Policy responses and statements

Name of organisation:

General Medical Council

Name of policy document:

Fitness to Practise consultation: The standard of proof

Deadline for response:

2 November 2007

Background: This is the General Medical Council’s consultation on a proposed addition to the Fitness to Practise Rules 2004. The new draft Rule 34(12) introduces the civil standard of proof at Fitness to Practise panel hearings when panellists are making decisions on disputed facts.

At present, Fitness to Practise panels apply the criminal standard of proof to their factual decision making in all cases. They do this as a matter of practice rather than as a result of a statutory requirement since there is nothing in the Medical Act 1983 (as amended) or the Fitness to Practise Rules which touches on the matter.

The GMC believes that the application of the civil standard of proof more accurately reflects the true function of a GMC Fitness to Practise panel. The panel is not a criminal court and it is not applying the criminal law.

The GMC already uses the civil standard of proof in proceedings before the Investigation Committee and where there is dispute as to facts at Registration Decision Panels and Registration Appeals Panels.

COMMENTS ON
GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE CONSULTATION:
THE STANDARD OF PROOF

The Royal College of Physicians of Edinburgh is pleased to respond to the General Medical Council on the Fitness to Practise consultation: The standard of proof.

The College would like to preface its comments on the proposed rule change by emphasising the concern expressed by many doctors about the decision of the GMC Council to change the standard of proof from criminal to civil in fitness to practise cases.  Our Fellows and Members are extremely worried about the application of a sliding scale of civil proof and how this will be interpreted for difficult and disputed cases, particularly those involving tiers of issues where the actual overall probability of fault may be rather low.  The College has sought the views of our lay advisors who, although supportive of the need to protect patients, are concerned that such a rule change might encourage defensive practice, which would not be in the best interests of patients.

With regard to the rules change itself, we have a further concern.  This relates to the assurances that the sliding scale of probabilities will reflect the consequences for the doctor.  It is our understanding that the facts of the case are determined before judgement and/or sanctions are applied, and this rule change implies that judgements about the consequences for the doctor will be considered before the facts are established, and that these may in turn drive decisions about sanctions.  Paragraph 14 of the guidance tries to deal with this point, but the uncertainty leaves doctors uncomfortable about the change and worried about consistency of approach by different panels.

Accepting that the rule change may be inevitable, there may be some presentational benefit in including the undertaking of flexible application in the rule change itself, rather than the accompanying guidance.  This might improve the confidence of the profession in what is largely perceived to be a threat to doctors.

Copies of this response are available from:

Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.

Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939

[2 November 2007]