There is no bar to the bringing of disciplinary proceedings in respect of the same conduct that has resulted in an acquittal at trial.” – GMC
Doctors who faced criminal proceedings but were acquitted, can still face fitness to practice proceedings and sanctions by the General Medical Council (GMC). 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.
Acquittal & Double Jeopardy
A verdict of “not guilty” is an acquittal, and there is a legal principle that a person cannot be tried twice for the same offence – also known as “double jeopardy”.
If it is possible for the GMC to act notwithstanding an acquittal, and many doctors question whether this might result in a doctor being punished twice for the same offence.
Aside from a verdict of not guilty, there might be a number of other circumstances that might lead to a doctor not being convicted, such as:
- police decision to take no further action;
- a decision not to prosecute;
- withdrawal or discontinue proceedings;
- not to offer evidence at trial; and/or
- other technicalities that might render a trial unfair or unsustainable.
How can the GMC peruse a matter notwithstanding an acquittal?
There are a number of reasons and legal principles that allows the GMC to investigate and, where necessary, impose sanctions, notwithstanding an acquittal:
- 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.
Doctors need to be aware there is an additional layer of GMC consideration and involvement where the nature of an acquittal or decision not to proceed in relation to the criminal offence may give rise to wider professional concerns in relation to the criminal offence.
“Multiple jeopardy” is a term that has been used to describe a situation where a doctor may be subject to many investigations arising from a single clinical incident.
Guidance issued by the GMC states that:
“In some cases, a criminal offence, for example sexual assault, may be linked to wider professional concerns in respect of a failure to obtain consent, offer a chaperone or privacy, or to record an examination in the patient’s medical records. An acquittal or decision not to proceed in relation to the criminal offence is likely to have little or no bearing on whether the realistic prospect test is satisfied in respect of charges addressing wider professional concerns.”
It is not a coincidence that the GMC guidance refers to allegations relating to sexual assaults. Allegations of sexual assaults are probably the most common complaint from patients to the police, usually resulting in the arrest of the doctor. Often however, the doctor and the patient may be the only witnesses to the events that took place in the privacy of an examination room.
A recent High Court case illustrates this very well.
The need for expert legal advice
The fact that the GMC can take action in relation to an acquittal, does not mean that the matter is a foregone conclusion regarding a GMC finding on impaired fitness to practise. Whilst the evidential burden is different before the GMC, it will remain relevant that a doctor was acquitted. As always, each case will be determined on its own merits and an expert barrister will be able to clearly advise on the merits of your case.
Our barristers are vastly experienced and understand the complexities of the situations doctors face. We advise and represent doctors facing GMC proceedings from the outset, often challenging whether there is a case to answer. We can represent doctors at interim order hearings through to substantive hearings and can appeal the decision of the GMC to the High Court.
By instructing Kings View, there is the added benefit of our knowledge and experience of criminal law and proceedings that will provide you with an additional level of assurance.
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.