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 benefit of others or themselves, including acts of bribery.

A NHS counter-fraud 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, and there is a risk that the matter will be referred to the criminal courts. See also the Welsh division of NHS Counter-Fraud

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 not do so could lead to criticism and in some cases GMC involvement. A doctor may take a lawyer with them to NHS-based 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 nevertheless be passed to the General Medical Council (GMC) or other regulators to investigate further.

The GMC will investigate the allegations and 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 cases lead to criminal charges being brought and at Doctors Defence Service we work hard with the doctor to demonstrate innocence, or, where a doctor may have fallen into error, to work towards obtaining the best possible outcome. This may be a without liability repayment to the NHS of monies, or the return of property. 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 acted improperly. In such cases, it is important to carefully manage the disclosures that are made to others, where formal admissions are to be made. Good 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.

It should be noted that an allegation of dishonesty can come about 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.

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 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 alleged some form of dishonesty. You can read the NHS policy on combating fraud across the health service estates: Countering Fraud in the NHS.

Doctors Defence Service can also advise doctors in relation to potential whistleblowing concerns, where fraud may be alleged against others that they work with. Allegations need to be carefully made as at Doctors Defence Service we have known for senior doctors to retaliate and crush the doctors who have brought the complaints, by making serious counter-allegations. 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 fraud; claim by NHS for restitution. NHS claim 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.

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