Exclusive CCGs have been told to amend their constitutions to strengthen the rights of GPs to speak out by the chief executive of NHS England, following Pulse’s reports of ‘gagging clauses’ last year.
Sir David Nicholson said NHS England had reviewed the controversial clauses as a result of ‘stories to the effect that some CCG constitutions may have gagging clauses that prevent members from speaking out about the work of the CCG’, following a series of Pulse stories on the issue.
NHS England found that the CCGs’ clauses were intended to ‘ensure the consistency of media messaging among CCG members’.
However, in a letter to CCGs, Sir David said they should insert a separate clause to ‘remove any doubt’ that GPs were being gagged.
Despite the Government’s condemnation of ‘gagging clauses’ in the health service following the Francis Inquiry, Pulse last year revealed that the same clauses were written into constitutions covering over 200 practices, including those in NHS Newbury and District CCG, NHS Sutton CCG, NHS Dorset CCG, NHS Thurrock CCG and NHS Windsor, Ascot and Maidenhead CCG.
The clause for Newbury & District, covering 11 practices, and Windsor, Ascot & Maidenhead, which covers 20 practices, originally stated: ‘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].’
Pulse’s stories led to a petition protesting against such clauses.
Sir David wrote of his concern following ‘stories to the effect that some CCG constitutions may have gagging clauses that prevent members from speaking out about the work of the CCG without the written approval of its governing body.’
He wrote: ‘Having reviewed some of these clauses, we believe that the intention behind them is to ensure the consistency of media messaging among CCG members and staff, rather than to prevent disclosures that are in the public interest.’
Following the review, NHS England recommended that CCGs insert a clause stating: ‘The group recognises and confirms that nothing in or referred to in this constitution (including in relation to the issue of any press release or other public statement or disclosure) will prevent or inhibit the making of any protected disclosure (as defined in the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998) by any member of the group, any member of its governing body, any member of any of its committees or sub-committees or the committees or sub-committees of its governing body, or any employee of the group or of any of its members, nor will it affect the rights of any worker (as defined in that Act) under that Act.’
GPC chair Dr Chaand Nagpaul told Pulse that ‘it is enshrined in the GPs’ duty of candour and it is crucial that CCGs remove all ‘gagging clauses’.
He added: ‘But more than that – this is about unwritten perceptions and the need for staff to feel empowered against systems or services that are damaging to patient safety.’