The price of silence: to what extent is the NHS gagging whistleblowers?

17 September 2013

In recent months, there has been much discussion as to whether the government should introduce "a statutory duty of candour" in the NHS. This means that staff would be legally obliged to report instances of poor care. 

This follows concerns about how whistleblowers are treated and whether doubts about patient safety are being smothered. This week it was reported that the NHS has spent £4 million on silencing those trying to speak out. However, there's some dispute over the number of staff involved. According to the Daily Mail, 266 staff have been paid via this arrangement. Meanwhile, the Daily Telegraph puts the number at exactly half - 133.

While both newspapers are using the same source - information released by the Department of Health - we're making enquiries as to how the Daily Mail has calculated its figure. The Daily Telegraph correctly quotes the data in question, which was originally obtained by Steven Barclay MP. 

New evidence of payments from the Public Accounts Committee

Mr Barclay is a member of the Public Accounts Committee (PAC), which scrutinises public spending. The PAC has repeatedly criticised senior NHS managers for failing to monitor how much taxpayers' money NHS trusts spend on staff settlements. 

It has previously focused on the NHS terminating staff contracts via compromise agreements. These include a confidentiality clause (also known as a 'gagging order') that prevents the employee or the employer talking about the employee's dismissal and the issues behind it. 

In response to a request from the PAC, the Department of Health (DH) has now released data on the cost of so-called 'judicial mediation' settlements - another type of discretionary payment that might involve a gagging order. It shows that since 2009 the NHS has spent £3.9 million on payments to 133 staff.

Until recently, such detailed data was not collected centrally; in fact, the PAC's request involved the Department of Health and its partners writing to each NHS trust and other arm's length bodies to request this information. Evidently, this is not ideal.

As members of the PAC have observed, it's not necessarily in an NHS trust's interest to disclose how much it has spent on this type of contract. As Mr Barclay pointed out, an NHS trust is using taxpayers' money to settle a complaint against its own practices.

Judicial mediation - unlike compromise agreements, any payment is off-books

judicial mediation deal is different from a compromise agreement, which offers a standard route for terminating an employee's contract. Judicial mediation is a form of alternative dispute resolution. Although it doesn't necessarily involve a judge, the parties involved might draw on judicial expertise.

Crucially, while the Treasury must sign off on compromise agreements, judicial mediation settlements haven't been subject to the same scrutiny.

This is why this data has only just come to light. According to evidence submitted to the PAC, in 2011 the Treasury explained to Department of Health officials that it didn't need to approve these discretionary payments. The reason? That any settlement reached was likely to be approximately the same amount (or less) than would have been awarded by a judge if there had been an employment tribunal.

Treasury officials have now admitted that this amounted to a "mistake" in its written advice. As of March 2013, any judicial mediation settlement will need to be signed off by Whitehall.

Secrecy - not always against the public interest

A "gagging order" is not legally enforceable if someone is speaking out in the public interest. However, as Mr Barclay has claimed, the very existence of a confidentiality clause is likely to have "a chilling effect"

In one of his recent appearances in front of the PAC, Sir David Nicholson, the head of the NHS, noted that compromise agreements aren't always evidence of a cover-up:

"It is worth mentioning that compromise agreements, at whatever level, are used widely in the NHS, the private sector and other parts of the public sector. That does not necessarily mean that someone has been stopped from speaking about patient safety, and to connect the two all the time is erroneous and wrong."

According to the NHS Whistleblower Helpline, there is sometimes good reason for whistleblowing to be dealt with internally: 

"Within the NHS and social care sector, these issues have the potential to undermine public confidence in these vital services and threaten patient safety."

The NHS Whistleblower Helpline was established in December 2011 after it was argued that NHS staff weren't able to share their concerns easily and in confidence. Since then, the government has emphasised its commitment to what Sir Robert Francis has described as "openness, transparency and candour". In March, the Health Secretary announced that gagging orders ought to be removed from NHS contracts.

However, we've been here before. When he was Health Secretary, Labour MP Alan Milburn insisted that there was "no place" for confidentiality clauses in NHS contracts. The guidance he issued was re-written in 2004. 


Flickr image courtesy of jk5854

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