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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1699-i
House of COMMONS
TAKEN BEFORE the
Professional responsibilIty of healthcare practitioners
Wednesday 7 DECEMBEr 2011
Jill finney, richard hamblin, dr peter carter OBE and dr mark porter
gavin larner and MATTHEW FAGG
Evidence heard in Public Questions 1 - 128
USE OF THE TRANSCRIPT
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Taken before the Health Committee
on Wednesday 7 December 2011
Mr Stephen Dorrell (Chair)
Grahame M Morris
Dr Daniel Poulter
Dr Sarah Wollaston
Examination of Witnesses
Witnesses: Jill Finney, Deputy Chief Executive, Care Quality Commission, Richard Hamblin, Director of Intelligence, Care Quality Commission, Dr Peter Carter OBE, Chief Executive and General Secretary, Royal College of Nursing, and Dr Mark Porter, Chairman, Consultants’ Committee, British Medical Association, gave evidence.
Q1 Chair: Good afternoon. I would like, if I may, to introduce and set the scene for this session. It is a onesession inquiry but it is one to which, it is fair to say, the Committee attaches very considerable importance. It was prompted by an article in The Times, two or three weeks ago, which reported that doctors-and presumably other professional staff but, in the context of The Times article, doctors-were being asked, as part of the termination of employment process, to sign clauses in compromise agreements that were alleged to be quite clearly inconsistent with the obligations of those same doctors to raise concerns about the quality of practice within the employing organisation with the General Medical Council, their professional regulator.
That prompted a response through the newspapers. However, within the Committee we take an interest in this principle that professional people-doctors, nurses, midwives and regulated professionals-have an obligation to raise concerns when they see practice within the healthcare system which does not match acceptable professional standards. We were, therefore, concerned that there was evidence, apparently, they were being asked to sign contracts inconsistent with that obligation: an obligation, the importance of which we have drawn attention to in following sessions conducted with both the Nursing and Midwifery Council and the General Medical Council.
This session is a followup to The Times article. It is also a followup to the principles we regard as important and which we have drawn attention to following the accountability hearings with those regulators earlier in the year. It is worth setting out on the record that, although it is a brief inquiry, we regard this as an issue of fundamental importance, both to individual professionals but, more importantly, to the quality assurance system for patients within the system.
Against that background, I would like to ask each of our witnesses to introduce themselves. Then we will come to our first question.
Jill Finney: Good afternoon. I am Jill Finney. I am the Deputy Chief Executive of the Care Quality Commission.
Richard Hamblin: I am Richard Hamblin. I am Director of Intelligence at the Care Quality Commission.
Dr Carter: Hello. I am Peter Carter, the Chief Executive of the Royal College of Nursing.
Dr Porter: Good afternoon. I am Dr Mark Porter. I am a consultant anaesthetist but I am also the Chair of the Consultants’ Committee at the British Medical Association.
Q2 Chair: Thank you very much. I would like to begin by asking each of our witnesses-and perhaps the CQC can speak as one for this purpose-whether you think the problem that The Times article drew attention to is isolated or there is a systemic tendency to ask people to sign contract clauses of this nature.
Jill Finney: Clearly, if any practitioner does sign a clause of that nature, it does not in any way prohibit them from making a disclosure to the Care Quality Commission because of the protected disclosure element to a compromise agreement. If you sign a compromise agreement, you are completely at liberty to call a professional regulator or the Care Quality Commission. We think the situation is that not enough people, clinicians and practitioners, understand that is the case. We are working towards and indeed, by coincidence, on Wednesday we launched a major communication which makes this clear to all NHS professionals. It says that if they are signing a compromise agreement they are still at liberty to phone the Care Quality Commission without in any way compromising their remuneration.
Q3 Chair: Whatever the compromise agreement says.
Jill Finney: Whatever it says, you cannot prevent protected disclosure.
Q4 Chair: What you are saying is that these clauses, even if they exist, are unenforceable.
Jill Finney: Correct.
Q5 Chair: That is also what others said in comment at the time. The problem is, however, if you are an individual doctor or nurse signing that kind of clause, how likely you are to chance your arm to prove that principle.
Jill Finney: That is exactly the challenge, which is why we have spent quite a bit of time developing, with NHS trusts and, indeed, NHS Employers, this leaflet and a communication-which we start, as I say, next week-that puts this matter to rest. Also, we have set up a dedicated whistleblowing line at CQC, and this leaflet contains details about that dedicated line, which makes a direct phone call easier to our organisation to explain, straightaway, what the position is. We can deal with that because we now have experts who can deal with it. That is a more assuring environment for practitioners to call us in.
Q6 Chair: Can we come back to that?
Jill Finney: Yes.
Q7 Chair: We will start by asking Dr Carter and Dr Porter to comment from their perspectives.
Dr Carter: It is similar to what Jill has said. We looked back at our records and we can find absolutely no evidence of anyone trying to impose a gagging clause. I think there is some understandable confusion about a compromise agreement in which both parties sign up to keeping the nature of that agreement confidential. That is when there has been a dispute, of whatever nature, both parties have decided the remedy is some agreement that a person goes and they both sign up to it. That has nothing to do with gagging clauses. This is something, however unintentional, that has been misunderstood and overinflated.
It is worth reiterating what Jill has said. Under the Public Interest Disclosure Act, if any employer tried to do that, they would be in breach of the Act. We make it quite clear that if you are in a compromise agreement-that is about the terms and conditions of your departure, which, by the way, nurses and others are usually very happy to keep confidential for reasons you will understand-and if there are issues as to which you have a professional responsibility, that does not in any way give you a dispensation not to report it to your professional body.
Dr Porter: I would agree entirely with the comments made so far about the legality or otherwise-the enforceability or otherwise-of what might be called a gagging clause. I am aware that they have assumed a life of their own in the sense that it is an understood thing that the NHS, from time to time, enforces gagging clauses on employees. "One reads it in the newspapers. It, therefore, must be true," and not only in The Times article but in other places as well. It is unfortunate, in that that seems to conflate several different scenarios.
For example, I, too, have done some digging around in the files of the BMA. We have a very small number of compromise agreements that we have assisted medical staff to sign recently. They are mostly to do with junior doctor banding. They are always to do with entrenched employment difficulties in which both employer and employee recognise the best thing to do is for the employment relationship to end, but, instead of going to tribunal or paying expensive lawyers’ fees, it is agreed the severance shall be as such, and so forth. They usually contain confidentiality agreements in the way that Peter talked about so that the terms of the severance remain confidential. I have to say that I understand they sometimes include clauses like, "You shall not report any of this to anybody else," and lists a long list of bodies, and that has been reported in newspapers and so forth. But it is definitely not the case that there are a large number. In fact, as the BMA, we are not aware of any where the gagging clause, as such-if one calls it that-has been applied in order to keep quiet clinical concerns.
I was interested to talk with one of our senior managers today, in preparation for this, about what usually happens in these types of agreements. We are talking here about a situation where an employment relationship has very much soured. There have been multifactorial elements involved in that, some of which may or may not have involved, back at the start of it, the raising of concerns, either within the employer or outside, as covered by the PIDA regulations. But some months or years later, when both sides decide the best thing to do is to end the employment situation, is where the confidentiality comes in. It does not cover the original situation, the original raising of a concern, which might be part of the launching of this problematic relationship.
I can fairly safely say that the number of concerns we get in this area is extremely small, in terms of seeking advice, that we are aware of. But we are not aware of any gagging clauses applied to cover up clinical safety problems.
Q8 Dr Wollaston: It is certainly not how it reads, though.
Dr Porter: Indeed.
Q9 Dr Wollaston: To me, reading this clause-I will not read it out in full because, obviously, you have seen it-I can see how any health professional would feel very discouraged and intimidated from taking forward any concerns. Would it not be better, as it does not serve any meaningful purpose and is not enforceable, for the CQC to be saying very clearly to trusts, "You will not include this clause", because it could have that effect? Would that not be a better way forward than saying, "It is not legally enforceable so they should ignore it"?
Jill Finney: In our leaflet-in our communications-we make it very clear that their rights are upheld. Rather than try to deal with what you cannot include in individual clauses, we make a very clear statement that you cannot apply that type of gagging order, for want of a better word.
Q10 Dr Wollaston: Is this not the wrong way round? The effect of having that perception is still on the employee, and I can quite see how they would, reading this. The end result might be that patient safety could be put at risk if people feel intimidated in taking forward complaints. Therefore, as the CQC and the regulator, do you not have a responsibility to say to hospitals, "You cannot include that in your contracts"?
Jill Finney: We do have a responsibility to make it clear to hospitals that they should encourage and support a culture whereby whistleblowing is appropriate and to be encouraged. I am very happy to take away your suggestion that the CQC should look at that in terms of discouraging trusts from including that in contracts. That is something we can take away and look at.
Q11 Dr Wollaston: But if it is unenforceable-
Jill Finney: It is, absolutely.
Q12 Dr Wollaston: It could have the effect of discouraging employees from whistleblowing.
Jill Finney: Indeed, it could.
Q13 Dr Wollaston: Surely, if you want to encourage a culture of whistleblowing, this is completely the opposite. So why do we have it?
Jill Finney: We-
Q14 Valerie Vaz: I am horrified and have to butt in. You are all sitting there and saying you do not think this is a good idea but you all leave it in there, and that includes the BMA. Why do you allow this clause to be part of a contract in the first place?
Dr Porter: I will answer that directly. This is not a standard contract we promulgate. That contract is one that I have not particularly seen. I am aware there were one or two around.
Q15 Dr Wollaston: Would you like me to read it out to you?
Dr Porter: No. I think I am familiar with it. I know it lists a list of organisations that it says you will not take your concerns to.
Dr Wollaston: It is very clear. It says: "The Employee...will not bring or pursue or incite or encourage others to bring or pursue any further internal complaint or grievance, whether in accordance with a statutory grievance procedure or ACAS grievance procedure or otherwise or any further complaint or grievance with the following organisations"-and so it goes on-"with...a. the Information Commissioner; b. the Care Quality Commission; c. any current or former employee/officer of the Employer; d. the General Medical Council; e. the Health Professional Council; and/or f. the Nursing and Midwifery Council."
It is completely incompatible with the professional obligations of a doctor.
Q16 Chair: If I can add to that, the acting chief executive of the trust or the successor organisation that signed that contract says: "Having reviewed that clause, we agree it appears to go beyond what is appropriate. We would not therefore include such a clause in any future compromise agreements we may enter into". As regards that employer, the problem is solved. But there are how many other employers putting those kinds of clauses into compromise agreements? Peter Carter has been trying to get in.
Dr Carter: Thank you, Chairman. Last year we did 300 compromise agreements. None of that would have appeared in them. We would never sign up to that. Our issue is quite clear. The confidentiality is about the terms of the separation and we would never sign up to that. It is a nonsense. As I say, you would be in breach of the Act and it would not be enforceable. We would not go down that route at all. The confusion-
Q17 Chair: Can I interrupt there? I doubt very much whether that trust would go down that road again either. The issue is how widespread the request is to professional staff to sign that kind of agreement. Acknowledging it is unenforceable, how widespread is it and what assurance can we introduce to prevent people being asked to sign that kind of contract?
Dr Carter: May I come back?
Q18 Chair: Yes, please.
Dr Carter: We have no evidence of anyone trying to get someone to sign that sort of thing. What confuses people is that we are conflating the confidentiality clause in a compromise agreement, which we have discussed, with whistleblowing. The issue for us is that whistleblowing is still a major problem in the NHS, with people not feeling confident that they will be protected in law. We have recently carried out a survey-and at some stage during the course of this discussion I could give you some of the figures-and found that there is widespread distrust that people will be protected. I think that is one of the obstacles. I do not think it can be handled from Westminster. It has to be individual employers having the responsibility to make it clear to their employees that, if they have issues of concern about patient safety or standards, they will be protected. That is still not commonplace.
Q19 Chair: Now virtually every Member of the Committee wants to get in. We will hear Dr Porter first, then Barbara and then Dan.
Dr Porter: Thank you. I am absolutely not here to defend that or any similar agreements. If I did not make that clear enough I would like to make it absolutely clear now. I deprecate any such agreement that prevents people from speaking out about clinical concerns. I reiterate that the compromise agreements the BMA takes part in are designed to keep the terms of severance confidential and occur months, if not years, down the line from the raising of clinical concerns, if indeed clinical concerns are associated with any of them. The agreement that has been read out is nothing to do with us. It was promulgated by an NHS organisation and it is the knowledge that there are a small number of organisations, possibly, that do it, or a larger number that think about doing it, that we believe makes professional staff think twice about raising concerns if, at first, they are knocked back. There are clinical governance mechanisms within every organisation in the NHS to raise initial concerns about quality and safety. The question then, of course, is: do you encourage the use of that? We are not here to inquire into that. What happens if you are knocked back from that? If you feel there is still a concern that has not been properly addressed, where do you raise it? That is where the whistleblowing sort of thing comes in. Our surveys show that most doctors would feel comfortable about raising concerns but they are aware that there is an atmosphere that can be oppressive and that the power relationship lies with organisations and not with employees and professionals here. They are aware that there is an atmosphere in which whistleblowers can be-if not victimised, which is illegal-picked upon, spoken about and treated wrongly. It is getting past that which is important.
Q20 Barbara Keeley: We have the figures of that RCN survey here in our report to the Committee. Some 3,000 of your members were surveyed and it was found that 34% had been "discouraged or told directly not to report concerns at their workplace." That is up by 21%. If you think it is an issue, it is an issue that appears to be getting worse.
For context, we have separately, as Members of Parliament, been having reports recently. For instance, there is the one about the very poor standards of care for elderly people in the NHS and others over the last number of months. This is a very serious thing. It seems to me there is a continuum from the legal atmosphere that is created by agreements-everybody seems to be disowning them but know they are still around-through to issues like how on earth you get over that, issues like training.
If we think about the CQC, a leaflet saying to people "You are at liberty to contact the CQC" is never going to counter the power of the feeling expressed in that survey. A leaflet saying "You are at liberty to do something despite an agreement" will not counter that. I am hoping you agree with this Committee that what we should be talking about is an obligation to raise concerns-an absolute obligation. Perhaps we need to start looking at whether that is given sufficiently high priority in training and whether you are giving guidance to your members about it. To be frank, if I were in your position at the RCN I would be worried that 34% of members felt they could not disclose. That is a shocking number and it is rising. Perhaps we could start with the RCN, the BMA and then come along to the CQC.
Dr Carter: We are worried, which is why we did the survey. The findings are a really serious cause for concern. It was very interesting that 99% of the 3,000 that responded were aware of the whistleblowing policy but, as you say, 34% said that they had been actively discouraged from raising issues. Frankly, that is not good enough. If we want to prevent some of the concerns we have seen over the past few years, one of the key ways of doing that is to empower staff and give them the confidence to feel they can come forward and express these honestlyheld concerns about the standards or deficits in care.
Q21 Barbara Keeley: Are you doing that, through training?
Dr Carter: Absolutely.
Q22 Barbara Keeley: You do training, do you?
Dr Carter: No. Remember that the Royal College of Nursing is not the regulator and does not do the training.
Q23 Barbara Keeley: Do members receive training?
Dr Carter: We constantly raise this issue via our networks and forums. We instruct and inform people on how to go about raising these concerns and, obviously, we protect people. The training happens in universities for nurses in training and they are instructed on this. The Nursing and Midwifery-
Q24 Barbara Keeley: I am trying to get at whether it is happening, not whether you instruct them or anybody instructs them. Are they doing it?
Dr Carter: It is happening but I feel that training is not the problem. For us, the issue is about employers creating a culture where people feel confident that they can raise these concerns and that they will be protected. Every employer, nowadays, has a whistleblowing policy. They all sound very good and plausible, but the point is whether or not those policies are operationalised. We would wish to see trust boards demonstrating evidence that, when they have received these reports, they have acted upon them and that people have been given feedback. Most of our members say that, when they have raised concerns, they do not get feedback. I think it is a cultural problem with people not being prepared to hear about the deficits or, when they have heard, getting very defensive about them and putting the onus on the individual complainant rather than hearing what they have to say.
Q25 Barbara Keeley: Does the BMA give guidance? I think you are telling us that people maybe start off trained in this, hopefully, but then the culture of the organisation and the employer stands-
Dr Carter: Yes. May I come in? We, too, have put in a confidential hotline. We have issued a lot of leaflets and cards to members, which we do at our conferences and other events, giving people guidance on how to raise these concerns and making it clear that you are protected under law, which, again, a lot of people do not understand.
Q26 Barbara Keeley: But it is not working. The survey says they are feeling worse about it all the time.
Dr Carter: It is not working. As you can see from the survey, confidence has gone backwards. Again, Chair, if I may make a point, a couple of years ago there was a very high-profile case of a nurse called Margaret Haywood. This was the nurse who participated in the "Panorama" programme with covert filming of patients who were being abused. Margaret tried to raise it and, in the end, went to "Panorama". They produced a film which exposed this. Margaret Haywood ended up being struck off the nursing register. That sent a very negative message right throughout not just nursing but health professionals across the piece. Under the mechanism to restore that, we lodged a case at the High Court. A couple of days before it came to court, her removal from the register was rescinded. Margaret was reinstated and has now resurrected her career. That damage was significant. I would hasten to add that that was under the old regime of the Nursing and Midwifery Council. There is now a new regime, and I would not expect that. That message was very, very damaging to the climate that you would wish to create: that people can raise these concerns with confidence.
Dr Porter: Obviously, we are not responsible for medical training as such. I would refresh, very briefly, what happened-
Q27 Barbara Keeley: It was guidance I asked about.
Dr Porter: I am sorry, guidance to members. We give guidance in the sense that we have guidance sheets available for members who want to access them through our website. The primary method of member contact with the BMA, if they have a problem, is called "first point of contact." It is, essentially, a telephone line which acts as the gateway to everything else the BMA does in member representation. There are six options on the telephone line and if you push number 5 or 6-I think it is number 6-it says, "If you have any concerns about whistleblowing and want to speak to an adviser, push this button." I forget the exact figure but between 1% and 2% of our callthroughs go on that line and have indicated they want to speak to an adviser. But a number of people have pushed that by mistake or for another reason. When it turns through into the case summaries, we find that, of the 45,000 member contacts we get a year seeking specific and individualised advice, as opposed to downloads, about 70 in the last year, or 0.16%, of the case narratives actually mention whistleblowing.
When somebody contacts us, we obviously have a number of scripts. They have to be rather more extensive than some of our scripts for other things because we are dealing with such a serious issue here. We advise people along all the lines that you have been hearing about now. I will not repeat the advice because we tell them about the professional obligation and duties of a doctor-I think it is paragraph 5, right up at the front. We tell them about the other professional obligations of doctors, about whom they should be raising concerns with and how the BMA can support them, both in terms of knowledge but also, if necessary, in a small number of cases, in terms of representation. That summarises what we do when members contact us asking us for advice on this.
Q28 Grahame M Morris: I want to ask a question of Dr Porter. I was interested that Peter Carter gave that example of Margaret Haywood. From listening to your answers, Dr Porter, it seems as if everything in the garden is rosy.
Dr Porter: It absolutely is not.
Q29 Grahame M Morris: I am interested to hear you say that because we have heard a number of cases. One is the case of a BMA member called Raj Mattu, whom you may be familiar with-a former colleague of yours, a cardiologist in the West Midlands-who warned of the really serious consequences of what he saw were failures in the service. Having followed this route, he feels his career has been ruined by whistleblowing. What assurance can you give now that these new arrangements are going to protect individuals like Dr Raj Mattu in the future, who put their careers on the line to raise real concerns about the service?
Dr Porter: The first thing I should say is that I have no specialist knowledge or overview of the case of Dr Mattu and I am not going to make any comment about that because I am not in a position to. I have not been involved in the case as a case in any way whatsoever, other than reading about it.
Q30 Grahame M Morris: Has he approached you for advice and support, or the BMA?
Dr Porter: Dr Mattu has never approached me for advice and support. The BMA, I believe, has represented Dr Mattu on and off for a number of years, as have a number of other organisations. But, I reiterate, I am not going to make any comment whatsoever about his individual case, partly because it would be inappropriate to do so and partly because I, personally, do not have any formal detailed knowledge or overview which I can talk about.
You asked me if I can give an assurance about new arrangements. I cannot and it is not my place to do so. What I am outlining is the advice and support that we give to our members who are the people on the wrong end of these procedures, the people who find themselves in conflict with their employing organisations. They feel that their employing organisations have not taken their concerns seriously, even when their concerns have been raised in the discharge of their professional obligations as laid out in Good Medical Practice.
In terms of the way the NHS should be responding, you need to be talking to NHS Chief Executives and the Department of Health about that, and I know you are talking to the Department of Health later.
Valerie Vaz: Can I quickly ask something?
Chair: Yes, but then I want to bring Jill Finney in.
Q31 Valerie Vaz: Absolutely. It is on something you said previously about these confidentiality clauses. You said it is tied up with misconduct. That is the issue, is it not? It needs to be separated out. We are not talking about children here. We are talking about grownup professionals who have no other vested interest than to make sure patients are safe. So that is whom we are talking about. The idea that you think this should all be wrapped up into one contract, maybe, needs to be thought about again. If you have a settlement agreement, that is something completely different from having it as part of the contract. Could you give the Committee an assurance that these clauses are going to come out of every doctor’s contract? Secondly, if it is a question of misconduct-if you are settling before you go to a tribunal-there is something completely different known as a settlement agreement. Why not tie up the confidentiality about the settlement agreement into that contract, like a memorandum of understanding, rather than in the main contract?
Dr Porter: There may be a couple of misunderstandings here. First, these clauses are not in every doctor’s contract. In fact, they are not in any doctor’s contract. Take, for example, the terms and conditions of service that I work under.
Q32 Valerie Vaz: You can categorically say that it is not in any doctor’s contract?
Dr Porter: I cannot say it is not in any doctor’s contract, given that NHS organisations are now free to reach any contract they like outside national terms and conditions of service. I can assure you that it forms no part of any national model contract that we promulgate or that we know is promulgated or that we would ever agree to. In fact, on the exact contrary, what it states in my contract of employment, which is the same as that of most doctors working in the NHS, is that a practitioner shall be free, without prior permission of their employing authority, to publish, make lectures and write articles in such manner as they see fit. I forget the exact quote, but it is something like that. It appears in every individual doctor’s contract.
What you are talking about is agreements that form no part of the contract because they are so small in number, and they are pulled out by trusts at the end of a protracted employment problem as a means of trying to resolve that problem.
Q33 Valerie Vaz: That is what I am saying. It is somehow tied up. There is a public interest issue, which is why doctors raise these things. I think, in the public interest, it is important that it all gets out there. We are talking about 2011, postBristol, postShipman and all these inquiries and we have only now got a whistleblowers’ hotline from the CQC. That is the issue. The fact is that my colleague has read out a clause that is currently in a contract, is it not?
Dr Porter: Can I reiterate that that was an individual contract proposed-I presume but do not know, and you would have to ask them-by an employing authority, which is not the BMA, to an employee.
Q34 Valerie Vaz: So you only get involved when a doctor is upset about something. You do not look at the general contracts for doctors at all.
Dr Porter: Of course we do. We negotiate them all the time. But they contain no gagging clauses or confidentiality clauses.
Q35 Valerie Vaz: First, you say you are and then you say you are not. I am not quite sure. I want reassurance. Could you make sure that clause is never in a doctor’s contract; that, if there is a misconduct issue, it does not get tied up with whistleblowing; and that there is a separate settlement agreement, or a memorandum of understanding when a settlement is made, in relation to a conduct case that is stopped before it goes to tribunal? Could you reassure us on that?
Dr Porter: The best answer I can give you is that I cannot do that. We do not regulate doctors. We do not employ doctors. It is NHS organisations that do these contracts. I am sorry, it is not us.
Q36 Valerie Vaz: But can you advise them?
Dr Porter: That is a different question. If a member-not an NHS organisation, because they would not-came to us asking for advice on this, we would give them the same advice as we publish on our website, and which you can download and have a look at, which regards doctors’ professional responsibilities as being to make sure that clinical concerns are raised. We have gone into all that. They might then ask us about the wisdom of signing such an agreement. We would advise them on an individual basis. Sometimes it is fair to say that a doctor might have been driven to such a pass, to be so stressed out by this, and to so want to get out of it that it might be in their best interests to agree to signing an agreement which keeps the terms of the severance confidential. We would not and do not advise people to sign confidentiality agreements in order to keep patient safety matters secret. I want to emphasise that we are not the ones who are coming up with gagging clauses. I think you are barking up the wrong tree here.
Q37 Valerie Vaz: I am not suggesting that. I am not suggesting you are coming up with it. I am saying that you, within your silence, are not saying anything and have not done anything. You must have come across these contracts before. You say you have. Why have you not done something? Why have you not raised it? Why have you not been horrified on behalf of your members? Why have you not protected your members? We have been emailed by doctors, good, honest people, who have been affected by all this. They have been sacked because they have raised something-a huge issue. Mid Staffordshire is going to come out.
Dr Porter: If and when our members come to us on this, we do protect them. I am sorry, I should start by referring to all of the advice that we give and the various things I have talked about. If and when a member contacts us about this, we do our very best to protect them and represent them. That is our stockintrade. We are a professional association and trades union. That is what we do-and do, I might say, very successfully.
In this, we work with what are called the medical defence bodies. There are about three or four of them active in the field. We have a memorandum of understanding with them about the matters which we give individual representation on and which the medical defence organisations give individual representation on. I can assure you that any doctor who finds himself in a problem like this, assuming they are one of our members, which most doctors are, and assuming they are represented by an MDO, which most doctors are, can be absolutely assured of professional advice and a representation service that is second to none.
Valerie Vaz: I am asking you to go further, not just sit back and silently accept it. You have a duty to your members to do that.
Q38 Chair: Can I bring in Jill Finney for the CQC?
Jill Finney: I was trying to make the point that CQC probably plays a bigger role at the beginning of the food chain than at the end. While I absolutely understand this debate here is about when a doctor or practitioner is at a point of despair and we are down to compromise agreements in a serious case of negligence, the big role we have-and it is to Peter’s point-is that we can spot when culture is a challenge, and it is almost that. Culture does not often look like complaints about whistleblowing policies. Often you can talk to practitioners who have witnessed poor care and who are fully conversant with the whistleblowing policy but it does not enter their head, necessarily, to use a whistleblowing route. That can be because they have learnt to live with complacency. It can be because behaviour is normalised. It is for a whole variety of reasons.
I think CQC’s role is to hold the mirror up to organisations to say, "Your culture looks like this. This is why you have staff learning to live with negligence and poor care." If, in fact, you have reached the point of-not compromise agreements-serious cases of whistleblowing, or indeed compromise agreements where you have tried to achieve gagging clauses, then there is a fundamental failure. Our role is to make sure it should not get to that stage, and that we hold the mirror up early enough to say, "The culture of this organisation is a real cause of concern."
Q39 Chair: Can I ask you a direct question about that? If you are inspecting a healthcare provider, is it one of your routine questions to go through instances where professional staff have raised concerns in that provider since your last inspection? That is question 1. Question 2 is: if the answer to that question is, "No, there have been no concerns raised," what would be your conclusion?
Jill Finney: I will refer to Richard on the second point. If we make an unannounced visit-and our visits are unannounced-then all of those will include interviews with patients and with staff. Both those individuals tell you, in fact, a great deal about the quality or otherwise of that organisation. Once you have identified there are causes for concern, you then decide to peel that onion back and think, "We need to go further into this because staff are telling us things which clearly demonstrate they have concerns."
Q40 Chair: Before you answer the second question, can I ask you to answer the first question directly? I accept that talking to patients and staff is part of assessing the culture, but I would have thought it would be a very specific question for the audit trail within the organisation: can you tell us how many instances there have been in this organisation of concerns having been raised, and what you have done about it?
Jill Finney: That would be a routine question, absolutely. We look at incident management and we look at reporting of incidents and how trusts have learnt from incidents. That would be a fundamental part of our inspection.
Q41 Chair: How would you react if the answer was, "Yes, of course we do, but there aren’t any"?
Jill Finney: We would be deeply suspicious. That is when we begin to peel that onion back further to say, "That is very unlikely indeed. Now let us look at your policies and procedures. Let us see how you deal with untoward incidents. How do you manage them? What action do you take?" If there is no evidence of any learning from untoward incidents, that is a fundamental concern. Richard, I am sure you could elaborate on this.
Richard Hamblin: Even before we go in, we have a feed coming through of the notifications of serious untoward incidents being made by each NHS trust. We are much more concerned about the people who are abnormally low in their reporting than we are with the ones who are reporting more highly, particularly where you have a mix of the higher reporters who have quite a lot of less serious incidents being reported. This points to an open culture with people willing to learn and recognising, even with quite a low level of concern, that things need to be reported, as opposed to those who have very few and they are all very serious. That starts to point to a culture, precisely as Jill says, where you peel back the onion and there is a lot there that we need to get through. So we are more worried, as I say, about the low reporters.
Q42 Chair: I have one final question and then I will call in the delayed Dan. As you are assessing that culture, do you put them in boxes or do you comment in plain English about the ability of professional people working in that organisation to raise concerns and to comment on the standard of care being delivered? Do you raise it in language that a journalist is likely to report in the local newspaper?
Jill Finney: In the compliance report it would be quite clear that staff were reluctant to raise concerns. I do not think we would hesitate to put that in a compliance report. It is a fundamental issue.
Richard Hamblin: It is worth saying that one of the specific standards we measure compliance with is the management of quality. That is a key part of picking up on this.
Q43 Grahame M Morris: Could I ask a quick question before we move off this subject, Chairman? In relation to the inspection regime, would you ask specifically about these gagging clauses-or whatever term we are using for the settlements? Would you, as part of your inspection, ask if these were regularly used by the employing authority? Then, would you ask to see one as an example? Would you say, "Do not use this"?
Jill Finney: That comes back to how far you would have a concern before you got to that question. You would be quite a way down the line before you got to a question whereby you said, "Could I have a look at a compromise agreement to see if, in fact, you have tried to prevent, essentially, a disclosure?" If we thought there was a concern as to that, there would be nothing to stop us asking that question and going into that level of detail. Could I quote a case where we have done it to date? I could not.
Q44 Grahame M Morris: Could I ask you about that? You said there would be nothing to prevent you from doing that, but, as a matter of routine, would you ask an employing authority whether they use these compromise agreements?
Jill Finney: There are so many more routine indicators to advise you whether that sort of culture is prevailing or not before you ask such a specific question. Usually, the signs of a closed culture are quite obvious.
Q45 Grahame M Morris: Routine use of these agreements would be one indicator of a closed culture, would it not? You could easily get to the nub of that quickly by asking them and then asking to see a copy or investigating further by discussing with staff.
Jill Finney: Indeed, you could.
Q46 Grahame M Morris: Is that a case for reflection?
Jill Finney: I think it is, absolutely. There is no reason why we could not, given that there seems to be a prevalence of this and it is an emerging concern-and I would certainly have to check this-go and ask that specific question.
Grahame M Morris: Thank you.
Q47 Dr Poulter: I want to come back to some of your opening remarks, if I could, to begin with. I was actually quite alarmed, and, Jill Finney, I want to come to your remarks specifically. It seems an absolute contradiction in terms to say, as people have said on the panel today, that you believe in openness and the importance of doctors and nurses and other healthcare professionals whistleblowing their concerns about care and, at the same time, having any sort of gagging order or compromise agreement, except, possibly, where there are commercial issues involved. One can understand that commercial sensitivity may be important. I was very concerned that that inherent contradiction in terms was not picked up.
In your opening remarks you used words to the effect-and the record will show this-that, "While we accept it is happening at an individual level, we are now writing out to say that, whatever these compromise agreements or gagging orders may say, it is still inherent upon doctors or nurses and other healthcare professionals to flag up quality concerns." How can you reconcile the two? There is not the distinction Peter Carter made earlier on that gagging orders or compromise agreements are different things because they can be exactly the same thing. If someone has been made redundant because of a service reconfiguration, it may be that there is a legitimate public concern in the area-a healthcare concern-that that service reconfiguration is made for financial reasons rather than for the benefit of patients. Inherently, I do not understand where you are coming from. Either gagging orders and compromise agreements are wrong or they are not.
Jill Finney: There are two specific examples. One was criminal activity and the other was serious concern around health and safety. Both of those areas of concern were under protected disclosure.
Q48 Dr Poulter: I do not follow. I think it is very difficult for some of the public to say, "Do you believe that gagging orders and compromise agreements are wrong or not?" Inherently the message it sends out, if you are legitimising them, is that it is all right for a trust to try and gag a doctor, nurse or a healthcare professional when they are made redundant-or for whatever other reasons-from speaking out. Is that right or wrong?
Jill Finney: I think, as to Peter’s point, which is the purpose of the compromise agreement-
Q49 Dr Poulter: No. I want a simple answer. Is that right or wrong?
Jill Finney: If there is any evidence of criminal activity or a compromise-a serious risk to health and safety-then a doctor should speak out.
Dr Carter: Dr Poulter, there is a fundamental misunderstanding here, and it is probably my deficit in not being able to convey this. Let me be unequivocal about this. The Royal College of Nursing would never sign up to any clause which prevented a nurse expressing their concerns about a failure in standards of care. We have never done that and will never do that. We signed 300 compromise agreements last year. That was not about failing standards of care. That would be a situation where, in an employment relationship-let us say that there is a major dispute between an individual and their employer-we have got to the point where neither side can win or whatever and the decision is taken, usually by the employer, to say, "Look, how can we settle this?" It is often when we have lodged papers for an employment tribunal. It is then, if you like-and I will use the term-that a business decision is made, and it is always done with the interests and the agreement of the nurse involved. The trust might say, "This is what we think is the right financial remedy," and it is that which is kept confidential. It is the financial sum.
If, along the way, the nurse had said to us, "You do realise they are leaning on me because, a few weeks ago, I raised concerns about standards of care," we would say, "A compromise agreement is off the agenda. You raised concerns and now you are being leant on. We will now deal with that." We would not go down that route at all. Does that help?
Q50 Dr Poulter: Yes, it does. That is a very useful clarification and a good point. But it is contradictory to what Jo Finney said in her opening remarks and what she has just said. What we need to see-the articulations Peter Carter just made, which are in contradiction to what has been said by Jill Finney and the CQC-is that there is a concern and the professional bodies would never believe it right there should be any compromise on a doctor, nurse or healthcare professional’s ability to speak out on issues of patient safety. I think it absolutely essential, as I say, if the CQC are to carry credibility from this, that you can explicitly say it as well, spelling it out very clearly to all healthcare organisations that employ.
Jill Finney: I am very happy to spell that out very clearly because I absolutely do agree with Dr Carter.
Q51 Dr Poulter: You do?
Jill Finney: I do.
Q52 Dr Poulter: You can confirm that.
Jill Finney: I can confirm that, absolutely.
Q53 Dr Poulter: Your record earlier was different from that. You have now changed your position.
Jill Finney: I apologise for the misunderstanding, but I do agree with Dr Carter.
Chair: Dr Porter wants to come in and then Andrew, who has been extremely patient.
Dr Porter: Thank you. I wanted to confirm that the number of compromise agreements the BMA has put in place follow a similar path. Those of our employees who are allowed to advise on and negotiate compromise agreements are a small number of our whole fractions. I think it is something like one in seven of our most senior and experienced members. One of the reasons we limit the number of staff able to advise on such agreements is to make absolutely certain we do not-and never do-put ourselves in the position of advising doctors not to follow their professional obligations about raising concerns where necessary, and so forth. Compromise agreements and their use has to be distinguished from what has been popularly called gagging clauses. No professional body would agree a gagging clause to hide a patient safety problem.
Q54 Andrew George: A lot of the discussion, especially with the opening questions-and indeed both Dr Porter’s and Dr Carter’s last responses are particularly helpful-seems to me, at least, to be based on an assumption that there is a very clear line between grievance or disciplinary issues and concern about clinical or patient safety. In your last answer, Dr Carter, you were very clear that, if it became apparent this compromise agreement was going to be reached in circumstances where, previously, concerns had been raised of a clinical or patient safety nature, you would have pulled out of that agreement.
Dr Carter: Absolutely.
Q55 Andrew George: But I think you know that, in many circumstances where either a grievance or a disciplinary matter arises, there may well have been a professional, a clinician, engaged in using the proper channels-not blowing whistles or doing anything else in the public domain-to raise concerns about patient safety, patientstaff ratios, those kinds of things and getting not only an unsatisfactory response but finding themselves faced with a disciplinary action, either trumped up, because of concerns that they were going to be causing trouble, or for some other reason. They will then be faced with accusations questioning their competence and their clinical judgment.
In those circumstances, where a compromise agreement is brought forward, I do not see it as a gagging clause so much as a bribe-a payoff-to get out of the way because, "We are afraid that you might otherwise raise concerns." Do you not see?
Dr Carter: I do, indeed.
Q56 Andrew George: I have made a rather long case, but a lot of the evidence or claims which you and Dr Porter are making seem to be based on an assumption that there is a very clear distinction between the two. However, you must accept that, in those kinds of circumstances, surely, there is a blur between clinical and patient safety and grievance and disciplinary considerations.
Dr Carter: May I come back? I accept entirely what you say. I could well imagine-albeit I hope it is a small number of employers-people who think, "She is a bit stroppy, always raising these concerns," and then, at some stage downstream, thinking, "There has been an issue. Let us deal with her on this" because she is seen as difficult. I am saddened to say that every day, somewhere in the UK, we are representing people where you are in that twilight zone of saying, "Although you have raised a punctuality issue"-or something like that-"we think there is an ulterior motive here. This is because, a few months ago, she made life difficult for you. She raised concerns about safe staffing levels." That is where you need good quality employment relations officers and lawyers, which we have in the College, to try to disentangle that and get to the heart of the matter.
One of the things I have touched on already in this afternoon’s session is the issue to do with whistleblowing. I know that is not primarily what we are talking about, but we still have regular examples of nurses who have raised legitimate concerns and been dismissed. We had one in September, in a private nursing home, where a nurse-and I have checked this out-who had glowing appraisals raised two issues. One was the inappropriate administration of medication and another was where a patient-I am very saddened to say-was put out in the sunshine as a punishment. This was a nurse, as I say, with a glowing track record. She raised this and was summarily dismissed. We took the case up, we took it to an employment tribunal and we won. We won easily. The private nursing home was suitably reproached. That nurse went through a very difficult period, as you can imagine. I am under no illusions that, sadly-and, as I say, I hope it is a small number-there are employers who do this. What they should have done is taken this nurse’s concerns seriously and investigated, if only to exonerate themselves.
Q57 Andrew George: If, in those circumstances, the nurse had been offered a bribe-sorry, a compromise agreement-you would not know about it. The bribe-sorry, the compromise agreement-may be offered before you arrive on the scene.
Dr Carter: Absolutely. If we do not know about it, we cannot do anything about it.
Q58 Andrew George: You described it as a "twilight zone", as it were. It is very helpful to at least have it acknowledged that, in fact, it is not a clear line and there is a blur-a twilight zone-between grievance and clinical concerns.
Dr Carter: Indeed. Sitting here, it can appear very clear cut. However, when you are in the middle of them, a number of things get conflated and it can be difficult. It is an occupational hazard for a union that you are, often, so dependent on your member telling you what has happened. It is an occupational hazard for solicitors. You need your client to give you as clear an understanding of what has happened as possible and not leave anything out. If we have a nurse somewhere-a member-who does not come to us and an employer comes along and says, "We have had enough of this. We are going to give you N number of months’ wages," we would always say, "Come and take advice from us." I am sure, statistically, someone must have accepted a deal like that, but we would not countenance it.
Q59 Andrew George: Dr Porter, is that pretty much the same in the circumstances of the BMA members?
Dr Porter: Pretty much, I think. If there are agreements we do not know about, we do not know about them. You probably know that, to be lawful, a compromise agreement has to have the signature of the professional adviser of the employee on it, for example. If anything is done outside that situation, we would know nothing about it.
Andrew George: Thank you.
Q60 Chris Skidmore: In terms of the compromise agreements that both the BMA and the RCN have arranged and helped sort out for their members-and there is a huge variation in these agreements, naturally, because they relate to individual circumstances of the employer and employee-to what extent do you have a pro forma or standard framework which you will use? Do you have a separate framework for the RCN or for the BMA? Do you communicate among yourselves on whether to try and create a standard template to avoid the grey area that other members have talked about?
Dr Carter: I am going to declare that I have never read the BMA’s compromise agreement and I do not know if Mark has read one of ours. I would take a punt, though, that they are not dissimilar. There is a core set of principles.
Q61 Chris Skidmore: I also want to move on to the CQC. I know that, in terms of outcome 16 of your essential standards on whistleblowing, you have said that the role of the CQC is to: "Make sure there is a confidential way for staff to raise concerns about risks to people, poor practice and adverse events. Staff understand the reporting system and feel confident to use it, without fear that they will be treated unfairly as a result of raising a concern."
The CQC has also said, in the written evidence to us at paragraph 15.10, that there is a great deal of complexity: "As a result of this complexity, CQC has neither the remit nor the capacity to routinely monitor how effectively organisations are developing an open culture."
I wanted to put it to you-partly to Mr Hamblin, who is director of intelligence in the CQC-whether you have had any intelligence on the CQC’s involvement with compromise agreements. Maybe we in this room could reach some sort of compromise agreement ourselves that the BMA and the RCN end up in talks with the CQC. We could move towards a point where we might be able to recommend, at some stage, that there should be regulation or a developed legal framework that, regardless of all these organisations that have been ruled out from having members talking to them-as, for instance, in the Lewisham Trust case-the CQC could regulate to produce a framework for any compromise agreement then going forward.
Personally, I can understand there are times when compromise agreements are necessary, and I would not call them a bribe or say they are gagging clauses. For the sake of the trust and the NHS they are necessary, in places, to ensure that we solve disputes. Surely, it would be the responsibility of policy makers here to be looking at how we can maybe give the CQC extra teeth and to create a standard compromise framework that would ensure this does not happen in future.
Jill Finney: Did you want to answer the first question, Richard?
Richard Hamblin: In terms of compromise agreements themselves, as Jill pointed out, it is the sort of thing you look for intelligence on once you are inspecting rather than routinely collecting. That is largely because of issues of confidentiality and so forth. There are probably better or easier measures to find the sense of openness of culture more routinely. Notifications is one we have spoken about.
Interestingly, some of our interactions with organisations are very telling of the openness of their culture. A particularly good example is the investigation of mortality outliers which, as some of you may remember, played a part in uncovering the Mid Staffordshire incident. What was very clear was there was the closed nature of culture in response to it, arguing the toss about figures rather than being open to what they might be saying and that sort of thing. What is interesting is how much the culture has moved on in three years. As to that very defensive sort of response, I think I have seen one example of that in the last two years. Typically, people are now investigating before we do. It really has changed the culture there.
Going back to your initial question, absolutely it is something that we would use as intelligence. But it would be down the line, once we have already got a case rather than as a screening tool.
Q62 Chris Skidmore: What about moving forward?
Jill Finney: We have improved information sharing with the professional regulators, and I think Dr Carter would reinforce that. We did not share, hitherto, enough information with professional regulators and there is ample opportunity to do more of that than we have done. This type of evidence we could talk about more than we have done. We have talked about information sharing relating to the reregistration of nurses. If we come across nurses that are not reregistered we report it, and vice versa, if you come across nurses that are not registered you report it. We are in that space, but we would all agree we could do a lot more and look at this sort of area as well, to see whether it is fruitful to begin to think about sharing more information about when you are at the end of the line. When you are at the end of the line, then it has gone too far, undoubtedly.
Q63 Chris Skidmore: What about creating a framework or guidance that the BMA or the RCN could rely upon? It seems to be a shattered mosaic, at the moment, of various different agreements and then you get this fairly passive situation of, "We write to Lewisham". They write back and say, "Whoops, yes, we did not mean to put that in. We will take it out." That is not a situation we want to be in because it is a reactive situation. We want to be on the front foot rather than the back foot. Would you not think the CQC could play a role in helping? You have your own compromise agreements, but would you welcome that from the CQC?
Dr Carter: I am waiting for the nod from the Chair.
Chair: Was that a direct question to the CQC first?
Chris Skidmore: I did not quite want to-
Chair: Or was it a rhetorical question?
Q64 Chris Skidmore: No. It was a question about the CQC having extra teeth on this. You did not quite get to grips with it.
Jill Finney: If the CQC’s role is to maintain essential standards of quality and safety, we have to think about the best way of doing that. One of the best ways of doing that is making sure there is an open culture in any provider environment. I would like to be able to say, "How do we work towards making sure that that open culture exists?" It is Richard’s point. It is getting better, but it has a long way to travel. What do we need to do to make sure that we do not end up at the compromise agreement stage whereby you are trying to gag an employee about not being able to speak to the regulator? It is quite absurd, I agree.
We would like to say: let us take your challenge away, think about how we work with professional regulators and see whether we can try and deal with this ridiculous position that we find ourselves in, because we should not be here.
Dr Carter: I was going briefly to say that I think we should take up your suggestion. The organisations should meet and try and get some commonality on this so that there is a congruence of how we are all approaching these issues.
Dr Porter: There is an important thing that we have to remember here. Most trades unions in most sectors of employment use compromise agreements. It is a standard method of terminating employment, albeit not a heavily used method, but a standard method in difficult cases. As far as I am aware, it is used in all sectors, not only in the NHS. It is covered by legislation and, because it is covered by legislation which is extraordinarily detailed, there is a list of things that should be considered, that have to be done and that cannot be done. To that end, there is already-Peter mentioned this-an assumed commonality between the agreements that we and the RCN might use, and that is where it would come from. The slight difficulty I have is where we go on from that. In asking the CQC to regulate the gagging clauses-the ones that go further-you are asking the CQC to regulate something which is unlawful. I see that as a little bit of a contradiction in terms. There need to be means to find out where this happens, because it is not acceptable, but I am not sure we can regulate something that is already forbidden by statute.
Q65 Chair: The compromise agreement is not forbidden by statute.
Dr Porter: No, but going beyond that, the gagging clauses.
Chair: Absolutely. But it is the wording of compromise agreements that I think Mr Skidmore was asking about.
Q66 Chris Skidmore: Yes. I was almost alluding to the fact that in the text of every compromise agreement, whether with the BMA, the RCN or whoever, the CQC would encourage every compromise agreement to abide by outcome 16 of their essential standards. If that bottom line was there, that would give the freedom for the employee, if they needed to, to feel that they could go and report whatever malpractice they felt was outstanding without fear.
Jill Finney: We should highlight that more in our communications. We could definitely do that.
Chair: Mr Morris has a quick question, then Barbara Keeley, then Sarah Wollaston and then we need to move on.
Q67 Grahame M Morris: I am going to be very quick and address my question to the representatives from the CQC. Doctors and nurses have a professional obligation to report patient safety issues not to their trade unions, with all respect-presumably they may come to you-but to the GMC in the case of doctors, and the Nursing and Midwifery Council in the case of nurses. Do you liaise with the GMC and the NMC and do you think, as an improvement to the current arrangements, as a matter of course, that those organisations should report such incidents to you directly?
Jill Finney: I can give you two examples. There are two trusts where we have worked extensively with the GMC where we had concerns about some junior doctors. The GMC intervened in both those trusts and dealt with the issue which was emerging there. With regard to the NMC, there are two examples of where we undertook inspections with members of the NMC. We take those experts in, because they are able to talk to staff in a way that we are not, to tease out these very issues.
Q68 Grahame M Morris: Is that a matter of routine or do you think there should be an obligation on these two bodies to liaise with you? It is good practice-
Jill Finney: Yes, I think it is good practice.
Q69 Grahame M Morris: But would it tighten things up to place an obligation on them to advise you of these incidents?
Jill Finney: They should. I would say that if the NMC was aware of intimidation at a provider level then they should let us know that is going on.
Q70 Chair: But do they?
Jill Finney: Do they routinely? I do not think we could say that, at this point in time. I do not think we could say, "Yes, they definitely do." There are examples of them doing it and there are examples, absolutely, when we have taken members out with us on inspections and they highlight instances, such as you have described, in a way that it would be much more challenging for us to find. We should do a lot more of that. The dignity and nutrition review that we did absolutely got to the heart of the matter because we had those experts with us. You do get to the needle in that haystack faster when you use experts. Yes, it ought to be more routine than it is.
Q71 Barbara Keeley: We have discovered some useful things. The CQC do not specifically ask about compromise agreements and look at the wording, when perhaps you should. Also, there do seem to be, from what the RCN have said, links between whistleblowing and grievances by members-members being sacked after reporting concerns. So there is some kind of link there. I think it is quite important if you can help us by saying what your reaction is to the RCN survey. I am quite concerned about the numbers that were in your survey-that one third of their members are either discouraged or told directly not to report their concerns at the workplace. That figure of one in three is up from one in five, just two years before. I know that we have largely got into this session because of compromise agreements, and I think there are issues there, but I want to have your reaction on that because there are links. All these things are clearly linked. How do you react to that?
Jill Finney: From our side, from June to November this year, we have had just over 2,000 whistleblowing calls. We had 400 last month. The number of whistleblowing calls that we are receiving is definitely rising. But, when you look at these survey results, you would say, "In which case, are we receiving enough whistleblowing calls?" If that is the case, I would say we have a lot of awareness-raising to do. We have done some. My leaflet example was not meant to be taken entirely out of context. I think we have-
Q72 Barbara Keeley: Could I stop you there? I think it is way beyond awareness-raising. We talked earlier about training, but awareness-raising and leaflets do not go there really, do they?
Jill Finney: No, I don’t think-
Q73 Chair: Can I reinforce that? It is not about safety valves, is it? This is about professional obligation-in other words, their registration is at risk if they do not, rather than making it easy because it is the right thing to do.
Jill Finney: Yes. I think that is right. That is why we come to the point that this is inevitably a cultural and leadership issue. We often find the problems in this area are because the leadership has not created a culture whereby this is encouraged; indeed, it is actively discouraged. This comes back to the CQC’s role in holding the mirror up to an organisation to say, "This is how your organisation is performing. This is the culture you are delivering. If your board is not discussing it, your board is not looking at it and your CEO is not walking round those wards-
Q74 Barbara Keeley: But recognising that a chunk of this is hidden anyway because of gagging clauses, compromise agreements and a third of people-nurses at least-who are not even going there because they are worried about it.
Richard Hamblin: But some of that is exposed by the fact it is being hidden, if that does not sound too paradoxical. One is looking at reporting-notification of serious untoward incidents, and so forth-alongside what you see in terms of outcomes for patients and experience reporting for patients. If those two do not align-when the recorded outcomes and the recorded experience is poor but you are not seeing the indication of the reporting of serious untoward incidents-that is when it gets to, "This is the place where that is hidden". Dr Carter, I would be very grateful if you could provide us with some of the data that underpin the survey. The interesting thing here, for me, is what the variation is and where those nurses came from. If we can get into that sort of thing, it would be phenomenally helpful to respond to that.
Dr Carter: I certainly will.
Q75 Valerie Vaz: Is that not routine between the two of you?
Dr Carter: We do meet regularly with-
Valerie Vaz: You have to come to a Select Committee to meet.
Q76 Chair: You should come here more often.
Dr Carter: It is the highlight of my year, and coming up to Christmas. Yes, we do meet, but this afternoon, certainly from our perspective, has been very helpful. It has brought out that there is work to be done on this. Without, Jill, in any way trying to diminish the issue of the leaflets, I do agree with Barbara Keeley that this is about culture, ownership and personal responsibility, both on individuals and on people running organisations. We would expect to see trust boards discussing serious untoward incidents and discussing where people have raised concerns, if only to say, "Look, a nurse"-or a doctor or whoever-"has raised these concerns. We have investigated it and it is found to be wanting." That is the sort of thing that we want. You will find there are times when it is certainly not found to be wanting and we would hope to see the appropriate action taken.
Jill Finney: Dr Carter, that is exactly what I said. To look at the culture, you have to look at boards and leadership to see whether they are discussing it and whether it is being dealt with or not.
Dr Carter: Yes.
Q77 Chair: Dr Porter now, or shall we go to Sarah Wollaston?
Dr Porter: I will give the time to Sarah rather than repeating the answer, if you see what I mean.
Q78 Dr Wollaston: Do the panel think that culture of openness should extend right up to the Department of Health? If so, I want to read you an interesting clause and ask how you feel about whether a doctor should sign this clause in a contract: "they should avoid associating themselves with recommendations critical of or embarrassing of the Government. They should also exercise discretion in any speeches or broadcasts outside the House." Do you think, if a doctor were to sign, that would constitute a gagging clause?
Dr Porter: I have the strong feeling that I am being invited to comment on something in your contract.
Q79 Dr Wollaston: It is a contract that Parliamentary Private Secretaries have to sign if they want to work in the Department of Health. I thought I would throw that in as an example.
Chair: If I may say so, that is an interesting footnote but slightly outside the scope of this inquiry.
Dr Porter: I will give that a serious answer. Any doctor who takes on any additional role, whether it is as a clinical manager, a nonclinical manager or a Parliamentary Private Secretary, and retains their registration remains bound by their professional obligations. I would not give too much credence to people who try to promulgate contracts, in whatever field-and I am deliberately not commenting on that one-which would seek to make a doctor avoid their professional obligations because that would be completely wrong.
The one thing I would like to finish off by saying, if that is all right, is that we are talking here about the serious end of what should be routine in professional practice. We have talked about how it is a professional obligation. The point is that that obligation is not something punitive. It is not something which is intended to remind people of the punishments they get if they do not do it. It is intended to remind people that it is one of the basic duties of a doctor and of a nurse and of other clinicians working in the National Health Service. The culture whereby we continually report errors, omissions, problems and incidents is the culture upon which the learning nature of health is built and upon which safety can be improved in the future. We absolutely must do everything at all times to try to keep that open.
Coming back to the part of your question about the Department of Health, of course this should extend upwards to the Department of Health. I should say that, if you look for advice about this area on the Department of Health website, you will find a superb exemplar of good practice that refers to charitable and public work in this field. It is an example that I wish every NHS organisation would find itself able to follow all the time. Sadly, they do not and that is why we are here this afternoon.
Q80 Chair: It is nice to hear a BMA endorsement of the Department of Health. I was going to draw it to a close. Can I have a quick footnote? The point you were making about this being a cultural issue that extends beyond the serious untoward incident to routine professional practice seems to me to be a very important one. It is one that the Committee has talked about in the reports that I referred to at the beginning of this session. Is that undermined if it is always seen as whistleblowing? Is there not a danger that the whistleblower is somehow seen as the difficult customer, whereas what you described, Dr Porter, is routine professional practice for every doctor, nurse, midwife and other regulated professional in the Health Service?
Dr Porter: There is a difference between them. The problem here is that the terminology is not clear-cut. Even where it is clear-cut in the Act and what it refers to are the protections, people use the terms interchangeably. Imagine that now, instead of telling you of these problems, I stood up and actually blew a whistle. That is the metaphor that tells you what whistleblowing is intended to be like. It is intended to be a very public demonstration to bring people to heel. In that, the person or organisation that is having the whistle blown about them feels extraordinarily sensitive. I am sure that is part of the impetus to sometimes try to keep things quiet-he said delicately and not trying to revisit previous discussions.
There is a slightly odd paradox here, in that I have talked about the way in which professional practice and the NHS, in general, should be based on a culture of openness and a culture of reporting. Whistleblowing itself, when you look at the PIDA, is, in effect, a failure of that because it is the necessity to take the concern outside the organisation’s usual mechanisms. In that regard, I would not say that I would like whistleblowing to be an embedded part of the NHS culture because it is a failure of what should be our normal, routine and everyday clinical governance mechanisms. But, because we know that those mechanisms do fail from time to time, we absolutely have to have it in place. Also, because it is so much more important and there is so much more emotional investment for the employee, the practitioner or the clinician who is having to blow the whistle, we have to give them a correspondingly greater amount of protection. The Act tries to do that. I am not sure that our embedded organisations do.
Q81 Chair: Does anybody else want to comment on that?
Dr Carter: Can I briefly make the point that the way the notion of whistleblowing has arisen over the past few years is unfortunate. Mark has very clearly outlined why and the difficulties with that. But it should be encrypted into the culture. As I said earlier on, I do not think that can ever happen as a result of an Act of Parliament. That can set out the principles but it has to be local ownership. This afternoon, for understandable reasons, it has been predominantly about the NHS. There is a huge sector out there which is not NHS and I think there are some major issues there.
My final comment-and I know this will not be lost on the Chairman-comes from Sir Ian Kennedy’s report on Bristol, which was such a seminal piece of work. You probably know what I am going to say. The key thing, which everyone should know, is that Sir Ian Kennedy famously said it was not that no one knew what was going on in Bristol. Everyone knew. The trouble is no one thought it was their responsibility to do something about it. From the most junior healthcare assistant and junior nurse, right across the spectrum, everyone should be clear that they have a personal responsibility if there are issues of concern.
Jill Finney: What we find, time and again, is that when our inspectors talk to staff they will repeat significant amounts of incidents of poor care but it does not enter their head to report that incident or indeed to take it further. Yet they will tell the inspection. Unless they are really prompted, they do not think to do that. If we get incident reporting and encouragement about incident reporting right then it does not get escalated and escalated.
Chair: Thank you very much indeed for your contribution.
Examination of Witnesses
Witnesses: Gavin Larner, Director of Professional Standards, Department of Health, and Matthew Fagg, Deputy Branch Head, Professional Standards Branch, Department of Health, gave evidence.
Q82 Chair: Thank you very much for joining us. I think I am right in saying that you both, in truth, sat through the evidence from the previous panel so, hopefully, this will allow us to build on that evidence rather than simply repeat it. Perhaps I could ask you to begin by introducing yourselves and the role you play in the Department.
Gavin Larner: I am Gavin Larner. I am Director of Professional Standards at the Department. I cover the policy and legislative framework for the professional regulatory bodies like the GMC and the NMC. I also cover whistleblowing, which you have been discussing today, and other matters which the Select Committee have taken an interest in like medical revalidation, the regulatory arrangements for healthcare support workers and the practicalities of regulating Chinese and herbal medicine practitioners.
Chair: David Tredinnick has missed his chance.
Matthew Fagg: My name is Matthew Fagg. I am Deputy Head of Professional Standards Branch at the Department.
Q83 Chair: Thank you very much. I would like to suggest we begin by asking about the very specific contracts that led to this hearing and then, perhaps, move on into the broader issues about raising concerns and whistleblowing and so forth. You heard very clear evidence that the clauses, which Dr Wollaston read out, that were written into a small number of compromise agreements, in the opinion of the previous panel, were quite clearly contrary to law, never mind good practice. Is there anything you would like to add to that to start the process off?
Gavin Larner: Absolutely. Most of us absolutely agree that such clauses are inconsistent with the Act and are not acceptable. As a result of The Times article, I wrote, on 28 November, to the two trusts concerned to draw this to their attention and to ask them to review their policies. Ministers have also agreed that, following this evidence session, we will write to all NHS organisations to remind them of their responsibilities. Monitor will be writing to foundation trusts on this matter as well. There is a consensus here that we need to encourage people to speak out. With anything that hits against that, and in particular that crosses the Act, we need to make sure the Service understands its responsibilities.
Q84 Chair: That is very clear. Do you share the surprise felt by some Members of the Committee that somebody gave professional advice to the people who signed those compromise agreements, and how it could be that the adviser to the person who signed the compromise agreement advised them to sign it?
Gavin Larner: We do. Before any employee signs any confidentiality agreement of this kind, the employer is obliged to pay for legal advice for them to check the contract over-that it is consistent with their employment rights and with other legislation. In the two cases concerned, it may be that the legal advice provided did not do so. I think it may have been the same legal team that provided the advice to the two trusts. We are following up with the Legal Services Board and the Solicitors Regulation Authority to see what further action might be taken in that regard.
Q85 Chair: That is very helpful. Does it follow that it might be appropriate to draw the attention of the legal regulators to the limitations of what it is proper for a doctor to sign in the context of a compromise agreement?
I am going to give you a bit of time to reflect on the answer to that question because we have to go and vote. This sitting is suspended for 10 minutes, if that is enough time.
Sitting suspended for a Division in the House.
Q86 Chair: We can continue a little earlier because this is, as we said, building on the previous session. My question was whether there was an opportunity to follow up the advice that was given by the legal advisers in this case and whether this should be something taken up by the legal regulators.
Gavin Larner: Another MP-not on this Committee-has already raised it with the Legal Services Board and I am not sure if I am able to breach his confidentiality here or not. We have been discussing that. Currently, they are looking at the cases that have been raised with them. I am happy to go back to the relevant regulator, raise that with them and report back through you, Chair, to the Committee on what action they propose to take.
Chair: That would be helpful. Thank you very much.
Q87 Valerie Vaz: I want to ask a couple of things. Very clumsily-I did not quite make the distinction I wanted-I was trying to make the distinction between these compromise agreements and where you have employees where there has been some sort of misconduct. I think Andrew George picked it up a bit when he said that there is that kind of line, that blurring, where someone raises something and then it becomes one of these misconduct cases because they have raised something. I am wondering what sort of information you get back in terms of the difference between the two and whether we could possibly have a settlement agreement or a memorandum of understanding talking, simply, about employee relations rather than having these compromise agreements in the actual contract.
Gavin Larner: The way it operates on the ground, when they are agreeing settlements, is that they try to bind the whole thing together in one legal contract. That is, I suspect, for simplicity’s sake. But in doing so, they are bound (a) by the Act, in terms of what they can put in it, and (b) by our Circular of 1998 which goes further than the Act and explicitly prohibits inclusion of such clauses in contracts. Also, there is a kind of third stage. Where any agreement, financially, goes beyond what is within an employee’s normal contract, it has to be approved by the Department of Health and the Treasury in the case of normal trusts and by the Treasury and Monitor in the case of foundation trusts. Since 2007, when there was growing public, parliamentary and ministerial concern about some of the large payments that were being made, a much more robust regime has been put in place. Now when trusts are proposing to make agreements that go outside the normal terms of contract, they are reviewed either by the Department or the Treasury to ensure that they are consistent with a number of points: that they are not seeking to discriminate against anyone; they are not seeking to cover up poor behaviour; and that they are not simply trying to protect the reputation of an organisation or shield it from embarrassment. However much making a settlement may make life easier so you can get on with things, it is public money and there was growing concern about that. Since those new arrangements were brought into place, the number of cases approved and the amount of money approved has gone down considerably.
Q88 Valerie Vaz: Can you give us figures?
Gavin Larner: I can, if you give me one moment.
Matthew Fagg: We are talking about, I think, for 2008 in the region of 200 cases. We are now talking in the region of 20 or 23 a year, that sort of figure. Some of that is, I think, to do with foundation trusts, but even before the creation of foundation trusts there was a downward trend in terms of the number of severance agreements that were approved by the Department.
Gavin Larner: The amount of payments went down from almost £6 million in total in 2009 to about £500,000 last year.
Matthew Fagg: It is that order of magnitude, yes.
Q89 Valerie Vaz: I have a couple of quick questions. I was talking to the deaneries. They said that sometimes when they talk to people, they find that they get more information if they talk to the junior doctors and the people down below. How is that going to work in the new scheme of things? Who is going to be responsible for looking at that and whom do deaneries report to? Is it the Commissioning Board or the Department of Health?
Gavin Larner: As I understand it, the future of the deaneries and their functions is part of the wider policy on the future education and training framework for the Service, which I think the Committee heard evidence on from the Department quite recently. I am afraid I am not au fait-
Q90 Dr Wollaston: The Local Education and Training Boards.
Gavin Larner: Yes.
Q91 Valerie Vaz: What about from your point of view?
Gavin Larner: I await the outcome of that work from colleagues in the Department before I can finalise what the deanery role will be in this, in particular.
Matthew Fagg: It might be worth clarifying that there are two things here. There is what is included in standard terms and conditions of service, in which, in the consultant’s terms and conditions, for example, it says that a consultant has an obligation not to disclose any information of a confidential nature concerning patients, and so on. But it then also says, within that, where consultants have a genuine cause for concern they have a right to raise that concern under the Public Interest Disclosure Act. That is what is agreed nationally with the unions. But also, here, I think the examples that were being referred to earlier are severance agreements, which are local agreements. They are not things that have been agreed at a national level. We were all expressing concern about the wording of some of those severance agreements, but it is perhaps worth clarifying that they are two separate things.
Q92 Chair: If that is the standard consultant contract, it is worth noting that it is worded as a right to raise a concern whereas Good Medical Practice imposes a duty to raise concerns. They are two rather different words.
Gavin Larner: Since the election, Ministers have negotiated with the unions that all employment contracts in the NHS now contain that right to raise a concern.
Q93 Chair: Is it a right or a duty?
Gavin Larner: It is a right.
Matthew Fagg: They have a contractual right to raise the concern under their professional code of conduct set by the regulatory body. They also have a duty, where they see concerns, to speak out or to act on them. They are slightly different purposes.
Q94 Barbara Keeley: On that point, the need-the duty-to raise issues of concern where there are concerns, that is obviously a key element in improving practice and improving the quality of the experience that patients have. I mentioned earlier-and you were here, I think, for our earlier discussion-the issues that there have been and the dreadful reports, the Ombudsman’s report, on the care of the elderly in hospitals. The issues, we know, exist. In terms of that, it is key we do more to make that happen because, clearly, in all those failing examples not enough professional staff are doing that.
I refer back to the RCN survey which shows that a much larger proportion-one in three nursing members surveyed, rather than one in five two years earlier-had said that they were actively discouraged or told not to raise concerns at work. There was a lot of discussion between our previous witnesses about creating an open culture. I wonder, first, how you react to that survey and the news that it is getting worse, that people feel they cannot raise concerns-or certainly nurses do-and, secondly, what you are doing and can do at the Department of Health to promote that open culture which all our earlier witnesses seemed to think was essential to getting to the point of getting more things raised.
Gavin Larner: We clearly take seriously what the nurses in the RCN survey are reporting. I do not want to get into the world of competing surveys, but for the staff survey that we do for the NHS as a whole every year, last year, of 140,000 staff, something like 79% said they knew where to go to raise a concern and 75% of them thought they would be safe to do so. Within that, I think about 40,000 nurses were part of that sample and they seemed to be more positive and more confident in the reporting than other professional groups.
Q95 Barbara Keeley: I would not jump to that conclusion. It might be that they are more prepared to respond to a survey from the Royal College than they are to the Department. I do not think you can jump to the conclusion that they are more confident in your survey. I think it might be the case that they are reporting their issues more in the RCN survey.
Gavin Larner: That may well be the case, but on the survey that we have had running since 2007 there has been a slow increase in confidence. That is not enough. We are not complacent on that matter and surveys like the RCN survey show there is a great deal more to be done. We have done a lot this year on a sort of national policy architecture that can support this. As the Committee itself and previous witnesses have said, a lot of this is about culture and leadership in the organisations themselves and how you align the various players in the system, whether it is the Department, the CQC, Monitor or the professional regulators, in a consistent pressure nationally while aligning local players in the system, like commissioners-and, in future, HealthWatch and others-who will oversee trust behaviour, to ensure that people understand this and take it very seriously indeed. On top of that, there is some work, on which we need to push harder, on the leadership front in organisations so that trust executives and nonexecutives have this right at the top of their agendas and show the kind of behaviour that Peter Carter was talking about.
There are two pieces of work on that front. First, in the wake of the first Mid Staffordshire public inquiry, where Robert Francis was looking at the regulatory system around managers themselves, Ministers have commissioned the Council For Healthcare Regulatory Excellence to draw up a set of standards as to the expectations of board members, both executive and nonexecutive, and the way they lead their organisations.
Q96 Barbara Keeley: How would you make that happen? It is okay to talk about guidance, but how will it happen?
Gavin Larner: There are further discussions going on about, once you have that, is it something you enforce at a trust level or is it something you take a regulatory approach to? I think Ministers will want to look at the outcome of the second public inquiry before deciding precisely what mechanism they want to give traction to that most effectively. It will be multiple again and, as I say, we need to have a push from lots of different angles to change behaviour and culture in the system to get that to happen. There is that piece of work, which is more on the enforcement side, as it were. Then there is more of a developmental side about how you grow leaders in organisations that have it in their blood that that is what their jobs are about. The Secretary of State announced recently the establishment of an NHS Leadership Academy which will seek precisely to develop that kind of mindset and skills. But it is a cultural change. It will take time. If we could press a button and change a law to make it happen, we would. But it is not that simple.
Q97 Barbara Keeley: It seems that this year-I do not disagree with what you are saying-certainly, my perception is that things are getting worse. We have heard about the survey where it is getting worse. We have had some horrendous reports of how people are treated in hospital, which became clear in all the places where those things happened. I have had horrendous cases myself, as an MP. My experience and what we hear and keep having reports about is that, potentially, it is getting worse. It is all right to talk around it in the terms you have just done, but are we alerted to the fact that there is something seriously wrong here that needs addressing? It is not good to have a survey from the Royal College that says one third of their members do not feel comfortable with whistleblowing because they have been told not to. That is quite serious.
Gavin Larner: Absolutely, and we are taking the issue of whistleblowing very seriously indeed. The Department have taken a number of steps, since the election, to enforce that, such as changing the contractual rights of staff and working with the trades unions and employers to issue guidance to the Service on the responsibility for whistleblowing. We fund Public Concern at Work to run a legal advice line for all members of staff about how to raise concerns appropriately. Ministers have made it clear that they are continuing to consider what further action would be effective in the Service to give this more-
Q98 Barbara Keeley: It is not a question of "how to". It is getting past the leaflets that the CQC were talking about and the awareness-raising. I do not believe that people do not know how to do it. I think they are frightened to do it, and that is different.
Gavin Larner: Absolutely, and what I was saying-
Q99 Barbara Keeley: Drawing up guidance on how to have an open culture is not going to jump you past that, is it? It is going to need some big interventions, it seems to me, otherwise it is not going happen.
Gavin Larner: We clearly accept that there are parts of the Service where people do not feel confident to speak up. I am saying that we are doing things nationally to help do that but we also need to find ways into the culture of local services. That is where we are talking about the leadership of boards and how we develop that, so the leadership of every trust and primary care organisation in the country takes this seriously and understands how listening to concerns-and, indeed, not just inspiring confidence but praising whistleblowers and welcoming them-is of benefit to their organisations in terms of their longterm reputation, even if in the short term there is a risk to reputation.
Q100 Grahame M Morris: Might I seek some clarification from the Department of Health in respect of the new architecture arising from the NHS reforms? There have been a number of issues about service reconfiguration-about procurement, for example-where the responses from Government have been, "This is a matter for local determination." In the case of procurement, it is the independent financial trusts who will decide what the policy is. A few moments ago, you were talking about inappropriate severance agreements-as you referred to them. Under the new arrangements, will the Department of Health have the powers to intervene with a foundation trust-or it may be a private provider, a private hospital group, who is running some aspect of the service? Will you have the power to intervene and direct them that this is an inappropriate agreement?
Gavin Larner: As at present for foundation trusts, Monitor will continue to have the power to intervene where foundation trusts are in breach of the law. After this, together with the Department, they will be writing to foundation trusts to do so and they will continue to have oversight of FTs in that way. As the Department and SHAs move on, the NHS Trust Development Authority will continue to have oversight of NHS trusts. The Commissioning Board will have oversight of commissioning organisations. Each piece of the architecture will continue to have oversight on issues such as this. In the end, we retain ultimate responsibility and, if we felt that a healthcare organisation was not consistent with the law, we would take action to draw it to their attention.
Q101 Grahame M Morris: Would that apply to private sector providers too? Also, is there a difference between "Take action to draw it to their intention" and intervening to say, "This is inappropriate. Do not do it"?
Matthew Fagg: There are going to be contractual obligations on providers to have regard, say, to the constitution. While, to some extent, you can intervene from the centre, a lot of the requirements here will flow through contractual requirements. If a commissioning organisation has concerns about the way a provider is acting, essentially what we are doing, through the standard contracts and so on, is empowering them to be able to take action. It is much more effective for action to be taken at the point where there is cause for concern locally, rather than some bureaucracy acting several hundred miles away in Leeds, London or wherever the Department is based at that point.
Q102 Grahame M Morris: I fully understand that. I am not trying to be obtuse, but in the event where there was a failure and, clearly, a severance agreement that is inappropriate is being issued to clinical staff-whether it be doctors, nurses or frontline staff-does the Department have the power to intervene? I know you have said that they can advise them of an inappropriate agreement, but do you have the powers, currently, to intervene?
Matthew Fagg: Presently, the Secretary of State does have powers of direction over NHS bodies, but strategic health authorities also have a range of powers of intervention. The operating method is that, in the first instance, we would expect strategic health authorities to act, to performance-manage organisations or to look into concerns. That is what they are there for, essentially.
Grahame M Morris: Does that equally apply under the new architecture? With strategic health authorities clustering, their ability to performance-manage organisations may be diminished somewhat by their slimmeddown size.
Chair: Can I encourage us to focus not on general performance management but on the specifics of the terms of engagement with the professional staff, otherwise we are going to get into a rather broader debate?
Grahame M Morris: I am simply trying to establish whether the Department has powers under the new arrangements to intervene. I am still not clear.
Q103 Chair: I am just focusing on the issue. I think Mr Morris’ question is: what is the status of the Department in enforcing the inappropriateness of gagging clauses, for want of a better word, on compromise agreements, or indeed on any other employment agreement or termination of employment agreement with professional staff?
Gavin Larner: In the future, the Department will have a strategic role of oversight of the system to ensure it is operating effectively. It would be other bodies in the system that would have those roles in intervening where there was inappropriate behaviour, whether they are national or local organisations.
Q104 Chair: The Department, presumably, retains a policy oversight over this sector.
Gavin Larner: Yes.
Q105 Chair: So if the Department itself cannot intervene in the new architecture, who can?
Matthew Fagg: There is a range of bodies. The Care Quality Commission does have powers of intervention in certain circumstances. You have Monitor, which will have powers of intervention in certain circumstances. There is also the Provider Development Authority. But we are moving from a system where everything was very centralised with the Department intervening on almost a daily basis-and the number of Health Service Circulars that have gone down over time illustrates that-to one where we are talking about a range of other organisations managing the NHS, with the Department taking a more strategic overview and not being involved in the daytoday operational decisions about the NHS. That is not a new development. That is a direction in which the health system has been moving over a period of time.
Q106 Chair: It would also be fair to add, would it not, that these clauses we are talking about we have already agreed are void because they are illegal and have been illegal, in truth, both under the Public Interest Disclosure Act and almost certainly at common law?
Gavin Larner: Indeed, and, ultimately, still when it is an agreement between an employer and an employee, they are obliged to provide legal advice, which, apart from the legal advice we are concerned about in the two cases we have identified, should, in practice on the ground, prevent such clauses being included in contracts.
Q107 Valerie Vaz: Can I just get this straight? There is no mechanism for all these regulators to come to the Department of Health. There is no one who is going to be overseeing the whole lot of them.
Gavin Larner: The Department of Health will retain a leadership role over the whole health and social care system.
Q108 Valerie Vaz: But they will get the information somehow.
Gavin Larner: So if it were to come to light that, for whatever reason, a bit of the architecture was not designed in a way that it was responding, as in this particular issue, we would have a policy responsibility to ensure that the system operated effectively.
Q109 Grahame M Morris: So, Matthew, are you the whistleblowing tsar in the Department-sort of?
Matthew Fagg: Not quite. But it is something that has taken a lot of my time over the last few years.
Q110 Grahame M Morris: Could you give us an idea of numbers? You said that the Department would intervene on a daytoday basis under the old arrangements. Over the last year or so, how many occasions have there been? Do you have that information to hand?
Matthew Fagg: When I was talking about the Department intervening, I was not talking specifically about whistleblowing. I was talking about the general culture of direct intervention through the issuing of Health Service Circulars and so on.
Gavin Larner: Since 2009 the Department have had 542 cases which have been classified as whistleblowing cases, but I think about 200 of those are more about concerns that the Select Committee share as to whether the policy is in the right place on whistleblowing. That has informed the development there. The Department has an agreed process on how those are handled. They are assessed by two case handlers, by a special whistleblowing team, under the supervision of a senior manager who will then ensure that the case is passed to the appropriate organisation to investigate, having secured the permission of the whistleblower to do so first, and redacting the material, where necessary, in order to protect confidentiality.
Matthew Fagg: For example, we produce monthly reports based on complaints and whistleblowing cases that arise. Those are shared with the CQC and Monitor and the expectation is that, where there is a cluster of concerns around an organisation, those are acted on. The CQC cannot act on each and every single concern that arises, but where there are clearly concerns about an organisation and you are starting to see a pattern, then we would expect the CQC to act, to intervene and to investigate and so on.
Q111 Dr Poulter: Picking up on your last answers, if an individual healthcare professional reported a concern to you-let us say they are a hospitalbased professional-whom would you forward your concern to? Whom would you ask to investigate that?
Matthew Fagg: It depends a little on the nature of the concern. I remember, in the past, seeing individuals who have written in raising concerns about another professional, in which case we would refer the matter on to the General Medical Council. If it is a more general concern about patient safety, it would be likely to be the Care Quality Commission that we would refer things on to. We also find that quite a few of the cases logged as whistleblowing cases-this is the thing we were talking about earlier-actually are grievances: where someone is concerned that their employer has acted in an unreasonable way. That, in itself, is not a public interest concern and it is something of a grey area. Again, it is not necessarily the role of the CQC to intervene in individual grievances. In those circumstances, it might be that we would refer the matter on to the SHA and ask the SHA to look into what is going on, and to assure itself that things are being handled appropriately. It depends a lot on the precise nature of any concern.
Q112 Dr Poulter: Thank you. You see the CQC as being a very important body in investigating-or shall we say looking at-the weight and quality of concerns that have been raised and doing further investigation.
Matthew Fagg: There are a number of organisations. It will be Monitor if it is a foundation trust and a governance issue; CQC if it is a patient safety concern; SHAs if it is a concern about governance within an NHS organisation; and, equally, we would go to NHS Protect, which is the old NHS counterfraud service, if it is a financial concern.
Q113 Dr Poulter: The concern for me, from what you have said, is that that seems quite fragmented in approach. Obviously, there will sometimes be specific issues that can be taken up at a more local level, but having a fragmented approach-if you look at the generic issue of patient care in a hospital-is often when bad things happen. When we have concerns, whether they are about patient care or what we consider to be gagging orders or compromise agreements, surely there needs to be one body that has overall responsibility for investigating and overseeing these issues. That is where my question came from on the CQC.
Gavin Larner: There are two approaches to this that Ministers are looking at. One is-and I think the previous witnesses referred to it-that there needs to be greater cooperation and cohesion between the various parts of this system so that they act as a coherent and consistent system and when a complaint comes in to one place, and it is relevant to other bits of the system, it can immediately be passed on. The second, which the Secretary of State is still considering, is whether, from the perspective of staff, there needs to be a single point where they can go to bring concerns so there is much greater clarity about where to go. We are still looking at the options on that.
Q114 Dr Poulter: My concern is that if the Department of Health has a slightly fragmented approach to where you may pass on a concern, then, obviously, it is going to be very unclear to staff. There are a number of bodies you may wish to involve, and that is quite a fragmented approach, accepting that some things may be best dealt with at a local level, such as a specific dispute between two members of staff. The big concern here is as to who is coordinating this. The professional bodies will represent their members. There is a view expressed by some Members of the Committee that there may have to be a more proactive role for the BMA and that there should be a more proactive role for the Royal College of Nursing. But is there not a case here for one person having overall oversight of what is going on, making sure that these agreements are not compromising care? That is why my focus came on the CQC.
Gavin Larner: I would not necessarily say that our approach is fragmented. It is more that we pass the concern to the appropriate organisation that is best placed to deal with it. There would be no point in putting a concern about patient care to the NHS counter-fraud service, as it were, so it is referred out to the organisation that is best placed to deal with it. If it is a concern about the quality of care, clearly it is a CQC referral.
Q115 Dr Poulter: The concern is that if you are looking at issues about gagging agreements, compromise agreements or quality of care-and the concern that has been raised by the Committee today is with the gagging or compromise agreements-it is difficult, unless it is particularly of a financial or commercial nature, to reconcile those with the doctor’s or healthcare professional’s duty to whistleblow or report instances of poor care. If we are looking at dealing with this, it does seem the way that complaints and concerns are dealt with generally-and actually the approach we heard earlier-is quite fragmented. We want to have a better system and a better way to go forward. I have not heard very much, apart from the general warm feelings of good will that we are all going to work together a bit better, as a way of pinning this down.
Matthew Fagg: We are doing some work in this area and trying to look at what further measures might be undertaken to enable people who have concerns that their organisation is not acting, where they have raised concerns of public interest, and to tell them where they might go. There is likely to be learning coming out of, for example, the Francis inquiry, which we would want to look at in drawing up any future proposals. We recognise that the system is imperfect, but it is a question of referring concerns, at the moment, to somewhere where they have the power to act. It comes down to the powers of enforcement. Certainly, for example, if there were concerns about patient safety, we would refer them on to the CQC. The CQC should have other information available to it about local clinical governance systems, and if it has concerns about how well they are working combined with concerns being raised by individual members of staff, that should start to set off alarm bells somewhere about a particular organisation. The CQC does have a critical role in all this. But, equally, there are other organisations here that have roles in holding parts of the system to account in different ways.
Gavin Larner: To pick up the point on "warm words about cooperation," what we have at the moment is the National Quality Board which brings together all these different players in one place. They are very much now talking about these kinds of quality issues, not specifically about the issue we have raised today but about how you get a more coherent and cooperative system of different players acting in concert-the current term is "alignment"-to drive the system and put the incentives in the system to get it to work the way you want it to.
Q116 Dr Poulter: Sure. You can have some boards that come together and work and do things and you can have other boards that come together and talk and do not achieve results. The concern would be that, in spite of having the board set up, we still have very real concerns being flagged up about gagging agreements and compromise agreements. I am struggling to see what the approach is of the Department of Health or how we are going to tackle and deal with this problem. I am not trying to be obtuse here. I am trying to get at what action can be taken by the Department of Health, or what organisation you would say fundamentally should take responsibility for this. It is a complex issue, but if we are serious about dealing with openness, transparency and improving patient care, with healthcare professionals being able to report in an open and frank manner when they have concerns over care, it is fundamental we get this sort of thing right and that we do not have the ability for a healthcare professional to be gagged or restricted.
Gavin Larner: In the two cases we have identified where we know this has taken place, the Department has written to the two organisations and taken specific action. On the broader front, I believe all the organisations take this issue, and whistleblowing in particular, very seriously. They understand the critical role the professionals have as a safeguard at the front line with the patients to ensure consistently safe, effective and respectful care. People understand that and they are now working to try and change that culture and spread it more widely throughout the Service to achieve what we are all seeking. But they have not picked up specifically on gagging clauses because it has not been seen as a widespread problem in the Service. At the moment, we do not have evidence that that is the case. We only have these two cases that we have identified so far.
Q117 Dr Poulter: I have one final point. We heard earlier about the Bristol heart inquiry, which was over 10 years ago now. The events that occurred there were more than that, but the Kennedy Inquiry happened in the late 1990s, as we know. Do you find it regrettable that, when the core findings of that were about having openness and transparency, we are now speaking about NHS organisations trying to gag or compromise the ability of healthcare professionals to speak out?
Gavin Larner: From the staff survey, we have seen slow improvement on the key indicators about staff willingness to speak up, over the last three years that we have data for. While there has been improvement, I still think there is further to go and the Department and Ministers, through the action they have taken since the election, have demonstrated they are not complacent on this front and that there is further work to be done.
Q118 Dr Wollaston: Can I clarify something? I thought I heard you say earlier that you were going to send very clear guidance out to all trusts that they should not be issuing these clauses in compromise agreements, which is encouraging. Can I also mention an email that all the Committee members have had, which is basically a copy-anonymised, of course-of a United Lincolnshire Hospitals NHS Trust compromise agreement. One of the fundamental parts of that is that the agreement itself is secret and the doctor cannot talk about it. Will you also be asking trusts not to include that clause? If they cannot talk about it, it does not matter what else you have further down.
Gavin Larner: I do not want to get drawn into individual cases because I do not know the detail of them.
Q119 Dr Wollaston: I am not talking about the individual case. I am taking it as a general thing. According to the barrister who has emailed me, he has seen 170 of these compromise agreements now and mentions that this is a pretty consistent feature of them. Are you concerned, as I am, that that is a consistent feature of these agreements?
Gavin Larner: If that were the case, I would be concerned. But I would say that if anyone-and anyone in the cases that have been raised with you or that you have knowledge of-is concerned that they have been gagged about a confidentiality clause in a way that is inconsistent with the Act, that is void and they should take advice from Public Concern At Work about whether they can speak out on those issues.
Q120 Dr Wollaston: What I am saying is that when you are, in the future, issuing guidance to trusts about not including damaging clauses, will you mention that as one of the clauses that they should not include?
Matthew Fagg: We draw a distinction between the use of confidentiality clauses per se and the precise wording that you read out earlier, where you were talking about a clause which had specific provisions about not raising concerns with the General Medical Council or the Care Quality Commission and so on. The Department’s view is that confidentiality clauses can be justified in certain circumstances, and we have issued guidance on two occasions, in 1999 and 2004, about this. Our guidance is that they should only be used, in so far as is absolutely necessary, to protect patient confidentiality or legitimate commercial interests and so on. What we accept-and I think it was a point made earlier by colleagues from the unions-is that confidentiality clauses are used across the board in compromise and severance agreements. There may be very many reasons why. Sometimes both sides do not want any publicity about events that have led to something and we cannot comment on an individual basis because we are simply not party to the details. But I think we would draw-
Q121 Dr Wollaston: May I interrupt you there? It is a bit like a super-injunction. If you cannot even talk about its existence, how can anybody understand what is in it? Should it not also be fundamental to it that you specifically say, "You may not include a clause that appears to prevent talking about it," even if it is not legally enforceable, as it might give the impression to the doctor, nurse or any health professional that they cannot report concerns to a professional regulator? If they cannot even talk about the fact that the clause is in existence, that is also very difficult, is it not? Does that not also have the same effect?
Matthew Fagg: There is a concern about the deterrent effect where there is a specific reference to not referring cases to the General Medical Council and so on. I do not know about the precise wording that you are talking about, but the law is very clear in this area. If a provision prevents an individual from raising concerns, where their concern is in the public interest about fraud, patient safety and so on, that is void and unenforceable in law and that person could go ahead and speak. Essentially, the employer would not then be able to seek back whatever money they paid as part of that agreement. That is the effect of the law in this area.
Q122 Valerie Vaz: Do you think, in the interests of transparency and saving money, that all the trusts could put on their websites, or wherever, how many compromise agreements they have rather than people having to find out about it through FOI requests?
Gavin Larner: We can certainly look into it. Where we assess payments, where they are extra-contractual and, therefore, they need to come to the Department or to the Treasury, they are assessed on the basis of, "Are trusts using compromise agreements to try and avoid embarrassment and protect reputation?" Ministers have been quite clear that that is not an appropriate use of these agreements. At times, in order to avoid being seen to reward poor performance or poor behaviour, even if we think we would be at risk of losing in a tribunal, we will decline the agreement in order to make the point that you cannot buy a quiet life.
Q123 Valerie Vaz: I am simply thinking that someone has to go to all the trouble of doing an FOI request to get them out there. It seems to me something that could be easily done on an anonymous basis-"These are how many we have."
Gavin Larner: We can certainly look at it.
Q124 Chair: Could I ask you to reflect on a rather broader subject? It was very much in the flavour of the earlier evidence session, and indeed of various of the reports the Committee has issued earlier this year, that this general professional obligation to raise concerns, where a professional thinks it is appropriate, about the quality of care is part of good medical practice and part of good nursing practice. It is part of professional obligation. I wonder whether the Department is comfortable with that development of the argument as it has been coming from the Committee over the last few months, as it has been reflected by professional leaders and as it was reflected in the evidence we heard earlier this afternoon.
Gavin Larner: I think, absolutely. The Department regards it as part and parcel of professional responsibilities and one of the key safeguards in the system. Whatever the Committee does and the Department does in the end, it is a clinician alone in a room with a patient-that is where healthcare happens, as it were. If those values are not deeply embedded in the profession and they are not able to speak out when they are concerned, then we lose a critical safeguard in the system regardless of the architecture around it. Bruce Keogh has been very passionate on this point. Certainly, in his evidence to the Mid Staffordshire inquiry, he made a great deal of this. I think Ministers would very much support that position. Indeed, Anne Milton, as a nurse herself, is well aware of that.
Q125 Chair: There was a lot of talk earlier on about the importance of the culture in delivering that objective. Do you think that culture exists as you would want it to exist, either in healthcare employers, public and private, or indeed in all parts, as it needs to exist, of the professions themselves?
Gavin Larner: It is difficult to be scientific about where culture is at. My impression is that, in the large majority of organisations, these issues are taken very seriously. Clearly, cases are still being identified which would suggest that that culture is not as strong or as widespread as we would want it to be, and that is organisationally. In the professions themselves-again it is difficult to be scientific-I think there is still a very robust culture there. Often, part of the difficulties that bureaucrats and managers have in dealing with clinicians is that they do have this strong sense of professional values, which are rightly there-to challenge us when we are tempted to be more pragmatic than we should be in matters that are fundamental to the quality of care.
Q126 Chair: I agree with the aspiration, but I wonder whether professionals are as difficult as they should be on occasion.
Matthew Fagg: It is difficult for us to take a view on that, I think, in any meaningful way. There are organisations where there are very wellembedded cultures of clinical governance, where it is taken very seriously and where near misses are examined and looked at. I do not think we are under an impression that all organisations are like that, or all parts of those organisations where there are good cultures in some areas. I suspect it is quite mixed, but it tends to be that the majority of professionals, in our experience, take their duties very seriously. The vast majority uphold the values of the profession on all occasions. It is only ever a minority that fail to do that.
Gavin Larner: It would be interesting to take the views of some professional leaders in nursing, medicine and more widely as to where they think they are at as professionals on these values.
Q127 Chair: It would also be interesting to reflect on the Department’s view of its relationship with the General Medical Council and the Nursing and Midwifery Council who are, ultimately, the bodies responsible for the development of that culture within the professions but not, of course, responsible to Ministers, precisely because they ought to be independent of Ministers.
Gavin Larner: Absolutely, and they are quite selfconsciously made separate from the Department and accountable, ultimately, to Parliament so that they can maintain an interest that is in public safety and nothing else. The reforms that the House passed in 2008, reforming the leadership of those organisations-so that they were professionally dominated but had balance between lay and professional interests and were separated from the Department-have been important in changing the way the professional regulators see their role. As a result, they see themselves much more clearly as organisations that are working in the public interest. The further reform that we are doing at the moment through the current Bill seeks to reinforce that independence.
Q128 Chair: Is this an area of policy-the relationship between the professions and the rest of the system-where the Department is actively working?
Gavin Larner: In terms of professional regulatory bodies, it certainly is. We are trying to give them even stronger independence from the various stakeholders in the system and make them more explicitly accountable to Parliament, rather than employers, the profession and particular interest groups that might skew their view from time to time.
Matthew Fagg: More generally, we are trying to promote clinical involvement in commissioning and clinical involvement in managerial levels within organisations. Clinical leadership is seen as being increasingly important, I think. There is a recognition of that-of the importance of strong professional values and strong professions governed by the Department.
Chair: We do not have any other points. Thank you very much. That is very clear. Thank you.