On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
The aim appears to be to help deliver greater consistency of approach in a broader government-led counter fraud strategy to prevent fraud, protect resources, and detect and minimise irregularities and losses. Whilst the passage of the past two months will have allowed many to embed these processes and requirements, it is timely to reflect on how detailed and potentially onerous these requirements can be. This article seeks to demystify the process and assist in understanding what the expectations are.
With each ICB directly accountable to NHS England for NHS spend and performance, the delegation of the policing of fraud is a key shift from the approaches adopted by clinical commissioning groups (CCGs) prior to the Health and Care Act 2022. Then, policy, audit and investigatory functions through NHS Local Counter Fraud Specialists (LCFS) within the CCG were much simpler and supplemented by the independent prosecuting authority, NHS Counter Fraud Authority (NHSCFA).
The formality and rigour of the new standards by which the ICBs will be required to provide assurance, reflects a greater professionalisation of the Counter Fraud function within the Government, through the Cabinet office and now as disseminated throughout NHS funded organisations. The key headline features of the guidance are:
All NHS bodies including ICBs are required to comply with GovS013 and specifically the NHS requirements. These should provide the main pillars of ICBs counter fraud strategy, both from a board perspective as well as operational in prevention and staff awareness; and guidance on engaging with NHSCFA. Performance guidance is being judged illustratively by traffic light assessment ranging from green to red (meeting, to not meeting the requirements). The guidance is worth a detailed read to understand the governance (including board appointment of a designated executive board member for counter fraud bribery and corruption with a defined role) is an important feature of the new programme. It allows ICBs to demonstrate board level engagement and compliance. Maintaining fraud metrics (through audit committee minutes and NHS Benchmarking Network) and demonstrating the effectiveness of the counter fraud plan as a board agenda item in minutes with action points followed up, is expected to provide suitable reassurance.
Underpinning this will be a co-ordinated researched and frequently reviewed strategy document – which is based on a current risk assessment to understand and mitigate risks, ongoing staff awareness and training plans and clear reporting guidelines, allocation of resources and evidence of suitable response plan and corrective actions (if required).
Day to day implementation of the strategy should form part of the ICB culture. The action plan can be handled by the audit committee as part of its annual plan and objectives. Their ongoing work should allow ICBs to demonstrate a risk-based approach to monitoring, and suitability of the agreed strategy against national benchmarks available through the NHS fraud case management system. This includes looking at detection activity to look for anomalies and irregularities in high-risk areas. Recording and being able to show reporting of incidents, value of potential losses (and recoveries), as well as criminal or disciplinary sanctions are helpful in measuring progress.
Staff, contractors and the public also need to be made aware of the organisation’s approach to counter fraud, corruption and bribery. The policy for reporting whether through NHSCFA’s online reporting tool, hotline, or internally needs to be well publicised and staff should be able to demonstrate their knowledge of how to respond appropriately. Ongoing awareness training should not be solely limited to the issue of fraud, bribery and corruption, but should also include demonstrating the effectiveness of further policies around gifts and hospitality, and conflicts of interest.
Where fraud is identified, ICBs need to consider whether this falls within NHSCFS acceptance criteria, whether to engage expert professional input from NHS accredited LCFS to investigate and preserve evidence; and how to report to NHSCFA and the NHS case management system. Timeliness of reporting is important as it provides useful intelligence on a national level and helps inform further activities around improvements in prevention methodologies.
Reporting to the centre has special significance as the NHSCFA retains a significant role in investigations – as set out in the Secretary of State Directions – including powers of access to premises, to staff and contractors, as well as documents and information (in digital form or otherwise) to permit it to progress its counter fraud functions and investigations.
The guidance does not pull any punches in its assessment of the challenges or the complexities that managing an investigation involves. This is especially the case where primary care and contractors are concerned. It is important to understand that NHS England retains overall responsibility for investigations of allegations of economic crime but that directly commissioned services by ICBs are to be investigated by them. Whilst not clear on the division of labour, it is assumed that reporting to NHS England is paramount and that any additional considerations such as a joint approach may come into play depending on complexity.
The ICB does not lose any of its independence when confronted with fraud in procurements of services, with employees (for instance in payroll) or patient fraud (such as Personal Health Budgets (PHBs)) and is likely to take the lead role in investigations after consultation with the LCFS and other stakeholders affected by the fraud.
Beyond this wide-ranging change of brief, relatively good news comes for ICBs in the form of additional support offered by the NHS BSA), to help with legal and regulatory obligations around commissioning for and managing primary care contracts. This is envisaged to assist with contract compliance and performance, targeted interventions and collaborating with ICBs to implement corrective action.
Wherever you may be on the journey to implement your strategy to prevent fraud, reviewing the guidance and reflecting on the requirements, even at this time, will help refresh the plan to build a robust prevention model.
Also do not forget you are not alone. Collaboration is the key to defeating fraud. As counter fraud practitioners we recognise the complexities around such policy implementation both at Board and staff level. The mood music is generally supportive – and NHS England, NHSCFA, NHSBSA are there to help.
If you would like to discuss any of the issues raised in this article, please contact Paul Wainwright.
Partner
paul.wainwright@brownejacobson.com
+44 (0)121 237 4577
Browne Jacobson welcomed the Chief Coroner, His Honour, Judge Thomas Teague, KC as a guest speaker at our recent Health and Care Connect Conference. We are delighted to now publish the key insights from that session, authored by the Chief Coroner himself.
The BMA is advising all NHS / HSCNI consultants to ensure extra-contractual work is paid at the BMA minimum recommended rate and to decline offers of extra-contractual work that doesn't value them appropriately.
Browne Jacobson was delighted to welcome Professor Sir Jonathan Van-Tam as a key note speaker at our recent Health and Care Connect Conference. We are delighted to now share the film of this key note speech together with an article sharing the key insights written by Professor Sir Jonathan Van-Tam himself.
NHS England has published (October 2022) new guidance - Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions.
NHS England has issued an updated (publication 11 October 2022) suite of Complex Change guidance about how it will assure and support proposals for complex change that are reportable to it. New and (where it is still in force) existing Complex Change guidance are as follows.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
On Saturday 15 October a wave of light swept the internet when thousands of people flooded social media with pictures of candles to remember the babies that they have lost. This event signifies the end of Baby Loss Awareness Week which aims to break the silence that is associated with baby loss in pregnancy and infancy.
The Coronavirus Act 2020 allowed any registered medical practitioner to sign a medical certificate of cause of death (“MCCD”), even if the deceased was not attended to during his or her last illness and not seen after death, provided that the medical practitioner could state the cause of death to the best of their knowledge and belief.
In our latest Shared Insights session, Focus on Emergency Medicine, chaired by Jennifer Fagin and Amelia Newbold, we were pleased to be joined by: Dr Alex Crowe, Deputy Director Incentive Schemes & Academic Partnerships, NHS Resolution and Consultant Nephrologist and Miss Susie Hewitt MBE, Consultant in Emergency Medicine, University Hospitals of Derby and Burton NHS Foundation Trust.
Universities and colleges are not immune from deception by unscrupulous bad actors. The extent to which educational institutions can manage and control risk not only depends on financial management and internal controls, but also the robustness of security and processes which can be exploited from outside the organisation.
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
Deprivation of Liberty Safeguards was due to transition to Liberty Protection Safeguards in October 2020 but delayed due to the pandemic. While the public consultation has now closed and we’re still unclear of what the final legislation and code will look like, it’s worth noting and keeping a watching brief.
In this session, our speakers discussed the Fitness to Practise Regime and how we can help.
This will be the first in a series of webinars looking into different areas of care and will focus on elderly care. Our speakers will be looking forward into 2023 and beyond to consider how elderly care may change in the future and will share insights gathered from a round table event held the week before.
As of 21 July, two separate pieces of legislation came into force which seeks to mitigate against strike action. It should come as no surprise that this is a direct response to the rail strikes, which have dominated the news in the last couple of months.
This on-demand webinar is presented by Jacqui Atkinson and Bridget Prosser. What HR issues are on your to-do list and what are the employment law ramifications?
This is an important training course for practising clinicians and any NHS professionals who would benefit from understanding the inquest process, including those working in clinical governance and risk, complaints, family liaison and in-house legal teams.
In this article, we discuss some of the themes we have seen in recent CQC regulation as well as providing an update on the development of their new assessment framework. I will also highlight other key developments in the sector that all providers should be aware of.
This summer saw the publication of a report describing itself as a ‘once in a generation’ opportunity to reset children social care. Based on the current trajectory, the report concluded that 100,000 children would be held in care in the next decade.
This on-demand webinar looks at the Secretary of State’s new powers under the Health & Care Act 2022 & impact on current approach for healthcare providers.
Presented by Gerard Hanratty, this on-demand webinar looks into the key new functions for Integrated Care Systems under the new Health & Care Act 2022. It provides a useful update on what is new, how it may be interpreted and what issues may arise.
This on-demand webinar is suitable for legal and procurement specialists operating within publicly funded contracting authorities.
In this session, our speakers discussed fundamentals of disclosure, general points on disclosure & Post-Pandemic, interested Persons & Patient Safety Incident Response, and how we can help & Takeaway Tips.
The much-anticipated draft Mental Capacity Act Code of Practice and Regulations, including the Liberty Protection Safeguards (“LPS”), has arrived.
The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards (DoLS) system. The LPS framework aims to deliver improved outcomes for people who are or who need to be deprived of their liberty.
Welcome to our latest health newsletter for Summer 2022. We have a packed edition which includes fascinating insights from clients and our own lawyers into the potential impact of the Health and Care Act 2022 and associated DHSC integration policy.
HSIB published its report on Maternal deaths during the first wave of COVID-19. The report takes a closer look at the impact that COVID-19 had during the initial period of March to May 2020.
