Patient’s Post-Surgery Death Leads to Controversy Over Alleged “Witch-hunt” for Whistleblower

On January 17, The Times reported that substantial controversy has arisen relating to the death of a woman who had undergone surgery at the West Suffolk Hospital in Bury St. Edmunds, England.  After an anonymous letter to the woman’s husband alleged errors in the woman’s surgery, the hospital reportedly asked its staff “to provide fingerprints and examples of their handwriting to try to establish whether they had written [the] anonymous letter.”

In 2018, the woman, Sue Warby, died five weeks after bowel surgery at the West Suffolk Hospital.  In October 2018, after the anonymous letter was sent to Mrs. Warby’s husband, Jon Warby,

Suffolk police and the hospital started investigations into the source of the letter at the request of the coroner.

The hospital, which insists that an investigation into Mrs Warby’s care was already under way, asked staff to provide fingerprints and handwriting samples. It is said to have spent £968 on a handwriting expert and £1,512 on a fingerprint expert.

The hospital stated that it had already begun an investigation into Mrs. Warby’s case at the time that Suffolk Police began their investigation.  According to The Times, however, “[i]n a staff meeting the hospital warned that ‘any refusal to provide consent . . . would be considered evidence which implicates you as being involved in the writing of the letter’.”  A union spokesperson described the hospital’s actions in the circumstances as a “witch-hunt.”

Although the hospital “denied that staff were threatened with disciplinary action if they did not offer fingerprints,” it reportedly apologized to them.  In addition, the West Suffolk NHS Foundation Trust stated that it has no intention of pursuing fingerprint requests further.

Nigel Parsley, the senior coroner for Suffolk, indicated that based on investigations into the anonymous letter’s claims “there had been problems involving an arterial line fitted to Mrs Warby in surgery.”  Mr. Warby himself said that that he was told during his wife’s operation that

an arterial line was fitted with an intravenous infusion to keep it clear but that she was incorrectly given glucose instead of saline. “I asked what the effect of this could be and the consultant told me brain damage or death,” he said.

When a spokesman for Downing Street was asked whether the measures that the West Suffolk Hospital had taken were appropriate, he replied, “Public safety is our priority. Mistakes should be used to learn from and improve. No one should be prevented from speaking up. Whistleblowers perform a vital service for the NHS. They must have a safe and open culture to do so.”

The Care Quality Commission, an executive public body of the United Kingdom Department of Health and Social Care, is preparing an inspection report that will include findings on the Warby matter.  That report is expected to be published before mid-February 2020.

Note:  Compliance officers at hospitals and other medical facilities should use this controversy as an opportunity to train their institutions’ management and staffs in how to handle whistleblower allegations with care.  Even if the Suffolk Police itself had an interest in identifying the author of the letter to facilitate its investigation, the hospital’s reported actions – particularly the threat of inferring culpability from a staff member’s refusal to consent – strongly suggests an internal culture antipathetic to whistleblowers.

For their part, the hospital and its trust should take the Downing Street statement as a strong indication that they need to review and revise their procedures for handling whistleblower complaints.  No hospital should ever create an impression within its staff that reporting of a problem with patient care should be met with bullying, intimidation, or efforts to expose the whistleblower, rather than prompt and evenhanded inquiry into the report.

Angolan Justice Minister Announces Recovery of More Than $5 Billion Stolen from Angolan Government

On December 17, Reuters reported that Angolan Minister of Justice Francisco Queiroz announced that in 2019 Angola had recovered more than $5 billion that had been stolen from state funds, both in Angola and elsewhere.  Speaking at the Conference of States Parties to the United Nations Convention against Corruption in Abu Dhabi, Queiroz reportedly stated that the money, which included $3 billion stolen from Angola’s sovereign wealth fund, “had been siphoned off by corruption and money-laundering.”

While Queiroz did not specify how the money was stolen, he declared that “[w]e have argued insistently that these important resources should be returned unconditionally to the countries from which they were illegally withdrawn in order to be used to improve the quality of life of our populations.”  In a separate statement, the Angolan Government disclosed that “a business partner” had returned more than $3 billion allegedly stolen from the sovereign wealth fund.

Queiroz also stated, according to the Angolan Government’s website, that the Government, led by President João Lourenço, “has chosen the fight against corruption and impunity as the main axes of the political agenda. As a result, he said, a genuine crusade against corruption and related phenomena is under way, with a greater focus on crimes involving managers and public officials.”  He added “that as a result of prevention, through campaigns of moralization, awareness and education, programs in the media, there is an awareness of the evil that represents corruption in the country.”

N.B.:  Queiroz’s announcement provides a notable benchmark for the Angolan government’s efforts against deeply entrenched corruption since 2017, when Lourenço succeeded José Eduardo dos Santos as Angola’s President after nearly four decades of dos Santos’s autocratic rule.  Thus far, Lourenço’s campaign has included the ouster of dos Santos’s son José Filomeno dos Santos as head of the sovereign wealth fund and dos Santos’s daughter Isabel dos Santos as head of the state-owned oil company Sonangol, as well as the head of the Angolan army and the head of Angola’s foreign intelligence agency.  More recently, on December 9 José dos Santos appeared before the Angolan Supreme Court, together with three co-defendants, on charges of money laundering and embezzlement.

Lourenço’s early anti-corruption actions may have left some observers skeptical that his campaign was more of a vendetta against the dos Santos regime and less of a genuine systematic anti-corruption campaign.  With these latest developments, however, there is reason to hope that that campaign is sincerely intended and sustainable.

FINMA Issues New Risk Monitor Identifying Key Risks for Financial Institutions

On December 10, the Swiss Financial Market Supervisory Authority (FINMA) announced that it is publishing a Risk Monitor report for the first time.  FINMA stated that previously the Risk Monitor has been solely an internal instrument that it used as part of a risk-assessment tool, but that it would issue the Risk Monitor annually in the future.

This Risk Monitor, in FINMA’s words, “provides an overview of what FINMA believes are the most important risks currently facing supervised institutions and describes the resulting focus of its supervisory activity.”  The new Risk Monitor identifies six principal risks for its supervised institutions and the Swiss financial center:

  1. The persistent low interest-rate environment.  The Risk Monitor stated that

[p]ersistently low interest rates in both Switzerland and the European Union (EU) over both short-term and long-term horizons are having a detrimental impact on the profitability of supervised institutions. This situation increases the risk of asset price bubbles and sudden reversals and may potentially undermine the viability of certain business models.”

The Risk Monitor also commented that “if interest rates were to stagnate at their current low levels for a very long time, this would pose a risk to certain business models. This is particularly true of banks focused on the interest margin business and life insurers.”

2. “[A] possible correction on the real estate and mortgage market, especially in the investment property segment.” The Risk Monitor observed that “[t]he sharp rise in vacancy rates for investment properties, combined with the ongoing boom in construction activity, is exacerbating the risks in the Swiss real estate and mortgage market.”  It added that “[p]revious crises have shown that financial institutions which expand their activity in the late phase of an economic cycle are particularly exposed to the risks of an ensuing economic downturn.”

3. Cyberattacks. The Risk Monitor highlighted the fact that “[t]he high and ever-growing dependency on and interconnectivity of information and communication technologies give rise to pronounced vulnerabilities among Swiss financial institutions.” It cited, as one example, that

outages of and disruptions to IT systems, particularly those resulting from cyberattacks, can jeopardise the availability of critical services and functions.  Depending on the nature of the cyberattack in question, this can have repercussions for individual financial institutions and threaten the functioning of the Swiss financial centre as a whole.

Recognizing that “[t][he number and intensity of cyberattacks are growing strongly,” the Risk Monitor also stated that “[a] successful cyberattack can have serious consequences for the functioning of the Swiss financial centre,” particularly if an institution that provides integrated or interlinked services (e.g., a systemically important financial institution) were successfully attacked.  Such an attack, the Risk Monitor warned, “could prove damaging both to other financial institutions and the Swiss economy as a whole. The reputational damage would be significant, and confidence in the Swiss financial centre would be affected.”

4. What FINMA termed “a disorderly abolition of LIBOR benchmark interest rates.” Because LIBOR benchmark interest rates continue to be widely used in financial instruments,” the Risk Monitor identified “[i]nadequate preparation for the replacement of LIBOR interest rates (envisaged by the end of 2021), including Swiss franc LIBOR,” as a key risk.

5. Money laundering. The report commented that the fact that the Swiss financial center “is a leading global crossborder wealth management hub for private clients   . . . makes it particularly exposed to money-laundering risks.”  It  took note of two specific concerns.  First, in light of the spate of recent corruption scandals involving entities such as 1 MDB and Petrobras, it stated that “the risks for financial institutions involved in the cross-border wealth management business remain high.” It also warned that the complexity of the structures involved in bribery and corruption, “particularly when domiciliary companies are used, can increase the risk of money laundering.”  Second, it specifically stated that

the financial industry also faces new risks in the area of blockchain technology and the cryptoassets that are attracting growing interest from clients. Although these new technologies promise efficiency improvements in the financial industry, they also accentuate the threats posed by money laundering and the financing of terrorism due to the greater potential anonymity they involve, as well as the speed and cross-border nature of the transactions. Malpractice by the financial institutions active in FinTech could significantly damage the reputation of the Swiss financial centre and slow down the development of digitalisation.

6,  Increased impediments to cross-border market access, particularly in the EU. Given the “trend towards tougher market access rules for foreign providers in a number of jurisdictions,” which “is occurring against a backdrop of increasing friction in international trade and uncertainties relating to Brexit,” the report stated that “[f]or Swiss financial institutions, this gives rise to legal uncertainties and risks, as well as the possibility of additional costs.”

In addition to these six principal risks, the Risk Monitor report identified other long-term risks.  It described “the financial risks arising from climate change as one of the most important long-term risks,”  but included comments about other long-term risks such as “an ageing society, the increasing individualisation of insurance based on big data, and risks for wealth management in a market with falling values of financial instruments.”

N.B.:  Risk and compliance teams at financial institutions with international operations should value the public issuance of the Risk Monitor for three reasons.  First, it provides them with an unprecedented level of insight into the thinking of FINMA about key risks in the financial sector, even if the report understandably focuses on risks affecting Swiss institutions and the Swiss financial  center.  Second, it also gives them a new source of analysis and perspectives that should be incorporated into their risk assessment processes.  Third, they should welcome FINMA’s willingness to make its own risk-assessment process more transparent and to commit to doing so in future versions of the Risk Monitor.

Some in the fintech sector may be surprised by the Risk Monitor’s admonitions concerning blockchain technology.  In separate remarks on December 10, however, FINMA Chief Executive Officer Mark Branson took pains to explain to reporters that FINMA wants to give blockchain developers “a chance and we have done a lot to remove unnecessary barriers to enable projects based on digital currencies.”  At the same time, Branson said, “we are also not starry-eyed as these new business models come with new risks, or old risks in new shapes.”

Institutions under FINMA’s authority should therefore be prepared, if they intend to push for greater adoption of blockchain technology, to present specific factual information and analysis to FINMA demonstrating how those institutions intend to modify their risk assessments and compliance programs to mitigate those “new risks” or “old risks in new shapes.”

Frankfurt Prosecutors End Money Laundering and Tax-Evasion Investigation of Deutsche Bank Employees, But Require €15 Million Payment for AML Controls Defects

On December 6, according to the Financial Times, Frankfurt prosecutors announced that they were ending a criminal investigation of two Deutsche Bank employees for suspected money laundering and tax evasion via a former Deutsche Bank subsidiary, but were requiring the bank to pay €15 million “for shortcomings in money-laundering controls.”

This action ends, at least for Deutsche Bank, a lengthy investigation by the prosecutors that focused on potential misconduct at the former Deutsche subsidiary, Regula, in the British Virgin Islands.  By far the most visible facet of that investigation was a two-day raid on Deutsche Bank headquarters and other premises in November 2018 “by 170 armed police looking for evidence of suspected wrongdoing.”  Worldwide media reporting on that raid had what a Deutsche Bank spokesperson recently described as a “heavy impact” on the bank, including plummeting share prices and mounting funding costs.

At the time, according to the Financial Times,

German law enforcement authorities suspected that Deutsche Bank clients transferred money linked to illegal activities to offshore accounts and that the bank failed in its legal duty to flag those transactions as suspicious between 2013 and 2018.

The criminal investigation focused on two managing directors in the bank’s compliance and wealth management units.

A Deutsche Bank statement reported that the investigation was ended “due to lack of sufficient suspicion.” Prosecutors nonetheless required Deutsche Bank to pay €5 million for shortcomings in its control environment, and confiscated €10 million in financial gains that they asserted the Regula-related transactions had generated for the bank.  The Frankfurt prosecutors reportedly plan to continue to investigate German customers of Regula that they suspect of tax evasion.

N.B.:  The Frankfurt prosecutors’ announcement brings to an abrupt and puzzling end a highly visible criminal investigation, in which the prosecutors, only six months ago, reportedly had considered about 80 current and former Deutsche Bank employees, including senior executives, to be suspects.  How long the prosecutors will sustain their interest in other German lenders’ and individuals’ possible involvement in tax evasion remains to be seen.

Football Association of Ireland Discloses €84 Million in Liabilities and Debts After Departure of Former CEO John Delaney

In the latest reporting on the financially troubled Football Association of Ireland (FAI), on December 7 The Times reported a series of new developments, since former FAI Chief Executive John Delaney’s resignation in September, that indicated how dire the FAI’s situation has become:

  • On December 6, the FAI publicly presented its accounts for 2018 and reconstituted accounts for 2017 and 2016. Those accounts show that–
    • The FAI has total liabilities of more than €55 million and bank debts of more than €29 million. Moreover, those bank debts “are in ‘technical default’ due to errors in the 2017 accounts. The FAI said that it was attempting to refinance its debts, and the loans have been categorised under liabilities.”
    • The FAI had “seriously overstated its financial position in previous years.” In 2016, the FAI reported a profit of €2.3 million, but its actual profit was only €66,000.  In 2017, the FAI reported a profit of €2.8 million, but it actually had a loss of €2.9 million.  In 2018, the FAI had a loss of €8.9 million, “including a voluntary disclosure of underpaid employment taxes and VAT,” plus interest and penalties of €2.7 million for the period between 2015 and 2018.
    • At the time of his departure from the FAI, Delaney received a settlement of €462,000, including a €372,000 contribution to his pension fund and €90,000 in lieu of notice. Donal Conway, who also announced on December 6 that he is to step down as FAI President in January 2020, said “that he was not aware of the details of the payout to Mr Delaney as it did not come before the entire board.”
  • Conway, who had been on the FAI board for more than then years, also stated “that he had no idea the association’s finances were in such bad shape.” He admitted that “[t]he board I was a member of as a collective did not do its job well,” and stated, “I was part of a board that should have scrutinised more seriously than it did.  I feel responsible for not having discharged that responsibility to a higher standard.”
  • Paul Cooke, who recently took over as the FAI’s executive lead and had been a longtime critic of Delaney’s conduct as CEO, said that “[w]hat we found in [the accounts] in addition to pension payments, loyalty bonuses, there were other payments that would have been paid on behalf of the former CEO, and items that should have been recognised as benefit in kind.”

In addition, Deloitte, the FAI’s auditors, stated that since the end of 2018, the FAI “has had negative operating cashing. The Association is reliant upon continued financial support from UEFA and the Association’s bankers.”  It also stated that since the end of 2018, the FAI “has received ‘continuous financial support” from UEFA to help meet its “ongoing operations.”  It reported that the FAI “was in ‘advanced discussions’ with its bankers to try to agree long-term funding to help it meet its liabilities and provide ‘financial stability to the balance sheet in the short and medium term’.”  Although Deloitte noted that the FAI’s current directors “are optimistic that an agreement can be reached, however note that this presents a material uncertainty as regards the ability of the association to meet its liabilities as they fall due.”

N.B.:  In light of these latest reports concerning the FAI’s financial woes, it is not surprising that the FAI’s plight has become a matter of national concern.   The ripple effect of the FAI’s situation has caused great distress among local football clubs, even prompting Taoiseach Leo Varadkar to “pledg[e] to save grassroots football.”

These reports also indicate that the FAI has now become a case study in how the failure to conduct appropriate board oversight of senior leadership and finances,  and to maintain effective internal controls, can have devastating consequences for an organization.  Even with new executive leadership and new independent directors, the FAI faces a long and hard road in restoring its financial affairs and public confidence in its stewardship.