Gagging orders for NHS whistleblowers will be banned, Health Secretary promises

Tommy Greene
Sue Allison  - Guzelian Ltd

Gagging orders for whistleblowers will be banished from the NHS, Health Secretary Matt Hancock has promised, after a radiographer had her non-disclosure agreement overturned.

Mr Hancock said he was "determined to end" the injustice of making health service staff choose between speaking out to protect patients or keeping their job.

“Whistleblowers perform a vital and courageous service for the NHS and I want more people to feel they can put their head above the parapet,” he told The Telegraph.

“Settlement agreements that infringe on an individual’s right to speak out for the benefit of patients are completely inappropriate.

“We stand with whistleblowers. Making someone choose between the job they love and speaking the truth to keep patients safe is an injustice I am determined to end.”

His comments come after radiographer Sue Allison, 57, successfully argued that she had been asked to sign an NDA without legal advice after raising concerns about missed cancer diagnoses and standards of care in a breast screening unit at Morecambe Bay NHS Foundation Trust.

Mrs Allison filed a grievance against the trust claiming she was ostracised and subjected to extensive bullying, after blowing the whistle in 2012 and has struggled to find a job since. 

But the Trust argued the case could not be heard because the gagging order prevented her from speaking about the details at a tribunal, an argument rejected this month.

At an employment tribunal hearing in Manchester, Judge Rebecca Howard ruled that the NDA was invalid and said Mrs Allison has a “prima facie case of whistleblowing detriment” and should be allowed to press ahead with her grievance without being gagged. 

Her legal team believes it sets a new precedent over the legality of such orders.

Jahad Rahman, the solicitor acting for Mrs Allison, said: “As the NDA was rightly determined to be invalid, the saga of bullying, harassment and victimisation can now be heard at the future hearing.

“The case exposes the ongoing misuse of gagging orders by the NHS and it is possible that there are many other cases where gags are similarly not valid.

“This has been an extremely stressful experience for my client. She has had to put up with regular threats of costs and intimidation by the Trust’s lawyers for several months. The trust has fought this case tooth and nail and has spent a considerable amount of public funds on defending the claim.

“It’s a humiliating ruling for Morecambe Bay NHS Foundation Trust and clearly a victory for common sense. For a large NHS trust to victimise staff that speak out about public safety issues and to then blacklist that employee is deeply concerning”.

Sue Allison says her career was ruined after she blew the whistle on practices at University Hospitals of Morecambe Bay NHS Trust Credit: Asadour Guzelian 

The NHS radiographer, who has been qualified for 34 years, says her career has been destroyed since blowing the whistle in 2012.

Mrs Allison says she has applied for a number of posts both within and outside of the Trust, and reports her whistleblowing past having been brought up in job interviews by potential employers.

Unable to find another secure job, she currently works 12 hours a week and is studying for a PhD.

Morecambe Bay proffered the NDA in 2015, two years after the then Secretary of State of Health, Jeremy Hunt announced he was banning gagging order in the NHS.

Georgina Halford-Hall, from Whistleblowers UK, said: “We have repeatedly asked the NHS for details on the number of NDAs used across the health service.

“The answer we’ve received every time has been that they don’t hold this information centrally. We are now calling on Matt Hancock to uphold the promises made by the former Health Secretary to ban the use of NDAs in the NHS.”

Sue Allison claims at least two people died as a result of poor practice in the breast cancer scanning department  Credit: Rui Viera PA 

Mr Hancock said he wanted to make the NHS the safest healthcare system in the world and had brought in a number of measures, such as bringing in Freedom To Speak Up Guardians in every trust, and making sure directors are accountable.

“Starting at the top down we can harness a caring, compassionate culture that protects patients and staff and reaffirms the bond of trust between the public and our National Health Service,” the Health Secretary added. 

“I’ve asked Baroness Harding to consider a range of options to improve the quality of senior leadership and strike the right balance between a culture of learning and a culture of accountability in the upcoming People Plan for the NHS.”

Commenting on the tribunal ruling, Mrs Allison’s local MP and former Liberal Democrat leader, Tim Farron, said: “Sue was incredibly brave in speaking out about her experience of dangerous standards of care.

“I’m really glad to hear that she has won the first important step in her tribunal case”.

The trust said they were disappointed with the ruling and were considering their next steps. They claim that concerns raised by Mrs Allison have already been investigated.

David Walker, Medical Director at University Hospitals of Morecambe Bay NHS Foundation Trust, said: “We are disappointed that the Employment Tribunal has decided that the case regarding the Trust’s Settlement Agreement with Sue Allison should now go to the Employment Tribunal stage.

“The Trust considers that the confidentiality clauses included in that agreement were in accordance with the appropriate guidance on such clauses. We will study the judgement in detail, and decide what our next steps could be”.