NHS gagging clauses plummet

Use of non-disclosure clauses in health service settlement agreements all but ceases

Friday 24th May 2019

The number of non-disclosure agreements (NDAs) agreed between NHS boards and former staff has reduced dramatically in recent years, according to the Scottish Government.

While so-called gagging clauses are not a legal barrier to people whistleblowing about care, patient safety or other issues at their former place of work, it’s claimed they can dissuade departing NHS staff from speaking out against their ex-employer.

In 2014 the Scottish Government told NHS Scotland that non-disclosure agreements – also known as confidentiality clauses – should not be used unless there were ‘clear and transparent reasons’ for including them.

Then-health secretary Alex Neil said there could be “a perception that these could be used to prevent staff from speaking out about failures in care offered to patients.”

As a result, the clauses could only be used with the explicit agreement of both sides – a health boards had to notify the Scottish Government every time they used them.

Following this edict, the number of NDAs in settlement agreements fell from more than 200 in 2010 to early 2014, to fewer than 20 from 2014 to 2019.

13 were signed in 2014-15, dropping to one for 2015-16.

In the last two years a total of five NDAs were agreed.

Before the Scottish Government introduced a presumption against their use, around 50 NDAs were being used every year.  

The figures were revealed in a parliamentary written answer published yesterday.