Sharing information with the police and with social services

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1 Agenda item: 6 Report title: Report by: Action: Sharing information with the police and with social services Anna Rowland, Assistant Director Policy, Business Transformation and Safeguarding, anna.rowland@gmc-uk.org, To approve Executive summary We are seeking approval of two new pieces of guidance to support staff in making decisions about sharing information with: a b The police if we have a reasonable belief that criminal conduct has taken place. The guidance is intended to help staff identify information which may need to be shared with the police and to do so appropriately ensuring any disclosure is proportionate and lawful. Social services if we believe that a child or vulnerable adult is at risk of harm. It is important that we are able to share information with other statutory bodies that have legal responsibilities to safeguard the most vulnerable members of society. Recommendations The Executive Board is asked to consider and approve: a The draft guidance on sharing information with the police (Annex A) b The draft supplementary guidance for decision makers on sharing information with the police (Annex B) c The draft guidance on sharing information with social services (Annex C) d The draft supplementary guidance for decision makers on sharing information with social services (Annex D)

2 Sharing information with the police 1 During the course of a fitness to practise investigation, we may obtain information that gives us reasonable grounds to believe that a criminal offence has been committed but that the police are not aware. Making a judgement on whether a criminal investigation is necessary is clearly the role of the police. By sharing information we enable them to do so. 2 Historically we have disclosed information on a case by case basis depending on the nature of the suspected criminal conduct. We have now developed structured guidance for staff to ensure a consistent approach on sharing information with the police. 3 We are not under any legal obligation to refer suspected criminal conduct to the police, but we have a discretionary power to do so under section 35B(2) of the Medical Act 1983 *. The scope of this power is limited to disclosing information which relates to an individual practitioner s fitness to practise if we consider it in the public interest. Although we can share information about a third party under section 35B(2), there needs to be a direct link between the events giving rise to the suspicion of criminal conduct and an allegation about a specific doctor s fitness to practise although the doctor does not need to have been involved in the conduct. 4 Where the application of section 35B(2) is unclear and we think a disclosure should be made in the public interest, given the increased risk of challenge, legal advice is required in these cases. An Assistant Director will need to document a careful assessment of the risks to any individual(s) or the wider public interest of not sharing the information against the likely impact on the person suspected of criminal conduct if a disclosure is made to facilitate the prevention, detection and prosecution of serious crime. Development of guidance on sharing information with the police 5 We have established the following key principles for inclusion in the guidance: a Our role is limited to passing information to the appropriate police force or public agency to enable them to assess if a criminal investigation should take place. * Our powers to disclose information in the public interest lie under S35B(2) of the Medical Act (1983) which states that: The General Council may, if they consider it to be in the public interest to do so, publish, or disclose to any person, information (a) which relates to a particular practitioner s fitness to practise, whether the matter to which the information relates arose before or after his registration, or arose in the United Kingdom or elsewhere 2

3 b c d e f g h i j k l We will not share information with the police which does not meet our threshold for investigation e.g. conduct that relates to a minor motoring offence. The threshold test to be applied by staff is whether there is enough information to form a reasonable belief that a criminal offence may have been committed by a doctor or third party directly involved in a fitness to practise investigation. There should be some evidence to support our belief and an allegation of criminal conduct should not be disclosed to the police if it is unsubstantiated or fanciful. We will inform the alleged victim of our intention to share information about them with the police and seek to establish their willingness to co-operate with any criminal investigation. Although we are not seeking their consent, the decision maker will take any objections they raise into account. We will not inform the alleged perpetrator as this will tip them off about possible police action and may lead them to destroy evidence or interfere with witnesses. We will consider the relevant legal considerations under article 8 of the ECHR, the Data Protection Act [to be replaced by the General Data Protection Regulation in May 2018] and the duty of confidence to ensure any disclosure is proportionate and fair. We will only disclose the information that is needed by the police to assess whether a criminal investigation is necessary and will redact any irrelevant third party information. Information will be disclosed using secure methods. We can share information with the police at any stage of an investigation and do not need to confine disclosures to serious offences. We will liaise with the Coroner if we are proposing to refer an allegation of potential gross negligence manslaughter based on seriously sub-standard clinical care. Some inappropriate relationships with patients may also be an offence under section 38 of the Sexual Offences Act 2003 and require disclosure to the police. We will monitor any resulting criminal investigation about a doctor under our fitness to practise procedures and consider if an interim order is necessary. If we obtain information about potential criminal conduct that does not relate directly to a doctor s fitness to practise, and where the application of our disclosure powers is unclear, we will obtain legal advice. Where we consider the information raises a serious risk that should be shared but there remains a question over the legal basis for sharing information, the disclosure will need to be authorised by the relevant Director. 6 Additional guidance has been developed for decision makers (Annex B) which expands on the key factors they need to consider when approving disclosures to the police. 3

4 Sharing information with social services 7 Local authorities have overall responsibility for safeguarding and promoting the welfare of all children and adults at risk of abuse and/or neglect in their area. This is made clear by the statutory functions given to them under the 1989 and 2004 Children Acts and the Care Act There will be rare circumstances where we identify information suggesting that a child or vulnerable adult may have been harmed, or is at risk of future harm and action needs to be taken to address this risk. We have therefore developed guidance for staff to ensure consistency on sharing information with social services to enable them to carry out their safeguarding responsibilities. 8 The legal basis for sharing information is limited to our discretionary power under section 35B(2) of the Medical Act * This narrows the scope of any disclosures as this section only allows for the sharing of information which relates to an individual practitioner s fitness to practise if we consider it in the public interest. There will only be limited circumstances where we can share information about a third party under section 35B(2) as there needs to be a direct link between the events giving rise to the concern and an allegation about a specific doctor s fitness to practise. 9 The guidance reflects that the risk of harm to a child or vulnerable adult may be so serious that information should still be shared with social services even if it does not sit comfortably under section 35B(2). In these cases, legal advice will be sought on whether there is an alternative legal basis for disclosure. Where we consider the information raises a serious risk that should be shared but there remains a question over the legal basis for sharing information, the disclosure will need to be authorised by the relevant Director. 10 We are liaising with other directorates to ensure that we consider sharing information raising safeguarding concerns wherever it arises in the organisation. Development of guidance on sharing information with social services 11 Following input from staff and a round table event with social services representatives from the four countries of the United Kingdom in August 2016, we established the key principles for inclusion in the guidance. These are as follows: a We will generally only share information if there is no other appropriate individual or organisation able to do so. Doctors have a professional duty to notify social services of concerns they have identified about children and vulnerable adults. * Our powers to disclose information in the public interest lie under S35B(2) of the Medical Act (1983) which states that: The General Council may, if they consider it to be in the public interest to do so, publish, or disclose to any person, information (a) which relates to a particular practitioner s fitness to practise, whether the matter to which the information relates arose before or after his registration, or arose in the United Kingdom or elsewhere 4

5 Organisations including NHS Trusts, schools and the police also have a statutory duty to share information with social services. b c d e f Before making a disclosure, we need to have a reasonable belief that an identifiable child or adult has been harmed or placed at risk of harm and there is a real possibility that the harm will occur or re-occur in the future. This belief should arise from a tangible source of evidence (for example medical records.) We will consider the relevant legal considerations under article 8 of the ECHR, the Data Protection Act [to be replaced by the General Data Protection Regulation in May 2018] and the duty of confidence to ensure any disclosure is proportionate and fair. Unless there is good reason not to do so, we will inform the vulnerable adult or those who have parental responsibility for the child about whom we have concerns of our intention to share information with social services. Although we are not seeking their consent to do so, the decision maker will take any objections they raise into account. We will only disclose the information that is needed by social services to assess the risk to an individual and will redact any unnecessary third party information. Information will be disclosed using secure methods. If we receive information that raises serious safeguarding concerns but does not relate directly to a doctor s fitness to practise, legal advice will be sought on whether there is an alternative legal basis for disclosure. Where we consider the information raises a serious risk that should be shared but there remains a question over the legal basis for sharing information, the disclosure will need to be authorised by the relevant Director. The risk to a child or vulnerable adult of not disclosing the information will need to be balanced against the impact on any individual named in the disclosure of it being shared. 12 Additional guidance has been developed for decision makers (Annex D) which expands on the key factors they need to consider when approving disclosures to social services. Equality and diversity 13 The number of disclosures to the police is likely to be too low to draw any meaningful conclusions on whether any groups with protected characteristics will be disproportionately affected by the new guidance. However, given that particular groups of doctors are over represented in our investigations, it may be that the same groups are over represented in cases where criminal conduct is identified and not already notified to the police. These groups include BME doctors, doctors who qualified overseas, male doctors and doctors over 50. Any impact on these groups is likely to be justified on the basis that there is a public interest in the police receiving information about criminal conduct. 5

6 14 We have however taken steps to mitigate against the risk of unfairness by ensuring the process for sharing information with the police is robust, objective and transparent with a clearly established threshold and additional guidance for decision makers. 15 It is anticipated that the number of disclosures to social services will be very low with probably less than 2 a year, if that. This is based on interim arrangements in place for the last three months where no potential disclosures have been flagged. Given the small numbers, it is not possible to assess whether any groups with protected characteristics will be disproportionately affected by the new guidance. However we have mitigated against the risk of unfairness by ensuring the process for sharing information is robust and clear with additional guidance provided for decision makers. Engagement 16 We obtained feedback from a representative from the National Police Chiefs Council and incorporated it into the draft guidance. We also liaised closely with internal stakeholders including the Investigation team who are likely to deal with the majority of disclosures to the police. 17 We have engaged with representatives of social services organisations in all four UK countries and obtained their feedback on the draft guidance which has been incorporated where appropriate. We also liaised closely with the Standards team as there is a crossover with their guidance for doctors on raising safeguarding concerns. A project board was attended by staff from across Fitness to Practise including Investigation, Information Governance and the Safeguarding Referral Team who have had a key role in the development of the guidance. 18 There is not anticipated to be any significant practical implications for the devolved countries in relation to sharing information with social services. We have engaged with social services organisations across all four countries to ensure we take into account regional variations in social services structures. Next steps 19 If the guidance on sharing information with the police and social services is approved, the operational processes will be implemented by the end of September. Joint staff sessions will be held to raise awareness of the new guidance. Plans are also being developed for a new e-learning module for staff to cover all the information sharing processes in Fitness to Practise. 6

7 Annex A Sharing information with the police 6 Annex A Introduction 1 During the course of an investigation, we may obtain information that gives us reasonable grounds to believe that a criminal offence may have been committed but that the police are not aware of the matter. This guidance outlines the process to be followed where information obtained during the course of a fitness to practise investigation suggests that a doctor or another party involved in the case may have engaged in criminal conduct. Its purpose is to help staff identify information which may need to be shared with the police and to do so appropriately ensuring any disclosure is proportionate and lawful. 2 Our over-arching objective is the protection of the public which includes promoting and maintaining public confidence in the profession. Although we are not under a legal obligation to share information with the police, we have the power to do so under Section 35B(2) of the Medical Act 1983 (the Act) where the information relates to a doctor s fitness to practise and if we consider it to be in the public interest. Identifying information which may need to be shared with the police 3 It is important to emphasise that it is not our role to make a judgement on whether a criminal offence has been committed. It is for the police to decide whether to investigate possible criminal conduct, the Crown Prosecution Service, Procurator Fiscal or Public Prosecution Service to decide whether to prosecute criminal offences and the Courts to determine whether it has been proved beyond reasonable doubt that an individual is guilty of a criminal offence. Our task should be limited to passing information to the appropriate police force or public agency to enable them to assess whether a criminal investigation should take place. If there is insufficient evidence to charge someone with a criminal offence, the police may still act on the information for purposes such as safeguarding e.g. by making a disclosure under s113b(4) of the Police Act 1997 (as amended) following a request for an enhanced DBS check. 4 In most cases where a referral to the police is appropriate, it will be apparent to staff that criminal conduct may have taken place. Examples of scenarios where this may apply are given below:

8 a We have received information that a doctor has prescribed medication for themselves using the names of their patients (who are unaware of the prescriptions). This could be to avoid paying prescription charges or to obtain controlled drugs for personal use. This is an allegation of professional misconduct which may also amount to criminal conduct i.e. defrauding the NHS/unlawful possession of controlled drugs and should be disclosed to the police to decide if a criminal investigation is warranted. b We have received information from a doctor s employer that they have submitted false expense claims for financial gain. This may also amount to criminal conduct, possibly theft or fraud by false representation, and the police should be notified of the information we hold. In some circumstances, it may also be appropriate to share the information with other statutory bodies such as the NHS Counter Fraud Authority. c We are aware that a doctor suspended by the Interim Orders Tribunal (IOT) has continued to prescribe medication and see patients privately while implying on their website that they are a currently registered doctor. This is potentially criminal conduct under section 49(1) of the Medical Act 1983 (as amended). In some circumstances, the doctor could also be guilty of assault or, in the case of an intimate examination, indecent assault as the patient s consent to any examination was given under false premises. d We have received information that a named individual (who is not a doctor) is offering to perform female genital mutilation (FGM) on members of the local community. Although the intelligence is about a third party, it should still be referred to the police for further investigation as potential criminal conduct. If, however, there is no direct link to a registered doctor then the procedure at paragraphs for disclosures when section 35B(2) does not apply should be followed. Information which does not need to be shared with the police 5 We should not share information with the police which does not meet our threshold for investigation. The following low level concerns are not investigated by us and should not be referred to the police in what are likely to be very rare circumstances where we have received information about a potential offence but there has not already been any kind of police involvement: any conduct amounting to a road traffic offence for which a Fixed Penalty Notice (FPN) could be issued conduct solely relating to speeding conduct that could amount to minor motoring offences where there are no aggravating circumstances, including traffic light offences, talking on a mobile A2

9 phone while driving, not wearing a seatbelt and careless driving (which is distinct from dangerous driving). urinating in public Legal basis for sharing information with the police 6 Our powers under section 35B(2) of the Medical Act 1983 (as amended) allow us to disclose information to any organisation provided that it relates to a particular practitioner s fitness to practise and we consider that it is in the public interest to do so. This is the legal basis on which we can refer potential criminal conduct to the police and covers: Information which relates to the conduct of the doctor themselves Information which relates to a third party (such as a patient or other individual involved in an investigation) but which has come into our hands during the course of a fitness to practise investigation. For the information to be shared under section 35B(2) however there must be a direct link between the potential criminal conduct and an allegation about a specific doctor s fitness to practise although the doctor does not need to have been involved directly in the criminal conduct. Threshold test 7 The test to be applied by staff is whether there is sufficient information to form a reasonable belief that a criminal offence may have been committed by a doctor or third party directly involved in a fitness to practise investigation. The following factors should be taken into account: There should be some evidence to support our belief and we should not make a referral based on information that amounts merely to an unsubstantiated or fanciful assertion. We should not take an allegation that a doctor or third party has committed a criminal offence at face value. If there is no supporting evidence, we should wait until we have some information that substantiates the allegation before making a disclosure to the police. Although some supporting evidence is required, we do not need to assess its weight and credibility before sharing the allegation with the police. Our role is to pass the information to the police and let them decide whether to pursue a criminal investigation. 8 In the first instance, staff should discuss their belief that a doctor or third party has engaged in criminal conduct with their manager and record a note of the discussion. The manager will advise on whether there are reasonable grounds to suspect that criminal conduct has occurred and whether we need to inform the alleged victim (if A3

10 any) of our intention to share the information with the police. If the manager does not believe the threshold is met, no further action will be taken. Informing relevant parties of our intention to share information with the police 9 It is important to make a distinction between the victim (if applicable) and individual who is suspected of the potentially criminal conduct. The latter will most commonly be a doctor but could also be a third party linked to our investigation. The alleged suspect should not be advised of the referral to the police if there is a risk this will alert them about a possible criminal investigation and lead them to destroy evidence, interfere with witnesses or if to do so would increase the risk of harm to the alleged victim. 10 If, however, a doctor has self-referred potential criminal conduct then it may be appropriate to inform them that we intend sharing the information with the police. We should still consider however whether there is a risk that the doctor may destroy evidence or seek to influence witnesses and each case should be assessed individually based on its circumstances. 11 Where applicable, it will usually be appropriate to write to the alleged victim(s) of the criminal conduct to advise them of our intention to share information with the police before we do so. This promotes the transparency of the process and enables the person affected to understand why the GMC wishes to share information and the implications. The alleged victim will often (but not always) be the complainant in our investigation. To avoid raising expectations that their information will be shared with the police, we should only contact the alleged victim if the matter has first been discussed with the relevant Head of Section and they have indicated a disclosure is appropriate. Our letter should include the following: details of the police force to whom we will make the disclosure confirmation of the information that will be disclosed and reassurance that it will be done in a secure manner the purpose of the disclosure and our power to make it we are sharing the information with the police to enable them to consider if a criminal offence has been committed and we have authority to make disclosures in the public interest under section 35B(2) of the Medical Act 1983 (as amended) a request to the alleged victim to confirm: - whether they have any objections to the proposed disclosure and, if so, what these are A4

11 - if they will be willing to assist with any potential criminal investigation [this information will be helpful to the police in making an initial assessment of the allegation] - if they provide consent for us to pass their contact details to the police. 12 We should also check whether the complainant/alleged victim has already reported the matter to the police or if they would prefer to do so themselves. If the police are already investigating the complaint or the alleged victim states they will report the matter themselves, we will not need to make a referral but should ask the complainant to provide the following information: the name of the police station where the complaint was made the name and contact details of the police officer with conduct of the case the unique crime reference number (URN) 13 If it is a doctor who has been reported to the police, we should then contact the Data Protection or Disclosure unit of the relevant force who will liaise with the officer leading the criminal investigation to provide regular updates on its progress. We will usually await the outcome of a police investigation before making a substantive decision on whether any action is required under our fitness to practise procedures. 14 It will not always be practicable to inform the alleged victim(s) in advance of our disclosure. For example, if we have evidence of an immediate threat to specific individuals or the wider public or the alleged criminal conduct is so serious that we cannot delay sharing information with the police. Legal considerations 15 In each case where we have a reasonable belief that criminal conduct may have occurred, we must consider the relevant legal factors before sharing this information with the police. These include article 8 of the Human Rights Act and the Data Protection Act [to be replaced by the General Data Protection Regulation in May 2018] which need to be considered to ensure that any disclosure we make is proportionate and lawful. 16 It may be necessary to obtain legal advice in particularly complex cases. Legal advice should also be sought if it is unclear whether our powers under section 35B(2) apply. This will clarify whether there is an alternative legal basis for disclosure such as our ancillary powers under Schedule 1 paragraph 9 of the Medical Act. Head of Section decision 17 For disclosures under section 35B(2), the Head of Section for the relevant operational team which identified the potential criminal conduct will make the final decision on A5

12 whether the information should be shared with the police after weighing up all the relevant factors. Supplementary guidance for decision makers is here. 18 However, in cases where we are unable to rely on section 35B(2) or its application is unclear, the decision will be escalated to the relevant Assistant Director. If there remains a question over whether there is an alternative legal basis for disclosure, the sharing of any information with the police will need to be authorised by the Director of Fitness to Practise. Please see paragraph 41. Sharing information with the police 19 We can share information with the police at any stage in our procedures if we have a reasonable belief that a doctor or third party has engaged in criminal conduct that the police are not already aware of and there is some evidence to support this belief. This could be at the beginning of our investigation and referral does not need to be delayed until our procedures have concluded or there has been a determination against the doctor. 20 It is not necessary or appropriate to send large volumes of material to the police to review when making the initial disclosure. We should send the information by a secure method and redact any third party data that is not relevant. The following information should be provided: The name of the doctor or third party A short summary of the information in our possession which gives rise to our concern that a criminal offence may have been committed. The information should be accurate and we should take reasonable steps to verify it where appropriate. We should also provide any relevant context to the allegation e.g. confirm whether the doctor or third party denies the allegation. We should also take care that the information provided is not excessive or irrelevant to the police s consideration of whether a criminal offence has been committed. A brief description of any documentary evidence we hold that supports the allegation of criminal conduct [this is to give the police an idea of what information is available so they can request it if necessary] If the complainant has indicated that they do not want to co-operate with a criminal investigation, this should be noted in our initial disclosure so the police are aware of their reluctance to be involved at the outset. 21 We can disclose any potentially criminal matters to the police and do not need to distinguish between different categories of offences according to their perceived seriousness. We should not however disclose trivial matters or those which do not meet our threshold for investigation as detailed in paragraph 5. A6

13 Clinical cases 22 It can be difficult to determine whether the care provided by a doctor to a patient who subsequently died was so far below an acceptable standard that it could be criminal and amount to an allegation of gross negligence manslaughter requiring referral to the police. It is likely that cases falling into this category will already have been referred to the Coroner because an inquest needs to take place to determine how the patient died and whether this was as a result of neglect. If the Coroner s view is that the actions of a doctor or other individual were so negligent that they caused or directly contributed to a patient s death, they will ask the police to investigate. The inquest proceedings will then be adjourned until such a time as the criminal investigation has concluded. 23 In these cases, it is more appropriate for the Coroner to refer the conduct to the police and we should take the following steps: Check whether the patient s death has already been referred to the Coroner If it has been referred, we should discuss with the Coroner s office whether a referral to the police has been considered and what the outcome was If the Coroner does not feel a referral to the police is necessary, this should be documented on file and further advice sought from the Legal team on whether we should make our own referral Where the Coroner has conducted or is conducting an inquest into the death of the patient, we should consider whether we wish to be added as an interested person in the Coroner s proceedings so that we can obtain timely disclosure of relevant information from the Coroner. Guidance on the process for applying for interested person status in fitness to practise investigations can be found here. Advice should also be sought from the Legal team if the patient s death was not referred to the Coroner but we have a reasonable belief that the care provided was so far below an acceptable standard that criminal conduct may have occurred. 24 There may also be cases where the patient did not die but the treatment provided was again so seriously below an acceptable standard that it may amount to potential criminal conduct such as wounding with intent. These cases are likely to be particularly complex and advice should be sought from the Legal team on whether it is appropriate to make a disclosure to the police. Inappropriate relationships with patients 25 Although an allegation that a doctor had an improper sexual relationship with a patient clearly represents a significant breach of GMC guidance, it would not usually amount to criminal conduct. A7

14 26 There may however be occasions when a doctor s inappropriate relationship with a patient could also constitute a criminal offence and a disclosure to the police should be considered. Section 38 * of the Sexual Offences Act 2003 ( the 2003 Act ) creates a specific offence committed by a care worker who engages in sexual activity with a person with a mental disorder who is receiving care in the setting they work in. Care workers will include doctors and nurses, in addition to care home and agency workers, whether they are working in NHS or private hospitals or GP surgeries. 27 The 2003 Act uses the definition of a mental disorder found in section 1 of the Mental Health Act 1983 which is any disorder or disability of mind. This includes schizophrenia, depression, bipolar disorder, eating disorders and dementia. The definition only includes learning disability where it is associated with abnormally aggressive or seriously irresponsible behaviour. The 2003 Act also excludes dependence on alcohol or drugs as a qualifying disorder or disability of the mind. 28 You should therefore follow the guidance at paragraphs 6-20, if you believe that the following criteria are met: a doctor or other care worker has engaged in sexual activity with a patient who suffers from a mental disorder the doctor or other care worker knew, or could reasonably have been expected to know, that the patient had a mental disorder the doctor or other care worker had, or was likely to have, regular face to face contact with the patient as part of their caring role the doctor or other care worker was/is not married to the patient and was not in a sexual relationship with them immediately before the caring relationship began [these are exceptions under the Act] The doctor does not need to have been in paid employment but could have been caring for the patient as part of a voluntary or informal role. 29 It is likely to be appropriate to seek legal advice in these cases before sharing the information with the police and to ascertain whether the complainant is willing to take part in a criminal investigation or if they have any objections to disclosure. We should take into account the impact disclosure will have on the alleged victim who may be vulnerable. * There are other offences under sections 39 to 41 of the Sexual Offences Act 2003 which don t involve the care worker actually engaging in direct sexual activity with the person with a mental disorder. They are offences of causing/ inciting sexual activity with such a person (s39), engaging in sexual activity in the presence of such a person (s40), and causing such a person to watch sexual activity (s41) A8

15 Enhanced Disclosure and Barring Service (DBS) checks 30 Even if an individual s actions do not amount to a criminal offence, the police are able in some circumstances to record information that suggests they pose a risk to children or vulnerable adults and caution needs to be exercised in allowing them to have unsupervised contact with these groups. The police may disclose this information on an individual s enhanced DBS check under s113b(4) of the Police Act 1997 even if no formal criminal action was taken against them. 31 If a doctor has formed an inappropriate relationship or otherwise behaved improperly with a child or vulnerable adult, we should therefore consider disclosing this information to the police even if we do not think it amounts to criminal conduct. In some circumstances, the criteria for a referral to the DBS may also be met and advice should be sought from the Safeguarding Referral team. Unnecessary clinical examinations which may amount to sexual assault 32 Consideration should also be given to making a disclosure to the police if we have evidence that a patient has undergone an intimate examination which was not clinically indicated. This may amount to an allegation of sexual assault requiring investigation by the police. As these cases can be complex, it will usually be necessary to have first obtained an expert report confirming that the examination was not medically necessary based on the patient s reported symptoms and the relevant clinical findings. The conclusions of the expert report and any witness statement provided by the patient should be shared with the police to enable them to assess whether a criminal investigation should be begun. 33 If we have not already taken a witness statement from the patient, this activity should be placed on hold until we have clarified with the police whether this will compromise their investigation. Information that raises both safeguarding issues and concerns about potential criminal conduct 34 There is separate guidance for staff on sharing information with social services if we identify a significant risk of harm to a child or vulnerable adult. 35 Occasionally there will be cases where the actions of a doctor or third party raise a serious safeguarding concern but may also amount to criminal conduct. For example: If a GMC expert identifies from a child s medical records that previous injuries they have suffered are not consistent with the explanation provided by their parents and are likely to have been non accidental. There is clearly a potential safeguarding risk of serious harm to the child that requires consideration by social A9

16 services but if deliberate harm has been caused by the parents, this would also amount to criminal conduct. If we receive intelligence that a doctor has been performing Female Genital Mutilation [FGM] together with the names of children who underwent the procedure. If this has occurred, the doctor and the parents of the children have committed a criminal offence. There is also a safeguarding concern that requires social services to consider if the children involved are at ongoing risk and if action is needed to protect them from further harm. If a complainant with severe learning disabilities discloses that they have been physically assaulted by their carer 36 In situations where both criminal and safeguarding concerns arise, the information should be shared with the police and social services simultaneously to enable both agencies to take any necessary action without delay. Further requests for information and monitoring any criminal investigation 37 We should co-operate with any requests from the police for further information that we hold about the conduct of a doctor or third party. However, in order to comply with the Data Protection Act 1998 ( DPA ), we should ask them to make a formal request under section 29(3) of the DPA. This provision entitles the police to obtain any information needed for the detection or prevention of crime. 38 Any requests under section 29(3) of the DPA should be referred by to the Information Access team who will collate the requested information and respond directly to the police. Their team address should be used for this purpose foi@gmc-uk.org. 39 If a criminal investigation is begun involving a registered doctor, we should monitor it by seeking regular updates from the police investigating officer. We should also consider whether we need to put our investigation on hold while we await the outcome of the judicial process. A referral to the Interim Orders Tribunal may also be indicated depending on the circumstances of the case and the seriousness of the alleged offence. Sharing information if the application of section 35B(2) is unclear 40 In order to share information under section 35B(2), there must be a direct link between the events or allegation we are asking the police to consider and an individual doctor s fitness to practise. Rarely, we may obtain information where the potential criminal conduct does not involve a doctor under investigation. If there is doubt over whether section 35B(2) is engaged, we should seek legal advice about A10

17 whether there is an alternative legal basis for disclosure such as our ancillary powers under Schedule 1 paragraph 9 of the Medical Act. 41 In these circumstances, the Head of Section should escalate the decision on whether to make a disclosure to their Assistant Director. This is because the decision to share the information is more liable to challenge if our discretionary power under section 35B(2) is unclear. The Assistant Director will need to balance the risk to an individual or the wider public of not disclosing the information against the impact on any individual named in the disclosure of it being shared with the police. In particularly complex cases where there is an unresolved question over the legal basis for sharing information, authorisation for the disclosure will also need to be given by the Director of Fitness to Practise. A11

18 Annex B Sharing information with the police Supplementary guidance for decision makers 6 Annex B Introduction 1 The purpose of this guidance is to provide additional support for decision makers by giving a detailed explanation of the key factors they must consider when deciding if information about potential criminal conduct should be shared with the police. It should be read in conjunction with the overarching guidance for staff on sharing information with the police. 2 The guidance is not intended to be exhaustive as each potential disclosure will be unique and the decision maker must consider its individual circumstances before reaching a decision. It is intended to support a consistent approach by providing lawful and proportionate principles for decision makers to adopt when disclosing information to the police. Key considerations as listed in decision template 3 A template has been developed to enable the decision maker to record their decision in a consistent way that shows they have taken all the relevant factors into account. This will provide an effective audit trail if we are challenged on a decision to share information. The template is at annex A and identifies the following as key factors: Identifying the potential criminal conduct 4 The decision maker should confirm the identity of the individual who is suspected of criminal conduct and the alleged victim (if applicable.) Reference should also be made to the evidence we have received which gave rise to the allegation of potential criminal conduct. The decision maker can do so in broad terms and does not need to give a detailed summary [this should have been completed by the referring Investigation Officer (IO) in the first part of the template.] Threshold for sharing information 5 The second question the decision maker must address is whether the threshold is met for sharing information with the police. The threshold to be applied is as follows:

19 Is there sufficient information to form a reasonable belief that a criminal offence may have been committed by a doctor or third party directly involved in a fitness to practise investigation and the police are not aware of the matter? 6 In order for it to be reasonable, there needs to be some evidence to support our belief and we should not make a referral based on information that amounts to an unsubstantiated or fanciful assertion. However, although some supporting evidence is required, we do not need to have made a judgement as to its credibility as this is a matter for the police. 7 Although we do not need to carry out detailed investigations to form a reasonable belief that a criminal offence may have been committed, we should carry out simple enquiries if they are necessary to clarify matters. This could include contacting a complainant or other party to check an important point of information. The member of staff who identified the potential criminal conduct is responsible for discreetly carrying out any further enquiries without referring to the fact we are considering a disclosure to the police. 8 If the threshold is not met then the decision maker should proceed to record their decision that no disclosure should be made to the police. There is no need to complete the rest of the form. Do we have a legal basis for disclosure under section 35B(2) of the Medical Act 1983? 9 If the threshold is met, the decision maker should go on to consider whether our discretionary power to share information under section 35B(2) of the Act is applicable. This is the relevant legal basis for disclosure and can only be used if the following criteria apply: Criteria one The information relates to an individual doctor s fitness to practise It may be necessary to obtain legal advice on the applicability of section 35B(2) powers of disclosure if the information arises in the context of a fitness to practise case (e.g. it is provided by a complainant or discovered in other investigation documents such as medical records or witness statements) but it is not clear if it relates to a doctor s fitness to practise. There should be a direct link between the information which raises a suspicion of criminal conduct and an allegation about an individual doctor s fitness to practise but the doctor does not need to be involved in the criminal conduct. Criteria two The decision maker considers it to be in the public interest to disclose the information B2

20 There is not a set definition of the public interest. However, in this context, the relevant public interest is in protecting members of the public from harm and allowing the police to carry out their statutory responsibilities to detect, prevent and prosecute crime. The Medical Act 1983 (as amended) makes it clear that public protection is the overarching objective of the GMC and that this includes protecting, promoting and maintaining the health, safety and wellbeing of the public. There is an important distinction however between what is in the public interest, and what is interesting to the public or subject to public clamour, especially in the media. The public interest test will be satisfied in circumstances where we have formed a reasonable belief that a criminal offence may have been committed and the police are not aware of the matter. If the threshold for sharing information is met, the decision maker can safely conclude it will be in the public interest to make a referral to the police so they can undertake their statutory responsibilities. Legal advice on section 35B(2) The decision maker should bear in mind that it will be necessary to obtain legal advice if there is a genuine concern over whether we can legitimately rely on section 35B(2) to share information. If we cannot, a disclosure can still be made to the police and the decision maker should proceed to complete the rest of the form. However, this is likely to attract more legal risk, so we should exercise increased caution in making a disclosure in these circumstances and would obtain legal advice before doing so. We should request that the legal advice includes consideration of whether there is an alternative legal basis for disclosure such as our ancillary powers under schedule 1 paragraph 9 of the Medical Act. Has the alleged victim raised any objections to the information being shared? 10 We will usually inform the alleged victim of the criminal conduct (where applicable) that we intend to share information about them with the police. However, this may not be possible if we have evidence of an immediate threat to specific individuals or the wider public or the alleged criminal conduct is so serious that we cannot delay sharing information with the police. 11 We will not contact the alleged victim unless an informal view has been given by the Assistant Director for Investigation and Case Review that the threshold for sharing information with the police has been met. This view may have been given verbally or through discussion. In some cases which are particularly complex or the decision is finely balanced, it may also be necessary to obtain legal advice on whether a disclosure is appropriate before notifying the alleged victim that we are minded to share information about them with the police. 12 If we have contacted the alleged victim or (more rarely) a doctor who has selfreferred criminal conduct to us, the decision maker will need to consider any objections that they have made to information about them being disclosed to the B3

21 police. This is a relevant factor in the final decision and the objections need to be weighed against the other factors in favour of disclosure including the public interest. Compliance with the Data Protection Act It is important to ensure that any disclosure is lawful and proportionate. We should only disclose the information that is needed by the police to assess whether a criminal offence has been committed. The decision maker will need to consider whether the proposed disclosure will comply with the Data Protection Act 1998 (DPA). 14 The first principle of the DPA is that personal data shall be processed fairly and lawfully. However, section 29 of the DPA provides that where personal data is processed for the purpose of the prevention or detection of crime, the processing is exempt from the first data protection principle (except that it must comply with one of the conditions of schedules 2 and 3). The most practical implication of this exemption is that we do not need to provide notification to the alleged perpetrator of the criminal conduct in relation to how their data will be used as this may give rise to tipping off concerns. 15 It is still important that the decision maker considers whether disclosure will comply with the DPA as failure to do so could lead to a civil claim by a person whose information has been improperly disclosed and potential enforcement action by the Information Commissioner s Office, including fines. This could also lead the GMC to suffer reputational damage. The decision maker must take the following into account when considering if the proposed disclosure is in accordance with the DPA: Disclosure to the police may involve more than one individual s personal data (for example, a doctor and a patient) The provisions of the DPA must be satisfied in respect of the information disclosed for each individual Information disclosed to the police about the commission or alleged commission of a criminal offence is defined as sensitive personal data under the DPA Disclosure of sensitive personal data requires additional conditions to be satisfied under schedule 3 of the DPA B4