The Telegraph and the Daily Mail are using convicted doctors as ammunition in their latest assault on the Human Rights Act. “Dozens of convicted sex offenders are working as doctors, it has emerged”, fulminates The Telegraph. “At least 31 men are practising as GPs, consultants and surgeons despite having convictions for assaulting women, possessing child pornography or soliciting prostitutes”. And it’s all the fault of the bête noire – human rights. “The General Medical Council (GMC) said it was unable to ban medics for being on the sex offenders’ register as it has been advised that such a move would not be compatible with human rights legislation”.
A spokesman for the GMC is reported as saying that the GMC “was looking to automatically ban doctors who have been convicted of sexual offences, but did not currently have the power to do so…”
The position is as follows. The GMC is the body tasked by statute (the Medical Act 1983) with the regulation of the medical profession. Its general remit is to ensure that the only doctors who practise are those who are fit to practise. Hence its disciplinary/regulatory panels, before whom allegedly errant doctors appear, are “Fitness to Practise” panels. These panels adjudicate on whether or not a doctor’s registration should be affected by reason of conduct, deficient performance, or matters pertaining to health. Their powers are, rightly, draconian. They can erase a doctor’s name from the register (except where the impaired fitness to practise relates purely to health), suspend, impose conditions and issue warnings. Its proceedings are governed by a set of procedural rules, and, unsurprisingly, given the possible outcomes, the proceedings are subject to the provisions of Art 6 of the European Convention on Human Rights. It would be a monstrous anomaly if they were not. Art 6(1) provides, inter alia:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Where a doctor has been convicted of a criminal offence, the question arises: “is the doctor’s fitness to practise impaired?’ All convictions that result in a custodial sentence, whether immediate or suspended, have to be referred directly to a Fitness to Practise panel: see r 5(1) of the GMC Fitness to Practise Rules. There is a presumption that other conviction and caution cases will be referred directly to a Panel unless the Registrar thinks that it should be referred to a medical and lay case examiner for them to consider whether or not there should be referral. Guidance published by the GMC states that there are some categories of conviction which should normally be presumed to warrant immediate referral, whether or not a custodial sentence was applied. These are convictions for serious arrestable offences, offences with a racial motivation, offences involving child pornography, offences under the Misuse of Drugs Act 1971, and offences involving an element of dishonesty.
It can take time to convene a Fitness to Practise panel. But that does not mean that the public have to remain unprotected from potentially dangerous doctors until a final hearing can be arranged. The GMC has Interim Orders Panels which can suspend or impose conditions on a doctor’s registration pending a final determination. Cases can come before these panels very quickly indeed.
So what are The Telegraph and the Daily Mail worried about? The convicted but still working doctors they mention will all have been subject to a detailed investigation to determine whether their fitness to practise is impaired. In each case it will have been decided either that fitness is not impaired, or that if it is, conditions are sufficient to protect the public and the confidence that the public have in the medical profession.
The newspapers appear to think that if there is a conviction for certain types of offences then there should be immediate and perpetual erasure, and that there should be no provision for that conclusion to be challenged in an impartial way. They would, it seems, regard a (possibly erroneous) conviction for a minor sexual offence by a doctor in his early twenties as an unappealable reason for that doctor never to practise again. That’s a frightening thought. But one might expect it of the Daily Mail and The Telegraph. What is much more frightening is that, if the quotes from the GMC spokesman are to be believed, the GMC appears to agree.
The whole episode illustrates how badly we need the Human Rights Act as a shield against the arbitrary, knee-jerk abuse of power by statutory authorities.