According to a statement made to the Times, the CQC doesn’t seem to accept that the NHS continues to merrily gag its staff.
The CQC’s Chief Inspector said:
“People’s disclosures to us are very important and they will be listened to – and to the point that the CQC “does little to deter gagging”, it [sic] worth saying that “gagging clauses” were banned in the NHS by the Department of Health in 2013.”
I have written to CQC to give an alternative perspective, as below.
LETTER TO PROFESSOR MIKE RICHARDS CQC CHIEF INSPECTOR 7 JANUARY 2017:
Prof Mike Richards
Chief Inspector of Hospitals
Care Quality Commission
7 January 2017
Dear Professor Richards,
Re CQC’s oversight of NHS gagging and your claim to the Times that gagging clauses have been banned
I understand that you gave the Times the following statement with regard to its article of 6 December 2016 about CQC’s various failures to listen to, act upon concerns and to protect whistleblowers1:
“Professor Sir Mike Richards, Chief Inspector of Hospitals, Care Quality Commission. “CQC takes concerns raised by staff extremely seriously, and we act on these concerns where appropriate – whether this action is carrying out or bringing forward an inspection, raising concerns directly with the provider, or alerting another organisation – including the police – who might be better placed to deal with the issue. In the past six month reporting period we have received around 4,000 concerns raised by staff or ex-staff from across health and social care settings – around 10% of these resulted in an inspection, around 40% were noted for future inspections (some of which were already imminent), around 20% were referred to other bodies, and in 10% of cases it was determined that no action was required. The remainder remain under review currently. People’s disclosures to us are very important and they will be listened to – and to the point that the CQC “does little to deter gagging”, it worth saying that “gagging clauses” were banned in the NHS by the Department of Health in 2013.”
The term “gagging clauses” 2 is common parlance for clauses that require signatories not to disclose the contents or the existence of agreements, and non-disparagement clauses.
Despite repeated criticism by the Mid Staffs Public Inquiry and others of their injudicious use in the NHS, including by CQC in the past3, such gags are still used routinely by some NHS bodies and are common place. For example:
- Mersey Care NHS Trust which you rated ‘Good’ admitted to 443 super-gags (clauses that required staff not to disclose the existence of settlement agreements).4
- Your former trust (and the first National Freedom to Speak Up Guardian’s trust), Guy’s and St. Thomas’ admitted to not only using confidentiality clauses, but also using them in settlement agreements with whistleblowers.5
- Even the CQC Chair’s former trust admitted to super-gagging 22 staff 6 and the CEO of NHS Improvement’s former trust admitted to super-gagging 45 staff.7
I was therefore most surprised to see that you informed the Times that gagging clauses were banned from the NHS in 2013.
However, this just created confusion, fear and paralysing ambiguity for staff, as acknowledged by your own Non Executive Director Sir Robert Francis, in his report of the Freedom to Speak Up Review 10:
“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.”
“There were some however which contained restrictions that seemed unnecessarily draconian, and I can appreciate how individuals might think they were ‘gagged’.”
Staff are not lawyers and are not in a position to understand the usually legalistic and intimidating language (also noted by Sir Robert) in settlement agreements. 11 Moreover, even lawyers argue about what meets the legal definition of a public interest disclosure, and staff can therefore be anticipated to struggle even more.
There are many staff who would like to reveal their experiences but refrain from doing so out of fear that this may jeopardise their settlement agreements.
There is no justification in particular for the widespread and continuing use of secrecy clauses that prevent staff from disclosing even the existence of settlement agreements, as acknowledged by Sir Robert:
“I have seen some [settlement agreements] which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement.” 10
It is disappointing that the CQC has neglected this important aspect of whistleblowing governance, despite Sir Robert’s advice that CQC should review settlement agreements.12 And it is disappointing that CQC admits that it has no structured methodology for inspecting NHS bodies’ use of gags 13, that it says it has no intention to review the use of NHS gags in the NHS 14, that there is no evidence that CQC inspects any organisation’s use of gags 15 and that through your above statement to the Times, CQC seems even to deny the continuing use of gags.
Please let me know if you would be willing to schedule a call to discuss these issues.
In the meantime, I draw your attention to this paper on CQC’s inaction on inappropriate use of gags by NHS trusts:
Dr Minh Alexander
Public Accounts Committee
Public Administration and Constitutional Affairs Committee
Peter Wyman Chair CQC
Sir Robert Francis
Katherine Murphy CEO Patients Association
Dr Henrietta Hughes National Freedom to Speak Up Guardian, CQC
Whistleblowers unheard by CQC
A report on CQC’s failures to listen to, act upon disclosures and to protect whistleblowers, with supporting FOI and other evidence, and a related Times article of 6 December 2016 which reported on these matters.
Tall stories by the CQC
A challenge to CQC’s evidence to Health Committee on 6 December 2016, which played down CQC’s failures on whistleblowing, and in which David Behan insisted that CQC had a “good story to tell”
1 Patients at risk as thousands of safety warnings are ignored. Chris Smyth, The Times, 6 December 2016
2 Under the section of the Mid Staffs Public Inquiry report headed “Non-disparagement clauses and gagging clauses”, Sir Robert Francis commented thus of a non-disparagement clause in CQC’s settlement agreement with Dr Heather Woods the lead investigator who uncovered failings at Mid Staffs:
“Therefore 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.”
3 Health regulator ‘gagged own staff against speaking of failures’. Rebecca Smith, Telegraph, 30 March 2012
4 Freedom of information disclosure by Mersey Care NHS Foundation Trust 27 July 2016
5 Freedom of information disclosure by Guy’s and St. Thomas’ NHS Foundation Trust 21 March 2016
6 Freedom of information disclosure by Yeovil District Hospital NHS Foundation Trust 4 January 2016
7 Freedom of information disclosure by Northumbria Healthcare NHS Foundation Trust 15 February 2016
8 NHS can use gagging clauses as long as employees know they don’t apply to safety issues, guidance says. Clare Dyer BMJ 13 April 2013
To illustrate, this an example of the sort of clause that the NHS, since 2013, has been inserting into agreements that contain gagging clauses:
“Equally, nothing in this Agreement, including but not limited to clauses 10 and 11, shall
prejudice any rights that you have or may have under the Public Interest Disclosure Act 1998
(“PIDA”) (or any other enactment which PIDA amends) and/or any obligations that you have
or may have to raise concerns about patient safety and care with regulatory and other
appropriate statutory bodies pursuant to your professional and ethical obligations including
those obligations set out in guidance issued by regulatory or other appropriate statutory
bodies from time to time.” [disclosed by Mr Mackey’s former trust Northumbria Healthcare
NHS Foundation on 11 May 2016]
9 In 2013 the Secretary of State wrote to NHS Trusts urging them to use gags more appropriately but his letter contained no clear standards, performance targets or compulsion.
10 Report of the Freedom to Speak Up Review February 2015
11 Report of the Freedom to Speak Up Review February 2015
12 Report of the Freedom to Speak Up Review February 2015:
“All settlement agreements should be available for inspection by the CQC”
13 Letter from Rebecca Lloyd-Jones CQC Director of Legal Services 2 August 2016
14 Letter from Alex Baylis CQC Head of Acute Sector Policy 11 January 2016
15 NHS Gagging: how CQC sits on its hands. Minh Alexander 23 September 2016