HOW TO SPOT A GAGGING CLAUSE
In September 1997 the UK Health Minister Alan Milburn MP announced that health service managers should stop gagging their staff and that gagging clauses should be removed from contracts. At the time Freedom to Care welcomed this statement of principle, and would like to see the government follow it up with detailed guidance and implementation plans. We call on the Department of Health to:
The first difficulty is that we are not told what a ‘gagging clause’ is - what does one look like? Freedom to Care provides this spotter’s guide:
AN EXAMPLE: "I undertake to treat as confidential all information derived from or obtained during or after my employment at the XYZ NHS Trust. I understand that failure to do so may result in disciplinary action which may result in dismissal".
What makes this a gagging clause?
GENERALITY
It suffers from generality. No one can realistically treat as confidential "all information" and morally no one should be required to do so. Clauses with this defect are unenforceable in a court of law. This kind of generality intimidates staff because they are left in the dark as to what they can say - so they say nothing. A legitimate confidentiality clauses is specific in character.
LACK OF BALANCE
It presents confidentiality as an absolute. It does not balance it against other considerations. Absolute confidentiality is secrecy. Proper respect for confidentiality is only always a presumption in favour of non-disclosure i.e. good reasons have to be given for disclosing. But there are always such possible reasons. In most general terms the public interest may make a breach of confidentiality legitimate. There are many other good reasons for disclosing, some of them statutory! A legitimate clause spells out the other side of the balance. In an open society there should be a presumption in favour of openness not secrecy i.e. those who wish to maintain confidence have the onus on them to tell us why (and, of course, there are some very good reasons, such as protecting patient’s privacy)..
INTIMIDATING TONE
It immediately associates discipline and dismissal with breach of confidentiality. In fact discipline and dismissal are no more associated with breaches of confidentiality than they are with a wide range of other wrongdoing. There is no need to emphasize them here, except that they frighten staff - which is what they are meant to do!
DISCRIMINATORY
Staff are often given the impression that confidentiality rules apply only to them, or especially to them. They apply to everyone equally including the chief executive. This should be made clear in principle and practice.
LACK OF CLARITY
Staff and managers need to be told in a guidance booklet and/or study period what are the different kinds of confidentiality provisions, what their rationale is, and what sorts of things are confidential. Confidentiality clauses often make no distinction between confidentiality to protect patients, to protect personnel information, to protect commercial interests and so on.
POSITIVE ACTION
Employees need to be told that their concerns and criticisms are welcome, that channels exist for expressing them, that these channels are protected by principles of due process and independence, and that anyone who dares take reprisals for raising concerns will be subject to disciplinary action. Staff need to understand the principle of the ‘right to know’ in relation to the Access to Health Records Act, the Data Protection Act, and the forthcoming Freedom of Information Act and it is the duty of their employers to draw these to their attention.