Buying Silence with Public Money

Should the concerns of whistle-blowing NHS staff who’ve signed silencing deals with their employers now be made public? In 2008, a staff survey by the Healthcare Commission found that Liverpool Women’s NHS Foundation Trust (LWNFT) had the second highest national rate for bullying of clinical staff by management, with a high percentage of staff wishing to leave their jobs. In 2009, after a long freedom of information battle, it was revealed that the Trust had signed twelve silencing deals (or ‘compromise agreements’) with staff over ten years, at a cost of £392,000. All contained gag clauses preventing the staff from going public with any concerns they may have had about medical care or mismanagement.

The agreements were drafted and negotiated by Liverpool solicitors, Mace & Jones. Since 2006, the Chairman of Mace & Jones has been Roy Morris, who has also been a non executive director of the Liverpool Women’s trust since 2005. He denies any conflict of interest. Mace & Jones were instructed by the Trust to ensure that any names of silenced employees are not revealed under information law, a view challenged in a recent Information Tribunal hearing1.

The trial heard evidence from Peter Bousfield, a consultant gynaecologist at LWNFT and a former medical director of Fazakerley hospitals. He had been concerned about staffing levels, lack of proper equipment and lack of ITU at LWNFT. After a bruising battle, he was paid £160,000 to retire and keep silent. He has since been threatened with an injunction by Mace & Jones if he raises his concerns with his local MP or anyone outside the NHS. In his witness evidence, he said he was truly horrified by this prospect and viewed it as a ‘disgraceful bully boy abuse of power’. He also revealed that the trust is now subject to a £20 million negligence action, despite the doctor in question raising concerns about his own practice.

Also in the witness box was David Ednay, a former superintendent sonographer, who had become concerned about nurses doing intrusive ‘HyCoSe’ scans to investigate infertility. When he raised his concerns, he was accused of bullying and suspended by the Trust. An independent assessor, Philip Orme, was brought in. The Trust initially refused to disclose the Orme report but Mr Ednay eventually obtained it under data protection law. It found that his suspension “could be regarded as wholly unwarranted even vindictive” and could “create the impression of a witch-hunt”. As a result, Mr Ednay was offered money with a gagging clause but refused, preferring to speak freely. In sympathy with Mr Ednay, seventeen sonographers resigned and moved on. In the witness box, Mr Ednay said he had formed the view that the Trust was essentially ‘corrupt.’

In court, the Trust claimed that only two of the compromise agreements referred to doctors. One was Mr Bousfield, and the Trust produced a letter from the other doctor refusing to give consent for his name to be made public, as he is still reliant on the Trust for references. Without knowing his identity, the Information Tribunal ruled that it could not be proved that this doctor was a whistleblower, and any concerns he may have had about standards of care remain a secret. So much or an open, transparent and safety-first NHS.

Bill Cash MP, who was instrumental in securing the Mid Staffs public inquiry, has argued for a new law to overturn all gagging clauses, allowing previously silenced doctors to voice their concerns about patient care. At the very least, Health Secretary Andrew Lansley should now insist all Trusts publish detailed information on all compromise agreements, including any patient safety concerns, to ensure taxpayers’ money is no longer used to buy the silence of whistle-blowers.

MD
1 www.informationtribunal.gov.uk/DBFiles/Decision/i457/Bousfield_v_IC_and_LWHNHS_(0113)_Decision_11-10-2010_(w).pdf