By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 21 December 2017
Super-gagged whistleblowers cannot acknowledge the existence of the compromise agreements that gag them.
To illustrate, NHS Employers charmingly recommends this form of words for a compromise agreement:
1.1 In consideration of the Employer entering into and complying with its obligations under this Agreement, the Employee warrants that:
a. save for immediate family (having instructed them on all of the confidentiality provisions of this clause) and for the purposes of taking professional legal and financial advice or where required by any competent authority or by a Court of Law or HM Revenue and Customs or as otherwise required by law, [he/she] has not divulged and shall not divulge to any person whatsoever the fact of, negotiation and/or terms of this Agreement“
NHS Employers April 2013, The use of compromise agreements and confidentiality clauses
Whistleblowers’ compromise agreements will also in some cases forbid contact with former employers.
This combined with the super-gags makes participation in the NHS whistleblower employment support scheme impossible.
Not that it is called that anymore. As reported previously, NHSI and NHSE surreptitiously changed the scheme name from ‘whistleblower employment support scheme’ to ‘whistleblower support scheme’.
NHS England was asked to address the issue of gagged whistleblowers’ access to the scheme as early as November 2016.
NHS Improvement was asked to address it in February 2017.
Neither body seems capable of understanding the basic problem and have still not come up with any credible plan to manage the issue safely and fairly.
They should of course seek a waiver from the government to guarantee that gagged whistleblowers may safely disclose the existence of gags and or approach former employers as required. But neither body will agree to do so despite repeated requests that they take this logical action.
As ever, officialdom meanders on its thoughtless way, oblivious to injustice.
Whilst I am not at liberty to reveal all details, I have seen an NHS Improvement list of 18 non-whistleblower panellists for the panels that decide whether whistleblowers will be accepted for the scheme.
Some panellists are managers from trusts that have admitted to super-gagging whistleblowers, or as evidenced by external review, are known to have harmed whistleblowers and covered up wrongdoing.
Just under half of the panellists are also Speak Up Guardians.
NHS Improvement has also not considered the ethnicity of panellists, but has advised that it may consider doing so in future.
Robert Francis recently criticised the delay in establishing the whistleblower employment support scheme, when speaking at a public event. He remarked that he did not think it was working very well.
Francis also referred to his original vision as being one of a ‘re-employment’ scheme, which both NHS England and NHS Improvement have gone out of their way to stress is not what the scheme is about.
So as usual, a few hundred thousand pounds later, someone has benefited but it’s not the whistleblowers.
Jeremy Hunt’s Secret Whistleblower (Non-Employment) Scheme, 14 October 2017