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GP duty of candour undermined by ‘inappropriate’ gagging clauses in CCG constitutions

Exclusive Hundreds of GP practices are blocked from voicing concerns over NHS care in their area under their CCG constitutions, despite the Government’s declarations that ‘gagging’ clauses are now unacceptable in the health service after the Francis Inquiry.

Legal agreements covering more than 200 practices from 1 April include clauses that prevent GP members from speaking about the CCG’s work without prior approval from the board.

The GPC said that it was ‘inappropriate’ that the clauses were inconsistent with the legal ‘duty of candour’ placed on health professionals after the publication of the Francis Inquiry into failures of care at Mid Staffordshire NHS Foundation Trust.

Pulse first reported the gagging of GP practices last year in two CCGs in a move that marked a shift in the independent status of GP practices, who are currently able to speak publically and to the media about PCT business.

Since then, Pulse has learnt NHS Newbury and District, NHS Sutton, NHS Dorset, NHS Thurrock and NHS Windsor, Ascot and Maidenhead CCGs have all retained a clause in their constitutions that prevents member practices from speaking out on CCG matters without getting prior approval from CCG leaders.

A further five CCGs have clauses that prevent those on the governing body from speaking out to voice concerns.

Four CCGs – Hull, Northumberland, Kingston and Oldham - that did have gagging clauses in their draft constititions have since removed them, with one saying that they did not want to prevent their members from speaking out ‘on issues of concern to them’.

The clause for Newbury & District, which covers 11 practices, and Windsor, Ascot & Maidenhead, which covers 20 practices, states: ‘No member will make or permit the making of any press release or other public statement concerning the CCG without the prior written approval of the [operational leadership team].’

In Sutton (29 practices), Dorset (103) and Thurrock (36), the clause reads: ‘None of the members or members of the Governing Body shall make or permit or authorise the making of any press release or other public statement or disclosure concerning the group or any of the members or members of the governing body without the prior consent in writing of the governing body.’

The clauses are very similar to a controversial Londonwide LMCs draft constitution published in 2011, which chief executive Dr Michelle Drage said at the time would strengthen governance and decision-making processes.

But the GPC said that the clauses were unnacceptable. Dr Chaand Nagpaul, a GPC negotiator, said: ‘In the post-Francis world, practices should not be restrained or put under any pressure with regards to not voicing concerns especially given they could be held culpable as members of a commissioning organisation.

‘One of the key Francis recommendations is that GPs need to be aware of the quality of care provided to patients, including in hospital services, and there is a duty on individual GPs to express and report concerns. It is inappropriate for CCG constitutions to curtail this clear recommendation.’

Dr Brian Balmer, chair of Essex LMC, said: ‘There is a big difference between setting out the corporate responsibilities for board members and telling everyone they are not allowed to say anything as members of the CCG. If it is to apply to member practices, how are they going to enforce it? Are they going to tell people they will have to leave CCGs? It’s daft.’

The chair of NHS Newbury and District CCG, Dr Abid Irfan, defended their constitution, saying that they had met today to discuss it and had decided to keep the clause because it was a ‘helpful guideline’.

He said: ‘Everyone recognised that it was a way to support GPs and practices - there was no feeling that anyone was being “gagged”. If there was any serious issue that an individual GP felt strongly about then they would naturally be free to speak out.’

Dr Adrian Hayter, CCG chair designate at NHS Windsor Ascot & Maidenhead CCG, said the clauses were designed to so the views of individual GPs and the CCG were not confused. 

He said: ‘We have no Machiavellian plan to not allow free speech and indeed we encourage this in our GP community. It is however important for the public to have a consistent view from their local NHS Commissioning organisation for the shape of their local services.’

A spokesperson for NHS Oldham CCG explained that they had removed the clause in their constitution banning members from speaking out: ‘It was never the intention to “gag” our members. The revised constitution better reflects our long standing position that we recognise our members duty to speak out on issues of concern to them’.

A spokesperson for NHS Sutton CCG said they ‘actively encourage’ their members to escalate any concerns or issues about patient safety and none had raised concern about that particular clause. NHS Dorset CCG reitterated the CCG’s position that the clause would only be applied to ‘statements of a confidential nature’ and insisted they were not trying to stop GPs speaking to the media ‘in general’.

But a DH spokesperson said CCG constitutions were not intended to gag their members and that they were committed to transparency in the health service.

He said: ‘We would not expect CCG constitutions to prevent individuals from raising concerns or speaking out in the public interest.

‘They are intended to set out the operating arrangements of the CCG, to ensure that all members work in partnership with the governing body on any public messages.’

A spokesperson for NHS England said: ‘CCGs are independent statutory organisations, and their constitutions have been developed as a means of achieving consensus between member practices on their organisational behaviours. Most CCGs have included provisions within their constitutions to ensure their organisations speak with a single, united voice, in order to secure maximum public understanding of the CCGs and their work.’