Civil Standard of Proof

1. What change has the GMC introduced?
2. Why has the GMC moved to the civil standard of proof?
3. How has the change been introduced?
4. What is the difference between the ‘burden of proof’ and the ‘standard of proof’?
5. Will the change affect the three-stage process?
6. When did the change take effect?
7. Will there be a need for transitional arrangements?

 

What change has the GMC introduced?

 

We are introducing a provision for the use of the civil standard of proof at Fitness to Practise Panel hearings when panellists are making decisions on disputed facts.

Why has the GMC moved to the civil standard of proof?

We believe that the application of the civil standard of proof more accurately reflects the function of a GMC Fitness to Practise panel. The panel is not a criminal court and it is not applying the criminal law.

 

The GMC already uses the civil standard of proof in proceedings before the Investigation Committee and where there is a dispute as to facts at Registration Panels and Registration Appeals Panels.

 

Since 2004, our reformed Fitness to Practise procedures take a holistic approach and examine a doctor’s fitness to practise in the round. The previous demarcation between conduct cases on the one hand and health and performance cases on the other no longer exists. One effect of the change has been that health and performance cases have assumed the paraphernalia of conduct cases, including the application of the criminal standard. We believe that the criminal standard of proof is particularly inappropriate where a practitioner’s issues are health or performance related.

 

The great majority of professional tribunals in various walks of life apply the civil standard of proof. The civil standard of proof is already used by the majority of other healthcare regulators.  And the Court of Appeal has recently explained that the use of the criminal standard of proof in areas other than the criminal law is very much the exception.

 

We are committed to ensuring that our procedures are fair, objective, transparent, free from discrimination and that they command the support and confidence of all those who receive and provide healthcare across the UK.

We believe that the application of the civil standard of proof, as outlined in the supporting guidance, is consistent with protecting patients and the public interest and is, at the same time, fair to doctors.

 

The Government has said that the civil standard of proof should be the common standard for all healthcare regulators and this requirement is included in the Health and Social Care Bill which is currently going through Parliament.

How has the change been introduced?

The change has been made by way of an amendment to our Fitness to Practise Rules. We are making explicit reference to the standard of proof in our Fitness to Practise Rules for the first time by including a new rule.

 

Rule 34(12) provides: 

12. The standard of proof applicable in any proceedings—
    1. before a FTP Panel where the allegation and the alleged facts are read out by the person acting as secretary in accordance with rule 17(2)(c) on or after 31st May 2008; and
    2. before the Investigation Committee where the Presenting Officer begins to outline the allegation and the facts in accordance with rule 11(7) on or after 31st May 2008,
       
    is that applicable to civil proceedings.

 

The additional Rule is supported by guidance on applying the civil standard of proof. 

What is the difference between the ‘burden of proof’ and the ‘standard of proof’?

 

There is a clear distinction between the burden of proof on the one hand and the standard of proof on the other hand. The expression ‘the burden of proof’ refers to the requirement that, in any disciplinary proceedings, it is for the body bringing the charges to prove it. A practitioner against whom allegations are made does not have to prove anything.
We are not making any changes as far as the burden of proof is concerned. In GMC proceedings it always has been, and will remain, the case that it is for the Council, which makes the allegations, to prove them to the satisfaction of the Panel.

 

The standard of proof refers to what needs to be done in order to satisfy a tribunal of some given fact. The standard of proof is the criterion against which evidence is assessed by the body which has to come to the decision. The standard of proof applicable in criminal proceedings is proof beyond reasonable doubt; conventionally, juries are directed by judges not to convict unless they are sure of a defendant’s guilt. In civil proceedings, the standard of proof is proof on the balance of probabilities; a fact will be established if it is more likely than not to have happened.

 

The civil standard of proof is not a rigid criterion by which facts are to be judged. It is to be tailored to the nature of any given case. It is often said that the more serious the facts alleged the more cogent and compelling will be the evidence required, in other words, the evidence will need to have greater probative value.

Particularly important in this context is the decision of the Court of Appeal in R (N) v Mental Health Review Tribunal (2006) QB 468. In the judgment of the Court Lord Justice Richards noted that English law recognises only one single standard for the civil standard but he went on to explain that the standard was flexible in its application:

 

‘Although there is a single standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before the court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’

 

Recent authority clearly indicates that the fact-finding tribunal should, in applying the balance of probabilities, take into account both the seriousness of the allegation and the potential consequences of the factual finding.

 

The standard of proof only has relevance when the facts are disputed. A panel needs to decide whether the facts underpinning the allegations have been proved.  Whether or not proved facts amount to impairment are matters of judgement, not proof. Any decision on sanction is also a matter of judgement, not proof.

 

In many fitness to practise cases, the facts are not in dispute, either because the doctor has admitted the allegations or where the evidence before the panel or committee relates to a criminal conviction or a determination by another regulatory body.

The standard of proof is not relevant for the making of interim orders where no findings of fact are made.

Will the change affect the three-stage process?

 

Rule 17(2) of the Fitness to Practise Rules provides for a three-stage process before a panel reaches a determination. The panel must decide:

1. whether the facts alleged have been found proved
2. whether, on the basis of the facts found proved, the doctor’s fitness to practise is impaired
   
3. if so, whether any action should be taken against the doctor’s registration.

The application of the standard of proof applies to the first stage only. The question of whether or not, in the light of those findings, a practitioner’s fitness to practise is impaired is a matter of judgement in respect of which the standard of proof is not relevant. The same is true as far as a decision on sanction is concerned.

 

In relation to the first stage, when reaching a decision on whether the facts have been found proved, the panel must have in mind the seriousness of the allegations and the seriousness of the potential consequences if the allegations are found proved.

 

The decision as to sanction (or consequences for the doctor) will only take place at the third stage of the process once both parties have had an opportunity to make further submissions on the appropriate outcome. Considering the seriousness of the potential consequences for the doctor during the fact finding stage does not mean that panels undertake their consideration about sanction at this earlier point in the process. In this context, the seriousness of the potential consequences is simply a corollary of the seriousness of the allegations presented to the panel.

When did the change take effect?

The new rule took effect from 31 May 2008.  The civil standard of proof will apply to all fact finding by a FTP Panel in every case where the charge has been read on or after 31 May 2008, irrespective of when the underlying complaint may have been made and any prior steps in the proceedings.

Will there be a need for transitional arrangements?

No.  Rule 34(12) makes it clear to which cases being considered by the GMC at the date of implementation the rule will apply.

 

Rule 34(12):

1. In the case of hearings before Fitness to Practise Panels, 34(12) will apply to those cases in which the allegation is or had been read out by the person acting as secretary pursuant to rule 17(2)(c) on or after  31st May 2008.
2. In the case of hearings before the Investigation Committee, 34(12) will apply to those cases in which the Presenting Officer has begun to outline the allegation pursuant to rule 11(7)(a) on or after 31st May 2008.