The NHS Gagging Wars

Several Private Eye readers have pointed out that NHS whistleblowers can only be gagged by their employers if they consent to it, and that a true whistleblower would forgo any pay-off to get their story in the public domain (Eye last). The Government argues that – under protection offered by the Public Interest Disclosure Act (PIDA) – all such gags are legally void and that whistleblowers who are persecuted for speaking up may gain unlimited damages at an employment tribunal. So what’s the problem?

Alas, the NHS at its Stalinist, bullying best uses public money and a host of dirty psychological tricks to destroy whistleblowers long before they make it to an employment tribunal (see Shoot the Messenger,  Eye 1292). And those who refuse to be gagged find any compensation swallowed up by legal fees. Consultant surgeon Ramon Niekrash was suspended from Queen Elizabeth Hospital, Woolwich for 10 weeks after raising concerns about the impact of closing a urology ward was having on patient care. The tribunal found in his favour but left him a  £160,000 legal bill.

The NHS is a monopoly employer and any employee who goes public with safety concerns can find it hard to get work elsewhere. Whistleblowers are often counter-smeared, suspended on spurious grounds, referred to the GMC, isolated them from their friends and repeatedly fobbed off in their attempts to get the NHS to release  information to help them prove their case. Their battle for justice can drag on for years while they face career and financial ruin.  Unsurprisingly, many take the money and sign the gag. The gag may be theoretically void, but few have the strength or financial security to test it.

The Department of Health insists that such gags are strictly against policy and that  ‘before an NHS employee considers signing a compromise agreement, the employer is required to pay for the employee to have independent legal advice on the terms of the agreement.’ But NHS Trusts that ignore whistleblowers also ignore PIDA and DH policy, safe in the knowledge that most employees lack the resources to pay for a prolonged legal challenge.  

So who monitors the pay offs and the gags? In a response to Peter Bottomley MP, health minister Simon Burns confirms that  ‘All non-contractual ‘special’ severance payments for employees or ex employees must be approved by HM Treasury. NHS trusts are required to ensure that any proposals to make such payments are sent to the Department of Health initially for scrutiny.’

So the large sum of public money paid to former United Lincolnshire Hospitals NHS Trust chief executive Gary Walker in combination with the gag that prevents him, or any of him employment tribunal witnesses,  speaking publically about the serious safety concerns he reported to NHS chief executive (Sir) David Nicholson and director of commissioning (Dame) Barbara Hakin was a) scrutinized by the Department of Health who failed to spot that a high profile whistleblower was being silenced and b) approved by the Treasury. Either the Treasury and DH were fully aware of this legally dubious attempt to protect the reputation of the NHS’ two most senior managers or – like News International – they simply rubber stamp huge pay-offs to make problems go away without investigating their legality or morality.

When Great Ormond Street hospital tried to silence Baby P whistleblower Dr Kim Holt, it offered her £120,000 not just to sign a gag but to withdraw all of her allegations, sign a document to say GOSH was never aware of her concerns and hand over all her evidence.  Dr Holt bravely refused and should be summoned as first witness when the Health Select Committee considers compromise payments and gagging clauses this month. Closely followed by Gary Walker, David Nicholson, Barbara Hakin, Andrew Lansley and whoever it is at the Treasury who signs the cheques.