3 Raising concerns and resolving disputes
The Francis Report and whistleblowers
63. The issue of whistleblowing—the disclosure,
either to a person in authority or in public, of information concerning
unsafe, unethical or illegal practices—was pursued at length
in the public inquiry hearings. Mr Francis found that the Mid
Staffs Trust had a number of whistleblowing policies in place
between 2005 and 2009, all of which had "the clear objective
to empower employees to raise concerns and to ensure that those
concerns, where valid, were acted on. Employees raising issues
were to be protected and supported, where possible, by measures
including respect for confidentiality."[58]
He found that, despite the existence of such policies, no adequate
support was given to one nurse, Helene Donnelly, who attempted
to raise concerns about poor practice in the A&E department
at Stafford General Hospital: her concerns were investigated,
but the way in which the investigation was conducted gave little
encouragement to other potential whistleblowers to come forward.
There was scant regard for the complainant's anonymity and no
formal determination was made as to whether her allegations were
accepted. She was provided with no adequate support, endured harassment
from colleagues and eventually left the Trust. In her evidence
to the Inquiry she observed that whistleblowing policies were
fine on paper, but if not given substance in practice would not
encourage others to come forward and raise concerns.[59]
64. The report of the inquiry describes a culture
at Mid Staffs where medical professionals felt inhibited in raising
concerns for a number of reasons: they considered that such concerns
would not be acted on effectively, they feared negative repercussions
from colleagues or they feared victimisation by management. In
one instance, where a consultant was disciplined for his behaviour
towards other staff when he sought to complain about sub-standard
staffing, the Inquiry was not able to confirm the charge of victimisation
on the evidence before it. Nevertheless, Mr Francis observed that
such sanctioning "is an example of something seen all too
often in the treatment of complainants raising concerns relevant
to patient safety":
A greater priority is instinctively given by
managers to issues surrounding the behaviour of the complainant,
rather than the implications for patient safety raised by his
complaint.[60]
65. Robert Francis summed up the difficulty inherent
in whistleblowing as follows:
The experiences described here do not suggest
that, whatever system is in place, it will be easy for staff to
raise concerns which are not accepted by those for whom they work.
Theoretical protection is provided by the Public Information Disclosure
Act 1998, but this is unlikely to be of much reassurance to staff
who have to face the wrath of their colleagues.[61]
He reached the following conclusion:
. . . [W]histleblowing is only necessary because
of the absence of systems and a culture accepted by all staff
which positively welcomes internal reporting of concerns. If that
culture is absent then raising concerns external to the system
is bound to be a difficult and challenging matter exposing the
whistleblower to pressure from colleagues. Therefore the solution
lies in creating the right culture, not in focusing on improvements
to whistleblowing legislation, important though such protection
is.[62]
66. The Committee has previously strongly supported
the development of an open culture in NHS organisations to enable
professional concerns to be raised with management. In its report
on healthcare regulators in 2012 it said:
The Committee continues to believe that the effective
exercise of professional responsibility is the bedrock on which
high standards of patient care are built. It also continues to
believe that there is an essential public interest in ensuring
that professionals are protected against punitive action when
they raise concerns about professional standards at their place
of work.[63]
67. In its initial response to the Francis Report,
the Government observes that healthcare staff have professional
duties and contractual rights to raise concerns where basic care
standards are not being met, and claims that it has already taken
a number of steps to enhance protection available to whistleblowers.
Contracts of NHS staff will include a right to raise concerns;
the NHS Constitution has been amended to include explicit rights
and pledges on whistleblowing; fresh guidance on the subject has
been issued to employers; the national whistleblowing helpline
has been extended to include staff in social care settings; whistleblowing
questions have also been included in the NHS Staff Survey; and
an amendment to the Enterprise and Regulatory Reform Act 2013
has extended protection under the Employment Rights Act 1996 (as
amended by the Public Interest Disclosure Act 1998) to all categories
of NHS staff.[64] That
Act has also introduced a provision aimed at preventing victimisation
of whistleblowers, by extending in certain circumstances to employers
the liability for detriment caused to a whistleblowing employee
by a colleague.
68. The Government's actions are welcome, as far
as they go, but Robert Francis suggested that a legislative solution
focussed on protecting whistleblowers was missing the point:
Whatever legislation you have about whistleblowers,
so-called, it will not in itself stop the sorts of things that
the Stafford whistleblowers had to put up with from their colleagues,
so-called, in the ward. It may help you at an employment tribunal
later down the line, but it does not help you at the time. What
we have to do is to find a means of making it the normal thing
to do to raise concerns about what is going on in the hospital
and, if necessary, about colleagues.[65]
69. As the Committee has noted above, Robert Francis
has recommended a change in the culture whereby it is easier,
and more palatable, to raise a genuine concern than it is not
to do so. The Committee agrees with this approach, although it
recognises that there can be serious consequences for individuals
who do raise their concerns. The management of each provider of
NHS care has an unequivocal obligation to establish a culture
in the organisation within which issues of genuine concern can
be raised freely. Disciplinary procedures, professional standards
hearings and employment tribunals are not appropriate forums for
constructive airings of honestly-held concerns about patient safety
and care quality.
COMPROMISE AGREEMENTS, GAGGING CLAUSES
AND SPECIAL SEVERANCE PAYMENTS
70. Mr Francis was sharply critical of the practice
of including "gagging" clauses—more properly termed
"non-disparagement" clauses—in compromise agreements
between publicly-funded healthcare organisations and present or
former employees.
71. It is worth setting out his findings in full:
Non-disparagement clauses are not compatible
with the requirement that public service organisations in the
healthcare sector, including regulators, should be open and transparent.
They are to be distinguished from confidentiality clauses: there
is obviously a need to preserve confidentiality in particular
areas, either permanently or temporarily. Examples of this include:
· Patient confidentiality: it is important
that details capable of identifying patients and their families
should not be placed in the public domain;
· Prevention of prejudice to investigations:
it will sometimes be against the public interest for details of
current investigations to be allowed into the public domain until
such time as the danger of prejudice has passed. For example,
it would be wrong for an intention to make an unannounced visit
to be leaked to the trust to be visited;
· Employee confidentiality: employees
may be entitled to privacy with regard to their pay and the terms
of any settlement on their departure. It is less easy to envisage
many cases in which the employer is entitled to confidentiality
about such matters should it be waived by the employee.
Even in areas where confidentiality is potentially
justifiable, consideration will have to be given to whether there
is a public interest in disclosure which outweighs the need or
justification for confidentiality.
It is unjustifiable in almost all circumstances:
· To prevent any employee or past employee
making disclosure to a public authority, including a regulator,
a Government department, or an inquiry, of matters internal to
the organisation, which he or she honestly believes to be in the
public interest to make;
· To prevent any past employee publishing
or communicating any criticism of or adverse comment about the
organisation, except to the extent that to do so would disclose
information justifiably required to be held confidential.
A clause of the type contained in the agreement
with Dr Wood is an impermissible inhibition on free speech, and,
just as importantly, is against the public interest in dissemination
and consideration of genuinely held concerns about matters of
patient safety. It is doubtful that clauses as restrictive as
this are common practice in the private sector, but even if they
are, the practice should cease in the public sector. Any clause
restricting an individual's liberty to make a disclosure or imposing
a duty of confidentiality, should be limited to the minimum necessary
to protect the public interest, and not the reputation of any
organisation or individual. The CQC has suggested that non-disparagement
clauses of the type it has used do not, as a matter of law, prevent
disclosure being made in the public interest. While, without expressing
a legal opinion on the point, that may be correct, employees cannot
be expected to understand this unless they are specifically informed
of the exception, preferably by it being referred to in the contractual
clause. In any event, such an exception is likely to cause sufficient
doubt as to its meaning in the mind of an employee that further
clarification of the true intended limits of a non-disparagement
clause would still be required. Therefore, the recent assurance
received from the CQC that it now has no intention of using such
clauses again in termination agreements, unless there are exceptional
circumstances, is to be welcomed as a step in the right direction.[66]
Government response
72. The Government has acknowledged that confidentiality
clauses may be necessary in compromise agreements, to ensure a
"clean break" at the end of the employment, but stresses
that such clauses should go no further than is necessary to protect
patient confidentiality and the public interest: they should not
seek to prevent a departing employee from making a disclosure
in the public interest.[67]
73. In response to concerns raised by the Committee
and others by the treatment of Gary Walker, a former NHS chief
executive subject to a compromise agreement with his former employer
which contained a gagging clause, the Secretary of State wrote
to Trusts on 15 February 2013 to remind them off their obligations
to have policies compliant with the Public Interest Disclosure
Act 1998 and to check that confidentiality clauses "embrace
the spirit" of such obligations.[68]
Trusts have also been reminded that they should insert clauses
into compromise agreements to make clear that nothing in the agreement
should prevent the parties from making a protected disclosure
in the public interest. The Secretary of State described his approach
thus:
[ . . . S]ome of the contracts that are used,
and one of the clauses that has typically been in some of the
compromise agreements when NHS staff have left the employment
of the NHS has been a clause that prevents them from speaking
out. If agreements are over a certain value, they have to be approved
centrally—not by the Department of Health, but by the Treasury—and
we have made it clear that we will not approve any of those contracts
unless they explicitly say that people will be free to continue
to speak out on matters of patient safety.[69]
74. The Secretary of State also confirmed that the
Department's policy in effect had retrospective application, and
that persons who were parties to agreements containing "gagging"
clauses which may have inhibited them from raising concerns about
patient safety should now consider themselves able to do so without
fear that provisions for breach of the agreement might be enforced
against them.
75. Sir David Nicholson confirmed that the scope
of matters which should not be subject to a gagging clause was
not narrowly defined: more general concerns about failures to
meet NHS objectives in the quality of care should similarly fall
outside the ambit of any gagging clause. He had concerns about
restricting the ambit of such clauses further to exclude disputes
with management over issues which might touch on patient safety,
as "there is some kind of ring to run round it", but
he accepted that members of staff who saw things that did not
"look or smell right" should have the confidence to
raise them.[70]
76. The Committee agrees with Robert Francis that
providers of health and care, as well as their regulators, should
be required to be open and transparent. Non-disparagement or 'gagging'
clauses which inhibit free discussion of issues of care quality
and patient safety are unlawful. No NHS body should be party to
such an agreement or should seek to enforce an agreement in a
way which inhibits free discussion of such issues.
COMPROMISE AGREEMENTS AT THE CARE
QUALITY COMMISSION
77. Even before the publication of the Francis report,
the Committee was sufficiently concerned by reports of the use
of compromise agreements to 'gag' former CQC staff to write to
the incoming Chair of the CQC, David Prior, to seek an assurance
that confidentiality clauses would not be used to prevent staff
from making disclosures in the public interest.
78. Mr Prior responded to set out the CQC's policy
on confidentiality clauses in compromise agreements. He indicated
that the CQC had revised the wording of its standard compromise
agreement to make it clear that such agreements did not prevent
them from raising "legitimate concerns" through a protected
disclosure. He considered that the current protection under the
provisions of the Public Interest Disclosure Act 1998 was sufficient
to enable staff subject to existing compromise agreements to raise
"legitimate concerns" that they believed to be in the
public interest.[71]
79. The Committee welcomes the assurance from
the Chair of the Care Quality Commission that its standard compromise
agreement now includes a clause making it clear to employees that
such agreements do not prevent them from raising legitimate concerns
through protected disclosures. The Committee recommends that the
CQC should write to each employee or former employee with which
it has an existing compromise agreement to confirm that any non-disparagement
terms of such agreements will not be enforced in cases where such
persons wish to raise concerns which they believe to be in the
public interest.
COMPROMISE AGREEMENTS AND SEVERANCE
PAYMENTS
80. The National Audit Office has recently reported
on the arrangements followed by Departments in making severance
payments related to compromise agreements. A 'special severance
payment' over and above an employee's contractual entitlement
can be made to compensate for loss of employment, and reflects
an element of risk on the employer's part should a case be taken
to an employment tribunal. The Treasury regards special severance
payments as 'novel and contentious' and in all cases requires
Departments to seek its approval before authorising them.[72]
81. Following the appearance of Sir David Nicholson
before the Committee on 4 March 2013, the Department provided
information on the procedures applying to special severance payments
in NHS organisations other than foundation trusts.[73]
The Department indicated that such payments were first of all
required to be authorised by the remuneration committee of the
NHS body in question, and then supported by the relevant strategic
health authority before approval by the Department and subsequently
the Treasury.
82. Sir David Nicholson told the Committee that the
authorisation of the payment in the case of Gary Walker, discussed
below, had not passed through the approval process detailed above,
since the settlement had been achieved through judicial mediation.
He stated that the arrangement was not one he had encountered
before. The Department subsequently confirmed that special severance
payments made as a result of judicial mediation had not hitherto
required approval from the Treasury or the Secretary of State
for Health, but that with effect from 11 March 2013 approval from
both would be required.[74]
83. In evidence to the Public Accounts Committee
on 17 June 2013 Sir David claimed that Treasury guidance in 2011
had indicated that Treasury approval was not required for payments
in relation to severance or compromise agreements achieved through
judicial mediation, though the position had now been corrected.[75]
He was unable to tell that Committee how many such agreements
had been made by NHS organisations under those arrangements, nor
how much had been paid out, though figures obtained through requests
to Trusts made under the Freedom of Information Act 2000 indicated
that at least 50 such payments have been made by some 30 Trusts,
to a total of approximately £2 million.
84. Treasury and Departmental approval is necessary
for all payments made under compromise agreements to ensure that
the agreements do not inhibit, or cover up, the disclosure of
information in the public interest. However, as many as 50 compromise
agreements between NHS bodies and former employees may have been
reached through judicial mediation without any scrutiny by the
Department of Health and the Treasury. Among these is the agreement
signed by Gary Walker which the Committee has examined. It
is unacceptable that in several cases the payment of public money
in settlement of claims against NHS bodies has not been subject
to normal approval procedures by the Department of Health and
the Treasury. The Committee welcomes the fact that Departmental
and Treasury approval will be required before such payments are
made in future.
THE CASE OF GARY WALKER
85. Shortly after the Committee took evidence from
Robert Francis on his recommendations, it received evidence of
a number of examples of people who had been asked to sign compromise
agreements which they considered prevented them from raising issues
of concern. The Committee considered the case of Gary Walker as
an example of such agreements. Mr Walker, Chief Executive of United
Lincolnshire Hospitals NHS Trust (ULHT) from October 2006 to February
2010, had been dismissed by the Trust in February 2010 on grounds
of gross misconduct and lodged a claim for unfair dismissal with
the employment tribunal.[76]
The case was settled outside the tribunal in October 2011 when
Mr Walker and the Trust entered into a compromise agreement to
settle the claim. This agreement was facilitated through a process
of judicial mediation.
86. The compromise agreement contained a provision
that Mr Walker should not repeat the allegations contained in
the witness statements served on the respondent (ULHT) during
the employment tribunal proceedings, and that he would take "reasonable
steps" by asking the other witnesses to abide by the same
duty of confidentiality. [77]
Mr Walker stated to the Committee that in entering into this compromise
agreement he had been "gagged" by ULHT.[78]
On 14 February 2013, an interview with Mr Walker was broadcast
on the BBC Radio 4 Today programme, in the course of which
Mr Walker alluded to certain concerns he had had over patient
safety issues at ULHT. He declined to say more about his concerns,
indicating that he had already received a letter from lawyers
acting for ULHT, reminding him of the terms of his agreement and
threatening action to recover the sums paid to him under the agreement
in the event that he proceeded with the broadcast. He also expressed
a wish to have his case examined by this Committee.
87. Mr Walker, accompanied by Mr David Bowles, the
former Chairman of ULHT, gave evidence to the Committee on 19
March 2013. Further details of the case and the Committee's observations
following that session are set out in an annex to this report.
88. The Committee does not adjudicate on the substance
of Mr Walker's allegation that in the spring and summer of 2009
he was placed under inappropriate pressure by the East Midlands
Strategic Health Authority to take steps to meet access targets
in ways which he considered would have compromised patient safety
at ULHT: this allegation is vigorously contested. The Committee
further notes that the Chairman of ULHT has since stated that
it had no intention of proceeding against Mr Walker for discussing
in public issues relating to patient safety at ULHT. Nevertheless,
assuming that the outline of the issues to be raised with Mr Walker
in the course of his interview with the Today programme
which was provided to ULHT by the BBC fairly reflected the eventual
content of that interview, the Committee can see no justification
for the Trust and its legal representatives to have written to
Gary Walker threatening action for breach of an agreement.
89. The Committee is concerned by the insensitivity
and lack of discretion shown by United Lincolnshire Hospitals
Trust and its legal representatives in seeking to restrain Gary
Walker from discussing legitimate patient safety concerns. If
this reaction is an indication of the prevailing culture in Trusts
confronting those who seek genuinely to raise patient safety issues,
then that culture must change.
Establishing a culture which
is comfortable with challenge
90. As Robert Francis has indicated, a truly open
professional and managerial culture which listens and responds
appropriately to the concerns of staff and service users would
render the role of the whistleblower redundant.
91. Prime responsibility for the propagation of an
open and transparent culture in any provider rests with its Board.
A Trust Board sets policies for the organisation, provides and
sustains leadership, and through its actions indicates the behaviour
which is and is not acceptable in the organisation.
92. As the Committee has already noted, it is also
the responsibility of NHS commissioners to ensure that providers
of NHS care operate an open and accountable professional culture
because failure by care providers to meet this standard makes
it impossible for commissioners to discharge their obligations
to individual patients, local communities, NHS England, or the
taxpayer.
The role of the CQC
93. The CQC, in its consultation on the post-Francis
approach to provider inspection, proposes an approach which will,
among other issues, examine whether a provider is well-led. The
CQC says that "although leadership, governance and culture
has not been a formal element of our existing approach, our experience
has shown that these factors make the difference between success
and failure". [79]
The consultation proposes that an assessment of leadership in
a provider be made against the following criteria:
By well-led, we mean that there is effective
leadership, governance (clinical and corporate) and clinical involvement
at all levels of the organisation, and an open, fair and transparent
culture that listens and learns from people's views and experiences
to make improvements. The focus of this is on quality. For example,
does a hospital board make decisions about quality care based
on sound evidence and information about their services, and are
concerns discussed in an open and frank way? Is there a good complaints
procedure that drives improvement?
94. The Committee welcomes this approach to inspection,
believing that it represents a crucial element in establishing
an open and transparent culture in all care providers. The Committee
notes that the CQC proposes initially to focus on provider governance
arrangements. While a focus on Trust governance is welcome, the
CQC should not prioritise this aspect to the detriment of its
assessment of the openness of a Trust's culture.
95. Changes in culture will not happen overnight.
Developing cultures which allow concerns to be raised openly will
require changes in attitude in many providers. In some cases it
may well require changes in personnel. The best chance of securing
genuine improvement in this area across the board will be for
the CQC to work with commissioners to set challenging benchmarks
for cultural norms within providers.
96. An important element of the development of an
open culture will be the provision of support to staff who wish
to raise concerns about care quality and patient safety. The
Committee recommends that the CQC should, in all its inspections
of providers, satisfy itself that arrangements are in place to
facilitate and protect the position of any member of staff who
wishes to raise concerns about the quality of care provided to
patients. As part of this process, the CQC should satisfy itself
that proper safeguards are in place for whistleblowers who may
provide an additional safeguard for patient interests.
58 Francis Report, para 2.371 Back
59
Francis Report, para 2.381 Back
60
Francis Report, para 2.392 Back
61
Ibid., para 2.398 Back
62
Ibid., para 2.400 Back
63
Health Committee, Fifteenth Report of Session 2010-12, Annual
accountability hearings: responses and further issues, HC
(2010-12) 1699, para 14 Back
64
Enterprise and Regulatory Reform Act 2013, s. 20, brought into
effect on 25 June 2013 Back
65
Q37 Back
66
Francis Report, para 22.61-22.62. Dr Heather Wood led the
Healthcare Commission investigation into Mid Staffs which reported
in February 2009. She joined the CQC, the successor body to the
Healthcare Commission, and subsequently left the employment of
the CQC under a settlement governed by a compromise agreement
which contained a non-disparagement clause: see Francis Report,
para 22.54 Back
67
Patients First and Foremost, Cm 8576, para 2.36 Back
68
The case of Mr Walker is discussed in greater detail in the Annex.
Back
69
Q523 Back
70
Qq 239, 242 Back
71
The exchange of letters is printed at Appendix 1. Back
72
National Audit Office, Confidentiality clauses and special
severance payments, HC (2013-14) 130, para 1.8 Back
73
NHS Trusts, primary care trusts, strategic health authorities
and special health authorities Back
74
HC Deb, 12 March 2013, column 182W Back
75
Oral evidence taken before the Public Accounts Committee, 12 June
2013, National Programme for IT, HC (2013-14) 294-i Back
76
Between July 2009 and February 2010 Mr Walker was signed off from
his duties on medical advice. His duties were undertaken by an
acting chief executive. Back
77
Annex A to Mr Walker's memorandum to the Committee, reported to
the House on 19 March 2013 and published at http://www.parliament.uk/documents/commons-committees/Health/FRA03GaryWalkerA-L.pdf Back
78
Ibid., para 109 Back
79
A new start: consultation on changes to the way CQC regulates,
inspects and monitors care, June 2013 Back
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