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Ministers warning trusts over 'gagging clauses'

Ministers are writing to trusts following concerns that “gagging clauses” are being used to prevent nurses from whistleblowing.

The move was sparked by claims that staff at two NHS organisations were advised in the course of settling legal disputes with their employers to sign “compromise agreements” preventing them from raising concerns over patient care.

Royal College of Nursing chief executive and general secretary Peter Carter appeared before the health committee on Wednesday to discuss the claims.

He told MPs that nurses often chose to keep their payoffs confidential, but the RCN would “never sign up” to deals attempting to ban them from raising concerns about care. British Medical Association consultants committee chair Mark Porter agreed with Mr Carter.

But Conservative MP Sarah Wollaston read out a compromise deal one worker was asked to sign barring them from raising any “complaint or grievance” with a long list of organisations including the CQC and the Nursing and Midwifery Council.

She called the document “very discouraging and intimidating”. “The end result could be that patient safety is put at risk,” she added.

She asked why the CQC could not tell trusts they “must” not have this clause. CQC deputy chief executive Jill Finney said the regulator will send out a “major communication” next Wednesday.

This would “make it clear to all NHS professionals that if they sign a compromise agreement they’re still at liberty to contact the CQC without in any way compromising their remuneration”.

Nursing Times understands the communication will contain guidance, produced with the Nursing and Midwifery Council and NHS Employers, on how frontline staff can raise concerns with the CQC. The regulator is also launching a whistleblowing hotline.

In a later session, the Department of Health’s professional standards branch director Gavin Larner said ministers would be writing to all NHS organisations and Monitor would be writing to foundation trusts “to remind them of their responsibilities”.

Mr Larner said: “Ministers absolutely agree that such clauses are incompatible with the [Public Disclosure] Act and are not acceptable.”

He wrote on the 28 November to the two organisations concerned – Lewisham Hospital Trust and NHS Barking and Dagenham – to ask them to review their policies.

“There’s a consensus here that we need to encourage people to speak out”.

NHS organisations are obliged to pay for staff to obtain legal advice regarding compromise agreements. Barking and Dagenham and Lewisham may have used the same legal team, according to Mr Larner.

The DH has contacted the Solicitors Registration Authority. Separately, an MP has referred the case to the Legal Standards Board.

Readers' comments (2)

  • Any organisation or individual who signs one of these things and adheres to it is breaking Statutory Legislation and NOT just the Public Disclosure Act. Both parties could face punishment (even do jail-time).

    Some 'companies' will try to use business law - saying that certain 'disclosures' will give their 'competitors' an undue advantage etc but 'criminal law' trumps 'business law'. Its more than just an ethical issue here - patients lives could be at stake.

    There is no policy, procedure or protocol in the land higher than Statutory Legislation and the NHS is not above the laws of this land.

    There is also employment related legislation to cover any employee or potential employee who is feels they are being forced into such a position.

    Unsuitable or offensive?

  • michael stone

    The Revenue is also currently 'going after' a whistle-blower - this area needs cleaning up, and for the NHS more 'anonymous raising of non-personal' issues as the basic procedure.

    Unsuitable or offensive?

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