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MPs call for CQC to regulate ‘gagging clauses’

8 December 2011

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The CQC is set to review its position on ‘gagging orders’ imposed on NHS staff members after MPs criticised its lack of leadership.

The Health Select Committee heard yesterday (7 December) that compromise agreements – or ‘gagging orders’ as they are sometimes known – may serve to  intimidate doctors and nurses, leading them to “back away” from fulfilling their professional obligation to raise patient safety concerns.

Agreements that seek to block whistleblowing are “unenforceable” said Jill Finney, Deputy Chief Executive of the CQC.

“Not enough clinicians and practitioners are aware compromise agreements do not restrict or impede their obligation to disclose patient safety concerns to the CQC,” she said.

Finney revealed the regulator will begin distributing leaflets to “put the matter to bed” early next week.

Committee member and Devon GP Dr Sarah Wollaston said the CQC was “not going far enough”.

“The CQC should be telling Trusts that compromise agreements have no place in contracts for fear of them intimidating both doctors and nurses against speaking out,” she said.

“Leaflets are not going to counter the nature of the clauses in contracts.

“[The CQC] is going about this the wrong way round.”

Finney agreed the agreements could discourage whistleblowing and pledged to carry out a review into how the CQC’s position could change.

“We will deal with this ridiculous position we find ourselves in, because we shouldn’t be here – this shouldn’t be happening,” she said.

Upon further questioning, Finney told the committee routine checks on the existence of harmful ‘gagging orders’ were not being carried out by the CQC and when pressed, failed to be able to quote even one instance.

Dr Mark Porter, Chairman of the Consultants Committee at the British Medical Association (BMA), said compromise agreements are typically used to keep the terms and conditions of severance pay confidential and no evidence has been found to suggest they are being used to keep quiet clinical concerns.

He claimed it would be “impossible” and “unlawful” to expect the CQC to regulate such agreements.

Dr Peter Carter, Chief Executive and General Secretary of the Royal College of Nursing (RCN), agreed and described the issue as “misunderstood” and “over inflated”

He did however acknowledge the misunderstanding of compromise agreements could make nurses think twice about raising concerns over patent safety but said the “widespread distrust” of employers is at the heart of whistleblowing concerns.

“There is a major problem in the NHS in that nurses do not trust in their employers to protect them if they were to speak out,” he said.

“This is not an issue that can be resolved within the confines of Parliament – employers much take ownership of this issue and reverse the culture trend.”

Dr Porter said BMA research shows doctors are, on the whole, happy to raise concerns but they are aware of the “oppressive atmosphere” and do fear being “picked on” for speaking out.

Committee member and MP for Walsall South Valerie Vaz challenged the BMA’s “silence” on the issue and criticised the organisation for appearing to “do nothing and failing to stand up for its members”.

“We are asking [the BMA] to go further and [the BMA] has a duty to go further,” she said.

Despite these concerns, Finney said whistleblowing calls were rising.

Between June and November this year, the CQC received just over 2,000 calls from NHS staff raising concerns over patient safety issues whistleblowing hotline with, 400 calls received last month alone.

The RCN, BMA and CQC told the committee they will meet to try to find some “commonality” on how to deal with compromise agreements.