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16 November 2015

Rt Hon Jeremy Hunt, Secretary of State for Health

Dear Mr Hunt,

Releasing gagged workers from restrictive compromise agreements and the capture all
evidence of relevance to the consultation on a national NHS whistleblowing policy

I write to ask if the government will allow all whistleblowers to contribute all of their experience
to the consultation that Monitor have just launched on a national whistleblowing policy for the
NHS. [1]

In August 2014 you wrote to all Trusts and Clinical Commission Groups and stated that it was
your expectation that they allow all whistleblowers who were subject to confidentiality clauses
and compromise agreements to contribute to Sir Robert Francis Freedom to Speak Up Review.

Your letter was not a binding directive and I am aware that some gagged whistleblowers did not
feel safe enough to contribute to the Review. This is understandable when whistleblowers basic
survival and subsistence may depend on a meagre settlement. Moreover, NHS employers are
known to aggressively pursue whistleblowers with litigation.

The creation of a national NHS whistleblowing policy is an immensely important exercise. The
draft currently offered by Monitor in conjunction with the NHS Trust Development Authority and
NHS England is superficial and very unlikely to protect whistleblowers. It does not meet even the
requirements of the governments existing guidance on what an effective whistleblowing policy
should look like. [3] For example, the draft contains no section on audit, monitoring of
organisations whistleblowing governance or measurement of staff experience of organisations
practice. To be credible and fit for purpose, it is essential that all whistleblowers can freely and
fully contribute to the draft policys development. It is essential that whistleblowers should be
able to submit all relevant supporting evidence on the many ways in which organisations
frequently circumvent weak policy. Monitors draft policy is no match for employers current core
strategy of turning patient safety matters into employment disputes, and requires substantial

I would remind you of Public Accounts Committees advice three years ago that even if staff are
not technically gagged from making public interest disclosures, compromise agreements can
make them feel gagged. [3] Sir Robert Francis also noted this effect, in his Freedom To Speak Up
Review report. [4]

I indicated above that your intervention last year asking employers to release whistleblowers
from gagging clauses was not wholly effective. It would greatly aid patient safety if
whistleblowers currently subject to confidentiality or non-disparagement clauses could be freed
from these restrictions under a binding directive from your office, so that no employer can take
legal action against any staff if they contribute to the consultation.

Indeed, the government may wish to demonstrate a genuine commitment to transparency by
taking action to permanently release all gagged staff from existing confidentiality and nondisparagement clauses.

Finally, it was reported in February of last year that you had taken steps to bar all compromise
agreements in the NHS with immediate effect. [5] However, there is evidence that compromise
agreements continue to be widely used, and in many cases with central governments knowledge
and acquiescence. In fact, employers continue to pursue super-gags which forbid staff from
revealing the existence of agreements. As Sir Robert Francis noted, this is especially draconian
and intimidatory. [4] It is disappointing that employers are not more effectively deterred from
such actions. Secrecy with menaces has no place in public life, especially in safety critical sectors
such as health care.

Please advise what steps the government has taken to bar compromise agreements from the
NHS and the wider public sector. This is with particular reference to the fact that the CQC has
indicated that it no longer uses compromise agreements for reasons of transparency and
accountability. It would seem logical and reasonable that a consistent is taken across different
public bodies.

Yours sincerely,

Dr Minh Alexander

cc Rt Hon Sir Anthony Hooper
Sir Robert Francis QC, CQC NED
Rt Hon Heidi Alexander Shadow Secretary of State for Health
House of Commons Health Committee
House of Commons Public Accounts Committtee
House of Commons Public Administration and Constitutional Affairs Committee
Rupa Huq MP
Charlotte Leslie MP
David Bennett Chief Executive Monitor
Bob Alexander Chief Executive NHS TDA
Simon Stevens Chief Executive NHS England

[1] https://www.gov.uk/government/consultations/freedom-to-speak-up-whistleblowing-policyfor-the-nhs

[2] Your letter August 2014 to all chairs of NHS Trusts and Clinical Commissioning Groups


[3] Speak Up for a Healthy NHS June 2010 http://www.pcaw.org.uk/files/SpeakupNHS.pdf

[4] House of Commons The Care Quality Commission: Regulating the quality and safety of health
and adult social care, 78th report of session 2010-2012


[5] Report of the Freedom to Speak Up Review Report on NHS whistleblowing by Sir Robert
Francis, 11 February 2015

[6] NHS whistleblowers have raised 8,000 cases says Hunt: Health Secretary highlights big
increase in staff airing concerns in wake of Mid Staffs scandal, James Chapman for the Daily Mail
5 February 2014 http://www.dailymail.co.uk/news/article-2551909/NHS-whistleblowers-raised8-000-cases-says-Hunt-Health-Secretary-highlights-big-increase-staff-airing-concerns-wake-MidStaffs-scandal.html