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'Gagging' order worries over departing East lancs hospital staff
8:25am Friday 13th September 2013 in News
DOZENS of NHS workers who have left the Royal Blackburn and Burnley General have signed ‘gagging clauses’ which ban them from criticising the hospitals and their bosses.
The Lancashire Telegraph has obtained documents through Freedom of Information laws showing 95 workers have signed ‘compromise agreements’ since 2011, receiving voluntary severance payments averaging £20,000 each.
Health secretary Jeremy Hunt has recently slammed the use of gagging clauses in the NHS, saying they can prevent legitimate concerns about patient safety being exposed by staff.
And East Lancashire MPs Jack Straw and Andrew Stephenson have also said they are ‘unacceptable’ and are used to ‘sweep problems under the carpet’.
Clause 13 of the agreement states: “You will not, directly or indirectly, make any detrimental or derogatory statements about your employment, its termination, the employer or any of our directors or employees.”
Staff would risk losing their severance payment if they did decide to speak out.
Bosses at East Lancashire Hospitals NHS Trust [ELHT] said the clause does not prevent concerns being voiced, as the agreements allow staff to ‘whistleblow’ through official channels.
But Mr Straw, after viewing a copy of the agreement, said: “This is a gagging clause. While they are standard in the public and private sector I have no doubt they can work against the public’s best interest by sweeping problems under the carpet.
“What we need to get to is a climate in which in practice, as well as theory, those who are concerned about care are able to go public.
“It’s a statement of fact that contractual terms cannot override statutory protections, but they can create a climate where the pressure is on those who leave to stay quiet and I think that needs to be looked at.
“What I want to see is the trust leadership reviewing its policy.”
The Stafford Hospital scandal, where hundreds of patients are believed to have died unnecessarily between 2005 - 2008, brought NHS secrecy into the spotlight in recent years.
Ministers blamed the scandal partly on a culture of covering up problems and said more ‘openness and transparency’ is key to driving up standards in healthcare.
Nationally, there have been several high-profile cases where workers have attempted to blow the whistle using official channels, but were then bullied by bosses and had their concerns ignored.
Pendle MP Andrew Stephenson said: “The principle, and the policy, from the Government is quite clear. Gagging clauses are unacceptable. Whatever any contract says, however any clause is worded, NHS staff have the right to expose issues of public interest, especially anything that affects patient safety.
“Health workers and NHS staff worried about what might happen if they blow the whistle should know that they are legally allowed to do so and can expect public and political support if they shed light on serious failings that are putting patients at risk.”
Russ McLean, chairman of the Patient Voices Group, said: “The NHS is trying to promote a culture of openness and transparency and this gagging clause does nothing to restore much needed patient and public confidence.”
The Lancashire Telegraph asked ELHT why the clause was inserted, but this went unanswered in a statement from HR director Ian Brandwood.
His statement said: “The trust does not accept that the clauses in the standard compromise agreement for the purposes of a voluntary severance scheme, prevent legitimate concerns from being voiced.
“Under the Employment Rights Act 1996, any concerns made in the public interest can be legitimately disclosed and the operation of the law therefore, prevents any suggested ‘gagging’ clauses from being legal.
“Furthermore, Clause 14.3.3 of the compromise agreement states that ‘nothing in this agreement will prevent you disclosing information for the purpose of making a protected disclosure in the meaning of Part IVA of the Employment Rights Act 1996’.”
Mr Brandwood said a new clause would be inserted into future severance agreements, following new NHS guidance, which states ‘nothing in this agreement shall prejudice any right that you have or may have under the Public Interest Disclosure Act 1998...and/or any obligations that you have or may have to raise concerns about patient safety and care with regulatory and other appropriate statutory bodies...’ The hospitals were also asked whether they would remove Clause 13 from future agreements, as called for by Mr Straw and Mr McLean, but this question also went unanswered.
Steve Flanagan, regional director for the Royal College of Nursing in the North West, said: “No agreements should be used to prevent people from raising legitimate concerns, and this should be reflected in the processes used by all trusts.”
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