NHS chiefs banned from gagging employees


THE use of gagging clauses to stop NHS whistleblowers is being banned in Scotland.

Health secretary Alex Neil has revealed a new confidentiality clause has been drafted which explicitly allows workers to reveal bad practices within the NHS.

The new clause is being finalised and will be compulsory for use by all NHS boards in Scotland, Mr Neil told the Scottish Parliament yesterday.



Alex Neil MSP said the new rules makes clear that an individual's right to make “protected disclosures” is protected
Alex Neil MSP said the new rules makes clear that an individual’s right to make “protected disclosures” is protected


The move follows growing concern about the use of gagging clauses and a move by UK health secretary Jeremy Hunt to ban their use south of the border.

Mr Neil revealed the crackdown on gagging clauses in a written answer to a question from Richard Simpson, Labour shadow health spokesman.

Mr Simpson asked what steps were being taken to ensure gagging clauses are not being used in incidents that could impact on patient care.

Alex Neil replied: “I wrote to NHS boards on 22 February 2013 reminding them that they should frequently review their behaviours and practices to ensure they have a culture which actively encourages and supports members of staff to raise concerns.

“I stressed that I expect them to ensure that confidentiality clauses and non-derogatory statement clauses are not used to suppress the reporting of concerns about practice in the NHS in Scotland.

“Central Legal Office has recently carried out a review of the confidentiality clause and has developed a revised draft which explicitly makes clear that an individual’s right to make “protected disclosures” is protected.

“The revised clause is currently being finalised and will be compulsory for use across all NHS boards.”


“Compromise agreements”

In March this year UK Health Secretary Jeremy Hunt outlawed NHS gagging orders in England and Wales.

Departing staff were instead given a legal right to raise issues of public interest such as patient safety, death rates and poor care.

But in August last year it emerged around 390 Scottish NHS workers were paid-off by health bosses in deals totalling £12 million.

These “compromise agreements” saw hospital chiefs buy the silence of employees so that discrepancies in health practice would be kept quiet.

Individuals who signed clauses were then prevented from criticising the organisation or speaking about their reasons for going.

NHS Greater Glasgow and Clyde revealed under Freedom of Information legislation that in 2011 there were 54 employees who left the board accumulating £1.9m worth of gagging deals “rather than be redeployed into a suitable vacancy as a result of service redesign”.

FOI responses from the health boards show at least 131 agreements were brokered in 2009-10; 217 in 2010-11; and 390 in 2011-12.

Most health boards said deals included “non-disclosure” clauses although some refused to provide this information.

In 2011 there was also a poll that suggested more than a third of Scottish nurses were told not to report concerns about problems such as patient safety.

Two weeks ago the National Confidential Alert Line for NHS employees was launched in order for public interest concerns to be raised.  

The pilot scheme sees staff dial 0800 008 6112 and voice their concerns without disclosing their identity.

The hotline – run by Public Concern at Work – collates the concerns and passes them to the employer or the relevant regulatory organisation for investigation.