NHS accused over illegal gagging of doctors’ safety concerns

Outlawed gagging clauses are still being used by the National Health Service to silence concerns about patient safety the British Medical Journal has found.

The Public Interest Disclosure Act provides protection for people who blow the whistle, providing they have raised concerns with their employer, and it specifically overrides any agreement aimed at preventing proper disclosure.

Furthermore, even before the 1998 act came into force, it was the health department’s policy that confidentiality or gagging clauses should not be used in the NHS, a stance they have since reinforced.

But the case of Peter Bousfield, a consultant who raised fears about patient safety at the Liverpool Women’s NHS Trust, illustrates that such clauses are still in use, the BMJ said. Equally, some consultants who leave their NHS Trust “under a cloud” – because colleagues are worried about their competence – are inserting confidentiality clauses into their departure agreements that prevent the hospital or colleagues disclosing their worries to future employers.

Mr Bousfield, a senior consultant and former medical director, was given early retirement and a pay-off when the hospital rejected his concerns. It inserted a confidentiality clause that prevented him raising concerns with anyone other than the hospital board and the secretary of state for health.

The journal also cites an anonymous case where a consultant reported concerns about a newly appointed colleague’s work, only to find when contacting the doctor’s previous hospital that it had “seemingly been keen to be relieved of the doctor’s services whatever happened in future” but had agreed a gagging clause over the departure so that “nothing could be discussed”.

When the doctor quit his new hospital “another gagging clause” was imposed. The consultant says: “I felt incensed that even when two trusts were aware of repetitive behaviour they did not, or could not, join forces to save a third from employing this person.”

Dr Mark Porter, chairman of the British Medical Association’s consultants committee, said that in a recent survey 15 per cent of doctors who had reported concerns said their employers had indicated that “speaking up could negatively affect their employment”.

Public Concern at Work , the charity that helped engineer the Public Interest Disclosure Act and which runs a whistleblowers’ helpline, said it was aware of other cases in the NHS.

Dr Porter said staff should not be able to take vendettas to the media before employers had had a chance to deal with the concerns. But “to say there are no circumstances in which a concern for patient safety can be raised outside the organisation, or to attempt to enforce silence through a contractual mechanism, is appalling”.


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