a trust now publishes monthly Open and Honest Care reports.
These reports cover key safety issues such as the number of falls and pressure ulcers reported, results from patient and staff experience surveys, and details of improvement programmes undertaken in the last month to help improve patient safety. They also include anonymised real-life stories, for example about how a reported patient safety incident occurred.
By publishing this alongside the monthly performance report the trust management has shown that it is willing to learn from mistakes and tackle issues in a constructive manner.
7.4.13 This can only work if trusts can be confident that regulators will respond constructively and consistently to this level of transparency. Regulators should specify their expectations for the collection and publication of this sort of data and how they will use it. There needs to be a common understanding among regulators about ‘what good looks like’ in terms of raising and handling concerns so that they are consistent in their judgments about organisations on this issue. We heard concerns from employers in particular that system regulators were not always clear whether to criticise or praise a trust when the volume of staff concerns increased. This needs to be addressed and is considered further in 7.7.
Transparency by regulators
7.4.14 The regulators are doing more to triangulate data.
“ I think it’s really important not to just look at what comes through formal policy, I think it is important to triangulate data to say ‘What is the health of the organisation?’ and where things are raised … that there is an opportunity to try and pool that information together to see if there is a rising tide of issues that are occurring.”
7.4.15 It also seemed, from our survey of
regulators, that some were taking action to be more transparent. Of those that responded to questions about transparency:
• 6 of 7 noted that they publish the number of concerns raised with them by people working in the NHS
• 6 of 7 publish the number of investigations conducted as a result of concerns being raised
• 5 of 7 publish the outcome of investigations.
7.4.16 We checked the websites of a number of professional and system regulators to see whether we could easily find information about the number of concerns that were brought to their attention and the action taken as a result. While it is possible such data exists on other sites, despite our survey findings we could only find published data from one regulator. That regulator included the number of whistleblower concerns it received in its annual report.
Confidentiality clauses
7.4.17 Settlement agreements between employer and employee are commonplace in both the private and public sectors. Such agreements are usually entered into because it suits the interests of both parties to do so, for example, to avoid the risks of costly and protracted legal proceedings or to draw a line under an employment dispute. Employees are entitled to a small sum to enable them to seek legal advice on the terms and content of the agreement.
Freedom to Speak Up – A review of whistleblowing in the NHS
158
7.4.18 Settlement agreements often contain clauses on confidentiality. This is not unique to the NHS. These clauses can be used legitimately, for example to protect commercial interests or patient confidentiality. Where used appropriately they can be an acceptable mechanism to protect the interests of both employer and employee. However, any clause written into a contract or settlement agreement that attempts to prevent a protected disclosure being made is unenforceable and is void in law88.
7.4.19 Often confidentiality clauses are drafted in complex legalistic language and such agreements are often made at times of particular stress and anxiety for the member of staff involved. I have heard of the ‘chilling effect’ such clauses can have. It is not surprising that misunderstandings arise about the meaning and scope of these obligations. Individuals may also be anxious about the potential financial consequences of non-compliance with a confidentiality clause. If there is any uncertainty about its meaning it may be thought that the risk of being sued for breach is not worth taking even if public interest concerns remain.
7.4.20 I have not seen any recent settlement agreements which are not strictly compliant with the requirements of the legislation. This is consistent with the findings of the National Audit Office report in June 201389 which examined a sample of 50 settlement agreements, including 12 relating to health cases. It found no examples of confidentiality clauses restricting people’s rights under the 1998 Act. This report was also in line with the findings of a union we spoke to that had considered a significant number of such clauses for members. All the clauses it had considered had been legally sound and had not sought to ‘gag’ staff on issues of public interest.
7.4.21 However, I have seen some which seem unnecessarily draconian or restrictive, for example, banning signatories from disclosing the existence of a settlement agreement. It is also clear that there is an atmosphere of fear and confusion surrounding the obligations of confidentiality in
such agreements so as to make them a deterrent against public interest disclosures even where they do not have that effect in law.
7.4.22 The Mid Staffordshire NHS Foundation Trust Public Inquiry Report90 recommended that ‘gagging clauses’ or non-disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners where they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care. The Secretary of State for Health made a statement in March 2013 and personally wrote to NHS Trusts informing them that ‘gagging clauses’ would be banned in the NHS. That in itself may have caused some confusion. For some individuals it reinforced their belief that they had been gagged and could be sued if they discussed outstanding matters of patient safety with an appropriate regulator. Others thought it meant that all confidentiality clauses would be banned, not just those that were not compliant with the 1998 Act.
Contributors’ experience of confidentiality clauses
7.4.23 Confidentiality clauses were not frequently referred to by contributors to the Review, although a few individuals suggested that they had been asked to sign such agreements.
“ Against NHS guidelines, the Trust asked me to sign a confidential gagging clause […] which stated I was at fault and would not speak out again. They said it was highly confidential between me and […]. When I refused to sign, the trust said in that case there would have to be a disciplinary case against me.”
7.4.24 Concerns from contributors included that confidentiality clauses might:
• prevent one side having a right of reply
• be entered in to without the original concern they raised being addressed
• give an impression that no-one has been held accountable
88 Public Interest Disclosure Act 1998 Section 43J: (1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure. (2) This section applies to any agreement between a worker and his employer (whether a worker's contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract
89 Confidentiality clauses and special severance payments, National Audit Office, June 2013 90 Mid Staffordshire NHS Foundation Trust Public Inquiry, Robert Francis QC, 6 February 2013
Chapter 7 – Measures to support good practice 159
• give the impression that people’s silence is being bought or failure is being rewarded with secret pay-offs
• prevent a future employer or a regulator from knowing if someone has been responsible for bullying or victimising a whistleblower – there were concerns that this might impact on the workings of the Fit and Proper Person Test.
7.4.25 At our seminars, there was a strong view that any clause that prevented the NHS from learning about poor practice should not be allowed. Some participants also suggested that organisations should not be able to bind people who speak up with any type of confidentiality clause. Both views are wider than the scope of the current statutory prohibition. The generally held view appeared to be that confidentiality agreements were not a good solution, almost never in the public interest, and surrounded by confusion.
7.4.26 The excessive use of confidentiality clauses of any type in settlement agreements is a hindrance to transparency. I question, for example, whether it is in the public interest for an employer to sign a confidentiality agreement relating to a performance issue involving a senior employee if that enables them to move to another public sector post, possibly on promotion. I therefore suggest that NHS organisations, and the lawyers who advise them, should take great care to ensure that any confidentiality clauses are drafted in a way that is easily understood by both parties and are genuinely in the public interest. A good starting point would be that any confidentiality clauses need to be justified rather than including them automatically. Conclusion
7.4.27 Transparency and openness is being encouraged throughout the NHS in a variety of ways, including through the statutory duty of candour referred to in 2.3. Whilst monitoring of whistleblowing appears to be underdeveloped, it is clear that it is possible to triangulate existing data and configure indicators which can be published in the interest of transparency and learning.
7.4.28 Transparency is important for raising concerns. It helps to:
• foster the understanding that concerns are the norm, and not something to be hidden (see 5.3)
• send a signal to staff that the board welcomes and values their concerns as a source of learning (see 5.7)
• create trust and confidence that concerns will be looked into and addressed (see 6.4)
• contributes to fair accountability (see 7.5)
• improve safety within an organisation and across the NHS by sharing learning which may enable common themes to be identified as described in this section.
The Government in its response to the
‘Whistleblowing Framework Call for Evidence91’ has endorsed greater transparency and is committed to introduce a duty on prescribed persons to report annually.
7.4.29 For these reasons I advise that all organisations which publish Quality Accounts, or equivalent, should be required to include in them quantitative and qualitative data about formally reported concerns including the volume and a brief summary of what action was taken and the outcome, subject of course to constraints of patient confidentiality and data protection. I strongly advise Monitor, CQC, NHS TDA and NHS England to consider and specify, in consultation with the National Learning and Reporting System (NLRS) how much detail is reasonable and useful.
7.4.30 This information should be shared with the NRLS, the relevant regulator and commissioner(s) and the Independent National Officer (INO) (see Principle 15) assuming my advice in 7.6 is accepted. The information should be used by all organisations to identify themes that emerge from the reports and to share learning and best practice across the NHS.
7.4.31 Careful thought should be given to the need for confidentiality clauses in settlement agreements to ensure that they are proportionate and in the public interest.
Freedom to Speak Up – A review of whistleblowing in the NHS
160