Case Summaries 2022-2023

Commissioner Recommends Higher Standards of Medical Care for Patients in Correctional Centres

When Albertans experience a medical crisis, they expect health services will be delivered in a way that cares for their needs and protects their health. The healthcare profession shoulders a significant responsibility to provide patient-focused medical care at the highest possible industry standards.

In October 2023, the Commissioner issued a public report outlining serious lapses in medical standards of care for individuals incarcerated at the Edmonton Remand Centre. Although the operation of provincial correctional centres is the responsibility of the Correctional Services Division of Alberta Justice, the treatment of patients is the responsibility of Alberta Health Services (AHS). AHS is the largest province wide integrated healthcare system, responsible for delivering services to over 4.7 million people living in Alberta.

A whistleblower came to our office concerned for the health and safety of persons incarcerated at the centre. They identified five patients who had severe medical outcomes. Later, the whistleblower contacted our office to identify two additional patients. After preliminary inquiries, the Commissioner opened an investigation to determine whether medical staff at the correctional centre created a substantial and specific danger to the life, health, or safety of individuals—a wrongdoing as described in the Act.

The ensuing investigation was substantial and examined health care protocols, patient records, and the treatment history of the seven identified individuals. Also, an expert nursing consultant was retained to review medical records of the five patients initially identified and provide an opinion whether the standard of care was met. In several examples, evidence showed pain management and drug withdrawal protocols were not followed; gaps existed in the documentation of key patient vital signs records; and standards of care were not met.

The Commissioner concluded the investigation and shared his findings with AHS in February 2023.

Given the lack of clarity surrounding institutional protocols, the Commissioner did not view the wrongdoing as being the sole responsibility of any particular individual. Rather, he found systemic lapses in the medical care of incarcerated individuals at the correctional centre stemmed from the lack of clarity surrounding treatment standards when a patient shows abnormal or abnormally trending vital signs.

Through the investigation, AHS reported that they were already aware of some of the issues the Commissioner was investigating and was in the process of taking corrective steps. These measures, supplemented by the Commissioner’s recommendations, focused on the need for improvements within the medical corrections field, which would elevate the care given to incarcerated individuals to a standard consistent with that in all other Alberta medical settings.

In July 2023, Alberta Health Services reported back to the Commissioner that it had implemented corrective measures to address all recommendations and observations made by the Commissioner, in addition to implementing ongoing corrective measures already underway. AHS was fully cooperative during the investigation.

The Commissioner’s investigation was released publicly and reported on nationally. In a media report, a spokesperson for Alberta Health Services stated that AHS has taken action to directly address each of the recommendations included in the report; “It is imperative that all individuals in our corrections system are provided with the same consistent, high-quality care as every Albertan. Our actions will continue to ensure this.” In another article, the mother of an inmate who died in custody (not related to this investigation) said the release of the Commissioner’s report was “enraging and validating”.

AHS’ approach to this investigation and response to the Commissioner’s findings is a model for what Alberta’s whistleblower protection legislation is intended to achieve. A whistleblower safely and confidentially brought forward concerns and AHS took substantial and meaningful steps to remedy the wrongdoing. It was evident that there was a desire to understand what had transpired and to ensure that the proper standard of patient care was being provided in correctional centres.

The identity of the whistleblower remains confidential and continues to be protected under the Act.

Professional Conduct Complaints Against Participants in a Wrongdoing Investigation Result in a Finding of Reprisal

In November 2022, the Acting Commissioner made findings of reprisal in five related cases. These were the first findings of reprisal made under Alberta’s whistleblower protection legislation.

Reprisal protections are a critical component of strong whistleblower legislation; the effectiveness of the Act hinges on the confidence public service employees have in using it. Thus, safeguarding the rights of whistleblowers and employees involved in investigations under the Act is imperative to shield those individuals from retaliatory action. Section 24 of the Act protects employees not just when they make a disclosure, but when they do anything in accordance with the Act including seeking advice about making a disclosure, cooperating with an investigation, or declining to participate in a wrongdoing.

In 2021, the previous Commissioner received a disclosure of wrongdoing alleging that a senior administrative official in the education sector was grossly mismanaging employees. Following the investigation, the former Commissioner concluded the evidence did not support a finding of wrongdoing (the 2021 Investigation). The involvement of this office in the matter could have ended there but it did not.

In early 2022, the senior administrative official who was the subject of the 2021 Investigation filed complaints of unprofessional conduct against five individuals involved in the Investigation with their professional regulator. The senior administrative official complained that by making a disclosure to the Public Interest Commissioner and participating in the 2021 Investigation, the five individuals violated a section of their professional code of conduct.

Those five individuals subsequently filed complaints of reprisal with the Commissioner’s office.

Under the Act, a reprisal is any action, or threat of action, that adversely affects an employee’s working conditions or employment. In this case, the professional regulator took no disciplinary action against the five complainants and closed the investigations into their conduct due to insufficient evidence. Nevertheless, by filing the complaints, the senior administrative official adversely affected the working conditions of the five individuals by subjecting them to the scrutiny and investigation of their professional regulator, with all the emotional and reputational toll such a process entails. One complainant reported they felt “knocked down” by the regulator’s professional conduct investigation. Another stated they felt “absolutely hysterical” over being investigated for unprofessional conduct simply because they participated in an interview as part of the 2021 Investigation.

The Acting Commissioner found that by filing the complaints of unprofessional conduct, because they believed the five individuals assisted in the 2021 Investigation, the senior administrative official committed a reprisal against all five complainants.

Under section 27.1 of the Act, the Commissioner’s office must report findings of reprisal to the Alberta Labour Relations Board (the ALRB). The Act empowers the ALRB to determine the appropriate remedy, if any, for the individuals who experienced a reprisal. In addition to any remedies ordered by the ALRB, the Acting Commissioner made a recommendation and observation to address the systemic issues within the organization that led to these five reprisals.

The Acting Commissioner referred this matter to the ALRB in November 2022, and at the time of this report, the Board’s processes are ongoing.

Cease and Desist Letter Prompts an Investigation

Public sector employees are protected from any reprisal action that adversely affects their employment or working conditions when they do anything in accordance with the Act. Reprisals have a serious consequence to the perpetrator, including potential prosecution under the Act, substantial penalties, liability for financial remedies, and potentially losing their career. The Act places significant importance on the protection of whistleblowers and witnesses involved in investigations.

A complaint of reprisal received by the Commissioner’s office was preceded by an investigation into wrongdoing committed by an organizational leader. The leader, no longer employed by the organization, learned that an employee disclosed to colleagues that they were the whistleblower, and was discussing the outcome of the Commissioner’s investigation. The former leader contacted a current senior executive, which prompted them to question the whistleblower. The former leader then instructed their legal counsel to send a cease and desist letter to the whistleblower warning of potential civil action if they discussed the matter further. The letter was copied to the new organizational leader and the chair of the board of governors. The whistleblower viewed this as a retaliatory action intended to harm their reputation with their employer. Further aggravating the matter was a pre-existing professional relationship between the former leader and the current executive.

When the Commissioner’s office received the complaint of reprisal, an investigation promptly began. Investigators interviewed the executives involved, seized mobile devices for forensic examination, searched email communications, and questioned the former leader.

Through the examination of text and email communications, and oral evidence provided by the parties, it was determined that the former leader acted as the result of distorted information which passed through several employees about comments the whistleblower had made to colleagues. The evidence showed the former leader believed the whistleblower intended to widely broadcast information about the Commissioner’s previous investigation. This investigation was confidential, and its results were not publicly disclosed. The former leader appropriately sought legal advice and determined that a cease and desist letter was the appropriate course of action. They viewed the potential wide-scale disclosure of information about the matter as a risk to the organization and explained that this was why the letter was copied to the current organizational leader and board chair.

No disciplinary action was taken against the whistleblower. Interviews and forensic examination of electronic communications found no evidence of collusion, disparaging remarks against the whistleblower, or indications of ill intent. The whistleblower asked to withdraw their complaint but the Commissioner believed it prudent to review the matter to conclusion. Ultimately, the Commissioner did not find that reprisal occurred; however, the whistleblower still did the right thing by contacting the Commissioner’s office.

The whistleblower in this case elected to self-disclose their role in the Commissioner’s investigation to colleagues. The nature of the discussions the whistleblower had with colleagues altered as communications filtered through several employees, and ultimately the version received by the former leader was inflammatory. Had these discussions not transpired, the incident and subsequent investigation may not have occurred.

Commissioner Discontinues Investigation of a Public School Division

The Act empowers the Commissioner with the authority to discontinue an investigation and lists several reasons why an investigation is not required. Per section 19(1) of the Act, an investigation may cease if, in the opinion of the Commissioner,

     ■ Concerns could more appropriately be dealt with under a collective agreement or employment agreement, or according to a procedure under another Act or Regulation;

     ■ There are inadequate particulars to conduct a fair and effective investigation;

     ■ The matter is already being investigated under the Act by the affected entity;

     ■ The disclosure relates to an operational or public policy decision or decision-making process that is balanced and informed;

     ■ The disclosure is determined to be frivolous, vexatious, not made in good faith, or does not deal with a wrongdoing; or

     ■ There is another valid reason for not investigating the disclosure.

In June 2022, the Commissioner received two disclosures of wrongdoing by teachers alleging that a principal and vice principal were grossly mismanaging employees through a pattern of bullying, harassment, and intimidation. An investigation was launched and the school authority informed. Concerned for teachers at the school, the school authority elected to place the alleged wrongdoers on administrative leave pending the outcome of the investigation. When investigators conducted a series of interviews a theme began to emerge–the alleged wrongdoers’ conduct did not meet the definition of a wrongdoing under the Act. Rather, animosity between certain staff and the principal and vice principal prompted the complaint. Other staff interviewed generally reported a positive culture at the school.

After careful consideration, the Acting Commissioner discontinued the investigation. The emerging evidence did not support that wrongdoing was occurring, and a continuation of the investigation would serve no meaningful purpose and only prolong the administrative leave of the principal and vice principal.

The circumstances of each case are weighed carefully when considering a course of action. This decision expedited the outcome for all affected parties, while still allowing for the Acting Commissioner to flag issues to the school division that, if left untreated, may evolve into something more serious.

A Collaborative Approach to Investigating Serious Wrongdoing

The Commissioner’s office aims to promote a culture within the public sector that encourages employees to report wrongdoings in their workplace. In this way, the affected organization is made aware of potential wrongdoings so that issues may be addressed, and corrective action can be taken. In some cases, organizations may already be aware of the issues brought to the attention of the Commissioner’s office. When this happens, the investigative team may support the organization to continue with its investigation. If the Commissioner is satisfied with the outcome, it is possible that no further action is required as it relates to a disclosure.

In October 2022, we received a complaint of wrongdoing relating to a public sector organization and governing body. The disclosure alleged multiple wrongdoings, including unfair delivery of a public service, substantial overreach of the organization’s authority, and an allegation that a senior employee may be extorting clients and accepting bribes. Each of the allegations was assessed on its individual merit, and it was determined that the disclosure, in part, required further inquiry. Specifically, the Commissioner’s office sought additional information about the alleged incidents of bribery and extortion, a contravention of the Criminal Code of Canada.

The Commissioner’s office engaged with the organization and discovered that an internal investigation was already underway. The designated officer at the organization was motivated to collaborate with the Public Interest Commissioner and took appropriate action to address the complaint. They were cooperative and transparent with the Commissioner’s office throughout their internal investigations process, including sharing their investigative findings and outcomes as they related to the disclosure.

Through its internal investigation, the organization uncovered inappropriate employee conduct and implemented significant corrective measures to address the issues. Once it was determined the organization had appropriately addressed the matter, no further investigation by the Commissioner’s office was necessary.

This case underscores why it is important for public sector employees to use whistleblower mechanisms to raise concerns within their workplace. Effectively addressing these concerns boosts public trust in the organization. Further, this case illustrates that when an employee makes a disclosure under the Act, they qualify for specific protections, regardless of whether the organization they work for employs an alternative process to resolve issues.