From: Minh Alexander <minhalexander@aol.com>
Subject: Settlement agreements and use of “super-gags” by NHS bodies
Date: 23 September 2016 at 11:46:24 BST
To: Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, maggie.throup.mp@parliament.uk, andrew.percy.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, paula.sherriff.mp@parliament.uk, bradshawb@parliament.uk, julie.cooper.mp@parliament.uk, emma.reynolds.mp@parliament.uk, pubaccom@parliament.uk, meghilliermp@parliament.uk, pacac@parliament.uk, Bernard Jenkin <bernard.jenkin.mp@parliament.uk>, amyas.morse@nao.gsi.gov.uk, mb-sofs@dh.gsi.gov.uk, Edward Jones <edward.jones@dh.gsi.gov.uk>, sheyda.m.azar@parliament.uk, bottomleyp@parliament.uk
To House of Commons Health Committee, 23 September 2016
Dear Dr Wollaston and colleagues,
Settlement agreements and use of “super-gags” by NHS bodies
I wrote to you in February to ask whether firmer action should be taken to deter the inappropriate and excessive use of confidentiality clauses in NHS settlement agreements, which is still obviously prevalent.
I now inform you that there is no evidence that CQC inspects NHS bodies’ use of settlement agreements despite its various claims that it does so, when “necessary” or if warned.
My findings are summarised in a paper which I have published here:
https://minhalexander.com/2016/09/23/nhs-gagging-how-cqc-sits-on-its-hands-2/
I have already informed Public Accounts Committee of my findings, with respect to PAC’s previous recommendations on tracking public sector settlement agreements, upon which the NHS has clearly not properly acted.
I would be grateful to hear from Health Committee on how it is minded to respond to this additional evidence of NHS inaction on transparency and whistleblower protection.
Many thanks.
Yours sincerely,
Dr Minh Alexander
cc Chairs of PAC and PACAC
Sir Amyas Morse Comptroller and Auditor General NAO
Secretary of State for Health
Shadow Secretary of State for Health
Sir Peter Bottomley MP
From: Minh Alexander <minhalexander@aol.com>
Subject: Settlement agreements and “super-gags” by NHS bodies
Date: 15 February 2016 at 12:21:50 GMT
To: Health Committee <healthcom@parliament.uk>, sarah.wollaston.mp@parliament.uk, philippa.whitford.mp@parliament.uk, maggie.throup.mp@parliament.uk, andrew.percy.mp@parliament.uk, james.davies.mp@parliament.uk, andrea.jenkyns.mp@parliament.uk, paula.sherriff.mp@parliament.uk, bradshawb@parliament.uk, julie.cooper.mp@parliament.uk, emma.reynolds.mp@parliament.uk
Cc: pubaccom@parliament.uk, meghilliermp@parliament.uk, richardbaconmp@parliament.uk, harriett.baldwin.mp@parliament.uk, deidre.brock.mp@parliament.uk, kevin.foster.mp@parliament.uk, stewart.jackson.mp@parliament.uk, nigel.mills.mp@parliament.uk, caroline.flint.mp@parliament.uk, chris.evans.mp@parliament.uk, bridget.phillipson.mp@parliament.uk, david.mowat.mp@parliament.uk, stephen.phillips.mp@parliament.uk, pughj@parliament.uk, karin.smyth.mp@parliament.uk, annemarie.trevelyan.mp@parliament.uk, Bernard Jenkin <bernard.jenkin.mp@parliament.uk>, pacac@parliament.uk, ronnie.cowan.mp@parliament.uk, oliver.dowden.mp@parliament.uk, paulflynnmp@talk21.com, cheryl.gillan.mp@parliament.uk, hoeyk@parliament.uk, hopkinsk@parliament.uk, jonesdi@parliament.uk, gerald.jones.mp@parliament.uk, tom.tugendhat.mp@parliament.uk, mail@islandmp.org, AnthonyHooper@matrixlaw.co.uk, rfrancis@serjeantsinn.com
To Health Committee 15 February 2016
Dear Dr Wollaston and fellow committee members
Settlement agreements and “super-gags” by NHS bodies
The NHS’ use of settlements has been criticised to various degrees, for inappropriate secrecy and possible concealment of governance failures.It is generally accepted, including by Sir Robert Francis, that even where settlement agreements are strictly speaking legal (and contain clarification that a worker’s rights to make public interest disclosures are unfettered), they can still be constructed in such draconian terms and language that they still serve to intimidate and effectively silence staff. In particular, Sir Robert criticised the use of “super-gags”, which prevent parties from even disclosing the existence of agreements:
“…I have seen some which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement.”
“…The excessive use of confidentiality clauses of any type in settlement agreements is a hindrance to transparency”
“…It is also clear that there is an atmosphere of fear and confusion surrounding the obligations of confidentiality in such agreements so as to make them a deterrent against public interest disclosures even where they do not have that effect in law.”
Such were the extent of Sir Robert’s concerns about current handling of NHS settlements that he suggested that the National Guardian should perhaps have responsibility for reviewing proposed settlements that require Treasury approval:
“NHS TDA and Monitor should consider whether their role of reviewing such agreements should be delegated to the Independent National Officer”
I can see no public interest argument for any use of “super-gags”. However, they appear to have been used extensively in the NHS. Of significance, the former trusts of the new CQC Chair and the new CEO of NHS Improvement have both confirmed substantial use of such confidentiality clauses: 22 and 45 “super-gags” respectively, in the last 5 years. I attach the relevant FOI disclosures by these trusts.
I wonder if more robust, enforceable requirements need to be issued to make it clear that the NHS (and indeed other public bodies) should not use intimidating albeit legal settlement agreements, and in particular that all use of “super-gags” should cease.
Yours sincerely,
Dr Minh Alexander
cc Rt Hon Sir Anthony Hooper
Sir Robert Francis
Public Administration and Constitutional Affairs Committee
Public Accounts Committee
Dame Eileen Sills
Alexander's Excavations 