Public Petitions Committee

Meeting date: Tuesday, November 26, 2013

Official Report 514KB pdf

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New Petition

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Confidentiality Clauses (NHS Scotland) (PE1495)

Agenda item 2 is consideration of three new petitions. As previously agreed, the committee will take evidence from each petitioner.

The first new petition is PE1495, by Rab Wilson, on behalf of Accountability Scotland, on the use of gagging clauses and agreements with national health service staff in Scotland. Members have a note by the clerk, a Scottish Parliament information centre briefing and the petition.

I welcome the petitioner, Rab Wilson, and thank him for coming along. I invite Mr Wilson to make a short presentation, which should last for a maximum of five minutes. That will be followed by questions from myself and then my colleagues.

Good morning.

If you want to keep something confidential, what do you do? It is easy—you do not tell anybody. Do you need a legal constraint imposed on you by your employer to do that? No. Yet thousands of people in Scotland and hundreds in our NHS have been gagged in that way against their will. How can that be allowed to happen in a free society? Why has the automatic use and insertion of gagging orders by the central legal office become the norm in compromise agreements? Is that a help or a hindrance to openness?

I am calling for an outright ban on gagging orders, confidentiality clauses and compromise agreements in the NHS in Scotland. If NHS boards have nothing to hide and their reputations are beyond reproach, why do they need to hide behind gagging clauses? The workers have nothing to hide, but in a free society they are legally constrained and gagged from speaking the truth. What kind of topsy-turvy world are we living in?

Technically, the gagging orders do not prevent people from raising genuine safety concerns about events in the NHS that are of the greatest public interest, but they sure as hell scare people from speaking publicly about those vital matters. It is a fundamental breach of an individual’s human rights—and, by extension, those of their family—to do that, yet it is common practice in Scotland.

The belated insertion of clause 1.3 into annex A of the NHS compromise agreement, which happened only a few months ago, supposedly gives workers the option of making a protected disclosure. Can any member of the committee name a single person in the NHS who has successfully made a protected disclosure? Providing the option of a protected disclosure is like saying to a starving man who needs bread that he can have all the bread that he wants as long as he can get over to the next valley, which will mean getting over the top of Mount Everest. That is how difficult it is for a worker to make a protected disclosure. My case epitomised the circumstances in which a protected disclosure should automatically have been allowed, but my union, Unison, would not support me in making one. If my case cannot be allowed a protected disclosure, what case can?

I have no problem with people making compromise agreements to terminate their employment to both parties’ satisfaction, but there should be no automatic insertion by the central legal office of a confidentiality clause. How can the Scottish Parliament continue to condone such a fundamental abuse of human rights and freedom of speech? A recent Health Service Journal article stated that, between 2009 and 2012, 98 per cent of compromise agreements in the NHS in England had confidentiality clauses inserted into them, whether or not the employees concerned wanted one.

Over the past five years, there have been 697 compromise agreements in Scottish health boards. In England, the average cost of such agreements was £29,000 each. If we extrapolate from those figures, we will see that the invisible cost to the taxpayer of financing pay for compromise agreements in Scotland has been more than £20 million. The detail itself is hidden by confidentiality clauses, but this is a shocking abuse of taxpayers’ money.

No guidance or assistance was available to me to make a protected disclosure. As I said, my union refused to support me, despite its being aware that I had uncovered a huge national scandal. Surely the provision of such guidance and assistance should be a mandatory duty of NHS employers. Mainly as a result of my case, a national whistleblowers alert line has been implemented in Scotland. However, serious reservations that I have flagged up about the line have been ignored. Had the ISO 9000 quality management system been adopted, as I wanted, it would have solved everything in the NHS but, no, the cheapest option was chosen, and the reports that I am getting about the alert line’s effectiveness are far from encouraging.

The line is run by Public Concern at Work, whose big review of whistleblowing is coming out this week. This is kind of how it works: if someone calls up, saying, “Mrs Hen here. That bad Mr Fox has been killing all my chicks,” Public Concern at Work will say, “Certainly, Mrs Hen. I suggest you take the matter up with Mr Fox.” That is fantastic—that is how Public Concern at Work does its job. When someone phones up to complain about some major bad thing that is going on, it refers them back to their employer, which is the last place that they will want to go.

The basic principle should be that people who have challenged patient care issues should not be subject to threats of intimidation or attempts to turn their concerns into an employment issue. Time and again, people get letters from Government ministers saying that the matter is between them and their employer or that it is an employment issue—which is just rubbish—and then they are forced to sign a confidentiality agreement. Following the National Audit Office exercise, we have no idea just how many of those agreements exist and we have asked for a retrospective lifting, which has not been granted.

Patients First, the NHS whistleblowers group led by Dr Kim Holt, who will be speaking in the Parliament building tomorrow evening, is seeking an inquiry—a truth commission—into the whole business. We are not going to stand for this sort of atrocious corporate bullying any longer. Those who leave their employment in such circumstances become ghosts or pariahs to be shunned by their former colleagues, who are wary of being seen or socialising with whistleblowers, and colleagues are left in the dark about what happened to such people, as their stories are buried by their employers.

Whistleblowers should be celebrated and allowed to tell their complete stories in filmed interviews that are then published on NHS board websites. Then, and only then, might we begin to see some real transparency, openness and honesty in our NHS. While confidentiality clauses remain a normal part of such severance agreements, employees will remain vulnerable. Unions have been complicit in the making of those agreements; indeed, pretty much all the unions are involved in what is tantamount to a cover-up with the use of confidentiality clauses—

Excuse me, Mr Wilson, but you have come to the end of your five minutes.

Okay.

We have to allow time for members’ questions and of course we have other petitions to deal with.

Thank you for your presentation. In your view, do gagging clauses breach the European convention on human rights?

I have an email from Carole Ewart, the chair of the human rights consortium Scotland, stating that there are several issues that, in her mind, seem to contravene human rights legislation.

If you have not already supplied us with that email, can you please provide a copy?

Yes. If you want a copy of any of this stuff, I can photocopy it and leave it with you.

In preparing for the discussion, I noticed a quote from the Cabinet Secretary for Health and Wellbeing, who has basically said—I am paraphrasing here—that any confidentiality or gagging clauses are between NHS boards and employees and are not a direct matter for Government. What is your view on that? Obviously, you had a difficult experience with your health board, but do you have direct experience of other health boards in Scotland that have gagging clauses with their employees?

As I said, between 2009 and 2012, there were 697 compromise agreements in Scotland and I believe that almost every one of them contained a gagging clause. They are used by all health boards in Scotland.

Is any ordinary entry-level member of staff in any health board in Scotland required to sign one, or are they used specifically where a senior employee is leaving and has to sign a compromise agreement?

It would apply to any worker who is caught up in circumstances in which a compromise agreement needs to be reached. A nursing assistant or porter, say, might blow the whistle on certain nasty business and, as a result, their position might become untenable. The union might then thrash out with the employer a compromise agreement for the employee to leave their employment. The employee would be given a payment, which is taxpayers’ money. Almost every compromise agreement has a gagging clause preventing the employee in question from speaking out.

Back in May—very late in the day—paragraph 1.3 was shoehorned into annex A of the NHS compromise agreement. It says:

“For the avoidance of doubt, the Employee shall not be prevented from making a ‘protected disclosure’, as defined in Sections 43A-H of the Employment Rights Act”.

However, out of the 697 compromise agreements that have been reached in Scotland over the past three years, there have been four protected disclosures. What the hell is going on? Why can the people concerned not speak freely about this?

The compromise agreement also says:

“The terms of this Agreement are confidential to all parties and all parties agree that all matters arising out of this Agreement and all matters relating to the termination of the Employee’s employment”—

blah blah blah—

“will remain confidential”.

Even the employee’s immediate family could be brought into this. If family members breach an agreement by revealing stuff that has been divulged to them by a husband or wife, they can be brought to account under the law. By extension and by proxy, they, too, get gagged. It is a total breach of their human rights.

Thank you for that answer. We will move to questions from the committee.

10:15

Good morning, Mr Wilson. I live in Ayr and, having been subject to NHS Ayrshire and Arran’s treatment, I congratulate you on your work there. The consequent actions by the Government and the health boards are attributable to your work.

I return to the 697 compromise agreements. We agree that the individual frequently requests the inclusion of a confidentiality clause, which is developed under guidance from the central legal office. How many confidentiality clauses in the 697 compromise agreements were generated by the employee rather than the employer?

I have a letter from the central legal office about gags, which says that it does not personally insert the gagging clauses. The standard compromise agreement contains a confidentiality clause, so the legal office has no say in that.

Is it not the case that NHS Scotland’s central legal office carried out a review of confidentiality clauses and developed a revised form of wording that explicitly made clear that an individual’s right to raise protected disclosures is protected, whether or not they insert the clause of their own volition?

I do not find that to be the case because, out of 697 agreements in the past three years, there have been only four protected disclosures. That tells you that some of my friends who are with me today, who have been gagged, are terrified to speak out because of the consequences. They fear that they will be taken to court and maybe that their pension or any payment that they have been given will be removed from them. A culture of fear exists in our NHS.

Can I stop you on that? It is quite important. Things have happened such as the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996. Actions have been taken by the Government, instructions have been given to health boards and money has been made available to help to change the culture of bullying. We are talking about culture. We can legislate as much as we like, but we are talking about management culture and what needs to be done there.

I will protect everyone’s right to be open and say what they think and think what they say in such circumstances. A culture of secrecy and bullying is totally unacceptable—I accept and support that view. However, despite all the actions that have been taken, you have still come to the table suggesting that things are not happening. Is it not the culture of management, which we are trying to change, that is really at fault?

Of course. A huge part of the problem is the culture of secrecy. The culture is all about protecting the organisation at all costs and to hell with the workers—they can go to the wall. They can be paid off and gagged with gagging clauses because, at the end of the day, the culture is to protect the organisation. That is what it is all about, and that needs to stop.

However, the regime has been changed. Action has been taken by the Westminster Government and by the Scottish Government to attempt to get rid of all the problems, if not delete them. All the legislation and assistance is in place. How do we change what is now a cultural problem?

For a start, we should get rid of the confidentiality clause, because it is total nonsense. There is a huge dam of truth and horrible things—

Mr Wilson—

Can I please make my point? There is a huge dam of nasty, horrible things that have been happening in the NHS, and this document is creating the log-jam and preventing information from becoming public knowledge. It needs to go, and then people will be able to speak freely and without any fear of being taken to court for speaking the truth about bad things.

If you are referring to a document, will you describe it for the record, so that we understand which document you are referring to?

I am referring to annex A—the style revised wording from the NHS compromise agreement of May 2013.

Do you accept that the cabinet secretary has already stressed to the health boards that he expects them to ensure that confidentiality clauses and non-derogatory statement clauses are not used to suppress the reporting of concerns about practice in the NHS in Scotland? That has been made abundantly clear not just once but several times.

You said that we should get rid of the confidentiality clause. My question for you is: what happens if an employee wants a confidentiality clause in the compromise agreement? How do we cover that situation?

It would be up to an individual to decide on that but, as I said at the start, surely if a person wants something to remain confidential, they keep it confidential and do not share it with anybody. That is what any of us would do.

We cannot open this on one side and not on the other. I agree with the intent, but we have to protect employees who want confidentiality clauses. Should they not have the right to have such a clause written into a compromise agreement?

What you are saying is like saying that Alex Neil is telling the foxes to take better charge of the chicken coop. The boards have been left to their own devices for years and years and they have done nothing, despite being told again. The ability to make a protected disclosure existed before that; it has been there since 1996. Why did we have to put in another clause this year to remind boards of what to do? They have not been doing it for years.

You have played a significant part in this. Do you accept that it takes time to change the culture of management? I believe that it is changing. Do you agree or do you think that it is stuck? I would hardly use the fox and chicken analogy, because we want to ensure that everybody is a fox and a chicken and not one or t’other, so that they understand that openness and transparency are key in any public organisation—or indeed any organisation. Do you detect any change or are you saying that we are stuck in 1996?

I could ask a person who is here to read a short statement of their experience, if you would like to hear it.

No. We are happy for any of the people in the gallery who are supporting you to submit any evidence and we would be happy to look at that, but only you are before us today.

Fundamentally, I am asking you whether you are saying that the NHS Scotland partnership information network guidance is not working. Are management—you can be selective if you are not including all of management—choosing to ignore the guidance, the instruction and the law of the land?

They always talk about openness and transparency—they have gone on about those things for years—but they still seem to be lacking. People are still scared to speak out.

Nurses phone me. I regularly get phone calls from people who are being bullied in the NHS and who do not know where to turn. They do not feel that they can go to their bosses and they phone me to ask me where they can go. That is a sad indictment of management in the NHS.

I agree. I accept that there are circumstances in which people are afraid of the hierarchy of management. That is a management problem. Management have to be clear that there has to be total transparency.

Thank you for the way in which you have answered my questions. I will ask one last question. Do you accept that, sometimes, there are allegations that are unproven? What would you do in those circumstances? How would you recommend that we clarify that an allegation without evidence has to be pursued?

Can you give me an example?

No, I cannot. I asked the question because, throughout my business life, customers and employees have alleged things and a lot of time has been spent on going through them, as should happen. We accept that there are sometimes allegations that are not proven.

As I have said, I have received phone calls from people who have been bullied. I listen to their stories, which seem to have a ring of truth. Channels should be available for them to pursue matters.

As I have said, the confidential alert line seems to be very poor. When people phone it, they are given a lot of waffle and referred back to their employer. What help is that? It is useless.

Are you telling me that the people on the line are not trained to give answers and pay proper compassionate attention to the questions or issues that are raised?

My experience and the stories that I have been told by nurses and other people who have been employed in the NHS show that people do not get the support that they need.

Thank you for coming to the meeting and for your petition. You said that staff do not know who to turn to for support and how to take forward issues that have been raised by compromise agreements. In your submission, you commented on the role of the unions. In respect of their working practices, the majority of NHS employees are protected by or are members of a trade union, the British Medical Association, the General Medical Council in Scotland or whatever. Do you feel that the unions and professional bodies are not protecting their members from the compromise agreements that NHS boards are forcing on them?

Unions are far too willing to immediately go along with a compromise agreement and simply get a quick deal done for someone to leave quietly by the back door, and they do not want to fight people’s cases. They should fight a lot harder for workers’ rights in those circumstances, rather than just come to a cosy deal that suits them and the employer but ruins the worker’s life. When someone leaves, they are very unlikely to be employed again because of such things. The unions should fight a lot harder for those people.

As no other member wishes to ask Rab Wilson a question, I will ask a final question. What explanation, if any, have you had from health boards about their use of confidentiality clauses?

I can go only by the available figures that have come to light through various freedom of information requests, which are usually submitted by MSPs. MSPs have done great work to unravel what is going on and get to the nub of the figures and the information that are needed. Through those freedom of information requests, I have got to know the numbers that relate to compromise agreements and the number of confidentiality clauses therein.

As I have said, we can extrapolate the public money that is being frittered away on those compromise agreements. The figures are out there. I have some basic figures, but what individual health boards do and why they do it are a bit of a mystery.

I re-emphasise that, if you or any of your colleagues in the public gallery have information that you would like the committee to see, please ensure that the committee has a look at it, because it is important that we make decisions that are based on the fullest possible information.

As you probably know, we now go to the summation stage, when the committee decides on the next step for your petition. We have therefore finished the evidence session, but I would like you to stay for the next stage.

The committee has various options, but I think that it is important that we seek further information from the Scottish Government about the petition. It is also important to consult the Scottish health council—I understand that it is a committee of Healthcare Improvement Scotland—which plays an important role for the consumer voice in health services. As always, it is up to the committee to make the final decisions on the petition.

10:30

I suggest that we also write to Unison, the General Medical Council, the Royal College of Nursing Scotland and the British Medical Association to seek their views. It is not just people in the front line but consultants and other staff who are affected by compromise agreements, so it would be useful to get those organisations’ views on the use of compromise agreements.

That is a good point.

I thank Rab Wilson for his evidence. I think that we should write to Public Concern at Work to get its view on the petition.

I am happy to go along with what John Wilson and Anne McTaggart suggested.

I support what the convener suggested but, given the requirement for evidence, perhaps we should ask the national confidential alert line and Healthcare Improvement Scotland to produce monthly reports. Perhaps we should also consider asking Audit Scotland to review that process after, say, a year to see what is happening in health boards across Scotland.

I believe that—

I am sorry, Mr Wilson, but we are now at the stage of the committee making a decision on the petition.

I go along with all the recommendations.

Could the committee gain some information from the United Kingdom Government?

Sure. We could write to the Secretary of State for Health or the relevant health authorities in Westminster about the petition.

I am aware that the Cabinet Secretary for Health and Wellbeing, Alex Neil, announced at the Scotland Patients Association’s conference in June that £200,000 would be made available to health boards to establish other measures to tackle bullying and harassment in NHS Scotland. However, I find it curious that only six boards made bids for the funding: NHS Ayrshire and Arran, the Golden Jubilee hospital, NHS 24, NHS Greater Glasgow and Clyde, NHS Tayside and Carstairs. Perhaps it would be worth contacting them to ask why they bid for funding. We might see in the responses whether the funding has had any impact.

That is a good point. Do members have any other options to suggest?

If we are writing to the six boards that Angus MacDonald suggested, I would like to know what management training they are doing on the subject to which the petition refers. I do not want to know how much they spend; I want to know how they establish the outcome that eliminates the scar from the relationship between management and employees.

Health boards have an important role in that regard, but there is guidance from the Scottish Government on the issue as well, through chief executive letters or—

I understand that.

I am just trying to identify who you want to write to. Is it the Scottish Government?

The problem to which the petition refers will be solved only at the coalface. Organisations including the Scottish Government can participate in addressing the problem, but it is primarily one of management. The culture has to be changed as quickly as possible.

Do you wish us to write to all the health boards in Scotland?

Yes.

Do members agree with the courses of action that we have identified, which involve doing a number of tasks?

If we are writing to all the health boards, we must differentiate the six boards that bid for the funding.

Yes. We must distinguish between the six that went for the funding and the others. That is a fair point. I thank committee members for their recommendations.

Mr Wilson, you have probably identified that we are enthusiastic about your petition. We will pursue the issue that it raises and will do as much homework as we can on it. We will consider the petition again at a future meeting when we have all the raw material back from our written requests. The clerks will keep you up to date with developments. I encourage anyone who is associated with your petition to write to the committee with any additional information that they wish us to know about.

Thank you for presenting your evidence in such a forthright way. Clearly, you have been through a difficult experience, which was reflected in your statement. We appreciate your honesty in being up front with the committee.

I suspend the meeting to allow Mr Wilson to leave.

10:35 Meeting suspended.

10:37 On resuming—

I have just been informed that the witnesses for the next two new petitions have been delayed in traffic, so my intention is that we will consider those petitions once they arrive. With the committee’s permission, I will jump to agenda item 3, which is consideration of current petitions. Do members agree to that?

Members indicated agreement.