Criminal Proceedings and Regulatory Proceedings Within and Outside the UK

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1 Council 15 September b To consider Criminal Proceedings and Regulatory Proceedings Within and Outside the UK Issue 1. Whether doctors should be required to report to the GMC when they are the subject of criminal proceedings, or have findings made against them by other regulatory bodies, and how far that duty should extend. Recommendations 2. a. We should place a duty on doctors to inform the GMC when they are the subject of criminal proceedings or have findings made against them by other regulatory bodies (paragraph 6). b. Doctors must inform the GMC promptly if they: i. Accept a police caution. ii. Are charged with any criminal offence (except for minor motoring offences such as speeding, parking and driving without due care and attention, provided these offences do not involve driving under the influence of alcohol or drugs, or raise questions of honesty). Doctors should seek advice from the GMC or a defence body if they are unsure whether to make a report. iii. Are convicted of any criminal offence anywhere in the world (except for minor motoring offences, as above). iv. Have had their registration restricted, or been found guilty of an offence by another regulatory body, in the UK or elsewhere (paragraphs 7-20). c. The duty on doctors to inform the GMC if they are subject to criminal proceedings, or have had their registration affected by another regulatory body, should be included in the next edition of Good Medical Practice. In addition, a statement about this obligation should be included in the next edition of GMC News and publicised on our website. It should be made clear that failure to comply may raise questions about a doctor s registration (paragraphs 21-24).

2 Further information 3. Andrew Ketteringham Jane O Brien [email protected] Farkhanda Maqbool [email protected] 2

3 Background 4. The Home Office currently instructs police forces to notify the GMC when a doctor is convicted of a criminal offence. Many police forces provide us with additional information, including when: a. An investigation into a doctor s conduct is begun. b. A doctor is charged with offences which could affect their fitness to practise. c. A doctor accepts a police caution. 5. During the Chief Executive s evidence to the Shipman Inquiry last year, it was suggested by Counsel to the Inquiry, Miss Caroline Swift, and by Dame Janet Smith that the GMC should not rely on the police to provide information, but should place a duty on doctors to report to us when a criminal case against them is pending. The Chief Executive undertook that we would give further thought to the proposal. Discussion 6. We believe that police forces are generally conscientious in providing us with information. Nonetheless, they are required to inform us only when a doctor has been convicted of an offence, and we cannot be sure that we are informed every time an issue arises which might call a doctor s fitness to practise into question. Placing a duty on doctors to inform the GMC when they are the subject of criminal proceedings would help to ensure that we are informed at an appropriate stage, including before conviction, of matters which may raise a question about a doctor s fitness to practice. Similar issues arise where doctors are subject to formal fitness to practise proceedings undertaken by another regulatory body in the UK or elsewhere in the world. Recommendation: We should place a duty on doctors to inform the GMC when they are the subject of criminal proceedings or fitness to practise proceedings of other regulatory bodies. What should be covered by the duty to report? 7. The purpose of imposing this duty is to ensure that we take prompt and appropriate action to protect patients when a doctor s fitness to practise is in question. Such action could be taken through two routes: a. The Interim Orders Committee, which could be used where there are allegations that a doctor has committed a serious criminal offence. b. The conduct, health or performance procedures (or the procedure which succeeds them), where a doctor has been found guilty of, or has admitted, a criminal offence. 3

4 8. The Bar Council 1 Code of Practice recognises these two categories in the requirements it places on barristers to report. It identifies first a serious criminal offence, defined as an offence involving dishonesty or deception or a serious arrestable offence (as defined by section 116 of the Police and Criminal Evidence Act 1984), which must be reported when the barrister is charged with the offence. And second, a relevant criminal offence, defined as any criminal offence committed in any part of the world except: (a) an offence committed in the United Kingdom which is a fixed penalty offence for the purposes of the Road Traffic Offenders Act 1988 or any statutory modification or replacement thereof for the time being in force; (b) an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that applicable to such a fixed penalty offence; and (c) an offence whose main ingredient is the unlawful parking of a motor vehicle. Barristers must report these offences at the point of conviction. 9. This arrangement is attractive in that it ensures that barristers report offences at the relevant time, and that the Bar Council does not have to process reports concerning barristers charged with relatively minor offences, where no interim action is needed, and which may not result in convictions. 10. The Bar Council model may not, however, be wholly suitable for the medical profession. The definitions offered by the Bar Council are fairly complicated, and rely, not unreasonably, on barristers understanding the law. We may wish to offer a simpler system, which doctors will be able to understand without recourse to legal advice. We might also wish to minimise reliance on doctors judgement about the seriousness of their offence. This will be particularly important if failure to comply will be regarded as raising questions about doctors registration. 11. We may also wish to extend the scope of offences which should be reported. For example, we would want to be informed about police cautions, which in some circumstances relate to serious offences. In one case heard by the PCC, a doctor had accepted a caution for accessing child pornography and his name had been put on the Sex Offenders Register. 12. We might also wish to vary the Bar Council s definition of convictions, which need not be reported. At present we close cases arising from minor motoring offences at an early stage of the procedures. We define such offences as those which do not involve drugs or alcohol, or any form of dishonesty, for example driving without insurance or without a licence. 13. Adopting the Bar Council definition of minor motoring offences as those attracting fixed penalties, would mean that we would no longer take forward some 1 The Bar Council and RIBA are the only UK regulators which we have identified as requiring registrants to report convictions. RIBA Code of Practice places a duty on architects to report to the Royal Institute if convicted of any indictable criminal offence including a suspended sentence or court order and personal or professional disqualification from acting as a Director. 4

5 convictions, such as driving without an appropriate licence, which we regard as raising a question of honesty. It would also mean that we would ask doctors to report offences which we would define as minor, such as contravention of an experimental traffic scheme, which are dealt with by the magistrates courts. 14. There are a number of possible approaches to this issue. First, we could require doctors to report all criminal offences to us. This would remove the need for doctors to make a judgement about the seriousness of their offence, leaving discretion with the GMC to determine whether a conviction raised a question about a doctor s fitness to practise. Nonetheless, we would need clear criteria for those considering conviction cases, to ensure consistency and fairness in decision-making. And it would have to be clear to doctors that the GMC would not necessarily take action in relation to minor motoring convictions. Such a policy could result in a large number of minor offences being reported, significantly increasing the administrative burden on the Fitness to Practise Directorate. 15. Another option would be to specify the offences under the Road Traffic Offenders Act 1998, and any other relevant legislation, on which the GMC would take no action and which did not need to be reported. A list of offences which need not be reported could be published on the internet. This would mean that doctors would need to be aware of the list of offences and know where and how to find it. It seems an over-complicated solution to a relatively simple problem. 16. Finally we could continue to define the category of offence which would not raise a question about registration, and which need not be reported. We could offer examples of such offences, such as speeding and parking, and criteria, such as questions of honesty or use of alcohol, against which the seriousness of offences could be judged. We could also encourage doctors to seek advice from us, or from their defence organisations, if they were in doubt about whether or not to report an offence. 17. The Bar Council requires barristers to report convictions for criminal offences committed in any part of the world, or findings made against them by other regulatory bodies. This seems sensible, although it is possible that we would not wish to act on all overseas convictions, either because they relate to very minor offences, or because the offence, if committed in the UK, would not constitute a criminal offence. We would also want to be informed about any serious concerns about or findings against doctors which had been made by other regulatory bodies in the UK or overseas. The disciplinary procedures used by regulators will vary, and it therefore seems sensible to require doctors to report when a regulatory body has made a decision which affects a doctor s registration, which might parallel being suspended by IOC, or where there has been a formal finding against a doctor, whether or not this has led to the doctor s registration being affected. At what point in criminal proceedings should this duty apply? 18. To provide clarity about the duty to inform the GMC, we need to identify a point when the duty to inform the GMC bites. We should not leave it as a matter of judgment for individual doctors. 5

6 19. In serious cases, we need to know as soon as possible about any police investigations into a doctor s conduct, so that the case can be considered by the Interim Orders Committee. For less serious offences, for example shoplifting, questions of patient safety are unlikely to arise, and we would not need to be informed until the point of conviction. We could therefore make a distinction between serious cases, where we should be informed at the point at which the doctor is charged with an offence, and other cases, where we should be informed once the doctor has been convicted. This would also ensure that we are not informed of cases where doctors are charged, but found not guilty, thus reducing the additional work that this duty to report may generate. 20. This arrangement again places on doctors the burden of making judgements about the seriousness of an offence. Requiring doctors to inform the GMC when they are charged with an offence or when they accept a police caution, would place an unambiguous duty on doctors, and help ensure we are informed about doctors who may not be fit to practise at an early stage. It would also mean that we would not have to consider cases against doctors who had genuinely misunderstood what amounted to a serious offence, or pursue cases which rest on whether the doctor s decision not to report an offence had been reasonable. Recommendation: Doctors must inform the GMC promptly if they: a. Accept a police caution. b. Are charged with any criminal offence (except for minor motoring such as offences speeding, parking and driving without due care and attention, provided these offences do not involve driving under the influence of alcohol or drugs or raise questions of honesty.) Doctors should seek advice from the GMC or a defence body if they are unsure whether to make a report. c. Are convicted of any criminal offence anywhere in the world (except for minor motoring offences). d. Have had their registration restricted, or been found guilty of an offence by another regulatory body, in the UK or elsewhere. Enforcing the duty to report 21. Doctors may be reluctant to report their involvement in criminal proceedings. Dame Janet explained that the Bar Council Code of Practice was effective because barristers knew that failure to inform the Bar Council would have very serious consequences. The Bar Council website shows that in 2004 six barristers have been reprimanded, advised as to future conduct or fined for failing to report offences. The duty to report is contained in the Bar Council s Code of Practice which specifies offences with which barristers may be charged. 22. Good Medical Practice does not currently specify those matters which are likely to give rise to a charge of serious professional misconduct (or other charge affecting registration) on the basis of a single breach; the introduction to the booklet makes clear that any part of the guidance if seriously or persistently breached could amount to serious professional misconduct. In fact it is often a combination of 6

7 failures to meet the standards which together amount to serious professional misconduct. 23. The question whether and how we identify behaviour or single actions (or combinations of actions) that might lead to a doctor s registration being affected is a matter which will be considered during the review of Good Medical Practice. 24. The new edition of Good Medical Practice will not be published until early In the meantime, we can make publicise in GMC News the duty on doctors to report when they are subject to criminal proceedings, or have had their registration affected by another regulatory body. We can make clear that failure to comply with the guidance would in itself be regarded as a serious failure to meet the standards expected of a doctor. Recommendation: The duty on doctors to inform the GMC if they are subject to criminal proceedings, or have had their registration affected by another regulatory body, should be included in the next edition of Good Medical Practice. In addition, a statement about this obligation should be included in the next edition of GMC News and publicised on our website. It should be made clear that failure to comply may raise questions about a doctor s registration. Revalidation: the probity declaration 25. As a further reminder of this duty, doctors will be asked to confirm that since last appraisal/revalidation, they have been the subject of any criminal proceedings, including accepting a police caution. The Registration Committee is considering how to take this forward. Resource implications 26. None. Equality 27. No implications arising. 7