Consultants continue to be gagged when in dispute with trusts despite the practice being outlawed from NHS contracts, the BMJ claims.
Long-serving consultant Peter Bousfield was offered early retirement and a termination payment after he raised patient safety concerns by Liverpool Women’s NHS Foundation Trust.
Documents have come to light showing that not only was a non-disclosure clause incorporated into the compromise agreement at the behest of the trust, contrary to NHS guidance, but the trust’s solicitors also threatened Mr Bousfield with a court injunction if he tried to bring matters to the attention of local members of parliament.
Commenting on gagging clauses, Dr Mark Porter, chairman of the BMA’s consultants committee said: “Our fundamental responsibility is to provide care of the highest possible quality to our patients and do all we can to guarantee their safety - no matter what obligations we have to any other parties, including our employers.
“To say there are no circumstances in which a concern for patient safety can be raised outside the organisation, or to attempt to enforce silence through a contractual mechanism, is appalling.”
A recent BMA survey, around 1 in 7 hospital doctors in England and Wales who reported concerns said that their trusts had indicated that by speaking up, their employment could be negatively affected.
Gagging clauses have been specifically prohibited in NHS employment contracts since before the Public Interest Disclosure Act was passed in 1998, and this position was reinforced in August 1999 when the Department of Health issued guidance on whistleblowing.
Yet despite this, there is some suggestion that this is not an isolated case. Public Concern at Work said: “We are hearing anecdotally that these compromise agreements are being done with quite blatant clauses in them, whereby people are being paid a specific amount extra not to say anything.”
The BMJ article also highlights issues surrounding doctors who leave trusts ‘under a cloud’ with gagging clauses made in their favour, making it difficult for future employers to find out what went wrong and leaving them free to repeat their behaviour. It says one concerned medical colleague, who tried to report a consultant to the GMC, got into trouble for breaching the gagging clause.
Tags: Gagging, Whistleblowing
