GMC moves on 'gagging clauses' in pay-off deals

The move follows growing concerns that “compromise deals” - often used to keep pay-off deals confidential – were being used to bar departing staff from raising concerns with regulators.

The General Medical Council this week issued new guidance to doctors stating: “You must not enter into contracts or agreements…that seek to prevent you from or restrict you in raising concerns about patient safety”.

Monitor also last week reminded foundation trusts of their responsibilities over “compromise agreements”.

It referred FTs to a letter from NHS chief executive Sir David Nicholson sent to trusts earlier this month, which says using confidential clauses to prevent staff from whistleblowing “contravenes the spirit” of Department of Health guidance.

It is also “void” under the Public Interest Disclosure Act, Sir David wrote.

However, Sir David said the DH had a “concern” about “the potential deterrent effect of including such clauses in either contracts or compromise agreements”.

He said: “Our view is that where an agreement is reached that an individual will withdraw or agree not to make a complaint about a specific matter to certain bodies, the compromise agreement should make clear the right to make a protected disclosure is not affected.

“It is unacceptable to require an employee not to make any ‘further’ complaint or grievance.”

This is believed to have happened at Lewisham Hospital Trust and NHS Barking and Dagenham, which were asked by the DH to review their policies, the health committee heard in December.

Separately, the GMC has also this week published guidance on Leadership and Management for All Doctors, which has been updated to reflect the changing roles of medics, including in clinical commissioning.

It includes duties towards staff and over coordinating patients’ care and ensuring clinical failings are picked up as early as possible.