Recommendation F179: Restrictive contractual clauses
From Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, published 6 February 2013.
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.
In brief (written by this site)
The Inquiry called for gagging clauses to be prohibited across healthcare organisations, regulators, and commissioners. In commentary of September 2024, published in February 2026, the Department of Health and Social Care and National Health Service (NHS) England described guidance for employers stating that settlement agreements "should only be used in exceptional circumstances", but regulators and commissioners are not mentioned in the sources (DHSC and NHS England, Feb 2026). In May 2024, the Thirlwall Inquiry legal team noted that the government had accepted the recommendation and required compromise agreements to explicitly permit disclosures in the public interest (The Thirlwall Inquiry legal team, May 2024).
AI-generated summary of the record on this page, checked by a second model and automatic checks, 5 Oct 2026. The record below is the sources' own words.
About this summary
This recommendation applies across many organisations. The record reflects central policy activity; adoption in individual organisations may vary.
Government response
Accepted.
We understand the critical importance of fostering and sustaining an open culture in which concerns about care can be raised, investigated and acted upon without fear of retribution. Our policy is clear that any attempts to prevent individuals from speaking out in the public interest will not be tolerated. NHS guidance has been consistently clear that local policies should prohibit the inclusion of confidentiality clauses in contracts of employment and compromise agreements which seek to prevent an individual from making a disclosure in accordance with the Public Interest Disclosure Act (PIDA). We are, however, also aware that some confidentiality clauses that may make some people feel as though they are being ‘gagged’ even though they are not. Such clauses, although not illegal, may have what is known as a ‘chilling effect’ on some people. We now therefore require the inclusion of an explicit clause in the compromise agreement to make it absolutely clear to staff signing an agreement that they can make a disclosure in the public interest in accordance with PIDA, regardless of what other clauses may be included in the agreement.
How this response relates to the recommendation
Site note: This is volume two of "Hard Truths: The Journey to Putting Patients First" (Cm 8777-II), the government's response to the Inquiry's 290 recommendations, published by the Department of Health on GOV.UK on 19 November 2013 and dated to that day here. The PDF the row links to is the accessible edition, whose title page reads "January 2014". The Department of Health has been the Department of Health and Social Care since January 2018. The volume says it includes accounts from each of the national organisations the recommendations name, but it does not mark which passage each organisation wrote, so every row is filed under the Department that published it.
Blanket government agreement does not establish acceptance or delivery by each addressee. Some response passages cover groups of recommendations.
Scope of the government response
Government responded via "Hard Truths: The Journey to Putting Patients First" (2014), a single document covering all 290 recommendations with a blanket acceptance. Individual recommendation responses were not broken out.
Delivery
DHSC and NHS England say partially delivered (27 February 2026)
NHS Employers on their website outline employer actions including key considerations, resources and case studies to support reviewing and developing local arrangements for speaking up.
NHS Employers have published guidance on the use of settlement agreements and confidentiality clauses when resolving a workplace dispute or ending an employment contract. This is advisory only, but states settlement agreements should only be used in exceptional circumstances.
Site note: DHSC and NHS England's own account of progress, supplied to the Thirlwall Inquiry in September 2024 and printed in the Inquiry legal team's Review of Implementation of Recommendations from Previous Inquiries into Healthcare Issues (version dated April 2025, published 27 February 2026). It is not a finding of the Inquiry. Their reviewed extent of implementation reads “Partially implemented - Ongoing”. Table row: section 18.2 No. 179, PDF page 512.
Department of Health and Social Care states no delivery position (11 February 2015)
No further update is required. Please see response to the recommendation in Hard Truths
Site note: This is the supporting annex published on 11 February 2015 with "Culture change in the NHS: applying the lessons of the Francis Inquiries" (Cm 9009), attached to the GOV.UK page as "Culture change in the NHS supporting annex". The annex has no title page; that title is GOV.UK's and the PDF's own. Its table has four columns (No., Recommendation, Hard Truths Government response, Progress update), and the row carries the Progress update cell. No column says which organisation wrote an update, so the row is filed under the Department of Health (now the Department of Health and Social Care), which published it.
What other bodies have found
In their own words. These do not change the delivery statement above.
Thirlwall Inquiry legal team (15 May 2024)
This recommendation was accepted by the Government.
In the January 2014 Hard Truths report, the Government said it required the inclusion of an explicit clause in compromise agreements to make it clear to staff signing one that they could make a disclosure in the public interest in accordance with the Public Interest Disclosure Act, regardless of what other clauses might be included in the agreement.
Site note: The Thirlwall Inquiry legal team's own notes on implementation, from its Review of Implementation of Recommendations from Previous Inquiries into Healthcare Issues (version of 15 May 2024). The review does not colour its Extent of Implementation cell for this recommendation green; it leaves the cell uncoloured where a recommendation was rejected, where evidence of implementation was insufficient, or where steps had been taken but implementation was not yet complete. Table row: section 16.2 No. 179, PDF page 478.
Source
Responsible bodies
Themes and tags
Who has spoken
- Department of Health and Social Care
Response, delivery statement - DHSC and NHS England
Delivery statement - Thirlwall Inquiry legal team
Finding