Criminal convictions and cautions

Reference: GUI-2c

Last Updated 28/07/2017

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Overview

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Criminal offending can affect the fitness to practise of nurses and midwives in a number of ways. Fitness to practise cases which are about convictions will mean that decision makers need to be aware of different legal rules about the fair use of people’s criminal records.

Assessing how serious convictions and cautions are

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Not every conviction or caution will raise a regulatory concern. We will only take cases forward where the conviction or caution raises a risk to patients or the reputation of the professions.

Decision makers will seek police information to verify the details of the conviction or caution referred to us. We will do this when we have made the decision that the conviction, and any information we have gathered about the surrounding circumstances, would be serious enough to affect the nurse or midwife’s fitness to practise.

Referring serious convictions directly to the Fitness to Practise Committee

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If a nurse or midwife has been sentenced to immediate imprisonment, if the offences would have previously have been a ‘serious arrestable offence’, or if they involved hate crime or child pornography, we may pass the case directly to the Fitness to Practise Committee for their decision.1  We do this because the nature of these convictions intrinsically affects the reputation of the professions and a finding of impaired fitness to practise will be needed to protect the public interest.

Informing us of convictions or cautions

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Any nurses or midwives applying to join our register must declare any cautions or convictions at the time of their application. Nurses or midwives renewing their registration are also asked to make the same declaration. If a nurse or midwife does not disclose convictions or cautions when they are asked, their entry on the register may be called into question. Any evidence that the nurse or midwife was dishonest in an application to join our register or renew their registration will inevitably mean we will need to carry out a full investigation into the circumstances.

Not informing us of a conviction or caution is a clear breach of the Code. If we decide that a failure to inform us of convictions or cautions does not call into question a nurse or midwife’s entry on our register, we will usually need to carry out a full investigation into any possible misconduct.

Decision makers will need to perform these assessments even if the offending itself was not serious, because of our clear expectation that nurses or midwives should be candid with us about any criminal offending they are involved in.

Conditional discharges, absolute discharges and admonitions

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If a nurse or midwife has received a conditional discharge, an absolute discharge, or an admonition in Scotland, there is no basis for an allegation that the nurse or midwife’s fitness to practise is impaired by reason of that conviction.

Sometimes, however, we may investigate the underlying misconduct that led to the conviction. We will do this where the facts suggest particularly serious misconduct, including dishonesty, violence, or sexual offending, especially if it relates to a nurse or midwife’s professional practice.

Protected cautions and convictions

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Protected convictions and cautions are defined differently in different parts of the UK.

In England and Wales, both cautions and convictions are protected. In Scotland and Northern Ireland, only convictions are protected.

In England and Wales, cautions are protected if six years have elapsed since the date of the caution (or two years if the person was under 18 at the time of the offence).

A conviction in England, Wales or Northern Ireland is protected if:

  • eleven years have elapsed since the date of conviction (or five and a half years if the person was under 18 at the time of the offence),
  • it is the person’s only offence,
  • it did not result in a custodial sentence, a sentence of imprisonment or service detention, and
  • it is not for a listed offence.

There are separate groups of ‘listed’ offences (serious violent and sexual offences) in England and Wales, and in Northern Ireland.

In Scotland, a conviction for an offence will be protected if:

  • it is spent, and either:
  • the sentence imposed by the court was an admonition or an absolute discharge, or
  • fifteen years have passed since the date of the offence  (or, if the offender was under the age of eighteen at the date of the offence, if seven and a half years have passed since that date), and
  • the offence is one which appears in the list of offences to disclose subject to rules

Under Scots law, there is an additional list of convictions which cannot be protected because they are too serious.

Driving offences and penalty fares

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We will not investigate referrals based on convictions for offences that are not sufficiently serious to impact upon a nurse or midwife’s fitness to practise. These include parking and other penalty charge notices contraventions, fixed penalty (and conditional offer fixed penalty) motoring offences or penalty fares imposed under a public transport penalty fare scheme. We will assess other motoring offences on a case by case basis.

Decision makers should consider that drink-driving offences are more likely to call into question a nurse or midwife’s fitness to practise if:

  • the offence occurred either in the course of a nurse or midwife’s professional duties, driving to or from those duties, or during on-call or standby arrangements
  • there are aggravating circumstances connected with the offence, or
  • it is a repeat offence.

If a nurse or midwife has been convicted of a drink-driving offence, decision makers should:

  • look at any available information on the background to the offending, and
  • seek information from the nurse or midwife’s employer, general practitioner or occupational health department, if it appears that we need to explore any underlying alcohol issues that could mean that the nurse or midwife’s fitness to practise is impaired because of their health.

Police investigations resulting in no conviction

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If the police have carried out an investigation into possible criminal activity by a nurse or midwife, and the case ends in no further action being taken or the nurse or midwife being acquitted in court, we will need to consider if we should then carry out our own investigation on the basis of possible misconduct.

If the alleged conduct took place in a care setting, the alleged victims were patients or service users, or the conduct was directly connected with the nurse or midwife’s professional practice in some other way, decision makers will usually need to assess if the facts are serious enough to support an allegation of misconduct. This is because different considerations apply in criminal law.

It may not have been possible to prove all of the elements of a particular offence (such as assault, neglect or manslaughter) to the criminal standard of proof but it may still be more likely than not that the nurse or midwife was responsible for conduct that put patients at risk of harm, or impacted on the reputation of the professions. We may ask different questions about clinical standards or professional practice that would not have been considered in the criminal context.

However, if incidents which did not occur in professional practice have been investigated by the police, and have resulted in no prosecution or the nurse or midwife being found not guilty, there is less justification for us to re-investigate the facts. Unlike incidents about patient care, a further investigation in these circumstances would not benefit from the specialist knowledge of regulatory investigators or case examiners, or the broader regulatory approach of our hearings before the Fitness to Practise Committee.

1 Article 22(5)(b)(ii) requires us to refer allegations (as soon as reasonably practicable after they are received in the form required) to a Practice Committee. This includes referral directly to the Conduct and Competence Committee without consideration by our Case Examiners.