The impact of the civil standard of proof in fitness to practise hearings

The government set itself on a collision course with the British Medical Association when it announced in November's Queen's Speech its plan to abolish the criminal standard of proof in General Medical Council fitness to practise panel hearings.

The proposed Health and Social Care Bill will allow panels to decide malpractice cases using the civil standard of proof - the balance of probabilities.

The dispute pits the BMA, arguing for a robust standard of proof in cases where doctors risk losing their livelihoods, against the government and the GMC, who contend that tighter regulation is needed because of loss of public confidence in regulators following the case of Harold Shipman.

Yet little attention has focused on how panels will apply the civil standard in practice. The key concerns are:

• the civil standard may be misapplied in 'serious' cases;

• the use of the civil standard will conflict with existing procedures.

In its 2007 white paper Trust, Assurance and Safety - the regulation of health professionals in the 21st century, the Department of Health called for the use of the civil standard in regulatory proceedings across all the health professions. The GMC, Nursing and Midwifery Council and General Optical Council, the only healthcare regulators still reliant on the criminal standard, all voiced their support, influenced by the so-called flexible application of the civil standard in serious cases.

Misapplication of the civil standard in 'serious' cases

The courts historically apply the civil standard flexibly in serious cases simply by requiring stronger evidence before finding allegations proven on the balance of probabilities. In R (on the application of AN) v Mental Health Review Tribunal (Northern Region), the Court of Appeal verified that the civil standard of proof is "flexible in its application" and confirmed that the flexibility of the standard does not lie in "any adjustment to the degree of probability required for an allegation to be proved".

In other words, while serious allegations need stronger evidence, the degree of probability required to prove them is the same.

Notwithstanding this ruling, the DH misunderstands the civil standard. It erroneously considers that where allegations are serious, they must be proved to a higher degree of probability.

In Trust, Assurance and Safety, it boldly states: "The civil standard of proof can be flexibly applied, with more serious matters requiring a greater degree of probability of the evidence being true."

It is therefore crucial that the legislation clearly defines how the civil standard is applied in serious cases. Failure to do so may leave decisions open to appeal.

Conflict with existing procedures

When the civil standard comes into force, panels will have to decide when to rely on stronger evidence, and consequently when an allegation is serious.

At present, the panels' procedural rules split the decision-making process into three stages:

• first, it decides the facts;

• second, it decides whether the registrant's fitness to practise is impaired;

• third, it decides on sanction.

It is only at the second stage that the panel considers how serious an allegation is.

However, under the new rules, panels will effectively have to consider how serious an allegation is at the very first stage. To decide how much evidence is needed to prove an allegation, the panel will need to determine how serious that allegation is.

The practical implications of this change have not been thought through. From the point of view of a registrant, it presents real difficulties. Should you argue at the fact stage that the allegations are serious, and therefore require particularly strong evidence, or does that mean that you effectively admit impairment?

From the panels' point of view, the new rules raise new difficulties. If a panel decides at the first stage that an allegation is serious, does that mean it must then find the registrant is impaired at the second stage? Or, if the panel looks to the severity of the consequences to decide whether an allegation is serious, will that mean it is bound to implement those consequences when it comes to the sanction stage?

In either event, panels will be vulnerable to criticisms that, in deciding the first stage, it has effectively pre-judged the outcome of the second and third stages, and again leave decisions open to appeal.