Doctors' leaders and legal experts say that government plans to lower the level of proof needed to convict doctors of professional misconduct are unfair and probably unworkable.
Gordon Brown, the prime minister, last week announced details of a new Health and Social Care Bill, which will be introduced in the next parliament. At the heart of the bill will be a shake-up of the regulation of the medical profession.
The proposed reorganisation was announced by the chief medical officer, Liam Donaldson, a year ago (BMJ 2006;333:163, doi: 10.1136/bmj.333.7560.163). He proposed that key aspects of the General Medical Council's regulatory role would be diminished. The council would no longer act as prosecutor, judge, and jury in cases concerning doctors' fitness to practise. Instead it would be responsible solely for assessment and investigation; an independent tribunal would determine guilt or innocence.
Most controversial, however, was the proposal that the burden of proof needed should be lowered from the criminal one of beyond all reasonable doubt to the civil standard of balance of probability. This would make it easier to strike off practitioners in some cases.
After Mr Brown announced the forthcoming bill the BMA immediately vowed to fight to retain the criminal burden of proof in misconduct cases. The BMA's chairman, Hamish Meldrum, said, “The BMA's members have made it very clear that they are against using a balance of probabilities—the civil standard of proof—to take away a doctor's livelihood.
“Nothing less than the criminal standard of proof—beyond reasonable doubt—is acceptable. This does not jeopardise patient safety but maintains a system in which both the public and the profession can have confidence that fairness and justice will be delivered.”
Frances Blunden, of the Consumers' Association, said the scale of the proposed changes had been exaggerated. Referring to the white paper's call for a “sliding scale” on the burden of proof, she said: “A higher, criminal standard of proof will be retained for cases where there's a threat of erasure from the register.”
However, she called on ministers to ensure that the lower, civil standard was required in all professional misconduct cases.
She said, “If it's about protecting the patient, then if there's any reasonable doubt and you think on the balance of probabilities that that person has done what he or she has been accused of, then that person should not be allowed to practise.”
However, Hugh Stewart, a medicolegal adviser to the Medical Defence Union, said that the notion of a “sliding scale” in which a greater degree of probability is required for more serious cases might prove unworkable in practice.
“If a sliding civil standard of proof were to be introduced then the procedure for deciding which standard should be applied to which allegations would need to be fair, open, and transparent and able to withstand potential legal challenge,” Dr Stewart said.
“Many questions remain outstanding, such as: how will the GMC achieve this and what steps will it put in place to ensure that decisions are made consistently? And what safeguards will be in place to ensure that a doctor's ability to continue to practise is not prejudiced by the application of the wrong standard of proof?”
A senior official at the Department of Health said that the standard of proof to be applied would be decided on a “case by case basis.”