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21 May 2008 : Column GC529

21 May 2008 : Column GC529

Grand Committee

Wednesday, 21 May 2008.

The Committee met at quarter to four.

[The Deputy Chairman of Committees (Baroness Gould of Potternewton) in the Chair.]

Health and Social Care Bill

(Seventh Day)

The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before we start, I have to make the usual announcement. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is rung and resume after 10 minutes. I also understand that after about two hours there will be a comfort break.

Clause 107 [Standard of proof in fitness to practice proceedings]:

On Question, Whether Clause 107 shall stand part of the Bill?

Earl Howe: We come now to the important subject of the standard of proof to be applied in fitness-to-practise proceedings and the proposal in Clause 107 to move all health regulatory bodies from the criminal to the civil standard. I approach the issue in the knowledge that the change is largely a done deal. The GMC has already decided to move across to the civil standard. It believes that this is the right thing to do for patients and that it can apply the standard in a way that is fair to doctors. Eight of the health regulatory bodies already use the civil standard, apparently without problem. So the reason for debating the clause is not to oppose the change but rather to ask questions about it.

The Government’s White Paper, Trust, Assurance and Safety, outlined the key differences between the criminal and civil standards, which I do not need to repeat. It then said that,

This is a description of the so-called sliding scale of proof. The main argument for this is that, in the adjudication of a fitness-to-practise matter, we are dealing with what is essentially a protective jurisdiction; ultimately, it is the well-being of patients that is at stake. Under the criminal standard, a doctor may survive a challenge to his continued registration and yet, at the same time, come away with serious question marks over his competence as a practitioner. The evidence given by Lady Justice Smith to the Public Bill Committee in another place made clear her support for a move to the civil standard on the grounds that it was more appropriate for offences whose gravity fell short of the seriously criminal. I understand those arguments and, intellectually at least, can sign up to them.

The questions that rear their heads are to do with the implementation of the standard. The sliding scale almost inevitably opens up scope for inconsistency

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and therefore unfairness as between different cases of a similar kind. A judgment by a panel that the allegations against a doctor are of a certain gravity and therefore merit a certain standard of proof might not be the same judgment if it were made by another panel. This underscores the need for comprehensive guidance to panels as well as thorough training for panel members. It would be helpful if the Minister could say something about this, bearing in mind that there will not always be a legally qualified person chairing the panel.

One reason why Lady Justice Smith was sanguine about the GMC moving to the civil standard was the thought that a legally qualified chairperson would be familiar with how to apply it. By implication, someone who is not legally qualified will need considerably more in the way of an induction and training. We need to be sure that this is indeed happening.

One aspect of the sliding scale that troubles me is its potential to be unclear and therefore unfair to the professional whose practice is under scrutiny. At the start of a hearing, it may not be evident how high or low the bar of proof needs to be. How can one know what evidence will be required to prove a given matter of fact until one knows how the panel views the gravity of that matter? How fair is that lack of clarity on the doctor and his defence team? Equally, facts may emerge during a hearing that serve to make the defence less or more serious in the eyes of the panel than it appeared to be at the outset. How fair is it on the doctor if the bar of proof moves down or up as the proceedings progress? How will this movement be made known to the defence team? I would be grateful if the Minister could say something about that when she replies.

The BMA has softened its opposition to the change to the civil standard, partly, I think, because it recognises reality: the GMC is going to do it. However, it has consistently voiced a concern that is harboured by many doctors, which is that lowering the bar of factual proof in certain sorts of cases will, however subtly, lead to the practice of defensive medicine. Conscientious doctors, particularly when time is of the essence, want to go the extra mile for their patients. That sometimes means taking calculated risks, which may fall outside the usual norms of professional practice but which can be justified by the gravity of the situation and the lack of worthwhile alternatives. Not always will a doctor be able to consult colleagues about these decisions and not always is informed consent from the patient possible. However, we all know that many worthwhile advances in medical and surgical practice are made by those creative and imaginative doctors who believe that a new procedure is worth a try in the interests of a patient, particularly in an emergency. How ready will doctors be to do this sort of thing in the future?

In voicing a fear about the growth of defensive medicine, we are not necessarily talking about new and adventurous procedures. A GP conducting his ordinary practice may say to himself that he should play safe by referring patients for diagnostic procedures, which he would not otherwise have done, simply for fear that a wrong decision would, on the balance of probabilities, be viewed as incompetent by

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a fitness-to-practise panel. The unintended consequences of that frame of mind would be a huge rise in referrals of every kind and description. How confident is the Minister that this will not, in fact, be the result of these measures? If she is confident, what evidence is she relying on?

It would not, after all, be odd if doctors were to react in this way. One of the justifications of the move to the civil standard was spelt out in the White Paper, which said:

If that is indeed the perception, which I do not doubt, it follows that part of the point of the change to the civil standard will be to alter perceptions in a way that encourages referrals to the GMC rather than discourages them. Doctors will not be slow to grasp this. Does the Minister expect that there will in fact be an increase in the number of referrals to the GMC arising from these changes? If so, is the GMC geared up to deal with that? I hope that she will be able to shed some light on how the Government view the introduction of the civil standard, not so much from a theoretical standpoint as from a practical one.

Baroness Finlay of Llandaff: I will speak also to the Question whether Clause 119 should stand part of the Bill. It is included in this group simply as a tidying-up exercise and to provide consistency.

My main question to the Minister is why this has to be in legislation. In another place on 15 May the Minister said:

The GMC has said in its briefing that it does not need primary legislation to implement the civil standard of proof. If it is not needed in primary legislation and can be implemented anyway, why do we need this provision in the Bill? Sufficient doubts have been raised within the profession and by others outside to make one wonder whether it would not be wiser to allow this change to happen, to let it work through and then, if problems arise, to reverse the requirement to a criminal standard of proof at all times, as that would avoid the need for primary legislation. The change is happening anyway without primary legislation.

It is worth noting that, although it has softened its approach, the BMA feels that there is a lack of confidence in this measure among doctors—a view that I echo. I draw to the Committee’s attention the fact that the Court of Appeal has registered a concern over the confusion that can arise when the civil burden of proof is imposed. The House of Lords concluded that magistrates, for example, should apply the criminal standard in all cases and avoid ever using the civil standard. Even Dame Janet acknowledged in her report on Shipman that it would be unreasonable, without a legally qualified chair, to expect a panel to use the flexible standard properly.

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It is worth noting what lawyers have done in relation to misconduct. The sliding scale of the civil standard links two extremes, the high end of which corresponds to the criminal standard—beyond reasonable doubt—while the low end corresponds to a balance of probabilities. The disciplinary tribunal of the Law Society and the Bar’s code of conduct require the application of the criminal standard of proof by tribunals dealing with misconduct of lawyers.

Courts have found it confusing when the burden of proof is undefined between the criminal and civil standards, and case law now dictates that the criminal standard of proof is to be used in disciplinary proceedings involving lawyers. There is a sense that the flexible standard could be applied fairly to the regulation of doctors but not to lawyers. The evidence used by those without judicial training and experience seems to have led to difficulties, such that lawyers are now judged only by the criminal standard of proof.

Therefore, I return to the fundamental question: do we need these clauses in the Bill? Is it wise to include them or, given that they are not needed, would it be much wiser not to have them but to allow the GMC changes to continue? I understand from the GMC that one reason why it wants to go to a civil burden of proof is that lesser sanctions would apply than someone being struck off—that is, imposing on a doctor remedial action, retraining, supervision and so on—and it feels that that would be easier. However, given that it is doing that anyway, I simply ask: why have these clauses in the Bill?

Baroness Tonge: As a member of the medical profession, although it is a long time since I practised, I was quite pleased to see this measure in the Bill. There is a tendency for doctors to put themselves on pedestals and to feel that they are a bit different from other professionals, but when we were told by the BMA—especially in its first briefing—that it would not like to move to the civil standard of proof because, if found guilty, a doctor would lose his livelihood, that seemed to me a weak argument, because that standard applies to all other health professionals. To lose your livelihood is just as important to a nurse, a physiotherapist or a pharmacist as it would be to a doctor.

I thought that the Bill would bring the medical profession into line with other professions and that we would be seen to be dealt with equally. I also thought that the civil standard of proof from the patient’s point of view—I hope that the Minister will correct me if I am wrong—allows other incidents and complaints to be considered when someone is before the panel to have their case heard. I may be wrong, but I believe that under the criminal standard evidence can be heard only on the incident that is being investigated and other complaints may not be taken into consideration. However, in cases where, for example, doctors are accused of molesting their patients and the complaint is dismissed the first time and maybe the second time and no one is quite sure about it, such complaints need to be taken into consideration. I hope that people will correct me on that or clarify the position.

My third point is about defensive medicine, which I, like everyone else, worry about. Defensive medicine is here. It has arrived and I do not think that it will be

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only this measure that makes doctors practise medicine more defensively. They will do so because there is more litigation; more people are prepared to follow the American model of suing and trying to make a bit of money if something has gone wrong in the health service. The health service does not have the funds that are available to private insurance companies to meet the demands of patients who sue, although that is another problem for another day. Defensive medicine is coming. Protocols and a lot of procedures have been introduced to do away with the need for a doctor to practise defensive medicine, whereby he knows what he has to do and the protocols that have to be followed.

I think that on the whole it is good that the Government are backing up the General Medical Council on this by bringing in this measure, but I would like to hear the Minister’s reply to the queries that have been raised.

4 pm

Baroness Cumberlege: This is a terribly difficult issue and I was interested in the questions that my noble friend and the noble Baroness, Lady Finlay, asked. We need to tease this out.

I have been thinking about my work for the Royal College of Physicians on medical professionalism. After we completed our work, we held 10 roadshows around the country, which were supported by the King’s Fund, entitled, “Do doctors have a future?”. Not surprisingly, they attracted a wide range of clinicians and managers, as well as doctors, of course. The CMO’s report, Good Doctors, Safer Patients, had just been published. We were debating a wide range of issues, particularly whether we should retain the criminal standard of proof or change it to the civil standard. That debate was before the publication of the Bill and the suggestion that there should be a new body to hear cases, the Office of the Health Professions Adjudicator, was not in contention; that part of the issue was not discussed.

I remember some heated discussions at the roadshows by members of the medical profession who said that they felt that the GMC’s sanctions were so devastating to an individual’s livelihood and their reputation that the criminal standard should of course continue. However, others, particularly NHS employers, said to us that they felt that this high hurdle could lead to a situation in which a doctor survived a challenge and remained on the register but was not trusted to look after patients safely. As I understand it—I am sure that the noble Baroness, Lady Finlay, can put me right—that was the view taken by Dame Janet Smith in her fifth report on the Shipman inquiry.

Of course it is true that other professions have disciplinary bodies that are not a criminal court. In this case, there will be no criminal consequences following an appearance before the Office of the Health Professions Adjudicator, nor will the individual face a potential loss of liberty, as they would in a criminal case. Although the standard of proof is notionally lower, it has long been accepted that, the more serious the allegation, the more onerous the consequences and the

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greater the weight of evidence needs to be before any findings can be made, even on the balance of probabilities. That is what we are dealing with—the balance of probabilities.

When a person’s livelihood and reputation are at risk, low-quality or insubstantial evidence will simply not do; evidence has to be of the highest order. In reality, that may mean requiring such good-quality evidence that the panel is satisfied that it may in effect achieve the criminal standard of proof.

The important thing in all this, however, is that the principle is different. The great strength of the civil standard of proof, which, as my noble friend said, already governs the majority of the health regulators, is that it enables flexibility in imposing sanctions. There will be an option to erase doctors from the register in worse cases, but in lesser cases conditions may be attached. That is a point made by the noble Baroness, Lady Finlay. For instance, if a surgeon’s practice in operating keyhole surgery is dangerous, that person could continue as a surgeon but could be prevented from carrying out that particular procedure. He might have to consent to retraining or supervision before continuing, but he will keep his livelihood and it will certainly be safer for patients that he has retrained or been under supervision.

As so many of the other professions, such as teachers or the police, work to the civil standard, which is also used in all family courts, I do not see why doctors should be any different, as the noble Baroness, Lady Tonge, said. Rather, I think that it would be much better for doctors and much better for patients this way. I look forward to the Minister’s comments in reply, because there are clearly questions to be answered, but my overall feeling is that we should go for this new measure.

Baroness Thornton: Clause 107 requires all the healthcare professions’ regulatory bodies and the new Office of the Health Professions Adjudicator, OHPA, to use the civil standard of proof. Clause 119 requires the General Social Care Council and the Care Council for Wales to use the civil standard of proof. In practice, most of these bodies already apply the civil standard, but this clause enshrines the civil standard in primary legislation.

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. The civil standard, on the other hand, requires the decision-maker to be satisfied on the balance of probabilities that the facts are true or the events occurred—that is, it is more likely than not that the facts are true or that the events occurred. It is important to emphasise that the change to the civil standard will not remove the need for robust evidence to support serious allegations.

So where does the standard of proof apply? There are three steps in the decision-making process. First, the panel must decide if the allegations are true. Have the facts been proven? Secondly, if the panel considers that the facts have been proven, it has to decide whether the proven facts amount to an impairment of the practitioner’s fitness to practise. Finally, having

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heard factors in mitigation and other representations, the panel must decide whether to impose a sanction on the practitioner’s registration.

The standard of proof applies only at the first stage, where the panel is deciding whether the evidence presented by either party to the hearing is true. The civil standard is not relevant at stage two, in relation to the decision that a person’s fitness to practise is impaired. That is a matter for the panel to make a judgment on, based on its expertise and knowledge. Nor does the standard of proof apply to stage three—the decision on what, if any, sanction should be imposed.

I was asked why the Government believe that the civil standard is appropriate. Let me first say that the use of the civil standard of proof reflects the nature of fitness-to-practise hearings. The hearings panel is not a criminal court and is not applying the criminal law. The purpose of the regulatory action is to protect patients, not to punish the practitioner. We agree with Lady Justice Smith that medical regulation is a protective jurisdiction and that therefore the civil standard of proof is appropriate. This argument applies equally to other professions and not just to the health professions.

I know that there have been concerns that the use of the civil standard of proof is unfair to doctors. I believe that the use of the civil standard of proof in fitness-to-practise procedures will ensure a balance between fairness to the accused practitioner and the protection of the public.

Looking at how the civil standard of proof has worked for other health profession regulators, we find no evidence that the civil standard could result in unjustified adverse findings against a doctor, as ably described to the Committee by the noble Baroness, Lady Cumberlege. There have been suggestions that the change in the standard of proof will lead to more doctors being struck off. However, as I said, the standard of proof used does not determine the sanctions imposed; it just determines the level of certainty required in establishing whether the facts or events did or did not occur. The experience of the General Dental Council, which is still in the transition stage of changing to the civil standard, is that there has been no increase in erasures.

It is not as though changing from the criminal to the civil standard of proof is something new or untried. The civil standard of proof is already used by the majority of health and social care regulators. Of the eight health regulatory bodies, only three still use the criminal standard—the General Medical Council, the General Optical Council and the Nursing and Midwifery Council. The others and the regulators of social care workers have been using the civil standard successfully.

The General Medical Council has already, independently, decided to move to the civil standard of proof ahead of being required to do so by this Bill. The move to the civil standard matches best practice in other areas. For example, the Independent Police Complaints Commission has successfully used the civil standard of proof since 1999. The civil standard

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is also used by the Solicitors Disciplinary Tribunal and by other professions, such as architects, vets, teachers, actuaries and chartered accountants.

Concerns have been raised about the possibility of panels finding it difficult to understand how to apply flexibly the civil standard. I hope that I can reassure noble Lords by saying that the General Dental Council, which, as I said, is in the transition stage of moving to the civil standard, has told us that not only are its panels coping with this very well, but they are coping very well when they still have to hear some cases under the criminal standard. That is a testament to the effectiveness of the training that the General Dental Council has provided in preparation for the change.

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