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Shared Insights: Dealing with the dishonest Claimant – Practical guidance for NHS Trusts

15 December 2020

These insights were shared at our fortnightly online forum for NHS professionals on 15 December 2020. To find out more please visit our Shared Insights hub.

Paul Wainwright, Partner, and Louise Jeffers, Senior Associate, at Browne Jacobson spoke of their involvement in Elder v George Eliot Hospital NHS Trust [2017] and the successful prevention of a potential £2 million fraud on the NHS.

Paul jointly heads up Browne Jacobson’s Fraud and Financial Crime practice and Louise specialises in high value and complex clinical negligence claims.

Linda Williams, Legal Services Manager at George Eliot Hospital NHS Trust provided valuable insight into the in-house experiences she has dealt with in relation to dishonesty claims, including her involvement in the case of Elder. Paul Gausby, Fraud and Investigation Team Leader at NHS Resolution provided a look into the financial impact fraudulent claims have on the NHS.

The Shared Insights were:

  • Dishonest claims appear in clinical negligence, employer’s liability and public liability claims where patients, employees or visitors claim to have been more injured than is in fact the case.
  • The test for dishonesty in civil claims is set out in Ivey v Genting Casinos (UK) Ltd [2017].
  • The NHS Counter Fraud Authority estimates that the annual cost of fraud to the NHS as a whole is £1.25 billion – the equivalent of 40,000 staff nurses or 5,000 ambulances.
  • The majority of claims are appropriately brought, however there are certain “red flags” to look out for such as the Claimant’s pain being out of proportion with injury and a sudden large Schedule of Loss with no proper disclosure.
  • There are ways to confirm suspicions such as obtaining DWP records or organising face to face expert examinations. Often experts play a critical role in identifying a dishonest Claimant.
  • Intelligence evidence and possibly surveillance are useful in providing evidence of dishonest conduct and can lead to substantial savings for the NHS. In the case of Elder, the Claimant was prevented from recovering in excess of £2 million when it was shown that she was able to carry out activities of daily living that she claimed she was unable to and did not receive the care which she advanced a claim for.
  • From a Trust perspective, there are a number of considerations in relation to dishonesty claims. Cases such as Elder require extra resource and present issues such as media involvement.

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The content on this page 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.

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