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Outlawed Gagging Clauses in NHS Contracts
The first case relates to a dispute between Liverpool Women's NHS Foundation Trust and Peter Bousfield, a long serving consultant, who was offered early retirement and a termination payment after he had raised a series of concerns about patient safety.
Documents have come to light showing that not only was a non-disclosure clause incorporated into the compromise agreement at the behest of the trust, contrary to NHS guidance, but the trust's solicitors also threatened Mr Bousfield with a court injunction if he tried to bring matters to the attention of local members of parliament.
The second case highlights issues surrounding doctors who leave trusts "under a cloud" with gagging clauses made in their favour, making it difficult for future employers to find out what went wrong and leaving them free to repeat their behaviour. The BMJ hears how a concerned medical colleague who tried to report a consultant to the General Medical Council got into trouble for breaching the gagging clause.
Gagging clauses have been specifically prohibited in NHS employment contracts since before the Public Interest Disclosure Act was passed in 1998, and this position was reinforced in August 1999 when the Department of Health issued guidance on whistleblowing. The British Medical Association (BMA) also has whistleblowing guidance and a helpline for hospital staff.
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