Francis Report: Update and Response

Lord Naseby Excerpts

Wednesday 11th February 2015 Lords Chamber

[Earl Howe]

I am grateful to the noble and learned Lord. NHS guidance has consistently made it clear that, where confidentiality clauses are used, they should go no further than is necessary to protect the legitimate interests of both the employer and the employee. There are circumstances when a gagging clause is appropriate, but local policies should always prohibit the inclusion of confidentiality clauses in contracts of employment and settlement agreements that seek to prevent an individual making a disclosure in the public interest, in accordance with the Public Interest Disclosure Act. Such clauses are often referred to as gagging clauses. If such clauses were to be included in a severance agreement or settlement, they would be deemed void in any event. We have made it amply clear to NHS organisations where the boundary lies between those two types of confidentiality clause.

[Lord Naseby (Con)]

Is my noble friend aware that the question of patient safety, which is emphasised, is fundamental to all this? In contrast, the number of claims for medical negligence continues to rise—in the past year, it did so by 18%—and now costs the NHS well over £1 billion. Has the time not come to have a thorough review of how such medical negligence claims are handled and who is behind some of them? Perhaps it is ambulance chasers. In any case, is not arbitration possibly the way forward, such as happens in essence when a coroner looks at a difficult case?

[Earl Howe]

My noble friend makes a series of very good points. We are, as he knows, extremely concerned about the rising level of litigation costs in the NHS. My department is consulting on proposals for how the duty of candour can be further incentivised by requiring trusts and foundation trusts to meet a proportion of the cost of negligence claims in cases where they have failed to be candid. We are also committing up to £35 million so that the NHS Litigation Authority can support trusts in implementing their safety improvement plans where those plans show a likely reduction in the number of higher-volume and higher-value claims over the medium to long term.