Terry Prone: Blowing the whistle on poor protections after speaking out

The most up to date example of incentivized US whistleblowing relates to Simufilam, a drug in development by a company named Cassava, in Austen, Texas. 

This medication was felt to be so promising as a possible treatment for Alzheimer’s that, during the summer, rumours boosted the share value of Cassava by – wait for it – one thousand five hundred percent.

 In July, 2021, this company, despite the fact that it has no track record of ever developing a major successful drug up to this point, was worth five billion dollars. 

The Cassava top guy, Remi Barbier pointed out that Simufilam was the first drug to restore cognition. In other words, it could bring back the patient’s thinking and memory processes, which for an Alzheimer’s sufferer is the Holy Grail.

Given the prevalence of Alzheimer’s, worldwide, given the aging population in many countries, including our own, and given the raw fear with which older people and their families look at the possibility of their contracting it, describing the drug developer as the new Google or Amazon, as happened in the last year, didn’t seem that excessive.

Until a lawyer specializing in representing whistleblowers took action, in the process likening Cassava to Theranos. (Theranos being a fraud whose founder is likely to be headed for prison for making up positive research.) When the same sort of questions were leveled at its Alzheimer’s drug, the value of Cassava halved in a couple of weeks. 

That meant it went from five billion dollars to two and a half billion. And that was just the beginning of a process pitting a small but wealthy corporation against an anonymous individual whistle-blower, whose lawyer presented the authorities with devastating inside documentation.

The lawyer, a man named Jordan Thomas, had previously worked in the Securities and Exchange Commission, where, just ten years ago, he developed a bounty system for whistleblowers. It was a game changer. 

If you, as a worried employee within a corporation you believed to be engaged in crookery, decided to bring the bad behaviour to the attention of the authorities, and if the authorities found you to be correct and won a judgement against your employer for millions or even billions, Jordan Thomas’s bounty system meant you would be entitled to at least ten percent of that money. 

In some cases, you might get as much as 30%. You could, in short, end up setting pretty for life. 

Which would be just fine with the regulator, which has found that having a snitch on the inside, heavily incentivized to tell all and nick documentation to support their story can add up to a beautiful partnership. 

Not that the SEC would ever actually ask someone to nick corporate documentation or record telephone conversations, of course. But if a concerned citizen working for a dodgy corporation undertook such actions on their own? Queue righteous shrugs.

Testament to how well the bounty system is working is that more than a billion dollars has been paid out to whistleblowers in the last decade. Some of the recipients have gone public. 

Some have taken their millions and kept their trap shut. Some have not only kept their trap shut but continued to work for the same employer, and why wouldn’t they? Haven’t they ensured that it plays by the rules in future?

Whistleblowing in Ireland is markedly different. Less lucrative, for starters. An Garda Siochana and the Revenue don’t seem to feel the need to incentivize staff within the private sector to tell all. 

Meanwhile, in the public sector, whistleblowers would seem, in the main, to be motivated by objections to the way in which their organisation is operated, although examples have surfaced where the whistleblower seems to have blown their whistle by making a protected disclosure just before disciplinary action was due to be taken against them by their manager. 

All whistleblowers are not saints. But, here’s the thing. The motivation of the whistleblower is irrelevant. 

All that’s relevant is the evidence they can produce. Nobody has to want to share a dinner table with the Cassava whistleblower. They may have questionable motivations, a lamentable personality and bad shoes, but if their actions helped prevent another Theranos, hooray for them.

In this country’s public sector, whistleblowers are quite properly protected, and efforts to portray any one of them as serial offenders in the whistleblowing area miss the point. 

However, what the current whistleblowing situation in the Department of Health demonstrates is a need for wider protections. In that case, because the whistleblower is protected against being moved, the weird consequence is that his or her colleagues who have now featured in two weeks' worth of recordings in a prestigious Sunday newspaper as a result of the handing over of secret recordings to that newspaper, must continue to share meetings with this person.

 How can anyone measure the chilling effect on such meetings of that strange situation? How can anyone regard such a situation as demonstrating a departmental duty of care to those recorded without their knowledge? How can anyone see it as protective of the whistleblower, either?

The leaked recorded material demonstrated the obvious: that people doing their best to do their job get irritated with obstruction, deliberate or accidental.

Irritation leads to blunt-talking, which is not the kind of discourse that the people alluded to might prefer. The transcript also demonstrated clear lack of faith on the part of some Department of Health personnel in the procedures operated by some HSE personnel. 

Having worked, at different points, on and off, for the Department and the HSE (and its predecessors) for many years, I find it difficult to be surprised at any of this. Ritual tut-tutting aside, what was revealed was competent professionals doing what they’re paid to do and doing it with some energy and conviction. 

The irritated opinions expressed were, quite properly, not included in minutes, which are not supposed to be statement-by-statement records of a meeting.

The DOH leak is a hell of a different kettle of fish to the Cassava situation, where the prospects of an untested drug were flogged like they were Sir Mark Todd’s horses, to make those prospects generate unjustified money from willingly gullible investors eager to find the cure for one of the most frightening ailments around.

Provision must be made to prevent that happening in Ireland, even if that includes financial incentives and anonymity, More urgently, however, we need to look again at public sector whistleblower legislation here.

What’s needed are speedy investigative procedures that don’t leave either the whistleblower or those accused by them swinging in a frozen simulacrum of normality - or forced, on whichever side they sit – to take stress leave.