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Contents
Introduction
1
How to report a fraud
2
What happens when you report a fraud?
3
The investigation process
4
Who decides if the case should go to court?
5
What is a non-court disposal?
6
What happens at court?
7
Will I have to go to court?
10
Attending court as a witness
11
What if the NHS CFS decides not to prosecute?
12
What punishments can the court hand out?
13
Where can I find more information?
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Introduction
We all know that the majority of people who work in and use the NHS are
honest, but a minority will seek to defraud it. It’s important that we are
all aware of the types of fraud that are committed and are not afraid to
report fraudulent behaviour.
Whether you are an NHS employee, contractor, supplier of goods and
services or a member of the public, your input is crucial to help us tackle
fraud and corruption in the health service. Anyone can report concerns
about fraud in the NHS.
This guide explains what is likely to happen when you report a suspicion
of fraud to the NHS Counter Fraud Service (NHS CFS) or a Local Counter
Fraud Specialist (LCFS) – from how your report will be investigated
through to what happens if you are asked to be a witness at court. It
includes the possible outcomes and how you will be kept informed.
Your NHS trust’s LCFS may already have discussed these matters with you
and can give you information and support.
To find out more about how fraud in the NHS is being tackled, visit
www.nhsbsa.nhs.uk/fraud.
Information can be given to the confidential NHS Fraud and Corruption
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How to report a fraud
Reporting Line – freephone 0800 028 40 60 (lines are open 8am–6pm
Monday to Friday). All calls are dealt with by trained staff and
professionally investigated.
Alternatively, you can report your concerns online at:
www.reportnhsfraud.nhs.uk.
You can also report any concerns you may have about fraud in your trust
to your LCFS.
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What happens when you report a fraud?
When the NHS CFS receives a fraud referral, its specialist fraud
investigators will first decide whether it can be investigated. If an
investigation is possible, the case will be either allocated to the trust’s
LCFS or, in certain circumstances such as high-value frauds or those that
cross health body boundaries, referred to a counter fraud specialist in the
NHS CFS.
Depending on what stage an investigation or court case is at, the person
alleged to be responsible for an offence may be referred to in different
ways:
They will be called:
• the suspect during the investigation
• the defendant during the court case
• the offender if they are found guilty.
When an investigation commences, a counter fraud specialist in the NHS
CFS will set about collecting evidence such as witness statements and will
interview the suspect. They may take advice from a lawyer at any stage of
the investigation.
Once the counter fraud specialist has completed their investigation, the
following options are available:
• Take no action at all – this can happen at any time in the
investigation.
• Refer the matter to the trust for internal action.
• Offer the suspect a ‘non-court disposal’ (e.g. a warning or a caution)
– see page 6 for more details.
• Charge the suspect at the police station or summons them in writing.
• Conduct a private prosecution.
• Use the police to assist with the prosecution.
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Investigation process
Allegation investigated by
LCFS or NHS CFS?
yes
no
No further NHS CFS action
Possibility of
internal trust action
NHS CFS or LCFS collects
evidence (e.g. witness
statements) and interviews
suspect
Evidence passed to lawyer
for advice
Suspect charged or
summonsed?
yes
Lawyer advises
‘non-court disposal’?
yes no
no
Non-court disposal
actioned
Case begins court process
– see ‘What happens at
court?’ section
If appropriate, NHS CFS
gives evidence to external
regulatory body
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Fraud in the NHS
Who decides if the case should go to court?
Evidence is collated and passed to a lawyer for advice on whether the
case is suitable to go to court.
The lawyer must make such decisions in line with official guidance known
as the Code for Crown Prosecutors. This states that before any case can be
taken to court, the lawyer must be satisfied that, in their opinion:
A: There is enough evidence that can be used to give a more than 50/50
chance of the suspect being convicted. If there is not enough evidence,
the case cannot be taken to court, no matter how serious or important
it is.
Once the lawyer has decided that there is enough evidence, they must
also be satisfied that:
B: It is in the ‘public interest’ to take the case to court.
It should be noted that there are many other factors that must be taken
into account when deciding if a prosecution is in the public interest.
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What is a non-court disposal?
There are a number of ways in which a case can be officially dealt
with without it going to court. These include the issue of a caution or
conditional caution:
Caution (also called a simple caution)
A caution can only be given if the offender has admitted the offence
and there is sufficient evidence to support a prosecution but it is felt
appropriate to deal with the offence outside of the court process.
A caution will appear on a person’s police record.
Conditional caution
A conditional caution is similar to a simple caution but carries
conditions that the offender must comply with. Failure to do so may
result in prosecution for the original offence.
A conditional caution can only be given if the offender has admitted
the offence and there is sufficient evidence to support a prosecution
but it is felt appropriate to deal with the offence outside of the court
process.
These are known as ‘non-court disposals’. Other types of non-court
disposal include reprimands or final warnings (for juveniles) and warnings
(for adults). These will not usually be used in fraud cases.
The NHS CFS and lawyers have the final say in deciding how a suspect
should be dealt with, and will take into account the views of the
defrauded trust. This decision is always made in conjunction with the
trust’s Director of Finance. This is also the case if the decision is to offer a
caution or conditional caution.
For offences with no individual victim, arrangements should be made
locally for the LCFS to take the role of ‘official victim’ on behalf of the
NHS body affected.
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Fraud in the NHS
What happens at court?
If the NHS CFS decides that action should be taken, court proceedings will
begin. Most cases will appear in court several times before a trial takes
place or a sentence is imposed. It can be several months after your report
before the investigation is concluded.
There are a number of different court hearings that might be required
once the suspect has been charged or summonsed. These include:
• hearings to determine whether the case will be heard in a
magistrates’ court or Crown Court (depends on how serious the
offence is)
• hearings to decide whether someone who has been kept in custody
since being arrested should remain there or be released on bail
• hearings where the defendant is formally asked to plead guilty or
not guilty.
If the defendant pleads guilty
The court will arrange a sentencing hearing. This may not take place
for several weeks as the court may need reports to help determine the
appropriate sentence. These may include psychiatric reports, medical
reports and reports on what type of non-prison sentence would be
suitable.
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What happens at court?
If the defendant pleads not guilty
The case will go for trial. A date will be set, which may be several weeks
or even months in the future.
The prosecution and then the defence will present their evidence. This
will include some or all of the witnesses giving their evidence at court.
In a magistrates’ court, the panel of magistrates (or a single District
Judge) will decide if the case has been proved and declare the defendant
guilty or not guilty.
In the Crown Court, the jury will decide. Where a defendant is found
guilty, a sentencing hearing will normally be arranged, as detailed above.
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Fraud in the NHS
Court process
First court hearing is always in a magistrates’ court. There may be two
or three preliminary hearings here to resolve various legal matters.
Type of offence
Summary
Indictable
All summary offence cases
will stay in the magistrates’
court
Indictable cases can be tried in a
magistrates’ court or Crown Court
Case to be heard in:
Magistrates’ court
Crown Court
Defendant asked to plead
Guilty
Not guilty
Defendant asked to plead
Not guilty
Date set for trial.
Witnesses told if they
must attend in person.
Magistrates (or District
Judge) decide if
defendant is:
Guilty
Case may be
adjourned for
reports to be
prepared for
the court
Not guilty
Guilty
Date set for trial. Witnesses
told if they must attend
in person. Jury decide if
defendant is:
Not guilty
Case ends
No further criminal
action possible
Guilty
Case may be
adjourned for
reports to be
prepared for
the court
Sentence imposed by the court and any orders to pay
compensation or legal costs made.
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Will I have to go to court?
This will not usually be clear until the defendant is asked to plead guilty
or not guilty.
If the defendant pleads guilty, the witnesses will not normally have to go
to court.
As most court hearings are held in public, you may wish to attend the
sentencing hearing to find out what punishment the court decides on and
why.
If the defendant pleads not guilty, a trial will be arranged.
If a trial does take place, all witnesses may be asked to attend court and
give evidence.
You will be notified in advance of the date of the trial and how long it is
expected to last. If the case is expected to take more than a day, you may
also be told on which day you should go. The counter fraud specialist will
keep all witnesses informed.
Trials in a magistrates’ court will usually be given a fixed date.
If the trial is to take place in the Crown Court, the case may be put on
the ‘warned list’, which means that the trial will begin some time within
a two-week period. You may only be notified of the trial date the day
before it is due to start. Once you are told that the case has to go to trial,
you must contact either the Witness Support Service or the counter fraud
specialist immediately if there is any reason why you may be unable to
attend court.
If you have access to the internet, you can watch a video produced by the
government about what happens if you have to go to court:
http://moj.coionline.tv/videos/goingtocourtvideo/.
Or you can read or listen to the interactive guides at:
www.cjsonline.gov.uk.
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Attending court as a witness
The thought of going to court to give evidence can be worrying.
Victim Support operates a Witness Support Service offering support
and information (see page 15 for contact details). They may be able to
arrange a visit to the court before the trial to help you familiarise yourself
with the building and the process. They will also be able to give you
information on what you should do when you attend court for the trial
(where to sit, who to ask for assistance, etc).
When you arrive at court, you should be contacted by the counter fraud
specialist, who will answer any questions you may have. They will usually
escort you to the Witness Support Service waiting area. You should not
normally have to wait in the same area as the defendant or their friends
and family.
Directly employed NHS staff will usually be given paid time off to attend
court as a witness. If you are employed by a contractor, there may be
different arrangements. Witnesses can be paid expenses for attending
court and, in some cases, compensation if they have lost earnings because
of this.
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What if the NHS CFS decides not to prosecute?
Even if the decision is made not to prosecute, other action may be
possible. For example, the health body may take internal action if the
suspect is an employee or refer the case to an external regulatory body,
such as the General Medical Council or Nursing and Midwifery Council,
for consideration.
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Fraud in the NHS
What punishments can the court hand out?
For most offences, the courts have access to a range of different
sentencing options.
When deciding on the sentence to impose, judges and magistrates must
bear in mind the principles of sentencing, which are:
• protecting the public
• punishing offenders
• reducing crime
• rehabilitating offenders
• offenders paying funds back into the NHS (this can be the NHS trust
defrauded).
They must also consider:
• how long the fraudulent activity lasted
• whether the offender was caught or confessed
• the defendant’s character and record (i.e. if they have been
convicted previously)
• the defendant’s personal circumstances and whether they have
shown remorse for their actions.
All of the following sentences will be recorded on the Police National
Computer, meaning that the offender will have a criminal record.
Types of sentence
Absolute and conditional discharge
Even if an offender is found guilty (and now has a criminal record), the
court may decide that it is not appropriate to impose a punishment.
An absolute discharge means that the matter is closed. A conditional
discharge means that there is no immediate punishment. However, if the
person commits another offence within a specified period, they can be
punished for the original offence as well as the new one.
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What punishments can the court hand out?
Fine
The maximum fine available in a magistrates’ court is £5,000. However,
the court must consider the offender’s finances before deciding on the
level of the fine. A fine can normally be imposed in conjunction with
most other types of sentence.
Community sentence
A community sentence is a court order that the offender is legally obliged
to comply with. Failure to comply can mean being taken back to court,
where a more severe order can be imposed. Failing to comply with this
second order can lead to the court passing sentence for the original
offence, with the full range of sentences available.
Imprisonment
The length of a prison sentence will depend on how serious the offence
is, as well as other factors. Different offences carry differing maximum
penalties.
If the offender has been in custody before, the trial time will be deducted
from the time they have been sentenced to. If this is longer than the time
they are sentenced to, they will be released immediately.
Suspended sentence
In some cases, the court can impose a suspended sentence order. This
means that the offender must abide by conditions set out in the order. If
they fail to do so, they risk being sent to prison.
Deferred sentence
The court may not impose a sentence immediately, choosing instead
to postpone the decision for up to six months. During this period, the
offender’s behaviour will be monitored by the probation service. The
court may also impose conditions to regulate their behaviour during this
time.
The offender must agree to sentence being deferred.
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Where can I find more information?
Victim Support is an independent charitable organisation offering
support and information to those affected by crime – both victims and
witnesses. The police will usually give you contact details for the local
Victim Support unit and ask if you wish your own details to be passed
to them. You do not have to agree to your details being given to Victim
Support, nor do you have to approach them through the police.
Victim Support can also help victims and other witnesses who have to
attend court – before, during and after the case.
Tel: 0845 30 30 900
email: [email protected]
Website: www.victimsupport.org.uk
You can also contact your trust’s LCFS (details on next page).
More useful websites
Crown Prosecution Service – Code for Crown Prosecutors
www.cps.gov.uk/publications
Court Service – court information and addresses
www.hmcourts-service.gov.uk
Criminal Justice Service – information for victims and witnesses
www.cjsonline.gov.uk
Home Office – Code of Practice for Victims of Crime
http://www.homeoffice.gov.uk/documents/victims-code-of-practice
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Contact your LCFS
If you require this information in any other format (i.e. large print,
audio, Braille or another language) please call 020 7895 4500 or email:
[email protected].
NHS Counter Fraud Service 2010
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