NHS Counter Fraud Investigations
NHS Counter Fraud Investigations – Legal Defence
The NHS has its own ‘security force’ that investigates clinicians where there are concerns that they may have acted dishonestly within the workplace, or otherwise improperly outside of accepted NHS protocols, to the financial benefit of others or themselves, including acts of bribery.
An “NHS Counter-Fraud Authority” investigation (conducted by the NHS Counter-Fraud Authority) can come about suddenly. Some investigations are closed quickly, while others might rattle on for a long time. There is a risk in all investigations that the matter will be referred to the criminal courts for prosecution. (See also the Welsh division of NHS Counter-Fraud for the position there.)
Doctors who face investigation may be invited to be formally interviewed under the Police and Criminal Evidence Act procedures (PACE). On some occasions, the police will be involved, and a doctor will be arrested. Alternatively, they will be invited to attend an interview on a voluntary basis, either with NHS personnel and/or the police being present.
It is not always wise to attend a voluntary interview, but, at the same time, to fail to do so could lead to adverse criticism (including at trial – inferences from silence) and, in some cases, GMC involvement. A doctor may take a lawyer with them to NHS-based PACE interviews where a possible criminal offence is being investigated, and it is wise for a doctor to attend with one.
Even where NHS Counter Fraud does not bring criminal charges, the evidence obtained may, notwithstanding, be passed to the General Medical Council (GMC) or other regulators of registered professionals to investigate further.
The GMC will usually investigate allegations referred by the NHS and, in doing so, will apply a lower threshold, the balance of probabilities, in comparison to the criminal process, which uses the criminal standard of proof (beyond reasonable doubt; or, being sure of guilt).
Not all NHS Counter Fraud cases lead to criminal charges being brought, and at Doctors Defence Service, we work hard with the doctor to demonstrate their innocence, or, where a doctor may have fallen into error, to work towards obtaining the best possible outcome. This may be a repayment without liability to the NHS of monies, or the return of property, or the cancellation of a contract.
Such actions need to be undertaken carefully and in a structured way to avoid such steps being used against the doctor later. Here at Doctors Defence Service, we have known the GMC to become involved and place reliance on a settlement to bring allegations of misconduct.
On occasions, a doctor will accept that, due to personal circumstances or financial pressures, they have improperly acted. In such cases, it is important to carefully manage the disclosures made to others where formal admissions are to be made. Quality mitigation can lead, in some cases, to the avoidance of criminal proceedings altogether, as not all cases are in the public interest to be prosecuted.
An allegation of dishonesty can arise through an act or omission to act. It might be a direct action or omission that is alleged, or a failure as a manager to prevent fraud from occurring. There are new duties on preventing fraud in institutions over a certain size.
Legal Advice Before Answering Questions
Legal advice should be obtained before answering questions or putting anything into writing, as to do otherwise could lead to criminal or GMC proceedings.
Where criminal charges are brought, Doctors Defence Service can represent doctors in the magistrates courts and crown courts, and on appeal.
Where cases are referred to the GMC, our lawyers at Doctors Defence Service can advise and represent doctors at all stages, including fitness to practise and appeals.
Most often NHS Counter-Fraud will allege some form of dishonesty. One can read the NHS policy on combating fraud across the health service estates: Countering Fraud in the NHS.
We can also advise on fraud allegations relating to NHS/doctor job plans and timesheets.
Timesheet Fraud
The NHS investigates timesheet fraud across the NHS estate. Clinicians and lay staff who complete timesheets can be questioned about the accuracy of their timesheet claims. The NHS Counter Fraud Authority might allege a single incident or multiple incidents of timesheet fraud, sometimes amounting to tens or hundreds of thousands of pounds sterling of losses to the NHS, which they can demand recipients refund. Individuals suspected of timesheet fraud will usually be invited to a voluntary PACE interview and face criminal prosecution when there is sufficient evidence.
Whistleblowing Retaliations
Doctors Defence Service can also advise doctors about potential whistleblowing concerns, where fraud may be alleged against others with whom they work. Allegations need to be carefully made because, at Doctors Defence Service, we have known senior doctors to retaliate and ‘crush’ the doctors who have brought complaints, by making serious counter-allegations.
How to Report Fraud in the NHS
To make a complaint of fraud in the NHS, you can do so anonymously: Report Fraud in the NHS
NHS Disciplinary Processes (MHPS)
NHS disciplinary investigations will usually be put on hold until the conclusion of the NHS Counter Fraud investigation.
Cases Mentioning NHS Counter Fraud Team and Clinicians
Nursing and Midwifery Council, R (on the application of) v Akinleye [2010] EWHC 150 (Admin) (19 January 2010) NMC Interim Orders Challenge, brought by nurse, unsuccessful. Admitted allegation of falsifying records, by nurse.
London Strategic Health Authority v Pandya & Ors [2008] EWHC 967 (Ch) – an alleged fraudulent prescriptions case, including a claim by the NHS for restitution. The NHS claim was successful. (09 May 2008)
Injunctions
Gupta v Northampton Hospital NHS Trust [2021] EWHC 965 (QB) (21 April 2021) The claimant doctor applied to the court for an injunction that would have forced the NHS to reinstate them (from a temporary exclusion back to their substantive job) and prohibiting the NHS from contacting or sharing information with the claimant’s private work providers or other employers. The court refused the application and ordered the doctor to pay the NHS’s costs of responding to the application for an injunction in the sum of £30k. The NHS investigation initially related: (a) alleged irregularities around payments for additional hours, (b) the alleged abuse of position to procure private patients from their NHS practice, and (c) their allegedly having conducted private work during paid NHS time.
The Data Protection Act 2018, Schedule 2 enables the NHS to acquire data held by others, if it is relevant to the investigation of a case. There are also agreements with the EU to exchange data in the pursuit of criminal justice.
In Al Nageim v General Medical Council [2021] EWHC 877 (Admin) a doctor appealed against a sanction of erasure, pursuant to allegations relating to their accessing hospital facilities without authority, and retaining ‘salary’ payments he was not entitled to. The appeal was dismissed by the appeal court (High Court). The NHS Counter Fraud interview was relied upon. (April 2021)
Doctors Defence Service advises and represents doctors facing investigation by NHS counter-fraud or NHS Prevent or the police. Call us in strict confidence to speak to a lawyer without obligation: 0800 10 88 739