Employment Eye Alert - Ban on NHS 'gagging orders'

Much has been said about the need for openness, transparency and candour in healthcare services, since the publication of the Robert Francis report into the Mid Staffordshire Hospital last month.  One of the specific issues in this regard, raised by the report, was that individuals were apparently prevented from raising concerns about patient safety because of so-called ‘gagging clauses’ in agreements with the hospital. Consequently, the report recommended that any clauses in agreements with employees, or ex-employees, which prevented individuals from raising concerns about patient safety, to the extent that those concerns were in the public interest, should be banned.  The ‘gagging clauses’ referred to in the report related mainly to non-disparagement clauses and, to a lesser extent, confidentiality clauses, in contracts (including settlement agreements), policies and procedures.

Jeremy Hunt has announced today that so-called ‘gagging clauses’ in NHS settlement agreements, which seek to prevent public interest disclosures regarding patient safety and patient care, will be ‘banned’ with immediate effect. 

Key points are as follows.

• We do not yet have the detail of this announcement, but presume that by ‘gagging clauses’, Mr Hunt is referring to non-disparagement and confidentiality clauses which are included, and have been included as standard practice, in settlement agreements, whether in the NHS or otherwise.
• Today’s announcement has been characterised in the press as a ‘new legal right’. However, it does not appear that Mr Hunt is proposing any new legislation; rather that Department of Health / Treasury approval (which is required before a NHS settlement agreement may go ahead) will not be given unless there is a specific clause in the agreement which confirms that the individual signing up to the agreement is not prevented from making a whistleblowing disclosure regarding patient safety or patient care.
• It does not appear that there will be blanket ban on confidentiality or non-disparagement clauses in NHS settlement agreements.  Such clauses will remain valid, but the agreement will not be approved unless there is explicit confirmation that it does not prevent whistleblowing.
• The impact of this announcement is unlikely to be as dramatic as it may at first appear, for two reasons.

1. Current legislation already automatically invalidates any clause in any agreement (whether a settlement agreement or otherwise) to the extent that it seeks to prevent an individual from making a whistleblowing disclosure – this would cover any concerns that an employee or ex-employee may wish to raise about patient safety, and may cover concerns about patient care.
2. Since January 2012, most NHS compromise agreements have included a clause which confirms that the agreement does not prevent whistleblowing disclosures, as a matter of course, following a request from Sir David Nicholson.

• Whilst it seems that today’s announcement does little to add to existing protection for whistleblowers raising concerns about patient safety, it remains to be seen how far this might impact on the ability of individuals to raise concerns about patient care – as concerns about general care (rather than safety) may fall short of the legal test for a disclosure to be classed as a statutory whistleblowing complaint.  It does, however, seem likely that concerns about patient care would have to be in the public interest - and, therefore, relatively serious - in order to benefit from any exclusion from a general confidentiality / non-disparagement clauses in a settlement agreement.
• In terms of practical steps as result of today’s announcement, it seems that settlement agreements will still be able to go ahead, largely unchanged; but it will be necessary to ensure that the correct wording is included in the agreement to confirm the employee’s / ex-employee’s ability to raise concerns of patient safety and / or patient care.  We will have to wait and see exactly what wording is required; in the meantime, if you are unsure or require further advice on this matter, please do contact me or another member of our employment team – we have a wealth of experience in advising on healthcare settlement agreements and have particular insight into issues around the Mid Staffordshire Inquiry, having acted for one of the core participants in the Inquiry.