Important Note: The Intranet version of this document is the only version that is maintained.

Transcription

1 Document Summary To ensure the Trust is compliant with the provisions of the Bribery Act 2010 DOCUMENT NUMBER POL/002/082 DATE RATIFIED 25 July 2016 DATE IMPLEMENTED July 2016 NEXT REVIEW DATE July 2019 ACCOUNTABLE DIRECTOR Director of Strategy & Support Services POLICY AUTHOR Head of Internal Audit and Counter Fraud Important Note: The Intranet version of this document is the only version that is maintained. Any printed copies should therefore be viewed as uncontrolled and, as such, may not necessarily contain the latest updates and amendments.

2 TABLE OF CONTENTS 1 Scope Introduction Statement of Intent Definitions Duties THE BOARD EMPLOYEES MANAGERS LOCAL COUNTER FRAUD SPECIALIST DIRECTOR OF FINANCE INTERNAL AND EXTERNAL AUDIT HUMAN RESOURCES PROCUREMENT Actions on the Suspicion of Bribery Training Monitoring Compliance with this Document References/ Bibliography Related Trust Policy/Procedures... 8 Approved : Page 2 of 16 Our Ref: POL/002/0820

3 1 SCOPE The procedural document applies to all those employed by the Trust on all sites. This includes employees, regardless of position held, as well as Non-Executive Directors, consultants, vendors, contractors, and/or any other parties who have a business relationship with the Trust 2 INTRODUCTION Cumbria Partnership NHS Foundation Trust (CPFT) is established under statute as a corporate body. The Bribery Act 2010 clarifies the offence of bribery and creates offences for individuals that can be punished with unlimited fines and/or imprisonment for up to 10 years. It also introduces a corporate offence for organisations failing to prevent bribery for not having robust and effective preventative procedures in place, again subject to unlimited fines. It creates specific criminal offences that cover offering, promising, soliciting, demanding, giving, receiving or the expectation of a bribe, advantage, any gift, loan, fee or reward for doing or not doing anything or showing favour or disfavour to any person or company in their official capacity. A summary of the offences and Act can be found at Appendix A. This Appendix is an important part of the policy and is required reading. 3 STATEMENT OF INTENT This policy relates to all forms of bribery and aims to provide direction and assistance to employees who may identify suspected bribery. The overall aim of this policy is to: Explain the relevance of the Act to CPFT. Assist in promoting a climate of openness and a culture and environment where staff feel able to raise concerns sensibly and responsibly. Set out CPFT s responsibilities in terms of the deterrence, prevention, detection and investigation of bribery. Explain the sanctions which could follow an investigation, which may include any or all of the following: - Criminal prosecution - Civil prosecution - Internal/external disciplinary action. This policy applies to all CPFT employees, regardless of position held, as well as to Non-Executive Directors, consultants, vendors, contractors, and/or any other parties who have a business relationship with CPFT. Approved : Page 3 of 16 Our Ref: POL/002/0820

4 It will be brought to the attention of all employees and form part of the induction process for new staff. 4 DEFINITIONS See Appendix A 5 DUTIES This section states the roles and responsibilities of employees and other relevant parties in reporting concerns regarding bribery. 5.1 The Board The Board has a duty to ensure that it provides a secure environment in which to work, and one where people are confident to raise concerns without worrying that it will reflect badly on them. This extends to ensuring that staff feel protected when carrying out their official duties and are not placed in a vulnerable position. If staff have concerns about any procedures or processes that they are asked to be involved in, CPFT has a duty to ensure that those concerns are listened to and addressed. 5.2 Employees Those providing CPFT services (employees, regardless of position held, as well as Non-Executive Directors, consultants, vendors, contractors, and/or any other parties who have a business relationship with CPFT) are in the best position to recognise any specific risks within their own areas of responsibility. All have a duty to ensure that those risks however large or small are identified and eliminated. In addition employees must act in accordance with CPFT s Standards of Business Conduct, Gifts and Hospitality and Declaration of Interest policies which include guidance on the receipt of gifts or hospitality. Where any person believes there is the opportunity for bribery, whether because of poor procedures or oversight, this should be reported to the Local Counter Fraud Specialist (LCFS ) or the Director of Strategy & Support Services or NHS Fraud and Corruption Reporting Line ( ). Additionally it can be raised as a concern in accordance with CPFT s Raising Concerns (Whistle Blowing) Policy. 5.3 Managers Line managers at all levels have a responsibility to ensure that an adequate system of internal control exists within their areas of responsibility and that controls operate effectively. The responsibility for the prevention and detection of bribery therefore primarily rests with managers but requires the co-operation of all employees. Approved : Page 4 of 16 Our Ref: POL/002/0820

5 As part of that responsibility, line managers need to: Inform staff of CPFT s Code of Business conduct, Gifts and Hospitality, Declaration of Interest, Raising Concerns (Whistle Blowing), Counter Fraud, Bribery and Corruption and Bribery policies as part of their induction process and issue an annual reminder, paying particular attention to the need for accurate completion of personal records and forms. Ensure that all employees for whom they are accountable are made aware of the requirements of the policy. Assess the types of risk involved in the operations for which they are responsible. Ensure that adequate control measures are put in place to minimise the risks. This must include clear roles and responsibilities, supervisory checks, control of key functions are not invested in one individual (adequate segregation of duties), and regular reviews, reconciliations and test checks to ensure that control measures continue to operate effectively. Be aware of CPFT s. Identify sensitive/at-risk posts. Ensure that controls are being complied with. Contribute to the Director s assessment of the risks and controls within their business area, which feeds into CPFT s and the Department of Health Accounting Officer s overall statements of accountability and internal control. All instances of actual or suspected bribery, which come to the attention of a manager, must be reported immediately to the Local Counter Fraud Specialist or the Director of Strategy & Support Services. It is appreciated that some employees will initially raise concerns with their manager, however, in such cases managers must NOT attempt to investigate the allegation themselves, and they have a clear responsibility to refer the concerns to the Director of Strategy & Support Services and/or the Local Counter Fraud Specialist as soon as possible. CPFT will take all necessary steps to prevent bribery in accordance with this policy. 5.4 Local Counter Fraud Specialist (LCFS) The LCFS s role is to ensure that all cases of actual or suspected bribery and corruption are notified to the Director of Strategy & Support Services and reported appropriately. The LCFS will regularly report to the Director of Strategy & Support Services on the progress of the investigation and when/if referral to NHS Protect National Investigation Service (NIS) or police is required. The LCFS and the Director of Strategy & Support Services will decide who will conduct the investigation and when/if referral to the NIS or police is required. Approved : Page 5 of 16 Our Ref: POL/002/0820

6 The LCFS in consultation with the Director of Strategy & Support Services will review the strategic objectives contained within the assurance framework to determine any potential bribery risks. Where risks are identified these will be included on CPFT s risk register so the risk can be proactively addressed. 5.5 Director of Strategy & Support Services The Director of Strategy & Support Services, in consultation with NHS Protect and the LCFS, will decide whether there is sufficient cause to conduct an investigation, and whether the Police and External Audit need to be informed. The Director of Strategy & Support Services or the LCFS will consult and take advice from the Director of Workforce & Organisational Development if a member of staff is to be interviewed or disciplined. The Director of Strategy & Support Services or LCFS will not conduct a disciplinary investigation, but the employee may be the subject of a separate disciplinary investigation by HR. The Director of Strategy & Support Services will, depending on the outcome of investigations (whether on an interim/ongoing or a concluding basis) and/or the potential significance of suspicions that have been raised, inform the Chair of the Trust and the Chair of the Audit Committee of cases, as may be deemed appropriate or necessary. 5.6 Internal and External Audit Any incident or suspicion that comes to Internal or External Audit s attention will be passed immediately to the LCFS. 5.7 Human Resources The Trust contracts of employment require staff not to engage in bribery as defined by the. The resourcing team within Workforce and Organisational Developement take steps at the recruitment stage to establish, as far as possible, the previous record of potential employees as well as the veracity of required qualifications and memberships of professional bodies, in terms of their propriety and integrity. In this regard, temporary and fixed term contract employees are treated in the same manner as permanent employees. Human Resources will be engaged at the outset by Managers and the LCFSwhere an employee is suspected of being involved in bribery or corruption in accordance with agreed liaison protocol, to ensure the appropriate use of the Trust s Disciplinary Procedure. The Human Resources Department will advise those involved in the investigation on matters of employment law and on other procedural matters, such as disciplinary and complaints procedures. Close liaison between the LCFS and HR will be essential to ensure that any parallel sanctions (i.e. criminal and disciplinary) are applied effectively and in a coordinated manner. Approved : Page 6 of 16 Our Ref: POL/002/0820

7 5.8 Procurement In dealing with contractors and suppliers the Trust will ensure that they comply with Bribery legislation. 6 ACTIONS ON THE SUSPICION OF BRIBERY Anyone having reasonable suspicions of bribery should raise them through the following reporting arrangements: If appropriate, staff should immediately advise the Director of Strategy & Support Services; or CPFT s nominated Local Counter Fraud Specialist contact details are available on the LCFS s C o u n t e r Fraud website on the Intranet. The NHS National Fraud & Corruption Hotline on and website reportnhsfraud.nhs.uk Staff can also use CPFT s Whistleblowing arrangements - details on the Trust s Intranet site and Raising Concerns (Whistle Blowing) Policy. All employees should be assured that there will be no recriminations against staff who report reasonably held suspicions. Victimising or deterring staff from reporting concerns is a serious disciplinary matter. Any contravention of this policy must be reported to the Chief Executive or Chairman of the Audit Committee. 7 TRAINING CPFT will provide bribery training to all its new employees through the Corporate Induction Training and on a regular basis through internal publications to make all employees aware of CPFT s. Approved : Page 7 of 16 Our Ref: POL/002/0820

8 8 MONITORING COMPLIANCE WITH THIS DOCUMENT The table below outlines the Trusts monitoring arrangements for this policy/document. The Trust reserves the right to commission additional work or change the monitoring arrangements to meet organisational needs. Aspect of compliance or effectiveness being monitored Awareness of policy existence and content Monitoring method Bi-annual fraud awareness survey and Risky Business workbook Individual responsible for the monitoring LCFS Frequency of the monitoring activity Every two years Group / committee which will receive the findings / monitoring report Audit Committee Group / committee / individual responsible for ensuring that the actions are completed Audit Committee 9 REFERENCES/ BIBLIOGRAPHY Bribery Act RELATED TRUST POLICY/PROCEDURES Standards of Business Conduct including Gifts and Hospitality and Declarations of Interest Standing Financial Instructions Procurement Policies and Procedures (Tender and Contract) Counter Fraud, Bribery and Corruption Policy Raising Concerns (Whistle Blowing) Policy Disciplinary Policy Secondary Employment Policy Code of Conduct Approved: Page 8 of 16 Our Ref: POL/002/080

9 APPENDIX A - THE BRIBERY ACT 2010 The Bribery Act is effective from 1 July The Act is one of the strictest pieces of legislation internationally on bribery. Notably, it introduces a new strict liability offence for organisations and partnerships of failing to prevent bribery. NHS Trusts are liable under the Act. The Basic Offences Under the Act a person would be guilty of bribery if they; Offered, promised or gave a financial or other advantage to another person to induce them to; perform a function or activity improperly, Or To reward that person or another person for such activity furthermore; A person would be guilty of bribery if they; Requested, agreed to receive, accept a financial or other advantage intending that a function or activity should be performed improperly. Or Undertake the activity above as a reward for himself or another for improper performance of a relevant function or activity Or In anticipation of or in consequence of a person requesting, agreeing to receive or accepting a financial reward or other advantage, a function or activity is performed improperly. The new bribery offences have been broadly drafted and encompass many practices not previously covered by legislation. The Act expects a significant level of care to be exercised when considering, for example the acceptance of gifts or hospitality. The new corporate criminal offence places a burden of proof on Trusts to show they have adequate procedures in place to prevent bribery. The Corporate Offence A commercial organisation is guilty of an offence if an associated person carries out an act of bribery in connection with its business. A person will be associated with a commercial organisation where that person performs services for or on behalf of the organisation (this could include an employee, subsidiary, intermediary or supplier). The Bribery Act is legislation of great significance for commercial organisations and partnerships ( companies ) incorporated in or carrying on business in the UK. The Bribery Act simplifies the criminal offences, extends jurisdiction, makes Approved: Page 9 of 16 Our Ref: POL/002/080

10 prosecution easier and introduces the new corporate offence. These measures create heightened liability risks for organisations, directors and individuals. Approved: Page 10 of 16 Our Ref: POL/002/080

11 The Corporate Defence To avoid liability for bribery, commercial organisations must make sure that they have robust, up-to- date and effective bribery policies and systems in place and operating. The Bribery Act unlike previous legislation places strict liability upon organisations for failure to prevent bribes being offered or given, the only defence is that the organisation had in place adequate procedures designed to prevent persons associated with it from undertaking bribery. Penalties Penalties for individuals convicted of bribery under the Act include 10 years imprisonment, the penalty for an organisation convicted of the corporate offence of failing to prevent bribery is an unlimited fine. The reputational damage to an organisation caused by such a conviction may be incalculable. In some cases an organisation s ability to trade may also be affected. Hospitality The Bribery Act presents some uncertainties in the area of promotional expenditure or hospitality. The legislators recognise that certain forms of hospitality, gifts and other gratuities are part of the legitimate business process, however this is viewed as an area of significant risk. For this reason all such gifts should be recorded irrespective of value or other factors. Where the gift etc. is proportionate, reasonable, bona fide and most importantly transparent, there will be significantly less likelihood of adverse inferences being drawn in relation to the receipt or provision of such gift etc. Less onus is placed on the value or nature of the gift and more on the purpose of its provision. Liability risks for directors and senior officers Directors and senior officers of the Trust must be cognisant of section 14 of the Act. This provides that if an offence under sections 1, 2 and 6 (bribes given or received) is proved to have been committed by a body corporate with the consent or connivance of a director or senior officer, then the director or officer would be guilty of an offence as well as the body corporate which paid the bribe. Approved: Page 10 of 16 Our Ref: POL/002/080

12 BRIBERY ACT 2010 Frequently asked questions What is the Bribery Act? When does it come into force? Why is it relevant to NHS organisations, professionals and staff? Why is it relevant to NHS Protect? What is bribery? What are the key provisions of the Bribery Act? What penalties does the Bribery Act impose? Can directors, board members or senior management be prosecuted under the Bribery Act? Who will investigate and prosecute these new offences? What penalties can be imposed? What can NHS organisations do to comply? What is meant by adequate procedures? Is there any guidance on what constitutes adequate procedures? Will any advice or guidance be issued to directors, board members or staff on what they should be doing and what their responsibilities are under the Act? What must NHS organisations do now? What should I do if I suspect bribery is occurring? What is the Bribery Act? The Bribery Act 2010 reforms the criminal law of bribery, making it easier to tackle this offence proactively in the public and private sectors. It introduces a corporate offence which means that commercial organisations will be exposed to criminal liability, punishable by an unlimited fine, for failing to prevent bribery. It repeals the UK s existing anti-corruption legislation the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Acts of 1906 and 1916 and the common law offence of bribery and provides an updated and extended framework of offences to cover bribery both in the UK and abroad. A copy of the Act and accompanying explanatory notes can also be found on the NHS Protect intranet. When does it come into force? The Bribery Act received Royal Assent in April 2010 and came into force on 1st July Approved Page 11 Our Ref: POL/002/0820

13 Why is it relevant to NHS organisations, professionals and staff? Organisation The Department of Health lawyers have advised that it is sufficient for bodies to be incorporated under the law in the United Kingdom for them to fall under section 7 of the Act. Consequently NHS bodies such as PCTs, NHS trusts, foundation trusts, strategic health authorities and special health authorities are all bodies corporate established by order of the Secretary of State under statute. As such, they will become liable, unless they put in place adequate preventative procedures, for acts of bribery and corruption committed by persons associated with them, in the course of their work. The proposed NHS Commissioning Board will also, if established as a statutory corporation, fall under the provisions of the Act. Provided that they are established as statutory bodies corporate, this will also apply to GP Commissioning Consortia. Professionals and staff For the purposes of the Bribery Act, a trade or profession is considered a business. This means that, whether individually or in partnership, GPs, pharmacists, dental practitioners, opticians, finance professionals, etc will also be subject to and personally liable under the Bribery Act. Why is it relevant to the NHS Protect? The remit of NHS Protect includes preventing, detecting and investigating fraud and corruption in the health service. It is directed by the Secretary of State for Health to tackle both offences. What is bribery? Bribery is generally defined as giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so. What are the key provisions of the Bribery Act? The Bribery Act has the following key provisions: Section 1 - Offering, promising or giving a bribe to another person to perform a relevant function or activity improperly, or to reward a person for the improper performance of such a function or activity. ( Active bribery) Under the Bribery Act, a relevant function or activity is any function of a public nature or any activity connected with a business, performed in the course of a person s employment or performed by or on behalf of a body of persons, whether corporate or unincorporated, which meets one or more of the following conditions: A person performing the function or activity is expected to perform it in good faith They are expected to perform it impartially They are in a position of trust by virtue of performing it. Approved Page 12 Our Ref: POL/002/0820

14 Section 2 - Requesting, agreeing to receive or accepting a bribe to perform a function or activity improperly, irrespective of whether the recipient of the bribe requests or receives it directly or through a third party, and irrespective of whether it is for the recipient s benefit. ( Passive bribery) Section 6 - Bribing a foreign public official (thought not to be particularly applicable to NHS organisations/staff). Section 7 - Failure of a commercial organisation to prevent bribery (the corporate offence). This is a strict liability * offence and an organisation can be found guilty of attempted or actual bribery on the organisation s behalf. It should be noted that Section 1 or section 6 needs to be proven for a section 7 offence to apply. Section 14 Offering or receiving a bribe or bribing foreign official. This section applies if an offence under sections 1, 2 or 6 is committed by a body corporate. Strict liability offences do not require proof of intention or recklessness in other words, it is not necessary for the prosecution to show that the company intended to make the bribe in bad faith, or that it was negligent as to whether any bribery activity took place. Can directors, board members or senior management be prosecuted under the Bribery Act? Any individual associated with an organisation who commits acts or omissions forming part of a bribery offence may be liable for a primary bribery offence under the Act or for conspiracy to commit the offence with others including, for example, their employer. Likewise, a senior management or board member who consented to or connived in a section 1 or 6 bribery offence will, together with the organisation, be liable for the section 7 corporate offence under the Act. Who will investigate and prosecute these new offences? No proceedings for an offence under the act may be commenced in England and Wales except by or with the personal consent of the Director of Public Prosecutions, the Director of the Serious Fraud Office or the Director of Revenue and Customs Prosecutions. What penalties can be imposed? An offence under section 1 (bribing another person) or section 2 (being bribed): A person guilty of an offence under these sections is liable, on summary conviction (i.e. if tried in a magistrates court) to imprisonment for a term not exceeding 12 months (subject to section 11(4) (a)), a fine not exceeding the statutory maximum, or both. On conviction on indictment (i.e. in Crown Court), they are liable to imprisonment for a term not exceeding 10 years, a fine, or both. Any person associated with the organisation in question (this could be an agent or Approved Page 13 Our Ref: POL/002/0820

15 subsidiary of the organisation as well as an employee) who is guilty of an offence under these sections is liable, on summary conviction, to a fine not exceeding the statutory maximum and on conviction on indictment to a fine. In offence under section 7 (failure of commercial organisations to prevent bribery): An organisation guilty of an offence under this section is liable, on conviction on indictment, to a fine. (NB: Even if an organisation has delegated the relevant activities a named individual, it remains responsible for them.) A twin-track approach can be used to take action against an individual under section 1 and an organisation under section 7 simultaneously. What can NHS organisations do to comply? An organisation will have to show that it has implemented adequate procedures designed to prevent individuals associated with that organisation from engaging in bribery in order to avoid liability. What is meant by adequate procedures? This relates to relevant compliance protocols and procedures that a commercial organisation can put in place to prevent bribery by individuals associated with it. This might include training, briefing or new internal procedures. The adequate procedures will constitute a complete defence for an organisation. Under the Bribery Act, a person is considered to be associated with a commercial organisation if they perform services for it or on its behalf. This person can be an individual or an incorporated or unincorporated body. Is there any guidance on what constitutes adequate procedures? The Bribery Act requires the Secretary of State for Justice to publish guidance about procedures that relevant commercial organisations can put in place to prevent individuals associated with them from engaging in bribery. The two pieces of guidance were published in April The full guidance can be found at Will any advice or guidance be issued to directors, board members or staff on what they should be doing and what their responsibilities are under the Bribery Act? - CPFT s LCFS will be able to advise and offer training in the Act. - Presentation material to be used in staff induction sessions across the whole of the NHS. Trusts will be responsible for ensuring that their staff are trained. What must NHS organisations do now? NHS organisations should act now and as soon as possible they should: Approved Page 14 Our Ref: POL/002/0820

16 - Ensure they are aware of the Bribery Act and its related guidance documents - Carry out an assessment of bribery and corruption risks across the organisation - Put in place adequate procedures to prevent bribery from occurring that are proportionate to the risks identified - Be clear that, as NHS organisations, they are covered by corporate liability for bribery on the part of their employees, contractors and agents. - Take steps to make their employees, contractors and agents aware of the standards of behaviour that are expected of them: this may include training for groups of employees who might be affected for example, employees with responsibility for procurement - Review their existing governance, procedures, decision-making processes and financial controls, introduce them if not already in place and, where necessary, provide appropriate training on them - Record the fact that these steps have been taken, as they provide the defence against corporate liability under the act. - As the monitoring and review process is iterative, the process is repeated on a periodic basis It is important to note that the Bribery Act will not change the internal disciplinary processes that should be followed to investigate any alleged acts of bribery or corruption before a disciplinary sanction is imposed NHS organisations should continue to follow their internal procedures in this respect. Care should be taken when a trust follows its internal procedures to ensure that a possible criminal investigation is not prejudiced. What should I do if I suspect bribery is occurring? Staff should report any suspicions or allegations of bribery immediately to one of the following: The Local Counter Fraud Specialist The Director of Strategy and Support Services Their organisation s Raising Concerns (whistle blowing) function. NHS Protect fraud and corruption Line The NHS Fraud and Corruption Reporting Line ( ) or the online fraud reporting form at Approved Page 15 Our Ref: POL/002/0820