Regulation of Health and Social Care Professionals Consultation

(1) an order under section 246(2) or (3) of the Criminal Procedure (Scotland)
Act 1995 discharging the person absolutely (admonition and absolute
discharge);
(2) having accepted a conditional offer under section 302 of the Criminal
Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by
procurator fiscal);
(3) agreement to pay a penalty under section 115A of the Social Security
Administration Act 1992 (penalty as alternative to prosecution); and
(4) agreement to be bound over to keep the peace by a magistrates’ court in
England or Wales. 15
7.15 The courts have confirmed that proof of a conviction shall constitute conclusive
evidence that the practitioner is guilty of the offence and it is not possible to
challenge a criminal conviction in disciplinary procedures save in exceptional
circumstances. 16 This position has been written into some of the fitness to
practise rules. 17
7.16 Most regulators have the power to establish impaired fitness of practise by
reason of the determination of any body responsible for the regulation of a health
or social care profession to the effect that the person’s fitness to practise is
impaired. Some of the legislation also makes specific reference to the inclusion of
the person in a barred list within the meaning of the Safeguarding Vulnerable
Groups Act 2006, the Safeguarding Vulnerable Groups (Northern Ireland) Order
2006 or the Protection of Vulnerable Groups (Scotland) Act 2007. 18
7.17 The General Medical Council’s rules provide that a certificate from the other body
that made the determination “shall be conclusive evidence of the facts found
proved in relation to the determination” and the only evidence that can be
adduced in rebuttal of a determination is evidence “for the purposes of proving
that he is not the person referred to in the certificate”. 19 Not all regulators adopt
this approach however. The Nursing and Midwifery Council rules provide that
such certificates are only “admissible as prima facie evidence of the facts referred
to in the evidence”. 20 Other regulators do not make any specific provision in their
rules for the admissibility of certificates of determinations by other bodies.
15 See, for example, Dentists Act 1984, s 27(2); Opticians Act 1989, s 13D(2) and
Pharmaceutical Order 2010, SI 2010 No 231, art 51(1).
16 General Medical Council v Spackman [1943] AC 627. See also Shepherd v Law Society
[1996] EWCA Civ 977. In Scotland the corresponding references are Law Reform
(Miscellaneous Provisions) (Scotland) Act 1968, s 10; Criminal Procedure (Scotland) Act
1995, s 124(2); and Hoekstra v HM Advocate [2000] SCCR 1121, 1121.
17 For example, General Medical Council (Fitness to Practise) Rules Order of Council 2004,
SI 2004 No 2608, rr 34(3) to (5) and Nursing and Midwifery (Fitness to Practise) Rules
Order of Council 2004, SI 2004 No 1761, r 31(3).
18 For example, Health Professions Order 2001, SI 2002 No 254, art 22(1)(vi).
19
General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 No
2608, rr 34(4) and 31(5).
20
Nursing and Midwifery (Fitness to Practise) Rules Order of Council 2004, SI 2004 No
1761, r 31(4).
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