Originally published in Pulse Today

Lawyers Martin Cheyne and Andrew Sugarman explain the rules of disclosure in the NHS.

This year has seen an upsurge in media and political interest in NHS whistleblowers, but reports and recent changes in the law mean that some GPs are unclear as to their rights when exercising duty of candour. Below we settle some of these.

“PMS and APMS GPs cannot blow the whistle over safety concerns.”

False. GPs, whether employed or working under a GMS, PMS or APMS agreement, are now all protected by the Public Interest Disclosure Act 1998 (PIDA).

PIDA was recently amended to extend the protection afforded to GPs. Previously only employed GPs and those working under a GMS contract were protected. This has been extended to include all PMS and APMS contract holders in England (GPs in the devolved nations should consult a lawyer to ascertain their own legal standing in this respect). There had been a significant disparity in the level of protection offered by the Act until this amendment.

The protection from detriment and dismissal for whistleblowers introduced by the Public Interest Disclosure Act 1998 (PIDA) into the Employment Rights Act 1996 also applies to GPs working in Wales and Scotland. Those deemed to be ‘workers’ are accorded protection and, following the recent amendments referred to above, the wider definition of ‘worker’ covers GPs performing services under a variety of different contracts (not just GMS contracts) made with a Local Health Board under the National Health Service (Wales) Act 2006 or with a Health Board under the National Health Service (Scotland) Act 1978.

The legislation governing the position in Northern Ireland is different. Protection derives from Public Interest Disclosure (Northern Ireland) Order 1998 which amended the Employment Rights (Northern Ireland) Order 1996. GPs working under GMS contracts/contracts providing general medical services in accordance with arrangements made by a Health and Social Services Board under (Articles 57 and 56 of, respectively) the Health and Personal Social Services (Northern Ireland) Order 1972 are protected.

Protection for whistleblowers under PIDA has been in existence since 2 July 1999 in England, Wales and Scotland. Protection was extended to Northern Ireland from 31st October 1999.

The new provisions extending the scope of PIDA in England, Wales and Scotland (brought in by Enterprise and Regulatory Reform Act 2013) came into force on force on 25th June 2013. It applies to disclosures made after 25 June 2013, rather than incidents.

For example:

– If the information that a worker wishes to make a protected disclosure (blow the whistle) refers to January 2013, and they made the disclosure in May 2013, then the old regime would apply.

– If the information that a worker wishes to make a protected disclosure (blow the whistle) refers to January 2013 and they made the disclosure in July 2013, then the new regime would apply to protect the whistleblower (the new regime being a little more extensive).

“Gagging clauses can’t prevent me from whistleblowing.”

True. ‘Gagging’ clauses cannot prevent a worker from raising a whistleblowing issue. Any clause that seeks to do so is void.

Gagging clauses describe a variety of confidentiality clauses or agreements. Frequently they are mistakenly called ‘gagging orders’. They are often part of a settlement agreement or used within a severance arrangement. They are commonly and appropriately used to resolve disputes whilst protecting the interests of the parties. In the healthcare setting they properly help preserve patient and practice confidentiality.

PIDA, which protects whistleblowers, expressly voids any gagging clause which attempts to prevent a worker from raising a whistleblowing concern.

“I won’t be protected as a whistleblower if it is suggested that I am acting maliciously or for money.”

False. Workers will now be protected even if is alleged they ‘blew the whistle’ due to spite or receiving a payment.

PIDA had previously required any protected disclosure to be made in good faith. This Act has been amended and now, even where there is an ulterior or additional motive for blowing the whistle, the worker will still be protected. Good faith still remains a factor though and any compensation awarded could be reduced by up to 25%.

“I will know about a gagging clause that affects me.”

True. As we have said, gagging clauses are a type of confidentiality clause. To be valid and restrict you, you must have agreed to it.

If it is something you agreed to some time ago, you may need to look it up and remind yourself of how extensive the clause or agreement is. Bear in mind that confidentiality clauses are commonplace. They exist in contracts of employment, partnership deeds, settlement agreements and joint venture agreements. Most potentially commercially sensitive agreements will have such a clause.

Martin Cheyne is a partner in the employment team at Hempsons, and Andrew Sugarman is a barrister, specialising in employment law, at Parklane Plowden Chambers.