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Kim Holt: 'We welcome this recognition of the existence of these unlawful clauses'


NHS whistleblowers campaign group Patients First’s Kim Holt has given a cautious welcome to Jeremy Hunt’s statement banning NHS gagging clauses.

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. We call for a retrospective lifting of those gags imposed upon the hundreds of health professionals who remain in fear of being sued but know that they were wrongly dismissed.

Patients First believe this statement raises as many questions as it answers.

Firstly, in the last five years, more than 400 compromise agreements outlining special severance payments for departing NHS staff have been approved by the Department of Health. Yet Sir David Nicholson has repeatedly stated he knows of no compromise agreements with gagging clauses being approved by the DH. If that is the case why is today’s welcome statement necessary?

Secondly, the Department of Health is quoted by the BBC as saying “it does not know the extent to which payments were tied to clauses stopping recipients speaking out about any problems of patient safety or care.” Why not? If this is the case what has been the point of his circulars in 2012 and 2013 telling Trusts such agreements are unlawful if, despite the DH approving them, he doesn’t know which ones are tied to public interest gagging clauses?

Our own correspondence with Sir David Nicholson earlier this year suggests that ifthe DH believes a Trust might be seeking to impose such a gagging clause the DH Wouldwrite to the Trust to tell them to amend their policies. However, there is no evidence whatsoever that this has been done and whether any Trust doing this has faced sanctions. If not why not?

Thirdly, Sir David Nicholson has been adamant he (and therefore the Department of Health) is not aware of any public interest “gagging clauses” being approved by the Department of Health. Patients First has copies of such agreements which we areconfident did got to the Department of Health. Why didn’t Sir David know about them if all special severance payments go through his department?

Fourthly, will this ban on public interestgagging clauses now be made retrospective so that anyone who has been forced to sign such a clause is now free to speak out on the gagged issues and to be indemnified against any claims from Trusts?

Fifthly, this is the fifth such statement to have been made by Ministers since 1999 that gagging clauses are banned. The public and staff need to know what the sanctions are for Trusts which breach this policy?

We agree with Health Secretary Jeremy Hunt that “the era of gagging NHS staff from raising their real worries about patient care” must end and that a “culture of openness and transparency” is at the heart of trying to drive up NHS standards.

Patients First point out that gagging clauses are the tip of a very big NHS iceberg. The recently published NHS staff  reported that:

  • 28% of NHS staff would not feel safe raising concerns about fraud, malpractice or wrong doing
  • only just over half of staff (55%) would feel confident that their organisation would handle a complaint effectively if they did voice concerns
  • 24% reported being bullied or harassed by managers or other staff in the last 12 months – a key factor in preventing staff raising concerns at Mid Staffs and elsewhere.

If Jeremy Hunt wants to deal with the underlying problems then it is that culture of bullying and fear which prevents staff raising concerns which must be tackled and with urgency. David Nicholson has had over 6 years to tackle this problem. He has failed. Part of the solution is to find leadership that will model the culture the NHS desperately needs.


Readers' comments (2)

  • Again- people need to be seen to be held accountable and Sir David Nicholson needs to go go go .

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  • I have just had to sign a compromise agreement with gagging clauses in the last month so the practice is still going on. In this case it is a private organisation who has been awarded large contracts to provide NHS services. How are we going to regulate the non-NHS providers?

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