The NHS and Whistleblowers.
“NHS spends £15million (the same as 750 nurses’ salaries) on gagging 600 whistleblowers.”
The headlines are particularly shrill this morning – and utterly misplaced.
The NHS is an inanimate object, a legal entity, comprised of human beings. Human beings that we are encouraged to believe are grisly, heartless, death dealing, automatons that rose up in the night and ‘forced’ confidentiality clauses on those throughly good eggs known as ‘whistle blowers’ who only have our health, wealth and happiness at heart but are prevented from showing us just how much they care for our well-being by those grisly, heartless… – repeat ad nauseum.
Whoa there, just hold on a minute and let us turn this round.
The NHS used to contain 600 individuals who were prepared to accept money, nay negotiated for it via their solicitors, asked for it, and accepted it – with accompanying confidentiality clause, leaving them ‘prevented from speaking out for fear of legal action.’
For a start, we have no idea how many of those individuals were potential whistleblowers – the 600 figure is for those who accepted severance pay.
Some of them will have been negotiating a settlement for ‘constructive dismissal’. In the last couple of weeks I have had several long winded e-mails from someone who wanted me to campaign on his behalf following his ‘constructive dismissal’ from a commercial organisation – notwithstanding that he had asked for and received severance pay. After several exchanges it turns out that the gentleman is ‘gay’ and was claiming to have been ‘sexually humiliated’ by his lady boss asking if he wouldn’t like to go home with her one night and try out a ‘real woman’; an unwise comment, if true, in today’s politically correct office environment – but the only alternative to negotiating a suitable ’hand-out’ of the shareholders money to shut him up would have been all the publicity and cost attendant an employment tribunal. Now he wants to further humiliate the lady for her unwise remark by enlisting my help in publicising the matter – not on your Nelly, flower!
Some of those 600 severance contracts will have been for similar reasons for a payout. Some of them will have claimed to have been overlooked for promotion for racist reasons. Do you know there has been an employment tribunal sitting since August 2011, almost two years, painfully clawing their way through 110 separate claims of discrimination in respect of a married couple who worked in a solicitor’s office and who claim they have been discriminated against because she is ‘of a lower caste than he‘? The case has just collapsed because of external reasons and now the whole thing has to start up again with a new judge. Can you begin to imagine the cost involved, both to the state and to the firm of solicitors that employed these two? You wonder why lawyers agree out of court settlements – complete with confidentiality clauses to prevent disgruntled employees from taking the money and still trying to extract revenge for whatever?
Nothing prevented these potential whistle blowers from whistle blowing to their hearts content – revealing the full gory details of how the NHS was a danger to our health – except their own desire to negotiate a severance package. If it is true that they held information which would have saved hundreds of people from an early death, and traded the ability to reveal that information for money – then I despise them utterly – they should never have been working for the NHS in the first place.
The NHS has a host of faults, too many to count, but forcing people to take money in return for keeping quiet on life or death matters is not, I suspect one of them.
It’s a great headline for the conspiracy theorists though – ‘NHS pays wages of 750 nurses to silence the truth’. Tsk!
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February 22, 2013 at 09:25 -
It would be a mistake to lump all 600 (and isn’t that the same number that rode into the valley of death?) into a single homogeneous group.
However, it is not unheard of for an organisation to use pay-offs and gagging clauses to remove employees who have, say, fallen foul of bad managers and bad practice and who might cause embarassment if allowed to make the issues public.
The reasons for a gagging clause are almost always going to be interesting and I’m not convinced by your example – I don’t agree that a gagging clause should be used to protect the “real woman” in your story from a libel. If she is libelled she can seek redress in the normal way.
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February 22, 2013 at 10:26 -
Actually Anna it is a bit more complicated than that. There have been many instances when a practitioner (the ones I have knowledge of were consultant grade) express a concern to management, it may be clinical, managerial, anything that suggests that the outfit is not working properly in some way.. The response is that they are suspended ‘while certain allegations are investigated’. The suspension has in some cases lasted over a year. During that time they are barred from the hospital or any contact. It then transpires that the allegations were against the doctor, usually of bullying etc. A GMC referral by management follows, they take an age to resolve even if dismissed. The doctor is offered early retirement on grounds of ill health with a confidentiality agreement.This process serves two purposes, one it gets rid of a dissenting voice, and two makes sure everybody else keeps their heads down. You want a public example, look at the doctor who had suggested that the care afforded to a recent high profile battered baby by a certain hospital was less than adequate.
That said, most of the cases are as you say, managers getting out while the goings good, similar things happen to them. Some five years ago I spoke to a solicitor who specialised in NHS wrongful dismissals. She was on her forty ninth case, and looking for her half century.
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February 22, 2013 at 11:30 -
Compare with the alleged gagging clause in Clegg’s Euro pension arrangements, which ensures he stays “on message”. How despicable is that for a Deputy Dog?
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February 22, 2013 at 12:09 -
Thank you for voicing exactly my disquietude about these whistleblowers (I make no sweeping generalisations about all of ‘em) who took the deal, signed the gagging order and now are running for the higher moral ground. If they were so very morally outraged about the abuses going on inside the NHS, then why on earth would they agree to have their conscience bought? In some respects that makes them worse than the people who bought them off, who could at least be seen to be believing in their rectitude, however misguided or criminal that might have been.
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February 22, 2013 at 14:02 -
How many people would be prepared to risk their financial future – their homes, their pensions, their family’s security – to stand on a point of principle? In an ideal world, we all would, but we also know that life is never a clear choice between black and white.
I suspect that some of the more cynical time-servers in NHS management (and there are many of those) will be very happy to play on the normal human insecurities of their staff, should the security of their position (in their way of thinking) warrant such action. Such cynicism is not limited to the NHS, but does seem to be unusually prevalent within it currently.
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February 22, 2013 at 12:27 -
The Mail was having fun yesterday saying that 90% of NHS workers wanted the NHS chief sacked. It turned out that 2,000 had “voted”, which seems to comprise 0.001% of the workforce…….
http://news.bbcimg.co.uk/media/images/59187000/gif/_59187466_top_employers_464.gif -
February 22, 2013 at 12:54 -
Not many people can afford to forgo half a million quid for the sake of their principles, which seems to have been the sum in the Staffordshire case. And whatever the law might say, both sides know in advance it’s a filthy process, contaminating both sides. No doubt the health authority and their advisers hold lengthy meetings discussing how much X might be prepared to pimp his or her principles for – how big is their mortgage, do they have kids to support through education ec?. If X then years later spots a change in the public mood which makes it possible to reach out from this moral cesspit, grab the employer by the ankles and drag them in, while keeping the money, why not?
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February 22, 2013 at 13:54 -
It is certainly the case in ‘closed systems’ like the worlds of the NHS or Finance or IT etc. (the final of which I know personally), that unofficial channels exist to make it difficult for ‘troublesome’ ex-employees to gain jobs elsewhere in the sector. Although not a formal black-list, as was allegedly operated by some major construction companies, much informal communication frequently occurs between peer managers at different companies to ensure that such a former employee will struggle to be employed anywhere in that sector again.
Given that background, it is easy to understand why someone offered a substantial pay-off (albeit with gagging clauses) would feel the need to accept the terms in order to provide a financial buffer whilst changing employment sectors. That, in the case of health services, their silence may jeopardise unknown patients’ lives is a very weighty consequence but one which the recipient can only put into the context of his/her family circumstances.
It would be a courageous and extremely moral person who was prepared to jeopardise the rest of their own family’s life and lifestyle in order to expose some internal wrongdoing of their employer organisation – such people do exist but I suggest that, faced with that situation, the majority would default to compromising their wider public principles for their more personal and familial good. That doesn’t make them bad people, just realists, living in a world where it takes more than a simple sling-shot for David to slay Goliath.
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February 22, 2013 at 14:17 -
Reading this case-study: http://www.telegraph.co.uk/health/healthnews/9869579/NHS-whistleblower-faces-ruin-after-speaking-out-about-patient-safety.html makes me unsure whether all this loot is actually being paid to the individual, but rather it is more a matter of the Health Authorities agreeing to cover all the legal fees accrued in the various arguments, if the complainant will just go away. This tends to support what I think is Ms Raccoon’s contention. This guy was an NHS manager himself, not a medical person.
All the “news” is generated by his side of the story. Presumably the Health Authority are prevented from challenging aspects of the things he says, on the basis of “employee confidentiality”. Whistle-blowing seems inherently one-sided in this way.
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February 22, 2013 at 16:37 -
Once again a touching belief in our legal system prevails in this blog —-gosh our legal system is such a well honed tool in ascertaining truth and dispensing justice things have got to be simple. There is no lawyer in England who will not caveat the hazards of litigation before any case comes to trial—–an admission that the litigation process has too large an element of randomness for there to be any certainty of outcome. It is that level of uncertainty that gives rise to most settlements together with costs risk—–almost invariably settlements without admission of liability —-and if there is a fear that the issue liability or wrongdoing or negligence or whatever might be revisited before a different forum then the invariable gagging clause. Why do people agree to a gagging clause? well the law is about money stupid—what might start as an individual crusade embarked on for altruistic reasons MUST morph given the system into an individual claim reducible to a sum of money —-but it doesn’t stop there of course —-its the issue of costs that kills any remaining thought that the process is about anything else but money —-won’t take whats offered, terms of no admission of liability and the gagging order? well if you win and you don’t beat the sum of money we have offered by a reasonable margin—then you will pay your own costs which far exceed the amount of money quantified by the court —-and watch out if you don’t beat the sum of money we have offered —-ours as well. Tell me Punk (Pace Clint Eastwood in Dirty Harry ) are you feeling lucky? If you are feeling luckty we aren’t worried coz your own brief will soon wise you up. Taken to its ultimate its this simple —–a wrongdoer knows he is banged dead to rights —-faces the prospect of his blood being spilled all over the court floor if the matter goes to trial —fear not —just contact a commercially minded lawyer who will offer a full setlement in monetary terms subject to non admission of liability and a gagging order —job done. Oh and don’t forget the added incentive of the missing out on the vituperative tongue —the modern day version of the hot pincers —–to see if you are telling the truth. Great system for getting legal cases resolved —-perhaps less than ideal in achieving what most might think the law should achieve—-isn’t the outcome meant to reflect the merits of respective claims as judged by the public who after all pay to have the whole system set up and have an interest therein ? Oh and in case you think I am a bleeding heart liberal anxious that all should have a soap box I am not —–but I am just a little anxious that money —or the system —– may not satisfactorily address all issues that are corrosive to Society
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February 22, 2013 at 19:06 -
It’s not the dismissed who want – or enforce – gagging clauses. It’s the NHS. Why is that, do you think?
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February 22, 2013 at 21:52 -
I sort of agree but it must be very difficult when bullied and harassed, knowing you will likely be forced out of your job and never work in that field again, or maybe not at all if you are branded a trouble maker and can’t get a decent reference, especially when you have a family. The shame is on the people who let their patients die of neglect, there is no excuse for that, Dr. Shipman gave his victims a kinder end. The Government of the day who set unreasonable targets and the managers who enforced them regardless. All are to blame and none will ever face justice.
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February 22, 2013 at 23:23 -
@ It’s not the dismissed who want – or enforce – gagging clauses. It’s the NHS. Why is that, do you think @
To make them shut up…. obviously……
And maybe to save money…….. ironically….
http://www.thisislincolnshire.co.uk/Sacked-hospitals-boss-sue-NHS-163-1m-damages/story-11223332-detail/story.html#axzz2LfnebP3v
“Sacked hospitals boss Gary Walker is suing the NHS for £1m of public money in damages.” -
February 23, 2013 at 00:32 -
I think this story has everything to do with the failure, thus far, of the newspapers to organise the resignation of Sir David Nicholson – ‘The Man with No Shame’ to give him his popular moniker.
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February 23, 2013 at 03:56 -
Sounds like blackmail more than whistle-blowing. Whistle-blowing is when you either just take your information public, or, at a minimum, confront the boss and say “Fix this problem OR I’ll make it public.” Offering to HIDE the problem in return for a payoff is NOT whistle-blowing. It’s blackmail and should be treated as such. Other than information that is clearly a question of legal privilege or proprietary material, the law should not allow for ANY sort of “I’ll be quiet.” binding agreements with exiting employees.
– MJM
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February 23, 2013 at 09:37 -
Fair point, but you’d then need to know whether X has fronted up to the employer and said “give me a half a million and I’ll keep quiet”, or the employer has worked out that to keep X quiet would cost half a million so gone ahead and offered it. Most likely it’s a bit of both, an elaborate dance with both starting out from immoral positions. But once you are down in that trough, you can’t complain if years later the other party continues to act immorally. Once you cross that line, you have to take the consequences.
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February 23, 2013 at 12:17 -
As is the case within all corporate monsters, the default position of management is to look after itself.
When push comes to shove, shareholders and customers will always come a distant second. This is most evident in a state monopoly, where the threat of lost custom does not exist – rightly or wrongly, the religion of the NHS trades in the goodwill that so many invest in it, and so there is a desparate scramble to avoid the publication of anything that might compromise that.
I mean, we all ‘know’ that the NHS is stratospheres from perfection, but for some there is a difference between taking that rational view and actually reading the gory details. Management types, taking home salaries they could not earn for the same ‘work’ somewhere else, are well aware of this, and so out comes the chequeboook.
Anyone with a mortgage and mouths to feed is in a lose-lose situation. Does standing up for principle in those circumstances not also equate to a failure in putting their family first? Is there really an ‘honourable’ answer when faced with that choice? No doubt t
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