Policies, Procedures, Guidelines and Protocols

Transcription

1 Policies, Procedures, Guidelines and Protocols Document Details Title Anti-Crime Specialists and Human Resources Advisory Team Protocol Trust Ref No Local Ref (optional) Main points the document covers This document has been established to enable effective interaction between the Anti-Crime Specialists and the Human Resources Advisory Team with regards to considering appropriate sanctions to be applied to Trust staff following fraud, bribery or corruption/disciplinary investigations Who is the document aimed at? Trust Anti-Crime Specialists and the Trust Human Resources Advisory Team staff. Author Terry Feltus and Ian Gingell, Anti-Crime Specialists Approval process Approved by Director of Finance (Committee/Director) Approval Date 01 July 2017 Initial Equality Impact Yes Screening Full Equality Impact No Assessment Lead Director Director of Finance Category General Sub Category Corporate Review date 01 May 2020 Who the policy will be distributed to Method Required by CQC Required by NHLSA Other Distribution Trust Anti-Crime Specialists and the Trust Human Resources Advisory Team staff (for action) and Board Members (for information) Electronically Document Links No No Yes NHSCFA Amendments History No Date Amendment 1 April 2014 To remove counter fraud department and replace with Local Counter Fraud Specialist 2 April 2014 Change title of Workforce Department to Human Resources Department 3 April 2014 To include access via links to new Policy, and Guidance documents published and issued by NHS Protect 4 April 2014 To include the new Statutory Fraud Legislation for NHS 5 March 2015 To update policy with new Trust Director titles Page 1

2 6 March 2015 To include reference to the new Statutory Fraud Legislation for NHS Providers (Service Condition 24 of NHS Standard Contract 2015/2016) 7 March 2015 To include reference to the newly produced NHS Protect NHS Anti-Fraud Manual, including reference to appropriate chapters in the manual 8 March 2015 To include reference to the online fraud reporting facility on Anti- Fraud page on the Trust intranet website 9 July 2017 To include both the Local Counter Fraud Specialist and Local Security Management Specialist roles under a new heading of Anti-Crime Specialists 10 July 2017 To amend Human Resources Department to read Human resources Advisory Team 11 July 2017 To amend NHS Protect to read NHS Counter Fraud Authority Page 2

3 Anti-Crime Specialists and Human Resources Advisory Team Protocol Page 3

4 Anti-Crime Specialists / Human 1. Introduction 1.1 This document has been established to enable effective interaction between the Anti-Crime Specialists (ACS) and the Shropshire Community Health NHS Trust (Trust) Human Resources Advisory Team. It is necessary that the co-operation between these two functions can be demonstrated; hence this protocol has been established. 1.2 The protocol is a framework for general interaction requirements including the liaison responsibilities whenever a potential crime may have been highlighted. Applying the protocol will ensure that the full range of sanctions available to the organisation can be considered at the earliest opportunity (criminal, civil and disciplinary). To pursue these sanctions effectively there needs to be a close and supportive liaison between the ACS and the Human Resource functions. This includes the sharing of information to avoid both duplication of effort and potentially compromising the use of other sanctions by well-intentioned actions. The Trust Director of Finance and the Trust Director of Corporate Affairs should be consulted whenever there is any conflict between the two roles regarding a course of action to be taken. 1.3 This protocol is not a definitive procedural document as this would not be possible as each individual investigation may highlight specific issues requiring an adaptation to the procedure outlined herein. However, despite any case by case adaptations that may be required, the Trust should remain mindful of the need to conduct potential criminal investigations in accordance with criminal and civil law and all relevant aspects of employment law. Furthermore guidance outlined in the NHS Counter Fraud Authority (NHSCFA) Anti-Fraud Manual, the policy documents Applying Appropriate Sanctions Consistently, and Parallel Criminal and Disciplinary Investigations and the guidance document Parallel Criminal and Disciplinary Investigations Guidance to Local Counter Fraud Specialists should be fully adhered to. 1.4 To maintain a high deterrent factor against NHS crime, it is important to consider the full range of sanctions available. This may result in criminal sanctions being applied at the same time as any civil and/or disciplinary sanctions. Whenever sanctions are to be run simultaneously (termed parallel sanctions) close liaison must exist between the ACS and the Human Resources Advisory Team, as findings from one investigation might be important to the success of another. Generally, the criminal investigation will determine the actions and timing of other related investigations, this is due to the higher burden of proof placed upon criminal Page 4

5 investigations and the resultant due process legislation that covers the gathering of evidence. However, the fact that a criminal investigation is being conducted does not negate the fact that a decision can be made on a disciplinary or civil matter, but rather this action should be taken after consultation with the investigator leading on the criminal investigation. 1.5 This protocol takes into account the NHSCFA policy documents Applying Appropriate Sanctions Consistently, and Parallel Criminal and Disciplinary Investigations. As such both documents should be read in conjunction with this protocol. The documents can be viewed by accessing the following: an_res_dept_prot/applying_appropriate_sanctions_consistently _-_Policy_statement_April_2013[1].pdf an_res_dept_prot/parallel_criminal_and_disciplinary_investigat ions_-_policy_statement_april_2013[1].pdf 1.6 This protocol also takes into account the NHSCFA guidance document Parallel Criminal and Disciplinary Investigations Guidance to Local Counter Fraud Specialists. As such the document should be read in conjunction with this protocol. The document can be viewed by accessing the following: an_res_dept_prot/parallel_criminal_and_disciplinary_investigat ions_-_guidance_april_2013[1].pdf 1.7 Applying Appropriate Sanctions Consistently, Parallel Criminal and Disciplinary Investigations and Parallel Criminal and Disciplinary Investigations Guidance to Local Counter Fraud Specialists provide specialist and legal advice on how to conduct investigations to ensure the full range of sanctions are considered and can be applied in all fraud or corruption investigations. 1.8 Related local policies/procedures are listed below and it is important that these policies have reference to this protocol. Details of this protocol do not need to be repeated but policies should be clear to mention the role of the ACS, the fraud and corruption reporting line and web based reporting facility, and the fact that investigations might be conducted to achieve disciplinary, civil and criminal sanctions. Whistleblowing Policy Anti-Fraud, Bribery and Corruption Response Policy Disciplinary Policy Page 5

6 Standing Financial Instructions Standards of Business Conduct for Trust Staff Please note this list of policies is not definitive. 2 Human Resources Advisory Team Liaison Responsibilities 2.1 Meet regularly with the ACS to discuss requirements and monitor the interaction process ensuring it remains effective and fit for purpose. 2.2 Assist the ACS, as appropriate, in any reviews undertaken to detect and prevent potential crime from entering the organisations systems. 2.3 All referrals received that may have an element of suspected crime MUST be reported immediately to the ACS or the Trust Director of Finance. This can be verbally, in writing, via , or by completing the online fraud reporting form on the Anti-Fraud page on the Trust intranet website. If reported direct to the ACS, then the ACS will ensure that the Trust Director of Finance is notified at the earliest opportunity. 2.4 Inform the ACS of any possible system weaknesses which could allow crime to occur. This includes weaknesses discovered as part of any Human Resources Advisory Team investigation which did not warrant the commencement of a criminal investigation. 2.5 Meet regularly with the ACS for updates on investigations whenever parallel investigations are being conducted, and/or parallel sanctions are being pursued, to ensure a flow of information and avoid potential duplication of effort. 2.6 Inform the ACS whenever Health and Safety risks (i.e. not holding appropriate clinical qualifications) or allegations relating to vulnerable clients, must take precedence over any potential criminal investigation that may be undertaken. 2.7 Allow the ACS, whenever possible, to interview the suspect under caution before a disciplinary hearing takes place. In this way first reactions to the allegations are taped which can then be used for both criminal and disciplinary investigations. Please note that while information can be shared it does not negate the need for a correct and proper investigation for each sanction being considered, for example information might be shared from an interview under caution but this information should be discussed with the person at a separate disciplinary interview which is bound by its own rules of conduct. Page 6

7 2.8 When appropriate, and where able to do so, and in liaison with the ACS, undertake disciplinary sanctions even if a criminal sanction may still be ongoing. Feedback to the ACS the outcome of such disciplinary hearing as this may have an impact on the criminal sanction investigation. 2.9 Where necessary, and available, provide sufficient evidence to the ACS in order that a criminal investigation and criminal sanctions can be pursued Liaise with the Trust Director of Finance and ACS whenever a decision has been made to suspend an employee who is subject to a criminal investigation. The decision to suspend will rest with the Director of Corporate Affairs, and the Head of Human Resources and Workforce, but any decision should not be taken without consultation with the ACS as the action may adversely affect the success of a criminal investigation, for example it may warn the suspected person and allow them time to cover up the crime It is important that the Human Resources Advisory Team inform the ACS of all decisions taken in disciplinary cases where the ACS has considered parallel sanctions. The ACS is required to provide details of the outcome of such cases to NHSCFA, where the case has been formally accepted as a fraud, bribery or corruption investigation. 3 ACS liaison responsibilities 3.1 Meet at agreed regular intervals with the Human Resources Advisory Team to discuss liaison requirements. Update this document as required. 3.2 Provide a bespoke presentation to Human Resources Advisory Team staff, as required, explaining the role of the ACS and the interaction between anti-crime and the Human Resources Advisory Team. 3.3 Acknowledge receipt of Human Resources Advisory Team referrals and arrange to meet with an appropriate Human Resources representative to discuss. The ACS will then undertake an initial and timely review to establish the validity or otherwise of the allegation. 3.4 Meet at regular intervals with the Human Resources Advisory Team for updates on investigations whenever parallel investigations are being conducted, and/or parallel sanctions are being pursued, to ensure a flow of information and avoid potential duplication of effort. Page 7

8 3.5 Liaise with NHSCFA as required throughout the investigation, and pass relevant advice onto the Human Resources Advisory Team for consideration, as appropriate. 3.6 Where necessary, and appropriate to do so, the ACS will provide sufficient evidence to the Human Resources Advisory Team in order that a disciplinary investigation can be taken forward as appropriate. 3.7 Concluding reports will be issued at the closure of any investigation undertaken by the ACS in accordance with the requirements outlined in the NHSCFA NHS Anti-Fraud Manual. 4 Outline of Investigation Process 4.1 From the initial review undertaken by the ACS, the following will be considered (see Appendix A): No evidence of fraud, bribery or corruption, or other criminal activity found (see section 4.2) No evidence of fraud, bribery or corruption, or other criminal activity found but system controls need to be strengthened (see section 4.3) No evidence of fraud, bribery or corruption, or other criminal activity found but matter needs to be referred back to the Human Resources Advisory Team for potential disciplinary sanction to be considered (see section 4.4) Reasonably held suspicion/information/evidence of suspected fraud, bribery or corruption, or other criminal activity received requiring criminal investigation (see section 4.5) 4.2 No case to answer or no evidence of fraud, bribery or corruption, or other criminal activity found The ACS will inform the Trust Director of Finance that no evidence of crime has been identified. The Human Resources Advisory Team will also be notified of this decision. A concluding report will be written by the ACS and issued accordingly 4.3 No evidence of fraud, bribery or corruption, or other criminal activity found but system controls need to be strengthened The ACS will inform the Trust Director of Finance. The Human Resources Advisory Team will also be notified of this decision A concluding report will be issued with recommendations Page 8

9 to strengthen controls in identified areas of weakness. This report will be distributed in accordance with the instruction outlined in NHSCFA NHS Anti-Fraud Manual (Chapter 5.4 (Case Files)), and when requested, in accordance with Service Condition 24 of the NHS Standard Contract for providers. The recommendations will be followed up by the ACS as part of future crime prevention work. 4.4 No evidence of fraud, bribery or corruption, or other criminal activity found but the referral is returned to the Human Resources Advisory Team for potential disciplinary sanction to be considered The ACS will inform the Trust Director of Finance If the ACS does not find evidence of crime but a breach of policy/procedures may have occurred, then the ACS will meet with a member of the Human Resources Advisory Team to discuss the findings and pass on the file of evidence gathered to date. Human Resources should use this file of evidence to establish if further consideration/action is required The ACS will take no further part in any additional investigation undertaken by the Human Resources Advisory Team regarding a suspected breach of procedures, as under guidance issued by NHSCFA, the ACS is only charged with investigating criminal related matters A concluding report will be issued with recommendations to strengthen controls in identified areas of weakness. This report will be distributed in accordance with the instruction outlined in NHSCFA NHS Anti-Fraud Manual (Chapter 5.4 (Case Files)), and when requested, in accordance with Service Condition 24 of the NHS Standard Contract for providers. The recommendations will be followed up by the ACS as part of future fraud prevention work. 4.5 Case to answer criminal investigation undertaken and appropriate sanction considered The ACS will liaise with the Trust Director of Finance and conduct an investigation in accordance with investigative legislation such as the Police and Criminal Evidence Act 1984 (PACE) and the Criminal Procedure and Investigations Act (CPIA). Instruction outlined in the Standards for Providers document published by NHSCFA Page 9

10 each year, as well as their main strategy document Tackling crime against the NHS: a strategic approach, and guidance issued in the NHSCFA NHS Anti-Fraud Manual must be followed. Confidentiality will be respected during the course of the investigation Criminal investigations will be undertaken in a timely and professional manner so that the pursuit of other potential sanctions is not compromised Regular case meetings will be held so that the ACS can keep the Trust Director of Finance and the designated Human Resources Advisory Team officer updated as the investigation progresses and discuss any potential sanctions that may be pursued If parallel sanctions are being undertaken, the ACS will meet regularly with the Human Resources Advisory Team investigating officer s support to share information and avoid any duplication of effort. An investigation plan setting out the requirements for the parallel sanction will be established and maintained throughout the investigation process In liaison with the Trust Director of Finance, the Human Resources Advisory Team, NHSCFA (where appropriate) and ACS, the Trust will consider the following three sanctions in cases where there is prima facie evidence of NHS fraud, bribery or corruption, or other criminal activity: Criminal A criminal sanction is pursued where evidence of offences has been obtained so that relevant punitive sanctions and redress can be sought. This sanction can only be pursued if agreed by the Trust Director of Finance, and NHSCFA. Civil - Where it is cost effective and desirable for the purpose of deterrence, it may be decided that civil redress is the most appropriate course of action. It is then the responsibility of the Trust to use the civil law to recover any losses. Disciplinary Disciplinary procedures are designed to test whether a person should be permitted to practice or continue their employment. Recovery should be considered whenever this action is pursued where the organisation has suffered a financial loss due to inappropriate actions. The Trust Disciplinary Policy will be followed in these cases. Those conducting disciplinary hearings should never make an express or Page 10

11 implied statement that criminal proceedings will not be undertaken. Dismissal of an employee need not wait until the conclusion of any simultaneous criminal sanction that the ACS may be undertaking. Either one or a combination of these sanctions can be pursued. This will be assessed on a case by case basis. 4.6 The ACS will be responsible for establishing a prosecution file. The Human Resources Advisory Team support to the nominated investigating officer will be responsible for establishing the disciplinary file. The ACS cannot be assigned as the Trust investigating officer in relation to criminal issues. 4.7 A concluding report will be issued with recommendations to strengthen controls in identified areas of weakness. This report will be distributed in accordance with the instruction outlined in NHSCFA NHS Anti-Fraud Manual (Chapter 5.4 (Case Files)), and when requested, in accordance with Service Condition 24 of the NHS Standard Contract for providers. The recommendations will be followed up by the ACS as part of future crime prevention work. 5 Associated risks if effective interaction is not in place 5.1 The Trust may not be able to pursue all appropriate sanctions. This may lead to the perception that the organisation does not take crime seriously in that appropriate deterrent penalties will not be applied in full for perpetrators of NHS crime. Without appropriate deterrent factors there may be an enhanced risk of fraud, bribery or corruption, and other criminal activity within the organisation. 5.2 Disciplinary hearings may be compromised if the organisation has failed to follow, and evidence compliance to, the Trust Disciplinary and Anti-Crime Policies, when dealing with potential criminal activity. 5.3 Failure to follow this protocol places the Trust at risk as investigations may fail at the earliest outset. Furthermore the Trust will be in breach of the instructions outlined in the Standards for Providers document published by NHSCFA each year, as well as their main strategy document Tackling crime against the NHS: a strategic approach, and guidance issued in the NHSCFA NHS Anti-Fraud Manual. Page 11

12 Flowchart of Process Appendix A Referral ACS Initial Review No case to answer Meeting between the Trust Director of Finance and ACS Case to answer ACS to advise the Human Resources Advisory Team and handover any evidence obtained for the Human Resources Advisory Team to use in any internal disciplinary investigation ACS and the Human Resources Advisory Team to provide regular updates to each other during investigation ACS to advise the Human Resources Advisory Team and the Trust Director of Finance, if investigation reveals that the use of parallel sanctions may be appropriate in accordance with policy. The Human Resources Advisory Team to carry out simultaneous internal investigation Sanction Decision CRIMINAL CIVIL DISCIPLINARY Prosecution file prepared by ACS / NHSCFA Consider County Court/Small Claims in consultation with Trust solicitor Human Resources Advisory Team appoints Investigating Manager and follows disciplinary procedure. ACS may be witness Redress Anti-Crime Specialists and Human Resources Page 12