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What are the implications of the Bribery Act 2011 for practice managers?

AN OFFER of free centre court tickets at Wimbledon might not be easy for anyone to turn down. So it proved when drug reps for the pharmaceutical giant Abbott Laboratories invited a group of London doctors to enjoy “full hospitality” at the tennis tournament in 2004.

An anonymous whistleblower triggered an investigation by the Association of the British Pharmaceutical Industry (ABPI) who later ruled that the company breached industry code of practice. The company also faced accusations that it had treated doctors to greyhound racing in Manchester as well as a night out at a lapdancing club for one hospital consultant.

Such activities are strictly forbidden by the ABPI code which was adopted by the pharmaceutical industry to police its own conduct. But offering expensive freebies may in future lead to worse penalties than industry censure. The Government have announced that the new Bribery Act 2010 will come into force on 1st July 2011, making it a crime to offer financial or other advantages with the intention of inducing a person to perform an “action improperly”. The Act goes even further making it illegal for healthcare professionals to request, agree to receive, or accept an inducement.

The Act significantly reforms outdated laws on bribery, some dating back to 1889. Importantly, it creates a new offence for any business failing to prevent bribes being paid on its behalf, quite a significant change in direction. It will give the UK some of the strictest anti-bribery sanctions in the world, increasing the maximum penalty for bribery from seven to 10 years imprisonment with an unlimited fine.

That’s not to say that prosecutors are out to get doctors or practice managers – the Act is aimed mainly at major corporate corruption. But it is important that medical and dental practices have “adequate procedures” in place to prevent bribery.

WHAT IS AND IS NOT ACCEPTABLE?

In March the Director of Public Prosecutions and the Director of the Serious Fraud Office issued joint guidance for prosecutors in England and Wales on the new Act, stating: “Hospitality or promotional expenditure which is reasonable, proportionate and made in good faith is an established and important part of doing business. The Act does not seek to penalise such activity.”

However, the guidance does confirm that some forms of hospitality and promotional activity could form the basis of offences under sections of the act. It states:

“The more lavish the hospitality or expenditure (beyond what may be reasonable standards in the particular circumstances) the greater the inference that it is intended to encourage or reward improper performance or influence an official. Lavishness is just one factor that may be taken into account in determining whether an offence has been committed. The full circumstances of each case would need to be considered. Other factors might include that the hospitality or expenditure was not clearly connected with legitimate business activity or was concealed.”

So practice managers should be aware of what is and is not acceptable in order to protect staff and the practice. Fortunately the ABPI code is already in place to help ensure that there is no direct bribery of doctors and medical practices. The code requires medical and dental representatives to maintain a high standard of ethical conduct. They must not use inducements or subterfuge to get into a meeting and this applies to what they say as well as the materials they use.

Reps should no longer be giving out expensive “freebies” to practices in order to curry favour and, in relation to conferences, companies should not provide hospitality to healthcare professionals except under the following conditions:

• The meeting/event must have a clear educational content.

• The venue must be appropriate and conducive to the main purpose of the meeting (lavish, extravagant venues must not be used).

• The sustenance associated with a meeting or event must be secondary to the nature of the meeting.

• Any hospitality provided must not extend to a spouse or other such person unless they are a member of the health profession or appropriate administration staff.

• Any air travel that is supported must be economy class and not business or first class.

It has been suggested that a company may perhaps pay for a member of staff to attend some specific training and this would still be acceptable under the Act. But you should ensure that you are not putting yourself or any member of staff under obligation to accept services or goods because of the promotional activities of a company.

Some patients may bring gifts such as wine, perfume or foods into a practice, perhaps as a thank you after a period of illness or for looking after a relation. As long as there is no preference given to these individuals then the Act allows for gifts. However, it may make sense to ensure that you have a policy that means that gifts are distributed among staff to ensure fairness.

Remember also that the GMC places obligations on doctors in regard to potential conflicts of interests. In supplementary guidance to Good Medical Practice it states that doctors “must act in your patients best interest when making referrals and when providing or arranging treatment or care. You must not ask or accept any inducement, gift or hospitality which may affect or be seen to affect the way you prescribe, treat or refer patients.”

WHAT POLICIES SHOULD I HAVE IN PLACE?

It is strongly advised that practice managers have a clear and comprehensive gifts and hospitality policy in place and this forms part of the practice employee handbook. Ensure that when you have new employees joining that they are referred to it as part of their induction process and you may wish to make it a discussion topic at team meetings to ensure there are no awareness or interpretation issues. Ensure that not only staffbut also doctors are aware of the law and their obligations. You may alsowant to add in a specific example of misconduct in regard to gifts and hospitality in your disciplinary procedures so that staff are aware of the repercussions of breaching the policy.

But the message is clear, be careful what you accept from any industry rep as it may prove a perk too far.

For more detailed guidance about the Act as well as a set of illustrative case studies, check out www.justice.gov.uk/guidance/bribery.htm

You can also phone the MDDUS employment law and HR advice service on 0845 270 2034 or email: employmentlaw@mddus.com.

Janice Sibbald is an HR and employment law adviser at MDDUS

 

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