Gagging Clauses and Bullying – Herald
Dear Mr Neil
It is with some regret that I read today about the case of Dr Hamilton,
perinatal psychiatrist NHS Lothian, and that the Government have
declined to act despite the evidence that she is being pressed into accepting money for silence.
Herald headlines today.
The issue of a draft compromise agreement to Dr Hamilton that she is
expected to sign in order to be partly compensated for her treatment at
the hands of NHS Lothian is unacceptable, whilst her concerns are brushed aside.
I understand that the official line will be that she could still make a protected disclosure, despite accepting money and this agreeement.
That would be impossible without the necessary documentation to evidence her concerns.
Her experience almost exactly mirrors mine, which you have acknowledged
was a shockingly bad way for an employee to be treated. As you may know
I have received a number of awards this year- the latest a special
award for excellence for my contribution to society from the University
of Nottingham, as an alumni. The health regulator in England is now
seeking advice from myself in terms of how we can engage more
constructively with frontline staff to hear their concerns. I hope to
start a secondment with them soon.
I attach the ” life cycle of a whistleblower as written by my colleague
in Patients First Roger Kline, this has been developed from a large
number of cases now UK wide.
Last year the Secretary for State for Health Jeremy Hunt issued a ban
of gagging clauses in severance agreements agreed with anyone who has
raised concerns about patient safety. This was a positive start towards
a more open NHS.
We call for a complete ban of such clauses. The reasoning is , that
whilst they still exist there are temptations for Boards to bury bad
news in these payoffs.
We are lobbying all key stakeholders about this issue and will continue
to do so until there is real protection for health professionals. We
are particularly concerned about the lack of support for health
professionals from their unions.
On behalf of Patients First I urge you now to commission a fully
independent and open inquiry into the treatment of staff raising
concerns at NHS Lothian. This should involve the lifting of historical
gagging clauses and examination of those cases to fully understand the
strategies used against whistleblowers, the role of the unions and the
health regulators. The ongoing threats and ignoring of concerns are
very detrimental to patient safety. One mother has lost her life
apparently due to poor care in the NHS Lothian perinatal service- it
is of prime importance that these matters are robustly and
independently looked at to prevent further harm to mothers and children.
Yours Sincerely
Kim
Dr Kim Holt Chair & Founder of Patients First
PF Letter to Jeremy Hunt 18Feb
wwwpatientsfirst.org.uk
Registered Office: 1st Floor, 2 Woodberry Grove, Finchley, London, N12 0DR
Rt Hon Jeremy Hunt
Secretary of State for Health
Richmond House
79 Whitehall
London SW1A2NS
OPEN LETTER sent by email
18th February 2013.
Dear Secretary of State
We are writing to you on behalf of Patients First, the NHS whistleblowers campaign.
We are writing to welcome the letter you have recently sent to NHS Trusts in the wake of the disclosures made by Gary Walker, former chief executive of United Lincolnshire Hospitals NHS Trust, but to ask that you go much further.
You are reported as warning NHS Boards against allowing a culture that is “legalistic and defensive” in dealing with staff who raise concerns over patient care and highlighting fears that “gagging” clauses are being used to “frustrate” such whistleblowing.
We welcome that warning as well as your call for the NHS to “recognise and celebrate” staff who had “the courage and professional integrity to raise concerns over care”. You say that you want a climate “where it is easy for staff, present and former, to come forward with any concerns they have relating to patient safety”.
However, as individual whistleblowers, we know how widespread the problem is and how great the fear is amongst staff that have raised concerns of the consequences of speaking out. We believe that unless you go further, your letter will have no greater impact than previous letters and declarations, notably that sent only last year by Sir David Nicholson who also wrote to all NHS Trusts about such agreements to no great effect, and without it being followed it up effectively.
It is essential for the DH, regulators such as CQC and Healthwatch to know when staff have had to resort to whistle-blowing, what has been the outcome, and whether there has been any recourse on the part of the Trust to impose any form of gagging against the whistle-blower. This can only happen if Trusts are required to keep this information in a standard format, which is open to inspection. We believe this is consistent with recommendations in the Francis report of increased transparency and accountability.
Specifically we are asking you, as a matter of urgency, to personally write to all NHS Trusts and Strategic Health Authorities (and/or their successors) to make it clear that where a member of NHS staff has previously been asked to sign a “gagging clause” which can reasonably be understood to prevent them raising patient safety concerns or other public interest disclosures subject to Section 43J of the Public Interest Disclosure Act 1998, that such gagging clauses will be regarded as null and void and must not be enforced. We would ask that you reinforce that message by making it clear that the gagging clause in Gary Walker’s case is similarly null and void and is not to be enforced.
Such confidentiality agreements are in any case void under Section 43J of the Public Interest Disclosure Act 1998. Despite that, previous statements and the NHS Constitution have so far failed to prevent such “gagging” agreements being made by NHS employers. You could begin a decisive change in NHS culture by taking the action we request.
We look forward to your confirmation that you will do so
Yours sincerely
Checked online ; postal copy to follow.
Jennie Fecitt
RN, BSc (Hons), Specialist Practitioner (Adult Nursing), NMP, PGCE
Committee Member, Associate Lead Nurse
Patients First
Dr Kim Holt
MB ChB BSc DCH MRCP MSc
Consultant Paediatrician, Lead Consultant Patients First..
Our purpose is to reduce death and harm in the NHS by campaigning for the UK Government to create policies and laws that ensure the NHS becomes open and accountable and we support all those who raise concerns about patient safety.
PF Response to D Nicholson letter of 1st Feb
wwwpatientsfirst.org.uk
Registered Office: 1st Floor, 2 Woodberry Grove, Finchley, London, N12 0DR
Sir David Nicholson
Chief Executive of the NHS
Richmond House
79 Whitehall
London SW1A2NS
OPEN LETTER
14th February 2013
Dear Sir David
Whistleblowing and gagging clauses
Thank you for your letter dated February 1st received on February 6th. It raises a number of questions to which I would appreciate your response.
- You write that “the Department of Health has recently secured a Government amendment to the Enterprise and Regulatory Reform Bill improving PIDA protections for NHS staff” and refer me to the House of Lords discussion on December 10th 2012.
Patients First is not aware of any Government amendment that fundamental improves the PIDA protections for NHS staff as a whole. The only amendment tabled on December 10th 2012 is one that extends the coverage of PIDA without making it more effective in the NHS. We presume that you refer to amendment 21: Clause 15, page 12, line 5, and the proposal to insert as follows:
“(2) Section 43K of that Act (extension of meaning of “worker”) is amended as set out in subsections (3) to (8).
(8) After subsection (3) insert:
(4) The secretary of State may by order make amendments to this section as to what individuals count as workers for the purposes of this Part (despite not being within the definition in section 230(3)).”
This amendment provides no improvement whatsoever for the vast majority of NHS staff, and completely fails to address the regressive nature of court decisions which have ensured that the provisions of PIDA provide no deterrent to Trusts victimising staff. At best NHS Trusts generally regard PIDA as requiring some limited post-event compensation.
If you are referring to another amendment on this or any other date, could you please draw our attention to it?
2. Since you refer to Enterprise and Regulatory Reform Bill we are aware that the Government, by imposing an additional “good faith” test for whistleblowers, is making whistleblowing more problematical. Moreover since the Government failed to accept the various amendments tabled by Lady Dean, Lord Touhig and others on December 10th, we are firmly of the view that far from the amendment you refer to making any significant improvement, the Government has rejected attempts to make PIDA more effective and is actually making it more difficult. In addition, youre Department, and you personally, failed to intervene in the case of Jennie Fecitt and colleague’s v NHS Manchester. This case removed vicarious liability protection from NHS whistleblowers and is a serious loophole in the law as it stands.
Can you therefore please clarify the Department of Health view of why they believe PIDA adequately protects health professionals who raise concerns? Our evidence shows this not be the case.
Further, since you raise the wider issues of PIDA, can you please clarify why the Department of Health and yourself in particular failed to intervene to prevent the repeated hounding of the NHS Manchester nurse whistleblowers via the legal process and in so doing inappropriately spent public money on such legal cases.
4. In our original letter we asked what monitoring the Department of Health had undertaken following your circular of January 2012. In response you state that “where the DH has been made aware of localised instances…..we took steps to write directly to the Trusts involved”. That suggests that gagging clauses do exist and that there has in fact been no systematic follow up monitoring of your circular and that only when a particular instance is drawn to your attention do you intervene.
Could you please clarify if this is indeed the case, and if so should we assume that unless an employer or an individual member of staff draws it to your attention, you do not know?
5. You further write that when you have written to Trusts involved that “those Trusts responded to say they would review their local policies”.
Can you explain why any Trust would not have a policy in place that bans such gagging clauses?
6. Could you please provide the name of every Trust you have written to, following your becoming aware of Trusts enforcing such clauses to this effect since January 2012?
7. Can you further explain what disciplinary sanction has been taken against Board members of that Trust for breaching a direction from yourself and using taxpayers funds to fund the preparation and implementation of such an unlawful document as a compromise agreement with a confidentiality clause, as well as fighting cases against whisteblowers through the courts at great expense.
8. In the HoC HSC minutes of oral evidence to the Health Select Committee of 7 December 2011 HC 1699-i, one of your officials, Mr Mathew Fagg, stated in response to Q110 from Grahame Morris MP that
“For example, we produce monthly reports based on complaints and whistleblowing cases that arise. These are shared with the CQC and Monitor and the expectation is that, where there is a cluster of concerns around an organisation, those are acted on.”
In the light of this, could you please provide for the period since January 2011:
a. Copies of each of the monthly reports
b. Copies of the regular responses received from Monitor and CQC confirming that they have actioned that expectation, and to what effect?
- Finally, you against reiterate that Department of Health guidance has consistently been that confidentiality clauses “which seek to prevent the disclosure of information which is in the public interest” are unlawful.
Could you therefore please confirm that should any current or former NHS employee have been coerced into signing, or otherwise have agreed to sign, any such agreement, that you will confirm that the “gagging” clause they have been subject to can immediately be lifted, with a personal assurance from yourself that no NHS employer will be permitted to seek redress for breaches of such clauses.
I look forward to your response. For the avoidance of doubt please regard these questions as an FOI request.
Yours sincerely
Dr Kim Holt
On behalf of Patients First.
Signed and hard copy sent 130213.
Dr Kim Holt, Consultant Paediatrician MBCHB BSc DCH MRCP MSc, Chair of Patients First and Lead Consultant.
Cc
Rt Hon Stephen Dorrell Chair of Health Select Committee by email
Ms Valerie Vaz MP Health Select Cpmmittee.
Jennie Fecitt, RN, BSc (Hons), Specialist Practitioner (Adult Nursing),
Elsie Gayle, RN, RM, Independent Midwife, Midwifery Lead Patients First.
Mr Roger Kline, Visiting Research Fellow Middlesex University, and Director of Patients First.
PF letter to David Nicholson 12Feb13
wwwpatientsfirst.org.uk
Registered Office: 1st Floor, 2 Woodberry Grove, Finchley, London, N12 0DR
Sir David Nicholson
Chief Executive of the NHS
Richmond House
79 Whitehall
London SW1A2NS
12 January 2013
Dear Sir David Nicholson
I am writing to introduce you to Patients First, a campaigning group made up of health professionals across nursing, midwifery, medicine and management.
We are writing to you on the anniversary of your 11th January 2012 letter to all chief executives on “ Compromise agreements and the Public Interest Disclosure Act. 1998.
In that letter you wrote:
“ PIDA provides that any clause or term in a contract, policy or other agreement between a worker and their employer is void as far as it purports to preclude the worker from making a protected disclosure. Use of such clauses contravenes the spirit of guidance issued by the Department of health to NHS organisations in Health Service Circular 1999/198.”
“I would particularly draw your attention to point (v) on page 3 of that circular which states that “ NHS Trusts should prohibit the use of “gagging” clauses in contracts of employment and compromise agreements which seek to prevent the disclosure of information in the public interest”
“Our view is that where an agreement is reached that an individual will withdraw or agree not to make a complaint about a specific matter to certain bodies, the compromise agreement should make clear the right to make a protected disclosure is not affected.”
An increasing number of members have described specific cases where the practice of gagging whistleblowers exists today despite the 1999 guidance and your letter of Jan 2012.
“I would therefore ask you to satisfy yourselves that your organisations policies are in line with HSC 1999/198.”
We are writing because we are concerned that not all NHS employers appear to be respecting the spirit of this letter. For example, if there is also a requirement for that individual to hand back all related documentation then clearly this can make it difficult if not impossible to pursue any public interest disclosure. We are actively campaigning to ensure that when staff do raise concerns they are not driven out of their posts using compromise agreements to bury bad news.
In addition our concern is that the continued use of such confidentiality or “gagging clauses” acts as a deterrent to others to then raise concerns as they witness the detriment suffered by their colleagues who did raise public interest concerns and have ended up losing their jobs.
We would therefore appreciate it if you could please:
1. Clarify what steps you yourself have taken, or have asked others to take, to monitor whether chief executives have taken appropriate steps to protect whistleblowers
2. Share the results of that monitoring with us
3. Set out what steps you have taken on the basis of that monitoring, or any wider intelligence, to intervene to protect individual whistleblowers or prevent NHS employers victimising whistleblowers
4. Confirm what follow up circulars you have issued pursuant to your letter of11th January 2012
In the light of the forthcoming Public Inquiry report from Robert Francis QC we would appreciate an early response to our letter so it may inform our response to that report.
For the avoidance of doubt please also regard this letter as a Freedom of Information request.
Yours sincerely
Dr Kim Holt, Consultant Paediatrician MBCHB BSc DCH MRCP MSc, Chair of Patients First and Lead Consultant.
Jennie Fecitt, RN, BSc (Hons), Specialist Practitioner (Adult Nursing), NMP, PGCE Lead Nurse Patients First
Elsie Gayle, RN, RM, Independent Midwife, Midwifery Lead Patients First.
Mr Roger Kline, Visiting Research Fellow Middlesex University, and Director of Patients First.