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The gagging debate needs perspective

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Over the last four years Health Service Journal has tracked growing concern over whistleblowing. In 2010 we published 25 articles on the subject, 38 in 2011 and 54 in 2012. With this year less than two months old, the count is already 18. At the same time we have plotted increased use by NHS organisations of compromise agreements to part company with senior managers and doctors.

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‘Underlying worries about whistleblowing are ones of a “bullying” culture. The accusation is not a new one’

Compromise agreements are blunt instruments, too often agreed in an effort to avoid “difficult” conversations or employment tribunals, and their use in an area of high public interest like the NHS has always been questionable. While some so-called gagging clauses do not specifically mention patient safety, the impression is left with signatories that terms such as “bringing the trust into disrepute” would include questioning the quality of care.

The agreements, of course, cut both ways – restricting an employer’s ability to highlight an employee’s lack of competence.

This area of law is mired in confusion, with the impact of the Public Interest Disclosure Act on the legality of gagging clauses or the professional responsibilities of doctors and nurses to report concerns (whatever agreement they have reached with employers) very poorly understood.

Robert Francis is woolly on the issue, saying simply that gagging clauses should not be allowed where they relate to “issues of patient safety and care” – a definition so broad as to be meaningless.

Old accusation

HSJ’s position is clear. No existing or former NHS staff member should feel themselves restricted from blowing the whistle on any important issue once they have exhausted the official channels. Indeed HSJ helps NHS staff do that on an almost weekly basis. The overhaul of how the NHS uses compromise agreements is long overdue – but the solution is unlikely to be simple or rapid.

Underlying worries about whistleblowing are ones of a “bullying” culture. The accusation is not a new one. A trawl of HSJ’s archives reveals the following quote: “We have more and more bullying going on. It is a very difficult environment because people are not prepared to put their heads above the parapet – they are terrified.” The date? December 1998. The same story blames “gagging clauses… for institutionalising a culture of fear”.

‘The final thread in the current controversy is the belief that gagging/bullying is somehow covering up a collapse in standards’

This is not to belittle the genuine concerns of staff, but to illustrate that the current row can sometimes lack historic context. It will be a point not lost on Sir David Nicholson – who finds himself the last man standing caught in a pincer movement between the right-wing press, angry that senior journalists have been prosecuted for what it perceives as lesser “crimes” and demanding to know why no-one has been “punished” for the failings at Mid Staffs, and the determined whistleblowing movement.

He will be encouraged by support from leading GPs, including Sir John Oldham, but it is clear from many comments made by HSJ’s readers that he still has a lot of work to do to convince NHS staff he can lead the culture change demanded by Francis.

The final thread in the current controversy is the belief that gagging/bullying is somehow covering up a collapse in standards. The government’s attempt to say its reforms were needed to tackle poor quality was rightly contrasted with the significant improvements in care and satisfaction achieved in the last decade.

The very measure used to expose the scandal at Mid Staffordshire tells us avoidable mortality in hospitals reduced steadily between 2000 and 2008 and that trend has, as far as it is possible to tell, probably continued since. HSJ readers will need no reminder there are organisations and areas of NHS care which provide sub-standard care and require, sometimes urgent, remedies. But the NHS is not in crisis – whatever the Daily Mail may say.

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