The media became obsessed with footballers and other celebrities taking out gagging orders, or 'super-injunctions', to prevent the press reporting affairs and other indiscretions. But journalists were turning a blind eye to a much more important and prevalent form of 'super-injunction' - doctors were not being allowed to talk about NHS negligence.
The full scale of the way the NHS tries to gag clinicians from speaking out about poor clinical care is only now emerging. This is because a former chief executive of an NHS trust being investigated for persistently high death rates, has broken the terms of a gagging order - speaking out for the first time about his concerns over patient safety. Gary Walker left The United Lincolnshire Hospitals Trust in 2010 signing a non-disclosure agreement as part of his pay-off deal.
Mr Walker ran one of the Trusts now under scrutiny following the inquiry into deaths in Mid Staffordshire. The c into the scandal recommended that gagging clauses, like the one Mr Walker signed, should be banned.
The fact it's an NHS manager whose gagging order preventing disclosure about slipshod medical treatment has received so much media attention now, is intriguing. Doctors have been subject to these 'super-injunctions' for years. During all that time the Department of Health and the General Medical Council (GMC) were curiously silent.
The head of the General Medical Council, Niall Dickson, recently declared on the BBC Radio 4 Today programme, that it was becoming easier for doctors to speak out about poor care they witnessed in the NHS. Yet how can this be? There is no evidence that any of the multiple mechanisms the NHS relentlessly deploys against whistleblowers, have let up.
Doctors.net.uk is the website more visited by doctors than any other in the UK. It has this week polled physicians with the question, 'Have you seen any evidence that your trust/employer is encouraging staff to report incidents of poor care since the incidents at mid-Staffordshire?'.
The results were, from a total of 230 doctors responding, only three GPs agreed there was evidence of encouraging reporting of poor care, while 29 GPs reported no evidence of NHS employers encouraging such reporting since the mid-Staffordshire story broke.
For those involved in secondary care, such as hospitals, the figures are 46 doctors agreed there was encouraging of reporting of poor care, but an overwhelming majority of 152 saw no evidence of NHS employers encouraging poor care reporting since mid-Staffordshire.
How can the NHS develop a different relationship with whistleblowers, unless managers say and do it?
'Compromise' agreements, or 'gagging orders' are widespread when a doctor leaves a Trust. Managers force doctors to sign these documents by threatening consequences if they don't. Another mechanism by which the NHS stifles clinicians is the use of the reference. NHS Trusts now often require a reference from your previous line manager, before considering your application for a post. But what happens if you have fallen out with your manager because you highlighted dangerous care?
The NHS is practically a monopoly employer of doctors in the UK, so if you have dared to go against your local manager, then your ability to practice medicine is curtailed.
The General Medical Council says doctors have a duty to report poor care. But what has it done about the few senior physicians who have colluded with NHS management? These are usually Medical Directors and Clinical Directors who are party to these compromise agreements and gagging clauses.
We believe that the General Medical Council should seek to investigate any doctor in a managerial position who has been involved with coercing colleagues into signing these 'super-injunctions'. Patients have been put at risk as a result of this kind of collusion. The severest penalties should be pursued against these medical directors. We also believe that such an investigation of these compromise agreements should be retrospective, just as the Francis report has been.
One standard technique the NHS uses is to accuse a whistleblower of not raising their concerns early enough, opening up the prospect of investigation and punishment by the GMC.
This strategy is part of a long list documented by Private Eye magazine in July 2011. Private Eye catalogued various means the NHS gags whistleblowers, besides forcing doctors to sign 'silencing agreements', included gathering dirt on whistleblowers by concocting misdemeanours, as well as incessant spurious investigations.
Private Eye points out in its special whistleblowing report entitled 'Shoot the Messenger' and published 08/07/2011, that the USA has its own National Whistleblower Centre, offering support to whistleblowers, given how stressful it is. Private Eye points out whistleblowing has been found more effective than officious regulation and costs much less.
The scandal of gagging of doctors in the NHS is not just endemic today, it has a long history, and is therefore deeply embedded in its culture. Given the scale of NHS reprehensible care that is now being uncovered, why is no one asking about the real scandal - how come there are so few whistleblowers?
The government would prefer that any uncovering of terrible treatment should be done by official bodies in order to keep control.
One of us (PB) wrote a book on the difficulties of being an NHS whistleblower. Entitled 'Who Cares? True stories of NHS Reforms', published in 1997, it documents NHS persecution of clinicians who had the temerity to put patients first.
For example, the book goes behind the story of Dr John Spencer consultant radiologist at Luton and Dunstable Hospital NHS Trust, who, in 1994, had signed an agreement not to speak publicly about the circumstances surrounding his early retirement, which included discovering that the trust's chief executive tapped his telephone. The chief executive, Mrs Averil Dongworth, eventually resigned after consultants passed a motion of no confidence in her, but is now working as the chief executive for Barking, Havering and Redbridge University Hospitals NHS Trust.
If you 'hack' phones in most industries you are targeted for arrest - if you work for the NHS you get promoted to chief executive.
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