Recommendation 179

Gagging clauses to be prohibited


“Gagging clauses” or non disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners; insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.

We understand the critical importance of fostering and sustaining an open culture in which concerns about care can be raised, investigated and acted upon without fear of retribution. Our policy is clear that any attempts to prevent individuals from speaking out in the public interest will not be tolerated.  NHS guidance has been consistently clear that local policies should prohibit the inclusion of confidentiality clauses in contracts of employment and compromise agreements which seek to prevent an individual from making a disclosure in the public interest in accordance with the Public Interest Disclosure Act.  We are, however, also aware that some confidentiality clauses that may make some people feel as though they are being ‘gagged’ even though they are not.  Such clauses, although not illegal, may have what is known as a ‘chilling effect’ on some people. We now therefore require the inclusion of an explicit clause in the compromise agreement to make it absolutely clear to staff signing an agreement that they can make a protected disclosure in the public interest regardless of what other clauses may be included in the agreement.

No further update is required. Please see response to the recommendation above