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NHS Settlement Agreements and Super-Gags

Settlement agreements between the NHS and staff have been criticized for promoting secrecy and concealing governance failures. In particular, "super-gags" that prevent disclosure of the settlement's existence are seen as overly restrictive and a deterrent against whistleblowing. Sir Robert Francis suggested the National Guardian should review settlement agreements requiring Treasury approval given these concerns. The letter asks if more rules are needed to prohibit intimidating settlement terms and end the use of "super-gags", given confirmation that the trusts of the new CQC chair and NHS Improvement CEO each used such gags in 22 and 45 cases respectively in the last 5 years.

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66 views2 pages

NHS Settlement Agreements and Super-Gags

Settlement agreements between the NHS and staff have been criticized for promoting secrecy and concealing governance failures. In particular, "super-gags" that prevent disclosure of the settlement's existence are seen as overly restrictive and a deterrent against whistleblowing. Sir Robert Francis suggested the National Guardian should review settlement agreements requiring Treasury approval given these concerns. The letter asks if more rules are needed to prohibit intimidating settlement terms and end the use of "super-gags", given confirmation that the trusts of the new CQC chair and NHS Improvement CEO each used such gags in 22 and 45 cases respectively in the last 5 years.

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EMAIL TO HEALTH COMMITTEE 15 FEBRUARY 2016

To Health Committee 15 February 2016


Dear Dr Wollaston and fellow committee members
Settlement agreements and super-gags by NHS
bodies
The NHS use of settlements has been criticised to various
degrees, for inappropriate secrecy and possible
concealment of governance failures. It is generally
accepted, including by Sir Robert Francis, that even where
settlement agreements are strictly speaking legal (and
contain clarification that a workers rights to make public
interest disclosures are unfettered), they can still be
constructed in such draconian terms and language that
they still serve to intimidate and effectively silence staff.
In particular, Sir Robert criticised the use of super-gags,
which prevent parties from even disclosing the existence
of agreements:
I have seen some which seem unnecessarily
draconian or restrictive, for example, banning
signatories from disclosing the existence of a
settlement agreement.
The excessive use of confidentiality clauses
of any type in settlement agreements is a
hindrance to transparency
It is also clear that there is an atmosphere
of fear and confusion surrounding the
obligations of confidentiality in such
agreements so as to make them a deterrent
against public interest disclosures even where
they do not have that effect in law.
Such were the extent of Sir Roberts concerns about
current handling of NHS settlements that he suggested
that the National Guardian should perhaps have
responsibility for reviewing proposed settlements that

require Treasury approval:


NHS TDA and Monitor should consider
whether their role of reviewing such
agreements should be delegated to the
Independent National Officer
I can see no public interest argument for any use of
super-gags. However, they appear to have been used
extensively in the NHS. Of significance, the former trusts
of the new CQC Chair and the new CEO of NHS
Improvement have both confirmed substantial use of such
confidentiality clauses: 22 and 45 super-gags
respectively, in the last 5 years. I attach the relevant FOI
disclosures by these trusts.
I wonder if more robust, enforceable requirements need to
be issued to make it clear that the NHS (and indeed other
public bodies) should not use intimidating albeit legal
settlement agreements, and in particular that all use of
super-gags should cease.
Yours sincerely,
Dr Minh Alexander
cc Rt Hon Sir Anthony Hooper
Sir Robert Francis
Public Administration and Constitutional Affairs
Committee
Public Accounts Committee
Dame Eileen Sills

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