Examination of Witnesses (Questions 1-128)
Q1 Chair: Good
afternoon. I would like, if I may, to introduce and set the scene
for this session. It is a onesession inquiry but it is one
to which, it is fair to say, the Committee attaches very considerable
importance. It was prompted by an article in The Times,
two or three weeks ago, which reported that doctorsand
presumably other professional staff but, in the context of The
Times article, doctorswere being asked, as part of
the termination of employment process, to sign clauses in compromise
agreements that were alleged to be quite clearly inconsistent
with the obligations of those same doctors to raise concerns about
the quality of practice within the employing organisation with
the General Medical Council, their professional regulator.
That prompted a response through the newspapers.
However, within the Committee we take an interest in this principle
that professional peopledoctors, nurses, midwives and regulated
professionalshave an obligation to raise concerns when
they see practice within the healthcare system which does not
match acceptable professional standards. We were, therefore, concerned
that there was evidence, apparently, they were being asked to
sign contracts inconsistent with that obligation: an obligation,
the importance of which we have drawn attention to in following
sessions conducted with both the Nursing and Midwifery Council
and the General Medical Council.
This session is a followup to The Times
article. It is also a followup to the principles we regard
as important and which we have drawn attention to following the
accountability hearings with those regulators earlier in the year.
It is worth setting out on the record that, although it is a brief
inquiry, we regard this as an issue of fundamental importance,
both to individual professionals but, more importantly, to the
quality assurance system for patients within the system.
Against that background, I would like to ask each
of our witnesses to introduce themselves. Then we will come to
our first question.
Jill Finney: Good
afternoon. I am Jill Finney. I am the Deputy Chief Executive of
the Care Quality Commission.
I am Richard Hamblin. I am Director of Intelligence at the Care
Dr Carter: Hello.
I am Peter Carter, the Chief Executive of the Royal College of
Dr Porter: Good
afternoon. I am Dr Mark Porter. I am a consultant anaesthetist
but I am also the Chair of the Consultants' Committee at the British
Q2 Chair: Thank
you very much. I would like to begin by asking each of our witnessesand
perhaps the CQC can speak as one for this purposewhether
you think the problem that The Times article drew attention
to is isolated or there is a systemic tendency to ask people to
sign contract clauses of this nature.
Jill Finney: Clearly,
if any practitioner does sign a clause of that nature, it does
not in any way prohibit them from making a disclosure to the Care
Quality Commission because of the protected disclosure element
to a compromise agreement. If you sign a compromise agreement,
you are completely at liberty to call a professional regulator
or the Care Quality Commission. We think the situation is that
not enough people, clinicians and practitioners, understand that
is the case. We are working towards and indeed, by coincidence,
on Wednesday we launch a major communication which makes this
clear to all NHS professionals. It says that if they are signing
a compromise agreement they are still at liberty to phone the
Care Quality Commission without in any way compromising their
Q3 Chair: Whatever
the compromise agreement says.
Jill Finney: Whatever
it says, you cannot prevent protected disclosure.
Q4 Chair: What
you are saying is that these clauses, even if they exist, are
Jill Finney: Correct.
Q5 Chair: That
is also what others said in comment at the time. The problem is,
however, if you are an individual doctor or nurse signing that
kind of clause, how likely you are to chance your arm to prove
Jill Finney: That
is exactly the challenge, which is why we have spent quite a bit
of time developing, with NHS trusts and, indeed, NHS Employers,
this leaflet and a communicationwhich we start, as I say,
next weekthat puts this matter to rest. Also, we have set
up a dedicated whistleblowing line at CQC, and this leaflet contains
details about that dedicated line, which makes a direct phone
call easier to our organisation to explain, straightaway, what
the position is. We can deal with that because we now have experts
who can deal with it. That is a more assuring environment for
practitioners to call us in.
Q6 Chair: Can
we come back to that?
Jill Finney: Yes.
Q7 Chair: We will
start by asking Dr Carter and Dr Porter to comment from their
Dr Carter: It is
similar to what Jill has said. We looked back at our records and
we can find absolutely no evidence of anyone trying to impose
a gagging clause. I think there is some understandable confusion
about a compromise agreement in which both parties sign up to
keeping the nature of that agreement confidential. That is when
there has been a dispute, of whatever nature, both parties have
decided the remedy is some agreement that a person goes and they
both sign up to it. That has nothing to do with gagging clauses.
This is something, however unintentional, that has been misunderstood
It is worth reiterating what Jill has said. Under
the Public Interest Disclosure Act, if any employer tried to do
that, they would be in breach of the Act. We make it quite clear
that if you are in a compromise agreementthat is about
the terms and conditions of your departure, which, by the way,
nurses and others are usually very happy to keep confidential
for reasons you will understandand if there are issues
as to which you have a professional responsibility, that does
not in any way give you a dispensation not to report it to your
Dr Porter: I would
agree entirely with the comments made so far about the legality
or otherwisethe enforceability or otherwiseof what
might be called a gagging clause. I am aware that they have assumed
a life of their own in the sense that it is an understood thing
that the NHS, from time to time, enforces gagging clauses on employees.
"One reads it in the newspapers. It, therefore, must be true,"
and not only in The Times article but in other places as
well. It is unfortunate, in that that seems to conflate several
For example, I, too, have done some digging around
in the files of the BMA. We have a very small number of compromise
agreements that we have assisted medical staff to sign recently.
They are mostly to do with junior doctor banding. They are always
to do with entrenched employment difficulties in which both employer
and employee recognise the best thing to do is for the employment
relationship to end, but, instead of going to tribunal or paying
expensive lawyers' fees, it is agreed the severance shall be as
such, and so forth. They usually contain confidentiality agreements
in the way that Peter talked about so that the terms of the severance
remain confidential. I have to say that I understand they sometimes
include clauses like, "You shall not report any of this to
anybody else," and lists a long list of bodies, and that
has been reported in newspapers and so forth. But it is definitely
not the case that there are a large number. In fact, as the BMA,
we are not aware of any where the gagging clause, as suchif
one calls it thathas been applied in order to keep quiet
I was interested to talk with one of our senior managers
today, in preparation for this, about what usually happens in
these types of agreements. We are talking here about a situation
where an employment relationship has very much soured. There have
been multifactorial elements involved in that, some of which may
or may not have involved, back at the start of it, the raising
of concerns, either within the employer or outside, as covered
by the PIDA regulations. But some months or years later, when
both sides decide the best thing to do is to end the employment
situation, is where the confidentiality comes in. It does not
cover the original situation, the original raising of a concern,
which might be part of the launching of this problematic relationship.
I can fairly safely say that the number of concerns
we get in this area is extremely small, in terms of seeking advice,
that we are aware of. But we are not aware of any gagging clauses
applied to cover up clinical safety problems.
Q8 Dr Wollaston:
It is certainly not how it reads, though.
Dr Porter: Indeed.
Q9 Dr Wollaston:
To me, reading this clauseI will not read it out in full
because, obviously, you have seen itI can see how any health
professional would feel very discouraged and intimidated from
taking forward any concerns. Would it not be better, as it does
not serve any meaningful purpose and is not enforceable, for the
CQC to be saying very clearly to trusts, "You will not include
this clause", because it could have that effect? Would that
not be a better way forward than saying, "It is not legally
enforceable so they should ignore it"?
Jill Finney: In
our leafletin our communicationswe make it very
clear that their rights are upheld. Rather than try to deal with
what you cannot include in individual clauses, we make a very
clear statement that you cannot apply that type of gagging order,
for want of a better word.
Q10 Dr Wollaston:
Is this not the wrong way round? The effect of having that perception
is still on the employee, and I can quite see how they would,
reading this. The end result might be that patient safety could
be put at risk if people feel intimidated in taking forward complaints.
Therefore, as the CQC and the regulator, do you not have a responsibility
to say to hospitals, "You cannot include that in your contracts"?
Jill Finney: We
do have a responsibility to make it clear to hospitals that they
should encourage and support a culture whereby whistleblowing
is appropriate and to be encouraged. I am very happy to take away
your suggestion that the CQC should look at that in terms of discouraging
trusts from including that in contracts. That is something we
can take away and look at.
Q11 Dr Wollaston:
But if it is unenforceable
Jill Finney: It
Q12 Dr Wollaston:
It could have the effect of discouraging employees from whistleblowing.
Jill Finney: Indeed,
Q13 Dr Wollaston:
Surely, if you want to encourage a culture of whistleblowing,
this is completely the opposite. So why do we have it?
Jill Finney: We
Q14 Valerie Vaz:
I am horrified and have to butt in. You are all sitting there
and saying you do not think this is a good idea but you all leave
it in there, and that includes the BMA. Why do you allow this
clause to be part of a contract in the first place?
Dr Porter: I will
answer that directly. This is not a standard contract we promulgate.
That contract is one that I have not particularly seen. I am aware
there were one or two around.
Q15 Dr Wollaston:
Would you like me to read it out to you?
Dr Porter: No.
I think I am familiar with it. I know it lists a list of organisations
that it says you will not take your concerns to.
Dr Wollaston: It is very
clear. It says: "The Employee...will not bring or pursue
or incite or encourage others to bring or pursue any further internal
complaint or grievance, whether in accordance with a statutory
grievance procedure or ACAS grievance procedure or otherwise or
any further complaint or grievance with the following organisations"and
so it goes on"with...a. the Information Commissioner;
b. the Care Quality Commission; c. any current or former employee/officer
of the Employer; d. the General Medical Council; e. the Health
Professional Council; and/or f. the Nursing and Midwifery Council."
It is completely incompatible with the professional
obligations of a doctor.
Q16 Chair: If
I can add to that, the acting chief executive of the trust or
the successor organisation that signed that contract says: "Having
reviewed that clause, we agree it appears to go beyond what is
appropriate. We would not therefore include such a clause in any
future compromise agreements we may enter into". As regards
that employer, the problem is solved. But there are how many other
employers putting those kinds of clauses into compromise agreements?
Peter Carter has been trying to get in.
Dr Carter: Thank
you, Chairman. Last year we did 300 compromise agreements. None
of that would have appeared in them. We would never sign up to
that. Our issue is quite clear. The confidentiality is about the
terms of the separation and we would never sign up to that. It
is a nonsense. As I say, you would be in breach of the Act and
it would not be enforceable. We would not go down that route at
all. The confusion
Q17 Chair: Can
I interrupt there? I doubt very much whether that trust would
go down that road again either. The issue is how widespread the
request is to professional staff to sign that kind of agreement.
Acknowledging it is unenforceable, how widespread is it and what
assurance can we introduce to prevent people being asked to sign
that kind of contract?
Dr Carter: May
I come back?
Q18 Chair: Yes,
Dr Carter: We have
no evidence of anyone trying to get someone to sign that sort
of thing. What confuses people is that we are conflating the confidentiality
clause in a compromise agreement, which we have discussed, with
whistleblowing. The issue for us is that whistleblowing is still
a major problem in the NHS, with people not feeling confident
that they will be protected in law. We have recently carried out
a surveyand at some stage during the course of this discussion
I could give you some of the figuresand found that there
is widespread distrust that people will be protected. I think
that is one of the obstacles. I do not think it can be handled
from Westminster. It has to be individual employers having the
responsibility to make it clear to their employees that, if they
have issues of concern about patient safety or standards, they
will be protected. That is still not commonplace.
Q19 Chair: Now
virtually every Member of the Committee wants to get in. We will
hear Dr Porter first, then Barbara and then Dan.
Dr Porter: Thank
you. I am absolutely not here to defend that or any similar agreements.
If I did not make that clear enough I would like to make it absolutely
clear now. I deprecate any such agreement that prevents people
from speaking out about clinical concerns. I reiterate that the
compromise agreements the BMA takes part in are designed to keep
the terms of severance confidential and occur months, if not years,
down the line from the raising of clinical concerns, if indeed
clinical concerns are associated with any of them. The agreement
that has been read out is nothing to do with us. It was promulgated
by an NHS organisation and it is the knowledge that there are
a small number of organisations, possibly, that do it, or a larger
number that think about doing it, that we believe makes professional
staff think twice about raising concerns if, at first, they are
knocked back. There are clinical governance mechanisms within
every organisation in the NHS to raise initial concerns about
quality and safety. The question then, of course, is: do you encourage
the use of that? We are not here to inquire into that. What happens
if you are knocked back from that? If you feel there is still
a concern that has not been properly addressed, where do you raise
it? That is where the whistleblowing sort of thing comes in. Our
surveys show that most doctors would feel comfortable about raising
concerns but they are aware that there is an atmosphere that can
be oppressive and that the power relationship lies with organisations
and not with employees and professionals here. They are aware
that there is an atmosphere in which whistleblowers can beif
not victimised, which is illegalpicked upon, spoken about
and treated wrongly. It is getting past that which is important.
Q20 Barbara Keeley:
We have the figures of that RCN survey here in our report to the
Committee. Some 3,000 of your members were surveyed and it was
found that 34% had been "discouraged or told directly not
to report concerns at their workplace." That is up by 21%.
If you think it is an issue, it is an issue that appears to be
For context, we have separately, as Members of Parliament,
been having reports recently. For instance, there is the one about
the very poor standards of care for elderly people in the NHS
and others over the last number of months. This is a very serious
thing. It seems to me there is a continuum from the legal atmosphere
that is created by agreementseverybody seems to be disowning
them but know they are still aroundthrough to issues like
how on earth you get over that, issues like training.
If we think about the CQC, a leaflet saying to people
"You are at liberty to contact the CQC" is never going
to counter the power of the feeling expressed in that survey.
A leaflet saying "You are at liberty to do something despite
an agreement" will not counter that. I am hoping you agree
with this Committee that what we should be talking about is an
obligation to raise concernsan absolute obligation. Perhaps
we need to start looking at whether that is given sufficiently
high priority in training and whether you are giving guidance
to your members about it. To be frank, if I were in your position
at the RCN I would be worried that 34% of members felt they could
not disclose. That is a shocking number and it is rising. Perhaps
we could start with the RCN, the BMA and then come along to the
Dr Carter: We are
worried, which is why we did the survey. The findings are a really
serious cause for concern. It was very interesting that 99% of
the 3,000 that responded were aware of the whistleblowing policy
but, as you say, 34% said that they had been actively discouraged
from raising issues. Frankly, that is not good enough. If we want
to prevent some of the concerns we have seen over the past few
years, one of the key ways of doing that is to empower staff and
give them the confidence to feel they can come forward and express
these honestlyheld concerns about the standards or deficits
Q21 Barbara Keeley:
Are you doing that, through training?
Dr Carter: Absolutely.
Q22 Barbara Keeley:
You do training, do you?
Dr Carter: No.
Remember that the Royal College of Nursing is not the regulator
and does not do the training.
Q23 Barbara Keeley:
Do members receive training?
Dr Carter: We constantly
raise this issue via our networks and forums. We instruct and
inform people on how to go about raising these concerns and, obviously,
we protect people. The training happens in universities for nurses
in training and they are instructed on this. The Nursing and Midwifery
Q24 Barbara Keeley:
I am trying to get at whether it is happening, not whether you
instruct them or anybody instructs them. Are they doing it?
Dr Carter: It is
happening but I feel that training is not the problem. For us,
the issue is about employers creating a culture where people feel
confident that they can raise these concerns and that they will
be protected. Every employer, nowadays, has a whistleblowing policy.
They all sound very good and plausible, but the point is whether
or not those policies are operationalised. We would wish to see
trust boards demonstrating evidence that, when they have received
these reports, they have acted upon them and that people have
been given feedback. Most of our members say that, when they have
raised concerns, they do not get feedback. I think it is a cultural
problem with people not being prepared to hear about the deficits
or, when they have heard, getting very defensive about them and
putting the onus on the individual complainant rather than hearing
what they have to say.
Q25 Barbara Keeley:
Does the BMA give guidance? I think you are telling us that people
maybe start off trained in this, hopefully, but then the culture
of the organisation and the employer stands
Dr Carter: Yes.
May I come in? We, too, have put in a confidential hotline. We
have issued a lot of leaflets and cards to members, which we do
at our conferences and other events, giving people guidance on
how to raise these concerns and making it clear that you are protected
under law, which, again, a lot of people do not understand.
Q26 Barbara Keeley:
But it is not working. The survey says they are feeling worse
about it all the time.
Dr Carter: It is
not working. As you can see from the survey, confidence has gone
backwards. Again, Chair, if I may make a point, a couple of years
ago there was a very high-profile case of a nurse called Margaret
Haywood. This was the nurse who participated in the "Panorama"
programme with covert filming of patients who were being abused.
Margaret tried to raise it and, in the end, went to "Panorama".
They produced a film which exposed this. Margaret Haywood ended
up being struck off the nursing register. That sent a very negative
message right throughout not just nursing but health professionals
across the piece. Under the mechanism to restore that, we lodged
a case at the High Court. A couple of days before it came to court,
her removal from the register was rescinded. Margaret was reinstated
and has now resurrected her career. That damage was significant.
I would hasten to add that that was under the old regime of the
Nursing and Midwifery Council. There is now a new regime, and
I would not expect that. That message was very, very damaging
to the climate that you would wish to create: that people can
raise these concerns with confidence.
Dr Porter: Obviously,
we are not responsible for medical training as such. I would refresh,
very briefly, what happened
Q27 Barbara Keeley:
It was guidance I asked about.
Dr Porter: I am
sorry, guidance to members. We give guidance in the sense that
we have guidance sheets available for members who want to access
them through our website. The primary method of member contact
with the BMA, if they have a problem, is called "first point
of contact." It is, essentially, a telephone line which acts
as the gateway to everything else the BMA does in member representation.
There are six options on the telephone line and if you push number
5 or 6I think it is number 6it says, "If you
have any concerns about whistleblowing and want to speak to an
adviser, push this button." I forget the exact figure but
between 1% and 2% of our callthroughs go on that line and
have indicated they want to speak to an adviser. But a number
of people have pushed that by mistake or for another reason. When
it turns through into the case summaries, we find that, of the
45,000 member contacts we get a year seeking specific and individualised
advice, as opposed to downloads, about 70 in the last year, or
0.16%, of the case narratives actually mention whistleblowing.
When somebody contacts us, we obviously have a number
of scripts. They have to be rather more extensive than some of
our scripts for other things because we are dealing with such
a serious issue here. We advise people along all the lines that
you have been hearing about now. I will not repeat the advice
because we tell them about the professional obligation and duties
of a doctorI think it is paragraph 5, right up at the front.
We tell them about the other professional obligations of doctors,
about whom they should be raising concerns with and how the BMA
can support them, both in terms of knowledge but also, if necessary,
in a small number of cases, in terms of representation. That summarises
what we do when members contact us asking us for advice on this.
Q28 Grahame M Morris:
I want to ask a question of Dr Porter. I was interested that Peter
Carter gave that example of Margaret Haywood. From listening to
your answers, Dr Porter, it seems as if everything in the garden
Dr Porter: It absolutely
Q29 Grahame M Morris:
I am interested to hear you say that because we have heard a number
of cases. One is the case of a BMA member called Raj Mattu, whom
you may be familiar witha former colleague of yours, a
cardiologist in the West Midlandswho warned of the really
serious consequences of what he saw were failures in the service.
Having followed this route, he feels his career has been ruined
by whistleblowing. What assurance can you give now that these
new arrangements are going to protect individuals like Dr Raj
Mattu in the future, who put their careers on the line to raise
real concerns about the service?
Dr Porter: The
first thing I should say is that I have no specialist knowledge
or overview of the case of Dr Mattu and I am not going to make
any comment about that because I am not in a position to. I have
not been involved in the case as a case in any way whatsoever,
other than reading about it.
Q30 Grahame M Morris:
Has he approached you for advice and support, or the BMA?
Dr Porter: Dr Mattu
has never approached me for advice and support. The BMA, I believe,
has represented Dr Mattu on and off for a number of years, as
have a number of other organisations. But, I reiterate, I am not
going to make any comment whatsoever about his individual case,
partly because it would be inappropriate to do so and partly because
I, personally, do not have any formal detailed knowledge or overview
which I can talk about.
You asked me if I can give an assurance about new
arrangements. I cannot and it is not my place to do so. What I
am outlining is the advice and support that we give to our members
who are the people on the wrong end of these procedures, the people
who find themselves in conflict with their employing organisations.
They feel that their employing organisations have not taken their
concerns seriously, even when their concerns have been raised
in the discharge of their professional obligations as laid out
in Good Medical Practice.
In terms of the way the NHS should be responding,
you need to be talking to NHS Chief Executives and the Department
of Health about that, and I know you are talking to the Department
of Health later.
Valerie Vaz: Can I quickly
Chair: Yes, but then I
want to bring Jill Finney in.
Q31 Valerie Vaz:
Absolutely. It is on something you said previously about these
confidentiality clauses. You said it is tied up with misconduct.
That is the issue, is it not? It needs to be separated out. We
are not talking about children here. We are talking about grownup
professionals who have no other vested interest than to make sure
patients are safe. So that is whom we are talking about. The idea
that you think this should all be wrapped up into one contract,
maybe, needs to be thought about again. If you have a settlement
agreement, that is something completely different from having
it as part of the contract. Could you give the Committee an assurance
that these clauses are going to come out of every doctor's contract?
Secondly, if it is a question of misconductif you are settling
before you go to a tribunalthere is something completely
different known as a settlement agreement. Why not tie up the
confidentiality about the settlement agreement into that contract,
like a memorandum of understanding, rather than in the main contract?
Dr Porter: There
may be a couple of misunderstandings here. First, these clauses
are not in every doctor's contract. In fact, they are not in any
doctor's contract. Take, for example, the terms and conditions
of service that I work under.
Q32 Valerie Vaz:
You can categorically say that it is not in any doctor's contract?
Dr Porter: I cannot
say it is not in any doctor's contract, given that NHS organisations
are now free to reach any contract they like outside national
terms and conditions of service. I can assure you that it forms
no part of any national model contract that we promulgate or that
we know is promulgated or that we would ever agree to. In fact,
on the exact contrary, what it states in my contract of employment,
which is the same as that of most doctors working in the NHS,
is that a practitioner shall be free, without prior permission
of their employing authority, to publish, make lectures and write
articles in such manner as they see fit. I forget the exact quote,
but it is something like that. It appears in every individual
What you are talking about is agreements that form
no part of the contract because they are so small in number, and
they are pulled out by trusts at the end of a protracted employment
problem as a means of trying to resolve that problem.
Q33 Valerie Vaz:
That is what I am saying. It is somehow tied up. There is a public
interest issue, which is why doctors raise these things. I think,
in the public interest, it is important that it all gets out there.
We are talking about 2011, postBristol, postShipman
and all these inquiries and we have only now got a whistleblowers'
hotline from the CQC. That is the issue. The fact is that my colleague
has read out a clause that is currently in a contract, is it not?
Dr Porter: Can
I reiterate that that was an individual contract proposedI
presume but do not know, and you would have to ask themby
an employing authority, which is not the BMA, to an employee.
Q34 Valerie Vaz:
So you only get involved when a doctor is upset about something.
You do not look at the general contracts for doctors at all.
Dr Porter: Of course
we do. We negotiate them all the time. But they contain no gagging
clauses or confidentiality clauses.
Q35 Valerie Vaz:
First, you say you are and then you say you are not. I am not
quite sure. I want reassurance. Could you make sure that clause
is never in a doctor's contract; that, if there is a misconduct
issue, it does not get tied up with whistleblowing; and that there
is a separate settlement agreement, or a memorandum of understanding
when a settlement is made, in relation to a conduct case that
is stopped before it goes to tribunal? Could you reassure us on
Dr Porter: The
best answer I can give you is that I cannot do that. We do not
regulate doctors. We do not employ doctors. It is NHS organisations
that do these contracts. I am sorry, it is not us.
Q36 Valerie Vaz:
But can you advise them?
Dr Porter: That
is a different question. If a membernot an NHS organisation,
because they would notcame to us asking for advice on this,
we would give them the same advice as we publish on our website,
and which you can download and have a look at, which regards doctors'
professional responsibilities as being to make sure that clinical
concerns are raised. We have gone into all that. They might then
ask us about the wisdom of signing such an agreement. We would
advise them on an individual basis. Sometimes it is fair to say
that a doctor might have been driven to such a pass, to be so
stressed out by this, and to so want to get out of it that it
might be in their best interests to agree to signing an agreement
which keeps the terms of the severance confidential. We would
not and do not advise people to sign confidentiality agreements
in order to keep patient safety matters secret. I want to emphasise
that we are not the ones who are coming up with gagging clauses.
I think you are barking up the wrong tree here.
Q37 Valerie Vaz:
I am not suggesting that. I am not suggesting you are coming up
with it. I am saying that you, within your silence, are not saying
anything and have not done anything. You must have come across
these contracts before. You say you have. Why have you not done
something? Why have you not raised it? Why have you not been horrified
on behalf of your members? Why have you not protected your members?
We have been emailed by doctors, good, honest people, who
have been affected by all this. They have been sacked because
they have raised somethinga huge issue. Mid Staffordshire
is going to come out.
Dr Porter: If and
when our members come to us on this, we do protect them. I am
sorry, I should start by referring to all of the advice that we
give and the various things I have talked about. If and when a
member contacts us about this, we do our very best to protect
them and represent them. That is our stockintrade.
We are a professional association and trades union. That is what
we doand do, I might say, very successfully.
In this, we work with what are called the medical
defence bodies. There are about three or four of them active in
the field. We have a memorandum of understanding with them about
the matters which we give individual representation on and which
the medical defence organisations give individual representation
on. I can assure you that any doctor who finds himself in a problem
like this, assuming they are one of our members, which most doctors
are, and assuming they are represented by an MDO, which most doctors
are, can be absolutely assured of professional advice and a representation
service that is second to none.
Valerie Vaz: I am asking
you to go further, not just sit back and silently accept it. You
have a duty to your members to do that.
Q38 Chair: Can
I bring in Jill Finney for the CQC?
Jill Finney: I
was trying to make the point that CQC probably plays a bigger
role at the beginning of the food chain than at the end. While
I absolutely understand this debate here is about when a doctor
or practitioner is at a point of despair and we are down to compromise
agreements in a serious case of negligence, the big role we haveand
it is to Peter's pointis that we can spot when culture
is a challenge, and it is almost that. Culture does not often
look like complaints about whistleblowing policies. Often you
can talk to practitioners who have witnessed poor care and who
are fully conversant with the whistleblowing policy but it does
not enter their head, necessarily, to use a whistleblowing route.
That can be because they have learnt to live with complacency.
It can be because behaviour is normalised. It is for a whole variety
I think CQC's role is to hold the mirror up to organisations
to say, "Your culture looks like this. This is why you have
staff learning to live with negligence and poor care." If,
in fact, you have reached the point ofnot compromise agreementsserious
cases of whistleblowing, or indeed compromise agreements where
you have tried to achieve gagging clauses, then there is a fundamental
failure. Our role is to make sure it should not get to that stage,
and that we hold the mirror up early enough to say, "The
culture of this organisation is a real cause of concern."
Q39 Chair: Can
I ask you a direct question about that? If you are inspecting
a healthcare provider, is it one of your routine questions to
go through instances where professional staff have raised concerns
in that provider since your last inspection? That is question
1. Question 2 is: if the answer to that question is, "No,
there have been no concerns raised," what would be your conclusion?
Jill Finney: I
will refer to Richard on the second point. If we make an unannounced
visitand our visits are unannouncedthen all of those
will include interviews with patients and with staff. Both those
individuals tell you, in fact, a great deal about the quality
or otherwise of that organisation. Once you have identified there
are causes for concern, you then decide to peel that onion back
and think, "We need to go further into this because staff
are telling us things which clearly demonstrate they have concerns."
Q40 Chair: Before
you answer the second question, can I ask you to answer the first
question directly? I accept that talking to patients and staff
is part of assessing the culture, but I would have thought it
would be a very specific question for the audit trail within the
organisation: can you tell us how many instances there have been
in this organisation of concerns having been raised, and what
you have done about it?
Jill Finney: That
would be a routine question, absolutely. We look at incident management
and we look at reporting of incidents and how trusts have learnt
from incidents. That would be a fundamental part of our inspection.
Q41 Chair: How
would you react if the answer was, "Yes, of course we do,
but there aren't any"?
Jill Finney: We
would be deeply suspicious. That is when we begin to peel that
onion back further to say, "That is very unlikely indeed.
Now let us look at your policies and procedures. Let us see how
you deal with untoward incidents. How do you manage them? What
action do you take?" If there is no evidence of any learning
from untoward incidents, that is a fundamental concern. Richard,
I am sure you could elaborate on this.
Even before we go in, we have a feed coming through of the notifications
of serious untoward incidents being made by each NHS trust. We
are much more concerned about the people who are abnormally low
in their reporting than we are with the ones who are reporting
more highly, particularly where you have a mix of the higher reporters
who have quite a lot of less serious incidents being reported.
This points to an open culture with people willing to learn and
recognising, even with quite a low level of concern, that things
need to be reported, as opposed to those who have very few and
they are all very serious. That starts to point to a culture,
precisely as Jill says, where you peel back the onion and there
is a lot there that we need to get through. So we are more worried,
as I say, about the low reporters.
Q42 Chair: I have
one final question and then I will call in the delayed Dan. As
you are assessing that culture, do you put them in boxes or do
you comment in plain English about the ability of professional
people working in that organisation to raise concerns and to comment
on the standard of care being delivered? Do you raise it in language
that a journalist is likely to report in the local newspaper?
Jill Finney: In
the compliance report it would be quite clear that staff were
reluctant to raise concerns. I do not think we would hesitate
to put that in a compliance report. It is a fundamental issue.
It is worth saying that one of the specific standards we measure
compliance with is the management of quality. That is a key part
of picking up on this.
Q43 Grahame M Morris:
Could I ask a quick question before we move off this subject,
Chairman? In relation to the inspection regime, would you ask
specifically about these gagging clausesor whatever term
we are using for the settlements? Would you, as part of your inspection,
ask if these were regularly used by the employing authority? Then,
would you ask to see one as an example? Would you say, "Do
not use this"?
Jill Finney: That
comes back to how far you would have a concern before you got
to that question. You would be quite a way down the line before
you got to a question whereby you said, "Could I have a look
at a compromise agreement to see if, in fact, you have tried to
prevent, essentially, a disclosure?" If we thought there
was a concern as to that, there would be nothing to stop us asking
that question and going into that level of detail. Could I quote
a case where we have done it to date? I could not.
Q44 Grahame M Morris:
Could I ask you about that? You said there would be nothing to
prevent you from doing that, but, as a matter of routine, would
you ask an employing authority whether they use these compromise
Jill Finney: There
are so many more routine indicators to advise you whether that
sort of culture is prevailing or not before you ask such a specific
question. Usually, the signs of a closed culture are quite obvious.
Q45 Grahame M Morris:
Routine use of these agreements would be one indicator of a closed
culture, would it not? You could easily get to the nub of that
quickly by asking them and then asking to see a copy or investigating
further by discussing with staff.
Jill Finney: Indeed,
Q46 Grahame M Morris:
Is that a case for reflection?
Jill Finney: I
think it is, absolutely. There is no reason why we could not,
given that there seems to be a prevalence of this and it is an
emerging concernand I would certainly have to check thisgo
and ask that specific question.
Grahame M Morris: Thank
Q47 Dr Poulter:
I want to come back to some of your opening remarks, if I could,
to begin with. I was actually quite alarmed, and, Jill Finney,
I want to come to your remarks specifically. It seems an absolute
contradiction in terms to say, as people have said on the panel
today, that you believe in openness and the importance of doctors
and nurses and other healthcare professionals whistleblowing their
concerns about care and, at the same time, having any sort of
gagging order or compromise agreement, except, possibly, where
there are commercial issues involved. One can understand that
commercial sensitivity may be important. I was very concerned
that that inherent contradiction in terms was not picked up.
In your opening remarks you used words to the effectand
the record will show thisthat, "While we accept it
is happening at an individual level, we are now writing out to
say that, whatever these compromise agreements or gagging orders
may say, it is still inherent upon doctors or nurses and other
healthcare professionals to flag up quality concerns." How
can you reconcile the two? There is not the distinction Peter
Carter made earlier on that gagging orders or compromise agreements
are different things because they can be exactly the same thing.
If someone has been made redundant because of a service reconfiguration,
it may be that there is a legitimate public concern in the areaa
healthcare concernthat that service reconfiguration is
made for financial reasons rather than for the benefit of patients.
Inherently, I do not understand where you are coming from. Either
gagging orders and compromise agreements are wrong or they are
Jill Finney: There
are two specific examples. One was criminal activity and the other
was serious concern around health and safety. Both of those areas
of concern were under protected disclosure.
Q48 Dr Poulter:
I do not follow. I think it is very difficult for some of the
public to say, "Do you believe that gagging orders and compromise
agreements are wrong or not?" Inherently the message it sends
out, if you are legitimising them, is that it is all right for
a trust to try and gag a doctor, nurse or a healthcare professional
when they are made redundantor for whatever other reasonsfrom
speaking out. Is that right or wrong?
<?oasys [pc10p0] ?>Jill Finney:
I think, as to Peter's point, which is the purpose of the compromise
Q49 Dr Poulter:
No. I want a simple answer. Is that right or wrong?
Jill Finney: If
there is any evidence of criminal activity or a compromisea
serious risk to health and safetythen a doctor should speak
Dr Carter: Dr Poulter,
there is a fundamental misunderstanding here, and it is probably
my deficit in not being able to convey this. Let me be unequivocal
about this. The Royal College of Nursing would never sign up to
any clause which prevented a nurse expressing their concerns about
a failure in standards of care. We have never done that and will
never do that. We signed 300 compromise agreements last year.
That was not about failing standards of care. That would be a
situation where, in an employment relationshiplet us say
that there is a major dispute between an individual and their
employerwe have got to the point where neither side can
win or whatever and the decision is taken, usually by the employer,
to say, "Look, how can we settle this?" It is often
when we have lodged papers for an employment tribunal. It is then,
if you likeand I will use the termthat a business
decision is made, and it is always done with the interests and
the agreement of the nurse involved. The trust might say, "This
is what we think is the right financial remedy," and it is
that which is kept confidential. It is the financial sum.
If, along the way, the nurse had said to us, "You
do realise they are leaning on me because, a few weeks ago, I
raised concerns about standards of care," we would say, "A
compromise agreement is off the agenda. You raised concerns and
now you are being leant on. We will now deal with that."
We would not go down that route at all. Does that help?
Q50 Dr Poulter:
Yes, it does. That is a very useful clarification and a good point.
But it is contradictory to what Jo Finney said in her opening
remarks and what she has just said. What we need to seethe
articulations Peter Carter just made, which are in contradiction
to what has been said by Jill Finney and the CQCis that
there is a concern and the professional bodies would never believe
it right there should be any compromise on a doctor, nurse or
healthcare professional's ability to speak out on issues of patient
safety. I think it absolutely essential, as I say, if the CQC
are to carry credibility from this, that you can explicitly say
it as well, spelling it out very clearly to all healthcare organisations
Jill Finney: I
am very happy to spell that out very clearly because I absolutely
do agree with Dr Carter.
Q51 Dr Poulter:
Jill Finney: I
Q52 Dr Poulter:
You can confirm that.
Jill Finney: I
can confirm that, absolutely.
Q53 Dr Poulter:
Your record earlier was different from that. You have now changed
Jill Finney: I
apologise for the misunderstanding, but I do agree with Dr Carter.
Chair: Dr Porter wants
to come in and then Andrew, who has been extremely patient.
Dr Porter: Thank
you. I wanted to confirm that the number of compromise agreements
the BMA has put in place follow a similar path. Those of our employees
who are allowed to advise on and negotiate compromise agreements
are a small fraction of our Regional Services staff. I think it
is something like one in seven of our most senior and experienced
members. One of the reasons we limit the number of staff able
to advise on such agreements is to make absolutely certain we
do notand never doput ourselves in the position
of advising doctors not to follow their professional obligations
about raising concerns where necessary, and so forth. Compromise
agreements and their use has to be distinguished from what has
been popularly called gagging clauses. No professional body would
agree a gagging clause to hide a patient safety problem.
Q54 Andrew George:
A lot of the discussion, especially with the opening questionsand
indeed both Dr Porter's and Dr Carter's last responses are particularly
helpfulseems to me, at least, to be based on an assumption
that there is a very clear line between grievance or disciplinary
issues and concern about clinical or patient safety. In your last
answer, Dr Carter, you were very clear that, if it became apparent
this compromise agreement was going to be reached in circumstances
where, previously, concerns had been raised of a clinical or patient
safety nature, you would have pulled out of that agreement.
Dr Carter: Absolutely.
Q55 Andrew George:
But I think you know that, in many circumstances where either
a grievance or a disciplinary matter arises, there may well have
been a professional, a clinician, engaged in using the proper
channelsnot blowing whistles or doing anything else in
the public domainto raise concerns about patient safety,
patientstaff ratios, those kinds of things and getting not
only an unsatisfactory response but finding themselves faced with
a disciplinary action, either trumped up, because of concerns
that they were going to be causing trouble, or for some other
reason. They will then be faced with accusations questioning their
competence and their clinical judgment.
In those circumstances, where a compromise agreement
is brought forward, I do not see it as a gagging clause so much
as a bribea payoffto get out of the way because,
"We are afraid that you might otherwise raise concerns."
Do you not see?
Dr Carter: I do,
Q56 Andrew George:
I have made a rather long case, but a lot of the evidence or claims
which you and Dr Porter are making seem to be based on an assumption
that there is a very clear distinction between the two. However,
you must accept that, in those kinds of circumstances, surely,
there is a blur between clinical and patient safety and grievance
and disciplinary considerations.
Dr Carter: May
I come back? I accept entirely what you say. I could well imaginealbeit
I hope it is a small number of employerspeople who think,
"She is a bit stroppy, always raising these concerns,"
and then, at some stage downstream, thinking, "There has
been an issue. Let us deal with her on this" because she
is seen as difficult. I am saddened to say that every day, somewhere
in the UK, we are representing people where you are in that twilight
zone of saying, "Although you have raised a punctuality issue"or
something like that"we think there is an ulterior
motive here. This is because, a few months ago, she made life
difficult for you. She raised concerns about safe staffing levels."
That is where you need good quality employment relations officers
and lawyers, which we have in the College, to try to disentangle
that and get to the heart of the matter.
One of the things I have touched on already in this
afternoon's session is the issue to do with whistleblowing. I
know that is not primarily what we are talking about, but we still
have regular examples of nurses who have raised legitimate concerns
and been dismissed. We had one in September, in a private nursing
home, where a nurseand I have checked this outwho
had glowing appraisals raised two issues. One was the inappropriate
administration of medication and another was where a patientI
am very saddened to saywas put out in the sunshine as a
punishment. This was a nurse, as I say, with a glowing track record.
She raised this and was summarily dismissed. We took the case
up, we took it to an employment tribunal and we won. We won easily.
The private nursing home was suitably reproached. That nurse went
through a very difficult period, as you can imagine. I am under
no illusions that, sadlyand, as I say, I hope it is a small
numberthere are employers who do this. What they should
have done is taken this nurse's concerns seriously and investigated,
if only to exonerate themselves.
Q57 Andrew George:
If, in those circumstances, the nurse had been offered a bribesorry,
a compromise agreementyou would not know about it. The
bribesorry, the compromise agreementmay be offered
before you arrive on the scene.
Dr Carter: Absolutely.
If we do not know about it, we cannot do anything about it.
Q58 Andrew George:
You described it as a "twilight zone", as it were. It
is very helpful to at least have it acknowledged that, in fact,
it is not a clear line and there is a blura twilight zonebetween
grievance and clinical concerns.
Dr Carter: Indeed.
Sitting here, it can appear very clear cut. However, when you
are in the middle of them, a number of things get conflated and
it can be difficult. It is an occupational hazard for a union
that you are, often, so dependent on your member telling you what
has happened. It is an occupational hazard for solicitors. You
need your client to give you as clear an understanding of what
has happened as possible and not leave anything out. If we have
a nurse somewherea memberwho does not come to us
and an employer comes along and says, "We have had <?oasys
[pc10p0] ?>enough of this. We are going to give you N number
of months' wages," we would always say, "Come and take
advice from us." I am sure, statistically, someone must have
accepted a deal like that, but we would not countenance it.
Q59 Andrew George:
Dr Porter, is that pretty much the same in the circumstances of
the BMA members?
Dr Porter: Pretty
much, I think. If there are agreements we do not know about, we
do not know about them. You probably know that, to be lawful,
a compromise agreement has to have the signature of the professional
adviser of the employee on it, for example. If anything is done
outside that situation, we would know nothing about it.
Andrew George: Thank you.
Q60 Chris Skidmore:
In terms of the compromise agreements that both the BMA and the
RCN have arranged and helped sort out for their membersand
there is a huge variation in these agreements, naturally, because
they relate to individual circumstances of the employer and employeeto
what extent do you have a pro forma or standard framework which
you will use? Do you have a separate framework for the RCN or
for the BMA? Do you communicate among yourselves on whether to
try and create a standard template to avoid the grey area that
other members have talked about?
Dr Carter: I am
going to declare that I have never read the BMA's compromise agreement
and I do not know if Mark has read one of ours. I would take a
punt, though, that they are not dissimilar. There is a core set
Q61 Chris Skidmore:
I also want to move on to the CQC. I know that, in terms of outcome
16 of your essential standards on whistleblowing, you have said
that the role of the CQC is to: "Make sure there is a confidential
way for staff to raise concerns about risks to people, poor practice
and adverse events. Staff understand the reporting system and
feel confident to use it, without fear that they will be treated
unfairly as a result of raising a concern."
The CQC has also said, in the written evidence to
us at paragraph 15.10, that there is a great deal of complexity:
"As a result of this complexity, CQC has neither the remit
nor the capacity to routinely monitor how effectively organisations
are developing an open culture."
I wanted to put it to youpartly to Mr Hamblin,
who is director of intelligence in the CQCwhether you have
had any intelligence on the CQC's involvement with compromise
agreements. Maybe we in this room could reach some sort of compromise
agreement ourselves that the BMA and the RCN end up in talks with
the CQC. We could move towards a point where we might be able
to recommend, at some stage, that there should be regulation or
a developed legal framework that, regardless of all these organisations
that have been ruled out from having members talking to themas,
for instance, in the Lewisham Trust casethe CQC could regulate
to produce a framework for any compromise agreement then going
Personally, I can understand there are times when
compromise agreements are necessary, and I would not call them
a bribe or say they are gagging clauses. For the sake of the trust
and the NHS they are necessary, in places, to ensure that we solve
disputes. Surely, it would be the responsibility of policy makers
here to be looking at how we can maybe give the CQC extra teeth
and to create a standard compromise framework that would ensure
this does not happen in future.
Jill Finney: Did
you want to answer the first question, Richard?
In terms of compromise agreements themselves, as Jill pointed
out, it is the sort of thing you look for intelligence on once
you are inspecting rather than routinely collecting. That is largely
because of issues of confidentiality and so forth. There are probably
better or easier measures to find the sense of openness of culture
more routinely. Notifications is one we have spoken about.
Interestingly, some of our interactions with organisations
are very telling of the openness of their culture. A particularly
good example is the investigation of mortality outliers which,
as some of you may remember, played a part in uncovering the Mid
Staffordshire incident. What was very clear was there was the
closed nature of culture in response to it, arguing the toss about
figures rather than being open to what they might be saying and
that sort of thing. What is interesting is how much the culture
has moved on in three years. As to that very defensive sort of
response, I think I have seen one example of that in the last
two years. Typically, people are now investigating before we do.
It really has changed the culture there.
Going back to your initial question, absolutely it
is something that we would use as intelligence. But it would be
down the line, once we have already got a case rather than as
a screening tool.
Q62 Chris Skidmore:
What about moving forward?
Jill Finney: We
have improved information sharing with the professional regulators,
and I think Dr Carter would reinforce that. We did not share,
hitherto, enough information with professional regulators and
there is ample opportunity to do more of that than we have done.
This type of evidence we could talk about more than we have done.
We have talked about information sharing relating to the reregistration
of nurses. If we come across nurses that are not reregistered
we report it, and vice versa, if you come across nurses that are
not registered you report it. We are in that space, but we would
all agree we could do a lot more and look at this sort of area
as well, to see whether it is fruitful to begin to think about
sharing more information about when you are at the end of the
line. When you are at the end of the line, then it has gone too
Q63 Chris Skidmore:
What about creating a framework or guidance that the BMA or the
RCN could rely upon? It seems to be a shattered mosaic, at the
moment, of various different agreements and then you get this
fairly passive situation of, "We write to Lewisham".
They write back and say, "Whoops, yes, we did not mean to
put that in. We will take it out." That is not a situation
we want to be in because it is a reactive situation. We want to
be on the front foot rather than the back foot. Would you not
think the CQC could play a role in helping? You have your own
compromise agreements, but would you welcome that from the CQC?
Dr Carter: I am
waiting for the nod from the Chair.
Chair: Was that a direct
question to the CQC first?
Chris Skidmore: I did
not quite want to
Chair: Or was it a rhetorical
Q64 Chris Skidmore:
No. It was a question about the CQC having extra teeth on this.
You did not quite get to grips with it.
Jill Finney: If
the CQC's role is to maintain essential standards of quality and
safety, we have to think about the best way of doing that. One
of the best ways of doing that is making sure there is an open
culture in any provider environment. I would like to be able to
say, "How do we work towards making sure that that open culture
exists?" It is Richard's point. It is getting better, but
it has a long way to travel. What do we need to do to make sure
that we do not end up at the compromise agreement stage whereby
you are trying to gag an employee about not being able to speak
to the regulator? It is quite absurd, I agree.
We would like to say: let us take your challenge
away, think about how we work with professional regulators and
see whether we can try and deal with this ridiculous position
that we find ourselves in, because we should not be here.
Dr Carter: I was
going briefly to say that I think we should take up your suggestion.
The organisations should meet and try and get some commonality
on this so that there is a congruence of how we are all approaching
Dr Porter: There
is an important thing that we have to remember here. Most trades
unions in most sectors of employment use compromise agreements.
It is a standard method of terminating employment, albeit not
a heavily used method, but a standard method in difficult cases.
As far as I am aware, it is used in all sectors, not only in the
NHS. It is covered by legislation and, because it is covered by
legislation which is extraordinarily detailed, there is a list
of things that should be considered, that have to be done and
that cannot be done. To that end, there is alreadyPeter
mentioned thisan assumed commonality between the agreements
that we and the RCN might use, and that is where it would come
from. The slight difficulty I have is where we go on from that.
In asking the CQC to regulate the gagging clausesthe ones
that go furtheryou are asking the CQC to regulate something
which is unlawful. I see that as a little bit of a contradiction
in terms. There need to be means to find out where this happens,
because it is not acceptable, but I am not sure we can regulate
something that is already forbidden by statute.
Q65 Chair: The
compromise agreement is not forbidden by statute.
Dr Porter: No,
but going beyond that, the gagging clauses.
Chair: Absolutely. But
it is the wording of compromise agreements that I think Mr Skidmore
was asking about.
Q66 Chris Skidmore:
Yes. I was almost alluding to the fact that in the text of every
compromise agreement, whether with the BMA, the RCN or whoever,
the CQC would encourage every compromise agreement to abide by
outcome 16 of their essential standards. If that bottom line was
there, that would give the freedom for the employee, if they needed
to, to feel that they could go and report whatever malpractice
they felt was outstanding without fear.
Jill Finney: We
should highlight that more in our communications. We could definitely
Chair: Mr Morris has a
quick question, then Barbara Keeley, then Sarah Wollaston and
then we need to move on.
Q67 Grahame M Morris:
I am going to be very quick and address my question to the representatives
from the CQC. Doctors and nurses have a professional obligation
to report patient safety issues not to their trade unions, with
all respectpresumably they may come to youbut to
the GMC in the case of doctors, and the Nursing and Midwifery
Council in the case of nurses. Do you liaise with the GMC and
the NMC and do you think, as an improvement to the current arrangements,
as a matter of course, that those organisations should report
such incidents to you directly?
Jill Finney: I
can give you two examples. There are two trusts where we have
worked extensively with the GMC where we had concerns about some
junior doctors. The GMC intervened in both those trusts and dealt
with the issue which was emerging there. With regard to the NMC,
there are two examples of where we undertook inspections with
members of the NMC. We take those experts in, because they are
able to talk to staff in a way that we are not, to tease out these
Q68 Grahame M Morris:
Is that a matter of routine or do you think there should be an
obligation on these two bodies to liaise with you? It is good
Jill Finney: Yes,
I think it is good practice.
Q69 Grahame M Morris:
But would it tighten things up to place an obligation on them
to advise you of these incidents?
Jill Finney: They
should. I would say that if the NMC was aware of intimidation
at a provider level then they should let us know that is going
Q70 Chair: But
Jill Finney: Do
they routinely? I do not think we could say that, at this point
in time. I do not think we could say, "Yes, they definitely
do." There are examples of them doing it and there are examples,
absolutely, when we have taken members out with us on inspections
and they highlight instances, such as you have described, in a
way that it would be much more challenging for us to find. We
should do a lot more of that. The dignity and nutrition review
that we did absolutely got to the heart of the matter because
we had those experts with us. You do get to the needle in that
haystack faster when you use experts. Yes, it ought to be more
routine than it is.
Q71 Barbara Keeley:
We have discovered some useful things. The CQC do not specifically
ask about compromise agreements and look at the wording, when
perhaps you should. Also, there do seem to be, from what the RCN
have said, links between whistleblowing and grievances by membersmembers
being sacked after reporting concerns. So there is some kind of
link there. I think it is quite important if you can help us by
saying what your reaction is to the RCN survey. I am quite concerned
about the numbers that were in your surveythat one third
of their members are either discouraged or told directly not to
report their concerns at the workplace. That figure of one in
three is up from one in five, just two years before. I know that
we have largely got into this session because of compromise agreements,
and I think there are issues there, but I want to have your reaction
on that because there are links. All these things are clearly
linked. How do you react to that?
Jill Finney: From
our side, from June to November this year, we have had just over
2,000 whistleblowing calls. We had 400 last month. The number
of whistleblowing calls that we are receiving is definitely rising.
But, when you look at these survey results, you would say, "In
which case, are we receiving enough whistleblowing calls?"
If that is the case, I would say we have a lot of awareness-raising
to do. We have done some. My leaflet example was not meant to
be taken entirely out of context. I think we have
Q72 Barbara Keeley:
Could I stop you there? I think it is way beyond awareness-raising.
We talked earlier about training, but awareness-raising and leaflets
do not go there really, do they?
Jill Finney: No,
I don't think
Q73 Chair: Can
I reinforce that? It is not about safety valves, is it? This is
about professional obligationin other words, their registration
is at risk if they do not, rather than making it easy because
it is the right thing to do.
Jill Finney: Yes.
I think that is right. That is why we come to the point that this
is inevitably a cultural and leadership issue. We often find the
problems in this area are because the leadership has not created
a culture whereby this is encouraged; indeed, it is actively discouraged.
This comes back to the CQC's role in holding the mirror up to
an organisation to say, "This is how your organisation is
performing. This is the culture you are delivering. If your board
is not discussing it, your board is not looking at it and your
CEO is not walking round those wards
Q74 Barbara Keeley:
But recognising that a chunk of this is hidden anyway because
of gagging clauses, compromise agreements and a third of peoplenurses
at leastwho are not even going there because they are worried
<?oasys [pc10p0] ?>Richard Hamblin:
But some of that is exposed by the fact it is being hidden, if
that does not sound too paradoxical. One is looking at reportingnotification
of serious untoward incidents, and so forthalongside what
you see in terms of outcomes for patients and experience reporting
for patients. If those two do not alignwhen the recorded
outcomes and the recorded experience is poor but you are not seeing
the indication of the reporting of serious untoward incidentsthat
is when it gets to, "This is the place where that is hidden".
Dr Carter, I would be very grateful if you could provide us with
some of the data that underpin the survey. The interesting thing
here, for me, is what the variation is and where those nurses
came from. If we can get into that sort of thing, it would be
phenomenally helpful to respond to that.
Dr Carter: I certainly
Q75 Valerie Vaz:
Is that not routine between the two of you?
Dr Carter: We do
meet regularly with
Valerie Vaz: You have
to come to a Select Committee to meet.
Q76 Chair: You
should come here more often.
Dr Carter: It is
the highlight of my year, and coming up to Christmas. Yes, we
do meet, but this afternoon, certainly from our perspective, has
been very helpful. It has brought out that there is work to be
done on this. Without, Jill, in any way trying to diminish the
issue of the leaflets, I do agree with Barbara Keeley that this
is about culture, ownership and personal responsibility, both
on individuals and on people running organisations. We would expect
to see trust boards discussing serious untoward incidents and
discussing where people have raised concerns, if only to say,
"Look, a nurse"or a doctor or whoever"has
raised these concerns. We have investigated it and it is found
to be wanting." That is the sort of thing that we want. You
will find there are times when it is certainly not found to be
wanting and we would hope to see the appropriate action taken.
Jill Finney: Dr
Carter, that is exactly what I said. To look at the culture, you
have to look at boards and leadership to see whether they are
discussing it and whether it is being dealt with or not.
Dr Carter: Yes.
Q77 Chair: Dr
Porter now, or shall we go to Sarah Wollaston?
Dr Porter: I will
give the time to Sarah rather than repeating the answer, if you
see what I mean.
Q78 Dr Wollaston:
Do the panel think that culture of openness should extend right
up to the Department of Health? If so, I want to read you an interesting
clause and ask how you feel about whether a doctor should sign
this clause in a contract: "they should avoid associating
themselves with recommendations critical of or embarrassing of
the Government. They should also exercise discretion in any speeches
or broadcasts outside the House." Do you think, if a doctor
were to sign, that would constitute a gagging clause?
Dr Porter: I have
the strong feeling that I am being invited to comment on something
in your contract.
Q79 Dr Wollaston:
It is a contract that Parliamentary Private Secretaries have to
sign if they want to work in the Department of Health. I thought
I would throw that in as an example.
Chair: If I may say so,
that is an interesting footnote but slightly outside the scope
of this inquiry.
Dr Porter: I will
give that a serious answer. Any doctor who takes on any additional
role, whether it is as a clinical manager, a nonclinical
manager or a Parliamentary Private Secretary, and retains their
registration remains bound by their professional obligations.
I would not give too much credence to people who try to promulgate
contracts, in whatever fieldand I am deliberately not commenting
on that onewhich would seek to make a doctor avoid their
professional obligations because that would be completely wrong.
The one thing I would like to finish off by saying,
if that is all right, is that we are talking here about the serious
end of what should be routine in professional practice. We have
talked about how it is a professional obligation. The point is
that that obligation is not something punitive. It is not something
which is intended to remind people of the punishments they get
if they do not do it. It is intended to remind people that it
is one of the basic duties of a doctor and of a nurse and of other
clinicians working in the National Health Service. The culture
whereby we continually report errors, omissions, problems and
incidents is the culture upon which the learning nature of health
is built and upon which safety can be improved in the future.
We absolutely must do everything at all times to try to keep that
Coming back to the part of your question about the
Department of Health, of course this should extend upwards to
the Department of Health. I should say that, if you look for advice
about this area on the Department of Health website, you will
find a superb exemplar of good practice that refers to charitable
and public work in this field. It is an example that I wish every
NHS organisation would find itself able to follow all the time.
Sadly, they do not and that is why we are here this afternoon.
Q80 Chair: It
is nice to hear a BMA endorsement of the Department of Health.
I was going to draw it to a close. Can I have a quick footnote?
The point you were making about this being a cultural issue that
extends beyond the serious untoward incident to routine professional
practice seems to me to be a very important one. It is one that
the Committee has talked about in the reports that I referred
to at the beginning of this session. Is that undermined if it
is always seen as whistleblowing? Is there not a danger that the
whistleblower is somehow seen as the difficult customer, whereas
what you described, Dr Porter, is routine professional practice
for every doctor, nurse, midwife and other regulated professional
in the Health Service?
<?oasys [pc10p0] ?>Dr Porter:
There is a difference between them. The problem here is that the
terminology is not clear-cut. Even where it is clear-cut in the
Act and what it refers to are the protections, people use the
terms interchangeably. Imagine that now, instead of telling you
of these problems, I stood up and actually blew a whistle. That
is the metaphor that tells you what whistleblowing is intended
to be like. It is intended to be a very public demonstration to
bring people to heel. In that, the person or organisation that
is having the whistle blown about them feels extraordinarily sensitive.
I am sure that is part of the impetus to sometimes try to keep
things quiethe said delicately and not trying to revisit
There is a slightly odd paradox here, in that I have
talked about the way in which professional practice and the NHS,
in general, should be based on a culture of openness and a culture
of reporting. Whistleblowing itself, when you look at the PIDA,
is, in effect, a failure of that because it is the necessity to
take the concern outside the organisation's usual mechanisms.
In that regard, I would not say that I would like whistleblowing
to be an embedded part of the NHS culture because it is a failure
of what should be our normal, routine and everyday clinical governance
mechanisms. But, because we know that those mechanisms do fail
from time to time, we absolutely have to have it in place. Also,
because it is so much more important and there is so much more
emotional investment for the employee, the practitioner or the
clinician who is having to blow the whistle, we have to give them
a correspondingly greater amount of protection. The Act tries
to do that. I am not sure that all NHS organisations do.
Q81 Chair: Does
anybody else want to comment on that?
Dr Carter: Can
I briefly make the point that the way the notion of whistleblowing
has arisen over the past few years is unfortunate. Mark has very
clearly outlined why and the difficulties with that. But it should
be encrypted into the culture. As I said earlier on, I do not
think that can ever happen as a result of an Act of Parliament.
That can set out the principles but it has to be local ownership.
This afternoon, for understandable reasons, it has been predominantly
about the NHS. There is a huge sector out there which is not NHS
and I think there are some major issues there.
My final commentand I know this will not be
lost on the Chairmancomes from Sir Ian Kennedy's report
on Bristol, which was such a seminal piece of work. You probably
know what I am going to say. The key thing, which everyone should
know, is that Sir Ian Kennedy famously said it was not that no
one knew what was going on in Bristol. Everyone knew. The trouble
is no one thought it was their responsibility to do something
about it. From the most junior healthcare assistant and junior
nurse, right across the spectrum, everyone should be clear that
they have a personal responsibility if there are issues of concern.
Jill Finney: What
we find, time and again, is that when our inspectors talk to staff
they will repeat significant amounts of incidents of poor care
but it does not enter their head to report that incident or indeed
to take it further. Yet they will tell the inspection. Unless
they are really prompted, they do not think to do that. If we
get incident reporting and encouragement about incident reporting
right then it does not get escalated and escalated.
Chair: Thank you very
much indeed for your contribution.
Examination of Witnesses
Witnesses: Gavin Larner,
Director of Professional Standards, Department of Health, and
Matthew Fagg, Deputy Branch Head, Professional Standards
Branch, Department of Health, gave evidence.
Q82 Chair: Thank
you very much for joining us. I think I am right in saying that
you both, in truth, sat through the evidence from the previous
panel so, hopefully, this will allow us to build on that evidence
rather than simply repeat it. Perhaps I could ask you to begin
by introducing yourselves and the role you play in the Department.
Gavin Larner: I
am Gavin Larner. I am Director of Professional Standards at the
Department. I cover the policy and legislative framework for the
professional regulatory bodies like the GMC and the NMC. I also
cover whistleblowing, which you have been discussing today, and
other matters which the Select Committee have taken an interest
in like medical revalidation, the regulatory arrangements for
healthcare support workers and the practicalities of regulating
Chinese and herbal medicine practitioners.
Chair: David Tredinnick
has missed his chance.
Matthew Fagg: My
name is Matthew Fagg. I am Deputy Head of Professional Standards
Branch at the Department.
Q83 Chair: Thank
you very much. I would like to suggest we begin by asking about
the very specific contracts that led to this hearing and then,
perhaps, move on into the broader issues about raising concerns
and whistleblowing and so forth. You heard very clear evidence
that the clauses, which Dr Wollaston read out, that were written
into a small number of compromise agreements, in the opinion of
the previous panel, were quite clearly contrary to law, never
mind good practice. Is there anything you would like to add to
that to start the process off?
Gavin Larner: Absolutely.
Most of us absolutely agree that such clauses are inconsistent
with the Act and are not acceptable. As a result of The Times
article, I wrote, on 28 November, to the two trusts concerned
to draw this to their attention and to ask them to review their
policies. Ministers have also agreed that, following this evidence
session, we will write to all NHS organisations to remind them
of their responsibilities. Monitor will be writing to foundation
trusts on this matter as well. There is a consensus here that
we need to encourage people to speak out. With anything that hits
against that, and in particular that crosses the Act, we need
to make sure the Service understands its responsibilities.
Q84 Chair: That
is very clear. Do you share the surprise felt by some Members
of the Committee that somebody gave professional advice to the
people who signed those compromise agreements, and how it could
be that the adviser to the person who signed the compromise agreement
advised them to sign it?
Gavin Larner: We
do. Before any employee signs any confidentiality agreement of
this kind, the employer is obliged to pay for legal advice for
them to check the contract overthat it is consistent with
their employment rights and with other legislation. In the two
cases concerned, it may be that the legal advice provided did
not do so. I think it may have been the same legal team that provided
the advice to the two trusts. We are following up with the Legal
Services Board and the Solicitors Regulation Authority to see
what further action might be taken in that regard.
Q85 Chair: That
is very helpful. Does it follow that it might be appropriate to
draw the attention of the legal regulators to the limitations
of what it is proper for a doctor to sign in the context of a
I am going to give you a bit of time to reflect on
the answer to that question because we have to go and vote. This
sitting is suspended for 10 minutes, if that is enough time.
Sitting suspended for a Division in the House.
Q86 Chair: We
can continue a little earlier because this is, as we said, building
on the previous session. My question was whether there was an
opportunity to follow up the advice that was given by the legal
advisers in this case and whether this should be something taken
up by the legal regulators.
Gavin Larner: Another
MPnot on this Committeehas already raised it with
the Legal Services Board and I am not sure if I am able to breach
his confidentiality here or not. We have been discussing that.
Currently, they are looking at the cases that have been raised
with them. I am happy to go back to the relevant regulator, raise
that with them and report back through you, Chair, to the Committee
on what action they propose to take.
Chair: That would be helpful.
Thank you very much.
Q87 Valerie Vaz:
I want to ask a couple of things. Very clumsilyI did not
quite make the distinction I wantedI was trying to make
the distinction between these compromise agreements and where
you have employees where there has been some sort of misconduct.
I think Andrew George picked it up a bit when he said that there
is that kind of line, that blurring, where someone raises something
and then it becomes one of these misconduct cases because they
have raised something. I am wondering what sort of information
you get back in terms of the difference between the two and whether
we could possibly have a settlement agreement or a memorandum
of understanding talking, simply, about employee relations rather
than having these compromise agreements in the actual contract.
Gavin Larner: The
way it operates on the ground, when they are agreeing settlements,
is that they try to bind the whole thing together in one legal
contract. That is, I suspect, for simplicity's sake. But in doing
so, they are bound (a) by the Act, in terms of what they can put
in it, and (b) by our Circular of 1998 which goes further than
the Act and explicitly prohibits inclusion of such clauses in
contracts. Also, there is a kind of third stage. Where any agreement,
financially, goes beyond what is within an employee's normal contract,
it has to be approved by the Department of Health and the Treasury
in the case of normal trusts and by the Treasury and Monitor in
the case of foundation trusts. Since 2007, when there was growing
public, parliamentary and ministerial concern about some of the
large payments that were being made, a much more robust regime
has been put in place. Now when trusts are proposing to make agreements
that go outside the normal terms of contract, they are reviewed
either by the Department or the Treasury to ensure that they are
consistent with a number of points: that they are not seeking
to discriminate against anyone; they are not seeking to cover
up poor behaviour; and that they are not simply trying to protect
the reputation of an organisation or shield it from embarrassment.
However much making a settlement may make life easier so you can
get on with things, it is public money and there was growing concern
about that. Since those new arrangements were brought into place,
the number of cases approved and the amount of money approved
has gone down considerably.
Q88 Valerie Vaz:
Can you give us figures?
Gavin Larner: I
can, if you give me one moment.
Matthew Fagg: We
are talking about, I think, for 2008 in the region of 200 cases.
We are now talking in the region of 20 or 23 a year, that sort
of figure. Some of that is, I think, to do with foundation trusts,
but even before the creation of foundation trusts there was a
downward trend in terms of the number of severance agreements
that were approved by the Department.
Gavin Larner: The
amount of payments went down from almost £6 million in total
in 2009 to about £500,000 last year.
Matthew Fagg: It
is that order of magnitude, yes.
Q89 Valerie Vaz:
I have a couple of quick questions. I was talking to the deaneries.
They said that sometimes when they talk to people, they find that
they get more information if they talk to the junior doctors and
the people down below. How is that going to work in the new scheme
of things? Who is going to be responsible for looking at that
and whom do deaneries report to? Is it the Commissioning Board
or the Department of Health?
Gavin Larner: As
I understand it, the future of the deaneries and their functions
is part of the wider policy on the future education and training
framework for the Service, which I think the Committee heard evidence
on from the Department quite recently. I am afraid I am not au
Q90 Dr Wollaston:
The Local Education and Training Boards.
Gavin Larner: Yes.
Q91 Valerie Vaz:
What about from your point of view?
Gavin Larner: I
await the outcome of that work from colleagues in the Department
before I can finalise what the deanery role will be in this, in
Matthew Fagg: It
might be worth clarifying that there are two things here. There
is what is included in standard terms and conditions of service,
in which, in the consultant's terms and conditions, for example,
it says that a consultant has an obligation not to disclose any
information of a confidential nature concerning patients, and
so on. But it then also says, within that, where consultants have
a genuine cause for concern they have a right to raise that concern
under the Public Interest Disclosure Act. That is what is agreed
nationally with the unions. But also, here, I think the examples
that were being referred to earlier are severance agreements,
which are local agreements. They are not things that have been
agreed at a national level. We were all expressing concern about
the wording of some of those severance agreements, but it is perhaps
worth clarifying that they are two separate things.
Q92 Chair: If
that is the standard consultant contract, it is worth noting that
it is worded as a right to raise a concern whereas Good Medical
Practice imposes a duty to raise concerns. They are two rather
Gavin Larner: Since
the election, Ministers have negotiated with the unions that all
employment contracts in the NHS now contain that right to raise
Q93 Chair: Is
it a right or a duty?
Gavin Larner: It
is a right.
Matthew Fagg: They
have a contractual right to raise the concern under their professional
code of conduct set by the regulatory body. They also have a duty,
where they see concerns, to speak out or to act on them. They
are slightly different purposes.
Q94 Barbara Keeley:
On that point, the needthe dutyto raise issues of
concern where there are concerns, that is obviously a key element
in improving practice and improving the quality of the experience
that patients have. I mentioned earlierand you were here,
I think, for our earlier discussionthe issues that there
have been and the dreadful reports, the Ombudsman's report, on
the care of the elderly in hospitals. The issues, we know, exist.
In terms of that, it is key we do more to make that happen because,
clearly, in all those failing examples not enough professional
staff are doing that.
I refer back to the RCN survey which shows that a
much larger proportionone in three nursing members surveyed,
rather than one in five two years earlierhad said that
they were actively discouraged or told not to raise concerns at
work. There was a lot of discussion between our previous witnesses
about creating an open culture. I wonder, first, how you react
to that survey and the news that it is getting worse, that people
feel they cannot raise concernsor certainly nurses doand,
secondly, what you are doing and can do at the Department of Health
to promote that open culture which all our earlier witnesses seemed
to think was essential to getting to the point of getting more
Gavin Larner: We
clearly take seriously what the nurses in the RCN survey are reporting.
I do not want to get into the world of competing surveys, but
for the staff survey that we do for the NHS as a whole every year,
last year, of 140,000 staff, something like 79% said they knew
where to go to raise a concern and 75% of them thought they would
be safe to do so. Within that, I think about 40,000 nurses were
part of that sample and they seemed to be more positive and more
confident in the reporting than other professional groups.
Q95 Barbara Keeley:
I would not jump to that conclusion. It might be that they are
more prepared to respond to a survey from the Royal College than
they are to the Department. I do not think you can jump to the
conclusion that they are more confident in your survey. I think
it might be the case that they are reporting their issues more
in the RCN survey.
Gavin Larner: That
may well be the case, but on the survey that we have had running
since 2007 there has been a slow increase in confidence. That
is not enough. We are not complacent on that matter and surveys
like the RCN survey show there is a great deal more to be done.
We have done a lot this year on a sort of national policy architecture
that can support this. As the Committee itself and previous witnesses
have said, a lot of this is about culture and leadership in the
organisations themselves and how you align the various players
in the system, whether it is the Department, the CQC, Monitor
or the professional regulators, in a consistent pressure nationally
while aligning local players in the system, like commissionersand,
in future, HealthWatch and otherswho will oversee trust
behaviour, to ensure that people understand this and take it very
seriously indeed. On top of that, there is some work, on which
we need to push harder, on the leadership front in organisations
so that trust executives and nonexecutives have this right
at the top of their agendas and show the kind of behaviour that
Peter Carter was talking about.
There are two pieces of work on that front. First,
in the wake of the first Mid Staffordshire public inquiry, where
Robert Francis was looking at the regulatory system around managers
themselves, Ministers have commissioned the Council For Healthcare
Regulatory Excellence to draw up a set of standards as to the
expectations of board members, both executive and nonexecutive,
and the way they lead their organisations.
Q96 Barbara Keeley:
How would you make that happen? It is okay to talk about guidance,
but how will it happen?
Gavin Larner: There
are further discussions going on about, once you have that, is
it something you enforce at a trust level or is it something you
take a regulatory approach to? I think Ministers will want to
look at the outcome of the second public inquiry before deciding
precisely what mechanism they want to give traction to that most
effectively. It will be multiple again and, as I say, we need
to have a push from lots of different angles to change behaviour
and culture in the system to get that to happen. There is that
piece of work, which is more on the enforcement side, as it were.
Then there is more of a developmental side about how you grow
leaders in organisations that have it in their blood that that
is what their jobs are about. The Secretary of State announced
recently the establishment of an NHS Leadership Academy which
will seek precisely to develop that kind of mindset and skills.
But it is a cultural change. It will take time. If we could press
a button and change a law to make it happen, we would. But it
is not that simple.
Q97 Barbara Keeley:
It seems that this yearI do not disagree with what you
are sayingcertainly, my perception is that things are getting
worse. We have heard about the survey where it is getting worse.
We have had some horrendous reports of how people are treated
in hospital, which became clear in all the places where those
things happened. I have had horrendous cases myself, as an MP.
My experience and what we hear and keep having reports about is
that, potentially, it is getting worse. It is all right to talk
around it in the terms you have just done, but are we alerted
to the fact that there is something seriously wrong here that
needs addressing? It is not good to have a survey from the Royal
College that says one third of their members do not feel comfortable
with whistleblowing because they have been told not to. That is
Gavin Larner: Absolutely,
and we are taking the issue of whistleblowing very seriously indeed.
The Department have taken a number of steps, since the election,
to enforce that, such as changing the contractual rights of staff
and working with the trades unions and employers to issue guidance
to the Service on the responsibility for whistleblowing. We fund
Public Concern at Work to run a legal advice line for all members
of staff about how to raise concerns appropriately. Ministers
have made it clear that they are continuing to consider what further
action would be effective in the Service to give this more
Q98 Barbara Keeley:
It is not a question of "how to". It is getting past
the leaflets that the CQC were talking about and the awareness-raising.
I do not believe that people do not know how to do it. I think
they are frightened to do it, and that is different.
Gavin Larner: Absolutely,
and what I was saying
Q99 Barbara Keeley:
Drawing up guidance on how to have an open culture is not going
to jump you past that, is it? It is going to need some big interventions,
it seems to me, otherwise it is not going happen.
Gavin Larner: We
clearly accept that there are parts of the Service where people
do not feel confident to speak up. I am saying that we are doing
things nationally to help do that but we also need to find ways
into the culture of local services. That is where we are talking
about the leadership of boards and how we develop that, so the
leadership of every trust and primary care organisation in the
country takes this seriously and understands how listening to
concernsand, indeed, not just inspiring confidence but
praising whistleblowers and welcoming themis of benefit
to their organisations in terms of their longterm reputation,
even if in the short term there is a risk to reputation.
Q100 Grahame M Morris:
Might I seek some clarification from the Department of Health
in respect of the new architecture arising from the NHS reforms?
There have been a number of issues about service reconfigurationabout
procurement, for examplewhere the responses from Government
have been, "This is a matter for local determination."
In the case of procurement, it is the independent financial trusts
who will decide what the policy is. A few moments ago, you were
talking about inappropriate severance agreementsas you
referred to them. Under the new arrangements, will the Department
of Health have the powers to intervene with a foundation trustor
it may be a private provider, a private hospital group, who is
running some aspect of the service? Will you have the power to
intervene and direct them that this is an inappropriate agreement?
Gavin Larner: As
at present for foundation trusts, Monitor will continue to have
the power to intervene where foundation trusts are in breach of
the law. After this, together with the Department, they will be
writing to foundation trusts to do so and they will continue to
have oversight of FTs in that way. As the Department and SHAs
move on, the NHS Trust Development Authority will continue to
have oversight of NHS trusts. The Commissioning Board will have
oversight of commissioning organisations. Each piece of the architecture
will continue to have oversight on issues such as this. In the
end, we retain ultimate responsibility and, if we felt that a
healthcare organisation was not consistent with the law, we would
take action to draw it to their attention.
Q101 Grahame M Morris:
Would that apply to private sector providers too? Also, is there
a difference between "Take action to draw it to their intention"
and intervening to say, "This is inappropriate. Do not do
Matthew Fagg: There
are going to be contractual obligations on providers to have regard,
say, to the constitution. While, to some extent, you can intervene
from the centre, a lot of the requirements here will flow through
contractual requirements. If a commissioning organisation has
concerns about the way a provider is acting, essentially what
we are doing, through the standard contracts and so on, is empowering
them to be able to take action. It is much more effective for
action to be taken at the point where there is cause for concern
locally, rather than some bureaucracy acting several hundred miles
away in Leeds, London or wherever the Department is based at that
Q102 Grahame M Morris:
I fully understand that. I am not trying to be obtuse, but in
the event where there was a failure and, clearly, a severance
agreement that is inappropriate is being issued to clinical staffwhether
it be doctors, nurses or frontline staffdoes the Department
have the power to intervene? I know you have said that they can
advise them of an inappropriate agreement, but do you have the
powers, currently, to intervene?
Matthew Fagg: Presently,
the Secretary of State does have powers of direction over NHS
bodies, but strategic health authorities also have a range of
powers of intervention. The operating method is that, in the first
instance, we would expect strategic health authorities to act,
to performance-manage organisations or to look into concerns.
That is what they are there for, essentially.
Grahame M Morris: Does
that equally apply under the new architecture? With strategic
health authorities clustering, their ability to performance-manage
organisations may be diminished somewhat by their slimmeddown
Chair: Can I encourage
us to focus not on general performance management but on the specifics
of the terms of engagement with the professional staff, otherwise
we are going to get into a rather broader debate?
Grahame M Morris: I am
simply trying to establish whether the Department has powers under
the new arrangements to intervene. I am still not clear.
Q103 Chair: I
am just focusing on the issue. I think Mr Morris' question is:
what is the status of the Department in enforcing the inappropriateness
of gagging clauses, for want of a better word, on compromise agreements,
or indeed on any other employment agreement or termination of
employment agreement with professional staff?
Gavin Larner: In
the future, the Department will have a strategic role of oversight
of the system to ensure it is operating effectively. It would
be other bodies in the system that would have those roles in intervening
where there was inappropriate behaviour, whether they are national
or local organisations.
Q104 Chair: The
Department, presumably, retains a policy oversight over this sector.
Gavin Larner: Yes.
Q105 Chair: So
if the Department itself cannot intervene in the new architecture,
Matthew Fagg: There
is a range of bodies. The Care Quality Commission does have powers
of intervention in certain circumstances. You have Monitor, which
will have powers of intervention in certain circumstances. There
is also the Provider Development Authority. But we are moving
from a system where everything was very centralised with the Department
intervening on almost a daily basisand the number of Health
Service Circulars that have gone down over time illustrates thatto
one where we are talking about a range of other organisations
managing the NHS, with the Department taking a more strategic
<?oasys [pc10p0] ?>overview and not being involved in the
daytoday operational decisions about the NHS. That
is not a new development. That is a direction in which the health
system has been moving over a period of time.
Q106 Chair: It
would also be fair to add, would it not, that these clauses we
are talking about we have already agreed are void because they
are illegal and have been illegal, in truth, both under the Public
Interest Disclosure Act and almost certainly at common law?
Gavin Larner: Indeed,
and, ultimately, still when it is an agreement between an employer
and an employee, they are obliged to provide legal advice, which,
apart from the legal advice we are concerned about in the two
cases we have identified, should, in practice on the ground, prevent
such clauses being included in contracts.
Q107 Valerie Vaz:
Can I just get this straight? There is no mechanism for all these
regulators to come to the Department of Health. There is no one
who is going to be overseeing the whole lot of them.
Gavin Larner: The
Department of Health will retain a leadership role over the whole
health and social care system.
Q108 Valerie Vaz:
But they will get the information somehow.
Gavin Larner: So
if it were to come to light that, for whatever reason, a bit of
the architecture was not designed in a way that it was responding,
as in this particular issue, we would have a policy responsibility
to ensure that the system operated effectively.
Q109 Grahame M Morris:
So, Matthew, are you the whistleblowing tsar in the Departmentsort
Matthew Fagg: Not
quite. But it is something that has taken a lot of my time over
the last few years.
Q110 Grahame M Morris:
Could you give us an idea of numbers? You said that the Department
would intervene on a daytoday basis under the old
arrangements. Over the last year or so, how many occasions have
there been? Do you have that information to hand?
Matthew Fagg: When
I was talking about the Department intervening, I was not talking
specifically about whistleblowing. I was talking about the general
culture of direct intervention through the issuing of Health Service
Circulars and so on.
Gavin Larner: Since
2009 the Department have had 542 cases which have been classified
as whistleblowing cases, but I think about 200 of those are more
about concerns that the Select Committee share as to whether the
policy is in the right place on whistleblowing. That has informed
the development there. The Department has an agreed process on
how those are handled. They are assessed by two case handlers,
by a special whistleblowing team, under the supervision of a senior
manager who will then ensure that the case is passed to the appropriate
organisation to investigate, having secured the permission of
the whistleblower to do so first, and redacting the material,
where necessary, in order to protect confidentiality.
Matthew Fagg: For
example, we produce monthly reports based on complaints and whistleblowing
cases that arise. Those are shared with the CQC and Monitor and
the expectation is that, where there is a cluster of concerns
around an organisation, those are acted on. The CQC cannot act
on each and every single concern that arises, but where there
are clearly concerns about an organisation and you are starting
to see a pattern, then we would expect the CQC to act, to intervene
and to investigate and so on.
Q111 Dr Poulter:
Picking up on your last answers, if an individual healthcare professional
reported a concern to youlet us say they are a hospitalbased
professionalwhom would you forward your concern to? Whom
would you ask to investigate that?
Matthew Fagg: It
depends a little on the nature of the concern. I remember, in
the past, seeing individuals who have written in raising concerns
about another professional, in which case we would refer the matter
on to the General Medical Council. If it is a more general concern
about patient safety, it would be likely to be the Care Quality
Commission that we would refer things on to. We also find that
quite a few of the cases logged as whistleblowing casesthis
is the thing we were talking about earlieractually are
grievances: where someone is concerned that their employer has
acted in an unreasonable way. That, in itself, is not a public
interest concern and it is something of a grey area. Again, it
is not necessarily the role of the CQC to intervene in individual
grievances. In those circumstances, it might be that we would
refer the matter on to the SHA and ask the SHA to look into what
is going on, and to assure itself that things are being handled
appropriately. It depends a lot on the precise nature of any concern.
Q112 Dr Poulter:
Thank you. You see the CQC as being a very important body in investigatingor
shall we say looking atthe weight and quality of concerns
that have been raised and doing further investigation.
Matthew Fagg: There
are a number of organisations. It will be Monitor if it is a foundation
trust and a governance issue; CQC if it is a patient safety concern;
SHAs if it is a concern about governance within an NHS organisation;
and, equally, we would go to NHS Protect, which is the old NHS
counterfraud service, if it is a financial concern.
Q113 Dr Poulter:
The concern for me, from what you have said, is that that seems
quite fragmented in approach. Obviously, there will sometimes
be specific issues that can be taken up at a more local level,
but having a fragmented approachif you look at the generic
issue of patient care in a hospitalis often when bad things
happen. When we have concerns, whether they are about patient
care or what we consider to be gagging orders or compromise agreements,
surely there needs to be one body that has overall responsibility
for investigating and overseeing these issues. That is where my
question came from on the CQC.
Gavin Larner: There
are two approaches to this that Ministers are looking at. One
isand I think the previous witnesses referred to itthat
there needs to be greater cooperation and cohesion between
the various parts of this system so that they act as a coherent
and consistent system and when a complaint comes in to one place,
and it is relevant to other bits of the system, it can immediately
be passed on. The second, which the Secretary of State is still
considering, is whether, from the perspective of staff, there
needs to be a single point where they can go to bring concerns
so there is much greater clarity about where to go. We are still
looking at the options on that.
Q114 Dr Poulter:
My concern is that if the Department of Health has a slightly
fragmented approach to where you may pass on a concern, then,
obviously, it is going to be very unclear to staff. There are
a number of bodies you may wish to involve, and that is quite
a fragmented approach, accepting that some things may be best
dealt with at a local level, such as a specific dispute between
two members of staff. The big concern here is as to who is coordinating
this. The professional bodies will represent their members. There
is a view expressed by some Members of the Committee that there
may have to be a more proactive role for the BMA and that there
should be a more proactive role for the Royal College of Nursing.
But is there not a case here for one person having overall oversight
of what is going on, making sure that these agreements are not
compromising care? That is why my focus came on the CQC.
Gavin Larner: I
would not necessarily say that our approach is fragmented. It
is more that we pass the concern to the appropriate organisation
that is best placed to deal with it. There would be no point in
putting a concern about patient care to the NHS counter-fraud
service, as it were, so it is referred out to the organisation
that is best placed to deal with it. If it is a concern about
the quality of care, clearly it is a CQC referral.
Q115 Dr Poulter:
The concern is that if you are looking at issues about gagging
agreements, compromise agreements or quality of careand
the concern that has been raised by the Committee today is with
the gagging or compromise agreementsit is difficult, unless
it is particularly of a financial or commercial nature, to reconcile
those with the doctor's or healthcare professional's duty to whistleblow
or report instances of poor care. If we are looking at dealing
with this, it does seem the way that complaints and concerns are
dealt with generallyand actually the approach we heard
earlieris quite fragmented. We want to have a better system
and a better way to go forward. I have not heard very much, apart
from the general warm feelings of good will that we are all going
to work together a bit better, as a way of pinning this down.
Matthew Fagg: We
are doing some work in this area and trying to look at what further
measures might be undertaken to enable people who have concerns
that their organisation is not acting, where they have raised
concerns of public interest, and to tell them where they might
go. There is likely to be learning coming out of, for example,
the Francis inquiry, which we would want to look at in drawing
up any future proposals. We recognise that the system is imperfect,
but it is a question of referring concerns, at the moment, to
somewhere where they have the power to act. It comes down to the
powers of enforcement. Certainly, for example, if there were concerns
about patient safety, we would refer them on to the CQC. The CQC
should have other information available to it about local clinical
governance systems, and if it has concerns about how well they
are working combined with concerns being raised by individual
members of staff, that should start to set off alarm bells somewhere
about a particular organisation. The CQC does have a critical
role in all this. But, equally, there are other organisations
here that have roles in holding parts of the system to account
in different ways.
Gavin Larner: To
pick up the point on "warm words about cooperation,"
what we have at the moment is the National Quality Board which
brings together all these different players in one place. They
are very much now talking about these kinds of quality issues,
not specifically about the issue we have raised today but about
how you get a more coherent and cooperative system of different
players acting in concertthe current term is "alignment"to
drive the system and put the incentives in the system to get it
to work the way you want it to.
Q116 Dr Poulter:
Sure. You can have some boards that come together and work and
do things and you can have other boards that come together and
talk and do not achieve results. The concern would be that, in
spite of having the board set up, we still have very real concerns
being flagged up about gagging agreements and compromise agreements.
I am struggling to see what the approach is of the Department
of Health or how we are going to tackle and deal with this problem.
I am not trying to be obtuse here. I am trying to get at what
action can be taken by the Department of Health, or what organisation
you would say fundamentally should take responsibility for this.
It is a complex issue, but if we are serious about dealing with
openness, transparency and improving patient care, with healthcare
professionals being able to report in an open and frank manner
when they have concerns over care, it is fundamental we get this
sort of thing right and that we do not have the ability for a
healthcare professional to be gagged or restricted.
Gavin Larner: In
the two cases we have identified where we know this has taken
place, the Department has written to the two organisations and
taken specific action. On the broader front, I believe all the
organisations take this issue, and whistleblowing in particular,
very seriously. They understand the critical role the professionals
have as a safeguard at the front line with the patients to ensure
consistently safe, effective and respectful care. People understand
that and they are now working to try and change that culture and
spread it more widely throughout the Service to achieve what we
are all seeking. But they have not picked up specifically on gagging
clauses because it has not been seen as a widespread problem in
the Service. At the moment, we do not have evidence that that
is the case. We only have these two cases that we have identified
Q117 Dr Poulter:
I have one final point. We heard earlier about the Bristol heart
inquiry, which was over 10 years ago now. The events that occurred
there were more than that, but the Kennedy Inquiry happened in
the late 1990s, as we know. Do you find it regrettable that, when
the core findings of that were about having openness and transparency,
we are now speaking about NHS organisations trying to gag or compromise
the ability of healthcare professionals to speak out?
Gavin Larner: From
the staff survey, we have seen slow improvement on the key indicators
about staff willingness to speak up, over the last three years
that we have data for. While there has been improvement, I still
think there is further to go and the Department and Ministers,
through the action they have taken since the election, have demonstrated
they are not complacent on this front and that there is further
work to be done.
Q118 Dr Wollaston:
Can I clarify something? I thought I heard you say earlier that
you were going to send very clear guidance out to all trusts that
they should not be issuing these clauses in compromise agreements,
which is encouraging. Can I also mention an email that all
the Committee members have had, which is basically a copyanonymised,
of courseof a United Lincolnshire Hospitals NHS Trust compromise
agreement. One of the fundamental parts of that is that the agreement
itself is secret and the doctor cannot talk about it. Will you
also be asking trusts not to include that clause? If they cannot
talk about it, it does not matter what else you have further down.
Gavin Larner: I
do not want to get drawn into individual cases because I do not
know the detail of them.
Q119 Dr Wollaston:
I am not talking about the individual case. I am taking it as
a general thing. According to the barrister who has emailed
me, he has seen 170 of these compromise agreements now and mentions
that this is a pretty consistent feature of them. Are you concerned,
as I am, that that is a consistent feature of these agreements?
Gavin Larner: If
that were the case, I would be concerned. But I would say that
if anyoneand anyone in the cases that have been raised
with you or that you have knowledge ofis concerned that
they have been gagged about a confidentiality clause in a way
that is inconsistent with the Act, that is void and they should
take advice from Public Concern At Work about whether they can
speak out on those issues.
Q120 Dr Wollaston:
What I am saying is that when you are, in the future, issuing
guidance to trusts about not including damaging clauses, will
you mention that as one of the clauses that they should not include?
Matthew Fagg: We
draw a distinction between the use of confidentiality clauses
per se and the precise wording that you read out earlier, where
you were talking about a clause which had specific provisions
about not raising concerns with the General Medical Council or
the Care Quality Commission and so on. The Department's view is
that confidentiality clauses can be justified in certain circumstances,
and we have issued guidance on two occasions, in 1999 and 2004,
about this. Our guidance is that they should only be used, in
so far as is absolutely necessary, to protect patient confidentiality
or legitimate commercial interests and so on. What we acceptand
I think it was a point made earlier by colleagues from the unionsis
that confidentiality clauses are used across the board in compromise
and severance agreements. There may be very many reasons why.
Sometimes both sides do not want any publicity about events that
have led to something and we cannot comment on an individual basis
because we are simply not party to the details. But I think we
Q121 Dr Wollaston:
May I interrupt you there? It is a bit like a super-injunction.
If you cannot even talk about its existence, how can anybody understand
what is in it? Should it not also be fundamental to it that you
specifically say, "You may not include a clause that appears
to prevent talking about it," even if it is not legally enforceable,
as it might give the impression to the doctor, nurse or any health
professional that they cannot report concerns to a professional
regulator? If they cannot even talk about the fact that the clause
is in existence, that is also very difficult, is it not? Does
that not also have the same effect?
Matthew Fagg: There
is a concern about the deterrent effect where there is a specific
reference to not referring cases to the General Medical Council
and so on. I do not know about the precise wording that you are
talking about, but the law is very clear in this area. If a provision
prevents an individual from raising concerns, where their concern
is in the public interest about fraud, patient safety and so on,
that is void and unenforceable in law and that person could go
ahead and speak. Essentially, the employer would not then be able
to seek back whatever money they paid as part of that agreement.
That is the effect of the law in this area.
Q122 Valerie Vaz:
Do you think, in the interests of transparency and saving money,
that all the trusts could put on their websites, or wherever,
how many compromise agreements they have rather than people having
to find out about it through FOI requests?
Gavin Larner: We
can certainly look into it. Where we assess payments, where they
are extra-contractual and, therefore, they need to come to the
Department or to the Treasury, they are assessed on the basis
of, "Are trusts using compromise agreements to try and avoid
embarrassment and protect reputation?" Ministers have been
quite clear that that is not an appropriate use of these agreements.
At times, in order to avoid being seen to reward poor performance
or poor behaviour, even if we think we would be at risk of losing
in a tribunal, we will decline the agreement in order to make
the point that you cannot buy a quiet life.
Q123 Valerie Vaz:
I am simply thinking that someone has to go to all the trouble
of doing an FOI request to get them out there. It seems to me
something that could be easily done on an anonymous basis"These
are how many we have."
Gavin Larner: We
can certainly look at it.
Q124 Chair: Could
I ask you to reflect on a rather broader subject? It was very
much in the flavour of the earlier evidence session, and indeed
of various of the reports the Committee has issued earlier this
year, that this general professional obligation to raise concerns,
where a professional thinks it is appropriate, about the quality
of care is part of good medical practice and part of good nursing
practice. It is part of professional obligation. I wonder whether
the Department is comfortable with that development of the argument
as it has been coming from the Committee over the last few months,
as it has been reflected by professional leaders and as it was
reflected in the evidence we heard earlier this afternoon.
Gavin Larner: I
think, absolutely. The Department regards it as part and parcel
of professional responsibilities and one of the key safeguards
in the system. Whatever the Committee does and the Department
does in the end, it is a clinician alone in a room with a patientthat
is where healthcare happens, as it were. If those values are not
deeply embedded in the profession and they are not able to speak
out when they are concerned, then we lose a critical safeguard
in the system regardless of the architecture around it. Bruce
Keogh has been very passionate on this point. Certainly, in his
evidence to the Mid Staffordshire inquiry, he made a great deal
of this. I think Ministers would very much support that position.
Indeed, Anne Milton, as a nurse herself, is well aware of that.
Q125 Chair: There
was a lot of talk earlier on about the importance of the culture
in delivering that objective. Do you think that culture exists
as you would want it to exist, either in healthcare employers,
public and private, or indeed in all parts, as it needs to exist,
of the professions themselves?
Gavin Larner: It
is difficult to be scientific about where culture is at. My impression
is that, in the large majority of organisations, these issues
are taken very seriously. Clearly, cases are still being identified
which would suggest that that culture is not as strong or as widespread
as we would want it to be, and that is organisationally. In the
professions themselvesagain it is difficult to be scientificI
think there is still a very robust culture there. Often, part
of the difficulties that bureaucrats and managers have in dealing
with clinicians is that they do have this strong sense of professional
values, which are rightly thereto challenge us when we
are tempted to be more pragmatic than we should be in matters
that are fundamental to the quality of care.
Q126 Chair: I
agree with the aspiration, but I wonder whether professionals
are as difficult as they should be on occasion.
Matthew Fagg: It
is difficult for us to take a view on that, I think, in any meaningful
way. There are organisations where there are very wellembedded
cultures of clinical governance, where it is taken very seriously
and where near misses are examined and looked at. I do not think
we are under an impression that all organisations are like that,
or all parts of those organisations where there are good cultures
in some areas. I suspect it is quite mixed, but it tends to be
that the majority of professionals, in our experience, take their
duties very seriously. The vast majority uphold the values of
the profession on all occasions. It is only ever a minority that
fail to do that.
Gavin Larner: It
would be interesting to take the views of some professional leaders
in nursing, medicine and more widely as to where they think they
are at as professionals on these values.
Q127 Chair: It
would also be interesting to reflect on the Department's view
of its relationship with the General Medical Council and the Nursing
and Midwifery Council who are, ultimately, the bodies responsible
for the development of that culture within the professions but
not, of course, responsible to Ministers, precisely because they
ought to be independent of Ministers.
Gavin Larner: Absolutely,
and they are quite selfconsciously made separate from the
Department and accountable, ultimately, to Parliament so that
they can maintain an interest that is in public safety and nothing
else. The reforms that the House passed in 2008, reforming the
leadership of those organisationsso that they were professionally
dominated but had balance between lay and professional interests
and were separated from the Departmenthave been important
in changing the way the professional regulators see their role.
As a result, they see themselves much more clearly as organisations
that are working in the public interest. The further reform that
we are doing at the moment through the current Bill seeks to reinforce
Q128 Chair: Is
this an area of policythe relationship between the professions
and the rest of the systemwhere the Department is actively
Gavin Larner: In
terms of professional regulatory bodies, it certainly is. We are
trying to give them even stronger independence from the various
stakeholders in the system and make them more explicitly accountable
to Parliament, rather than employers, the profession and particular
interest groups that might skew their view from time to time.
Matthew Fagg: More
generally, we are trying to promote clinical involvement in commissioning
and clinical involvement in managerial levels within organisations.
Clinical leadership is seen as being increasingly important, I
think. There is a recognition of thatof the importance
of strong professional values and strong professions governed
by the Department.
Chair: We do not have
any other points. Thank you very much. That is very clear. Thank
Associated Written Evidence