NDA debate cannot be reduced to soundbites

Some may have had a sense of déjà vu this week following comments from Matt Hancock about non-disclosure agreements, prompting headlines he was pledging to ban gagging orders for whistleblowers in the NHS.

Earlier this week Mr Hancock said he was “determined to end” the injustice of whistleblowers having to choose between “the job they love and speaking the truth to keep patients safe”.

“Settlement agreements that infringe on an individual’s right to speak out for the benefit of patients are completely inappropriate,” he added.

For those wondering why those words sound familiar, six years ago, former health secretary Jeremy Hunt also promised he would end the era of preventing whistleblowers from speaking out about hospital failings and give legal rights to raise issues that are in the public interest.

The government announced compromise agreements – as settlement agreements were known until July 2013 – would have to include a clause stipulating that any requirements for confidentiality did not prevent an individual from raising patient safety concerns.

At the time, lawyers told HSJ these changes did not have a “substantial effect” as legal firms had already been putting wording to this effect into compromise agreements.

It is unclear whether Mr Hancock’s comments will result in any sort of concrete change or whether they were in response to the specific whistleblowing case of Morecambe Bay Foundation Trust radiographer Sue Allison, who argued she was asked to sign an NDA without legal advice. As it stands, there appears to be no fresh announcement from the Department of Health and Social Care.

The wider context surrounding the health and social care secretary’s comments are important to note. They come shortly after data obtained by the BBC revealed UK universities have spent nearly £90m on staff payoffs with gagging orders attached over two years, which raised fears staff were being silenced and prevented from raising concerns.

A Commons’ Women and Equalities committee ongoing inquiry is looking at the wider use of NDAs in sexual harassment cases or where other discrimination is alleged. This has arguably been driven by the #MeToo movement and will surely have a ripple effect on the NHS and transparency around the use of NDAs.

However, the debate about NDAs and about how whistleblowers should be treated is more complicated – these comments from the health and social care secretary are just the tip of the iceberg.

Chris Hopson, chief executive of NHS Providers, told HSJ trust leaders recognise there is a legitimate debate about how to gain assurance that NDAs are being use appropriately but said NHSP’s members are not in favour of an outright ban.

Trust leaders often deal with complex employment cases where they have to balance the rights of different members of staff and where full disclosure of information may breach the trust’s duty of care  – Mr Hopson said this is a legitimate use of an NDA.

“We recognise that the issue of NDAs in the NHS can cause concern, but we need to recognise that they are used for a number of legitimate reasons, which are sensible responses to complex employment issues,” Mr Hopson said.

Jon Restell, Managers in Partnership chief executive, echoed these concerns and described his unease when hearing suggestions from some that confidentiality clauses could be “knocked down”.

Sometimes the clauses are in the interest of individuals, as Mr Restell explained it is not uncommon for people to be scapegoated by their employer.

Mr Restell stressed what can be more dangerous is the employer’s reaction to initial concerns raised by a member of staff and whether staff feel safe raising concerns.

“We need to focus on that end of the spectrum,” he argued.

It is clear more needs to be done to enable employees to feel confident to raise concerns at work and also prevent poor treatment from employers when they do.

Elizabeth Gardiner, interim director of policy at whistleblowers’ support charity Protect, said a settlement agreement is often a signal of failure, as the whistleblower has not been able to stay in the workplace.

She described how in recent years the charity has seen a “sea-change in dealing with whistleblowing in the NHS” following the establishment of “Freedom to Speak Up Guardians” and there is more attention on the role and responsibility of senior managers.

But more needs to be done. Protect raised the point that action also needs to be taken against those who victimise whistleblowers, as bringing such a claim to a tribunal is costly and risky.

Although the health and social care secretary’s comments are not unwelcome, this is an issue that deserves more than a soundbite. Instead a nuanced debate is needed about how NDAs are being used in the NHS and how whistleblowers are treated before a settlement agreement even comes into play.

Update: This article was updated at 12:07 to reflect the fact Sue Allison is still an employee of University Hospitals of Morecambe Bay FT