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Whistleblower Fired by the Target of Surgeons’ Complaint

The move raises concerns about Alberta’s whistleblower protections against reprisals, says expert.

Charles Rusnell 26 Feb 2024The Tyee

Charles Rusnell is an independent investigative reporter based in Edmonton.

One of five whistleblowers who filed a conflict of interest complaint against Dr. Daniel O’Connell, a senior Alberta Health Services administrator in Edmonton, has been effectively fired by O’Connell from a key administrative position.

Dr. Jeffrey Harris, a highly respected ear, nose and throat or ENT surgeon and professor, had been the section site lead for the University of Alberta Hospital for the past 16 years. As such, he was responsible for ENT administration at that hospital, which is the main ENT surgical facility for northern Alberta.

The Tyee has obtained an internal Alberta Health Services email in which O’Connell tells ENT staff that he is “collapsing” all the section site lead positions in the Edmonton area effective immediately and replacing them with interim managers he selected.

“As a section we strive to provide the highest quality of care to our patients possible,” O’Connell wrote in the Feb. 6 email.

“To accomplish this goal, we need to maximize utilization of all available resources (both infrastructure and personnel) at our disposal. These operational changes will help us move towards our goal together.”

An expert in whistleblower legislation says the firing of Harris provides an example of how useless Alberta’s laws are.

“You’re not protected, that is what this [firing] tells potential whistleblowers,” said Cameron Hutchison, a University of Alberta law professor.

“What I tell people is that if you’re going to blow the whistle, you’re better off to go to a journalist.” His reasoning is that a journalist might be able to keep the whistleblower’s identity anonymous, and in any case, making the story public in a timely fashion can make it harder for bureaucracies to foot-drag and close ranks.

The whistleblowers filed their complaint against O’Connell in November 2022. The Tyee obtained a copy of the complaint only after AHS appointed O’Connell as the permanent ENT section head for Edmonton in late December 2023.

Under the AHS whistleblower policy, internal investigations are supposed to be completed within 120 days. AHS has declined to explain why it promoted O’Connell while he is still apparently under active internal investigation, nor will it explain why the investigation has dragged on for months past the legislated deadline for completion.

The whistleblowers alleged O’Connell was using his position as interim ENT section head to benefit a private cancer clinic — Canadian Cancer Care — of which he is a five per cent owner.

Among other allegations, the whistleblowers also claimed he arbitrarily reduced the operating time for some of the whistleblowers and blocked the hiring of a talented young surgeon, Dr. Daniel O’Brien.

O’Brien had been chosen by a committee to fill an academic surgeon’s position in Edmonton. But O’Connell directly intervened and O’Brien was never hired. In a previous interview, O’Brien, who moved with his wife and son to Omaha, Nebraska, said AHS has refused to tell him why he wasn’t hired, or when he might be hired.

The owners of the Canadian Cancer Care clinic challenged the allegations and threatened to sue the whistleblowers, in a cease-and-desist letter issued earlier this month.

None of the allegations in either the whistleblower complaint or the cease-and-desist letter have been proven.

The Tyee contacted Alberta Health Minister Adriana LaGrange to ask what she knows about the reneged employment offer to O’Brien, and what, if anything, she intends to do about it. LaGrange’s press secretary, Andrea Smith, promised a response but did not provide one.

O’Connell declined an interview request and instead directed The Tyee to an AHS spokesperson, Salena Kitteringham. She did not acknowledge an interview request. Harris also declined an interview request.

Hutchison said the AHS whistleblower policy is based on the province’s Public Interest Disclosure Act.

In November 2020, Hutchison produced a report for the Parkland Institute at the University of Alberta entitled “Whistleblowers Not Protected: How the Law Abandons Those Who Speak Up.”

(The study cites several stories by this reporter and Jennie Russell from our time as investigative journalists with CBC. We also participated in a lecture to one of Hutchison’s classes in 2022, after we had left CBC.)

Hutchison found Alberta’s current act “falls far short of international best practices for whistleblower protection.” The act is riddled with “pitfalls through which few whistleblowers should ever dare venture,” he wrote, and as a result, there have been only three findings of wrongdoing since the legislation’s enactment in 2012.

“Even where wrongdoing is found, the legislation requires an employee to prove connection between it and workplace reprisal by the employer — something that is notoriously difficult to do,” the report states.

Hutchison said the alleged blocking of the hiring of O’Brien, the firing of Harris and the lawsuit threat against the whistleblowers could all be viewed as “apparent” or “potential” reprisals under provincial law that could be reported to Alberta’s Public Interest Commissioner.

But he has little faith in an investigation by that office.

“They have never found any finding of reprisal happening ever,” he said. “And they’re not particularly well trained, in my view, to investigate reprisals.”

“People don’t normally say, ‘I’m firing you because he did this.’ They do something like reorganize down the road that makes it look like it’s part of normal operating procedure.”

Hutchison can’t specifically say if O’Connell’s actions in this case legally constitute a reprisal, but based on his research, he said, it wouldn’t be “an unusual manifestation of reprisal.”

The surgeons who filed this complaint — Dr. Jeffrey Harris, Dr. Erin Wright, Dr. Hadi Seikaly, Dr. Hamdy El-Hakim and Dr. Daniel O’Brien — have all been “exposed,” Hutchison said, since The Tyee published their confidential whistleblowing complaint more than a year after they filed it with AHS.

Because Alberta has no anti-SLAPP (strategic lawsuits against public participation) law, the surgeons aren’t protected from being sued. The lawsuit threat they already face “serves as another disincentive not to talk,” he said. All five surgeons declined to comment.

Hutchison said the whistleblowers should file a complaint to Alberta’s Public Interest Commissioner in the hopes of at least obtaining “some level of protection.”

Even though “the Public Interest Commissioner’s office doesn’t have much of a record of providing meaningful external oversight,” Hutchison said, the fact that the whistleblower’s complaint is now public would at least ensure it can’t be ignored.

If you have any information for this story, or information for another story, please contact Charles Rusnell in confidence via email.  [Tyee]

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