Gagging and duties
BMJ 2010; 340 doi: https://doi.org/10.1136/bmj.c148 (Published 13 January 2010) Cite this as: BMJ 2010;340:c148All rapid responses
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The excellent letter from Paul Galea (BMJ 2010;340:c148)eloquently
makes the case for a mechanism within the NHS, for employees to complain
about administrative incompetence or misconduct.
NHS GPs, whilst not strictly speaking employees, labour under the
same deficiency. Sadly, the Department of Health does not recognise this
as a problem. We recently wrote to the Secretary of State for Health on
this matter, having exhausted every avenue within the NHS.
The initial response was that the appropriate authority was our local
Strategic Health Authority (NHS London). Once we had confirmed it was
outside their remit, the Department came back with the reply that "the
only recourse is to settle the dispute with legal action", and that this
"reflects (their) policy regarding such matters".
It is clear that this could better be described as the absence of a
policy, and the Department is not persuaded that there is a problem in
need of a solution. In the meantime, precious NHS resources can be wasted
by Primary Care Trusts defending themselves in the courts, with the
blessing of the Department of Health.
Competing interests:
None declared
Competing interests: No competing interests
I believe Paul Galea is quite right in his suggestion that there
should be a framework within the NHS to examine and adjudicate in matters
of administrative abuse.
It is not just doctors who have been subject to gagging clauses. Such
clauses still seem to be considered routine in settlement of employment
disputes within the NHS, despite the instructions of ministers.
Clauses which forbid discussion of administrative errors are just as
dangerous as those affecting clinical matters. The NHS is a complex system
in which mistakes have multiple origins, administrative and clinical.
It might help if the BMA were to instruct its team of Employment
Advisers and their legal advisors to be absolutely consistent in refusing
to accept such clauses in settlements affecting their clients.
When ministers have taken the initiative in banning "gagging clauses"
it was left to the BMA to police the implementation of that policy.
From motives such as those described by Dr Galea, an element within
the administration of the NHS is unlikely to police itself. Patient safety
may be the loser.
Competing interests:
None declared
Competing interests: No competing interests
Before raising the stakes
Regarding the gagging clauses noted in Jane Cassidy’s article (1) and
subsequently discussed (2-4), the problem is that the mechanics of raising
concerns makes either individual health care professionals or a Trust as a
whole, vulnerable. As a result, it is understandable that individuals or
Trusts are tempted into self-preservation mode by either silence or
hostility respectively, when confronted with issues of patient safety.
Exacerbating the situation is that in a rights-based culture, patient
expectations do not seem to be diminishing. Complicating the matter is
that often what seems to one is poor care is to another just what can be
done with the resources available.
One cost-effective solution might be for the General Medical Council
to help lift the heavy burden weighing on doctors in this area and host an
internet forum whereby specific concerns over patient safety could be
raised anonymously but debated publically. This would make it easier to
distinguish between care that would be nice if we could afford it and
examples of truly shocking care. In cases of the latter, when quietly
presented with the conclusions of the forum, a hospital would be able to
avoid public shame and disgrace by taking immediate action to improve
standards. In the former, the public would get a much more realistic
insight into the level of care the NHS can provide. Overall, it is likely
that care would improve – which is what we all want.
1 Cassidy J. Falling foul of gagging clauses. BMJ 2009;339:b4203.
2 Morris K. Liverpool chairman responds. BMJ 2010;340:c144.
3 Bousfield A. Two doctors? BMJ 2010;340:c145.
4 Galea PJ. Gagging and duties. BMJ 2010;340:c148.
Competing interests:
None declared
Competing interests: No competing interests