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Does a Criminal Conviction Affect your Fitness to Practise?

07 Nov 2014

When a regulated professional is convicted in the criminal courts, their regulatory body will inevitably also investigate their fitness to practise. Most regulators will wait for the outcome of the criminal conviction before embarking on their own fitness to practise hearing, although depending on the nature of the criminal allegations, interim order hearings may also be considered. Once the outcome of the criminal proceedings are known, the regulator will have a better idea of how to proceed.

If a practitioner is acquitted in the criminal courts, then it mustn’t be assumed that a regulator will abandon their fitness to practise investigation. The criminal courts operate to a high standard of proof, beyond reasonable doubt. It is therefore entirely possible for a defendant to be acquitted, or the prosecution abandoned in the criminal courts, but for a regulator to continue with their fitness to practise investigation.

Following a conviction, it can feel unfair for a practitioner to face a fitness to practise investigation arising out of the same set of facts. However the purpose of the regulator’s fitness to practise hearings is not to inflict a second punishment, but to consider if the practitioner’s fitness to practise is impaired as a result of the conviction.  A regulator needs to protect the public, who may come into contact with the practitioner as a patient and to maintain the high standards and reputation of the profession.

Following a conviction, the regulator will use the certificate of conviction, as evidence that the offence took place. A Panel is bound to accept this as conclusive evidence that the offence was committed, so there will be no opportunity for the practitioner, who may continue to deny the offence, to attempt to prove their innocence before a fitness to practise panel.

When deciding on the appropriate sanction in a conviction case, a fitness to practise panel will consider issues including the following:

  • The factual findings of a criminal court;
  • The sentencing remarks of the court;
  • The nature of sentence imposed – although if a low penalty is imposed in a criminal court, that does not meant that a regulator will necessarily consider it appropriate to impose a low sanction. However if a court has imposed an immediate custodial sentence, then a regulator will treat that seriously;
  • The nature and gravity of the criminal offence;
  • The likely effect on the undermining of the confidence in the profession;
  • The level of insight demonstrated;
  • The likelihood of a reoccurrence.

A conviction does not automatically result in erasure before a fitness to practise panel, but this will certainly be considered for offences of a sexual, violent or dishonest nature. If the conviction related to dishonesty, then the starting point for any fitness to practise panel is likely to be erasure, although a panel will consider any personal mitigation. It is often considered necessary for this to need to be remarkably good to prevent erasure. There are however situations where erasure may be unduly harsh and disproportionate in the circumstances and not in the public interest.

There is a general principle that a practitioner should not be able to resume their practice until they have satisfactorily completed the sentence imposed by the criminal court.

At Richard Nelson LLP we regularly represent health care professionals in both the criminal courts and in fitness to practise investigations and hearings, so if you find yourself in this situation, please out fitness to practise lawyers for urgent advice on how we can help.

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