NHS chief denies cover-up over gagging orders

The head of the NHS in England has denied being part of any "cover-up" relating to gagging orders in severance payments to hospital staff.

Sir David Nicholson said he supported whistleblowers and had always been "honest and truthful" with MPs.

Tory MP Stephen Barclay had said he was either "complicit in a cover-up" or had not asked questions about confidential payments made to departing staff.

Since 2008 the MP discovered that 52 payments totalling £2m have been made.

It is not known if the payments made by 30 hospitals who responded to Mr Barclay's Freedom of Information requests included gagging orders.

The row revolves around the use of "judicial mediation" to resolve employment disputes with NHS staff. In such cases, a hospital reaches an agreement with staff, with an employment judge acting as mediator.

'Systemic cover-up'

Up until April 2013, the agreements were not referred to the Treasury for approval.

In a Daily Telegraph story published ahead of his appearance before the public accounts committee, it was reported that Sir David would be accused of misleading Parliament and taking part in a "systemic cover-up" over the use of the agreements.

Sir David told the committee a lot had been said on Wednesday morning that was "completely untrue".

"I take my responsibilities to Parliament really really seriously... and I'm absolutely and at all times honest in what I do.

"I can absolutely refute I have ever been involved in any kind of cover-up in relation to the expenditure identified. I have been absolutely honest and truthful with this committee."

He said compromise agreements were widely used, not just in the NHS but elsewhere in the public and private sectors, and they did not "necessarily mean someone has been stopped [from] speaking about patient safety".

"To connect the two all the time is, I think, erroneous and wrong."

He said he had always supported whistleblowers and had made arrangements to strengthen the NHS Constitution in relation to whistleblowing.

'Conflict of interest'

He was asked about the issue at a previous committee hearing in March - after Gary Walker, the former chief executive of the United Lincolnshire Hospitals Trust (ULHT), said he had been prevented by the NHS from speaking out about his dismissal in 2010 and his concerns about patient safety.

At the time, Sir David said it was the "only case he had ever come across" and he would "get the information in" about whether there had been other cases of judicial mediation.

But quizzed about why he had not done so, he said his responsibilities had changed in April 2013 and he had passed it on to the Department of Health to look into. MPs were told it had been thought too costly to gather the information, which would have been partial and inaccurate anyway. Committee chairman Margaret Hodge said it had been "impertinent" not to keep the committee informed on the issue.

Mr Barclay told Sir David that gagging clauses could have a "chilling effect" on staff who wanted to speak out: "We saw that in the Walker case, where a legal letter was sent to Mr Walker, even though I suspect it wouldn't have been enforceable against him if he was raising legitimate patient safety concerns."

Sir David acknowledged "the potential chilling effect of compromise agreements and confidentiality clauses" in the NHS and said he had taken action to ensure "everyone understands that you cannot gag NHS staff who want to speak out about patient safety".

He also told the committee that the Treasury had informed the NHS in writing in 2011 that it was not necessary to obtain its approval for payments agreed under judicial mediation - something MPs were told was a result of "confusion" as to what exactly it was.

The Department of Health said the system had changed this year so that all severance payments, including those reached through judicial mediation, were now referred to the Treasury.

Sir David announced last month he would retire in March 2014. He was criticised following the publication of the public inquiry into the scandal at Stafford Hospital - in which hundreds of people died amid "appalling" levels of care.

In March, Health Secretary Jeremy Hunt said gagging clauses in NHS severance agreements must end.