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Report No. 179

Table 3: Method of detection of proven fraud and corruption in the NHS, over three years to 1994. 34

(1) Information from staff:

22.00%

(2) Information from patients

9.00%

(3) Accidental:

8.00%

(4) Internal Contacts:

22.00%

(5) Internal Audit

18.00%

(6) External Audit

10.00%

(7) Others

11.00%

(Source: Audit Commission, 1994)

113. However, it seems that staff concerns come to light despite rather than because of the system. We are not aware of any central guidance for executive NDPBs and whilst the NHS have issued comprehensive central guidance, the Audit Commission's 1994 Report found that none of the 17 NHS bodies they visited had a well publicised system which informs staff whom they should contact if they suspect fraud or corruption".

Adverting to 'gagging clauses' in public employees contracts of employment, the Committee observed that there is 'public concern' about such clauses. While a loyal employee has concerns about impropriety, making public allegations in the media is unlikely to be the first recourse. However, without someway of voicing concern, and without some confidence that it will be taken seriously and dealt with if necessary, they may feel they have no other option. The Committee agreed with the sentiments expressed by Robat Sheldon MP, (Chairman of the Public Accounts Committee) that "public money must never be allowed to have silence clauses".

On the other hand, the Committee also made it clear that they do not wish to encourage vexatious or irresponsible complaints which undermine public confidence in institutions, without due cause. It believed that the best way to achieve the balance was to develop sound internal procedures backed by an external review.

The Audit Commission in UK interviewed the staff of the NHS and found that about one third of the NHS staff would take no action in the face of impropriety because of fears of losing their jobs if they "rock the boat". The Nolan Committee recommended nomination of an officer or member to receive complaints and the complainant should be guaranteed 'anonymity'. (HMSO 1995 cm 2850 I-II).

In its second Report on "Standards of Public Life" (cmd. 3270 I, 21) (May 1996) dealing with other areas including Education, the Nolan Committee stated that there must be an internal mechanism which will dissuade employees disclosing fraud or corruption to the media. It said:

"Encouraging a culture of openness within an organization will hel.-

prevention is better than cure placing staff in a position where they 36 feel driven to approach the media to ventilate concerns is unsatisfactory both for the staff members and the organization".

The recommendations of the Nolan Committee were accepted by the British Government (see the Government's Response to the First Report of the Committee on "Standards in Public Life", 1995, HMSO, 2931). Recommendation 23 of the Committee that the 'draft Civil Service Code' should be revised and recommendation 25 that departments and agencies should nominate one or more officials entrusted with the duty of investigating Staff concerns raised confidentially, were accepted with slight modification. Similarly, the recommendation 53 was also accepted.

The New Service Code was shown in Annexure B and para 11, 12 thereof deal with reporting procedure. Annexure C contains the Draft Amendment to the Civil Service Management Code to enable employees to complain and for their protection.

The above Report and its acceptance by the Government led to the passing of the UK Public Interest Disclosure Act, 1998.

In the United States, the Whistle blowers Protection Act, 1989 states in the opening section (section 2) that Congress has found that federal employees who make disclosures serve public interest by assisting the elimination of fraud, waste, abuse and unnecessary government expenditures 37 and that it is necessary to protect the employees who disclose to the government illegality and corruption, and one of the purposes of the Act is to strengthen and improve protection for the rights of the federal employees, to prevent reprisals and to help eliminate wrong doing within the government by mandating that employees should not suffer adverse consequences as a result of prohibited 'personnel practices' and that it is necessary to establish that the primary role of the 'Office of Special Counsel' is to protect employees, especially Whistle blowers, from prohibited 'personnel practices'.

The Section further directs that the said Special Counsel acts in the interests of employee who seeks his assistance, to discipline those who commit prohibited 'personnel practices' and to protect those who are subjected to such practices.

In Australia, the Fitzgerald's Report and the Gibbs Committee Report led to the passing of the Public Interest Disclosure Protection Act, 1994, and its objects are similar.

New Zealand has also passed a statute recently called 'The Protected Disclosure Act, 2000'.

The provisions of the above said enactments will be discussed in greater detail in Chapter VI.



Public Interest Disclosure and Protection of Informers Back




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