Health and Social Care Bill

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Clause 104

Standard of proof in fitness to practise proceedings
Mr. O'Brien: I beg to move amendment No. 50, in clause 104, page 51, line 11, after first ‘to’, insert ‘the finding of facts in’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 51, in clause 104, page 51, line 12, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.
No. 57, in clause 115, page 62, line 30, at end insert—
‘(1A) Notwithstanding subsection (1) the rules of procedure in any proceeding to which subsection (1) applies shall be those which apply to criminal proceedings.’.
12.45 pm
Mr. O'Brien: We arrive at the proposed high-profile and significant change to the standard of proof. Amendments Nos. 50 and 51 are probing amendments to seek clarification on the role and nature of the civil standard of proof. They are, in part, an attempt to reflect on the face of the Bill the sliding scale with which the civil standard of proof is ostensibly applied within common law. Amendment No. 57 seeks a similar change to clause 115, which deals with the standard of proof in proceedings related to the registration of social workers.
Lady Justice Smith made three recommendations relevant to this discussion in her fifth report of the Shipman inquiry. As regards evidence, she said in recommendation 80:
“As part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene during FTP panel hearings and to ask questions if they feel that any issue is not being adequately explored.”
As regards standard of proof, she said in recommendation 81:
“The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction. It is arguable that the criminal standard of proof is appropriate in a case where the allegations of misconduct amount to a serious criminal offence.”
As regards reasons for findings of fact, she said in recommendation 83:
“FTP panels should be required to give brief reasons for their main findings of fact.”
The civil standard was taken up by the chief medical officer in “Good Doctors, Safer Patients”, as his first recommendation:
“In adjudicating upon concerns about a doctor’s performance, health or conduct, the standard of proof should be the civil standard rather than the criminal standard... This will reduce the number of cases where a doctor is not judged ‘bad enough’ to enter formal General Medical Council procedures but is still a cause of serious concern to professional colleagues, management or patients in a local service.”
Mr. O'Brien: I am grateful to my hon. Friend for that intervention. If the Minister feels it would be helpful to intervene, I am happy to give way; otherwise, I am sure that he will address the matter when he responds to the amendments. That is the test that we should apply with patients’ safety and welfare uppermost in our minds, while recognising that we are so dependent on the medical profession that we must ensure that it believes that there is trust and natural justice in this process.
As I said earlier, the civil standard was taken up by the chief medical officer in his report. That report also noted the example of New Zealand’s adjudication body, the Health Practitioners Disciplinary Tribunal, which uses the civil standard of proof. The chief medical officer noted what he saw as
“long-standing discordance in the threshold for determining an unacceptable standard of practice between the General Medical Council and the NHS employer...[which] can lead to a situation where a doctor survives a challenge to continued registration, but is not regarded as someone whom an NHS employer would trust to look after patients safely”.
He also noted that
“it is argued by some that the sanctions imposed by the General Medical Council are so devastating to an individual doctor’s livelihood and reputation that the criminal standard of proof must apply (those who advocate this cite human rights legislation when it is suggested otherwise)”.
Having said that, the chief medical officer does not make much of an argument for the civil standard beyond accepting Lady Justice Smith’s recommendation.
The Government White Paper, “Trust, Assurance and Safety”, noted the Government’s agreements with both Lady Justice Smith and the chief medical officer. Chapter 4 stated:
“The standard of proof itself refers to the level of certainty that must be achieved in order to prove disputed facts and is applied only in determining whether or not alleged facts are found proven...The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt, or they must find in favour of the health professional...Generally, the civil standard requires that the facts are judged more likely than not to be true (known as ‘the balance of probabilities’). However, the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true...The sliding civil scale is already used by the substantial majority of health regulators”
in child protection cases and employment tribunals.
Most importantly, the White Paper stated:
“There is clear legal authority that, in cases of sufficient gravity, the flexibly applied civil standard, sometimes referred to as the sliding civil standard, is virtually indistinguishable from the criminal standard. This is most likely to be applied to cases that are of sufficient gravity that a health professional might lose his or her livelihood.”
“Trust, Assurance and Safety” picked up on the theme established by Lady Justice Smith and the chief medical officer that professional regulation is a protective jurisdiction.
The White Paper also argued:
“There is currently a perception...that the criminal standard of proof...acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this results in a culture of hesitancy and reluctance to refer cases to the GMC...The perception that it is not worth taking action due to the perceived difficulties in proving allegations to the required standard of proof potentially weakens public confidence in the health regulators and threatens public health safety. It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment”.
I note with concern that, as with the creation of OHPA, the legislative move seems to be as much in response to perception as to actual fact. In an answer to a question put by me in the oral evidence session, Lady Justice Smith restated her commitment to the civil standard of proof and its location in the common law of England.
Having set out the political trajectory of the clause, it would be helpful for the Committee if the Minister were to outline the impact of the move to the civil standard, which is a point picked up by my hon. Friend the Member for Tiverton and Honiton. I want briefly to consider the standard of proof itself, in which case we can judge more carefully how long it will take to conduct FTP panels, fairness—both within and between adjudication—changes in the quality of issues referred to FTP panels and the question of defensive medicine.
On the standard of proof, it is right to draw the Committee’s attention to the written submission by the Medical Defence Union, which argues that
“the criminal standard of proof of ‘beyond reasonable doubt’ or of ‘being sure’ does not create an artificially high standard of proof as it does not equate with certainty. A reasonable doubt is the sort of doubt that might affect the mind of the person dealing with matters of importance in his own affairs”.
I believe that the relevant ruling is Walters v . the Crown 1969. There is also an interesting legal argument, which may be better pursued in another place, that the civil standard does not offer a balance of probabilities as precise as 49 to 51 per cent., as Lady Justice Smith contends. I think that that arises from rulings such as Lord Bingham in B v . Chief Constable of Avon and Somerset Constabulary 2001 and Lord Phillips in Gough v . Chief Constable of the Derbyshire Constabulary 2002.
It would be helpful if the Minister were to outline both the evidence for the move to the civil standard beyond Lady Justice Smith’s recommendation and examples where the criminal standard has led to dangerous or incompetent doctors being allowed to continue to practise. Linked to that is the question of the fair application of a sliding scale, rather than a more definite measure. Lady Justice Smith, while making it clear that she supported the move to the civil standard whether or not fitness to practise panels have legally qualified chairmen, asserted that
“a legally qualified chairman...will understand how it works.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 38.]
That poses an obvious issue of fairness between hearings, as, if the different chairs are applying the civil standard to different levels, a doctor who would be found liable under one chairman might be found not liable under another. It would be helpful if the Minister were to advise the Committee on the checks within the system, as nobody wants an increase in costly, time-consuming and psychologically wearing appeals. That is one of the key points that has arisen as result of this move.
Jeremy Wright: Does my hon. Friend agree that there may be an additional layer of complexity? We need to understand whether the sliding scale in relation to the seriousness of each case relates to the degree of professional failure or to the consequences of that professional failure, which are two separate matters and may be applied differently in different cases.
Mr. O'Brien: I am grateful to my hon. Friend, who is precisely right. The question is whether the sliding scale is geared to perception or reality—until the hearing has happened, one cannot be sure—of professional failings or the consequence of those failings. I would add a third aspect, which is the potential sanction or remedy that is within contemplation. The big question, which I put directly to Lady Justice Smith in the evidence-taking session, is how can one know what evidence will be required to prove matters of fact until and unless one knows the gravity of the matter and the range and gravity of the potential sanctions, penalties or removal of livelihood that might be at the end of the process. That is what is so difficult.
In fairness, Lady Justice Smith said in her oral evidence—one of the great benefits that we have had from that process—that she did not feel that that was something that I should be over-concerned about. She said that there has been some experience, which is part of the body of our common law, and that there is sufficient expertise. However, she linked that to having a legally qualified chair of the panel. That is why it was difficult to argue for the amendments in the order that we have discussed them today, although I understand the procedural reasons for that. In many ways, it will be helpful to go through the discussion on Report, because, as the Minister has quite fairly and properly pointed out, he has it in mind to introduce a measure on a legally qualified chair position.
I am conscious that we may be interrupted, but the issue is sufficiently important that we must ensure that we do not rush it unduly. I have made the point about fairness between hearings and between two different sets of circumstances and individuals. There has also been some question over the fairness within a hearing, particularly in relation to a standard of proof where the bar is raised ever higher as the hearing proceeds. Neither the Government briefing nor our witnesses have clarified that for us, other than the somewhat compelling assurance that Lady Justice Smith was able to command. I would be grateful, therefore, if the Minister were to touch on that specific matter in his response.
There are a couple of other areas that I want to cover, and I am happy to proceed until I am drawn up short. On quantity, Sir Graeme Catto noted during the GMC’s oral evidence that while he did not think that the move to the civil standard of proof would have “any significant effect” in terms of numbers at the serious end of the spectrum,
“there may be an impact on doctors whose practice has failed to a lesser extent”.
However, he said
“any impact is likely to be small”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 51, Q103.]
What increase in the number of fitness to practise hearings does the Minister expect to arise from the move to the civil standard? We have touched on that point before, and an answer would be welcome.
Finally, I would like to touch on defensive medicine. I do not want to be unnecessarily critical—far from it—but I thought that it was slightly unfortunate that Dr. Buckman and the BMA had not gauged more effectively whether it is an issue across the profession. While he did not make the case as effectively as he might have done, there is a justified concern.
It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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Prepared 23 January 2008