Doctors on the Sex Offenders Register and the GMC’s Approach
A number of doctors each year are convicted of sexually related offences. As part of their sentences they will be ordered to sign the UK Sex Offenders Register. The period of time the doctor will have to remain on the register will be set by the sentencing judge who presided in the criminal court hearing. The period set will usually be five to ten years, depending on the facts underlying the offence, and the specific offence in statute. The various legislation enabling the sex offenders register is the Sex Offenders Act 1997, the Sex Offenders Act 2003, and subsequent legislation.
In 2015 there were just under 50,000 people on the Sex Offenders Register. It is a register administered by the police. Convicted sex offenders must register with the police, in person, within three days of their sentence or their release from prison. They are obligated to sign the register annually and keep the police aware of any address that they choose to permanently reside at, as well as providing their national insurance number, date of birth and full name. The reporting requirements are likely to develop still further over time.
The purpose of being on the Sex Offender’s Register is to keep track of an offender’s whereabouts. In certain circumstances, members of the public can be informed about whether somebody is on the register. The information will also be disclosed within a criminal records check, particularly an enhanced check undertaken for those applying for jobs in health settings.
Any offence of a sexual nature is likely to lead to a requirement for a defendant to sign the sex offenders register. The length of time imposed, in which a defendant will have to sign the sex offenders register, (as stated above) is partly set by statute and partly determined by the sentencing judge.
If a defendant is jailed for 30 months to life they can be sentenced to an indefinite term of being on the sex offenders register. One can apply later to come off the register, in certain circumstances (pursuant to the Sexual Offences Act 2003 (Remedial) Order 2012). In any event, the standard appeal rules apply to any sentence, in that an appeal can be lodged within 21 days of a sentence being imposed.
Where a defendant is sentenced to six months to 30 months imprisonment, they will be required to sign the register for 10 years. Whereas a sentence of less than six months, including community based penalties, can be up to seven years duration. There are also notification requirements in certain other prescribed circumstances, such as a duty to notify the police of an intention to travel abroad, or move addresses. There are obligations to disclose travel documents, and the fact that a convicted sex offended is living with a child under 18 years of age, Defendants are also required to show to the police personal documents to prove their identify, particularly when names are changed (pursuant to the Sexual Offences Act 2003 (Notification Requirements (England and Wales) Regulations 2012).
The purpose of the sex offenders register is to reassure to the public that the UK State takes seriously its responsibility to protect its citizens from harm. There is a public confidence element to the Sex Offenders Register and newspapers will often use the fact that someone is on the register as evidence that they are unsuitable to do certain types of work. Some examples of press articles, where the current GMC’s policy (to allow sex offenders to work as doctors) is doubted, are set out below.
In 2012, the Daily Mail reported that it had made a request of the GMC for information about the number of doctors who were on the medical practitioners register (held by the GMC), who were also on the sex offenders register (held by the police). The GMC disclosed that around 31 doctors were on the sex offenders register who were still able to work, following GMC/MPTS hearings. Subsequently, the GMC has tightened up its guidance to panels, with the aim of reassuring the public that the GMC will deal firmly with sex offenders. However, as the GMC’s adjudication panels are now an arms-length tribunal (namely the Medical Practitioners Tribunal Service (MPTS)) they have less influence over the independent panel that is convened to hear the case. This is in the interests of justice but can lead to an antagonism between the MPTS tribunals and the GMC. This is why the GMC has now been given the statutory power to exercise its right to appeal a decision it considers inimical to the public interest.
From time to time the GMC/MPTS jointly issue guidance to tribunal panels, so that the panels will arrive at consistent and well-considered, publicly defensible judgments. This guidance is called the Indicative Sanctions Guidance.
In most cases of child pornography (in contrast to some other sexual offences), the policy driven expectation is that a doctor’s name will be erased from the medical register. The GMC will certainly ask the MPTS tribunal for that to happen. Yet not all doctors are erased with such histories. There will always be cases where the tribunal disagrees with the GMC and refuses to erase the doctor’s name from the register. This, some people say, causes embarrassment to the GMC.
Each GMC case will turn on its own facts and the nature of the doctor’s work, their level of insight, and their opportunity to interact with patients, will be relevant to how the tribunal disposes of the fitness to practise case.
For more information on this subject of how the GMC deals with child pornography cases, see our article: UK Doctors, Child Pornography and the GMC. It should be noted that physical-contact type sexual offending of any sort towards children is almost inevitably going to lead to erasure.
The remaining discussion, below, focusses on the GMC’s policy towards convicted sex offenders, whose offences were not related to children.
Sexual Offending by Doctors that is not related to Children
Within the current MPTS indicative sanctions guidance (published by the GMC in April 2017, available in PDF format) the following guidance is given to tribunal panels:
Sexual misconduct
Paragraph 149: This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child pornography) to sexual misconduct with patients, colleagues, patients’ relatives or others. See further guidance on sex offenders and child pornography at paragraphs 151–159.
Paragraph 150: Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.
Paragraph 154: …The Council of the GMC has made it clear that no doctor registered as a sex offender should have unrestricted registration. The tribunal will therefore need to make sure that, in cases where it imposes a period of suspension or conditions, the case is reviewed before the end of this period to consider whether a further period is appropriate.
Sex Offenders
Paragraph 155: To protect the public, the tribunal should consider whether any conditions it imposes should stipulate no contact with any patients while the doctor is registered as a sex offender. (Doctors may of course be registered as sex offenders following other sexual offences not related to child pornography.)
Paragraph 156: The tribunal should also consider whether doctors registered as sex offenders should be required to undergo assessment (eg by a clinical psychologist) to evaluate the potential risk they pose to patients before they may be permitted to resume any form of practice.
Paragraph 157: When a tribunal is reviewing cases where the doctor has completed the prescribed period of registration as a sex offender (which is dependent on the nature and gravity of the offence) and is no longer required to register as a sex offender, the tribunal should take into account:
a the seriousness of the original offence
b evidence about the doctor’s response to any treatment programme they have undertaken
c. any insight shown by the doctor
d. the likelihood of the doctor reoffending
e. the possible risk to patients and the wider public if the doctor were allowed to resume unrestricted practice
f. the possible damage to the public’s trust in the profession if the doctor were allowed to resume unrestricted practice.
Paragraph 158: Each case should be considered on its merits and decisions should be taken in the light of the particular circumstances relating to the case.
Paragraph 159: If the tribunal has doubts about whether a doctor who no longer needs to register as a sex offender should resume unrestricted practice, it should not grant the doctor unrestricted registration.
(Taken from the MPTS’s Indicative Sanctions Guidance April 2017)
The above paragraphs are not the entirety of the GMC’s/MPTS’s guidance, which is relevant to sexual offending or sexually motivated conduct. There are additional paragraphs about predatory behaviour (as a doctor) and other matters of relevance to the imposition of sanctions on sexually inappropriate doctors as well.
A careful reading of the above sanctions guidance discloses that each GMC/MPTS case should be judged individually, on its own merits. It is also clear from the indicative sanctions guidance that a risk-based approach is to be taken toward the assessment of the risk of a doctor further offending. An assessment of public confidence in the profession, in light of the doctor’s history of misconduct, also plays a significant part, when judging whether a doctor is suitable to continue to practise with restrictions or at all.
The case of Council for the Regulation of Health Care Professionals v General Dental Council & Fleischmann [2005] EWHC 87 (Admin) is regularly cited by the GMC in cases before the MPTS. The case is worth reading, as it explains the public policy approach to managing risk. It has become an oft-cited authority. In that case (about child pornography possession by a doctor) the offending doctor was sentenced by a judge in the criminal courts, as set out below. The GMC fitness to practise panel (the precursor to a MPTS tribunal panel) subsequently considered the case and imposed a 12 month suspension from the register on the doctor. At the end of the period of suspension the doctor would have been able to return to practise.
The sanction imposed by the panel was appealed by the super-regulator: the Professional Standards Authority (PSA), for being, they argued, an ‘unduly lenient’ sanction. If the PSA can satisfy an appeal court judge that a GMC/MPTS decision is unduly lenient they can seek relief, such as the imposition of a replacement sanction. [See our our article on appeals, which includes PSA appeals, which also includes a more detailed information on the Fleischmann case.]
In short, the appeal court judge held that the doctor should not have been permitted to work while he was still serving his sentence, imposed within the criminal justice system. There were three elements to the doctor’s sentence in the judge’s view that precluded the doctor from remaining on the register: 1) a three year period of the Community Rehabilitation Order, 2) a Sex Offender’s Treatment Programme, which would take more than the 12 months suspension imposed on the doctor to complete. 3) the doctor was placed on the sex offender’s register for a period of five years (therefore being longer than the 12 months suspension imposed by the GMC).
As a consequence of the Fleischmann case, the MPTS tribunal must now look at whether a sentence imposed within the criminal justice system makes the practise of medicine (as a registered medical practitioner) incompatible with their past conduct (which goes to the heart of their suitability to practise), because of the constraints of the statutory sanctions that are available to the tribunal.
Despite the above approach, where a criminal justice sentence can be served within a short period, a doctor might be suspended for the short duration of the sentence, and then be permitted to return to work under conditions, if necessary. There will always be exceptions to the rule.
The above approach to sanction is not necessarily adopted where, by the time a MPTS hearing takes place, the only outstanding element of the criminal law sentence is the Sexual Offenders Register element. In such circumstances, the above quoted indicative sanctions guidance will be applied to the facts and a doctor might then be able to return to practise under conditions of practice for the duration of time that they are on the Sex Offenders Register. This could be for a number of years.
As set out in the Indicative Sanctions Guidance (above), a doctor will not be permitted to engage in ‘unrestricted’ practice while they remain on the Sexual Offenders Register. One can readily understand the importance of the public policy aims of upholding public confidence in the profession.
It should be borne in mind that each GMC/MPTS case turns on its own facts. It will rarely be a simple task to predict how a tribunal will view the factual evidence in any individual case, and also predict how they will approach the issue of sanction.
A doctor’s insight, the remediation they have embarked upon, and their future risk of reoffending will all be relevant considerations. Good evidence of insight and remediation can improve a doctor’s prospects of success. Going on courses and reflecting on why the doctor fell from grace will be an essential step for any doctor to take, if they are to remain on the register.
Doctors Defence Services regularly advise doctors on the the steps that they should take to increase their prospects of success at a GMC/MPTS hearing, given their particular sexual offending or sexually inappropriate history. Our lawyers have represented many sex offenders at the GMC/MPTS over the years, with many doctors retaining their registrations.
If you are a medical doctor and would like further information about the implications of the GMC’s / MPTS’ sanction policy and current case law relating to doctors and the Sex Offenders Register, or you would like legal advice or representation at the GMC, call us without obligation on: 0800 10 88 739
