By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 22 September 2016
At a time when there are harsh cuts that affect patient safety, NHS staff need more than ever to be able to speak up without fear of reprisal, the health watchdog Care Quality Commission (CQC) is not doing enough to prevent cover-ups. This is partly due to failure to deter the inappropriate use of compromise agreements by regulated bodies. The CQC has claimed that it would inspect providers’ use of compromise agreements if “necessary”, but a review of almost 200 current CQC inspection reports on NHS trusts reveals no evidence whatsoever that it has done so.
Compromise (settlement) agreements are legal contracts that NHS organisations use to define how staff employment is terminated. Some of these agreements are benign, but some are used to cover up failure. Employers may seek to improperly gag themselves and departing employees who have under-performed or have been party to wrong-doing. Alternatively, employers may also use compromise agreements to silence whistleblowers. Gags can take the form of confidentiality clauses that make the existence or contents of agreements secret, or non-disparagement clauses that prevent the signatories from criticising each other.
There has been longstanding concern about the inappropriate use of compromise agreements in the public sector, including the NHS. Public Accounts Committee has made recommendations on improving practice but the government has watered them down. [1] [2] [3] [4] [5] [6]
Infamously, it was revealed that CQC gagged its own staff. [7] [8] [9]. The journalist Andrew Bousefield wrote: “A highly placed source in the CQC told Medical Harm he “had never before or since seen the number of people signing gagging orders” as they left the organisation.” This included a non-disparagement clause in the case of Dr Heather Wood, respected lead investigator of the team that uncovered failures at Mid Staffs. CQC later dismantled the investigation team. [10]
The non-disparagement clause in Dr Heather Wood’s case was quoted verbatim in the Mid Staffs Public Inquiry report [11]. Robert Francis criticised the CQC thus:
“…the agreement had a “chilling effect” inimical to the public interest and inconsistent with the role of the CQC as a regulator in a sector in which the public have a distinct right to know about concerns affecting their health and well-being”
Compromise agreements that seek to prevent signatories from making disclosures in the public interest (whistleblowing) are in fact illegal. Since 2013 when Robert Francis recommended that gagging in the NHS should be abolished [12], the NHS has worked around this problem of illegality by simply sticking an additional clause into compromise agreements – that still contain gags – which basically says “…but you can still whistleblow”. This just creates confusion and anxiety for staff who are subject to intimidating compromise agreements with gags. How would a lay person with no legal expertise know exactly what they could safely disclose ‘in the public interest’ without breaching such an agreement? Such matters are often subject to legal argument and ultimately require determination by a Tribunal. So how could the ordinary person in the street feel sure about what they can say and whether they will be legally protected if they do?
Press headlines in 2013 reported that Jeremy Hunt had banned gags in the NHS, but this was not so. He simply wrote an ineffectual letter to trusts asking them to do better. [13] The gagging continued and in 2014 the journalist Andrew Bousefield submitted evidence to the Freedom to Speak Up Review on NHS whistleblowing, which included:“64 blacked out compromise agreements in which the gagging clause is easily visible.” [14]
In his report of the Freedom to Speak Up Review, Robert Francis commented on how even legal compromise agreements can be intimidating if they are written in legalistic language and contain “draconian” and “restrictive” clauses that require secrecy of one sort or another. He described a “chilling” effect and concluded that some of the clauses he examined during the review were excessively restrictive. He singled out the use of gags that make the existence of compromise agreements secret (‘super-gags’) as particularly harsh. [15] Indeed, there are whistleblowers who were subject to technically legal compromise agreements but decided not to risk submitting evidence to the Freedom to Speak Up Review, because their agreements contained gags. Arising from his findings, Robert Francis recommended:
- NHS Chief Executives should take personal responsibility for checking that all compromise agreements are not unduly restrictive
- The CQC should review trusts’ compromise agreements as part of their inspection process when assessing whether trusts were “well-led”
Through various exchanges of correspondence, I asked CQC how it was implementing the latter. Worryingly, CQC replied that it had no specific, structured methodology for checking compromise agreements and that it did not intend to check such compromise agreements routinely. It also claimed that it would check where “necessary”, but did not explain how it would determine necessity. [16] Most recently David Behan, CQC Chief Executive, claimed in a letter of 16 September 2016, which I have seen, that if compromise agreements are raised with CQC as an issue, CQC inspectors would “pursue this as part of the inspection”. [17]
To assess how often the CQC deemed it “necessary” to review trusts’ compromise agreements, all the current new style inspection reports were searched for evidence that the CQC had checked and reported on trusts’ use of compromise agreements. Of 199 inspection reports, there was no evidence that CQC had scrutinised any compromise agreements for inappropriate application or clauses. And yet most of these inspection reports – 163 (82%) – were issued after Robert Francis recommended that CQC should review trusts’ compromise agreements. [17] This is astonishing, especially given that ongoing Freedom of Information work shows that the use of secrecy and non-disparagement clauses remains widespread in the NHS. Trusts have quite often told me that they use gags as “standard”, which suggests that the recommendations of Public Accounts Committee and the Freedom To Speak Up Review have been ignored. I have informed Public Accounts Committee of this lack of evidence that CQC checks compromise agreements. [18]
The above finding from CQC’s inspection reports means that there was no evidence that CQC checked the use of compromise agreements even in trusts with well-known whistleblower issues, recent whistleblowing alerts on CQC’s system of “intelligent monitoring” and or high levels of bullying and other poor scores on the NHS staff survey.
At Mersey Care NHS Foundation trust, which has received negative publicity through coroners’ inquests and has revealed the highest number of compromise agreements so far (443 over 5 years, all with super-gags), the CQC inspection report said nothing at all about compromise agreements. [19] [20] Mr Behan’s recent claim that if warned, CQC would pursue compromise agreements as part of inspections also does not seem to hold water. At Sheffield Teaching Hospitals NHS Foundation trust where there have been over seven whistleblowers and 22 external whistleblowing disclosures to CQC in 3 years, [21] CQC was warned by whistleblowers that there had been 228 compromise agreements over 5 years. However, CQC’s recent inspection report was silent about these 228 compromise agreements. [22]
At trusts recently found to be ‘Inadequate’, CQC did not seem to think it was necessary to check for inappropriate gagging.
There was no mention of compromise agreements in CQC’s latest inspection report on the London Ambulance Service (bullying and poor staff survey, staff fear of raising issues in case of “repercussions”, and whistleblower cases). [23] [24] [25] Similarly, there was no mention of compromise agreements in the latest CQC inspection report issued only last month, about Colchester (bullying and poor staff survey results, whistleblower cases, whistleblowing alerts on CQC’s intelligent monitoring). [26] [27] [28]
At a time when the NHS is in so much turmoil, it is of great concern that the lead regulator is not making any visible effort to protect staff’s freedom to speak up by challenging trusts about their use of gags. Also of concern, the Department of Health sees no need for change. When the Department is questioned about the lack of effective reform since Jeremy Hunt’s promises in 2013 to reduce the use of NHS gags, it just insists that trusts have been given sufficient guidance on ensuring that their compromise agreements are legal. Lord Prior recently wrote in the Health Service journal that the government is intent on driving NHS improvement through Mr Hunt’s famous ‘intelligent transparency’, but this is frankly just hot air.
Almost exactly four years ago the Serious Case Review on institutional abuse at Winterbourne View concluded that the CQC failed whistleblowers and was incapable of detecting serious care failings. [29] The fact that the CQC still resists examining key information which could reveal whether whistleblowers have been gagged raises a question of whether NHS silence is strategic and engineered.
References
[1] Confidentiality Clauses and Special Severance Payments. House of Commons Public Accounts Committee. Thirty-sixth Report of Session 2013–14, 24 January 2014
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmpubacc/477/477.pdf
[2] Treasury Minutes. Government responses on the Thirty Fifth to
the Forty Fifth Reports from the Committee of Public Accounts: Session 2013-14. April 2014.
[2] Briefing for Stephen Barclay MP, Public Accounts Committee
Gagging clauses in the NHS, Public Concern at Work, 12 December 2011
[3] £14m bill for gagging axed officials. Steven Swinford, Telegraph 3 April 2014
http://www.telegraph.co.uk/news/9967901/14m-bill-for-gagging-axed-public-officials.html
[4] Councils use gagging orders in most staff settlements, finds investigation. Guardian 3 April 2016
[5] Whistleblowing and gagging clauses. House of Commons briefing paper, Number CBP 7442, 4 January 2016
[6] Shoot the Messenger. Dr Phil Hammond and Andrew Bousefield, Private Eye 2011
http://drphilhammond.com/blog/wp-content/uploads/2011/11/Shoot_the_Mesenger_FINAL.pdf
[7] Cynthia: Goodbye Then. Andrew Bousefield , Medical Harm 19 March 2012
http://medicalharm.org/uncategorized/cynthia-goodbye-then/
[8] Health regulator ‘gagged own staff against speaking of failures’. Rebecca Smith, Telegraph, 30 March 2012
[9] Care Quality Commission puts gagging orders on six employees
Rajeev Syal, Guardian 24 January 2012
https://www.theguardian.com/society/2012/jan/24/care-quality-commission-gagging-orders
[10] Stafford Hospital Investigator berates CQC regulator John Carvel Guardian, 1 May 2012
https://www.theguardian.com/society/2012/may/01/stafford-hospital-investigator-berates-cqc-regulator
[11] Report of the Public Inquiry into Mid Staffordshire NHS Foundation Trust:
“Non-disparagement” and “gagging” clauses
11.229 Some witnesses to the Inquiry who were former employees of the CQC required a direction to give evidence because of their fears about the effect of a clause in compromise agreements relating to the terms of their departure. Ms Bower told the Inquiry she had been advised that such terms were entirely standard. The Inquiry obtained copies of the CQC’s standard clause as inserted in Dr Heather Wood’s agreement:
That Dr Wood will not at any time hereafter make or repeat any statement which disparages or is intended to disparage the goodwill or reputation of the CQC, or any specified person and the CQC will use reasonable endeavours to ensure that no senior manager, tier 3 or above, with whom Dr Wood had direct dealings with her employment with the CQC, nor any specified person involved in the correspondence process surrounding the termination of Dr Wood’s employment will make or repeat any statement which disparage or are intended to disparage the goodwill or reputation of Dr Wood.”
[12] Robert Francis recommendation 179 of the Mid Staffs Public Inquiry report:
“179 Restrictive contractual clauses
“Gagging clauses” or non disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners; insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.”
[13] Letter by Jeremy Hunt to NHS trusts March 2013
[14] Submission by Andrew Bousefield to Freedom to Speak Up Review 10 September 2014
[15] Report of the Freedom to Speak Up Review. February 2015.
[16] Letter from Rebecca Lloyd-Jones CQC Director of Legal Services 2 August 2016
https://twitter.com/alexander_minh/status/760502740720226305
[17] Letter from David Behan Chief Executive of the Care Quality Commission to Jade Taylor 16 September 2016
[18] All latest CQC reports of inspections conducted under the new inspection regime were reviewed, and searched for the following key words:
Gag (gags, gagging)
Compromise
Settlement
Agreement
Clause
Non-disparagement
Confidentiality
On this basis, no discussion of compromise (settlement) agreements was found in any of the CQC inspection reports searched.
The relevant data is uploaded here:
https://www.dropbox.com/home?preview=OPEN+DEMOCRACY+CQC+INSP+REPORTS+%26+COMPROMISE+AGREEMENTS.xlsx
[19] Letter to Public Accounts Committee 2 September 2016
[20] Freedom of information disclosure by Mersey Care NHS Foundation Trust 27 July 2016
Click to access mersey-care-received-28-07-2016.pdf
[21] CQC inspection report on Mersey Care NHS Foundation Trust 14 October 2015
https://www.cqc.org.uk/sites/default/files/new_reports/AAAD5292.pdf
[22] Freedom of Information disclosures about Sheffield Teaching Hospitals NHS Foundation Trust
https://twitter.com/alexander_minh/status/740857992212566016
https://twitter.com/alexander_minh/status/762521001016131584
[23] CQC inspection report on Sheffield Teaching Hospitals NHS Foundation Trust 9 June 2016
http://www.cqc.org.uk/sites/default/files/new_reports/AAAE8129.pdf
[24] CQC inspection report on London Ambulance Service NHS Trust 27 November 2015
http://www.cqc.org.uk/sites/default/files/new_reports/AAAD5290.pdf
[25] Revealed: The hidden crisis in Britain’s ambulance services. Mary Wakefield. The Spectator, 30 August 2014
http://www.spectator.co.uk/2014/08/londons-999-emergency/
[26] The London Ambulance Service Bullying and Harassment Review: Summary & Action Plan, July 2015
[27] CQC inspection report on Colchester Hospital University NHS Foundation Trust 15 July 2016
http://www.cqc.org.uk/sites/default/files/new_reports/AAAF6388.pdf
[28] Colchester Hospital University NHS Foundation Trust
http://www.nhsstaffsurveys.com/Caches/Files/NHS_staff_survey_2015_RDE_full.pdf
[29] Whistleblowers Still Coming Forward At Colchester Hospital. Heart 5 November 2014
[30] South Gloucestershire Safeguarding Adults Board Winterbourne View Hospital A Serious Case Review By Margaret Flynn, 4 September 2012
Alexander's Excavations 