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”.
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