Any criminal conviction will be viewed as proven in a fitness to practise case, and attempts at denial could be interpreted as lack insight.
An Overview of Criminal Convictions Fitness to Practise
In fitness to practise proceedings, criminal convictions (or formal cautions) are treated as fact and will always be found proven. Common law has established this, and therefore a health and care professional cannot “go behind the conviction” (caution or determination) to seek to persuade a fitness to practise tribunal or panel (or case examiner) of their innocence. Any attempt to go behind the conviction is likely to be interpreted as them lacking insight.
It is also important to note that an acquittal does not necessarily mean that the case will not be found proven. There are a number of reasons and legal principles that allows a fitness to practise tribunal to make a finding of facts proven in cases where an acquittal applies:
- In common law, the “double jeopardy” rule does not apply to disciplinary proceedings. There is therefore no bar to the bringing of disciplinary proceedings in respect of the same conduct that has resulted in an acquittal at trial.
- Disciplinary proceedings and criminal proceedings serve different purposes. The purpose of disciplinary proceedings is not to punish a doctor but ensure continued fitness to practise.
- The standards of proof are different. In the criminal courts, the burden of proof is “beyond reasonable doubt” whereas GMC cases are decided on a “balance of probabilities” which is a much lower standard of proof. Therefore, different rules apply to evidence, admissibility of evidence and there is no logical incompatibility in seeking to prove a disciplinary matter to the civil standard where there has been an acquittal on the criminal standard of proof.
Unless a caution or conviction is protected, health and care professionals should declare cautions and convictions to their regulator. The requirement to disclose applies when registering but also once registered and practising.
Declaring a caution or conviction (past or present) does not necessarily mean that fitness to practise will be found impaired. Healthcare regulators will assess the circumstances and details of criminal offending to make a judgement on whether it is likely to adversely impact on fitness to practise. Each healthcare regulator will have its own rules and criteria but, generally speaking, the seriousness to criminal offending will take into consideration:
- If the criminal offending was linked to practise;
- Whether the criminal offending resulted in a custodial sentence (this includes suspended sentences);
- Specific offences that are deemed serious and are specifically listed such as hate crimes, sexual offences etc.;
- Whether there is a significant risk to members of the public of serious harm caused by the healthcare professional committing further offences; and
- The potential impact on public trust and confidence.
It is important to note however that, whilst the caution or conviction itself might not affect your fitness to practise, failure to disclose these might. Healthcare regulators set clear expectations that healthcare professionals must declare criminal offending without reasonable delay.
In fitness to practise, the standard of proof is based in the civil standard, which is “the balance of probabilities”. This means a healthcare regulator will assess the evidence and decide is whether something is more likely than not to have happened.
The relevance of this is that the civil burden of proof of lower than the criminal burden of proof (which is “beyond reasonable doubt”) and, for this reason, it is still open to a healthcare regulator to act on criminal behaviour where this behaviour did not lead to a conviction.
Healthcare regulators will still assess whether the criminal behaviour (that did not lead to a conviction) still impacts on a registrant’s fitness to practise.
For example, healthcare regulators will consider (not exhaustive) whether:
- the non-conviction offence took place in a clinical or care setting or context;
- the alleged victims were patients;
- there is a clear link to professional practice; and/or
- the reasons why the case did not proceed to conviction (i.e. lack of evidence, witness credibility, whether the case failed in a technicality etc.).
How criminal offending might affect fitness to practise
Ultimately, your healthcare regulator will ask itself whether the criminal offending in question has any material relevance to your fitness to practice.
As mentioned at the start of this article, criminal offending (past or present) does not necessarily mean that your fitness to practise will be found impaired. Healthcare regulators will assess the circumstances and details of criminal offending to make a judgement on whether it is likely to adversely impact on fitness to practise.
Healthcare regulators will look at the evidence before it and test this against its own standards and guidance to come to a determination on your fitness to practise. This will include consideration, where appropriate, insight and remediation.
The rules can be confusing, and healthcare professionals must be careful to ensure they understand the responsibilities on them to report criminal offending where this is necessary. Failure to do so, or do so in the required timeframe, is likely to result in a fitness to practise investigation and possibly a referral to a fitness to practise tribunal.
We can advise on the likely relevance to your fitness to practise, the right approach to remediation and, where the matter is referred to investigation, we can provide you with expert advice and representation.
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.