Fact checking Jeremy Hunt. The Health Secretary who did NOT ban gags but allowed their continuing, free use

By Dr Minh Alexander, retired consultant psychiatrist, 22 May 2022

Summary: Jeremy Hunt is on the prowl again for the Tory leadership and unsupportable claims are being made on his behalf about his record as Health Secretary. One claim made yesterday is that he banned gagging in the NHS. He did not. Hunt made head line grabbing claims that he did so, whilst allowing gagging to continue. In particular, pernicious super-gags which hide even the existence of settlements were allowed to continue.

Hunt has been dusting off his patient safety crusader cape lately, at the same time as signalling that his Tory leadership ambitions are far from over.

He has published a new book unpleasantly claiming that the NHS is a “rogue system”, a message amplified with the help of the Murdoch press, which has helped to crank up his profile.

No doubt those who travelled on his coat tails are hopeful too.

In contrast, NHS whistleblowers remember being led up the garden path with the Freedom To Speak Up Review commissioned by Hunt, which gave them no justice and failed to protect future whistleblowers. They also remember that Hunt did not act on a 2015 Select Committee recommendation to ensure redress and apology for harmed whistleblowers.

In the latest act in Hunt’s come-back cabaret, he has weighed in on allegations that North East Ambulance Service NHS Trust staff were asked to sign settlements seeking to prevent them from making public interest disclosures to a regulator – the Care Quality Commission – and the police.

Importantly, although a very abusive practice, such clauses would not have been legally enforceable.

The Times article which reports on this matter nudges us to remember what a good guy Hunt is, on the basis of an incorrect claim that he “banned” gags in 2014.

A Sunday Times article published late on 21 May 2022 reported that North East Ambulance Service NHS Trust is alleged to have altered documents to cover up care failings. Whistleblowers have raised concerns about managers altering or suppressing statements, and withholding evidence from coroners. It is alleged that families have not been told the whole truth about 90 deaths. Some of the concerns have been corroborated through external audit by a private company, AuditOne, which looked at a sample of 30 cases, with six cases examined in depth.

The sections of the Times article featuring gags and Jeremy Hunt’s star turn was as follows:

“Despite this, the whistleblowers claim they are being driven out of the organisation for raising the problems. This year, in return for taxpayer-funded payments of more than £40,000, two staff members were asked to sign gagging agreements that seek to limit them from making further reports about their concerns to the authorities — including the Care Quality Commission regulator and the police.

Last week the NEAS refused to “confirm or deny” the existence of such non-disclosure agreements (NDAs). Gagging clauses were supposed to have been banned in the NHS by Jeremy Hunt, then the health secretary, in 2014. In The Sunday Times last week, in an extract from his new book, Hunt branded the NHS a “rogue organisation” with an ingrained culture of cover-ups.

Hunt, a Tory MP and chairman of the Commons health select committee, said: “This case is deeply concerning and appears to be another example of the toxic blame culture in the NHS which incentivises cover-ups and means the same mistakes are repeated time and again. These types of gagging clauses have no place in a system where learning from mistakes is a matter of life and death.”

“Earlier this year, bosses at the service asked some members of staff to sign non-disclosure agreements in return for payments of more than £40,000. These agreements would have prevented the staff members from repeating their concerns — even to police — unless there was “a significant change in the nature of the concern”.

Notwithstanding a helpful account of the investigation into the deeply concerning failures by NEAS, Hunt did NOT ban gags in the NHS.

It was a factual inaccuracy by the Sunday Times to claim that he did.

Hunt certainly made self promoting claims that he did in 2013.

But Hunt merely:

Asked NHS trusts nicely in 2013 to think about what settlements they applied.

Interestingly, he added in this letter that he considered that “many organisations” in the NHS already had an open culture. It seems therefore that Hunt has trouble making up his mind about how roguish the NHS is:

2. In 2013 Hunt’s administration introduced a policy that all settlements should contain a section which explained existing law clearly. That is, no settlement could legally prevent signatories from making public interest disclosures.

This was not in fact even new policy. David Nicholson had already written to NHS trusts in January 2012 to the same effect, requiring them to make it clear in settlement agreements that whistleblowing could not be restricted by any settlement:

Whilst the wording in NHS settlement agreements told staff they could whistleblow – usually in stilted legalese which many might not fully understand – the confidentiality clauses, non-disparagement clauses and secrecy clauses or super-gags were all allowed to remain and had an intimidating effect.

Hunt allowed NHS trusts to continue freely using gags as follows:

Confidentiality clauses which prevented signatories from disclosing the contents of settlements

Confidentiality clauses which prevented signatories from even disclosing the existence of settlements – eg super-gags. These are especially pernicious as they render whistleblowers invisible. They have no public interest justification whatsoever, and exist merely to facilitate cover ups and reputation management. They were criticised by the Freedom To Speak Up Review in 2015, but HUNT allowed their continuing use.

Non-disparagement clauses which have a similar chilling effect to confidentiality clauses

The Freedom To Speak Up review concluded in 2015 that whilst NHS settlements might not have the effect in law of stopping signatories from making public interest disclosures, the fact that they contain intimidating clauses and cause uncertainty and confusion is often enough to silence staff. The Review was especially critical of super-gags which hid the existence of settlements.

But Hunt still did nothing meaningful to stop the use of gags, not even the use of completely unnecessary super-gags.

This was also despite FOI data that I extracted in 2016 showing widespread use of super-gags by some trusts, including by the trust which sacked a whistleblowing surgeon, leading to a question by Peter Bottomley MP in parliament:

The situation which Hunt allowed to fester continues today.

NHS Employers continues to give national guidance which allows NHS organisations to apply secrecy clauses to prevent signatories from even revealing the existence of settlements.

This is the critical clause in NHS Employers’ current template settlement agreement which prevents signatories from revealing the existence of settlements:

Use of super-gags has continued with the participation of the previous National Freedom to Speak Up Guardian, who jointly reviewed the national guidance with NHS Employers.

I recently asked both NHS Employers CEO Danny Mortimer and the latest National Guardian Jayne Chidgey-Clark if they were still content to allow the super-gagging of NHS staff.

Danny Mortimer did not produce a positive reason for the use of super-gags when invited to do so. Perhaps this is because there is no possible justification. He retired from the field with an indication on 30 March 2022 that the issue would be considered in the next review cycle.

The National Guardian’s Office delayed for weeks then came back with a bizarre non-answer on 10 May 2022 which in no way addressed the issue of super-gags:

“As you may be aware, in December 2018, as part of our review into Royal Cornwall NHS Trust, we made a recommendation that the Office and its partners involved in reviewing settlement agreements in the NHS, including the Department for Health and Social Care and NHS E/I, should complete this review and take all appropriate steps to implement its findings. You can find our case review here. Following this, we developed a factsheet that can be used alongside NHS Employers guidance on the use of settlement agreements and confidentiality clauses. These can be found here and here respectively.

We appreciate you raising this again, and will continue to be alive to this topic.”

None of the references cited in the National Guardian’s response deal with secrecy clauses that prevent signatories from revealing even the existence of settlements.

I imagine the responses from NHS Employers and the National Guardian indicate that the intention is to continue with business as usual, although I have pressed the National Guardian to actually answer the question put to her.

As for Hunt’s little performance via the Sunday Times, whistleblowers suffer enough without politicians capitalising on their misery. Especially those who had the power to change the system years ago but allowed these very abuses to continue. Not to mention those who rebuffed many NHS whistleblowers when in power for six years. Or those who invited cover-ups with a mixture of NHS defunding combined with KissUpKickDown culture.

But brace for more convenient cameos by our Caped Crusader, popping up wherever there is Safety Crime, heroically denouncing the dastardly deeds of the Evil NHS Empire for votes, sorry I mean for truth and honour.

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