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Whistleblowers, gagging clauses and the Mid-Staffordshire NHS Foundation Trust Public Inquiry

15/03/2013
'Whistleblowing is only necessary because of the absence of systems and a culture accepted by all staff which positively welcomes internal reporting concerns.' [Mid-Staffs final report para 'Whistleblowing is only necessary because of the absence of systems and a culture accepted by all staff which positively welcomes internal reporting concerns.' [Mid-Staffs final report para 2.400]

'Whistleblowers are of course no panacea to solve the failure of healthcare regulation, but they are one of the best tools available'. [Stephen Barclay MP, writing in the Daily Telegraph, 12 February 2013]

The raising of concerns by whistleblowers, and their inability to get their voices heard, were key features of the Mid-Staffordshire Inquiry. While the Inquiry rightly notes that the solution to the Mid-Staffordshire problem lies in creating an open and transparent culture, not in focusing on improvements to whistleblowing legislation, evidence of poor treatment of whistleblowers does not appear to be limited to Mid-Staffordshire, and there is a challenge for the NHS and for regulators to ensure that adequate support and protection is available for whistleblowers in order to protect patient safety.

The Inquiry heard that Nurse Helene Donnelly reported poor and dishonest practice in the Accident and Emergency Department at Stafford Hospital, including the "massaging" of waiting time, short-staffing, and a lack of care for patients. The Inquiry found that the Trust did not take her complaint seriously, that she was offered no adequate support and that she had to endure harassment from other colleagues which led to her eventually leaving the Trust for other employment. The Inquiry concluded that 'her evidence exposed the hollowness of the promises in the Whistleblowing policy'.

The Inquiry also heard evidence that when Dr Pradip Singh complained to nursing staff about not being accompanied on a ward round, he was suspended for 'abusive language' and 'inappropriate behaviour'. The Inquiry concluded that 'a greater priority is instinctively given by managers to issues surrounding the behaviour of the complainant, rather than the implications for patient safety raised by his complaint.'

Anecdotal evidence from elsewhere in the NHS suggests that such incidents as those detailed above are not isolated and that it is not uncommon for individuals who raise concerns to be suspended, subjected to internal disciplinary action and referred to their regulatory body. This is clearly a matter of grave concern which requires action.

Moreover, the Inquiry heard evidence of the use of contractual terms to prevent or inhibit employees or ex-employees from acting as whistleblowers by disclosing information critical of the employing organisation. These 'gagging clauses' have long been controversial. In 1997 the Public Interest Disclosure Act was introduced, amending the Employment Rights Act 1996 to render such clauses supposedly void, to the extent that they purport to prevent whistleblowers from making a disclosure in the public interest.

Notwithstanding this, gagging clauses appear to have been widely used by a variety of NHS Trusts, as well as by the CQC. As the Inquiry report makes clear, while the CQC accepted that, by virtue of the Employment Rights Act 1996, such gagging clauses may not prevent disclosures being made in the public interest, employees cannot be expected to understand this unless explicitly informed of the exception. In practice, the effect of such clauses may require legal advice to decipher. Facing the risk of breach, it is not surprising if those subject to gagging clauses err on the side of silence.

In addition, regardless of their legality (in relation to which Robert Francis QC refused to express any conclusive opinion), such clauses can have a potential 'chilling effect' whereby individuals are discouraged from making disclosures in the public interest through fear that they may be in breach of either a contract of employment or a severance agreement. One of the report's conclusions is that gagging clauses which might prevent a concerned employee or ex-employee from raising concerns about patient safety must be banned. This recommendation has been widely welcomed.

As the report implicitly acknowledges, outlawing gagging clauses is relatively straightforward. What is less easily achieved is a change of culture whereby 'a system which ignored the warning signs and put corporate self-interest and cost control ahead of patients and their safety' is replaced by one which welcomes individuals raising concerns and reporting failures which put patient safety at risk.

It is telling that one of the recommendations of the Bristol Royal Infirmary Inquiry report (published in July 2001) was the creation of an open and non-punitive environment in the NHS in which it is safe to report and admit to 'near-misses' and occasions of patient harm. The fact that the Mid-Staffordshire Inquiry was required at all suggests that the lessons of BRI were not learned. It is to be hoped that steps will be taken to ensure practical support is in place for those who seek to raise concerns, and that their messages will be welcomed in an environment of openness and accountability. The NHS and regulatory bodies will be able to ensure that concerns can be raised and dealt with so that similar examples of widespread failure can be avoided in the future.

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