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.”
Angela
Browning (Tiverton and Honiton) (Con): Does my hon. Friend
think that it would be helpful if the Minister were to give us some
guidance on how that
change will be implemented, so that doctors understand that although it
is a change from the criminal standard to the civil standard, the
longer-term consequence could still be that a doctor is found unfit to
practise? Has he had discussions with the GMC and the BMC about how
doctors will prepare for such cases? Although a lot of the drivers in
this part of the Bill have come from some high profile and tragic
cases, in the interests of natural justice, what guidance will be given
to doctors to ensure that they have the right preparation and support
to ensure that they put the evidence in a timely way, given the
potential long-term
consequences?
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.
Delay
is also something with which we must be concerned. It is plausible that
hearings will take longer under the civil standard of proof,
particularly at the
beginning. Has the Minister looked at the pace at which hearings under
the civil standard take place, both in our regulators and other
countries, and does he expect either a temporary or permanent increase
in the length of time taken? In light of that, what training will be in
place for those who sit on fitness to practise panels? 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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