Convictions, cautions and determinations (rule 5)
The GMC will investigate most convictions, police cautions and determinations made by other regulatory bodies.
There is a general presumption that when the doctor is the subject of a criminal conviction or caution, or a determination by another regulatory body, the matter will proceed directly to a hearing by a Medical Practitioner Tribunal (MPT). This will always be the outcome when a criminal conviction has resulted in a custodial sentence (including suspended sentences).
It is important to note that a conviction or determination will be conclusive evidence of the offence. Common law has established this, and therefore a doctor cannot “go behind the conviction” (caution or determination) to seek to persuade an MPT (or case examiner) of their innocence. Any attempt to go behind the conviction is likely to be interpreted as the doctor lacking insight.
There are however certain convictions the GMC said it will not normally investigate, these are:
- speeding offences unless there are aggravating features
- the offence of urinating in public unless there are aggravating features
- minor motoring offences including traffic light offences, talking on a mobile phone while driving, not wearing a seatbelt and careless driving (which is distinct from dangerous driving) unless there are aggravating features.
- penalty notices for disorder at the lower tier penalty level
- fixed penalty notices for road traffic offences
- fixed penalty notices issued by local authorities (for example, for offences such as dog fouling or noise.)
What doctors must declare to the GMC
Under paragraph 75 of Good medical practice, doctors are required to notify the GMC if they have accepted a caution or been charged with or found guilty of a criminal offence.
Doctors are also required to tell us about the following:
- penalty notices for disorder at the upper tier (England and Wales)
- penalty notices under the Justice Act (Northern Ireland) 2011
- bind overs
- community resolution orders
- discretionary disposals (Northern Ireland)
- fiscal fines (Scotland)
- cannabis warnings (England and Wales)
- anti-social behaviour orders.
In all other cases (i.e. not involving a criminal conviction or caution, or a determination by another regulatory body), the GMC has discretion to refer the matter to case examiners for a decision as to the appropriate action to take, if any.
During an investigation, the GMC can consider all aspects of a doctor’s fitness to practise. In many cases we may consider not only the matters raised in the original complaint, but also any other concerns that have come to light during the investigation.
Is fitness to practise automatically impaired?
Does a conviction, caution and/or determination automatically mean a doctor’s fitness to practise will be found impaired?
Not necessarily. Fitness to practise is in the present tense (also referred to as “current impairment”). In practice, “current impairment” considers the fitness to practise of a doctor at the point of consideration (i.e. case examiners or MPT) not the time in the past when, for example, an offence was committed.
This means that, in certain cases, it might be possible to persuade case examiners or MPT that a doctor has gained sufficient insight and can demonstrate remediation. It must however be pointed out that this is the exception rather than the rule, and doctors should seek legal advice at the earliest possible opportunity.
“Double jeopardy” for doctors?
Doctors, who faced criminal proceedings but were acquitted, can still face GMC fitness to practice proceedings and sanctions. The fact that criminal proceedings did not result in a conviction does not, as a consequence, mean that the GMC is powerless or, unwilling, to act as statutory regular.
Our article ““Double jeopardy” for doctors? The end of criminal proceedings might not be the end of the story” looks at this in more detail.
Your right to respond and legal representation
Doctors with convictions, cautions and other determinations need to carefully consider their position. Specialist legal advice will assist a doctor in a number of ways:
- Advise on the best approach and strategy to take given the individual circumstances of each case;
- Help formulate a response to any GMC requests for information;
- Represent a doctor should the matter be referred to an MPT;
- Advise on insight and remediation.
Kings View Chambers have a proven track record of success, acting for a range of health and care professionals facing fitness to practise issues. You can read more about our case success, our excellent reviews and contact me for a free, no obligation case assessment.
Furthermore, Insight Works Training will help give you a clear and easy to follow understanding of the regulatory process, explanation of the central role of impairment, how to approach insight and remediation, how to evidence this at your hearing and a directed approach to presenting your learning with evidence in writing and verbally.
Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.