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Government moves to clarify protection for whistleblowers

The government has moved to tighten up the use of so-called “gagging” clauses and pay offs to NHS employees in the wake of high profile coverage of whistleblowing cases.

From now on all compromise agreements will have to include a clause stipulating that any requirements for confidentiality in relation to the agreement do not prevent an individual from raising patient safety concerns.

Compromise agreements which attempt to prevent this have been void since the introduction of the Public Interest Disclosure Act in 1998. However, many whistleblowers and campaigners have claimed confidentiality clauses have a chilling effect on individuals raising concerns.

Health secretary Jeremy Hunt announced the change in an interview with the Daily Mail, saying the “era of gagging NHS staff from raising their real worries about patient care must come to an end”.

Founder of whistleblowing campaign group Patients First, Dr Kim Holt, herself a whistleblower, gave a cautious welcome to the announcement.

She said: “We welcome this recognition of the existence of these unlawful clauses. It will be a step in removing the immense pressure placed on staff who raise concerns and then bullied out of work.”

In a separate move the government has also closed a loophole governing pay-offs for NHS staff who take their employer to tribunal. These were the circumstances of the high profile case of former United Lincolnshire Hospitals Trust chief executive Gary Walker.

The loophole made the headlines earlier this month when NHS chief executive Sir David Nicholson told MPs on the Commons health committee he did not know about a £500,000 pay out received by Mr Walker.

Sir David said because the pay out had been agreed through a process of judicial mediation after Mr Walker had bought his case to an employment tribunal it had not required sign off by the Department of Health or the Treasury as other severance payments and compromise agreements would have.

Judicial mediation is a process in which the two parties can negotiate an agreement under the supervision of an individual appointed by the tribunal judge. Both parties are free to leave the negotiations at any time and nothing said during negotiations can be used in any subsequent tribunal hearing.

Talking about Mr Walker’s payout and the “gagging” clause which he signed as part of the agreement, Sir David said he would “never sanction anything of that sort” and described it as “completely and utterly unacceptable”.

In response to a parliamentary question this week, health minister Dan Poulter said the government had changed its policy.

“Approval has not hitherto been required by the Chancellor of the Exchequer or the Secretary of State for Health for special severance payments made as a result of judicial mediation. However, as of 11 March 2013 approval will be required by both the Department of Health and HM Treasury for special severance payments made as a result of judicial mediation,” he said.

Chief executive of NHS Employers Dean Royles said the group welcomed any initiative that helped create a climate of openness and transparency but compromise agreements remained a “valuable tool for both employers and employees”.

Sign our Speak Out Safely petition to support a transparent and open NHS. We are calling on the government to implement recommendations from theFrancis report that will increase protection for staff who raise concerns about patient care.

Readers' comments (5)

  • This is a power issue. Employees will be crushed by Employers even if given this confidence to whistlebow.

    The only solution is to ensure employees are not victimised for raising concerns. The failure to guarantee whistleblowers security of employment may result in relatives having to take staff through law courts and litigation. Whistleblowing may be part of our ''advocacy'' role.

    The NHS is run by technocrats and they are devoid of a humane face hence the crisis.The people who were on watch when the badthings took place should fall on their swords ratnher than claim they are part of the solution,

    The RCN should run a campaign to get rid of staff who did not act professionally. This is not a witch hunt but a request for some accountability.

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  • michael stone

    This is one of the few health-related Mail articles, that seems to make sense.

    Anonymous | 14-Mar-2013 3:04 pm

    I agree with most of that (but not everyone running the NHS is devoid of humanity - some seem to be) and I've commented before on extending 'nurse advocacy' to concerns raising:

    'Whistleblowing may be part of our ''advocacy'' role'

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  • Removing secrecy clauses from compromise agreements is one thing - still leaves plenty more for covering up impropriety.
    What about the many cases of whistle blower punishment that dont end up in an employment bust up. Protection has to be built in up to the bed edge.

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  • I wonder if we reread our contracts and local policies we might find confidentiality and compromise clauses buried somewhere in them, though I'm sure there's no pay offs. It may be implicit rather than explicit and not being legal experts its hard to establish and still open to interpretation.
    It's very easy for policymakers to say what should be done. Not so easy to advocate for patients when there's no protection and advocates for whistleblowing staff.
    The NMC should be making sure this happens to 'protect patients' by getting itself fit for purpose, prosecuting people fraudulently claiming to be nurses and enable nurses and midwives to be advocates without fear or reprisals.

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  • Patrick newman is spot on.

    The real battle over the underlying clauses - secrecy, denial, bullying and creating a "just" workplace culture - is just beginning.

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