Foundation year doctors and criminal matters

police officers

4 July 2018

Recent cases have raised concerns among foundation doctors that their work might lead them to be involved in a criminal investigation. In fact, such cases are rare.

During a recent five-year period, of the 539 calls made to our medical advice line by foundation year doctors only 21 were designated as being related to criminal matters. Although this figure is likely to underestimate the contacts that stemmed from criminal offences, given that a proportion of calls that we categorised as being GMC queries were from members seeking advice on reporting criminal matters to the GMC.

These foundation doctors tended to contact us because of a recent criminal matter and the ensuing police investigation. The incidents were usually not related to the doctors' clinical work, but rather to incidents such as motoring offences like speeding or driving under the influence of alcohol. When the criminal investigation did arise from their clinical practice, it tended to be in relation to an alleged sexual assault of a patient rather than a clinical incident raising the possibility of gross negligence manslaughter or wilful neglect.

Understandably, the prospect of a criminal record is traumatic for the doctor involved, regardless of the nature of an alleged criminal offence. Many junior doctors are also surprised to find that their behaviour outside of the workplace can have an impact on their career.

Below we look at some of the types of criminal charges doctors can face and the circumstances in which they arise.

Criminal issues not related to clinical practice and when to report them to the GMC

While you are not on duty all the time, it's important to be aware that the GMC expects your conduct to be of a certain standard even when you are not at work. Good medical practice (2013) states that:

65. You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession.

As such, doctors have an ethical duty to inform the GMC without delay if, anywhere in the world, they accept a caution, or are charged with or found guilty of a criminal offence.

Although the police may indicate that accepting a caution will end the criminal investigation, due to the GMC reporting requirements mentioned above, it’s not always straightforward for doctors to accept a caution. Accepting a caution is essentially an admission of guilt – so although it may close the criminal investigation, it can trigger a GMC investigation.

The GMC has more detailed guidance on what criminal or regulatory proceedings doctors need to tell them about, which also includes exceptions that do not need to be reported – such as payment for a fixed penalty notice for a road traffic offence. Be aware that some offences, usually those related to alcohol or drug use (such as drink driving) may lead the GMC to investigate a doctor's health as well as their conduct.

For criminal investigations arising from issues not related to patient care, doctors would usually need to instruct a private solicitor to represent them through the criminal legal process. However, we would advise you to inform us so that we may advise on your obligations to report the matter to the GMC. You may also be under a contractual obligation to inform your employer of any cautions, charges or convictions.

Allegations of sexual misconduct

This type of allegation is thankfully rare, but can have a devastating impact on doctors, their families, their reputation and wellbeing, even if it is eventually proved to be unfounded. So, how can you reduce the risk of being the subject of this kind of allegation?

  • 'Intimate' examinations are likely to include examinations of breasts, genitalia and rectum, but could also include any examinations where it is necessary to touch or even be close to the patient.
  • Get informed consent for the examination. Often, allegations of this nature can arise from a misunderstanding. Explain what you plan to do, what equipment will be used, whether the patient might feel any discomfort, and why it's relevant to their presenting complaint.
  • Offer a chaperone. The GMC states that 'you should offer the patient the option of having an impartial observer (a chaperone) present wherever possible' when carrying out an intimate examination. This applies whether or not you are the same gender as the patient, and they should usually be a health professional who is trained to be familiar with what the examination or procedure involves.
  • Give patients privacy to dress and undress so they do not feel uncomfortable or observed while they get ready.
  • It can be tempting to try to put an anxious patient at ease with some light-hearted conversation, but this can be misinterpreted and may cause offence.
  • A patient may ask you to stop during an intimate examination, for example if they experience discomfort. Consent to a procedure can be withdrawn at any time and for a number of reasons, and you must respect and comply with this.
  • Keep careful documentation of the circumstances surrounding the examination. It's important to record the discussion you have had with the patient to obtain consent, including why the examination was clinically indicated, the fact that you offered a chaperone, and whether the patient accepted or declined. If a chaperone is present, make a note of their name and job description in the clinical records.
  • The GMC accepts that a doctor may proceed with an intimate examination without a chaperone as long as both the patient and doctor are in agreement; however, having a chaperone present can strengthen a doctor's defence if an allegation of unprofessional behaviour is made.

If you do become aware of this type of allegation made against you, please contact us promptly so that we can advise you.

Gross negligence manslaughter

When patients die it can be very distressing for the clinicians involved, but this is magnified hugely when it is suggested that the doctor has caused the death and that their actions could be considered to reach the threshold for criminal prosecution.

Thankfully such prosecutions are not common. The following points outline ways in which doctors can treat their patients safely and reduce the risk of facing a criminal investigation.

  • Always work within your capabilities. If you're not sure about something you are about to do, seek advice or supervision.
  • Know your weaknesses. For example, if you habitually work late to keep on top of things, think about how this could affect your ability to practise safely.
  • Think about patient safety in your CPD planning. Some of the mistakes that lead to prosecutions have happened before, and raising your personal awareness of them will have obvious benefits, so seek out courses and conferences relevant to your specialty.
  • Raise concerns about systems or practices you believe are unsafe. If there aren't enough resources to provide a safe and effective service to patients, tell your senior manager and follow up discussions to ensure there is progress. Flagging up inadequate resources or poor system design or delivery is often more effective when done collectively and collaboratively with colleagues.
  • Take part in any induction training organised for you.

When things go wrong

If you do become aware of a potential criminal investigation relating to your clinical care of a patient:

  • Seek advice at the outset from your medical defence organisation.
  • Don't try to produce a statement without the notes or advice from your medical defence organisation or a solicitor instructed by them.
  • Never make the mistake of thinking the police won't know the subject matter. Any interviews will likely be conducted by skilled officers.
  • There may be press interest in the case, so therefore if you are approached by the media we would recommend that your only statement is 'No comment' and that you contact our press office for further advice on how to handle the media.

We are here to help

The MDU is the only medical defence organisation which has a specialist in-house team of three solicitors with extensive experience of criminal law. As well as an enviable success rate, they offer much-needed support to members when their freedom, career and even mental health may be in jeopardy.

It should also be reassuring to know that the MDU's criminal solicitors have an excellent track record in achieving a successful outcome for members. The vast majority of police investigations against MDU members do not result in a prosecution, and only about one in four prosecutions for our in-house team has resulted in a conviction. The incidence of conviction in sexual cases is very much lower – a remarkable record given that the CPS's overall conviction rate is of the order of 80%.

This guidance was correct at publication 04/07/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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