Key takeaways
Employers must act swiftly on suspected crime
Prompt internal investigations protect patients and reputation.
Collaboration with authorities is essential
Early engagement ensures compliance and mitigates legal risk.
Policies should cover reporting and evidence handling
Clear procedures reduce exposure and safeguard confidentiality.
Healthcare systems are vital for maintaining the well-being of populations. Whilst fortunately uncommon, healthcare systems can still be vulnerable to criminal activities.
At the end of last year the government published the Memorandum of Understanding (MoU) for investigating suspected criminal activity in healthcare: Investigating suspected criminal activity in healthcare: MoU - GOV.UK
This helpfully outlines a collaborative framework for the investigation of reasonable suspicion that a patient/service user’s death, or serious life-changing harm, occurred as a result of criminal activity in the course of healthcare delivery. This is intended to cover only the most serious cases, e.g. deliberate harm or gross negligence manslaughter.
The MoU serves as a blueprint for how various stakeholders—such as law enforcement agencies and healthcare providers —will collaborate to investigate and prevent criminal activities. The MoU has 13 signatories, including, to name a few, NHS England; Crown Prosecution Service; Care Quality Commission; General Medical Council and the Nursing and Midwifery Council.
Key requirements for setting up and managing an Incident Coordination Group (ICG)
Establishment of the ICG: The first party to establish reasonable suspicion will convene an ICG meeting. The ICG will engage relevant signatory bodies and other relevant authorities based on the nature of the event. The ICG will usually include the healthcare provider where the events took place, unless that organisation itself becomes a potential defendant in criminal proceedings (e.g. a corporate manslaughter investigation).
Co-ordinating Investigations: The ICG establishes arrangements for co-ordinating patient safety learning responses by healthcare organisations alongside any regulatory/criminal investigation. The ICG ensures that any NHS-led investigations focus on patient safety and learning, separate from employment or criminal investigations.
Preserving Evidence: One of the main objectives of the ICG will be to facilitate disclosure of documents and evidence as soon as possible, including medical records and equipment, without compromising patient safety or ongoing care.
Expert Evidence: Expert witnesses may be appointed by the police to provide objective, unbiased analysis. The MoU stipulates that expert witnesses should consider the ‘wider system’ as a whole in which the actions of an individual took place; this includes examining aspects of the organisation’s culture, work patterns and leadership. The MoU aims to promote a ‘just culture’ in healthcare, one that acknowledges both systemic factors and individual responsibility.
Notification requirements: The CQC (or other relevant regulators) should be notified about the investigation and may undertake parallel investigations to assess the quality of care provided. There is a specific obligation on healthcare providers to also inform their ICB and NHS England regional team that an ICG has been established.
Challenges and considerations of the MoU framework
Whilst the MoU provides a solid foundation for investigating criminal activity in healthcare settings, there are a few challenges associated with its implementation:
Co-ordination Complexities: The healthcare system in the UK is vast and involves many different agencies. Co-ordinating efforts across these organisations can sometimes lead to delays in investigations.
Data Protection Concerns: The sharing of sensitive patient information and professional records is necessary for criminal investigations, but it must be done in accordance with strict data protection laws, such as the General Data Protection Regulation (GDPR). ICG’s must be clear about how information will be handled and who has access to it.
Balancing Care and Investigation: Investigating suspected criminal activity may disrupt healthcare services, which can impact patient care. Striking the right balance between pursuing an investigation and maintaining a safe and effective environment for patients can be difficult.
Whilst challenges exist, the MoU framework represents a key tool in the ongoing effort to protect patients and safeguard public trust in the healthcare system. The MoU will likely continue to strengthen the healthcare system by warranting a collaborative approach and ensuring that those who abuse the system are held accountable.
If you need any assistance with navigating your organisations duties under the new MoU, please do not hesitate to get in contact with our team of experienced healthcare lawyers.
