Gags still stop whistleblowers speaking out: Government claims about new safeguards are hollow

By Dr Minh Alexander NHS whistleblower and consultant psychiatrist, 24 June 2018

 The disastrous consequences of suppression were revealed at the MidStaffordshire Public Inquiry

Jeremy Hunt claimed that he ended NHS gagging, but in fact he took no real action. It was a bravura performance of showmanship of seemingly responding to the inquiry’s recommendations but doing very little. And his lead regulator, the Care Quality Commission, despite being urged by Robert Francis in 2015 to monitor NHS gags as part of its inspection process, joined in this fantasy cabaret of inaction.

NHS Gagging: How CQC Sits on its Hands

From 2013, a fig leaf clause was merely added to NHS compromise agreements. This weakly stated that gagged staff could still whistleblow, but NHS agreements continued to contain gags. The result unsurprisingly was confusion and insecurity, and the fear remained.

NHS gags typically take three forms: ·      Secrecy clauses that prevent signatories from even revealing the existence of settlements ·      Confidentiality clauses that prevent signatories from revealing the contents of settlements ·      Non-disparagement clauses that forbid signatories from criticising each other These clauses remain widespread in the NHS. NHS Employers the body which leads on NHS HR policy provides a template for settlement agreements which still contains theses gagging clauses as standard, despite criticism: NHS Employers December 2013: The use of settlement agreements and cofidentiality clauses

 

I attended a conference at Middlesex University on 22 June on ‘Twenty Years of PIDA’. PIDA (or the Public Interest Disclosure Act) is the UK’s wholly ineffective whistleblowing law.

The room was full of UK and international legal whistleblowing experts. Yet not one person was aware of any test cases where a UK worker has sought to challenge the legality of their gags by using PIDA provisions.

This is hardly surprising. After all the unpleasantness of living through a whistleblowing case that has to go to law, and knowing that one is dependent on what is usually an inadequate settlement because of blacklisting and problems with getting further employment, who would have the appetite to risk losing such a case?

Journalists intermittently call on gagged whistleblowers to break cover in order to stand up stories about continuing suppression. More often than not there is silence, which itself speaks volumes about the effectiveness of institutional coercion that is targeted at whistleblowers’ long term economic security. A current call for such case evidence from 2013 onwards has so far resulted in no volunteers, even though it is known that NHS whistleblowers have been gagged since 2013.

Some might think it is obvious what a public interest disclosure is. Just reading the schedule of qualifying disclosures under the Act it might seem straightforward. But in reality, common sense is not enough when it comes to the practice of the law. It is only through bitter lived experience that whistleblowers learn how arguable every tiny detail is. There are endless legal tricks for scuppering whistleblowing cases, at every step of the long and winding legal road that whistleblowing claimants must pass to succeed in court. Knock out just one of those many links in the fragile chain of flickering fairy lights and the employer is home free.

A particularly grey area is whether concerns about whistleblower reprisal would constitute protected disclosures under the Act. In principle, concerns about illegal acts and cover ups are considered to be protected disclosures under the Act. But it is reprisal activity that employers particularly wish to conceal with gags, because that is where the most serious managerial misconduct tends to occur.

As an experiment, in 2016 I asked NHS trusts and a few other NHS bodies whether they would take legal action against any staff who were gagged by non-disparagement clauses if they spoke up about experiences of whistleblower reprisal.

“Question 5 If staff who have entered into a compromise agreement with the Trust were to voice concerns about reprisal by the Trust for whistleblowing, would the Trust consider this to be an actionable breach of non-disparagement clauses?  Or would it consider the raising of such concerns to be qualifying disclosures under PIDA?”

 

The majority of trusts refused to answer. Some stood on FOI ceremony because an opinion had been requested, and not data. For example Cambridge University Hospitals NHS Foundation stated on 29 January 2016:

“We are unable to respond as you are seeking a view for a hypothetical situation.”

A number of trusts gave equivocal anwers. For example, some indicated that they would respond on a ‘case by case’ basis or rely on legal advice. Some made general comments that they would not discourage staff from speak up, but failed to answer specifically and unequivocally that they recognised concerns about whistleblower reprisal as whistleblowing, and that they would not sue the whistleblower for speaking up about it. Equivocating trusts included the following ‘Outstanding’ trusts: Frimley Health NHS Foundation Trust, Birmingham Children’s Hospital NHS Foundation Trust and Newcastle Upon Tyne Hospitals NHS Foundation Trusts. They also included Yeovil District Hospital NHS Foundation Trust, Peter Wyman CQC Chair’s former trust.

This is a list of the NHS trusts and some of the other bodies that gave equivocal answers, and their responses: List

Some central NHS bodies were amongst the equivocators, including NHS Blood and Transplant, the current home of Ian Trenholm the CQC chief executive who will take over from David Behan.

Only a handful (9) of trusts were prepared to state unequivocally that they would consider reports of whistleblower reprisal to be qualifying disclosures and or therefore would not take legal action against the staff member for breaching a gag.

These are the trusts. Some are well known to whistleblowers:

Alder Hey Children’s NHS Foundation Trust FOI response 28 April 2016: “This would not be a breach of any of the agreements – see answers given above.”  Cambridgeshire Community Services FOI 673, 18 May 2016: “5) If staff who have entered into a compromise agreement with the Trust were to voice concerns about reprisal by the Trust for whistleblowing, would the Trust consider this to be an actionable breach of non-disparagement clauses?   No   Or would it consider the raising of such concerns to be qualifying disclosures under PIDA?  Yes” Hounslow and Richmond Community Healthcare NHS Trust FOI 669, 2 June 2016: “Qualifying disclosure”  Liverpool Community Health NHS trust FOI 17148, 1 June 2016: “I can confirm that if an individual who had signed a compromise agreement were to voice concerns about reprisal by the Trust for whistleblowing, the Trust would consider this to be a qualifying disclosure under PIDA.” Luton and Dunstable University Hospital NHS trust FOI 3408, 1 June 2016: “The Trust would consider the raising of such concerns to be qualifying disclosures under PIDA” North East London NHS Foundation Trust FOI732, 6 July 2016: “We would consider the raising of such concerns to be qualified disclosures under PIDA” North West Ambulance Service NHS Foundation Trust FOI 313, 6 May 2016: “…it would be seen as a qualifying disclosure.” Northumbria Healthcare NHS Foundation Trust  “Qualifying Disclosure”  Princess Alexandra Hospital NHS Trust  “Qualifying concern”

 

Health Education England also claimed that it would not sue whistleblowers:

“HEE would not consider such action” FOI 160611, 7 July 2016

but of course continued its ill-advised legal battle against Dr Chris Day.

This dismal picture demonstrated persisting poor culture, and the failure of the Secretary of State and the DH to lead and ensure genuine change.

The fact that the vast majority of NHS trusts would even contemplate the possibility of suing staff for raising concerns about whistleblower victimisation, or not deny that they might, is deeply depressing.

Many organisations hide behind ‘legal advice’. Cutting through this obfuscation, it is for leaders to decide on what is right, and to use the law wisely and temperately as a tool. It is not Fit and Proper leadership to set the dogs on whistleblowers and then shrug and say ‘the lawyers told me to do it’.

There can surely be no circumstance in which the greater good is served by public bodies suing staff who raise concerns, correct or incorrect.

That threat must be removed and the government must in the aftermath of the Gosport deaths finally act. It must at the very least prohibit the use of secrecy clauses (super-gags) which hide even the existence of settlements. This is an issue that applies not only to the NHS but other sectors.

The Department of Health and Social Care remains very stubborn on this issue, despite periodic invitations to do better.

If however, you are an NHS whistleblower who was gagged after Hunt’s pledge in 2013 to stop gagging, and are prepared to take the risk of speaking confidentially to a journalist who will report only anonymously on your case, please contact me via the contact page of this website.

Please be aware that no absolute guarantees are possible and very occasionally leaks have been known to occur.

A notable incident in the junior doctors’ dispute with the government was the mass leaking of private whatsapp messages between junior doctors involved in BMA union activity to the Health Service Journal, followed reportedly by a counterleak back to the BMA of the identity of HSJ’s source. From a report by the BMA legal department of 21 March 2017, declassified on 17 May 2017:

But if you are in a position to take such a risk, it would provide valuable testimony that would help others.

With sincere thanks if you can help.

 

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