Doctors, dentists and other health professionals are under ongoing duties of disclosure of any matter which could affect their fitness to practice. Some criminal solicitors may not fully appreciate the effect that merely being arrested may have on a doctor or nurse, and the regulatory lawyers advising them are usually not true specialists in criminal law.
Everything that happens in a criminal case involving a doctor or dentist must be viewed from a perspective of possible regulatory consequences for the client. A referral should be made by the criminal solicitor to a regulatory lawyer if the MPS or MDU are not already involved, even if this only results in some informal preliminary advice.
It is often good practice for the criminal defence solicitor to consult a regulatory barrister specialising in GMC, GDC, or NMC work so that the defence strategy operates within appropriate parameters. This advice is especially important in the context of any negotiation which may occur with the investigator or prosecutor.
It is a sad fact that most professionals either underestimate the significance of the initial interview under caution and forego their right to legal advice, or neglect to ask for a lawyer. Often out of some misplaced wish to appear cooperative and to convey an impression of absolute transparency. This is both naive and potentially dangerous. The reality is that in our adversarial system the safest assumption must be that an investigator is going to be prejudiced from the outset and caution is the most appropriate approach.
In cases where the investigator is the police, the whole process of arrest, detention and interview is so geared to intimidate the interviewee that the protection of sound legal advice and strong representation from a criminal solicitor is essential. In some cases where the evidence is unclear, no comment or comment in limited written form should be the only advice.
Different types of allegation
The category of the offence alleged is likely to be relevant to the approach taken by the client in an investigation or prosecution. This is because the definition of a positive outcome in the criminal case may be at odds with any regulatory or employment responsibilities the doctor, dentist or other healthcare professional has.
Some of the categories of allegation which the criminal solicitor should have some awareness of include:
Allegations Related to Patient Care
The offence of ‘wilful neglect’ is a relatively new offence (2017) under the Criminal Justice and Courts Act under which there is criminal liability where a person has been placed under the care of a medical professional in a hospital or care home, or under private home care . Wilful neglect as an offemce is designed to catch healthcare workers with a 'couldn't care less' attitude, of course things are never actually that simple. It is a conduct offence and the healthcare professional/worker can be found guilty even if their intentional negligence did not cause any harm.
There is no question that any allegation involving actual harm to a patient, intended or reckless, goes directly to the fitness to practice of any professional and must therefore be approached with absolute respect by the client and criminal solicitor in the interview under caution or at court. A negotiated outcome which merely mitigates criminal liability must only be considered rarely, ideally where the finding will not constitute an admission that the regulator will then seize upon in Fitness to Practice proceedings. In this context, a simple police caution will seldom be an acceptable outcome, and focused effort must be taken to achieve the exoneration of the client rather than simply mitigating the criminal penalty.
Gross Negligence Manslaughter
There have been a relatively small number of prosecutions for manslaughter as a result of negligent treatment. There has historically been a principle that a medical mistake should not be punished criminally. However, as the public expectation of the medical profession has changed, prosecutions have increased, albeit to a low level.
Of course, gross negligence manslaughter, punishable by imprisonment, is an offence for which the professional and personal consequences of a conviction are unthinkable. It goes without saying that for these cases the person or organisation being investigated should approach a specialist criminal solicitor before any interview takes place. Apart from providing initial advice, the criminal solicitor will also seek to engage with specialist Queen's Counsel, and the very best independent medical experts as a matter of early urgency, not simply wait for a decision on a prosecution to be made by the other side.
Allegations of other offences in the course of employment
Many investigations into allegations first begin internally in the NHS, with an employer or other body, and at some point morph into criminal investigations. Even if it is only an internal inquiry taking place, a healthcare professional is wise to seek preliminary legal advice if any criminal conduct is alleged.
Any allegation of criminal conduct, of any kind, in the course of employment is serious. However, allegations which imply dishonesty at work could result in the harshest of regulatory penalties given the need for public trust in both the medical profession and the employer.
The strategy adopted by the criminal defence solicitor should be considered carefully to ensure either no further action, acquittal, or in the rarer cases where a conviction is absolutely unavoidable, that maximum damage limitation is achieved.
Allegations of criminal offences outside work
Certain allegations may be considered by any regulatory body on their own facts. For example, if a dentist is accused of criminal damage committed because of recklessness with regard to property, it may be less likely that any GDC proceedings will seriously damage his or her career.
How this is handled by the lawyer in communication with the CPS or police, and what is recorded on the file, may have a bearing on the GDC's view of things. Conversely, for a doctor accused of causing death by dangerous driving, or manslaughter, the matter is clearly so serious that a conviction must simply be avoided at all costs. This more serious type of case must therefore be treated as any other serious case where prison is likely, save for the fact that the penalties of conviction for the professional include both restriction on liberty and the likely loss of career.
Can the prosecution be stopped?
One thing that a criminal solicitor defending a client in an investigation or a prosecution should be aware of is that it is not always an incontrovertible truth that the prosecution must proceed. The investigators and prosecutors can often reconsider a decision to prosecute. Guidelines that a ‘reviewing lawyer' must follow in considering the necessity of prosecution include the financial cost to the state of prosecution where this is balanced against the likely penalty.
The state must also consider the appropriateness of proceeding where the consequences of doing so would be disproportionate in the effect on the defendant. If the case is already being dealt with by a regulator in parallel proceedings where penalties exist, then the state should consider whether to pursue criminal proceedings.
These factors are most likely to be relevant where the allegation is one of an offence of low or medium-level seriousness. But make no mistake, it will usually not be the CPS or other body themselves who take this approach unprompted. The role of the defence criminal solicitor in this is to be proactive. This means actively promoting the client to the other side as somebody who should not be prosecuted, and this requires tenacity and a significant degree of patience.
The Role of the Client
In law, as medicine has already experienced, a much-needed culture change is underway with increased emphasis on communication with the client, and making the client part of the decision-making process. This is especially important in law, as clients are the source of extremley complex and nuanced instructions.
One outcome may be desirable for one client, but will end the career prospects of another. Things are further complicated with a criminal solicitors medical clients because of the degree of variation in the nature of the medical work.
Clients must understand that the responsibility cuts both ways. An effective criminal solicitor will have his or her own demands of the client to ensure that he or she is well equipped to achieve the result. The old fashioned deference of just leaving it to the professional who ‘knows best' should be considered an embarrassing relic of the profession which has no place in good criminal representation.