February 21 2024
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The law is clear, what about NHS culture?

The law is clear, what about NHS culture?

Health Secretary Jeremy Hunt says that ‘the era of gagging NHS staff from raising their real worries about patient care’ must end. He says there will be an immediate ban on public interest gagging clauses in NHS severance agreements, writes Roger Kline.

  • Roger Kline is a member of Patients First, an associate of Public World and Visiting Research Fellow at Middlesex University.

This is good news, but NHS staff will be forgiven if they treat this with a pinch of salt. This is the fifth statement since 1999 by Health Ministers banning such unlawful gagging clauses. This could indeed be a tipping point but only if this statement has more impact than its four predecessors.

The Francis Inquiry report last month rightly asked the question as to why staff had failed to raise concerns and why it has been left to relatives of hospital patients, not NHS staff, managers or regulators to expose the scandal.

For 14 years there has been a steady stream of Ministerial and other official statements banning the victimisation of whistleblowers. Since 1999 every trust and health authority has had to comply with the Public Interest Disclosure Act (PIDA). The NHS Constitution provides for a contractual right to whistleblow and raise concerns.

Last October Dr Kim Holt and myself warned that such statements risked being as useful as chocolate teapots because our own experience in Patients First told us that the bullying and gagging of whistleblowers was alive and well in the NHS despite all these policies.

Jeremy Hunt’s statement looks like it may have more teeth. It could be a step in removing the immense pressure placed on staff who raise concerns and are then bullied out of work. However the fact that yet another statement is needed inevitably raises other questions.

Over the last five years more than 400 compromise agreements outlining special severance payments for departing NHS staff have been approved by the Department of Health. Sir David Nicholson, NHS chief executive, has repeatedly stated he knows of no compromise agreements with gagging clauses being approved by the DH. If that is the case why is today’s statement necessary?

In fact the Department of Health is quoted as saying ‘it does not know the extent to which payments were tied to clauses stopping recipients speaking out about any problems of patient safety or care’. Why not? If this is really the case, what has been the point of Sir David Nicholson’s 2012 and 2013 circulars telling trusts such agreements are unlawful if, despite the DH approving them, he doesn’t know which ones are tied to public interest gagging clauses?

In his report Robert Francis QC focussed especially on NHS ‘culture’. We should too. Consider the challenge the latest NHS staff survey highlights. 28% of NHS staff would not feel safe raising concerns about fraud, malpractice or wrong doing. Only just over half of staff (55%) would feel confident that their organisation would handle a complaint effectively if they did voice concerns. 24% reported being bullied or harassed by managers or other staff in the last 12 months – a key factor in preventing staff raising concerns at Mid Staffs and elsewhere.

Don Berwick’s appointment as David Cameron’s patient safety tsar, together with the immense pressure from patients, MPs and others, might just make this a decisive moment towards a much more open and transparent ‘just culture’. For that to happen we need leaders at national and Trust level who will embrace the opportunities the Francis report provides. We have some way to go on that, and very difficult questions remain for those who have allowed the ‘culture of fear’ to develop so eloquently described by Don Berwick back in 2008.

So let’s be more decisive. Make the gagging clause ban retrospective. When a whistleblower makes a formal disclosure to their employer or the CQC let’s make sure the CQC checks one year later what has happened to the whistleblower. Let’s have national awards for public interest disclosures in the NHS. Whistleblowing is currently seriously harmful for your career. How many NHS staff have promoted after making a whistleblowing disclosure?

Let us ensure that where the annual NHS staff survey reports a Trust bullying culture, or difficulties in raising concerns, or in having them addressed, that there is forensic scrutiny by the CQC of whether the Trust is acting with urgency to tackle them. Let’s see what sanctions are taken against employers who fail to act decisively to protect whistleblowers. Victimising whistleblowers is unlawful and damages healthcare so I can’t see what place such leaders have in the NHS. Do all this and we might just avoid another Mid Staffs.