GMC approves change in the standard of proof

BMJ 2007; 335 doi: (Published 13 December 2007) Cite this as: BMJ 2007;335:1230
  1. Clare Dyer
  1. 1BMJ

    The General Medical Council approved a controversial new rule last week which will apply the lower civil standard of proof instead of the higher criminal standard at hearings to decide a doctor’s fitness to practise.

    The move to the civil standard of proof, which forms part of the Health and Social Care Bill now before parliament, is strongly opposed by the BMA. Moreover, all the medical defence organisations, which represent doctors facing disciplinary hearings, have voiced concerns about the change.

    From April 2008, when the new rule is due to come into operation, fitness to practise hearings will no longer require facts in dispute to be proved beyond reasonable doubt (the criminal standard of proof), but only on the balance of probabilities (the civil standard).

    However, the GMC insists that in the most serious cases, where a doctor’s livelihood is at risk, the change will make little difference. It has taken advice from a QC, who confirmed that case law requires the civil standard to be applied flexibly and the more serious the allegation the more cogent will be the evidence required.

    The QC, who the GMC refused to name, has told the council that in the more serious cases “application of the civil standard with the flexibility appropriate to the seriousness of the allegation and of the consequences for the practitioner should lead to the same result as would application of the criminal standard.”

    Graeme Catto, the GMC’s president, said he was disappointed the BMA did not accept the new rule: “It will allow us to address more satisfactorily some of the less serious cases that come our way and ensure that doctors abide by conditions and address their practice before things get more serious.”

    He said six of the nine healthcare regulators already used the civil standard and others would have to adopt it if the bill became law.

    Under the bill, the GMC will—from a date still to be decided—lose its right to rule on whether or not doctors are fit to practise. A new Office of the Health Professions Adjudicator (OHPA) will take decisions on conduct and fitness to practise for the healthcare professions, with the GMC and other regulatory bodies investigating and presenting cases.

    The office’s fitness to practise panels will consist of a medical or lay chair plus at least one lay and one professional member. The right of appeal against unduly lenient decisions, now with the Council for Healthcare Regulatory Excellence (CHRE), will be handed over to the GMC.

    The bill puts the GMC’s fitness to practise sanctions guidance on a statutory footing, and the Office of the Health Professions Adjudicator will be required to take account of the guidance.

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