NHS trust will face “consequences” if gagging clause breached guidelines, warns health secretary

BMJ 2013; 346 doi: (Published 15 February 2013) Cite this as: BMJ 2013;346:f1083
  1. Clare Dyer
  1. 1BMJ

The health secretary for England, Jeremy Hunt, has written to the hospital trust that gagged a former chief executive from speaking out on safety concerns, asking whether the gagging clause breached NHS guidelines on whistleblowing.

Hunt has received a letter from Stephen Dorrell, chairman of the House of Commons Health Committee, asking for confirmation that Gary Walker, former chief executive of United Lincolnshire Hospitals NHS Trust, would not be pursued by lawyers if he spoke to the committee.

Walker signed a compromise agreement containing the clause when he was forced out of his job in February 2010 after his insistence that a “target culture” was threatening the safety of patients.

Walker told BBC Radio 4’s Today news programme that he and the trust’s board had concerns about patient safety and suspended Department of Health waiting time targets for non-urgent treatment in the face of extra demand for emergency cases. But he said that he was told by the East Midlands Strategic Health Authority “to meet the targets whatever the demand.”

Walker broke his three year silence to tell the BBC of a culture of “fear and oppression” in the health service, despite a letter from the trust’s lawyers threatening him with reprisals if he broke the gagging agreement that he was obliged to sign when he settled his claim for unfair dismissal.

He went public a week after the public inquiry by Robert Francis QC into failings at Mid Staffordshire NHS Foundation Trust called for gagging clauses to be banned “insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.”1

Before his interview with the BBC, the trust’s solicitors warned Walker that if the interview went ahead he would be “in clear breach of the agreement and as a result the trust would be entitled to recover from you the payments made under the agreement and any costs including its legal costs.”

Walker, who also spoke to the Daily Mail newspaper, was reported to have been paid £500 000 (€582 000; $775 000), including legal costs, when he signed the agreement. The official reason for his dismissal was gross misconduct, including swearing in meetings.

United Lincolnshire is one of 14 trusts now under investigation by the NHS’s medical director, Bruce Keogh, because of high mortality data2—the signal that first alerted the Healthcare Commission to serious problems at Mid Staffordshire.

The Francis Inquiry found that basic care and patient safety were compromised at Stafford Hospital as management put staff under pressure to deliver on targets. The system ignored signs of poor care, and concerns were not acted on.

Walker claims that he blew the whistle about safety concerns to the then chief executive of the strategic health authority, Barbara Hakin, now the NHS’s director of commissioning, and to the NHS chief executive, David Nicholson, who has faced calls to resign after the Francis report pinpointed widespread failings throughout the health service he heads.

Hakin, a doctor, is under investigation by the General Medical Council over the allegation that she prioritised targets over safety.3

Walker said, “This is a culture of fear, a culture of oppression of information that’s either going to embarrass a civil servant or embarrass a minister. And if you consider that the people that have been running the NHS have created that culture of fear, they need either to be held to account or new people need to be brought in to change that culture.”

Dorrell, a former health secretary, told Hunt in his letter that the Health Committee was normally reluctant to be drawn into disputes between individual NHS employees and their employers. He had initially played down suggestions that Walker might give evidence to the MPs.

But he said that a health department official had previously told the committee that gagging clauses were “not acceptable” in the NHS, and the Francis report called for them to be banned as “not in the public interest.” The committee also understood that they were not enforceable, under the Public Interest Disclosure Act, Dorrell added.

He asked Hunt to confirm that “neither the trust nor any other NHS body will seek to enforce any clause in Mr Walker’s compromise agreement which would impinge on his capacity to respond fully to the committee’s request.”

Hunt later told the BBC Radio 4’s World at One news programme that he had written to the trust to ask about the contents of Walker’s compromise agreement and whether it complied with NHS guidance on whistleblowing. “If they’ve got this wrong there will be consequences,” he added.

East Midlands Strategic Health Authority said that it “totally refuted” Walker’s allegations and his accounts of conversations with Hakin. It said that the health department had commissioned an independent investigation in October 2009 “which found that the SHA had acted appropriately and properly and that the allegations were wholly without merit.”


Cite this as: BMJ 2013;346:f1083