I have written to and been in meetings with the Scottish Government and informed them of the unacceptability of gagging clauses in compromise agreements in the NHS. Following these talks, the Scottish Government took the decision to put in place a new national whistleblowers alert line in the NHS, announced by First Minister Alex Salmond earlier this year and which became ‘live’ on 2nd April, 2013. This is a positive result, but there has been no movement on the banning of gagging clauses.
I have corresponded regularly with the Scottish Government seeking to clarify points and issues surrounding this subject. Some progress has been made – but not enough. The Scottish Government stated that individuals often ask for a confidentiality clause to be inserted. When I asked for the figures to back this statement up they could not provide them.
In an answer to a parliamentary question I was made aware that the Scottish Government has already stated that the “use of gagging clauses to stop NHS whistleblowers is being banned in Scotland.” I do not believe that this is the case. I have yet to see the legislation that states this.
I arranged for a series of FoI requests to be made to find out what has been happening with compromise agreements over the past five years. The information that I was provided with revealed some astonishing figures that confirm that there have been 697 compromise agreements in the 14 Scottish territorial health boards over the past 5 years. Of these 697 compromise agreements only four people made a protected disclosure.
It is my understanding that the Central Legal Office still inserts a ‘standard’ confidentiality clause in all compromise agreements (see below). I have raised these matters with the Scottish Government and have made my feelings on this very clear. It is wrong and should be stopped by statute now.