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Knock, knock… who’s there?
In the light of recent developments, which will see authorised
officers turning up at Trust premises demanding access for
inspection or alternatively disclosure of documents, is your Trust
ready for the knock at the door?
Whilst the Police have enjoyed powers of entry and search,
including the power to take away documents and other evidence (for
many years) we have recently seen similar powers being conferred on
the Counter Fraud and Security Management Service Division of the
NHS Business Services Authority. The draft code of practice on the
use of the power to require the production of documents is
currently under consultation.
In addition, the Health and Social Care Bill proposes the
establishment of The Care Quality Commission which will replace the
Commission for Healthcare Audit and Inspection, The Commission for
Social Care Inspection and the Mental Health Act Commission. The
Health and Social Care Bill provides for this new body to have
powers of entry and inspection as well as the power to require the
production of documents and information.
Documents
The new powers in the Health Act 2006 are intended to protect
the NHS from fraud and other unlawful activities. Whilst the Act
establishes the power to require production of documents the draft
code of practice adds flesh to the bones and outlines how the
process is likely to work in practice. If you are identified as the
person at your Trust who is “accountable” for holding documents
that are likely to assist the Counter Fraud and Security Management
Service’s investigations, what might you expect?
Step 1 - You (not the Trust) will receive a
notice requesting disclosure of the relevant documents. Failure to
comply is a criminal offence. This may be preceded by a telephone
call but it is not mandatory.
Step 2 - When the notice is served you will be
provided with evidence of the identity and authority of the
investigator. If this is not provided you are not obliged to comply
with the notice.
Step 3 - The notice will contain standard
information describing the documents required, the deadline for
production, confirmation of the place at which they must be
produced, contact details and confirmation of the penalties. Note
that documents may have to be produced immediately. If not,
production should be at a “reasonable hour” defined as within
normal working hours.
Step 4 - Consider whether you need an extension
of time to comply. The draft code does however suggest that an
extension for an extended period (defined as “several weeks”) is
unlikely to be given.
Step 5 - Produce the documents or, if missing,
explain where they are. You may also have to provide an explanation
of the documents. You may ask for copies – the inference being that
the investigator will take the originals.
Step 6 - You will be given a written receipt
listing the documents produced.
Complications
“Documents” includes electronic records and the draft code of
practice provides power for forensic specialists to be used to
access the necessary information. Are you ready for such a
specialist to be sitting in your office for a week trawling through
your electronic records?
Documents protected by legal professional privilege do not have
to be disclosed.
It is not envisaged that such requests will often relate to
personal records. Before requesting such documents (including
patient records) the investigator will need authority from a senior
colleague. A clinical specialist may be brought in by the
investigator to liaise between the investigator and the Trust.
Impact
Service of a Disclosure Notice will create practical problems
for Trusts. To minimise this Trusts should consider:
- Putting in place a policy to deal with the situation
- Identifying a senior officer who is able to take responsibility
for this issue
- A system to co-ordinate response times and method of
production
- Reviewing systems for the storage and retrieval of
documents
- Internal training
- Resources required to respond to a Disclosure Notice
- Building relationships with their local Counter Fraud
Specialist. A co-operative approach is likely to benefit both
parties
- Their relationships with their contractors. They too will be
liable to comply with Disclosure Notices. Are they aware of this
obligation? Are Trusts satisfied they have the systems in place to
deal with this issue?
For more information please contact
Ian
Long or Simon Tait.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.