17 May 2011
The Bribery Act 2010 comes into force on 1st July 2011. This aims to tackle bribery and corruption in both the public and private sector. NHS organisations will need to have “adequate procedures” in place to ensure they comply with the new legislation.
All NHS organisations need to consider the impact of the Bribery Act carefully and take the appropriate action to ensure they have “adequate procedures” in place to prevent bribery in their organisation. Local NHS Counter Fraud specialists may be able to offer advice.
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. For example, this could cover seeking to influence a decision-maker by giving some kind of extra benefit to that decision-maker rather than by what can legitimately be offered as part of a tender process. Reasonable and proportionate hospitality is not prohibited by the Act.
The Act introduces a corporate offence of failure to prevent bribery by persons working on behalf of a commercial organisation. It also makes it a criminal offence to give, promise or offer a bribe, and also to request, agree to receive or accept a bribe either in the UK or overseas. Organisations that are found guilty under the Act could face a large fine and imprisonment of the individuals involved. However, an organisation can avoid conviction if it can show that it has “adequate procedures” in place to prevent bribery. What counts as “adequate” will depend on the bribery risks that the organisation faces, and the nature, size and complexity of the organisation. Six principles have been outlined that will help organisations decide what, if anything, they need to do differently:
- Procedures are proportionate to the bribery risk
- There is top-level management commitment
- Risk assessment is undertaken to determine the extent of potential risks
- Due diligence is applied
- Bribery prevention policies and procedures are effectively communicated, including training
- Procedures are monitored and reviewed, with improvements made where necessary
How does this affect NHS organisations?
The Act’s definition of a relevant commercial organisation includes bodies incorporated under the law. Whilst the position for NHS Foundation Trusts is clear, the position for PCTs may be less so. However, NHS bodies are advised to err on the side of caution and implement adequate procedures.
NHS organisations and staff within the NHS should follow good NHS Business Practice, particularly with regard to procurement and sponsorship. Advice can be found in NHS organisations’ policies which will include principles from the Department of Health’s standards [HSG (93) 5]. Guidance relating to commercial sponsorship can be found in Commercial Sponsorship Ethical Standards for the NHS. The BMA has recently launched an approach covering ethical procurement.
Reminders may be required as changes in NHS organisations progress in order to ensure awareness is maintained and, if necessary, raised about the requirements of these important policies, and specifically their application to medicines management activity.
More information from the Ministry of Justice is available in a quick start guide and guidance on procedures that organisations can put in place to prevent bribery. The NHS Counter Fraud Services team and Local Counter Fraud Specialists may be able to provide further advice and training.
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