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Are the days of botched pharmacy fraud investigations finally over?

Lawyer David Reissner has reservations about a new drive to uncover community pharmacy contractor fraud, but argues a competent investigator is in the profession's best interests

Fraud involves dishonesty or deliberate deception. It’s worth emphasising this, because some NHS officials tend to throw the word “fraud” around when a pharmacy owner has merely made an honest mistake.

Nevertheless, if the cash-strapped NHS is defrauded, it hurts all of us. Any fraud is unacceptable in a decent society, and any fraud by a pharmacist damages the profession in the eyes of both the public and the government.

Last November, the NHS Counter Fraud Authority (NHSCFA) was created, and it has just published its first annual report. This estimates that fraud by pharmacists costs the NHS £111 million per year. I’ve explained before that I’m suspicious of such figures. However, some fraud does happen, and the CFA’s annual report was followed by a Department of Health and Social Care (DH) announcement of a “drive” to uncover pharmacists claiming payments for services they have not carried out.

If fraud is being committed, it should be rooted out, and the fraudsters should be dealt with. But during my legal career, most pharmacists who were prosecuted for fraud were acquitted, for two main reasons.

One was that the pharmacists were plainly innocent. In many of those cases, the prosecution should never have been brought – although there were a few pharmacists who brought suspicion on themselves by making an honest mistake in claiming fees or reimbursement, and then trying to cover it up.

In other cases, it might have been more difficult to secure an acquittal if the prosecution had not been so badly botched by the Crown Prosecution Service (CPS) or DH lawyers.

Historically, the conviction rate was so low that the authorities eventually stopped prosecuting pharmacists for fraud, and instead referred cases to the General Pharmaceutical Council, or its predecessor. This is because a fitness-to-practise committee does not have to be satisfied of guilt beyond reasonable doubt – probable guilt is all that is needed to find an allegation proved.

Now though, a few things have changed: 

  • Following a recent change in the law, dishonesty is now easier to prove, as whether a person accused of fraud believes they are acting honestly is now irrelevant
  • The electronic prescription service makes some types of fraud harder to commit
  • The NHSCFA shares data with other agencies, and has a forensic computing unit
  • It also employs specialist financial investigators, and says it will work closely with the CPS.

So perhaps the days of botched prosecutions are over. It’s tempting to be cynical and see the creation of the NHSCFA as part of yet another NHS reorganisation, but it would be in all our interests if the new body is successful.

David Reissner is a consultant at law firm Charles Russell Speechlys LLP

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