| Summary: A most pernicious aspect of the politicised management of the NHS is the use of super-gags to hide bad governance, such the silencing and victimisation of whistleblowers. Whistleblowers may not just be gagged to stop them revealing the contents of agreements reached with employers and details of what happened in the employment relationship, but they may be gagged from even revealing the existence of an agreement. This effectively renders them – and the employer’s misconduct – invisible. Despite past criticism by both Robert Francis and the National Guardian of super-gags respectively as “draconian” and “insidious”, the National Guardian and NHS Employers reviewed guidance to NHS bodies on compromise agreements this year but still permitted the use of super-gags. They made a minor change by suggesting that employers add a clause to allow super-gagged whistleblowers to communicate with the NHS whistleblower employment support scheme.
This small mercy is tainted by the continuing airbrushing of super-gagged whistleblowers from existence and implicit acceptance of blacklisting as business as usual. Nevertheless, Dido Harding Chair of NHS Improvement was asked if she would at least ensure audit of whether employers comply with new guidance by adding the suggested clause about the employment support scheme. Her head of whistleblowing has replied on her behalf to say that NHS Improvement will not do this, but that the regulator has plans to seek data from trusts. This will of course be subject to the same weakness as all self-reported information. NHS Improvement also offers ad hoc checks of cases that present to its whistleblower employment support scheme, but this will only give a very partial picture. Not all whistleblowers will present to NHS Improvement, and those who are super-gagged without the addition of the clause about the employment scheme would not be able to tell NHS Improvement that they are super-gagged.
Who would want a true picture, if it means stopping the silence and losing political grip?
The gagging of NHS staff was severely criticised during the MidStaffs hospital public inquiry.
The use of super-gags was criticised as unwarranted by Robert Francis in his report of the Freedom To Speak Up Review:
“7.4.21 However, I have seen some which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement.”
The National Guardian acknowledged to me that super-gags were “insidious”.
However, she has co-produced updated guidance on compromise agreements with NHS Employers which does not ban NHS organisations from using super-gags:
This guidance is designed to be read in conjunction with this NHS Employers’ updated guidance on how to apply compromise agreements:
This document gives a template agreement, and it still contains the crucial clause which forbids employees from disclosing the existence (“fact of”) of compromise agreements:
The significant new addition in the above confidentiality section for employees is the clause which allows communication with the NHS whistleblower employment support scheme.
As this guidance is not binding, I asked Dido Harding Chair of NHS Improvement on 23 August 2019 if she would ensure that employers’ compliance is audited, and that they add this new clause.
Tom Grimes NHS Improvement and NHS England lead for whistleblowing replied today on her behalf, and indicated that NHS Improvement had no plans to audit so as it did not consider this to be its role:
Reply from Tom Grimes on Dido Harding’s behalf 27 September 2019:
“On that basis, we decided that we would continue our approach of seeking assurance on a case-by-case basis that any associated settlement agreements include an express clause to the effect that nothing in the agreement prevents the individual from making a protected disclosure. In addition, we will improve this assurance by also requiring regular retrospective information to be provided from all providers, within current data returns. This information would confirm that the provisions of any settlement agreements applied during the reporting period complied fully with the guidance issued by NHS Employers. Follow up discussions would be undertaken with individual trusts that cannot provide such confirmation, or who have failed to respond.
Therefore, we do not intend to do an audit as you have suggested because we do not think that is our role, but we are taking steps to improve our assurance.”
As above, NHS Improvement maintains it will take other measures such as “requiring regular retrospective information to be provided from all providers, within current data returns”. I unclear exactly what this means, and will seek clarification of the exact data that will be requested from providers. Obviously, any self-reported data will be less reliable than regular, rigorous audit and unverified reporting may be open to abuses.
As for NHS Improvement’s fall back position of “seeking assurance on a case-by-case”, this is hardly robust oversight of whether providers are applying the guidance reliably. Only a proportion of gagged whistleblowers will contact NHS Improvement’s employment scheme, and those who are super-gagged without the new clause about the employment scheme would be prevented from actually disclosing this fact by their agreement.
Only proactive audit of employers’ practices will give a true picture.
But is a true picture too inconvenient, given the accountability and changes in system behaviour that might it bring?
And if the government had a sincere intention to allow super-gagged whistleblowers access to the whistleblower employment support scheme, surely it would have made the new guidance on compromise agreements mandatory, not optional.
The PR scams and manipulation of media headlines will continue to give an impression that progress has been made on NHS whistleblowing. But the protection for whistleblowers remains highly unreliable and very often illusory.
Only major reforms will do, not tokenistic tinkering.
The UK Public Interest Disclosure Act not only fails to protect whistleblowers, but it allows employers to attack them: