Intended for healthcare professionals

Rapid response to:

Feature Whistleblowing

The price of silence

BMJ 2009; 339 doi: https://doi.org/10.1136/bmj.b3202 (Published 28 October 2009) Cite this as: BMJ 2009;339:b3202

Rapid Response:

Two Doctors?

The Trust are now trying to claim that there were only two doctors
gagged – though this cannot be proved either way with reference to the
documents the Trust has produced since the names and dates have been
hidden behind the black pencil. On December 3rd 2007, now two years ago,
I wrote to the Trust making a formal request for “the text of any
compromise agreements the Trust has entered into with doctors that have
been paid off or taken early retirement”. The terms of that request were
very clear – the request relates specifically to doctors. In response,
the Trust refused to provide the agreements arguing that the agreements
the Trust had entered into were covered by “reciprocal confidentiality
clauses”. After I launched an appeal to the Information Commissioner’s
Office (ICO) against the Trust’s refusal, at the ICO’s instigation, on
15th July this year the Trust produced to me copies of 12 compromise
agreements, with names and dates black-pencilled. The letter from the
Trust which accompanied the compromise agreements stated that they
represented “all of the agreements that the Trust holds falling within the
scope of [the] request”, that is to say, “compromise agreements the Trust
had entered with doctors” (emphasis added). That this was the scope of my
request is confirmed in a subsequent Decision Notice of the ICO dated
November 17th 2009 [1], at §2 in particular.

The claim that only two doctors were gagged has been raised for the
first time in the scientific public forum of the BMJ Rapid Response area.
If the Trust wishes to persist in this claim, it should now provide
evidence to prove this contention by providing the full text of the
agreements for inspection to an independent authority, perhaps the
Department of Health or an appropriate Member of Parliament.

I note the inflammatory tone of the Trust’s response, attempting to
direct fury and let off a few flares at the BMJ editorial, rather than
deal with the important factual issues that arise from this piece. There
are still questions which must be answered. Of the 12 compromise
agreements disclosed by the Trust, some included ‘super gag clauses’ which
prevent any communication with the media about any NHS matter and prevent
the signatory from revealing even the fact of the existence of the gag
clause itself. Why did the Trust consider this appropriate? Furthermore,
was it right for the Trust to use a local law firm, Mace & Jones, to
draft such agreements, a firm where a non-executive director of the Trust,
Mr Roy Morris, has served as the Chairman since September 2006 . That
ostensible conflict of interest on the part of Mace & Jones is
currently under investigation by the Solicitors’ Regulation Authority.
Why did those same lawyers send a letter to a senior doctor, my father, in
November 2008 threatening him with an injunction if he articulated his
concerns to local MPs? These questions need answers since they raise
issues of hospital management behaving like Roman centurions in the rabid
persecution of any critical comment.

1 Freedom of Information Act 2000 (Section 50) Decision Notice,
Reference FS50202562, November 17th 2009

Competing interests:
Lawyer for the News International, Mirror Group Newspapers and Independent News and Media.

Competing interests: No competing interests

09 December 2009
Andrew Bousfield
Investigator
The Centre for Investigative Journalism, EC1V 0HB