Anti-fraud and bribery procedure

Date: February 2022

Review date: August 2024

Version 5.0

Any suspicions of fraud against the Trust should be reported to Kirsty Clarke, the Trust’s Local Counter Fraud Specialist on 020 3201 8054 or by emailing: kirsty.clarke8@nhs.net or kirsty.clarke@rsmuk.com

Alternatively, you can telephone the NHS Fraud & Corruption Line in confidence on 0800 028 40 60 or online at www.cfa.nhs.uk/report fraud.

Introduction

1.1 This document sets out the Tavistock and Portman NHS Foundation Trust’s procedure and advice to employees in dealing with suspected fraud or bribery.

1.2 The Trust is absolutely committed to maintaining an honest, open and well-intentioned atmosphere, so as to best fulfil the objectives of the Trust and of the NHS. It is, therefore, also committed to reducing the level of fraud, bribery and corruption within the NHS to an absolute minimum and keeping it at that level, freeing up public resources for better patient care.

1.3 In doing so, the Trust are committed to the elimination of fraud, bribery and corruption within the Trust, to the rigorous investigation of any such allegations and to taking appropriate action against wrong doers, including possible criminal prosecution.

1.4 The Trust aligns counter fraud, bribery and corruption work to the NHS Counter Fraud Authority’s counter fraud, bribery and corruption strategy, as outlined throughout this policy, and the annual counter fraud work plan and resource allocation are aligned to the objectives of the strategy and locally identified risks.

Purpose

2.1 This procedure is intended to provide direction and help to employees or other individuals who may identify suspected fraud. It relates to all forms of fraud and bribery.

2.2 It provides a framework, advice and information; but it is not intended to provide comprehensive instructions for identification or investigation. It also details the organisation’s commitment to the proper use of public funds and outlines roles and responsibilities for the prevention of fraud.

2.3 In addition, this procedure details the arrangements for concerns to be raised by employees or members of the public.

Scope

The overall aims of this procedure are to:

improve the knowledge and understanding of everyone in the Trust, irrespective of their position, about the risk of fraud and bribery within the organisation and its unacceptability
assist in promoting openness and a culture and environment where staff feel able to raise concerns sensibly and responsibly
set out the Trust’s responsibilities in terms of the deterrence, prevention, detection and investigation of fraud and bribery
ensure the appropriate sanctions are considered following an investigation. This may include criminal prosecution, civil proceedings or internal/ external disciplinary action (including professional/ regulatory sanctions).

This procedure applies to all employees of the Trust, regardless of position held, as well as agency staff, consultants, vendors, contractors, and/or any other parties who have a business relationship with the Trust, including employees and committee members of partner organisations and organisations funded by the Trust. It will be brought to the attention of all employees and form part of the induction process for new staff. The procedure also applies to service users. It is incumbent on all of the above to report any concerns they may have concerning fraud and bribery.

In implementing this procedure, managers must ensure that all staff are treated fairly and within the provisions and spirit of the Trust’s Equal Opportunities Procedure. Special attention should be paid to ensuring the procedure is understood where there may be barriers to understanding caused by the individual’s circumstances, where the individual’s literacy or use of English is weak, or where the individual has little experience of working life.

Definitions

NHS Counter Fraud Authority (NHSCFA)

The NHSCFA has the responsibility for the detection, investigation and prevention of fraud and economic crime within the NHS. Its aim is to lead the fight against fraud affecting the NHS and wider health service, by using intelligence to understand the nature of fraud risks, investigate serious and complex fraud, reduce its impact and drive forward improvements.

A copy of the NHS CFA Organisational Strategy 2020-2023 is available at https://cfa.nhs.uk/resources/downloads/documents/corporate-publications/NHSCFA_Strategy

Counter fraud requirements

A requirement in the NHS standard contract is that providers of NHS services (NHS Trusts, or organisations that hold an NHS Provider Licence) must take the necessary action to comply with the NHSCFA’s counter fraud requirements to meet the Government Functional Standard 013 for counter fraud. The contract places a requirement on providers to have policies, procedures and processes in place to combat fraud, corruption and bribery to ensure compliance with the requirements. The NHSCFA carries out regular assessments of health organisations in line with the counter fraud requirements.

Fraud

Any person who dishonestly makes a false representation to make a gain for himself or another or dishonestly fails to disclose to another person, information which he is under a legal duty to disclose, or commits fraud by abuse of position, including any offence as defined in the Fraud Act 2006.

Any offence as defined in the Fraud Act 2006: see summary given in Appendix C. Examples of NHS fraud include, but are not limited to:

Falsifying time records e.g. claiming pay for time not worked, submitting duplicate timesheets, claiming for sessions that have not been carried out; False claims for expenses, grants, premiums and other payments e.g. false or inflated travel and subsistence claims; Fraudulent job applications e.g. false or misrepresented qualifications, experience, references, identity documents or immigration status; Failing to declare criminal convictions either at the point of or during employment;
Failure to declare expiry of immigration conditions allowing work in the UK e.g. expired visas or revocation of leave to remain;
Supplier fraud e.g. fraudulent submissions to change supplier bank details, inflated invoices;
Falsely claiming to be sick or working elsewhere whilst sick e.g. usually working with another organisation, including bank or agency work, without informing the Trust or submitting counterfeit, forged or altered sick certificates;
Working for another organisation which overlaps with Trust working time
Advertising scams (e.g. false invoices for placing adverts in publications)
Patient fraud e.g. false travel claims, fraudulently claiming exemptions from pharmaceutical charges, failing to disclose overseas visitor status; Misappropriation of assets (e.g. falsely ordering goods for own use/ to sell)
Procurement Fraud (e.g. the ordering and contracting of goods and services)
Fraud by professionals (i.e. Consultants undertaking private practice during Trust time or utilising Trust resources, premises or support staff without appropriate approval)
Pharmaceutical Fraud by companies (e.g. overcharging for drugs, supplying inferior or reduced quantities of drugs etc.)

Bribery

Any person who offers, promises, gives or requests, agrees to receive or accepts a payment or benefit-in-kind to influence others to use their position in an improper way to gain an advantage.

Bribery does not have to involve cash or an actual payment exchanging hands and can take many forms such as a gift, lavish treatment during a business trip or tickets to an event.

Bribery does not always result in a loss. The corrupt person may not benefit directly from their deeds; however, they may be unreasonably using their position to give some advantage to another. Appendix D is a summary of the Bribery Act 2010, which has superseded earlier legislation.

It is an offence to bribe the holder of a public office; and it is similarly an offence for the office holder to accept a bribe.

Theft

A criminal act in which property belonging to another is taken without that person’s consent, as defined in the Theft Act 1968.

Facilitation Payments

Small payments made to secure or expedite the performance of a routine action, typically by a government official or agency (e.g. issuing licenses or permits, processing goods through customs, etc.) to which the payer (or the company) has legal or other entitlement.

Facilitation payments are prohibited under the Bribery Act 2010. They shall not be given by the Trust or by the Trust’s employees in the UK or any other country.

Gifts and Hospitality

(a) A ‘gift’ is defined as any item of cash or goods, or any service, which is provided for personal benefit, free of charge or at less than its commercial value.

(b) ‘Hospitality’ means offers of meals, refreshments, travel, accommodation and other expenses in relation to attendance at meetings, conferences, education/training or other events.

Courtesy gifts and hospitality must not be given or received in return for services provided or to obtain or retain business but shall be handled openly and unconditionally as a gesture of esteem and goodwill only. Gifts and hospitality shall always be of symbolic value, appropriate and proportionate in the circumstances, and consistent with local customs and practices. They shall not be made in cash. Please refer to the Trust’s Gifts, Hospitality and Interests Policy for more guidance.

Sponsoring

(a) any contribution in money or in kind by the Trust towards an event organised by a third party, in return for the opportunity to raise the Trust‘s profile. All sponsoring contributions must be transparent, pursuant to a written agreement, for legitimate business purposes, and proportionate to the consideration offered by the event host. They may not be made towards events organised by individuals or organisations that have goals incompatible with the Trust’s ethical standards or that would damage the Trust’s reputation. All sponsorships will be publicly disclosed.

(b) any contribution in money or in kind by a third party towards an event organised by the Trust in return for the opportunity to raise the other party‘s profile. Where commercial sponsorship is used to fund Trust training events, training materials or general meetings the sponsorship must be transparent, pursuant to a written agreement, for legitimate business purposes, and proportionate to the occasion. Where meetings are sponsored by external sources, that fact must be disclosed in the papers relating to the meeting and in any published minutes/proceedings.

Where sponsorship links to the development of guidelines and advice, this should be carried out in consultation with the Senior Compliance Officer in conjunction with the appropriate Trust working group independent of the sponsors. While it is recognised that consultation with the industry may be necessary when developing a guideline, the overall decision on what is included should lie with the Trust working group.

Political and Charitable Donations

The Trust does not make any contributions to politicians, political parties or election campaigns.

As a responsible member of society, the Trust may make charitable donations. However, these payments shall not be provided to any organisation upon suggestion of any person of the public or private sector in order to induce that person to perform improperly the function or activities which he or she is expected to perform in good faith, impartially or in a position of trust or to reward that person for the improper performance of such function or activities.

Any donations and contributions must be ethical and transparent. The recipient’s identity and planned use of the donation must be clear, and the reason and purpose for the donation must be justifiable and documented. All charitable donations will be publicly disclosed.

Donations to individuals and for-profit organisations and donations paid to private accounts are incompatible with the Trust’s ethical standards and are prohibited.

Public service values

High standards of corporate and personal conduct, based on the recognition that patients come first, has been a requirement throughout the NHS since its inception. The three fundamental public service values are:

Accountability: Everything done by those who work in the Trust must be able to stand the tests of parliamentary scrutiny, public judgements on propriety and professional codes of conduct.

Probity: Absolute honesty and integrity should be exercised in dealing with NHS patients, assets, employees, suppliers and customers.

Openness: The Trust’s actions should be sufficiently public and transparent to promote confidence between the Trust and its patients, our employees and the public.

In addition, all those who work for or are in contract with the Trust should exercise the following Nolan principles when undertaking their duties:

Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their families or their friends.

Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that may influence them in the performance of their official duties.

Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness: Holders of public office should be as open as possible about all their decisions and the actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership: Holders of public office should promote and support these principles by leadership and example. All those who work in the organisation should be aware of, and act in accordance with, these values.

These standards are national benchmarks that inform our local policies and procedures. The arrangements made in this procedure have been designed to ensure compliance with the national standards.

Roles and responsibilities

Trust

The Trust has a duty to ensure that it provides a secure environment in which to work, and one where people are confident to raise concerns without worrying that it will reflect badly on them. This extends to ensuring that staff feel protected when carrying out their official duties and are not placed in a vulnerable position. If staff members have concerns about any procedures or processes that they are asked to be involved in, the Trust has a duty to ensure that those concerns are listened to and addressed.

Chief Executive

The Chief Executive has the overall responsibility for funds entrusted to the organisation as the accountable officer. This includes instances of fraud, bribery and corruption. The Chief Executive must ensure adequate policies and procedures are in place to protect the organisation and the public funds entrusted to it.

The Chief Executive is liable to be called to account for specific failures in the Trust‘s system of internal controls. However, responsibility for the operation and maintenance of controls falls directly to line managers and requires the involvement of all of Trust employees. The Trust therefore has a duty to ensure employees who are involved in or who are managing internal control systems receive adequate training and support in order to carry out their responsibilities. Therefore, the Chief Executive and Deputy Chief Executive and Director of Finance will monitor and ensure compliance with this procedure.

Trust Board

The Board and non-executive directors should provide clear and demonstrable support and strategic direction for counter fraud, bribery and corruption work. The board will review the proactive management, control and the evaluation of counter fraud, bribery and corruption work. The board and non-executive directors will scrutinise NHSCFA assessment reports, where applicable, and ensure that the recommendations are fully actioned.

Employees

For the purposes of this procedure, ‘Employees’ includes all Trust staff and all members of the Board, Executive and Non-Executive Members (including Co-Opted Members) and Honorary Members to the Board.

6.5 Line Managers

Managers are responsible for ensuring that policies, procedures and processes within their local area are adhered to and kept under review. They have a responsibility to ensure that staff are aware of fraud, bribery and corruption and understand the importance of protecting the Trust from it. They are also responsible for the instigation of disciplinary action against staff who do not comply with policies and procedures.
Line managers at all levels have a responsibility to ensure that an adequate system of internal control exists within their areas of responsibility and that controls operate effectively. The responsibility for the prevention and detection of fraud and bribery therefore primarily rests with managers but requires the co-operation of all employees.

As part of that responsibility, line managers need to:

Inform staff of the Trust‘s expected code of conduct, gifts, hospitality, and interest declaration requirements and this procedure as part of their induction process, paying particular attention to the need for accurate completion of personal records and forms
ensure that all employees for whom they are accountable are made aware of the requirements of this procedure and other key policies such as the Gifts, Hospitality and Interests Policy and Standing Financial Instructions.
assess the types of risk involved in the operations for which they are responsible
ensure that adequate control measures are put in place to minimise the risks. This must include clear roles and responsibilities, supervisory checks, staff rotation (particularly in key posts), separation of duties wherever possible so that control of a key function is not invested in one individual, and regular reviews, reconciliations and test checks to ensure that control measures continue to operate effectively
be aware of the Trust‘s Anti-Fraud and Bribery Procedure and the rules and guidance covering the control of specific items of expenditure and receipts
identify financially sensitive posts
ensure that controls are being complied with
contribute to the assessment of the risks and controls within their business area, which feeds into the Trust‘s overall statements of accountability and internal control.

Managers must be vigilant and ensure that procedures to guard against fraud and corruption are followed. They should be alert to the possibility that unusual events or transactions, particularly those with no commercial rationale, could be symptoms of fraud, bribery or corruption. Where they have any doubt, they must seek advice from the LCFS.

Managers must instil and encourage a zero-tolerance culture within their team with regards to criminal wrongdoing. The LCFS will proactively assist in this endeavour by undertaking work to raise fraud awareness and create deterrence effects.

All instances of actual or suspected fraud or bribery, which come to the attention of a manager, must be reported immediately. It is appreciated that some employees will initially raise concerns with their manager, however, in such cases managers must not attempt to investigate the allegation themselves, and they have the clear responsibility to refer the concerns to the LCFS as soon as possible. See 6.6 below.

6.6 Local Counter Fraud Specialist (LCFS)

6.7 Deputy Chief Executive and Director of Finance

6.8 Senior Compliance Officer

The Trust has appointed the Deputy Chief Executive and Director of Finance who will be responsible for ensuring the Trust is compliant with the requirements of the Bribery Act 2010, implementing anti-bribery guidelines and monitoring compliance. The Senior Compliance Officer will review annually the suitability, adequacy and effectiveness of the Trust’s anti-bribery arrangements and implement improvements as and when appropriate.

The Deputy Chief Executive and Director of Finance directly reports to the Chief Executive.

6.9 Human Resources

Human Resources will liaise closely with Managers and the LCFS, from the outset, where an employee is suspected of being involved in fraud in accordance with agreed liaison protocols. Human Resources are responsible for ensuring the appropriate use of the Trust’s Disciplinary Procedure. The Human Resources Department shall advise those involved in the investigation in matters of employment law and in other procedural matters, such as disciplinary and complaints procedures.
Close liaison between the LCFS and HR will be essential to ensure that any parallel sanctions (i.e. criminal and disciplinary) are applied effectively and in a coordinated manner.
Human Resources will take steps at the recruitment stage to establish, as far as possible, the previous record of potential employees as well as the veracity of required qualifications and memberships of professional bodies in terms of their propriety and integrity. In this regard, temporary and fixed term contract employees are treated in the same manner as permanent employees.

6.10 Audit Committee

The audit committee are responsible for seeking assurance that the Trust has adequate arrangements in place for countering fraud and bribery and compliance with NHSCFA requirements. This will include but is not limited to reports from the LCFS, the annual Counter Fraud Functional Standard Return (CFFSR)to NHSCFA, and from NHSCFA inspection reports. Actions resulting from counter fraud activity including NHSCFA quality assessment reports will be monitored. The committee is also responsible for approving the annual counter fraud work plan and the outcomes of all anti-fraud and bribery work within the Trust. Further information on the responsibilities of the audit committee can be found in the NHS Audit Committee Handbook 2018, which can be accessed online via https://www.hfma.org.uk/publications?Type=Guide

6.11 Internal and External Audit

The role of internal and external audit includes reviewing controls and systems and ensuring compliance with financial instructions. Whilst this role does not include uncovering instances of fraud, bribery or corruption, any incident or suspicion that comes to Internal or External Audit’s attention will be passed immediately to the LCFS.

6.12 Information Management and Technology

The Director of Information Management and Technology will contact the LCFS immediately in all cases where there is suspicion that IT is being used for fraudulent purposes. This includes inappropriate internet/intranet, e-mail, telephone, PDA use and any offence under the Computer Misuse Act 1990. Human Resources will be informed if there is a suspicion that an employee is involved.

6.13 External Communications

Individuals must not communicate with any member of the press, media or another third party about a suspected fraud as this may seriously damage the investigation and any subsequent actions to be taken. Anyone who wishes to raise such issues should discuss the matter with either the Deputy Chief Executive and Director of Finance or the Chief Executive.

6.14 External Parties

Those organisations undertaking work on behalf of the Trust are expected to maintain strong anti-fraud principles and have adequate controls in place to prevent fraud when handling public funds and dealing with customers on behalf of the Trust. Contractors and sub-contractors acting on the Trust’s behalf are responsible through contractual arrangements put in in place during the tender process and through contracts, for compliance with the Bribery Act 2010.

Procedures

The Trust wishes to encourage anyone having reasonable suspicions of fraud to report them. It recognises that, while cases of theft are usually obvious, there may initially only be a suspicion regarding potential fraud and, thus, individuals should report the matter to their LCFS who will then ensure that procedures are followed. The Trust’s procedure, which will be rigorously enforced, is that no individual will suffer any detrimental treatment as a result of reporting reasonably held suspicions. Within this context, ‘reasonably held’ means suspicions other than those that are raised maliciously and are subsequently found to be groundless.

The Trust wants all employees to feel confident that they can expose any wrongdoing without any risk to themselves. The Freedom to Speak Up: Raising Concerns and Whistleblowing Procedure ensures there is full provision for staff to raise any concerns with others if they do not feel able to raise them with their line manager/management chain.

The Public Interest Disclosure Act 1998 came into force in July 1999 and gives statutory protection, within defined parameters, to staff members who make disclosures about a range of subjects, including fraud and bribery, which they believe to be happening within the Trust employing them.

To support the reporting of fraud using the NHSCFA fraud reporting process (as outlined above) all employees should be aware of NHS Improvement and NHS England’s: Freedom to speak up: raising concern’s (whistleblowing) policy for the NHS, April 2016 and NHS England’s Freedom to speak up in Primary Care: Guidance to primary care providers on supporting whistleblowing in the NHS, November 2017. These all form the minimum standards for raising of concerns in the NHS for the benefit of all patients in England.

Any unfounded or malicious allegations will be subject to a full investigation and appropriate disciplinary action.

The Trust has procedures in place that reduce the likelihood of fraud occurring. These include Standing Orders, Standing Financial Instructions, documented procedures, a system of internal control (including Internal and External Audit) and a system of risk assessment. In addition, the Trust seeks to ensure that a comprehensive anti-fraud and bribery culture exists throughout the Trust via the appointment of the dedicated LCFS, in accordance with the NHSCFA’s counter fraud requirements to meet the Government Functional Standard 013.

The Trust will undertake risk assessments in line with Ministry of Justice guidance to assess how bribery may affect the organisation. This will be undertaken every three years, however this is not definitive, and circumstances may call for a risk assessment to be undertaken outside of this pattern, for example due to changes in legislation or a reported incident of bribery within the Trust. The risk assessment will be undertaken by a nominated officer, such as the LCFS, who will report directly to the Deputy Chief Executive and Director of Finance. The Trust will refer to the Home Office’s bribery and corruption assessment template to assess their response to bribery and corruption.

Off-the-book accounts and false or deceptive booking entries are strictly prohibited. All gifts, payments or any other contribution shall be documented, regularly reviewed, and properly accounted for in the books of the Trust. Record retention and archival procedure must be consistent with the Trust’s accounting standards, tax and other applicable laws and regulations.

The Trust may, in certain circumstances, be held responsible for acts of bribery committed by intermediaries acting on its behalf, such as subsidiaries, clients, business partners, contractors, suppliers, agents, advisors, consultants or other third parties. The use of intermediaries for the purpose of committing acts of bribery is prohibited.

All intermediaries shall be selected with care, and all agreements with intermediaries shall be concluded under terms that are in line with this procedure. The Trust will contractually require its agents and other intermediaries to comply with the Anti-Fraud and Bribery Procedure and to keep proper books and records available for inspection by the Trust, auditors or investigating authorities. The Trust will monitor performance and, in case of non-compliance, require the correction of deficiencies, apply sanctions, or eventually terminate the agreement even if this may result in a loss of business.

The Trust procures goods and services ethically and transparently with quality, price and value for money determining the successful supplier/contractor, not by receiving (or offering) improper benefits. The Trust will not engage in any form of bribery, neither in the UK nor abroad.

The Trust will contractually require its agents and other intermediaries to comply with the Anti-Fraud and Bribery Procedure and to keep proper books and records available for inspection by the Trust, auditors or investigating authorities. Agreements with agents and other intermediaries shall at all times provide for the necessary contractual mechanisms to enforce compliance with the anti-bribery regime. The Trust will monitor performance and, in case of non-compliance, require the correction of deficiencies, apply sanctions, or eventually terminate the agreement even if this may result in a loss of business.

Where the Trust is engaged in commercial activity (irrespective as to what happens to the profit) it could be considered guilty of a corporate bribery offence if an employee, agent, subsidiary or any other person acting on its behalf bribes another person intending to obtain or retain business or an advantage in the conduct of business for the Trust and it cannot demonstrate that it has adequate procedures in place to prevent such. The Trust does not tolerate any bribery on its behalf, even if this might result in a loss of business. Criminal liability must be prevented at all times.

Reporting fraud, bribery or other illegal acts

This section outlines the action to be taken where fraud, bribery or other illegal acts involving dishonesty, inappropriate Internet use, or damage to property are discovered or suspected.

If any of the concerns mentioned in this document come to the attention of an employee, they must inform the LCFS or the Deputy Chief Executive and Director of Finance immediately. Employees can also call the NHS Fraud and Corruption Reporting Line or use the online reporting facility at https://cfa.nhs.uk/reportfraud. The NHS Fraud and Corruption Reporting Line is an alternative to internal reporting procedures. All information provided is treated in complete confidence and all calls are dealt with by experienced call handlers. Contact information for the above is listed in Appendix B.
If it is suspected that the LCFS or member of the management team is implicated, reports should be made to the Chair of the Audit Committee. Alternatively, you can contact the NHSCFA directly.
Sufficient enquiries will be made by the LCFS to establish whether or not there is any foundation to the allegations. If the allegations are found to be malicious, they will also be considered for further investigation as to their source.
In circumstance of attempted bribes offered to Trust employees or associated persons, staff must refuse acceptance of the bribe in whatever form and must report this to the LCFS or Deputy Chief Executive and Director of Finance, immediately. If in doubt, contact either of the above for advice, and for guidance on gifts and hospitality; please refer to the Gifts and Hospitality Procedure.

Whistleblowing

The Trust wants all employees to feel confident that they can expose any wrongdoing without any risk to themselves. The Trust’s Freedom to Speak Up: Raising Concerns and Whistleblowing Procedure ensures there is full provision for staff to raise any concerns with others if they do not feel able to raise them with their line manager/management chain.
To support the reporting of fraud using the NHSCFA fraud reporting process (as outlined above) all employees should be aware of NHS Improvement and NHS England’s: Freedom to speak up: raising concern’s (whistleblowing) policy for the NHS, April 2016 and NHS England’s Freedom to speak up in Primary Care: Guidance to primary care providers on supporting whistleblowing in the NHS, November 2017. These all form the minimum standards for raising of concerns in the NHS for the benefit of all patients in England.

Sanctions and Recovery of Losses incurred Through Fraud or Bribery

Sanctions

The Trust will in every instance consider seeking appropriate sanctions, including appropriate legal action and financial redress, against people who are found to be committing fraud and bribery. Investigations will be conducted from the offset, with a view to any possible use of sanctions should sufficient evidence be gathered to show fraud and corruption has occurred. With consultation from the LCFS and other appropriate parties (NHSCFA / Director of Human Resources / Trust Board), it is the decision of the Deputy Chief Executive and Director of Finance to apply sanctions. The Trust will maintain a full record of every investigation as well as the outcome and action taken.

While multiple sanctions may be pursued at the same time in relation to the same incident, the processes involved should be run separately, to maintain their integrity and ensure that all decision making is impartial and independent. This is because the purposes, rules of evidence, standards of proof and outcomes for different types of sanction differ significantly.

Where an objective investigation has found evidence of fraud, bribery or corruption, the next step is to pursue appropriate sanctions. Actions which may be taken include:

No further action
criminal investigation
civil recovery
disciplinary action
confiscation order under POCA
recovery sought from on-going salary payments or pensions.

Criminal investigations are primarily used for dealing with any criminal activity. The main purpose is to determine if activity was undertaken with criminal intent. Following such an investigation, the LCFS will work in partnership with NHSCFA, the police and/or the Crown Prosecution Service to bring this activity to the attention of the criminal courts (magistrates’ court and Crown court). Outcomes can range from a criminal conviction to fines and imprisonment.

The civil recovery route is also available to the Trust if this is cost-effective and desirable for deterrence purposes, to recover money and/or assets that have been fraudulently obtained, including interest and costs. This could involve a number of options such as a local agreement between the Trust and the offender, applying through the Small Claims Court, action to freeze assets and/or recovery through debt collection agencies. Each case needs to be discussed with the Deputy Chief Executive and Director of Finance to determine the most appropriate action.

Disciplinary procedures will be initiated where an employee is suspected of being involved in a fraudulent or illegal act, or where their negligent action has led to fraud being perpetrated. The appropriate senior manager, in conjunction with the HR department, will be responsible for initiating any necessary disciplinary action. Arrangements may be made to recover losses via payroll if the subject is still employed by the Trust. In all cases, current legislation must be complied with. It should be noted, however, that the duty to follow disciplinary procedures will not override the need for legal action to be taken (e.g. consideration of criminal action). In the event of doubt, legal statute shall prevail.

In accordance with the NHS Counter Fraud Manual, the Deputy Chief Executive and Director of Finance, in conjunction with the LCFS and the NHSCFA, will decide whether or not a case should be referred to the police. Human Resources and line managers will be involved as necessary. Any referral to the police will not prohibit action being taken under the Trust’s disciplinary procedures.

If warranted, staff may be reported to their professional body as a result of a successful investigation/prosecution. Medical councils and other regulators or professional bodies (including NHS England) have statutory powers to place conditions on, suspend or remove the registration of professionals whose fitness to practice has been impaired by virtue of a criminal conviction or serious professional misconduct.

In some cases (taking into consideration all the facts of a case), it may be that the Trust, under guidance from the LCFS and with the approval of the Deputy Chief Executive and Director of Finance, decides that no further recovery action is taken. The particulars of the fraud will be maintained by the LCFS in a fraud register and any relevant improvements to systems or procedure to prevent this from occurring in future will be actioned.

Each case will be considered individually on its own facts and merits; based on applying a consistent and thorough approach in all cases to ensure the most effective investigations are undertaken, including the gathering and assessment of all relevant material which may form evidence of fraud, bribery, corruption, misconduct and/or unfitness to practise and that the most appropriate sanction or combination of sanctions is sought where fraud, bribery, corruption or related misconduct is/are identified.

In order to provide assurance that policies were adhered to, the Deputy Chief Executive and Director of Finance will maintain a record highlighting when recovery action was required and issued and when action taken. This will be reviewed and updated on a regular basis.

Redress

The Trust will seek financial redress whenever possible to recover losses from fraud and corruption. It is the decision of the Deputy Chief Executive and Director of Finance, after consultation from the LCFS and other relevant parties (e.g. NHSCFA / legal advisors / Board) to take action to seek redress. The Deputy Chief Executive and Director of Finance is also responsible for supervising the recovery action, which will be commenced as soon as is practicable after the loss has been identified.

Redress can take the form of confiscation and compensation orders, a civil order for repayment, or a local agreement between the organisation and the offender to repay monies lost. The decisions for redress will be taken in the light of the circumstances of each case.

Redress allows resources that are lost to fraud and bribery to be returned to the NHS for use as intended, for provision of high-quality patient care and services. Depending on the extent of the loss and the proceedings in the case, it may be suitable for the recovery of losses to be considered under Proceeds of Crime Act 2002 (POCA). This means that a person’s money or assets are taken away from them if it is believed that the person benefited from the crime. It could also include restraining assets during the investigation. When considering seeking redress recovery may also be sought from on-going salary payments or pensions.

The NHS Counter Fraud Manual and the NHSCFA document ‘Applying Appropriate Sanctions consistently’ provide further details of how redress can be sought.

Redress may also be sought through a civil order of repayment. A civil claim with the objective of financial recovery can be brought where financial redress through criminal proceedings is not appropriate, or if there is no financial compensation following a criminal conviction. Additionally, the Trust may enter into a local agreement for repayment by the offender, particularly if the offender is willing to recompense the Trust.

Consideration must be given to the amount of loss, the further costs involved, and the likelihood (and level) of recoveries when making any decision in relation to redress. This may, on occasion, mean that no further action is taken. The LCFS will maintain a full record of all decisions regarding redress for each case.

Training

The Trust will provide anti-fraud and bribery training to all relevant employees at induction to make them aware of our Anti-Fraud and Bribery Procedure and guidelines, including types of fraud and bribery, the risks of engaging in fraud and bribery, and how employees may report suspicion of fraud and bribery.

Monitoring effectiveness

Monitoring is essential to ensuring that controls are appropriate and robust enough to prevent or reduce fraud. Arrangements might include reviewing system controls on an on-going basis and identifying weaknesses in processes. Where deficiencies are identified as a result of monitoring, the Trust will ensure that appropriate recommendations and action plans are developed and progress of the implementation of recommendations is tracked. The policy will be tested for effectiveness on an annual basis. When measuring the effectiveness of the policy the LCFS will consider the number of referrals received, the source of referrals and any initiatives undertaken to increase readership. The policy may be subject to amendment following an incident of fraud, bribery or corruption where necessary to improve its effectiveness.

The NHSCFA are responsible for monitoring compliance by the LCFS provider and the Trust is required to submit an annual NHS Counter Fraud Functional Standard Return (CFFSR) . The CFFSR is approved by the Deputy Chief Executive and Director of Finance and Audit Committee Chair prior to submission, and is included within the LCFS Annual Report.. The Trust must mark themselves against each requirement as either Compliant (green), Partially Compliant (Amber) or Non-Compliant (Red). A work-plan is required to address all non-compliant requirements which will be monitored by the Audit Committee.

An assessment process may be conducted by NHSCFA Quality and Compliance which will evaluate the Trust’s effectiveness in dealing with the fraud, bribery and corruption risks it faces through one of four types of assessment: Full, Focused, Thematic or Triggered.

As a result of reactive and proactive work completed throughout the financial year, closure reports are prepared and issued by the LCFS. System and procedural weaknesses are identified in each report and highlight suggested recommendations for improvement. The Trust, together with the LCFS will track the recommendations to ensure that they have been implemented. Such reports may require review or amendment to the Anti-Fraud and Bribery Procedure.

Adherence to this policy is assured through progress reporting by the LCFS to the Deputy Chief Executive and Director of Finance and Audit Committee on a quarterly basis.

Progress reports cover the status of current investigations, allegations / referrals received and the nature and extent of proactive activity performed by the LCFS against the annual counter fraud plan. The LCFS monitors the number, nature and source of referrals received throughout the year to inform the future awareness and preventative activities.

NonCompliance

Any abuse or non-compliance with this Procedure shall be subject to a full investigation and appropriate sanction

Associated documents

Freedom to Speak Up: Raising Concerns and Whistleblowing Procedure
Disciplinary Procedure
Gifts, Hospitality and Interests Policy
Standing Financial Instructions
Code of Conduct