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Draft guidance on the application of Rule 34(12)

1. Rule 34(12) provides for the standard of proof to be applied by panellists and members of the Investigation Committee when making findings of fact and clarifies to which cases being considered by the GMC at the date of implementation the rule will apply:

"(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.”

2. 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. Those bare statements of the two standards do, however, suggest a distinction which is in some circumstances in practice more apparent than real and panellists and Committee members should have particular regard to the relevant case-law.
   
   
3. Rule 34(12) makes express reference to the standard applicable to the findings of fact before a Fitness to Practise panel (including reviews and restoration hearings) or the Investigation Committee. This makes it clear that it is only in that connection that the standard of proof has relevance. Whether or not proved facts amount to, for example, impairment are matters of judgement not proof: CRHCP v GMC and Biswas (2006) EWHC 464 (Admin).
   
   
4. Similarly, the standard of proof will not be relevant to the making of interim orders as there will be no findings of fact to be made. Neither will it be relevant where there is no dispute as to the facts where, for example, 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. Production of a certificate of conviction or determination by another regulatory body is conclusive evidence of the facts found proved in relation to that conviction or determination (See Rule 34(3) and (4)).

The flexible application of the civil standard

5. 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.
   
   
6. 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 emphasised that English law recognises only one single civil standard but he went on to explain the way in which it is applied in practice:
   

   '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.’

7. Recent authorityclearly indicates that the fact-finding tribunal should, in assessing the balance of probabilities, take into account both the seriousness of the allegation and the potential consequences of the factual finding when making decisions on disputed facts.

The three-stage process

8. Rule 17(2) of the Fitness to Practise Rules provides for a three-stage process before a panel reaches a determination. Once the panel has heard the evidence, it 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.
   
   
9. 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. This is also a matter of judgement where the panel must consider that the action it proposes to take is sufficient to protect patients and the public interest and must act within the framework set out by the GMC and reflected in the Indicative Sanctions Guidance.
   
   
10. 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. Where the allegations are so serious that erasure is a potential outcome, panellists should expect convincing evidence proportionate to the gravity of the allegations before finding an allegation proved.
    
    
11. Of course, 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 on sanction at this earlier point in the process. In this context, the seriousness of the potential consequences for the doctor is simply a corollary of the seriousness of the allegations presented to the panel.