Cautions, Convictions and Fitness to Practise

Criminal offending can affect your fitness to practise. Healthcare regulators require disclosure of criminal offending but when and what to declare?

Criminal offending and fitness to practise

Unless a caution or conviction is protected, you should declare cautions and convictions to our regulator.  The requirement to disclose applies when registering but also once registered and practising.

Declaring a caution or conviction (past or present) does not necessarily mean that your fitness to practise will be found impaired.  Healthcare regulators will assess the circumstances and details of criminal offending to make a judgement on whether it is likely to adversely impact on fitness to practise.  Each healthcare regulator will have its own rules and criteria but, generally speaking, the seriousness to criminal offending will take into consideration:

• If the criminal offending was linked to practise;
• Whether the criminal offending resulted in a custodial sentence (this includes suspended sentences);
• Specific offences that are deemed serious and are specifically listed such as hate crimes, sexual offences etc.;
• Whether there is a significant risk to members of the public of serious harm caused by the healthcare professional committing further offences; and
• The potential impact on public trust and confidence.

It is important to note however that, whilst the caution or conviction itself might not affect your fitness to practise, failure to disclose these might.  Healthcare regulators set clear expectations that healthcare professionals must declare criminal offending without reasonable delay.

Cautions and convictions to declare

Generally speaking, you must declare cautions or convictions including those that are considered ‘spent’ unless they are a protected caution or protected conviction. You must always declare a caution or conviction if it is for a ‘listed offence’.

We will look at protected cautions and convictions below, but a brief word on ‘spent’ convictions.  You must not withhold information about convictions which, for other purposes, are ‘spent’. 

The Rehabilitation of Offenders Act 1974 usually permits people who have been convicted of criminal offences to treat their convictions as spent, after a period of time.  “Spent” means a person can act as it these offences never took place.  However, under the 1974 Act, certain jobs professions are exempt from the provisions of the Act which means that, for these professions, convictions are never considered “spent” and must therefore always be declared.  Healthcare professionals are exempt from the 1974 Act and must therefore declare all criminal offending unless it is protected.

Protected cautions or convictions

Recent changes to the Rehabilitation of Offenders Act 197) mean that you do not have to declare certain cautions and convictions for offences old enough and minor enough to have no bearing on your current character and good standing. These cautions and convictions are considered ‘protected’.

A caution is ‘protected’ – and you do not have to declare it – if it was not for a ‘listed offence’, and:

• you received it more than six years ago, or
• you received more than two years ago and you were under 18 at the time of the offence.

A conviction is ‘protected’ – and you do not have to declare it – if it was not for a ‘listed offence’, and:

• you did not receive a custodial (prison) sentence, and
• you have no other convictions (whether as an adult or under 18), and
• you received the conviction more than eleven years ago (or more than five-and-a-half years ago if you were under 18 at the time of the offence).

You also don’t need to declare:

• driving offences for which you were offered the option of paying a fixed penalty (for example, certain speeding offences and so on).

Remember, you must always declare a caution or conviction if it is for a ‘listed offence’ as these will never be protected.

Non-conviction information

In fitness to practise, the standard of proof is based in the civil standard which is “the balance of probabilities”.  This means a healthcare regulator will assess the evidence and decide is whether something is more likely than not to have happened.

The relevance of this is that the civil burden of proof of lower than the criminal burden of proof (which is “beyond reasonable doubt”) and for this reason, it is still open to a healthcare regulator to act on criminal behaviour where this behaviour did not lead to a conviction.

Healthcare regulator will still assess whether the criminal behaviour (that did not lead to a conviction) still impacts on a registrant’s fitness to practise.

For example, healthcare regulators will consider (not exhaustive) whether:

• the non-conviction offence took place in a clinical or care setting or context;
• the alleged victims were patients;
• there is a clear link to professional practice; and/or
• the reasons why the case did not proceed to conviction (i.e. lack of evidence, witness credibility, whether the case failed in a technicality etc.).

How criminal offending might affect fitness to practise

Ultimately, your healthcare regulator will ask itself whether the criminal offending in question has any material relevance to your fitness to practice.

As mentioned at the start of this article, criminal offending (past or present) does not necessarily mean that your fitness to practise will be found impaired.  Healthcare regulators will assess the circumstances and details of criminal offending to make a judgement on whether it is likely to adversely impact on fitness to practise. 

Healthcare regulators will look at the evidence before it and test this against its own standards and guidance to come to a determination on your fitness to practise.  This will include consideration, where appropriate, insight and remediation.

The rules can be confusing and healthcare professionals must be careful to ensure they understand the responsibilities on them to report criminal offending where this is necessary.  Failure to do so, or do so in the required timeframe, is likely to result in a fitness to practise investigation and possibly a referral to a fitness to practise committee.

It is strongly advisable that you seek expert legal advice if you are a healthcare professional who has been involved in criminal offending.  We can advise on the likely relevance to your fitness to practise, the right approach to remediation and, where the matter is referred to investigation, we can provide you with expert advice and representation.

Contact us for a free, no obligation case assessment.