Regulator lambasts gagging contracts


By Mike Foster

Contracts containing clauses that attempt to stop doctors from raising patient safety concerns with regulators are ‘invalid’, doctors leaders have said.

GMC officials, at the launch of new guidance Raising and Acting on Concerns About Patient Safety yesterday (25/01/12), said they were shocked by reports that a few employing organisations had put clauses in contracts that appeared to restrict health professionals from raising concerns with the GMC, the Care Quality Commission, the Information Commissioner and the Nursing and Midwifery Council.

GMC chair Professor Sir Peter Rubin said: ‘We understand that any organisation would want to protect its commercial secrets [but] patient safety is non-negotiable.

‘It is unacceptable for any doctor to agree to stay silent when he or she knows something really important that impacts upon patient safety.’

Reaffirm responsibility
He said the guidance aims to ‘raise the profile’ of the professional duty on doctors to raise concerns and further promote a culture of openness.

He added that it compiled existing guidance into one resource that will be sent to 240,000 doctors registered with the GMC.

The guidance recognises that it is not easy to speak out but gives advice on who to turn to and where to get support, he said.

The existence of the gagging clauses, revealed in The Times last November, was discussed by the Commons health select committee’s one-off inquiry into the professional responsibility of healthcare practitioners last month.

The bottom line
Sir Peter said ‘the buck stops’ with doctors when it comes to patient safety and they should raise any concerns with their managers or employers at first but, if unheeded, with the appropriate professional regulators.

BMA consultants committee chair Mark Porter said: ‘A contract is only enforceable if it is compatible under the laws in the jurisdiction in which it was signed.

‘A contract requiring a practitioner to not raise legitimate clinical concerns is actually unenforceable.

‘The employer would like the employee to believe it is enforceable and to stay quiet, but it is unenforceable and therefore not a valid contract … Employers use them because they feel they can suppress opinion and keep people silent.’

Freedoms enshrined
He added that the standard consultant contract protects their freedom to speak out and contains a clause that explicitly allows a consultant to raise concerns without the consent of their employer.

Dr Porter said: ‘Our professional responsibility is not to abuse that but to use appropriate clinical governance mechanisms [first].

‘There are a number of consultants who feel they are put under grossly inappropriate pressure to remain quiet about things they are concerned about.

‘This is the sort of thing that often lies behind some of the longer employment cases that are the bread and butter of the support that the BMA gives to its members.’

Full force of the regulator
Sir Peter said he wrote a letter to the BMJ, published in 2009, in which he warned that any doctor who was also a medical director, who was involved in arranging such gagging clauses that had an adverse impact on patient safety, could face GMC proceedings.

The GMC has also launched its new Liaison Service — formerly known as GMC Affiliates — to strengthen the regulators’ presence across regions of England and in Scotland, Wales and Northern Ireland.

The Liaison Service, which has so far helped 15 people into posts, will provide two GMC employer-liaison advisers in each region.

GMC chief executive Niall Dickson said the new service would assist with revalidation, offering advice on thresholds for referrals to the GMC, for example.