Lawyers acting for an NHS trust are being investigated over “gagging” clauses proposed in a settlement agreement with a whistleblower who raised concerns that mistakes by paramedics in the deaths of patients were being covered up.
In June, the then health secretary, Sajid Javid, announced an NHS review into “tragic failings” by North East Ambulance Service after Paul Calvert went public with claims that reports into deaths were doctored to cover up failings by staff.
The Guardian has learned that NEAS’s lawyers, Ward Hadaway, are also under scrutiny – by the Solicitors Regulation Authority (SRA) – over the terms proposed by the trust for his exit agreement. The agreement, offering him £41,000 in compensation, initially included confidentiality clauses relating to future disclosures.
A SRA investigation does not mean there has been wrongdoing and it does not confirm or deny whether it is examining a solicitor. However, the Guardian understands that the regulator has been in contact with Calvert about the proposed agreement.
Calvert, who remains technically employed as the NEAS coroner’s officer, refused to sign the agreement and withdrew from negotiations in April, saying he would proceed to an employment tribunal.
Several drafts of the agreement were drawn up. While stating that it shall not prohibit him “from speaking out about any concerns”, the agreement initially contained other clauses, later removed from – or amended in – future drafts, which sought to limit further disclosures and would require Calvert to repay the £41,000 if they were deemed to have been breached.
In an email to the conciliation service Acas, which was brought in to assist negotiations, Calvert, a former detective with Northumbria police, wrote: “The clauses as they stand place too many restraints upon me … Asking me to forgo many of my rights under Pida [Public Interest Disclosure Act 1998].”
Use of confidentiality clauses are not forbidden under the law but they must comply with Pida. Their deployment in the NHS has long been controversial but they continue to be used in exit agreements despite calls to curb their use.
The Health Service Journal reported that at least 247 settlement agreements with a non-disclosure clause or agreement were signed by NHS trusts in England between 2018-19 and 2020-21, with a total value of £4.6m.
After Pida was passed, a Department of Health circular to NHS organisations stated: “NHS Trusts should prohibit the use of ‘gagging’ clauses in contracts of employment and compromise agreements which seek to prevent the disclosure of information in the public interest.”
Use of such clauses has also been criticised by successive health secretaries. In 2013, Jeremy Hunt wrote to the head of every NHS trust to urge them not use legal blocks on whistleblowers, warning against a culture of “institutional self-defence that prevents honest acknowledgement of failure”.
But with their use still prevalent, in 2019, Matt Hancock vowed to put an end to them when he said: “Settlement agreements that infringe on an individual’s right to speak out for the benefit of patients are completely inappropriate.”
NHS Employers says confidentiality clauses can be legitimately used but there should be consideration of whether or not they are appropriate in the circumstances.
Calvert’s claims of wrongdoing at NEAS, published in the Sunday Times after he said attempts to raise the issue internally were ignored, related to concerns around approximately 90 cases involving mistakes by paramedics, withheld from coroners and families.
A spokesperson for Ward Hadaway said: “It would be inappropriate to comment at this time.” NEAS also declined to comment.
