After Francis: making a difference - Health Committee Contents

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.


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.


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.


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.


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.


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 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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Prepared 18 September 2013