After Francis: making a difference - Health Committee Contents


Annex: The case of Mr Gary Walker, former Chief Executive of the United Lincolnshire Hospitals NHS Trust


Shortly after the Committee took evidence from Robert Francis on the Mid Staffs inquiry recommendations, it considered the case of Gary Walker. 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.[137] 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.

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. [138] Mr Walker stated to the Committee that in entering into this compromise agreement he had been "gagged" by ULHT.[139] 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.

THE COMMITTEE'S APPROACH

The threat of action against Mr Walker by legal representatives of an NHS Trust appeared to the Committee to contradict the spirit of an assurance the Committee had received in oral evidence from Gavin Larner, Director of Professional Standards at the Department of Health, when he appeared before the Committee in December 2011 to address concerns that 'gagging clauses' were being used to inhibit regulated medical professionals from raising patient safety concerns. On that occasion Mr Larner said that

    most of us absolutely agree that such clause are inconsistent with the Public Interest Disclosure Act [1998] and are not acceptable . . . 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 [1998] Act, we need to make sure that the Service understands its responsibilities.[140]

The Committee found the action by ULHT's lawyers surprising, coming as it did so soon after the publication of the Francis Report and the evidence given by Robert Francis in which he indicated explicitly that "what are commonly called "gagging clauses" should be banned, certainly in relation to patient safety".[141] The Chair wrote to the Secretary of State to express concern and disappointment that, in the light of the Department's views and Robert Francis' recent recommendations, Mr Walker had received a letter which could be construed as reinforcing the 'gag' in his compromise agreement. The Committee invited both Mr Walker and the former Chairman of ULHT, Mr David Bowles, to give oral evidence on the concerns which lay behind the breakdown of Mr Walker's relationship with ULHT, and asked the Secretary of State to confirm that neither he nor any NHS body would seek to enforce any provision in the compromise agreement which would inhibit Mr Walker in responding to the Committee's request.

The Secretary of State wrote to the chairs and chief executives of all Trusts on 15 February to remind them of their obligations about public interest disclosures and to ensure that any confidentiality clauses in agreements with former employees embraced the spirit of Departmental guidance on public interest disclosures.[142]

The Committee took oral evidence from Mr Walker and Mr Bowles on 19 March, and asked Mr Walker to submit the full text of his compromise agreement with ULHT, and a brief commentary setting out the actions of the Trust, the East Midlands Strategic Health Authority (SHA) and the Department of Health which in his view were designed to prevent him, or had the effect of preventing him, from raising issues of patient safety. Mr Walker and Mr Bowles both submitted written statements and supplementary material.[143] The Committee also received a submission on the matter and relevant material from the NHS Midlands and East SHA Cluster, representing the interests of the former East Midlands SHA.[144] Following the evidence session on 15 March the Committee received written statements from Sir John Brigstocke KBE, former non-executive Chairman and Dame Barbara Hakin, former Chief Executive of the East Midlands SHA.[145]

The Committee Chair made it clear at the opening of the evidence session with Mr Walker and Mr Bowles on 19 March that the Committee had neither the power nor the means to make findings of fact in the matters of dispute between Mr Walker, the Trust and the former strategic health authority. The Committee's interest was in examining, as had Robert Francis, "the need for a culture change in the health service to make the service more open and to ensure that those with concerns about the safety and quality of care being delivered within the system feel able, empowered and encouraged to raise concerns where appropriate."[146]

The Committee does not, therefore, propose to draw any conclusions on the dispute which arose between Mr Walker and Mr Bowles on the one hand and Dame Barbara Hakin and Sir John Brigstocke on the other. Messrs Walker and Bowles have set out their position in oral and written evidence and have provided additional papers, including papers which were subject to the confidentiality provisions of Mr Walker's compromise agreement. Dame Barbara Hakin and Sir John Brigstocke have both been afforded a right of reply to the evidence presented by Mr Walker and Mr Bowles, and their responses are now similarly in the public domain. The Midlands and East SHA Cluster has also made a submission in response to allegations made by Mr Walker in advance of the evidence session, and has provided its chronology of events.

OUTLINE OF THE ISSUES

In the course of the evidence session, Mr Walker and Mr Bowles made a number of statements about the pressures on ULHT hospitals, the relationship between the Trust and the commissioning authority (Lincolnshire PCT) and the relationship between the Trust and the strategic health authority (East Midlands SHA). Mr Walker made it clear to the Committee that he believed that the SHA had put inappropriate pressure on him to meet access targets, and that the measures he would have been required to take to meet such targets, given the Trust's existing capacity, would have threatened patient safety. He had therefore refused to take the measures required to meet access targets. In this he had had the support of the Trust Chair, Mr Bowles, and the Trust Board.

From April 2009 the dispute with the SHA over the actions which ULHT should take to meet targets apparently intensified, in a climate where concerns over patient safety had escalated following the publication in March 2009 of the Healthcare Commission report into Mid Staffordshire NHS Foundation Trust. In July 2009 both Mr Walker and Mr Bowles wrote to Sir David Nicholson, then Chief Executive of the NHS, to raise their concerns about the actions of the SHA in respect of ULHT and its management, indicating that in doing so they were making disclosures which they considered to be protected disclosures in the public interest. In the same month the SHA requested the Appointments Commission to suspend Mr Bowles as Trust Chair, a request to which the Commission assented. Shortly after the suspension took effect, Mr Bowles resigned. Mr Walker then took sick leave following a diagnosis of stress.

In August 2009, while still on sick leave, Mr Walker was notified by the new Chair of the ULHT Board that a disciplinary investigation had been opened against him following allegations both of bullying and harassment and of the use of inappropriate and offensive language as a matter of routine which had been made against him by another employee in an exit interview. While the allegation of bullying and harassment was not upheld, Mr Walker was dismissed on the grounds of the use of inappropriate and offensive language in February 2010. Following an unsuccessful appeal against the dismissal, in April 2010 he lodged claims of unfair dismissal with the Employment Tribunal. In pursuit of his claim he presented evidence to the tribunal of 16 instances where he had made disclosures of information which it was claimed were protected disclosures within the meaning of the Employment Rights Act 1996 as amended by the Public Interest Disclosure Act 1998. It was submitted that he had suffered detriment as a result of having made these protected disclosures.

In April 2011, following an attended case management discussion between the parties, Employment Judge Britton made an order containing a number of judicial observations. Among these was an observation that two of the disclosures of information identified by Mr Walker as protected disclosures were prima facie protected disclosures under section 43G of the Employment Rights Act 1996, because they raised concerns about patient safety.

Britton EJ summarised the key issues of the case thus:

    Is the Claimant [Mr Walker] correct in his contention that the disciplinary charges would never have been sustainable and certainly in terms of warranting a summary dismissal but for the preceding events: furthermore that a reason for the dismissal is the whistleblowing? And if so, what part of it? If there is no link between the whistleblowing and the dismissal, then it remains an ordinary unfair dismissal if that is what it was, and subject to the statutory cap. If a reason for the dismissal was the whistleblowing, then it becomes an automatically unfair dismissal and with no statutory cap on any award.

    Finally, in the run up to the dismissal, was there in any event detrimental treatment of the Claimant? What would it be? Essentially it would have to be the bringing of, and the continuing with, the disciplinary charges. I say that because, as I understand it, the Claimant was never formally suspended in relation to the disciplinary matters as he was already off sick on health grounds.[147]

Mr Walker contended that the judicial observation that there was prima facie evidence of a protected disclosure was a significant factor for ULHT to take into account in its negotiations. If the tribunal were to find that Mr Walker had been unfairly dismissed, and that the protected disclosure had been a factor in the unfair dismissal, then ULHT would have been liable to pay an uncapped sum in damages: otherwise the award would be have been capped according to the statutory formula in the Employment Rights Act 1996.[148]

Mr Walker indicated to the Committee the difficulty of establishing that a disclosure of information was a protected disclosure in the public interest within the meaning of the Employment Rights Act 1996.[149] He contended that, even though the claim that he had made a protected disclosure which had been the primary cause of his dismissal had not been tested in the employment tribunal, the judicial observation that he had made a prima facie protected disclosure had been sufficient to establish his bona fides as a whistleblower.[150]

THE COMPROMISE AGREEMENT, THE "GAGGING CLAUSE" AND THE THREAT TO MR WALKER

Mr Walker provided the Committee with a copy of the compromise agreement, and the Committee has ordered it to be published.[151] It took effect on 24 October 2011, the date of signature. Mr Walker was required to take the advice of a qualified legal professional before signing the agreement, and submitted an affidavit to the tribunal confirming that he had done so.

As part of the compromise agreement with ULHT, Mr Walker received £325,000. Following deductions for legal fees of some £100,000, he said he had received a net sum of approximately £225,000.[152]

The agreement contained the following clause, addressed to Mr Walker:

    You agree that the dispute between you and the Respondent, the East Midlands SHA, the Department of Health and the Appointments Commission is hereby at an end and shall not repeat the allegations contained in your witness statement which were served on the Respondent during the proceedings. You agree to take reasonable steps by asking the other witnesses to abide by the same duties of confidentiality as are agreed by you under this Agreement.

Although section 43J of the Employment Rights Act 1996 provides that any confidentiality clause in an agreement or a contract of employment between a worker and an employer "is void insofar as it purports to preclude the worker from making a protected disclosure" within the meaning of the Act—including on issues relating to health and safety—Mr Walker, who had taken legal advice before signing the agreement, appears to have interpreted this clause as prohibiting him, and any other witnesses in his case, from making any private or public reference to matters contained in his witness statement or the documents he had presented to the tribunal, even though significant elements of his claim against ULHT rested on his contention that he had been unfairly dismissed in consequence of the concerns he had raised about patient safety at ULHT and his discussions with the SHA about such matters.

Mr Walker therefore appears to have construed the clause to mean that he had agreed not to speak openly about issues which he considered relevant to patient safety and which he had rehearsed in his witness statement. Any doubt that this was the case appeared to have been removed by the letter dated 12 February 2013 which he received from ULHT's lawyers. In that letter the legal advisers to the Trust informed him that, "having seen an outline of the issues" which were to be discussed in the interview which Mr Walker planned to give to BBC Radio 4, the Trust had been advised that if Mr Walker had provided an interview, or should the interview proceed, he would be "in clear breach" of the compromise agreement, with the consequence that the Trust would be entitled to recover from him "the payments made under the agreement and any costs including its legal costs".[153] This statement was categorical and without qualification as to the content of the issues to be discussed.

The Committee asked Sir David Nicholson, NHS Chief Executive, how an NHS body had been in a position to issue, through its solicitors, a threat to an individual not to discuss certain issues in a planned radio interview. Sir David explained how he understood the situation had come about:

    I absolutely and categorically deny that the Department warned off any individual from doing anything. What happened in those circumstances—and this is part of the public record and the Today programme would recognise it—is that the programme rang the hospital and asked them what they thought about that individual going on.[154]

The Chairman of ULHT, Paul Richardson wrote to the Secretary of State on 15 February 2013 in response to a letter of the same date asking him to account for the Trust's actions. In that letter he explained that the compromise agreement "contained standard confidentiality terms relating to the resolution of the employment tribunal dispute" and that "it was not intended to gag concerns regarding patient safety and complied with the relevant guidance and legislation at the time"; the letter from the Trust's lawyers to Mr Walker was "a standard attempt by the Trust to remind him of his obligations under the agreement". Had Mr Walker sought explicit permission from the Trust to discuss his concerns in a radio interview, the Trust would have made clear that he could publicly discuss them: the Trust's position was that "this was always the intention and spirit of our compromise agreement with Mr Walker", and that "at the point at which the agreement was reached it was fully compliant with [Department of Health] guidance."

The Secretary of State has told the Committee that while the Trust's position was that the relevant clauses of the compromise agreement were not intended to have a "gagging" effect, it was "unfortunate" that they had been perceived in this way.[155] Sir David Nicholson was more forthright:

    The response of the hospital was wrong. They should not have got their lawyers to write to him to say that he should not talk about that compromise agreement. In the strict legal sense, he had signed a compromise agreement about the resources and what he was doing, but it was not covered. It was absolutely right, free and proper to speak out. If he feels he has something about patient safety to say, then he should be able to say it, and, if the hospital by accident—I do not know whatever arrangements happened at the hospital—put that letter out—they were wrong to do it. The spirit of it was wrong.[156]

In his BBC interview broadcast on 14 February Mr Walker alleged, as he subsequently alleged to the Committee, that he was placed under inappropriate pressure by the East Midlands SHA to take steps to meet access targets, and that the measures which he would have had to take to meet such targets would have compromised patient safety.

The Committee does not adjudicate on the substance of this allegation, which is vigorously contested. The Committee further notes that the Trust states 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.

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.


137   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

138   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

139   Ibid., para 109 Back

140   Oral evidence taken before the Health Committee on 7 December 2011, Professional responsibility of healthcare practitioners, HC 1699, Q83 Back

141   Q34 Back

142   The Secretary of State's correspondence with the Chief Executive of ULHT on the specific case is discussed below. Back

143   Reported to the House on 19 March 2013 and published at http://www.parliament.uk/documents/commons-committees/Health/FRA03GaryWalkerA-L.pdf and http://www.parliament.uk/documents/commons-committees/Health/FRA03GaryWalkerM-Z.pdf (Gary Walker) and http://www.parliament.uk/documents/commons-committees/Health/FRA02-DavidBowles.pdf David Bowles). Back

144   Reported to the House on 19 March 2013 and published at http://www.parliament.uk/documents/commons-committees/Health/FRA01-NHSMidlandsandEast.pdf  Back

145   Reported to the House on 16 April 2013 and published at http://www.parliament.uk/documents/commons-committees/Health/FRA06-SirJohnBrigstocke.pdf (Sir John Brigstocke) and http://www.parliament.uk/documents/commons-committees/Health/FRA05-DameBarbaraHakin.pdf (Dame Barbara Hakin). Back

146   Q323 Back

147   Annex G 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

148   Section 119 of the 1996 Act. Back

149   Q429 Back

150   Q436 Back

151   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

152   Q421 Back

153   Paras 15 to 19 of Mr Walker's memorandum to the Committee Back

154   Q224 Back

155   Letter from the Secretary of State for health, Rt Hon Jeremy Hunt MP, to the Chair of the Health Committee, Rt Hon Stephen Dorrell MP, dated 25 February 2013 Back

156   Q224 Back


 
previous page contents next page


© Parliamentary copyright 2013
Prepared 18 September 2013