Arpita Dutt, Employment partner at Stewarts Law, comments on the "gagging clause" ban for doctors

BMJ Careers
26 January 2012

GMC bans doctors from signing contracts containing "gagging" clauses

Doctors should boycott "gagging" clauses in agreements with employers or contracting bodies that try to stop them raising concerns about patients' safety or quality of care, new guidance from the General Medical Council recommends.

Mirror guidance for doctors in management roles will put them under a corresponding duty not to propose or condone contracts or agreements containing such clauses.

Gagging clauses still appear, despite NHS guidance as far back as 1999 that all trusts should "prohibit confidentiality 'gagging' clauses in contracts of employment and compromise agreements which seek to prevent the disclosure of information in the public interest."

The House of Commons health select committee called for guidance on the issue last year after it emerged that doctors at several London trusts had been asked to sign agreements that they would not "raise complaints or grievances" with the GMC or patient safety regulators once they had left employment (BMJ Careers, 10 Dec 2011, http://careers.bmj.com/careers/advice/view-article.html?id=20005822).

Niall Dickson, the GMC's chief executive, described these examples as "outrageous." "These clauses are totally unacceptable. Doctors who promote or sign such contracts are breaking their professional obligations and are putting patients, and their careers, at risk," he said.

"Our new guidance makes clear that doctors must not sign contracts that attempt to prevent them from raising concerns with professional regulators such as the GMC and systems regulators such as the Care Quality Commission," he added. "Nor must doctors in management roles promote such contracts or encourage other doctors to sign them."

The guidance, which comes into force on 12 March, also makes it clear that doctors have a duty to act when they believe patient safety is at risk or when a patient's care or dignity is being compromised. Any clause in a contract or agreement intended to stop an employee making a "protected disclosure" generally, in health cases, passing on information about a risk to patient safety -- is void under the Public Interest Disclosure Act, the guidance points out. But that fact is not widely known, said the whistleblowing charity Public Concern at Work in a briefing last month on NHS gagging clauses.

A joint investigation in 2010 by the Bureau of Investigative Journalism and Channel 4 News found that the use of confidentiality clauses was widespread in severance agreements when doctors leave a job.

Public Concern at Work said that it had not seen many NHS agreements that contravened the Public Interest Disclosure Act, although in some cases individuals wrongly thought they had signed a gagging agreement. "Often the heavy handedness of the lawyers representing the employer leads the individual to believe they have either signed a gagging clause or have been effectively gagged, and they are too scared to subsequently speak up and take their concern outside of the organisation, even to an appropriate regulator," added the briefing document.

Arpita Dutt, a partner and expert on whistleblowing at the law firm Stewarts Law, said that doctors reaching severance agreements found it hard to separate out information relating to a protected disclosure from wider clauses banning the individual from saying anything detrimental about the trust.

Raising and Acting on Concerns about Patient Safety is available at www.gmcuk.org/raisingconcerns.