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.
Our criminal solicitors have represented doctors and dentists at every level of the medical profession, including A-Level students with university offers for medicine and dentistry at one end of the spectrum, and senior hospital consultants and established practising dental surgeons at the other. We have also represented healthcare professionals charged with the most serious of offences including murder. Our goal is to try to neutralise investigations before they gather momentum. Where possible we avoid trial through negotiation, acting proactively and aggressively where required.
We are not GMC or GDC regulatory lawyers who also profess to do some criminal defence law. We are true specialists in crime, and have acted in some of the most serious and sensitive criminal cases in the UK in the last half century, from serious fraud to multiple murder. Our understanding of the culture of medical practice is ingrained in our principal Mary Monson's personal history. As she rose to prominence as a lawyer throughout the 1980s, her own brother was in the process of becoming one of the world's foremost endocrinologists.
We have included below a brief outline of some of the considerations that characterise good practice in the representation of medical professionals in serious cases, in less serious ones, and in cases arising from allegations of criminal malpractice.
Our criminal solicitors' case studies
Any criminal lawyer can claim to have expertise in different types of criminal case. We have included here some case studies to give some idea of how we prepare our cases.
Case Study 1
Our client was a cardio-thoracic surgeon accused of an assault involving an alleged assault and head butt outside a bar in London, resulting in a hospital admission for the complainant. The ‘head butt' was in fact a clash of heads and any contact was in any case in self defence. He accepted the duty solicitor at the police station, and answered all police questions in open interview.
He was charged and then came to us. We prepared the case for trial, instructing Howard Godfrey QC as counsel. After a 6 month war of attrition over disclosure, and an abuse of process argument, we successfully resisted the prosecution attempt to adjourn the trial and the case was finally discontinued, with an order for defence costs against the CPS.
Case study 2
Our client was a young SHO who was alleged to have been in possession of a small amount of a class A substance. On arrest he did not request the duty solicitor in his initial interview. Despite some circumstantial evidence that the drugs were his, after three appearances at the police station and sustained but diplomatic pressure from our criminal solicitor, the case ended with no further action from police.
Factors in criminal cases specific to medical professionals
Everything that happens in a criminal case involving a doctor or dentist must be viewed from a perspective which is informed by a keen awareness of 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 referral only results at this stage in some informal preliminary advice.
Our usual practice is to get a brief preliminary advice from a regulatory barrister specialising in GMC and GDC work so that the defence strategy operates within according to appropriate parameters. This advice is especially important in the context of any negotiation 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 out of some misplaced wish to appear cooperative and convey an impression of absolute transparency. This is naive and potentially dangerous. The reality is that in our adversarial system, an investigator is usually inevitably prejudiced from the outset, and the safest assumption must be that caution is most appropriate. This can be especially true in NHS interviews under caution, where the political necessity for the conviction can often prefigure the real blame for an incident.
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 is essential. In some cases where the evidence is still unclear, no comment or comment in limited written form should be the only advice. Only rarely will the client's natural urge to answer all the questions put be an appropriate one.
The forum of interview is not a fair one. The client will not usually be given full disclosure of the allegation in detail in advance, and the investigator is rarely the neutral fact finder merely wanting to have ‘a chat' or ‘to get both sides of the story' as he or she claims. While negotiation and flexibility may sometimes be possible, it must occur from a position of safety, not blind hope in the fairness of the system.
Different types of allegation
The category of offence alleged may 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
Offences related to wilful neglect of children or those who lack capacity under the Mental Health Act can result in prosecutions, and at the time of writing the government plans to close what it regards as a gap in legislation by widening the ambit of willful neglect to include ‘wilful or reckless neglect or mistreatment of patients', and not just those who are vulnerable due to age or mental capacity.
A conviction or admission of the common law and statutory offences which encompass assaults on a person from common assault to murder of course are considered to be of the greatest seriousness by the regulator if the complainant is patient.
There is no question that any allegation involving actual harm to a patient, intended or reckless, go directly to the fitness to practice of any professional and must therefore by approached with serious respect by the client and lawyer in the interview under caution or at court. A negotiated outcome which merely mitigates criminal liability must only be entertained in rare circumstances, 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 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, and the number of prosecutions for gross negligence manslaughter in the last 25 years can be compared with the total figure for the 80 years preceding.
Of course, gross negligence manslaughter, punishable by imprisonment, is an offence for which the professional and personal consequences of 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 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 only an internal inquiry is taking place, a healthcare professional is wise to seek preliminary legal advice if any criminal conduct is alleged.
Any allegation which implies dishonesty at work could result in the harshest of regulatory penalties, and any allegation of criminal conduct in the course of employment is of course also serious, given the need for trust in the individual by the employer, and public trust in both the medical profession and the employer.
An allegation of any type in the course of employment should be treated as potentially toxic by the legal team, and the strategy adopted 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. This final option is rarely desirable, however.
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 therefore 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 possibly also the 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 (which may be de minimis, such as a fine).
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.
All of the above is 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 degree of patience, making many phone calls, writing letters and getting court adjourned if necessary so that proper dialogue can take place. For more information on this area read our Representation of Professionals and People with no Previous Convictions section.
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 client, and making the client part of the decision making process in the case. This is especially important in law, as clients are the source of complex and nuanced instructions, perhaps even more so that medical patients.
One outcome may be desirable for one client, but will end the career prospects of another. Things are further complicated with a lawyer's medical clients because the degree of variation in the nature of the medical work. In something as technical or at times esoteric as the culture and terminology of medical practice, assumptions are of little use to the lawyer, and the gap in knowledge must be bridged by spending enough time with the client that the delivery of the service can be tailored effectively.
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 professions which has no place in good criminal representation.