Arrested, charged, cautioned or convicted? A short guide to understanding your professional duty to self-refer

If you are a regulated professional who has recently been arrested, charged, cautioned or convicted of a criminal offence, you may be feeling anxious, stressed and uncertain about what the future holds. In addition to going through criminal proceedings, you may have concerns about the impact this may have on your professional registration and career.

As specialist fitness to practise solicitors, we understand how overwhelming this situation can be. Many professionals are unaware that involvement with the criminal justice system, whether in the UK or overseas, can trigger a duty to self-refer to their regulator, even where they have not been convicted. This brief guide explains:

• When a self-referral may be required;
• What information may need to be disclosed;
• The risks of failing to disclose relevant information;
• When a self-referral should be made; and
• The steps you should take if you find yourself in this situation.

1. When is a self-referral to your regulator required?

Whether you need to self-refer depends on your regulator’s rules and guidance. Many regulators require professionals to report criminal matters, including arrests, charges, cautions, convictions, conditional discharges and community resolutions. However, reporting obligations vary significantly, and there is no universal approach.

If you are involved in criminal proceedings, it is important to establish as early as possible whether you are under a duty to notify your regulator. Failing to disclose a matter when required may itself raise regulatory concerns and lead to allegations of dishonesty, lack of integrity or a failure to be open and cooperative. In some cases, a regulator may treat the failure to disclose more seriously than the underlying criminal offence. Nonetheless, professionals should avoid assuming that every criminal matter must automatically be reported. An unnecessary or poorly drafted self-referral can trigger unwanted scrutiny and, in some circumstances, may prejudice your position. For that reason, it is essential to understand your disclosure obligations before making a self-referral to your regulator.

2. What information needs to be disclosed to your regulator?

There is no one-size-fits-all approach to self-referral. The information that should be disclosed will depend on the specific requirements set by your regulator.

Whether you are a doctor, dentist, nurse, pharmacist or other healthcare professional, the scope of reportable matters can vary quite considerably. There can also be differences in how regulators approach lower-level offending. Whilst some regulators suggest that certain minor motoring matters, such as fixed penalty notices, will not generally require a self-referral, the specific circumstances of the offence may still be relevant. For this reason, professionals should avoid making assumptions about whether a matter is reportable. Obtaining specialist advice at an early stage can help you to establish the correct legal position and avoid unnecessary complications further down the line.

3. What may happen if you fail to disclose relevant information?

A regulator will often treat a failure to disclose relevant information as seriously, if not more seriously, than the underlying criminal matter itself.  If a regulator finds that you have deliberately failed to report a matter that should have been disclosed, this may give rise to allegations of dishonesty, lack of integrity or a failure to be open and cooperative. Such allegations can have serious and long-lasting professional consequences.

That said, it is important to strike the right balance when making a self-referral as providing insufficient information may raise concerns about transparency, whilst disclosing unnecessary information may prejudice your position in any future regulatory investigation. We frequently advise professionals who have either disclosed more information than was necessary or have made a self-referral when they were not required to do so. In some circumstances, an unnecessary self-referral can still result in a regulatory investigation being opened. It is therefore crucial to seek specialist advice before making a self-referral to enable you to understand your reporting obligations and to devise a strategy from the outset to protect your registration.

4. When should you consider making a self-referral?

There is no universal timeframe for making a self-referral. The timing will depend upon the requirements of your regulator.

For example, the GMC's guidance on Reporting Criminal and Regulatory Proceedings Within and Outside the UK requires doctors to notify it of criminal charges, cautions, convictions, criticisms made during an official inquiry and formal admissions 'without delay'. Similarly, Standard 9.5 of the Health and Care Professions Council (HCPC) Standards of Conduct, Performance and Ethics requires registrants to inform the HCPC of cautions, criminal charges and findings of guilt 'as soon as possible'.

The timing requirements for making a self-referral are often ambiguous. However, the common thread across guidance provided by several regulators is that professionals should act promptly when they become involved in the criminal justice system. Delaying disclosure or making a self-referral could adversely affect your position, which is why it is important that you seek specialist legal advice at the earliest opportunity.

5. What should you do next?

If you have been arrested, charged, cautioned or convicted of a criminal offence, it is important not to panic. Many professionals find themselves facing criminal allegations during their careers and, with the right advice and representation, it is often possible to minimise the impact on your professional registration.

Obtaining specialist legal advice at an early stage can help you understand your reporting obligations, protect your position and ensure that any self-referral is made appropriately and strategically.

Our specialist fitness to practise solicitors regularly advise healthcare professionals on self-referrals, fitness to practise investigations and criminal matters affecting their professional registration. We work closely with professionals at every stage of the process to help protect both their registration and their future career.

If you are concerned about the impact of a criminal matter on your professional registration, our regulatory team is here to help. Call us on 0161 696 6250 to discuss this further.