It is not hard to see why embattled managers running hard-pressed public services might wish they could shield themselves and their colleagues from frequent criticism, some of which they may feel is unfair, but it is a very dangerous step indeed to try to silence those who raise concerns about negligence, competence or safety.
The issue of gagging clauses has come to the fore again following the brave decision by consultant Dr Jane Hamilton to speak out about her refusal to sign a severance agreement with NHS Lothian because it would gag her. She is risking a six-figure settlement and believes she could lose her career.
Dr Hamilton has been suspended or off work with stress-related illness for the past four years, after warning her bosses that she was worried about the safety of patients at a specialist psychiatric unit for mothers and babies at St John's Hospital Livingston. She even warned in writing that someone could die because the unit was not functioning properly. Two women have since taken their own lives, including 37-year-old Claire Donald, whose family are pursuing legal action against NHS Lothian. Board officials are now seeking to classify Dr Hamilton's concerns over patient safety as employment grievances.
Loading article content
It remains to be seen what will be the outcome of this case though, to allay public concern, there is a strong case for an independent inquiry into Dr Hamilton's concerns.
Yet the matter brings under the spotlight the wider issue of gagging clauses, which are used by the NHS and other public bodies. Can it really be right that staff who raise concerns about negligence, competence, wrongdoing or safety in the way that a public service is run can be induced to shut their mouths about it? Some might argue that, if the complaints are erroneous, a gagging clause might be the only way to prevent the service concerned being unfairly smeared, but what if the complaints are fair? What if they highlight real problems? In that case, a gagging clause effectively acts to shield bad and potentially dangerous practice from criticism and that could have very serious consequences indeed.
Gagging clauses are sometimes incorporated into employment contracts and sometimes written into severance agreements but the effect is the same: to make it more difficult for employees to raise the alarm publicly about any concerns they may have. How does that serve the public interest? Taxpayers would like to believe that public bodies are open to criticism and never defensive or secretive but the Mid Staffs inquiry made it plain that this is not always the case. Health Secretary Alex Neil has made clear he believes confidentiality clauses should not be used to prevent staff reporting concerns but it appears not all boards have got the message.
Scotland has an NHS whistleblowers' hotline, but already campaigners are highlighting its weaknesses, claiming that callers are merely referred back to the NHS.
Gagging clauses make it impossible to create a culture of openness in the public sector; their use must end.