Intended for healthcare professionals

Feature Essay

Why do doctors in the dock face a double jeopardy?

BMJ 2020; 368 doi: (Published 31 March 2020) Cite this as: BMJ 2020;368:m1258
  1. Fiona Horlick, QC
  1. London
  1. fiona.horlickqc{at}

Experienced barrister Fiona Horlick argues that it is unfair for doctors facing criminal charges to be judged on a lower standard of proof by their regulator than trial by jury in the courts

No doctor at the beginning of their career imagines that one day they might be standing in the dock of a Crown Court facing criminal charges. Even more difficult to envisage is that after a not guilty verdict in that trial, a doctor is still likely to face another “trial” in the form of Medical Practitioners Tribunal Service (MPTS) proceedings. This is double jeopardy with the highest of stakes—but this time, without the reassurance that there will only be a conviction if the jury is sure of guilt.

The criminal justice system in England and Wales is held up as an international exemplar of a fair and just system: fair to defendants and fair to victims, with randomly chosen and incorruptible juries. Before any prosecution, an investigation is carried out by the police. The decision to prosecute is then taken by the Crown Prosecution Service, and cases must pass a two part test—that there is sufficient evidence to provide a reasonable prospect of conviction and, even if so, that there is a public interest in prosecuting.

Criminal trials are governed by rigorous rules of evidence and presided over by highly experienced judges. Guilt has to be proved by the prosecution and proved to the criminal standard of proof. This used to be known as “proof beyond reasonable doubt,” but it is now explained to juries on the basis that, to convict a defendant, they must be sure of guilt.

The same standard of proof is not required by MPTS hearings. The MPTS was created to be an independent tribunal in which the General Medical Council (GMC) is …

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