Interviews of Doctors in NHS Counter-Fraud Cases
The NHS investigates allegations of fraud perpetrated against the NHS by its employees. Doctors might be investigated for fraud occurring in their workplace or in relation to moonlighting when they should be at work or in relation contracts that they may have been involved in to provide services to the NHS. NHS Counter-Fraud can investigate any loss to the NHS or alleged dishonesty relating to contracted hours or services, whether relating to contracts for services or contracts of service, or other contracts.
A doctor who is suspected of committing fraud will usually be invited to attend a voluntary interview, to explain themselves. If they have acted in a manner that is dishonest or they have failed to carry out their duties in a manner that was honest, and their conduct (by act or omission) has caused intentional loss to the NHS, the doctor will be confronted with the evidence during the interview.
A doctor, prior to their voluntary interview, is entitled to a certain amount of information about the allegations, called ‘Advance Disclosure’. From this disclosure, the doctor will have a broad understanding of the case that is being investigated, and the likely scope of the questions they will face. The interviewer will have an arsenal of statements and exhibits that that are likely to refer to, not all of which will be made known to the doctor being interviewed, at the Advance Disclosure stage.
A doctor is not obligated to attend a voluntary interview with NHS Counter-Fraud. However, a failure to do so could lead to a formal arrest by police, who have the power to hold an interview. for more information on interviews conducted by the police, see our article: Police Interviews with Doctors. That article also has some relevance to how NHS Counter-Fraud interviews are conducted. The more serious the allegation the greater the likelihood of police involvement.
An voluntary interview might also be the opportunity for a doctor to clear their name. We have attended a number of interviews with doctors, who have been cleared of wrongdoing because they have presented a robust or reasonable explanation (with evidence, where appropriate). Good preparation for the interview is therefore key, and we can advise doctors on how to prepare for interview, by assisting doctors to compile statements, tables and analysis for the interviewing officer to take into account. When to deploy such defence material is also a relevant consideration. On occasions it may be appropriate to submit such materials prior to interview, or show documents during interview, or provide them afterwards. On some occasions a doctor will not have any such material to place before the interviewer.
In some cases of alleged fraud or dishonesty, doctors may have made errors albeit they have not acted dishonestly. Following our involvement, a number of fraud investigations have been closed following a voluntary interview, because we have assisted the doctor to evidence their innocence or create a reasonable doubt about their alleged guilt. Doctors are generally not inherently dishonest, and a careful explanation or formal statement can go a long way to demonstrate that there is no case to answer. Misunderstandings do occur. Job plans can be a mess. And illness can have an impact on administrative abilities or competence. Often there will be a less sinister explanation for the alleged conduct complained of. See our other articles, for more information on NHS Counter-Fraud Investigations.
It should be noted that a number of NHS Trusts now sub-contract fraud investigations work to third-party commercial companies. Investigators must act professionally and fairly. Many such investigators are often ex-police officers, with significant experience of interviewing suspects, or specially trained individuals from an auditing or forensic background. They will be knowledgable about the Police and Criminal Evidence Act 1994 (known as PACE) which governs the way interviews are conducted, and the way the NHS works. A letter sent to a doctor will usually mention that the interview is to be conducted under PACE. This affords interview protections to doctors, providing a fair process for the doctor to reply. Nevertheless, an interview can be daunting and they can take a number of hours.
While PACE procedures offer procedural safeguards to doctors, the matters stated or not stated can also lead to adverse inferences being drawn, especially if certain questions are not answered by the doctor. It is therefore not always wise to go ‘No Comment’. Answering ‘No comment’ in itself may have a different interpretation in comparison to a doctor who states “I cannot recall for the moment”, or, “I would have to look into my records to be able to answer that more fully or correctly”.
The counter-fraud interview is there to clear up misunderstandings as much as it is to explore whether the doctor has committed a criminal offence. Many doctors remove suspicion by participating in PACE interviews, and we would recommend in most instances that a doctor should attend them and provide answers to questions that are appropriately put – if it is reasonable to do so. However, due to the technical nature of interviews we would recommend that all doctors are legally represented in NHS Counter Fraud PACE interviews. Where an interview is a fishing exercise, it may be appropriate to go ‘no comment’.
Right to Silence
A doctor has a right not to answer questions. However, adverse inferences can be drawn where a doctor fails to answer properly put questions and it would be fair to do so.
It is therefore important to determine what the evidence NHS Counter Fraud investigators are working with, and then decide whether to provide a prepared written statement, and then go no comment or answer questions. The questions put to a doctor under investigation must be fair and not oppressive.
Types of Fraud
Fraud can occur in many forms. Where a doctor puts their own or others interests over and above the NHS’s interests there may be a risk that a fraud allegation will be brought, where there is financial loss or an deleterious impact on the safe and efficient running of the NHS’s services. As per the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 (25 October 2017), a doctor need not know that an act or omission by them would be considered (objectively) to be ‘dishonest’ by ordinary honest people. What a doctor’s beliefs were at the time of the conduct complained of will be central to the assessment of whether they have acted dishonestly.
A doctor who knowingly and dishonestly does not work to their job plan can cause losses to the NHS. Further, a doctor who undertakes private work during the time that they are supposed to be working for the NHS will potentially be committing a fraud on the NHS.
Doctors can also be investigated for submitting a false CV to a NHS employer or potential employer (which would be a form of criminal fraud), and so great care should be taken in relation to all documentation that is submitted to the NHS, at all times.
NHS Counter-Fraud’s Powers to Obtain Documents from Third Parties
NHS Counter-Fraud has the power to obtain documents from a number of UK sources by way of statutory powers. There are also arrangements with EU countries. See the Data Protection Act 2018, Schedule 2 for the provisions affecting parts of the UK.
This enables the NHS to test (outside of the interview) what a doctor has said in interview, and to rebut a doctor’s defence case, if they discover evidence that contradicts a doctor’s defence case. Not all witness statements will necessarily be accurate and a doctor is entitled to challenge them.
“We should not lose sight of the fact that some witnesses may have reasons of their own for not being wholly truthful.” (Daniels and Others [2010] EWCA Crim 2740)
Referrals to Other Bodies
Dishonesty allegations (even if there is no criminal prosecution) and criminal convictions for fraud can also be referred to the GMC. Further, allegations of fraud can also be submitted to the Performance Advisory Groups (PAGs), where a doctor is on the GP performers list as well.
If you are a doctor facing a police or NHS Counter-Fraud interviews, call us without obligation on 0800 10 88 739 to discuss our legal advice and representation services.
