The sliding scale

This is taken from the GMC today publication, the initial letter is from Nigel Dudley and the reply is from Graeme Catto:

"Dear Prof Sir Graema Catto,

Whilst I support the reforms, that have not gone far enough in places, I am concerned that the change from the criminal standard of proof to the civil standard is not being explained to the profession as clearly as it perhaps should. Terminology such as 'flexibly applied' could leave the impression that there is an intermediate standard of proof; there is no such standard of proof in English law.

It is important for the GMC to clarify that it is the evidence and the strength of evidence in a case - and not the standard of proof - where there is the flexibility.

Yours,
Nigel Dudley

Dear Dr Dudley,

Perhaps I could begin by setting out my understanding of the application of the criminal and civil standard of proof in a protective jurisdiction, such as the GMC's fitness to practice proceedings. The standard of proof applicable in criminal proceedings is proof beyond reasonable doubt; conventionally, juries are directed by judges, not to convict unless they are sure of a defendant's guilt. In civil proceedings, the standard of proof is proof on the balance of probabilities; a fact will be established if it is more likely than not to have happened.

However, leading Counsel has advised us that the civil standard of proof 'is not a rigid criterion by which facts are to be judged. It is essentially flexible and is to be tailored to the facts of any given case. As is often said, the more serious the allegation the more cogent will be the evidence required.'

He has referred us to a particularly important Court of Appeal decision in this context in R (N) v Mental Health Review Tribunal (2006) QB 468. In the judgment Lord Justice Richards noted that:

'...the essential point that runs through the authorities is that the civil standard of proof is flexible in its application and enables proper account to be taken of the seriousness of the allegations to be proved and of the consequences of proving them.'

He went on to note that English law recognises only one single standard for the civil standard, ie the balance of probabilities. However he explained that the standard was flexible in its application; 'Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application.

In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find that the allegation proved on the balance of probabilities.'

In the light of this judgement leading Counsel went on to advise us that the distinction between the criminal and civil standard of proof 'is in practice rather more apparent than real' and that the '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.'

The purpose of our fitness to practice procedures is to protect patients and the public from doctors who are impaired. The consequences of erasing a doctor from the register are profound; and the rigour of the criminal standard of proof, or a standard close to it, is appropriate when contemplating erasure. On the other hand, the consequences of sanctions other than erasure are less profound and the standard of proof can be applied more flexibly.

This flexible approach is wholly consistent with protecting patients and the public interest, and with being fair to doctors. It is for this reason that I do not believe that more doctors will be suspended or erased from the register as a result of the move to the application of the civil standard of proof. The application of the civil standard, taking into account the seriousness of the allegations and the consequences for the doctor, should lead to the same result as the application of the criminal standard.

I think it is also worth bearing in mind that the standard of proof only becomes an issue when the facts are disputed between the parties. In the majority of cases that we consider the facts are not in dispute, either because the doctor has admitted the allegations or because the doctor has agreed that his or her fitness to practice is impaired following an independent performance assessment or health examination. Yours sincerely, Graeme Catto

I am not lawyer, however something does not add up; if Graeme Catto is true in saying this:

'The application of the civil standard, taking into account the seriousness of the allegations and the consequences for the doctor, should lead to the same result as the application of the criminal standard.'

Then either there is no point in changing the standard of proof, or he is lying. I would be interested what the lawyers amongst you understand by this. I, for one, would not bet my house on Graham Catto's beliefs.