The NHS Counter Fraud Authority (NHS CFA) estimates that fraudulent activity costs the NHS some £1.27 billion a year (NHS CFA, 2019). That loss of money affects service provision and deprives patients of much needed funds for care and treatment. The NHS CFA was formed in 2017 to lead the fight against fraud, bribery and corruption in the NHS. All staff, including nurses, have a duty to their employers, the public and service users to protect the assets of the NHS against fraud. To discharge this duty it is essential to support the development of an anti-fraud culture within the NHS that will deter, prevent, and detect fraudulent practices. Therefore, any fraudulent activity must not be ignored and must be reported to allow timely investigation and prevent further losses and asset recovery.
As employees of the NHS nurses have a duty to protect its assets and it is important that they become familiar with what amounts to fraudulent activity and take appropriate action to minimise fraud.
Extent of fraud in the NHS
In its NHS fraud benchmarking report the audit provider RSM found fraud in the NHS increasing by 17% a year. Some 16% of fraudulent activity in 2016 concerned staff working while on sick leave with a further 9% from staff theft, misuse of resources and falsifying timesheets (RSM, 2016).
A nurse avoided jail despite pleading guilty to using her expertise to defraud the NHS of more than £10 000. She admitted using the NHS timesheets system on 72 occasions to enhance her band 7 pay after getting into financial difficulties. She also claimed enhanced payments by telling managers that she had worked weekends and bank holidays when she had actually been at home or on holiday, and claimed travel expenses for a medical conference she never attended. She was dismissed from the NHS after an internal investigation (Ferguson, 2018).
Types of fraud in the NHS
Fraud is not only committed by nurses, doctors and other healthcare staff but also by patients and contractors. There is great variation in the types of fraud committed in the NHS. Independent contractors and suppliers also commit fraud by overcharging for services or creating ‘ghost patients’. Most GPs, opticians, dentists and pharmacists are independent contractors as they are not employed directly by the NHS but are contracted to provide services to patients for which they are paid by the NHS.
Fraud Act 2006
The Fraud Act 2006, section 1 created a general offence of fraud and introduced three possible ways of committing it. These are set out in section 2, 3 and 4. Fraud can be committed by:
In each case of fraud the conduct of the person must be dishonest and their intention must be to make a gain, or cause a loss or the risk of a loss to another.
Fraud by false representation
Under the Fraud Act 2006, section 2, false representation occurs where a person dishonestly makes a false representation with the intention of making a gain or cause loss to another person or to expose another person to a risk of loss. This includes instances where a person gives qualifications that they do not possess when applying for a job. A nurse who embellished his CV to claim he had overseas qualifications and a wide range of senior experience was jailed for fraud following an investigation by NHS Counter Fraud (McLaughlin, 2010).
A representation can also be made by omitting to do something, such as when a nurse does not disclose a previous criminal conviction on an application form for a job. In this case, the nurse is representing themselves as being free of any criminal wrongdoing when the opposite is the case. Section 2(2) of the act defines a representation as false if it is untrue or misleading and the person making such representation knows that it is or might be untrue or misleading. Representation can be expressed verbally or in writing or implied by the conduct of a person (S2(4)).
Fraud by failing to disclose information
Under section 3 of the Act, fraud by failing to disclose information occurs where a person dishonestly fails to disclose information to another person when under a legal duty to disclose. The person must also intend to make a gain for themselves or another person; or to cause loss to another person or to expose another person to a risk of loss. It is no defence that the person was ignorant of the duty.
A nurse who omitted to inform their university of a conviction for assault before they submitted a statement of good character to the Nursing and Midwifery Council (NMC) as part of the registration process had their name removed from the register because the entry was fraudulent (NMC, 2018).
Fraud by abuse of position
Fraud by abuse of position relates to a person who occupies a position in which they are expected to safeguard or not to act against the financial interest of another person. Under section 4 of the Act such a person commits a fraud if they dishonestly abuse that position and intend to make a gain for themselves or for another person; or to cause loss to another person or to expose another person to a risk of loss. As the terms ‘abuse’ and ‘financial interest’ are not defined under the Act, they may be taken to have their ordinary meaning. Abuse of position includes cases where the abuse consists of an omission to do something.
Abuse of position can occur where a nurse employed to care for an elderly person has access to that person's bank account and abuses that position by withdrawing money for their own use. A nurse was convicted of 12 counts of fraud by abuse of position when she intercepted a new chequebook for an older person with dementia and wrote a number of cheques for her own benefit (NMC, 2010).
Common elements of the offence of fraud
The three ways of committing fraud are based on the common elements of:
It is not necessary to prove that a victim suffered loss; the dishonest intention to cause loss is enough. Therefore fraud is about the intention of the person, and no actual gain or loss needs to have occurred.
The element of a gain or loss only relates to money or property. A gain or loss can be temporary or permanent. An example is where a nurse was overpaid by her employer and she did not notify them of the mistake and instead kept the money.
A person must have also acted dishonestly to commit the offence of fraud. Dishonesty is judged on the concept defined in R v Ghosh [1982] that asks:
The two-stage test was outlined by Lord Lane:
‘In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’
R v Ghosh [1982] p1064
Therefore if the answer to the first question is no, there is no case to answer. If the answer to the first question is yes, then it must be considered whether the person must have realised what they were doing was dishonest by the standards of ‘reasonable and honest people’.
Conclusion
Fraud in the NHS has an impact on service provision and deprives patients of much needed funds for care and treatment. Nurses may come across fraudulent activity in the course of their practice and they have a duty to their employers and the public to report any suspicion of fraud. It is therefore important that they are well versed in the possible ways of committing fraud under the Fraud Act 2006 so they can raise a concern against any suspicion of fraud.