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BMA response to the GMC's consultation document on the change to the standard of proof to be used in fitness to practise hearings

1. Thank you for seeking the BMA’s comments on the GMC’s proposal to make an addition to the Fitness to Practise Rules 2004 to incorporate a new rule 34(12) to introduce the civil standard of proof at fitness to practise panel hearings when panellists are making decisions on disputed facts.
2. We must state at the outset that we do not believe that the proposal to change the standard of proof has proven merit, nor does the proposal command the confidence of doctors nor of this Association. There was strong opposition to the proposal at the BMA’s Annual Representative Meeting held in June 2007 and the responses to the Chairman of Council’s letter sent to members of the BMA on 24 September 2007 indicate that doctors are extremely worried about the implications of the change. As the Chairman said in his letter, if a doctor stands to lose his or her livelihood then nothing less than the current criminal standard will do. We believe that a lesser standard of proof could result in unjustified, adverse findings against doctors and that application of the criminal standard should be maintained when a decision is being made that would prevent a doctor from working (1) in cases in which doctors are suspended, and (2) in cases where conditions on a doctor’s registration would, in effect, prevent him/her from working. We are disappointed that the GMC is consulting on its plans about how to implement the civil standard, rather than, as a first step, seeking views on the principle of the change.
3. We have to bear in mind in the debate about the flexible application of the civil standard that fitness to practise cases which may end in sanctions short of erasure (and which will certainly not be tried on “the rigour of the criminal standard, or a standard close to it”) can have a devastating effect on a doctor’s life. Any restriction on practise, even quite limited conditions, can seriously damage a doctor’s career and often ends their full-time employment. It is also the case that any findings against a doctor could seriously compromise his/her position as a trainer, clinical director, clinical governance lead or representative medical politician and could have consequences upon a medical partnership, distinction award, promotion etc. The consultation document does not acknowledge this nor the fact that such findings will stay on a doctor’s record for a number of years, meaning that any subsequent fitness to practise finding, even if comparatively minor (and, of course, judged on the balance of probabilities) could lead to a much harsher sanction.
4. Given the deep and continuing anxieties of the medical profession about the proposed change to the standard of proof, we feel that the GMC should have put forward in its consultation document some evidence to show that the change to the standard of proof will improve the fitness to practise processes. The consultation document states, on page 1, that “It is not in patients’ or the profession’s interest if dangerous or incompetent doctors are allowed to continue to practise. It is not in patients’ or the profession’s interest if good doctors are found to be impaired when they are not.” We agree with this statement, but no evidence has been produced to back it up in the context of the standard of proof. The document implies that the use of the criminal standard has led to dangerous and incompetent doctors being allowed to continue to practise and that the use of the civil standard will reduce the instances of this. Is it being suggested in the document that the criminal standard of proof is not sensitive enough to detect poor doctors? If so, then, if it cannot be demonstrated that the change will, firstly, ensure that more doctors who have impaired fitness to practise are identified (i.e. reducing false negatives) and, secondly, that it will not increase the number of doctors erroneously restricted in practice (not increase false positives), we can find no valid argument for making the change.
5. It has been put to us that the debate about the standard of proof in some ways misses the main point which relates to the quality of evidence. Regardless of the standard of proof, the panellists can only work with the evidence that the GMC adduces and we understand that the quality of evidence (or lack of it) is what currently decides whether a case succeeds or not.
6. Paragraph 8 of the draft guidance on the application of Rule 34(12) explains “that the rigour of the criminal standard, or a standard close to it, is appropriate to fact finding where the factual allegations are so grave as to be likely to lead to erasure if proved. On the other hand, the consequences of sanctions other than erasure are less profound and the civil standard of proof can be applied more flexibly in finding facts likely to lead to less severe sanctions than erasure.” It appears from this information that the case will be prejudged depending on what sanction the GMC feels will be appropriate at its conclusion. It cannot be right for sanctions to be determined before the issue of impairment of fitness to practise.
7. Although we have been assured that, in cases where serious allegations are made, or where serious consequences will flow from adverse findings, the application of the civil standard should lead to the same result as the application of the criminal standard, there is less clarity about the standard to be applied in cases where erasure from the register is not the likely sanction. Therefore, we need to know, for example, if suspension were a possible outcome how the flexible civil standard would be adapted to the circumstances of the case in question. Clearly, guidance to panellists will be crucial in this and other regards and that is why we are very keen to work with the GMC over the preparation of such guidance.
8. It has been put to us that the flexibly applied civil standard may allow the GMC to vary the evidence depending on the level at which it wishes to pitch the evidence. Of course, if the doctor is represented at a hearing by counsel, then that can be countered, but if a doctor is not represented and not present (not uncommon) then a possible variation of the evidence would be a complicating factor for that doctor which could make it harder for him/her to have a fair hearing. In other words, introducing a varied standard of proof may make it easier for the GMC to engineer the outcome that it desires.
9. There is a growing perception among doctors that, rightly or wrongly, the change to the standard of proof will make it easier for allegations of impairment of fitness to practise to be proved against them. We are concerned that this will lead to an unhealthy climate of fear in which doctors will be reluctant to innovate and will practise defensively, which will not serve patients well. More critically, it may make doctors less willing to own up to mistakes or failings in themselves or in colleagues if they perceive that the consequences of such action will not result in fair and proportionate treatment. You will be discouraging the very behaviour that is most vital in the protection of patients
10. As will be clear from the foregoing, we have deep and abiding anxieties about the proposal to change the standard of proof used in fitness to practise hearings. Doctors continue to express their concerns to us and we have a duty to ensure that the new standard, if adopted, is properly applied. We believe that this can be achieved, principally, by ensuring that panel members are given appropriate guidance and that their decision-making is as transparent as possible. We would welcome the opportunity to be involved in drafting the guidance to fitness to practise panel members and in the formulation of training for them. We are keen, in particular, to ensure that there are safeguards to protect doctors against malicious claims or innuendo. In relation to transparency of decision making, recent cases have indicated that, although there is no statutory duty on a fitness to practise panel to give written reasons, good practice normally requires reasons to be given. Therefore, we urge the GMC to impose a requirement upon fitness to practise panels to provide written reasons for their decisions, setting out their principal findings of fact and the reasons for reaching them.