When a doctor is accused of a crime, the transformation from respected professional to suspected offender is traumatic. This is when it pays to belong to the only medical defence organisation (MDO) which has a specialist in-house team of three solicitors with extensive experience of criminal law. As well as an enviable success rate, they offer much-needed support to members when their freedom, career and even mental health may be in jeopardy.
The criminal team represents members accused of offences relating to their clinical practice, including sexual assault, manslaughter and even murder. Such cases are often extremely complex, demanding specialist knowledge and tenacity to achieve a successful outcome.
Ian Barker is the MDU's most experienced criminal solicitor. He joined the company in 2000 having been instructed by the MDU in several cases while in private practice, including the successful defence of Dr David Moor in 1999 (see box below). Sara Mason was appointed in 2001 and Nick Tennant in 2008. Between them, they have more than 50 years' experience of criminal law.
“For doctors who do not belong to an MDO, private legal representation is likely to be prohibitively expensive”
The value of having in-house expertise is increasingly apparent following a shake-up in legal funding in recent years. For instance, defence costs orders in criminal cases have been scrapped for privately-funded defendants. This has significant cost implications for MDOs who need to instruct external solicitors because there is no prospect of getting this money back if the member is found not guilty.
But for doctors who do not belong to an MDO, private legal representation is likely to be prohibitively expensive, leaving them dependent on the legal aid system, which even then could require significant ongoing contribution.
Nick Tennant says: “The MDU’s resources put our members at a distinct advantage because of the time we can devote to cases and the funds at our disposal to instruct the necessary experts and barristers. With publicly funded work, solicitors are limited by what the Legal Aid Agency will permit.”
“It comes to this,” adds Ian Barker, “if you are accused of an offence, you are up against the CPS and police who have extraordinary resources and the ability to investigate. The MDU provides phenomenal back-up when it comes to legal representation, which starts to redress the balance.”
Preparing for a police interview
There are two stages to the service provided by the criminal solicitors. The first, if possible, is to prepare the member for a police investigation before they step anywhere near the station. This is hugely important for members who are completely ‘interview-naïve’ because police officers are often very experienced, have access to expert advice and will have worked out their interview strategy in advance. As Ian puts it: “You can rarely win a case in a police interview, but if you don’t know what you are doing you can certainly badly damage it.”
There may be other surprises in store. For example, a doctor who voluntarily attends a London police station for questioning about a manslaughter allegation may not expect to face detectives from a murder investigation team. However, the MDU solicitors will warn the member that this can be standard procedure so they are not unsettled by the introductions before the interview begins.
If the member is charged, the second stage is the run-up to a trial when MDU solicitors devote a significant amount of time to looking after the member and being available for them. “Our assistance is both legal in the preparation of the case, and pastoral because half the battle is producing a situation where the doctor can cope with the trial process. And that comes to a large extent from the support we give, as well as their own ability to handle the process.”
Pressures of investigation
The pressures for members under investigation can be overwhelming. A doctor who has a family and is accused of a sexual assault will almost certainly be assessed by social services and could be separated from their children, or not allowed to be alone with them in the house.
The police may impose conditions of bail at the point of arrest that effectively prevent the doctor from practising and earning a living, such as prohibiting them from treating any female patients, even in the presence of a chaperone.
And there is often press intrusion, as Sara Mason describes: “I had a case where a member was charged with three counts of sexual assault. The allegations concerned a single patient during a single consultation but the local paper reported the case as if it was three different patients, and included the member’s address.” In this situation, the solicitors will alert the MDU’s press office, who can advise the member on how best to handle an approach from a journalist. They will also be in regular communication with the MDU medico-legal adviser who co-ordinates the different elements of the member’s case.
Sara Mason, MDU solicitor
Ian Barker and Nick Tennant, MDU solicitors
This is important because even when the criminal investigation is abandoned, this is often only a temporary respite for the doctor as other investigations almost inevitably follow. Ian says: “In the case of a homicide, the coroner may have referred the case to the police but if there is no prosecution then it comes back to the coroner. That’s two processes. Then there’s the GMC because there is usually a report to the regulator where a professional is under investigation. They will pause the process while the police are investigating but there’s still the interim orders panel. Added to that you might have a trust or NHS England investigation and a civil claim too.”
This phenomenon is known as multiple jeopardy and means the solicitors have to be alert to everything which occurs during a police investigation that might have repercussions at the GMC. As Sara points out: “You really have to have an eye for everything.”
Increasing chance of criminal proceedings
It is still very rare for a doctor to be convicted of a crime but Ian, Sara and Nick believe there is an increasing chance of a doctor being subject to criminal proceedings compared to five years ago.
One factor is the climate following the Jimmy Savile scandal which has led to a spike in allegations of sexual assault. These typically make up something of the order of 70% of the criminal cases but the solicitors believe there is now a greater likelihood of a charge in cases which amount to one person’s word against another’s. As Sara reflects: “In the past where an allegation of sexual assault was made, in many cases we would attend a police interview with a doctor, fully expecting that the case would not go anywhere, but now I don’t have that confidence at all.”
Manslaughter allegations in a clinical setting are less common but there has been a significant increase in the number of cases being investigated by the police in recent years. The majority of these cases are passed to the police by a coroner but investigations can also be triggered by a complaint from a family member, from a trust and now the Care Quality Commission. For a doctor to be convicted of manslaughter, the prosecution must prove ‘gross negligence’ with reference to a significant body of case law, including the MDU’s successful appeal against the manslaughter conviction of Dr Michael Prentice in 1994 (see below). Such precedents help the police and CPS to determine whether or not there is sufficient evidence to warrant prosecution.
Much more ambiguous is a new criminal offence of wilful neglect, which was introduced under the Criminal Justice and Courts Act 2015 and applies to individual doctors and other healthcare professionals who ill-treat or neglect someone in their care, regardless of the harm this caused. Ian explains that while the Department of Health has said that only the most serious departures from acceptable standards of care should be prosecuted, they have not set a clear threshold for investigation. That means the police may feel obliged to follow up a complaint from a member of the public, even if there is little realistic prospect of conviction.
“The government anticipated there would be around 240 prosecutions each year for the new offence but it’s difficult to predict how many investigations there will be, some against doctors, that go nowhere,” says Ian Barker.
Members who become aware that they might be involved in a police investigation are advised to notify the MDU as soon as possible so that they have the best possible legal representation and support from the outset. It should also be reassuring to know that the MDU’s criminal solicitors have an excellent track record in achieving a successful outcome for members: the vast majority of police investigations against MDU members do not result in a prosecution, and only about one in four prosecutions for the in house team have resulted in a conviction. The incidence of conviction in sexual cases is very much lower. A remarkable record given that the CPS’s overall conviction rate is of the order of 80%.
Ian, Sara and Nick agree that their strongest motivation in any case is the amount at stake for the doctor. As Nick puts it: “It’s terrible to think that if a member is convicted it might mean prison, the end of their career and livelihood.”
“I’ll produce a list of things I’m going to do and I’m constantly looking at that, trying to find an angle I might have missed,” reveals Ian. “And I’ll ask myself what is going to persuade those twelve jurors? What are the strongest arguments?
“Ultimately, if we can help a doctor through the process without them incurring too much collateral damage, and get them back into practice, then that is the most satisfying result we can achieve.”
Read how the criminal solicitors successfully defended one member from a charge of gross negligence manslaughter.
Case law - tried and tested
Dr Michael Prentice, successful appeal of manslaughter conviction (1993)
As a pre-registration house officer at Peterborough District Hospital, Dr Prentice had mistakenly administered the chemotherapy drug vincristine intrathecally, rather than intravenously. The 16-year-old patient, Malcolm Savage, died two weeks later.
During the original trial two years earlier, the judge directed the jury to apply a test of ‘recklessness’ to determine manslaughter. This meant they could not consider any extenuating circumstances. In quashing Dr Prentice’s conviction, the Court of Appeal determined the jury may well have come to a different conclusion had they been allowed to take mitigating factors into account.
The case helped re-establish that the proper test for manslaughter was ‘gross negligence’, enabling all the circumstances of an individual case to be taken into account in assessing criminal liability.
Dr David Moor (1999) and Dr Howard Martin (2005), found not guilty of murder
These high profile murder trials concerned GPs who were accused of deliberately using morphine to shorten the lives of patients who were very ill or close to death. In both cases, the legal argument centred on the established principle of ‘double effect’ where it is accepted that a doctor is entitled to relieve a patient’s pain and suffering even if this may incidentally shorten their life.
If either doctor had been convicted, there would have been a risk that doctors would have been more reluctant to prescribe opiates to relieve patients in considerable pain.
Interview by Susan Field