Scottish Government
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Confidentiality clauses

Standard NHS settlement agreements to remove clause.

Confidentiality clauses are to be removed from standard NHS settlement agreements in Scotland, according to Health Secretary Alex Neil.

Speaking at the Royal College of Nursing (RCN) Activist conference yesterday (Thursday), Mr Neil said that a new standard settlement agreement will be drafted that excludes confidentiality clauses.

The current template agreements include standard confidentiality clauses, although these cannot be used to suppress the reporting of concerns about patient safety or malpractice in the NHS in Scotland.

The new template agreement, which will be developed in discussion with stakeholder groups such as the RCN, will be finalised over the coming months.

Mr Neill will also set out to health boards that the presumption must be against the use of any confidentiality clauses.

This will mean staff who receive the new agreements will not be bound by any confidentiality clauses, unless both they and the board explicitly agree to its inclusion.

Any use of any confidentiality clauses would also result in the Scottish Government being notified, to allow them to be better scrutinised, including by parliamentary committees.

Speaking at the conference, Mr Neil said:

“I have always been very clear that there is no place for gagging clauses in our NHS.

“However, while there is a clear difference between gagging clauses and confidentiality clauses, I recognise that there can be a perception that these could be used to prevent staff from speaking out about failures in care offered to patients.

“That is why I have taken the decision that a new standard agreement will be drafted, which will remove the automatic inclusion of confidentiality clauses.

“These clauses may still be used in some cases but only where there is explicit agreement between both the employer and employee that this is required.

“There is no clause whatsoever that can legally bar anyone from raising their concerns about patient safety, and I repeated today that anyone who is currently subject to a confidentiality clause who has any such concerns will not be hindered in anyway.”

Mr Neil also announced that he is establishing a national workforce organisational development support team to support health boards to address issues such as bullying and harassment.

The team, working closely with stakeholder groups, will set up and maintain a network of mediators that will be available to health boards to offer arbitration at an early stage in complex cases, with the aim of reducing the need for formal dispute resolution.

“I’ve been very clear with health boards that bullying and harassment will not be tolerated in NHS Scotland.

“That is why I have asked boards to closely monitor bullying and harassment on a regular basis, and I will be discussing their progress on this issue with each health board during their annual review meetings.

“In addition, the national support team will work closely with health boards across Scotland to help address bullying and harassment issues, and this team will offer mediation and support in complex cases where required.

“These measures will all add to the strong whistleblowing and bullying and harassment policies that we already have in place across the NHS in Scotland.

“I expect health boards to listen to staff and ensure that any concerns raised are properly considered and if necessary investigated.”

RCN Scotland Associate Director Norman Provan said: “There’s a big difference between gagging clauses and confidentiality agreements which is not always understood, so we are pleased that the Cabinet Secretary has today announced the Government’s intention to remove confidentiality agreements from standard NHS settlement agreements, unless this is agreed by both parties. This will help to avoid confusion and we look forward to working with the Government to take this work forward.

“Earlier this year, the RCN met the First Minister Alex Salmond, party leaders and the Cabinet Secretary Alex Neil, where we raised our concerns about a number of issues, including bullying and harassment in our NHS. So today’s announcement that this issue is to be addressed is very welcome.

“In our experience, we have found that mediation is a very positive way to resolve conflict between two parties, so we’re encouraged by the Government’s announcement today that mediation and support will be available in complex cases. This intervention should begin as early as possible in the process, so that an early resolution can be found to avoid the often long and distressing system currently in place. Again, the RCN looks forward to working with the Government to implement this initiative which will need to be fully funded to be truly effective.”

Notes to editors

A settlement agreement is a legally binding agreement in which an employee accepts a financial settlement in exchange for waiving the right to pursue a legal case against their employer of former employer.

Any agreement which sought to prevent staff for raising concerns about patient safety or malpractice would be illegal under the Public Disclosure Scotland Act (PIDA) 1998, making any such agreement unenforceable.

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