Published 27 October 2009, doi:10.1136/bmj.b4203
Cite this as: BMJ 2009;339:b4203

Feature

Falling foul of gagging clauses

¹ Hertfordshire

Gagging clauses can also work in favour of doctors who leave trusts "under a cloud," making it difficult for future employers to find out what went wrong and leaving them free to repeat their behaviour. These legal restrictions make it difficult to raise concerns about a doctor’s competence. The BMJ has uncovered a case of one consultant currently working as a locum who has left two trusts with gagging clauses concealing the reasons for the departures. Jane Cassidy hears how a concerned medical colleague who tried to report the consultant to the General Medical Council got into trouble for breaching the gagging clause

"My problem was with my recently appointed consultant colleague. I had concerns about the consultant’s competence, and nurses witnessed shortcomings and informed me of them. My managers said I must do what I thought right. I submitted my complaint, and the individual was swiftly removed from clinical practice. An excellent start.

There were more detailed reports from me and various meetings, although I was kept in the dark about meetings with my colleague. Then things seemed to deteriorate. The consultant’s previous trust had agreed a gagging clause and seemingly had been keen to be relieved of the doctor’s services whatever happened in future.

We found out when my medical director contacted their opposite number at the doctor’s last employer, in response to my complaint, and was told nothing could be discussed because of the gagging clause.

When the doctor finally left my trust, another gagging clause was imposed. Before this happened, I felt my employers found it tedious that we could not reach resolution. I was advised the consultant must return to duties because of legal pressures.

I felt nothing had changed, the consultant’s clinical practice had not been assessed by someone in the specialty and I would not agree to reinstatement. I was solidly supported by the senior nurse. Management backed down, but we were told later that we were nearly disciplined.

I understand the accused will usually counter claim. A letter was sent to the medical director, which suggested that the consultant had accused me before I raised concerns. I was obliged to respond to the charges. Fortunately, there was no case to answer. However, since none of us is perfect, it is easy to see how tables could be turned.

The trust took the view that both whistleblower and accused should be judged equally, as if a whistleblower is likely to have base motives. When I was told the doctor had resigned hours before a trust disciplinary hearing, I wrote to the GMC.

I felt incensed that another trust had allowed this to happen and that even when two trusts were aware of repetitive behaviour they did not, or could not, join forces to save a third from employing this person.

I knew I must refer any inquiries from potential employers to the trust and say nothing. However, I still fell into a legal trap. I told the GMC in my letter that I could not recommend this individual to a consultant asking for a reference. When this information was passed on to the consultant by the GMC, which I accept is normal policy, the individual complained, and I was subject to a trust disciplinary inquiry for breaching the gagging clause.

I was cleared but still feel unhappy that this doctor could be employed by someone unaware of their past. There were no recommendations for retraining, special supervision, non-consultant grading, for instance, so this person could strike again.

Although my trust did fairly well compared with others, the system for raising concerns is unclear and does not serve patients and decent staff well. The legal status of gagging clauses also seems very unclear. Releasing information in these circumstances seems to be very complicated, and no one seems to know how to do it. I recommend any whistleblower to try to find strong, loyal colleagues equally committed to good practice and willing to expose bad."

Cite this as: BMJ 2009;339:b4203

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This article has been cited by other articles:

• Rubin, P. (2009). Clarification on gagging clauses. BMJ 339: b4991-b4991 [Full text]  

Rapid Responses:

Read all Rapid Responses

Gagging, duties and action.

Paul J. Galea
bmj.com, 5 Nov 2009 [Full text]

Clarification on article: 'Falling Foul of Gagging Clauses'

Prof. Peter Rubin, et al.
bmj.com, 13 Nov 2009 [Full text]

Clarification of a clarification

Gerald Shaw
bmj.com, 16 Nov 2009 [Full text]