The past week has seen very extensive media coverage of the death of a British nurse, which followed a hoax call (made by an Australian radio station) to the hospital that employed her. The tragic event raises a wide range of legal and ethical issues that affect the hospital, the radio station and the media generally. These include employment and WHS/OHS issues, which this article discusses.

Background

After a member of the British Royal Family was admitted to hospital, two announcers from an Australian radio station rang the hospital while on-air and pretended to be the Queen and Prince Charles enquiring about the patient’s health. The nurse, apparently believing the call to be genuine, transferred it to the patient’s section of the hospital and information was provided to the callers by another nurse.

The call was broadcast and the prank was also widely publicised via social media and other media. One day later, the nurse was found dead at her home, having apparently committed suicide.

Subsequently, the event has been very widely discussed and a very active ‘blame game’ has occurred.

• The radio station and its announcers have been accused of making a hoax call that did not identify the callers, and then boasting about it.
• Management of the radio station has been accused of breaking the law and failing to manage the conduct of employees.
• The hospital management has been accused of not having, or not using, procedures that were robust enough to identify a hoax enquiry and prevent confidential information about a patient being disclosed.
• The media in general has been blamed for inflaming the situation: firstly, by displaying intrusive interest in the private health issues of a ‘celebrity’ and, second, because attempted hoaxes have been commonplace in the industry for many years and little attempt has been made to prevent them. At the time of this incident, the reputation of the British media was also tainted by recent revelations of phone-tapping and other intrusions of privacy by sections of one of the major media corporations.
• The media in turn has defended itself by claiming that close scrutiny of celebrities’ lives is demanded by its customers, so it is only responding to public demand.
• Various parties have speculated about the ‘real’ cause of the nurse’s death. For example, was it triggered by public humiliation at being the victim of a hoax, was it ‘the last straw’ following other events, and/or had the hospital management taken any action against her following the hoax (it claimed that it did not)?
• Finally, the radio station has been bombarded by social media messages attributing blame, seeking retribution and making various threats (eg against its advertisers). This scenario follows a recent social media campaign against the Australian radio announcer Alan Jones and his radio station, after Jones made remarks in relation to the Prime Minister that were extremely controversial.

Issues for the radio station

As the perpetrator of the hoax call, legal, employment and WHS issues arise for the radio station — including:

• legality of allowing a hoax call to be made and attempting to impersonate another person
• legal and ethical issues of not telling the nurse that the call was a hoax and of broadcasting the call without her or the hospital’s knowledge or permission
• policy covering the ethical conduct of employees
• training of employees
• whether the outcome (in this case, the nurse’s death) was a reasonably foreseeable consequence of the actions
• counselling and possibly discipline of the employees involved
• whether humiliating a ‘vulnerable’ person amounted to bullying
• vicarious liability for the actions of employees
• dealing with the media.

Issues for the hospital

There are issues affecting the hospital that received the hoax call — including:

• policies and procedures for handling external enquiries about patients
• privacy of patient information
• training of employees
• dealing with breaches of policies/procedures, whether inadvertent or deliberate
• counselling of co-workers
• dealing with the nurse’s family
• dealing with the media.

Legal issues relating to the phone call

Whether the phone call was made illegally may later be decided by an inquiry, but it could be argued that it breached the Listening Devices Act 1984 (NSW) because the receiver of the call was not made aware that what she said would be recorded and broadcast on radio. (We are all familiar with callers that tell us that ‘this call may be recorded for training and quality control purposes’.)

The legality of publicly attempting to impersonate another person in this case is also yet to be determined. Similarly, whether the consequences of this call (the nurse’s death) were reasonably foreseeable may also be subject to an inquiry or other legal interpretation.

Who is liable for a hoax call?

In this case, it has been alleged that management of the radio station reviewed the intended call before it was made and approved it; in which case, it appears that management is arguably vicariously liable for the conduct of its employees and encouraged or supported them to make the call. Several industry commentators have noted that this radio station and many others have a lengthy history of staging and broadcasting similar types of hoax calls. It could therefore be argued that the practice of making hoax calls has been widely condoned.

If an employee made a hoax call without management permission, the employer may be able to take disciplinary action against him/her, depending on its employment policies and the circumstances of the case. For example, it could be argued that the employee breached a policy that prohibited illegal or unethical conduct or bullying of another person while in the course of employment. It could also be argued that the employee caused serious damage to the employer’s reputation and business (note: in this case the radio station cancelled all its on-air advertising indefinitely, no doubt at considerable financial cost). The circumstances of the case would include the extent of damage that resulted, whether the conduct was generally considered acceptable or normal in the organisation or industry, whether the conduct could amount to serious or willful misconduct, the employee’s personal circumstances (eg length of service, previous employment record), and how the employer had handled similar incidents in the past (it would need to act consistently).

The lesson here for employers is the need to have clear policies on employee conduct that specify what is acceptable and unacceptable, and to ensure employees are aware of and understand their contents. In businesses and jobs where telephone calls and interviews are widely conducted, a policy that specifically covers these tasks may be advisable, backed up with employee training.

Protection against hoaxes

Some commentators have questioned the adequacy of the hospital’s procedures for screening incoming calls seeking private information about patients, given that what was ‘clearly’ (according to the radio station and its defenders) a hoax call was not identified as such by the two employees who answered it.

A business that possesses private and personal information about its clients and may receive inquiries from outsiders should have the following in place as a minimum:

• clear policies and procedures for protecting and disclosing personal information — covering:
  • who can provide information
  • who can request it
  • who has access to it
  • how to screen inquirers
  • security of the data
• training of employees whose jobs require them to deal with inquiries for information
• extra procedures and security arrangements where it is likely that there will be media interest in gaining information about the client, such as a person with high public profile (eg a specific senior person could be appointed as the only employee who is allowed to handle inquiries about that client and a separate email address or phone line could be set up for the purpose)
• the steps to be taken if a policy or procedure is breached.

It is not publicly known what policies and procedures the hospital had in place and, therefore, whether there was any inadvertent breach of them by the employee. The hospital management has publicly denied that it either took or threatened any disciplinary action against the nurse for responding to the call. Again, if an employer had policies in place and the employee was aware of them and breached them, the employer may be justified in taking action against the employee for a breach, but it would depend once again on the individual circumstances of the case, similar to those listed above. It would also be relevant whether the employee had acted deliberately versus having acted innocently after being deceived by the hoaxer.

Duty of care

In Australia, WHS/OHS legislation places a duty of care on employers to ensure the safety, health and welfare of their employees. While the radio station has suspended the employees who made the hoax call, it has also provided counselling for them and for other employees and appears to have taken steps to protect them from exposure to the media. It has also cancelled its on-air advertising, allegedly to protect its advertisers against victimisation. The latter is more difficult to achieve these days because of the capacity for social media to be very public and intrusive, as shown by campaigns already waged against the radio station, the two announcers (eg threatening damage to the station if they are not dismissed) and its advertisers.

In such situations it can be argued that the employer’s duty of care includes taking steps to protect employees as described in the previous paragraph.

The UK hospital is subject to UK legislation, but the general principle that grief counselling should be provided to the nurse’s co-workers (and possibly the nurse’s family) would still apply. It could be argued that the duty of care would also include taking all reasonable steps to ensure the risk of employees being exposed to and deceived by hoaxes is minimised (eg by having robust screening and security procedures in place).

Dealing with the media

When a crisis occurs and there is a high level of public interest, the parties involved should seek expert advice on how to deal with the media, and possibly consider hiring specialists to perform this role for them.

Mike Toten is a freelance writer and editor who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. He is a regular contributor to WorkplaceInfo, where this article was first published. WorkplaceInfo www.workplaceinfo.com.au is a publication of the NSW Business Chamber.