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The Bribery Act: The impact on adult social care providers
The Bribery Act 2010 came into force on the 1st July 2011 and has far-reaching implications for all UK businesses, irrespective of their sector and size. Although some of its provisions have been dealt with in other legislation and is therefore generally known of, a new offence of failure to prevent bribery is the most significant aspect of the legislation, and one which presents certain difficulties for those who run businesses.
Before looking at how the Act may impact on the adult social care profession (I state may impact, simply because the Act’s interpretation in certain areas will largely be dependent upon the result of judicial decisions from any cases brought in the public interest), we will commence with a broad outline of its aims and the offences created.
Offences have been created around the following bribery categories:
2. Bribing a foreign public official;
3. Receiving a bribe;
4. Failure to prevent bribery.
Although a decision to bring a prosecution must have a public interest element, and be authorised by either the Director of Public Prosecutions or the Director of the Serious Fraud Office, the maximum jail term has now been raised from 7 years to 10 years. This indicates the seriousness of the offence and the intention of the UK government to ensure that there is a crack-down on anti-competitive practices.
The Act has created two general offences which cover the offering, promising or giving of a bribe (this is referred to as active bribery) and the requesting, agreeing to receive, or acceptance of a bribe (passive bribery). These can be found in sections 1 and 2 respectively. Two further offences are set out which specifically deal with commercial bribery, whilst section 6 of the Act creates an offence relating to bribery of a foreign public official in order to “obtain or retain business or an advantage in the conduct of business”. Section 7, creates the more problematic offence, by introducing corporate liability for the failure to prevent bribery on behalf of a commercial organisation. Essentially this means that a Registered Manager and/or Registered Provider could be held liable for the actions of their employees; unless they can prove that they have in place appropriate bribery risk avoidance procedures. What is appropriate depends on (a) the size of your business; (b) the inherent risk involved; and (c) what is a proportionate response to the perceived risk. These procedures become your defence to a charge under Section 7.
Mitigating Risk and Maintaining Compliance
So how do you ensure that your business is bribery-free, especially preventing bribes being made by individuals who work for your care organisation?
The first thing to do is to consider the risk to your business for (a) the making of bribes; and (b) receiving bribes. You should do this by creating a risk strategy, carrying out a risk assessment and then employing robust policies and procedures which ensure that all staff are aware of your anti-bribery policy and your organisation’s non-tolerance of any bribe made or received. The QCS management system contains an Anti-bribery policy, employee declaration and risk assessment, which will help you manage this task.
Not all businesses will experience the same degree of risk, especially if your care organisation is small, so policies and procedures do not therefore need to be extensive. However, if your business is medium-large, then your policies and procedures will need to be more robust and extensive. The point to remember here is to gauge the level of risk your business is likely to be presented with. You can only do this by completing consultative meetings with all relevant staff, carrying out research and completing a risk assessment. Refresher training is also likely to be required, as your business circumstances or the market in which you operate may change, thereby changing the level of risk present.
None of which means that as business you are unable to provide hospitality. Guidance produced by the Ministry of Justice clearly explains that this is not the intention of the Act, as it is clearly recognised that hospitality can in certain circumstances play a valuable role in the development of a business. The rule to remember is that any hospitality offered must be:
- Reasonable; and
This seems simple enough, but a firm understanding on what is reasonable and proportionate needs to be gauged before deciding what hospitality is or is not acceptable. It would for example, clearly not be reasonable to take a CQC inspector out for dinner, as it is likely to be construed as a bribe, rather than hospitality. It would also clearly not be considered proportionate to present a valuable new business partner, who brings with him/her new clients (as opposed to bringing them to someone else) with a lavish gift. The guidance from the Ministry of Justice does state that a business can continue to provide genuine hospitality, such as taking clients to sporting events, dinners, offering gifts to clients as a reflection of your good relationship or paying reasonable travel expenses. In the end, a senior member of the care management team, ideally the Registered Manager, should approve all hospitality related expenses and consider whether that specific form of hospitality or gift, is reasonable and proportionate.
It is unclear at present how the Act will specifically impact upon the adult social care profession, but those who operate under tenders, use agencies or who receive business through negotiations which should, in practice, involve other parties also being considered, must consider the bribery risks.
Within the Act there are references to “facilitation payments”. These are bribes made to facilitate routine Government action, which could either trigger an action under section 6, or where there is an intention to induce improper conduct, a section 1 offence and potential liability under section 7. This is therefore important to remember when dealing with regulators, local authorities and government agencies.
The following six principles will help you to decide what needs to be done for your particular organisation:
The action which you decide to take must be proportionate to the risk that you might face and to the size of your business. Consequently you may need to do more if your business is large or if you have dealings overseas (where bribery may be commonplace). If your organisation is small and/or operating in a market place where bribery is small, then your actions need not be so extensive.
Top Level Commitment
Senior management are in the best position to ensure that their care organization conducts its business without bribery, and should enforce this with a top-down approach. The senior management (especially the Registered Manager and the Registered Provider) will therefore want to actively demonstrate that they have made all staff aware of their intolerance of bribery. Senior management may also want to personally relay any training in this area, to ensure that it has been done.
It is important to think about the types of bribery risks the care organization and its employees might face. Brainstorming via training sessions is one way of considering it, but this should be done in conjunction with meetings and research about the care market and the prevalence (or not) of bribery. Think about the people you deal with, especially new business arrangements, and the inherent risks involved.
Knowing exactly who you are dealing with and employing can help to protect the care organization from less trustworthy individuals. It is therefore especially important that the results of CRB checks are thoroughly checked as part of the recruitment procedure, so that risks are taken into account when making employment offers. It is also worth asking appropriate questions and carrying out specific checks when allowing someone else to represent you in business dealings. An example here would be the use of agencies.
Communication to care staff and representatives of your policies and procedures will assist in enhancing the awareness of how you like to conduct business. Awareness can also be raised through training.
Monitoring and Review
The risks the (home/agency) faces and the effectiveness of its procedures may change over time. You may therefore want to review the latest anti-bribery steps you have taken, so that they keep pace with any changes in the risks that you may face.
To conclude, it is imperative that you engage with the requirement of this Act, as failure to implement bribery-avoidance procedures, could lead to your organization and potentially its senior management facing severe consequences. Addressing it is straightforward, but it must be top-down in approach, led by the Registered Manager. To get started, download the QCS care management policies on Bribery, it will be the first step in ensuring that your organisation complies with the intentions of the Act.