Abstract The General Medical Council decides if, when they are convicted of a crime, a doctor in the United Kingdom should be allowed to continue in their employment. This article is the first to detail these decisions for the period 2005–15. No doctor was barred from practising medicine for serious violent and sex offences, including rape, possession of images of child sexual abuse, manslaughter and domestic violence. These findings are placed in the context of contemporary developments in criminal record reform and criminological analysis of the relationship between employment and desistance. It is concluded that the high degree of devolved discretion allowed to elite professional occupations must be subjected to further critical scrutiny and policy reform. Introduction It has been argued that much of contemporary ‘crime talk’ is dominated by highly punitive and frequently short-sighted populist crime discourses, which prioritize economic prosperity and security over human rights and social equality (Carlen 2010). A preoccupation with public protection has certainly become a ubiquitous feature of the modern governmental crime control project (e.g. see Frost 2006; Simon 2007; Wacquant 2009; Barry et al. 2013; Farrall et al. 2016). Two key penological trends are bound up with this state of affairs (Simon 2007; Garland 2012; 2013). First is the emergence of systems of punishment within western neoliberal nation-states, which rely heavily on mass penal incarceration and increased community-based sentencing, arguably without adequate consideration of the negative consequences for long-term social cohesion and equality of opportunity (Maruna 2011; Wacquant 2011; Jacobs 2015). Second is the proactive promotion by law enforcement agencies of risk identification and management technologies and strategies, targeted at identifying and managing possible future threats to public safety (Barry et al. 2013; Mythen 2014). This, in turn, has led to a growing emphasis on maximizing crime detection and prevention data resources, including the development of CCTV and surveillance technologies, ‘Big Data’, artificial intelligence and predictive policing techniques (McCulloch and Wilson 2015; Chan and Moses 2016; Williams et al. 2016). Within this context, politicians and criminal justice service leaders, particularly the police, have argued that electronic criminal record databases, including DNA databases, are important crime prevention measures for ensuring the security of all and the personal safety of the most vulnerable (Brame et al. 2015; Uggen 2016). Focusing on the second of these international trends, this article critically examines for the first time data pertaining to doctors in the United Kingdom who possess a criminal record. In doing so, it contributes to contemporary criminological debate surrounding the role of criminal records in promoting public safety. There are an estimated 10 and a half million people who possess a criminal record in the United Kingdom, which is 16 per cent of the current 64 million population (Unlock 2015). One government study for England and Wales revealed that 33 per cent of males born in 1953 had a conviction for at least one offence by the age of 53, that in 50 per cent of cases they had offended just once and that in 85 per cent of cases the offence had occurred before they were 30 years old (Ministry of Justice Statistics Bulletin 2010). It has been argued, as a result, that it is not only a matter of public safety to ensure that ex-offenders have job opportunities, it is also critical to a successful economy and the promotion of civil society (Hubbard 2014). However, in common with many other countries, ex-offenders in the United Kingdom find it difficult to find paid employment or access to training and educational opportunities. A key reason why this is the case, is that under the criminal records system relatively minor offences, such as theft, frequently engender the same social stigma and civic bars as their more serious counterparts (Rukus et al. 2016). Disbarring candidates from entry into certain workplaces or education and training, regardless of their age, the time expired since an offence or the offence type, has been increasingly subject to academic and public scrutiny in the United Kingdom over the last two decades, and furthermore, has been subject to successful legal challenge under the Human Rights Act 1998. On the 22 January 2016, the UK Court of Appeal ruled that it was contrary to article eight of the Human Rights Act 1998 for a person to be required by law to disclose multiple minor convictions regardless of the time elapsed or the personal circumstances within which an offence occurred (Rose 2016).This followed an earlier 2013 Court of Appeal ruling, which led to a number of minor convictions being deemed ‘protected’ from disclosure after 11 years for adult offenders and 5.5 years for youth offenders (Liberty 2013). Although regarded by some as being progressive reforms to the UK criminal record system (e.g. see Jackson 2014; Rose 2016), human rights advocates and penal reform activists have argued that they do not go far enough to ameliorate the long-term collateral damage to ex-offenders lives caused by officially sanctioned sentences imposed by courts, particularly if an offence occurs early in a person’s life (e.g. see Sands 2016; Unlock 2016). Nonetheless, this article contends that the UK High Court rulings underscore the need for action to be taken to ensure adequate security-based checks and balances are in place, which prioritize public safety, particularly in relation to the degree of devolved discretion permitted to some types of employers. Focusing on the medical profession as a case study to investigate how this discretion is currently applied in practice, this article contributes to the evidenced-based promotion of a more nuanced rights-based view of criminal record reform. In doing so, it seeks to develop a broader criminological conception of the relationship between work and desistance from offending behaviour, through exploring more fully the diversity of the stratified forms of employment sought by ex-offenders (Hunter 2015). Moreover, its arguments are germane to international jurisdictions, such as the United States, Canada and Australia, all of whom are currently debating similar progressive reforms to their criminal records systems (Fox 2016). Criminal histories, desistance and employment Criminal record databases are used in many countries worldwide, including Australia, Canada, Hong Kong, New Zealand, the United Kingdom and across the European Union, as well as the United States (Soloman 2012; European Commission 2016). What is included in a criminal record, who can access all or part of it, and for what purpose, varies across international jurisdictions (Fox 2016). However, regardless of the nature of their content, or the circumstances under which this is either partially or fully disclosed, criminal record databases internationally share the same underpinning common-sense assumption: past offending is the best predictor for future offending behaviour (Jacobs 2015). This assumption has been subject to critique on two key grounds by civics-focused, inclusive and reintegrative models of punishment and offender re-entry into society, as advocated by theorists such as Braithwaite (2007), Simon (2007), Wacquant (2009), Maruna (2011), Žižek (2011), Garland (2012) and Farrall et al. (2016), among others. First, scholars have contended that this assumption fails to acknowledge that there are factors other than personal character and individual intent which act to shape human behaviour, including behaviour deemed morally or criminally reprehensible, and so worthy of punishment (Loader and Walker 2007). Empirical studies have repeatedly shown that several factors other than past criminal behaviour influence an individual’s ability to desist or not from such behaviour in the future. These include addiction and substance abuse issues; lack of paid employment; poor access to training and education; a lack of family support; types of friends; and age (Markson et al. 2015; Chui 2016). Furthermore, the poorest members of society, alongside those who belong to racial and ethnic minority groups, are disproportionately represented within western criminal justice systems, and the underpinning self-justifying logic of the criminal record database perpetuates, for many of these individuals, their lived biography of social marginalization and exclusion: it confirms that they will always belong at the edges of society (Pager 2008; Henley 2014; Fox 2016). Second, the focus of the logic of the criminal record system on past behaviour has also been criticized for implicitly engendering collateral consequences that are ethically, if not legally, problematic, because they amplify punishment beyond the sanctions imposed by the criminal justice system (Uggen and Inderbitzen 2010; Uggen 2016). Chin (2012: 1798) refers to the possession of a criminal conviction as a ‘civil death’, as it brings into play wide-ranging forms of discrimination, public shaming and civic rejection, including difficulties in obtaining a visa for overseas travel and in some instances the threat of deportation; the inability to hold public office or undertake jury service; and being viewed by the insurance and banking sectors as an unsound fiscal investment (Uggen et al. 2006; Jacobs 2015). Following from this critical scholarship, criminologists concerned with promoting offender desistance from offending, such as Maruna (2001; 2011), McNeill et al. (2012), Fox (2016) and Uggen (2016), advocate reforms to criminal record systems as part of a wider critique of popular punitive approaches to crime and punishment. A growing body of desistance research emerged from the mid-1990s onwards which emphasized that employers, the economy and civil society, similar to offenders themselves, are disadvantaged by the current employment and civic-participation restrictions placed on individuals who possess criminal records, particularly if a significant period of time had elapsed since their conviction (e.g. see Visher et al. 2005; Rodriguez and Emsellem 2011; Davis et al. 2013; Hlavka et al. 2015). Yet research internationally has found that the security fears of employers and local communities leads to many ex-offenders struggling to find work, no matter how assiduous they may be, as they are often viewed as untrustworthy, unpredictable and ‘dangerous to know’ (Ramakers et al. 2015; The Sentencing Project 2015). In addition to these negative social tropes, job searches can be hampered further by fractured family and living circumstances, poor support networks, literacy and numeracy problems, and low levels of education and training, particularly if a criminal career began at a young age (Donoghue 2013). Furthermore, the post-recession competitive marketplace in the United Kingdom and other countries has seen the growth of insecure employment and the rise of the ‘zero-hour’ contract, with the result that re-entry into society via paid employment has become even more problematic for many ex-offenders (McNeill et al. 2012). Identifying a gap in the literature: professionals who commit crime It has become axiomatic within criminology that the requirement to disclose a criminal record history, whether in part or in full, when seeking to enter employment, remains a significant barrier to promoting desistance and reducing recidivism (Bath and Edgar 2010; Liberty 2013; Unlock 2015). This goes some way to explain why rights-based arguments for reform to the criminal records system in the United Kingdom have found some support for their position within the academic criminological literature (Sands 2016). Nonetheless, this article suggests that current debate and theorizing from desistance researchers has perhaps omitted to take as fully into account as it should the high level of devolved discretion possessed by some agencies which operate outside of the direct jurisdiction of criminal justice agencies—such as higher education institutions and professional regulators—when it comes to dealing with individuals who possess a criminal record. To date the published desistance research with ex-offenders has tended to focus on low-paid, low-skill forms of employment, paying very little empirical and conceptual attention to ex-offenders seeking work in highly skilled public-sector and professional occupations, such as accountancy, nursing, dentistry, social work, medicine and law (e.g. see Maruna 2001; Uggen and Manza 2002; Manza and Uggen 2006; Uggen and Inderbitzen 2010; Rodriguez and Emsellem 2011; Uggen 2016). This is because these occupations often involve working in positions of significant responsibility with vulnerable adults and children, and they therefore have restrictions placed upon entry, which makes it difficult, and in some instances impossible, for people with a conviction to become an actuary, a social worker, a lawyer or a nurse, e.g. (Unlock 2015). Yet a key outcome of the progressive reforms to the criminal record system in the United Kingdom noted at the beginning of this article is that it has led to an increase in the level of discretion public-sector and professional occupations can (and are willing to) exercise when they receive applications from individuals who possess a criminal record (Sands 2016). Especially for minor convictions for offences committed while relatively young (Jacobs 2015). Professions with a strong civic orientation, such as medicine, possess a significant degree of occupational autonomy over who is allowed to enter as well as the processes by which expulsion occurs, including when criminal convictions come to light (Chamberlain 2015). Consequently, they represent an ideal problem space for examining how much discretionary power non-state agencies should possess when dealing with individuals who possess a criminal record (Brazier and Ost 2013). Nonetheless, this article does not propose to examine the impact of criminal record reform in the United Kingdom on ex-offender entry into professional occupations. Rather, it is concerned with what happens when an individual is convicted of an offence when they already have gained entry into a highly skilled professional occupation which possesses a strong civic-minded duty to others, and which involves them working with vulnerable adults or young people. This focus enables us to examine how professional elites apply their discretion in practice and, in doing so, identify how they currently balance the need to protect the public from harm with the duty to promote the public interest through ensuring the continued provision of essential public services. Case study: medical practitioner conviction data 2005–15 The foregoing section outlined the substantive focus of this article on the degree of discretion allowed to non-criminal justice agencies when defining the future employment opportunities of members convicted of a crime. In the United Kingdom, professional regulatory bodies oversee professional occupations, controlling entry into and exit from, these occupations (Brazier and Ost 2013). This system allows them a necessary degree of autonomy and discretion over their activities, due to the highly specialized and esoteric nature of their expertise, as well as the prolonged apprenticeship period required of new members (Chamberlain 2015). For example, the health and social care professions are overseen by nine such regulators: the General Chiropractic Council; the General Dental Council; the General Medical Council; the General Optical Council; the General Osteopathic Council; the Health and Care Professions Council; the Nursing and Midwifery Council; Pharmaceutical Society of Northern Ireland; and the General Pharmaceutical Council. Each of these regulators oversees training and professional standards and maintains a register of practitioners. Most importantly, only these bodies can act to remove a practitioner from their respective registers, and furthermore, they must follow a strict regulatory process, which will only occur once the outcome of a magistrate or crown court hearing is known. How the General Medical Council administers conviction cases Similar to other professional regulators in the United Kingdom, the management of cases when a doctor receives a conviction is divided into two stages: investigation and adjudication (Chamberlain 2016). Two case examiners, who collect and review the available evidence, conduct investigations. Investigations will always result in a decision being made on the doctor’s fitness to practise. There are several categories of decision. First, an investigation can be closed with no further action or with some form of advice being issued. Second, the doctor is asked to accept a warning. This is action on registration because a warning is made available to employers and the public for five years. This occurs when the doctor has committed acts or omissions, which are serious deficiencies in practice or conduct which, if repeated, would require further action, but on this occasion there is a migrating factor impacting on the judgment which means it does not progress further. For example, it might be a first offence, which furthermore is classified as a relatively minor summary offence such as drink driving (Ashworth and Zedner 2014). Third, the doctor may be asked to accept voluntary undertakings to restrict or improve their practice, e.g. re-train or work under supervision. Fourth, a doctor may be referred to a tribunal for further consideration and adjudication. The adjudication stage involves holding a tribunal hearing. This occurs when the case examiners judge that a doctor’s actions warrant suspension or erasure from the medical register (GMC 2014b). However, not all cases considered by a tribunal result in a finding against the doctor or erasure from the medical register. Hearings are composed of a mixture of medical and non-medical lay members. The format is adversarial, with the General Medical Council’s (GMC’s) legal representative presenting evidence and argument in the public interest, and a practitioner’s legal representative similarly presenting their own argument and evidence (GMC 2014a). There are several possible tribunal outcomes: the case may be closed without sanction; a warning may be issued; restrictions may be placed on a doctor’s practice; or they may be suspended or erased from the medical register, and therefore be unable to practice medicine in the United Kingdom (GMC 2014b). Conviction type and case outcomes Contact was made with the GMC to obtain under the Freedom of Information Act (2000) the information they hold pertaining to the number of qualified doctors in the United Kingdom convicted of criminal offences, and how they administer these cases. In response, the GMC provided descriptive statistical outcome data for the period 2005–15, for the investigatory and adjudication stages of its fitness to practise procedures. Table 1 details the data obtained. In total, 1,317 doctors were convicted of 1,359 offences during this period. This is less than one per cent (0.50 per cent) of doctors on the register in 2015 (n 273,761) (Chamberlain 2016). Table 1 2005–15 outcome data for investigatory and adjudicatory stages by offence category Case management outcome Dangerous driving Motoring offences Sex offences Child sex abuse images Violence Manslaughter and murder Fraud and forgery Theft and handling stolen goods Drug offence Criminal damage Disorder offences Other offences Overseas offence Investigatory stage outcome Issue warning 269 62 20 0 107 0 20 28 16 9 6 12 1 Give advice 113 67 0 0 34 0 4 9 4 14 9 36 3 Refer to tribunal 63 13 4 5 22 4 41 9 26 4 0 12 5 Conclude with no action 47 60 6 0 27 0 5 8 5 3 14 16 1 Agree undertakings 68 1 0 1 10 0 8 5 6 5 2 4 0 Restored to register after suspension 4 1 0 0 0 0 0 0 0 0 0 0 0 Voluntary erasure 1 0 0 0 0 0 0 0 0 0 0 0 0 Total 565 204 30 6 200 4 78 59 57 35 31 80 10 Adjudication stage outcome Suspension 38 8 3 1 11 1 34 5 5 1 0 7 0 Conditions on practice 16 2 1 4 5 2 3 2 12 2 0 1 2 No impairment, but receive warning 4 2 0 0 1 0 0 2 5 1 0 0 1 Agree undertakings 0 0 0 0 1 0 0 0 2 0 0 1 0 Impairment, but no action 5 0 0 0 1 0 0 0 1 0 0 3 0 No impairment and no action 0 0 0 0 3 1 2 0 1 0 0 0 2 Erased from medical register 0 0 0 0 0 0 2 0 0 0 0 0 0 Grant restoration to register 0 1 0 0 0 0 0 0 0 0 0 0 0 Total 63 13 4 5 22 4 41 9 26 4 0 12 5 Case management outcome Dangerous driving Motoring offences Sex offences Child sex abuse images Violence Manslaughter and murder Fraud and forgery Theft and handling stolen goods Drug offence Criminal damage Disorder offences Other offences Overseas offence Investigatory stage outcome Issue warning 269 62 20 0 107 0 20 28 16 9 6 12 1 Give advice 113 67 0 0 34 0 4 9 4 14 9 36 3 Refer to tribunal 63 13 4 5 22 4 41 9 26 4 0 12 5 Conclude with no action 47 60 6 0 27 0 5 8 5 3 14 16 1 Agree undertakings 68 1 0 1 10 0 8 5 6 5 2 4 0 Restored to register after suspension 4 1 0 0 0 0 0 0 0 0 0 0 0 Voluntary erasure 1 0 0 0 0 0 0 0 0 0 0 0 0 Total 565 204 30 6 200 4 78 59 57 35 31 80 10 Adjudication stage outcome Suspension 38 8 3 1 11 1 34 5 5 1 0 7 0 Conditions on practice 16 2 1 4 5 2 3 2 12 2 0 1 2 No impairment, but receive warning 4 2 0 0 1 0 0 2 5 1 0 0 1 Agree undertakings 0 0 0 0 1 0 0 0 2 0 0 1 0 Impairment, but no action 5 0 0 0 1 0 0 0 1 0 0 3 0 No impairment and no action 0 0 0 0 3 1 2 0 1 0 0 0 2 Erased from medical register 0 0 0 0 0 0 2 0 0 0 0 0 0 Grant restoration to register 0 1 0 0 0 0 0 0 0 0 0 0 0 Total 63 13 4 5 22 4 41 9 26 4 0 12 5 View Large The outcome data obtained from the GMC provided at a broad level a description of the nature of the offence committed by a doctor: dangerous driving; motoring offences; sex offences; child pornography; violence; manslaughter/murder; fraud and forgery; theft and handling stolen goods; drug offences; criminal damage; disorder offences; overseas determination and other offences. Due to a combination of practical and cost-related factors, it was not possible to drill down further into the data set for each case and identify the exact offence classifications, as used in UK court proceedings, including the nature of the penalty tariff applied by the court.1 Nonetheless, the conviction category data do bring to the foreground several pertinent trends in relation to the types of offences committed and how the GMC responds to them. Vehicle-related offences The most prevalent convictions are vehicle-related offences, which encompass both dangerous driving and motoring offences (n 769, 57 per cent of all 1,359 cases). Motoring offences include convictions for driving without insurance or road tax, failing to stop and driving without due care and attention. Dangerous driving includes speeding offences, causing injury to others and driving under the influence of alcohol and/or drugs. Ninety per cent of vehicle-related offences (n 693) are dealt with at the investigatory stage, and result in either a warning (n 331), advice (n 180), or no further action (n 107). Ten per cent (n 76) were referred to a tribunal hearing by the case examiners. In these cases, doctors are more likely to subject to high-impact decisions that will directly affect their paid employment, with most (n 54) either being suspended for a period of time (n 38) and/or having conditions placed upon their professional practice (n 16); e.g. they may be required to attend a drug and/or alcohol treatment programme before they are able to operate on patients again. Finally, one doctor voluntarily self-erased themselves from the medical register at the investigatory stage as a result of receiving a conviction for dangerous driving. Violent and sex crime After vehicle-related offences, the most common type of convictions are violent and sex offences (n 240, 18 per cent of all 1,359 cases). This category includes violent crimes such as domestic violence and grievous bodily harm (n 200); murder and manslaughter (n 4); sex offences such as rape, voyeurism and public exposure (n 30); and the possession of images of child sexual abuse (n 6). In 85 per cent of these cases, examiners issued a warning (n 127), gave advice (n 34) or concluded their investigation with no further action (n 33). In only 15 per cent of cases (n 35) was a doctor convicted of a violent or sex crime referred to a tribunal hearing. However, for those who were referred, the majority (n 28) were either suspended for a period of time (n 16) or had conditions placed on their professional practice (n 12). Although convictions for the possession of images of child abuse or murder/manslaughter were in all but one instance immediately referred to a tribunal hearing, in half of these cases doctors had conditions placed on their practice (n 5 of 9 cases) and so were allowed to continue in their employment. One doctor had no action taken against them, in spite of possessing a conviction for murder/manslaughter. Finally, it is of note that between 2005 and 2015 no doctor was erased from the medical register and so prevented from practicing medicine in the United Kingdom, for possession of a conviction for a violent or sex crime, including for serious sex offences such as rape and the possession of images of child sexual abuse. ‘Other’ offences ‘Other’ offences account for 6 per cent (n 80) of all 1,359 cases. This covers a range of offences that do not easily fit within the other categories, including injunctions, non-molestation orders, trade description offences, perjury, perverting the course of justice and health and safety offences. Eighty five per cent of these cases (n 68) were dealt by case examiners, with the majority being given advice (n 36), issued with a warning (n 12) or agreeing undertakings (n 4). Sixteen cases were concluded with no further action. Nonetheless, tribunal cases were more likely to result in the doctor being suspended (n 7) or having conditions placed on their practice (n 1). Fraud and forgery Similar to ‘other’ offences, fraud and forgery offences account for 6 per cent (n 78) of all 1,359 cases. This covers a range of case types, from altering medical records, to creating and/or doctoring qualification certificates, making fraudulent health insurance claims, and falsifying legal and financial documents (e.g. mortgage applications). Case examiners are more likely with these offences than any other category to issue a warning against a doctor (n 20) or to refer them to a tribunal. Indeed, 53 per cent of cases (n 41) were referred to tribunal, and in 83 per cent of hearings (n 34 of 41), a doctor was suspended from the medical register. Additionally, this is the only category of offence where a doctor in the United Kingdom between 2005 and 2015 was erased from the medical register by the GMC after a tribunal hearing (n 2). Theft and handling stolen goods Theft and handling stolen goods account for 4 per cent (n 59) of all 1,359 cases. Eighty five per cent (n 50) of these cases were closed at the investigatory stage, with examiners typically issuing warnings (n 28), giving advice (n 9), agreeing undertakings (n 4) or concluding the case with no further action (n 8). However, at the tribunalstage, doctors are likely to be suspended (n 5) or have conditions placed on their future practice (n 2). Drug offences Drug offences, which include convictions ranging from the possession of illegal drugs for personal use to drug trafficking, also account for 4 per cent (n 57) of all 1,359 cases. Similar to fraud and forgery cases, case examiners tended to issue a warning (n 16) or refer drugs cases to a tribunal. Indeed, 46 per cent of these doctors (n 26 of 57) were referred to tribunal. However, instead of facing an increased likelihood of suspension, as is the case with fraud and forgery cases, in 46 per cent of these cases (n 12 of 26) tribunal hearings placed conditions on a doctor’s future professional practice. Such conditions often involve restricting their access to pharmaceuticals in the workplace as well as requiring they participate in drug counselling. Only five doctors were suspended from the register for drug offences. None were erased. Criminal damage, disorder offences and overseas determinations The three smallest categories of offences the GMC manages are criminal damage (n 35, 3 per cent of all 1,359 cases), disorder offences (n 31, 2 per cent of all 1,359 cases) and overseas determinations (n 10, <1 per cent of all 1,359 cases). This covers a number of differing case types, including anti-social behaviour orders, damage to buildings/dwellings and instances where an offence has been committed outside of the United Kingdom. Case examiners, who typically provide advice or conclude a case with no further action, predominately manage criminal damage (n 35) and disorder offences (n 31). Indeed, of these 66 cases, only 4 criminal damage cases were referred to a tribunal. Overseas offences are responded to differently, as they can cover the full range of offence types, including violent and sex offences, with the result that 50 per cent of these cases (n 5) were referred to a tribunal hearing for further consideration by case examiners. However, in three of these cases, no further action was taken, with conditions being placed on a doctor’s professional practice. No doctor was erased from the medical register for these three smallest offence categories. A rehabilitative case management pattern The management of cases by the GMC follows a distinctive pattern, as illustrated by Table 2, which details the processing outcomes for all offence categories. At the investigatory stage, in 85 per cent of cases, examiners operating without independent oversight (legal or otherwise), exercised a high degree of discretion, with the result that a doctor convicted of an offence did not need to attend a tribunal hearing and can continue in their employment. In the 15 per cent of cases where further investigation and a tribunal hearing is deemed necessary, there is a significantly increased likelihood that a doctor will be temporarily suspended for a period of time (55 per cent of all tribunal cases), or at the very least subject to oversight and monitoring (25 per cent of all tribunal cases). Nonetheless, there is a systematic reluctance to permanently prevent a doctor from practicing medicine in the United Kingdom for the possession of a criminal record, with <1 per cent (n 2) of doctors being struck off the medical register as a result of a tribunal hearing. Table 2 2005–15 investigatory and adjudicatory stages by outcome categories Investigatory stage outcome Total % Adjudication stage outcome Total % Issue warning 550 41 Suspension from register 114 55 Give advice 293 22 Place conditions on practice 52 25 Refer to tribunal for adjudication 208 15 No impairment—but issue warning 16 8 Conclude with no action 192 14 Agree undertakings 4 2 Agree undertakings 110 8 Impairment—but no action 10 5 Restored following previous suspension from register 5 0.4 No impairment—no action 9 4 Voluntary erasure from register 1 0.1 Erasure from medical register 2 1 Total number of cases (total is over 100% due to rounding up) 1359 101 Grant restoration to register 1 0.50 Total number of cases ( total is over 100% due to rounding up) 208 101 Investigatory stage outcome Total % Adjudication stage outcome Total % Issue warning 550 41 Suspension from register 114 55 Give advice 293 22 Place conditions on practice 52 25 Refer to tribunal for adjudication 208 15 No impairment—but issue warning 16 8 Conclude with no action 192 14 Agree undertakings 4 2 Agree undertakings 110 8 Impairment—but no action 10 5 Restored following previous suspension from register 5 0.4 No impairment—no action 9 4 Voluntary erasure from register 1 0.1 Erasure from medical register 2 1 Total number of cases (total is over 100% due to rounding up) 1359 101 Grant restoration to register 1 0.50 Total number of cases ( total is over 100% due to rounding up) 208 101 View Large This is indicative of a system of punishment that is mindful of the need to enact a penalty proportionately, based on the nature of the crime committed, and which seeks to promote offender reintegration and rehabilitation, as appropriate. For example, 90 per cent of vehicle-related crimes are dealt with at the investigatory stage, while more serious offences, which are perhaps more likely to be directly or indirectly linked to the workplace, notably fraud and forgery (53 per cent of cases) and drug-related offences (46 per cent of cases), are more likely to be forwarded to a tribunal hearing. However, while the fraud and forgery offences are more likely to lead to a doctor being suspended from their employment for a period of time, drug-related offences are more likely to result in a doctor having conditions placed on their professional practice. This arrangement enables them to continue to work under supervision while attending a rehabilitative counselling and support programme (GMC 2014a). This case management pattern could be dependent on the nature of the cases the GMC deals with. In 97 per cent of cases, the GMC is dealing with one-off offending behaviour, the majority of which is for vehicle-related offences such as speeding (57 per cent of all offences), which unlike fraud, forgery and drug offences e.g., arguably possesses little direct bearing to the workplace and matters of professional probity and ethics. Nonetheless, the analysis of outcome data by the offence categories supplied by the GMC does highlight notable trends in the management of cases, which require further reflection and critical consideration. Discussion The GMC administers a regulatory process whereby possession of a criminal conviction does not automatically disbar a doctor from keeping their paid employment. Indeed, the data detailed in this article suggest that the highly valued skill set possessed by doctors, rather than the nature of the offence that they have been convicted of, is actively influencing the discretionary manner by which their criminal record is dealt with by their regulatory body. Such pragmatic utilitarianism is necessary when seeking to balance the public interest with the need to ensure public protection, particularly in the context of service-oriented occupations such as medicine, which provide an essential public service. Furthermore, it follows good practice guidance in relation to criminal records and employment found within the respective contemporary legislative and academic literatures (see Rose 2016; Sands 2016; The Sentencing Project 2015; Unlock 2016). It seeks to balance the need to ensure the public are protected from possible harm with the recognition that ex-offenders can (and do) contribute to the social good and, furthermore, that maintaining paid employment significantly aides their rehabilitation and reintegration into society (Uggen 2016). Nonetheless, while the value of this approach is clear, particularly when dealing with highly skilled professionals who perform an essential public service, it is equally important given the nature of the work doctors do, to remain mindful of the need to protect the public interest first and foremost. Two key aspects of how the GMC manages convictions are important in this regard. First, only two doctors were erased by the GMC from the medical register for the period 2005–15, both of which were for fraud and forgery offences (a further third doctor self-erased themselves for the possession of a dangerous driving office). Second, 85 per cent of violent and sex crime cases were actioned by case examiners, rather than being subject to a formal tribunal hearing, and no doctor was erased from the medical register for a range of convictions which raise serious public protection concerns, including rape, the possession of images of child sexual abuse, grievous bodily harm, domestic violence and murder/manslaughter. These findings run contrary to the statutory provisions set out in the General Medical Council (Fitness to Practise) Rules 2004. These place a duty on the GMC use its discretionary powers to secure the public interest when there is a significant potential risk to members of the public of serious harm occasioned by the commission of a specified offence and, furthermore, that this discretionary action be informed by the Disclosure and Barring Service list of autobar offences; Schedule 15 Offences; Parts I and II of the Criminal Justice Act 2003; the Misuse of Drugs Act 1971; and Theft Act 1968 (GMC 2014a; 2014b). Indeed, according to these rules, the GMC should have sought to permanently erase doctors from the medical register for convictions for images of child sexual abuse, rape, serious sexual assault, murder/manslaughter and grievous bodily harm, e.g. This raises pertinent and far-reaching questions concerning the degree of unaccountable devolved discretion it currently possesses. Not least of all because a series of high-profile medical negligence and malpractice scandals over the past two decades in the United Kingdom have repeatedly highlighted serious institutional failings in the management of complaints against doctors, with the GMC being heavily criticized for appearing to be biased towards protecting the interests of medical practitioners (Chamberlain 2015). Consequently, the next section of this article contends that these findings possess implications for the regulation of doctors and high-status professional occupations more generally in the United Kingdom. Balancing the public interest with public protection A key limitation of the data obtained from the GMC for this article is that it is not possible to know why a case was managed as it was. The high-level descriptive category format in which the GMC was prepared to release its data means that it is not possible to know why, e.g., examiners referred one drug offence case to a tribunal hearing and another was dealt with by them through issuing a warning. It is, therefore, impossible to identify to what degree there is consistency or otherwise in case examiner decision-making when dealing with similar offence categories. Furthermore, only a significant amount of financial outlay would enable access to the original case file data held by the GMC, and even then, pertinent information used to inform examiner decision-making (but deemed personal to the doctor and which therefore might serve to identify them) would be redacted, e.g., court hearing details, interviews with their colleagues and information exchanges with their employer.1 The GMC and other health and social care professional regulators in the United Kingdom, which adopt a similar approach, compare highly unfavourably with regards to the availability of case information for public scrutiny, to the open justice approach adopted by Magistrate and Crown courts in England and Wales, as well as the Supreme Court (Chamberlain 2015). All of whom since 2011 have operated under an open justice policy whereby case files, decisions and judgements are all freely available and accessible online to the public (Roberts and Ashworth 2016). Significant and far-reaching questions exist in regards to the appropriateness of the lack of external scrutiny of, and the poor availability of public access to, GMC case examiner decisions. If public regulatory bodies are to engender public confidence in their decisions then they have to be transparent, publicly available and accessible (Brazier and Ost 2013). The current manner in which the GMC case examiners are able to exercise discretion without independent day-to-day scrutiny of their decisions, alongside the high costs associated with obtaining a modicum of access to the evidence on which these judgements have been made, serves to obfuscate its decision-making procedures from public view. It is arguable, therefore, that the public must have the right to greater access to the information on which courses of action have been agreed between doctors, employers and their regulatory body, particularly when they more often than not have been allowed to continue in their employment in spite of possessing a criminal record. It might be the case that it is in the public interest to take a proportionate and measured approach so a doctor is not automatically barred from practicing medicine when they commit a criminal offence, but this does not obviate the need for regulatory processes and case examiner decisions to be more readily accessible and open to public scrutiny. The medical profession has historically enjoyed a considerable degree of public trust, but a series of high-profile medical malpractice scandals over the last three decades, including at Alder Hay Children’s Hospital, Bristol Royal Infirmary, Mid-Staffordshire NHS Trust and Morecombe Bay NHS Foundation Trust, have cast a long shadow over the GMC, and how it handles complaints against doctors (see Williams et al. 2014; Chamberlain 2015).The GMC has been repeatedly accused of acting to first and foremost protect doctors, rather than the public it serves. Some patient-rights campaigners and regulatory policy analysts have called for the GMC to be abolished and replaced by a more independent regulator (see McCartney 2014). However, successive UK governments have concluded that the public interest is best served by subjecting the GMC to a process of incremental reform designed to make it more publically accountable for its decisions (Chamberlain 2016). This incremental reforming approach is congruent with white-collar crime literature pertaining to the ‘economics of punishment’ (Geis 2006; Whyte 2009). This stresses that, when it comes to highly skilled occupations that contribute significantly to the national economy and provide essential public services, there is a reluctance on behalf of political and social elites to enact punishment when infractions occur in all but the most severe cases, as the financial consequences of doing so are felt to be too high (Simpson 2013). For example, Case (2011) found in her research into clinical negligence cases that, due to the severe financial ramifications associated with stopping a trained doctor from practising medicine, in the vast majority of cases a ‘redemptive model’ of punishment is advocated by employers, medical regulatory elites and the courts. This required a practitioner subject themselves to an enhanced level of colligate and work-based supervision, as well as complete a rehabilitative skill training programme designed to address any practice-based issues raised. More punitive and therefore more costly measures, such as dismissal and in some cases imprisonment, are reserved for the most publicly sensitive cases, which often draw significant media coverage, such as is in the case of Harold Shipman, and in doing so, they serve as a symbolic reminder that justice has been done and the public protected from further harm (Quirk 2013). It is undoubtedly difficult to strike the right balance between the privacy and employment rights of a doctor, with the need to hold the behaviour of individuals who provide essential public services to a high degree of scrutiny and sanction (Henley 2014).The esoteric and often highly technical nature of modern forms of professional expertise might support the conclusion that it is in the public interest for these occupations to possess a high degree of devolved autonomy and discretion in matters concerned with the acquisition and application of professional technique, including the rehabilitative (or not) disciplining of group members when problems arise (Chamberlain 2015). However, this is not necessarily the case in regards to matters of professional probity and ethics, including when a practitioner commits a criminal offence (Whyte 2009). Indeed, the findings outlined in this article serve to illustrate that it very much is in the public interest for matters of professional probity and ethics to be subject to greater independent non-medical scrutiny and oversight. At the very least, there is a need to look again at the high level of discretion possessed by high-status professions, such as medicine, when it comes to disciplinary matters such assessing the appropriateness of continuing the employment of someone who obtains a criminal record. In particular, clarification is needed pertaining to how (and if) the thresholds for action employed by the GMC when dealing with similar cases differ depending on the kind of employment a person is looking for. The current restrictions on public access to case files and case examiner decisions make it is impossible to ascertain if the actions of the GMC are appropriate and proportionate. Indeed, at the moment, it is questionable whether it, as a self-funding professional body with limited financial resources, is best placed in all cases to independently risk-assess whether a doctor meets the threshold for re-employment when they have committed serious criminal offences. Opportunities for further criminological research The data outlined in this article suggest that ex-offenders in highly skilled occupations are seeking to either maintain their current job or re-enter the job marketplace via similar high-status employment and, furthermore, are being supported to do so by their professional regulators. It appears, therefore, that employment opportunities for ex-offenders are stratified by different occupational types and, furthermore, that the relationship between work and desistance is more complex than perhaps has previously been envisaged. The desistance literature and rights-based discourses, which critique the negative effects of the requirement to disclose criminal histories, have to date operated with a restricted conception of the types of occupational opportunities sought by ex-offenders (King 2013). There has been a tendency to focus on low-paid, low-skill forms of employment, paying little empirical and conceptual attention to ex-offenders seeking work in highly skilled public-sector and professional settings (Davis et al. 2013; Markson et al. 2015; Farrall et al. 2016). As a result, there is an important opportunity here to broaden current criminological understanding internationally of the diversity of ex-offenders experiences of seeking and maintaining paid employment, as well as in managing the social stigma and ‘civil death’ associated with the possession of a criminal record (Chin 2012). The biographical profile of a doctor convicted of a criminal offence might at first sight appear to contrast sharply with that of persistent youth or adult offenders. For example, there is a range of inhibiting factors that can influence desistance, including addiction and substance abuse issues, a lack of a persistent employment history, poor access to training and education, as well as poor family and support networks (McNeill et al. 2012; Uggen 2016). Yet the data outlined in this article revealed that some doctors are affected by key desistance factors, such as drug and alcohol abuse. Furthermore, although the GMC is predominately dealing with one-off instances of criminal behaviour, 15 per cent of doctors with a conviction (n 195 of 1,317 doctors) did have a further fitness to practise case opened against them at some point between 2005 and 2015 for reasons other than obtaining a criminal conviction, but which nonetheless could be associated with previous offending behaviour, including addiction and substance misuse, personal and family problems, and mental health issues. Finally, similar to other offenders, doctors can and do suffer from the same public shaming and civic rejection associated with the possession of a criminal history, perhaps more so given the high social regard the medical profession is held in by society (Unlock 2016). Given these considerations, this article contends that researchers would find significant value in comparatively exploring several key thematic desistance concerns with doctors in relation to other low- and high-skill occupational groupings, including first, their life course, lifestyle and pattern of offending behaviour before they were convicted of an offence; second, how they negotiate the social stigma attached to the possession of a criminal history after they have been punished for committing an offence, both in the workplace and civil society; third, what is similar/dissimilar about the cognitive and affective impact of their experience of possessing a criminal identity when compared to other types of offender; and fourth, public perceptions of ‘appropriate punitiveness’ towards offenders and how these might be shaped by the nature of their occupation. Exploring these areas would serve to expand current criminological understanding of the complex and non-linear but nonetheless frequently cyclical relationships, which research has shown to exist between crime, employment and reoffending behaviour (Jackson 2014). Finally, exploration of these thematic desistence concerns should remain mindful of the ‘economics of punishment’ literature discussed earlier in this article, to help further criminological understanding of the differing forms of ‘white coat’ crime committed by doctors, and how these compare and contrast with the types of offence committed by members of other occupational groups, both inside and outside of the workplace (Quirk 2013). Hunter (2015) notes that the respective desistence and white-collar and corporate crime literatures are often treated as if they are distinctive from one another. However, opportunities do exist to explore linkages between these literatures, particularly in relation to the regulatory handling of instances where members of different occupations have, or are in danger of obtaining, a criminal record. For example, at present little is known about the comparative impact of temporary suspensions from the workplace (which increasingly occur while regulatory and criminal investigations are being completed) on individuals who work in the banking and business sectors, the police or the health and social care professions (Case 2011; Chamberlain 2016). Yet their growing use by private- and public-sector regulatory bodies, who are increasingly acting to suspend employees as a result of finding themselves under intensive (often media-led) pressure to act to protect the public from the possibility of future harm, highlights an important new avenue for future interdisciplinary research. Conclusion In the United Kingdom, professional occupations possess considerable autonomy and control over the admission, training and disciplining of members (Chamberlain 2015). This article has focused on the high degree of discretion possessed by the medical profession when deciding if a group member should continue in their employment when they have been convicted of a criminal office. It has done so against the background of a growing international concern with the deleterious effects of the ‘civil death’ associated with possession of a criminal record (Rukus et al. 2016). Similar to other countries worldwide, the 2008 global banking crisis led to the emergence in the United Kingdom of an austerity agenda and large-scale public-sector reform (Sands 2016). Reducing the costs associated with the court, policing, prison and probation systems, has been a particular area of concern over the last decade for successive liberal-conservative and conservative governments (Farrall et al. 2016). The re-emergence of contemporary debates surrounding how the criminal records system should be reformed to the benefit of ex-offenders, civil society and the economy undoubtedly is bound up with these broader changing socio-political circumstances (Hubbard 2014). Nonetheless, although rights-based arguments for reform to the criminal records system in the United Kingdom have also found significant support for their position within the academic desistance literature, as this article has discussed, criminological research and thinking surrounding criminal record reform has arguably until now been restricted in its analytical scope because it has (perhaps understandably) emphasized examining ex-offender entry into relatively low-status, low-skill, forms of employment and training (Markson et al. 2015; Ramakers et al. 2015). In examining a previously unexplored high-status, highly skilled, occupational type for the first time, this article has contributed to criminological understanding of criminal record reform and offender reintegration into society. At first sight, a degree of practical congruence might be said to exist between the model of ex-offender case management used by the medical profession and the civics-focused, inclusive and reintegrative models of punishment and offender re-entry into society advocated by theorists such as Braithwaite (2007), Wacquant (2009), Maruna (2011), McNeill et al. (2012) and Farrall et al. (2016). Yet closer inspection of the data, which underpins this regulatory model, highlighted serious concerns surrounding a lack of necessary checks and balances needed to ensure public interest and safety needs are prioritized when professional groups exercise their discretionary privileges. Once again, the medical profession in the United Kingdom appears to be guilty of closing its ranks to protect the privileges of its members at the expense of its public responsibilities (Chamberlain 2016). In addition to these United Kingdom-specific public safety concerns, there is a broader social justice issue present in the data, which possesses significant international relevance for contemporary criminological debates surrounding employment and the disclosure of criminal histories. Indeed, a key contribution of this article is that it provides empirical evidence in support of the conclusion that employment opportunities for ex-offenders are socially stratified, and members of higher status groups appear to have greater access to them. This is a pertinent finding, as it is a common theme in the desistence and white-collar criminological literature internationally that ex-offenders from socially marginalized and excluded groups, such as racial and ethnic minorities, tend to be overrepresented in low-status, low-skilled and casual forms of employment (see Pager 2008; Hunter 2015; Delebarre 2016). The pragmatic utilitarianism, which lies at the centre of recent calls for criminal record reform and the promotion of reintegrative models of offender re-entry and rehabilitation, must emphasize equality of opportunity for all social groups and all forms of employment, if it is to act as an antidote to the exclusory and discriminatory excesses of contemporary ‘popular punitive’ approaches to crime and justice. We must be mindful of this as we seek to expand our criminological imagination through exploring with ex-offenders how they manage to doctor with conviction. Acknowledgements I would very much like to thank Prof. Mike Saks (UOS), Prof. Judith Alsop (University of Lincoln), Prof. Jane Donoghue (Swansea University), and Prof. Peter Raynor (Swansea University) for their helpful comments on earlier drafts of the paper. References Ashworth A. and Zedner L. ( 2014), Preventive Justice . Oxford University Press. Google Scholar CrossRef Search ADS Barry A. Osborne T. and Rose N. 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Institute for the Study of Civil Society. Žižek S. ( 2011), Living in the End Times . Verso. Footnotes 1 Under the Freedom of Information Act used to acquire the conviction data from the GMC, there is an exemption for requests where it would cost the public authority more than £450 to process. This is equivalent to two and half day’s work, and it would cost significantly more than this to obtain further information for all 1,359 cases for the period 2005–15. The author was also informed that certain key personally identifying information would be redacted. The GMC charge £2.25 per page for a copy of the case transcripts it holds, and these files can easily be forty pages in length. The estimated minimum cost of obtaining paper copies of all case transcripts—£141,030—was, therefore, prohibitive. © The Author(s) 2017. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: email@example.com
The British Journal of Criminology – Oxford University Press
Published: Mar 1, 2018
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