Restrictive contractual clauses
Mid Staffs Inquiry · Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry · Issued 6 February 2013 · Addressed to: Department of Health and Social Care
Source — verbatim from the inquiry
●Inquiry recommendation
"Gagging clauses" or non disparagement clauses should be prohibited in the policies and contracts of all healthcare organisations, regulators and commissioners; insofar as they seek, or appear, to limit bona fide disclosure in relation to public interest issues of patient safety and care.
Mid Staffs Inquiry, Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry · 6 Feb 2013 Source PDF →
Published evidence summary
Publicly available evidence relating to this recommendation:
- The Enterprise and Regulatory Reform Act 2013 (sections 17-19) amended the Employment Rights Act 1996 to strengthen whistleblowing protections. Section 17 removed the requirement that disclosures be made "in good faith" for the purpose of detriment protection. Section 18 extended protection to workers subjected to detriment by co-workers and agents of their employer. Section 19 introduced vicarious liability for employers where their workers subject a whistleblower to detriment (Enterprise and Regulatory Reform Act 2013, ss.17-19).
- NHS England issued guidance in 2014 stating that settlement agreements for NHS staff must not include clauses that prevent or discourage former employees from making disclosures about patient safety. The NHS Standard Contract includes provisions requiring NHS providers to ensure that their employment contracts and settlement agreements do not include gagging clauses that limit bona fide disclosure about patient safety concerns (NHS England settlement agreement guidance).
- The government's response in "Hard Truths" (Cm 8777, November 2013) stated that gagging clauses that seek to limit bona fide disclosure about patient safety would be prohibited in NHS contracts and settlement agreements (Hard Truths, DHSC, November 2013).
Response — verbatim from government
●Department of Health and Social Care
The government published "Hard Truths: the Journey to Putting Patients First" (Cm 8777) on 19 November 2013, responding to all 290 recommendations of the Francis Report. This followed an initial response "Patients First and Foremost" in March 2013. Key reforms included a new Chief Inspector of Hospitals, strengthened Care Quality Commission inspection regime, a statutory duty of candour, and the fit and proper person test for NHS directors. Volume 2 (Cm 8754) contains the government's detailed responses to each of the 290 recommendations. See: https://assets.publishing.service.gov.uk/media/5a7cd486ed915d63cc65d167/34658_Cm_8777_Vol_1_accessible.pdf
Department of Health and Social Care · 19 Nov 2013 Written response →
Evidence trail — what's actually happened since
- 1 Jun 2025 · National Guardian's Office - Annual Data 2024-25 Over 1,400 Freedom to Speak Up Guardians across healthcare organisations in England. 38,000+ cases raised in 2024-25, cumulative total exceeds 142,000 since inception. However, NHS Staff Survey 2024 shows only 71.5% of staff feel secure raising concerns about unsafe practice (stagnant for years), and only 57% are confident their organisation would address concerns. View source → Reasonable Progress
- 26 Nov 2024 · DHSC - Duty of Candour Review DHSC published findings of call for evidence on statutory duty of candour. 261 responses received. Key finding: 52% of respondents said CQC had not adequately enforced the duty. Many reported it had become a "tick-box exercise". Only 40% thought the purpose was clear and well understood. Final government response still pending. View source → Reasonable Progress
- 15 Oct 2024 · DHSC - Penny Dash Review of CQC Penny Dash Review (commissioned May 2024) found significant failings at CQC. Health Secretary declared CQC "not fit for purpose". Key findings: one in five services never rated; inspection levels well below pre-pandemic levels; lack of specialist inspector expertise; 5,000 notification-of-concern backlog. CQC consulting on resetting its approach from October 2025. View source → limited_progress
- 30 Jun 2024 · NHS England - Learn from Patient Safety Events Learn from Patient Safety Events (LFPSE) service replaced the National Reporting and Learning System (NRLS). NRLS fully decommissioned 30 June 2024. LFPSE has broader coverage including primary care, uses machine learning for analysis and improved trend identification. View source → Confirmed Completed
- 1 Oct 2023 · NHS England - Patient Safety Incident Response Framework Patient Safety Incident Response Framework (PSIRF) replaced the Serious Incident Framework from Autumn 2023. Shifts from individual blame to system-based learning approaches. Mandatory for all NHS-funded secondary care providers. Part of NHS Patient Safety Strategy (July 2019). View source → Confirmed Completed
- 1 Oct 2023 · Legislation - Health Services Safety Investigations Body HSSIB formally launched 1 October 2023 as independent statutory body under Health and Care Act 2022. Replaced HSIB (non-statutory, established 2016). Has statutory "safe space" protections, powers of entry, inspection and seizure. Conducts system-focused patient safety investigations. View source → Confirmed Completed
- 6 Feb 2023 · Academic Review - Ten Years After Francis Research published 2023 marking ten years since the Francis Report found mixed results. Structural and legislative changes largely delivered (duty of candour, FPPR, CQC overhaul, revalidation, Freedom to Speak Up Guardians). However, cultural change not fully embedded; understaffing, fear of speaking up, and poor complaint handling persist in parts of the NHS. View source → Reasonable Progress
- 12 Sep 2022 · Legislation - Patient Safety Commissioner First Patient Safety Commissioner Dr Henrietta Hughes OBE appointed 12 September 2022 under Medicines and Medical Devices Act 2021. Independent champion for patient safety regarding medicines and medical devices. View source → Confirmed Completed
- 1 Jul 2022 · Legislation - Integrated Care Boards (Health and Care Act 2022) Clinical Commissioning Groups replaced by 42 Integrated Care Boards from 1 July 2022 under Health and Care Act 2022. ICBs have broader responsibilities for population health, bringing together NHS organisations, local authorities and partners. Implements some Francis recommendations on commissioning integration. View source → Confirmed Completed
- 11 Feb 2015 · UK Government - Culture Change in the NHS Government published "Culture Change in the NHS" (Cm 9009) reporting progress on all 290 recommendations. Key achievements: 19 hospitals placed in special measures; those trusts recruited 109 additional doctors and 1,805 additional nurses; 129 board-level changes made; excess avoidable deaths fell by 450 in less than a year. View source → Good Progress
- 11 Feb 2015 · UK Government - Freedom to Speak Up Review Sir Robert Francis published Freedom to Speak Up Review on 11 February 2015 with 20 principles and actions. Led to: Freedom to Speak Up Guardians mandatory in all NHS trusts from October 2016; National Guardian's Office established January 2016. View source → Confirmed Completed
- 11 Feb 2015 · Department of Health / NHS organisations Francis recommended restrictions on contractual clauses that might prevent staff from speaking up. The Freedom to Speak Up Review (2015) addressed this. The government accepted that gagging clauses in NHS contracts should be prohibited. NHS standard contracts now include provisions protecting the right to raise concerns. View source → Confirmed Completed
- 27 Nov 2014 · Legislation - Duty of Candour (Regulation 20) Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 20: statutory duty of candour came into force for NHS trusts November 2014, extended to all CQC-registered providers April 2015. Requires providers to notify patients/families of notifiable safety incidents and apologise. View source → Confirmed Completed
- 7 Nov 2014 · Legislation - CQC Fundamental Standards New "Fundamental Standards" replaced previous CQC registration requirements from 7 November 2014. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 introduced clearer minimum standards including: person-centred care (Reg 9), dignity (Reg 10), safe care (Reg 12), staffing (Reg 18), good governance (Reg 17), fit and proper persons (Reg 5), duty of candour (Reg 20). View source → Confirmed Completed
- 1 Oct 2014 · CQC - New Inspection Regime CQC overhauled its inspection regime in response to Francis. Professor Sir Mike Richards appointed as first Chief Inspector of Hospitals (July 2013). New methodology based on five key questions (Safe, Effective, Caring, Responsive, Well-led) rolled out nationally October 2014. Four-tier ratings introduced (Outstanding/Good/Requires Improvement/Inadequate). Specialist expert-led inspection teams replaced generalist compliance model. View source → Confirmed Completed
- 19 Nov 2013 · UK Government - Hard Truths Vol 1 & 2 Government published "Hard Truths: The Journey to Putting Patients First" (Cm 8777) in two volumes. Vol 1 set out new actions; Vol 2 provided detailed response to each of the 290 recommendations. Approximately 204 of 290 recommendations were fully accepted. View source → Good Progress
Each entry above links to a primary source — gov.uk written statement, consultation response document, or inspection report. The Index does not characterise government intent; it tracks what has been published.
How this page is built
Source and Response are verbatim from primary documents. The Evidence trail records published activity since — written statements, consultation outcomes, inspection findings, parliamentary references. The Index does not paraphrase or characterise intent; it tracks what has been published. Where the evidence is the absence of action (a missed deadline, a slipped timetable), that absence is documented from primary sources rather than inferred.
This recommendation's data is verified periodically against primary sources. The Index is monitored for staleness weekly.