1. Where an individual doctor has provided information pursuant to his employer/provider’s duty under the Regulated Activities Regulations 2014, would the subsequent deployment of that information in criminal proceedings offend any individual doctor’s claim to the right against self-incrimination and/or violate Article 6? This short paper seeks to set  out the European perspective.

Article 6 states:

In the determination of… any criminal charge against him, everyone is entitled to a fair….hearing by an independent and impartial tribunal.

Serjeants’ Inn Chambers hosted an evening with Sir Robert Francis QC on Thursday 24 September 2015 to discuss and reflect upon the impact of the Duty of Candour, as recommended in the 2013 Francis Report, upon practice in a variety of healthcare areas, including inquests.

Cecily White and Paul Spencer considered the impact in the Coronial jurisdiction of the rather snappily named “Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014” (i.e. the Duty of Candour regulations). Their paper is summarised below.

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“our welfare is inextricably entangled with that of others, and accordingly law and ethics, in determining our best interests, should recognise the central importance of relationality, the performance of obligations, and (even apparently injurious) altruism”.

David Morris represented a GP doing weekend Out of Hours work. He had been accused of issuing a series of prescriptions for long term (2-4 months) supply of high value medications including insulin, asthma inhalers, Viagra and nutritional supplements in fictitious patient names.

The prescriptions had been dispensed many weeks after their prescription at pharmacies distant from the OOH centre but close to addresses used by the doctor.

The doctor’s defence was that he had been duped either by dishonest patient relatives/friends or by dishonest healthcare workers (district or care home nurses) who had taken advantage of his lack of knowledge of UK general and OOH practice. For a decade he had practised solely as a GP with British forces in Germany.

While the Panel thought that his oral evidence had been, at times, vague and evasive it was unable to identify any personal or financial motive. Further, it noted that the prescribed drugs were not typical of those often obtained fraudulently such as opiates, strong painkillers and benzodiazepines. It accepted that he had acted in good faith on the information provided to him by the patients’ representatives.

Having found that the doctor’s fitness to practise was not impaired, the Panel went on to reject the GMC’s submission that the doctor should receive a formal warning for poor record-keeping, which he had admitted in his evidence.

It accepted the defence submission that it would be wrong to issue a warning about matters which had not been formally alleged against the doctor and about which no findings of fact had been made.

In the circumstances the Panel agreed that it did not have the power to impose a warning about matters not included in the formal allegation. In so doing the Panel expressly rejected the contrary advice of the Legal Assessor.

David Morris was instructed by Christopher Briggs and Christian Carr of DAC Beachcroft and supported by the Medical Defence Union.