Doctors, Child Pornography, Indecent Images of Children, Child Abuse Images, and the GMC – Legal Advice for Doctors
Each year the GMC receives a number of complaints (around 5 to 8 referrals annually) from UK police who have raided doctors’ homes on suspicion that the doctor has been downloading from the internet illegal images of child pornography (formally referred to as child abuse images or indecent images of children).
At the point where the GMC receives information from the police, arrangements will be made to convene an Interim Orders Tribunal (IOT) hearing. Where there is credible evidence against a doctor (or at the point of criminal charge), the GMC will generally suspend the doctor from the register. Conditions of practise might be imposed, in the alternative, where the police investigation is an at early stage and there is very little information available to the GMC.
Some employers use the suspension from the registration to justify terminating the employment of a doctor, and so it is important to put forward evidence of potential hardship.
Police investigations can take many months to complete because the forensic analysis of computers, phones and other electronic devices that have been seized require a dedicated specialist expert to undertake the analytical work. There is often a backlog of cases because of the length of time it takes for such specialists to carry out the analysis and reporting to be undertaken. The police might also not disclose how they learned of the alleged offence, citing public interest immunity grounds. In some instances this can cause problems for a doctor who is seeking data to legitimately defend themselves in criminal or GMC proceedings.
If no indecent images of children are found on the computer of the doctor under investigation, and the police investigation is dropped, the GMC is likely to lift the interim order unless they are considering bringing misconduct proceedings arising out of the same facts.
Whether a doctor is suspended or has to work under conditions, many employers will exclude the doctor from work until the police investigation is completed.
Regrettably, it can take many months for a criminal case to be heard in the criminal courts. On conviction, some doctors will be jailed (particularly those who have shared such images with others), while others may be given a community punishment order or a suspended sentence. Almost all doctors who are convicted of child pornography possession, or the downloading of indecent images of children, will be ordered to attend a sexual offenders course (of treatment and rehabilitation). Such courses operate over a number of months and are aimed at reducing the risks of reoffending in the community. Such a doctor is also likely to be placed on the Sex Offenders Register, and be banned from working with Children.
The distribution (or sharing) of images is seen as particularly grave as it is said to perpetuate the problem of children being abused in order for such images to be produced for sharing. Sharing of images will usually lead to a much more serious sentence than cases of no distribution.
The GMC will inevitably refer doctors who are convicted of making or downloading indecent images of children, to a fitness to practise (FTP) panel hearing. Where there is no conviction, the GMC can still bring a case of misconduct, based on the same evidence, with a greater likelihood of a successful outcome because of the Lowe standard of proof in regulatory proceedings, namely the balance or probabilities.
The trend, currently, is that most doctors are struck off. However, there may be certain classes of case where it is open to the doctor to argue for a different disposal. The approach to be taken by healthcare regulators in such cases has been set in the case of: CHRP, GDC, Fleischmann [2005] EWHC 87 (Admin). in which it was held that a doctor serving a sentence, including seeing out years on the sex offenders register, should not enjoy unrestricted practice. For a fuller exposition of this case, see our GMC and MPTS case digest page.
In the case of Dr John Rumbold v The General Medical Council [2007] EWHC 2569 (Admin) – two 12 month periods of suspension were imposed, so totalling 24 months (November 2007). Note that the case was further reviewed by the GMC on 11 October 2008. The doctor was then erased at that hearing, on the basis of a lack of insight, a failure to provide the evidence necessary to show insight and remediation, and due to the seriousness of the history. This determination is no longer available on the GMC website, via their online search of named doctors.
Other cases that may also be of relevance include: Razak v GMC [2004] EWHC 205 (Admin), and Haikel v General Medical Council (GMC) [2002] UKPC 37
The above case law is a useful aid to understanding the approach that the supervising courts expect of the Medical Practitioners Tribunal Service (MPTS), when the MPTS panels are tasked with assessing the fitness to practise of a registered medical practitioner.
The GMC’s Sanctions Guidance sets out how GMC/MPTS panels should approach cases concerning child pornography. The prime duty of any MPTS panellist considering a case is to protect the public and uphold public confidence in the profession, while at the same time coming to a proportionate and justifiable sanction, on the evidence before them, and on the merits of the particular case they are examining. The level of offending and the nature and number of images that have been downloaded will also be a relevant consideration. The more serious the depictions within the images, and the greater the number of collected images, the more likely the sanction of erasure will be.
The GMC MPTS guidance (2022) reads (para 153):
153 While the courts distinguish between degrees of seriousness, any conviction for child sex abuse materials against a registered doctor
is a matter of grave concern because it involves such a fundamental breach of the public’s trust in doctors and inevitably brings the profession into disrepute. It is therefore highly likely that, in these cases, the only proportionate sanction will be erasure. However, the tribunal should bear in mind paragraphs 20–23 and 61–111 of this guidance, which deal with the options available to it, and the issue of proportionality. If the tribunal decides to impose a sanction other than erasure, it is important that it fully explains the reasons and the thinking that has led it to impose this lesser sanction so that it is clear to those who have not heard the evidence in the case.
Presenting Evidence
A report from a clinical psychologist may be helpful, by way of evidence, to set out the doctor’s insight and risk of reoffending in the future. This is usually obtained at the expense of the doctor, as part of defence preparations, rather than the GMC arranging for such a report. For additional further reading, see our article on Indecent Doctors.
If a doctor has the support of an employer or potential employer, and a job offer that provides ongoing support and supervision, it may be possible to argue that a doctor should stay on the register. Where a doctor does not work directly with patients, the doctor will arguably have a marginally greater prospect of remaining on the register. In once case we are aware of, a pathologist who never came into contact with patients was allowed to practice under permanent conditions of practice.
Press Reporting of Doctors (Indecent Images Cases)
The press (whether it be newspapers, online news services, or television news channels) will, of course, be interested in the outcomes of cases that concern doctors who have downloaed child pornography. And that is especially so where the doctor is also a paediatrician. See also, by way of example, the following news stories concerning doctors: Paediatrician Arrested, Operation Ore, Doctor Struck Off for Child Pornography, Doctor Admits Making Indecent Images of Children.
Restoration after Erasure for Conduct Related to Indecent Images of Children
A doctor who is struck off (erased from the register) cannot apply to return to the register for a period of five years. A doctor who is struck off for conduct related to indecent images of children will be unlikely to succeed in obtaining restoration to the register in the future, due to public interest and public protection concerns. However, there may be rare exceptions, depending on the nature of the offending, therapy, future risk, and the environment in which a doctor works. However, as the GMC restoration procedure does not permit a doctor to work to conditions on restoration (because the tribunal has no power to impose or agree them) there would be no power to restrict a doctor from working with children once they returned to the medical register, which cannot be in the public interest. The prospects of restoration are therefore likely to be remote.
Categorisation of Images
The criminal justice system has arrived at a simplified system of categorisation, to aid sentencing. The current categories of child abuse images are as follows:
- Category A – penetrative sexual activity with child, sexual activity of child with an animal, or sadism
- Category B – non-penetrative sexual activity of/with children
- Category C – indecent but not falling within categories A or B
See also the previous categorisation system: Copine Scale (Levels of Seriousness) Explained
Other helpful legal resources include:
Cown Prosecution Service Guidance (England and Wales)
The Child Abuse Image Database (CAID) – each individual image is analysed and given a unique code, making it easier for internet providers to identify the sharing/distribution or possession of indecent images of children, as well as enabling automated categorisation for criminal justice purposes. Internet service providers run scans on images and check the unique code of the image against the database. If found they might do a visual check of the content and then send a report to local police.
Sentencing Crown Court (by way of example): Possession Indecent Photographs
Criminal Cases
Brown, R v [2015] EWCA Crim (November 2015) – An appeal case (appeal allowed) – Use of Download Software; Discussion of Jury Findings; Attempted Downloads; Inconsistent Verdicts
Beaney, R. v [2004] EWCA Crim 449 (February 2004) – Overturning a restraining order to a limited extent, relating to access to computers in the future
Wilkes, R. v [2022] EWCA Crim 525 (May 2022) – defects in committal proceedings; powers of the crown court.
Oliver & Ors, R. v [2002] EWCA Crim 2766 (November 2002) – old case law on the previous scale that was used to categorise images. Defendants were then sentenced based on the number off images against each category. (Also reference to the law at the time on specimen counts,)
Family Law Cases
Public Interest Immunity (Police and FBI); Content of Images
G and H (welfare of the children) [2021] EWFC B21 (April 2021)
Parental Contact
K (Children), Re [2011] EWCA Civ 1064 (July 2011)
Disclosure and Barring Service (DBS) Cases
Harm; Public Interest; Unsuitability to Work with Children
AB v DBS (Safeguarding vulnerable groups – Adults’ barred list, Children’s barred list, precedence of decisions) [2022] UKUT 134 (AAC) – Appeal to Upper Tribunal. A qualified nurse was said to have accessed a chat room about the topic of sexual activity with children. He was barred. The legal test in the Upper tribunal was stated as follows:
28. As noted above in the context of the statutory framework, the right of appeal to the Upper Tribunal is restricted in the sense that it is not a full merits review right of appeal. A person may appeal on the ground that the DBS has made a mistake “on any point of law” (section 4(2)(a)). A person may also appeal on the ground that the DBS has made a mistake “in any finding of fact which it has made and on which the decision … was based” (section 4(2)(b)). However, for these purposes “the decision whether or not it is appropriate to be included in the barred list is not a question of law or fact” (section 4(3)).
In others words, it is a matter of judgment. The case further sets out the appealable decisions that the Upper tribunal can entertain. This is an important case for anyone appealing a barring decision of the DBS. The case of B v Independent Safeguarding Authority [2012] EWCA Civ 977) in relation to proportionality challenges was mentioned.
(May 2022)
BP v Secretary Of State for Children, Schools and Families [2007] EWCST 1128(PVA)
Independent Safeguarding Authority v SB & Anor [2012] EWCA Civ 977 – (July 2012)
Other Articles
See also our article on Barring cases (preventing doctors from working with vulnerable adults and children)
See also our article on Extreme Pornography Possession and Doctors
And our article on Sexually Inappropriate Conduct of Doctors
Also, Sexual Harassment by Doctors
Doctors Defence Service represents doctors facing criminal investigation, criminal proceedings, and GMC proceedings in relation to the possession, making or distribution of child abuse images. Contact us in strict confidence to discuss your case, on: 0800 10 88 739
