proceedings of the Commonwealth parliament. Giving false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. Do you have any comments to make on the capacity in which you appear?

Dr Senewiratne—I was a senior specialist visiting physician at Princess Alexandra Hospital and I was one of the initial whistleblowers in 1994. I am currently out of the public sector: I was eased out because of blowing the whistle.

CHAIR—Do either or both of you wish to make a brief introductory statement before we proceed to questions?

Mr Lindeberg—Yes, I would like to. Mr Chairman and committee members, on behalf of Whistleblowers Australia, I wish to thank the committee for the invitation, albeit at short notice, to speak to our submission No.93 of 22 November 2005. It has suddenly fallen on me to address the committee because our national director, Mr Greg McMahon, is in Sydney and therefore cannot attend this hearing. I am aware of the contents of our submission because I assisted in its construction and recommendations.

Our submission finds its origins firstly in the Bundaberg hospital commission of inquiry chaired by Commissioner Tony Morris QC until it was closed by court order on a finding of apprehended bias against him; and then in the new commission of inquiry into the Bundaberg hospital chaired by former Court of Appeal Justice, Hon. Geoff Davies QC. The committee will see that both our submissions to commissioners Morris QC and Davies QC dated 18 August and 16 September 2005 respectively are attachments to our submission of 22 November 2005.

I believe I am obliged to inform you that one of Dr Patel’s alleged victims was my first cousin. My cousin, who was my age, died shortly after Dr Patel performed the operation, which we now know he was not qualified to perform nor the hospital resourced to cope with. I knew nothing of Dr Patel at the time I attended his funeral in Bundaberg.

Whistleblowers Australia comes to this national inquiry under term of reference (c), which says:

c. considering how and whether accountability to the Australian community for the quality and delivery of public hospitals and medical services can be improved;

We have concentrated on the word ‘accountability’. We have attempted to define what accountability ought to mean for government and its employees and what the Australian community, in a democracy governed by the rule of law, are entitled to expect as users of its health system, which is resourced through their taxes.

Our submission finds its validity flowing out of the conduct of rogue surgeon Dr Jayant Patel at the Bundaberg Base Hospital. Its force comes from how long it took his rogue prima facie unlawful conduct to come to public attention in post-Fitzgerald Queensland, with all its so-called checks and balances guaranteeing greater accountability; its claims of being an open and accountable government; its whistleblower protection; its public sector ethics legislation on the statute books; its Medical Board functioning under law; its Crime and Misconduct Commission functioning to eradicate official misconduct, and doing so without fear or favour to none; and its oaths of office sworn by doctors and nurses as well as politicians and law-enforcement officers before taking up their duties.

In simple terms, how could such harm inflicted on unsuspecting, trusting patients in a civilised society like Queensland come to pass? Where was accountability to law, professionalism and the public interest when it was so desperately needed? Where were the public officials, both elected and appointed, when Dr Patel was acting like a rogue doctor? Why didn’t someone stand in front of him and simply say, ‘No more’?

While we all want justice for the victims and the families harmed by Dr Patel and the health system which failed them, the critical unanswered question remains—and, if we are to learn from the experience, it must be answered honestly—why wasn’t the whistle at Bundaberg Hospital blown sooner? Why did it take someone like nurse Toni Hoffman to risk everything to get her employers, the state of Queensland and the Crown, and her fellow public servants to obey and uphold the law and to be accountable instead of allowing Dr Patel to wreak havoc for several years?

Fear undoubtedly permeates Queensland’s public service, and fear of speaking out to avoid a reprisal puts accountability at risk. Queensland’s public servants do not trust their system of government. They know it is highly politicised and toxic. We believe that bullying and intimidation starts from the top. We have illustrated in our submission what the system does to people who blow the whistle in Queensland. It cites the unresolved corruption surrounding the Heiner affair, which effectively set the unacceptable template for all that has followed in post- Fitzgerald Queensland. It cites the reprisal against key Fitzgerald inquiry whistleblower police officer Col Dillon; the forcing out of the health system of Dr Brian Senewiratne after he dared expose unacceptable working conditions of and for staff and patients at the Princess Alexandra and QEII hospitals; the treatment of ICU nurse Wendy Erglis by the system, including abuse under parliamentary privilege; and Mr Greg McMahon trying to hold the system to account.

Our submission exposes what is called ‘regulatory capture’ of our law-enforcement and accountability arms of government in our unicameral system. It also highlights, in the public interest, serious concerns about the suitability of the current state coroner, Mr Michael Barnes, to hold his position against his handling of the Heiner affair when at the CJC. It is especially concerning because his coronial duties now include investigating reportable and questionable deaths in hospitals, workplaces, prisons and detention centres, which may from time to time have the potential to adversely impact on government. As coroner, his duty is to be impartial and act according to law. Whether he complies with this is in doubt. An indicator of his unacceptable deferential attitude towards government and Crown law advice occurred as recently as 18 September 2004 before the Senate Select Committee on the Lindeberg Grievance, which related to the Heiner affair, when he said:

"...Surely governments must be free to take and act on such (Crown solicitor’s) advice. Even if Mr Lindberg’s claim that the shredding was unlawful has any substance how could action be taken against the Goss Government for acting in accordance with its legal advice?"

Such an attitude presupposes that executive government, Crown law advice and public officials are above the law. They are not. Such an attitude breaches the doctrine of the separation of powers, the very doctrine which preserves his own judicial independence and function. Equality before the law is the one common feature that motivates whistleblowers and is deeply cherished by the community. It is the democratic principle for which I have fought for 16 years in the Heiner affair despite suffering hardship and ridicule from those in authority.

When double standards are applied to use the law to advantage executive government and public officials by law enforcement authorities like the Crime and Misconduct Commission or our state coroner, would-be whistleblowers simply have nowhere to go. Trust is destroyed. Everyone is left in no man’s land. Public safety is thus put at risk. One disclosure route is through a politician who is prepared to exercise the constitutional right of parliamentary privilege and air the disclosure on the floor of parliament. Nurse Hoffman chose this course. Another course is through the media. The media must be prepared to report the alleged wrongdoing fearlessly and, importantly, stay the course. It is not unknown in the affairs of men for cover-ups in government to occur, and therefore, in a modern world of 20-second media grabs, the media may quickly lose interest and leave a whistleblower stranded and isolated simply because the issue, unless resolved quickly, becomes old hat.

This is why we have recommended the establishment of an independent whistleblowers protection authority in federal and state jurisdictions. It is our sword and shield policy. Such an authority’s prime task would be to shield the whistleblower from reprisal because the sword — which in Queensland’s case is the CMC, possibly the police or the Ombudsman— simply cannot both investigate and protect, let alone be trusted to investigate properly as our whistleblower case studies show.

We have also recommended that legislation governing the employment conditions of public servants be amended. For instance, in dealing with federal legislation, section 10(j) of the Public Service Act 1999, which refers to the Public Service values underpinning accountability, ought to include the following binding provision of a ‘corruption-free workplace.’ So it should read: ‘a fair, flexible, corruption-free and rewarding workplace’.

Constitutional government requires that government obey and uphold the law. Elected and appointed officials are in some cases required to swear an oath before taking up their duties, or seat in parliament. The public expects these oaths to be respected to prevent abuse of office. Public officials must not advantage themselves or another when applying the law.

It is open to suggest that those who became aware of Dr Patel’s conduct—which reasonably would have raised more than just the suspicion of incompetence but would have raised the suspicion of official misconduct—had a duty to refer such conduct to a proper authority, and, providing the public interest disclosure was genuinely held and not motivated by malice, basic contract of employment law ought to have protected them. Failure to report and refer Dr Patel advantaged him to the disadvantage of others.

It is perverse in the extreme in a society governed by the rule of law and where the law is enforced in the name of the Crown that a Crown public servant should be afraid to see that the law is upheld, let alone the Crown itself—or the public, for that matter—needing or relying on one lowly public servant within its ranks to risk everything to get the Crown to do what it is obliged to do.

In that sense, any public servant—from nurse, doctor, health administrator, childcare officer, legal officer, teacher, police officer, archivist to administration officer—ought to have the statutory democratic guarantee that not only will the Crown provide a work environment free from health and safety concerns but free from corruption. If not, an action in damages ought to be open to anyone who had to risk career and health by blowing the whistle to bring the Crown back into line regarding obedience to the law.

All contracts of employment are two-way streets. We have recommended that the whistleblowers protection authority be permitted at law to assist, through access to public funds, a properly accredited whistleblower to take such an action against the Crown in damages for breach of contract in respect of having to restore lawfulness in the workplace—just as the Crown can, at law, bring criminal charges, sack or discipline any public servant who engages in lawlessness in the workplace. It is about time governments throughout Australia guaranteed their workers a corruption-free work environment, because in doing so it would better protect them and the public from harm and restore confidence in government.

Finally, we acknowledge that the overwhelming majority of public officials working in our health system throughout Australia are honest and motivated to serve the public to the best of their ability, but corruption in the workplace can erode everything. It can destroy trust between work colleagues, in superiors and, worst of all, it can destroy everyone’s trust in government because it undermines the rule of law.

Queensland is the sick man of Australian politics. It needs radical surgery. We have put forward recommendations in good faith which we hope will put Queensland back on the road to recovery. The shame is that submissions put to the Morris and Davies inquiries in good faith remained concealed and could only see the light of day and be made privileged public documents by the federal government. Now history and the public may judge their worth.

This malaise goes beyond throwing more money at it, although money is needed. It is about confidence in government and its institutions, let alone eternal vigilance. There is always a glimmer of hope, however, so long as we have nurses like Wendy Erglis and Toni Hoffman and senior doctors like Brian Senewiratne and Con Aroney who put the public interest first and not self-interest when lack of accountability affecting others comes to their attention.

We must, however, broaden and strengthen that dissent base to underpin accountability. As we all grow older and our health invariably declines and either hospital or aged care homes loom large, or when our children or grandchildren require surgery, we simply cannot afford to live our lives when using our health system anywhere in Australia by hoping that harm will not come our way by relying on sheer good luck that some one who sees abuse at a particular institution will speak out. The reality coming out of the Bundaberg Base Hospital experience, and now seen in the emerging aged care home abuse situation, is that few working in the system will speak out because most live in fear of doing so. Our duty is to do all we can to drive away that fear for the good of us all. Thank you.

CHAIR—Thank you, Mr Lindeberg. ...