SANCTIONS AND REDRESS

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1 Appendix 3 SANCTIONS AND REDRESS Introduction This Appendix sets out s (the Trust / NTW) approach in respect of sanctions to be applied against those persons and / or organisations who have committed fraud, bribery or corruption against the Organisation and the steps to be taken to recover any monies which have been lost as a result. It is recognised that fraud is potentially costly to the Trust both in terms of reputational risk and financial loss. Where fraud, bribery or corruption is proven, those persons responsible must understand that potential action will follow in line with NHS Protect s Policy Documents Applying Parallel Sanctions Consistently, Parallel Criminal and Disciplinary Investigations and their guidance document to Local Counter Fraud Specialists on Parallel Criminal and Disciplinary Investigations. Where a referral to the Local Counter Fraud Specialist (LCFS) is investigated and fraud, bribery or corruption has been identified and quantified, the Trust will instigate appropriate punitive action against the individual or organisation involved and steps will be taken to recover any monies lost. In addition, the Trust will pursue appropriate sanctions as a deterrent measure against those who may consider committing fraud, bribery or corruption to misappropriate public funds. In promoting its zero tolerance approach to fraud, bribery and corruption and to ensure that its valuable resources are safeguarded and used to provide the highest quality health services, the Trust is committed to:- The early consideration of all appropriate and proportionate sanctions available during investigations into suspected fraud, bribery or corruption; Taking any appropriate action to seek financial redress and, where possible; Taking all necessary steps to recover losses to fraud, bribery or corruption. It is important that those who would defraud the NHS know that criminal proceedings are not the only matter that they may have to deal with, but that civil law proceedings, remedies to freeze, identify and recover assets, and commencing disciplinary / regulatory action to remove them from their position or employment will also be considered. 1

2 Sanctions During an investigation by the LCFS into fraud, bribery or corruption, there are four main sanctions which will be considered by the Trust. Each sanction will play an equally important role in the creation and maintenance of an anti-fraud culture. These potential sanctions are as follows: Internal Disciplinary Action - proceedings to deal with the issue internally via Human Resources and the Trust s own Disciplinary procedure. Professional / Regulatory - where an individual is a professional, it may also be necessary to notify their professional body for the matter to be dealt with externally by the relevant professional or regulatory body. Civil Action - proceedings to preserve assets and/or recover money or assets obtained inappropriately, including interest and costs. Criminal Prosecution - proceedings to be brought against alleged offenders with the view to obtaining a criminal conviction, imprisonment, community penalty, fine, confiscation, compensation order and the award of costs. The Trust s approach to pursuing sanctions in cases of fraud, bribery and corruption is that the full range of possible sanctions outlined above are considered at the earliest opportunity, and any or all of these may be pursued where, and when, appropriate. The consistent use of an appropriate combination of investigative processes in each case demonstrates the Trust s commitment to take fraud, bribery and corruption seriously and ultimately contributes to the deterrence and prevention of such actions in the future. The application of a disciplinary, professional, civil or criminal, process may not be a stand-alone sanction. Dependent on the outcome of an investigation, any sanction is capable of being applied and it is not unusual for these sanctions to overlap. Where an employee is being investigated with a view to pursuing criminal proceedings, they may also simultaneously be the subject of disciplinary and professional sanctions arising out of the same set of circumstances. These processes will be conducted separately, but it is important to ensure that one process does not undermine the other, and that any interaction is effective, lawful and appropriate. The Trust recognises that criminal and disciplinary investigations have different purposes, have different standards of proof in determining guilt, are governed by different rules, and have different outcomes, and therefore it is not appropriate for one process to cover both, but will be conducted separately, and by different people. The LCFS will not conduct disciplinary investigations as this would risk undermining the integrity of both processes in relation to the way evidence has been gathered. 2

3 As a result, where parallel sanctions are to be pursued, the LCFS will liaise closely with the Executive Director of Finance, NHS Protect and the Investigating Officer / Workforce regarding sharing of information (where appropriate), avoiding duplication of effort, and to ensure neither case is compromised. At all times, the LCFS will adhere to the NHS Protect manual, guidance and policies in the conduct and reporting of investigations. Abuse of Process and Fairness It is often stated that disciplinary and civil proceedings should be delayed pending the outcome of any criminal proceedings on the grounds that to do otherwise may prejudice the individual concerned in some way. Concerns may be raised about breach of human rights, particularly the right to a fair trial, and the potential for abuse of process. However, there is nothing to prevent a disciplinary process being commenced in circumstances where criminal charges are being considered or a criminal investigation is in progress - as long as the process is conducted fairly, is in accordance with the Trust s Disciplinary procedure, and the approach to collating the evidence does not undermine the criminal investigation. During a disciplinary investigation an employee can choose not to answer questions, but in the interests of acting fairly and reasonably they will be informed that the matter may be referred to the LCFS, NHS Protect or the police for criminal investigation and that criminal proceedings may result. Under no circumstances will the impression be given to an employee that prosecution can be avoided if they elect to answer questions and co-operate during the disciplinary process. Where, during a disciplinary process, it becomes apparent that a fraudulent matter may be emerging, the situation will be reported to the LCFS immediately, and it may be necessary to suspend the disciplinary proceedings. Where an employee has been subject to disciplinary and / or civil proceedings it does not exclude them from criminal prosecution, and vice-versa. Seeking Redress / Recovery Process The Trust is committed to take all necessary steps to recover any monies which have been lost as a result of fraud, bribery or corruption. Such steps will include consideration being given to obtaining voluntary repayment, negotiated settlements, obtaining compensation upon conviction (if applicable), or commencing civil proceedings under Part 5 of the Proceeds of Crime Act If, during an investigation, there is evidence to show that monies or other assets have been fraudulently misappropriated, it may be appropriate that applications need to be made to the civil courts for injunctive relief (e.g. freezing orders, restraint orders, or search orders) to preserve the proceeds of the fraud. Decisions regarding the most appropriate and proportionate method of recovering monies lost to fraud, bribery or corruption will be made following consultation between the Executive Director of Finance, the LCFS, NHS Protect, the police, and the Trust s legal advisers (where appropriate). 3

4 It is the responsibility of the Executive Director of Finance to ensure a record of all recoveries including any awards of compensation and costs, is maintained. For employees, recovery can be obtained via the payroll until the debt is repaid. The employee will be formally contacted confirming the amount of debt and a reasonable proposal will be made for recovery. An agreement will be sought with the employee to ensure that recovery is made in the shortest possible time. Where an employee is in the process of leaving or being dismissed, they will be formally advised that the necessary recovery will be actioned via their final salary payment. Where the available funds are insufficient, the employee will be advised of the outstanding amount and inviting a proposal to pay. Should the employee not respond, or their proposal is deemed to be unacceptable, a formal demand for repayment will be made. This letter will be sent by Recorded Delivery. Should this demand be ignored, the employee will be sent a third and final letter, again by Recorded Delivery, advising them that the Trust will consider legal action through the Civil Court process in order to secure the recovery. In circumstances of an employee leaving or being dismissed (either on criminal conviction or as a consequence of any disciplinary process), and where they are a member of the NHS Pension Scheme and the monies owing to the Trust are greater than any recoverable amount from a final payroll payment, an application may be made to recover the outstanding amount from their pension scheme account under Part T5 of the National Health Service Pension Scheme Regulations 1995 or Chapter 2J.6 of the National Health Service Pension Scheme Regulations The employee will be notified of any such application. For external bodies or NHS contractors, recovery procedures will be commenced initially via formal contact. They will be advised of the debt and inviting them to submit a proposal to repay. Should they not respond, or their proposal is deemed to be unacceptable, they will be contacted with a formal demand for the money. This letter will be sent by Recorded Delivery. Should this demand be ignored, the external body or contractor will be sent a third and final letter again by Recorded Delivery advising them that the Trust will be considering legal action through the Civil Court process in order to secure the required recovery. In any instances concerning the need for civil recovery proceedings to be commenced, the Executive Director of Finance will seek legal advice. Costs associated with the recovery will be included in the claim submitted to the Court. For employees, ex-employees, external bodies or NHS contractors, if following a conviction, the court awards compensation and / or costs, the action will be awarded from and collected by the court. The LCFS will notify the Finance Department of the award and the expected payment terms. Where the payment from the court does not materialise after a period not exceeding three months, the LCFS should be notified by the Finance Department. The LCFS will be responsible for following the matter up with the relevant court. If during the course of an investigation it is identified that the Trust has suffered a significant financial loss, the LCFS will promptly notify the Executive Director of Finance. 4

5 The Executive Director of Finance will seek advice regarding recovery at the earliest opportunity from NHS Protect, the police and the Trust s solicitors (as appropriate). This may result in recovery action commencing whilst the investigation continues. Identifying Compensation and Costs The responsibility for identifying costs and compensation associated with a civil or criminal prosecution rests with the LCFS. Compensation will be determined through the investigation process and based on the evidence. The LCFS will keep a record of the time spent on the investigation and this will be converted to a cost based on the hourly rate approved by the Trust. This information will be provided to the relevant authority at the earliest opportunity and prior to the commencement of any court case. 5