Mr. Séamus Clarke:

I might respond to two of the issues the Senator raised. The first one related to the member of a board who would now be a person who could make a protected disclosure and seek the protections that are in the general scheme of the Bill. That new category of person who is entitled to protections under the protected disclosures regime is effectively one of the new categories of persons in the directive. The general scheme of the Bill simply puts into the Bill what is in the directive, specifying a member of the administrative, management or supervisory body of an undertaking, including non-executive members.

The Senator raised the issue of a duty of confidentiality a role might entail. Nobody is forced to make a protected disclosure if he or she chooses not to, but if that person chooses to make a protected disclosure, he or she gets the protections that are afforded by the legislation. I suppose the way to approach it is that any duty of confidentiality that person feels he or she has must give way to the greater public interest in receiving information about the relevant wrongdoing. Therefore, I do not believe that person would be bound by their duty of confidentiality whatsoever. In fact, it is quite the opposite.

The directive gives an opportunity for two categories of person to be protected whereby they do not have to make a protected disclosure, those being healthcare professionals and lawyers. One can see why that is the case because a lawyer clearly has a duty of confidentiality which is an ethical obligation in respect of his or her dealings with clients, and it is likewise with healthcare professionals. There may be an opportunity to allow an exclusion for lawyers, in particular, because of their duty of confidentiality. That said, even if that were not there, lawyers still have their overall obligation and duty of confidentiality that would protect them in any event should they not make a disclosure.