With huge figures attributed to the scale of uncovered fraud in the NHS, Jonathan Nixon examines the potential for civil litigation to get quicker results than criminal prosecutions of alleged fraudsters
This article was part of the Commissioning Legal Adviser channel, in association with Mills & Reeve. The channel is no longer being updated.
Against a backdrop of widespread organisational change and cuts in resources, the NHS is likely to find itself more vulnerable to fraud. The consequence of fraud against the NHS is less money being available for patient care.
‘It is likely that official figures represent only a fraction of the suspected losses’
By its very nature, fraud is a hidden crime, and so a recent report, The financial cost of healthcare fraud 2014, attempted to quantify its true cost. Co-authored by BDO LLP and Portsmouth University, the report analysed worldwide healthcare expenditure and concluded that just under 7 per cent of total health expenditure appears to be lost to fraud and error.
The report was picked up by the BBC’s Panorama programme “The Great NHS Robbery”, which suggested that the scale of fraud in the NHS could be even greater than benefits fraud.
Safety in numbers
The programme reported that the NHS had fewer resources to tackle fraud than the Department for Work and Pensions, which employs six times the number of investigators than NHS Protect, and that NHS Protect has had its budget cut by 30 per cent since 2006.
Panorama estimated that £7bn was being lost to fraud in the NHS each year and cited widespread and varied examples of fraud ranging from GPs, dentists and private companies manipulating patient figures to theft of medical products for resale on eBay.
‘Securing a criminal conviction can take many years, with the standard of proof in criminal cases being “beyond reasonable doubt”’
The government’s annual fraud indicator shows only £229m losses in the NHS, attributed to patients claiming false exemptions and dentists making false claims. It is likely that these official figures represent only a fraction of the suspected losses, with procurement and payroll being two particularly vulnerable areas that are not measured.
NHS Protect has been doing an admirable job, deploying approximately 300 accredited counter-fraud specialists to tackle the problem at a local level.
It has achieved some high profile successes, including the conviction and imprisonment of dentist Joyce Trail for seven years after she obtained some £1.4m from the NHS by forging documents and claiming for procedures on patients she had never met or were no longer alive.
Despite NHS Protect’s efforts, securing a criminal conviction can take many years, with the standard of proof in criminal cases being “beyond reasonable doubt”. Overcoming this hurdle requires a huge investment of time and resources and the evidence does not always support a prosecution.
‘Both criminal and civil options should be carefully considered at the outset of any fraud investigation’
It is, however, possible to pursue fraudsters in the civil courts. While cogent proof is required in a civil fraud claim, the standard of proof is lower than that in a criminal case, being “the balance of probabilities”.
Civil litigation has a number of other advantages, including the ability to act quickly, to obtain interim orders such as search orders and freezing injunctions, and greater control over the timetable of the case and what information is released into the public domain.
A judge, also determines cases, reducing the uncertainties associated with jury trials. It is possible to run civil and criminal proceedings in parallel.
Both criminal and civil options should be carefully considered at the outset of any fraud investigation. Given the likely extent of fraud in the NHS and the difficulties faced in securing a criminal conviction, NHS bodies may increasingly focus their resources on fraud prevention and look to the civil courts for a positive outcome.
Jonathan Nixon is associate, commercial litigation, at Mills & Reeve