Criminal record checks

New rules mean certain "spent" criminal convictions no longer have to be declared by clinicians in England and Wales.

CRIMINAL convictions – no matter how old or how minor – have always had to be disclosed by medical and dental practitioners.

Under the system of criminal record checks clinicians have had to admit to all cautions and offences, including those that – after a period of rehabilitation – would normally be considered "spent" and could effectively then be disregarded.

Criminal record checks are most commonly initiated by potential employers and are necessary because doctors and dentists often treat children and vulnerable adults unsupervised. This makes them exempt from the Rehabilitation of Offenders Act which allows people working in most other sectors to withhold spent convictions.

But a recent change in the law in England and Wales has sparked a number of calls to MDDUS advisory teams on this topic.

In May of this year the Disclosure and Barring Service (DBS) - formerly the Criminal Records Bureau (CRB) - which carries out criminal record checks in England and Wales (but not Scotland) announced that under new rules it will now remove or "filter" certain specified old and minor offences from criminal record certificates. This means that doctors and dentists practising in England and Wales will no longer have to declare certain spent convictions.

In particular the changes affect question e55 on the DBS application for a criminal record check which asks: "have you ever been convicted of a criminal offence or received a caution, reprimand or warning?"

The DBS says: "Applicants should now ignore this question and treat this question as if they were being asked 'do you have any unspent convictions, cautions, reprimands or warnings?'"

The crucial change is in what constitutes a spent conviction. An adult conviction (at age 18 and over) will be removed from a DBS certificate if 11 years have elapsed since the date of conviction, it is the person’s only offence and did not result in a custodial sentence. For those under 18 at the time of conviction the same rules apply except that the elapsed time period is 5.5 years. An adult caution will be removed after six years have elapsed since the date of the caution (two years for those under age 18).

However, the DBS maintains a list of offences for which convictions or cautions can never be considered spent and thus removed (or filtered) from a criminal record certificate. These include serious crimes such as taking part in acts related to terrorism, murder, grievous bodily harm or sexual offences including possession of child abuse images or relating to vulnerable groups. A list of 242 such offences is maintained on the UK Government website. These offences must always be disclosed.

See further guidance on DBS filtering on criminal records checks on the GOV.UK website, and if you are in any doubt over which convictions/cautions to declare, consult an MDDUS adviser for further advice.

Note that in Scotland medical and dental practitioners must continue to disclose all cautions or convictions – including spent convictions – up front. Criminal checks north of the border are carried out under the Protecting Vulnerable Groups (PVG) Scheme which is not affected by the new DBS filtering rules.

ACTION: Be clear on what must be disclosed in criminal record checks as the law differs across the UK and note that clinicians in England and Wales no longer have to declare certain spent convictions.