Ian Long examines new investigative powers that will leave trusts open to ever-greater scrutiny

Fraud is big business. In 2006-07, the NHS Counter Fraud and Security Management Service detected and investigated 409 cases of fraud with a value of£7.3m.

The police have had powers of entry and search, including the power to take away documents and other evidence, for some years. Now, under new powers outlined in the Health Act 2006, authorised Counter Fraud and Security Management Service officers will have the right to turn up at trust premises demanding the disclosure of documents.

A draft code of practice, which will outline how the process is likely to work in practice, is under consultation.

Although these additional powers are not seen as a substitute for police powers, it is expected that they will allow fraud and security specialists to further their investigations without the need for immediate police involvement.

What should trusts expect?

In the first instance, trusts under investigation will be issued with a disclosure notice. Failure to comply with the notice is a criminal offence. This may be preceded by a telephone call but it is not mandatory.

Investigators must provide evidence of their identity. Failure to do so means a trust is not obliged to comply with their request.

It is also important for the trust to check that the notice contains the following information: details of the documents required (both hard copy and electronic), the deadline for production, confirmation of the place at which they must be produced, contact details and confirmation of the penalties.

If a case is particularly urgent or there is a suspicion that documents may be destroyed, a trust may be asked to produce the documents immediately. Otherwise, disclosure within normal working hours should be acceptable. If they cannot be produced, the trust will need to provide an explanation of their whereabouts.

Documents protected by legal professional privilege do not have to be disclosed. Furthermore, personal records, including patient records, cannot be requested without the authorisation of a senior member of the investigation team.

In some cases, forensic specialists will be brought in to access the necessary information so trusts need to be prepared for this. A clinical specialist may also be brought in by the investigator to liaise between the parties.

Investigators are also likely to take away the original documents, so trusts should request copies. A written receipt should be provided for any documents taken by the investigation team.

Minimising disruption

An investigation by the Counter Fraud and Security Management Service is bound to create practical problems for trusts, but there are steps that can be taken to ensure any disruption is minimal.

Trusts should put in place a policy to deal with such situations. Systems should be in place to ensure senior management are informed of the notice at once. Clear procedures dealing with response times and the manner in which documents are produced are paramount.

An audit of the trust's current document storage and retrieval system should also be undertaken as a matter of course.

All staff affected by the new powers should receive adequate training and the trust should ensure all contractors are aware of the new powers as they too will be liable to comply with any investigation.

There is no doubt these are far-reaching powers and signal a new determination to root out fraud from the NHS. A co-operative and constructive relationship with their local counter-fraud specialist is likely to benefit both parties. Anyone receiving such a notice must take it seriously and if necessary seek professional advice.