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The General Medical Council has opened a consultation on far reaching changes that would see the abandonment in the United Kingdom of the criminal standard of proof in doctors' fitness to practise hearings. It would be replaced by the civil law standard of “balance of probabilities.”
But the medical watchdog may face an uphill battle in convincing professional organisations that the new rules do not threaten their members.
The BMA and leading medical litigation insurers have issued statements that criticise the proposals. The BMA said, “It cannot be right and fair to take away someone's entire livelihood simply on the basis of the balance of probabilities. The BMA will oppose this in the strongest terms. The government should think again and maintain the criminal standard of proof where a decision is being made that would prevent a doctor from working.”
The Medical Defence Union, which indemnifies just over half of Britain's doctors and often takes part in GMC hearings, took issue with the GMC's assurance that the standard of proof will be flexible, with the bar set higher for allegations that are more serious. “The very fact that a doctor is subject to a fitness to practise hearing means there is the potential for him or her to be struck off,” the union said.
Hugh Stewart, head of case decisions at the union, said, “It can't be possible to take into account whether someone is likely to be erased or not at a time when the allegations before the GMC have not even been proven. We cannot understand how anyone can think this is right or fair. It seems nonsensical, and there are similarities with the trial in Alice in Wonderland when the Queen of Hearts proclaimed, ‘No, no! Sentence first—verdict afterwards.'”
The Medical Protection Society said it too would “continue to vigorously oppose any reduction in the standard of proof.” Its medical director, Priya Singh, said, “There is a real risk that change in the standard of proof will result in panels prejudging outcomes. This assessment inappropriately places the issue of sanction into the minds of those looking at allegations during the fact finding stage and undermines the purpose of a three stage process.”
The GMC's proposals are a response to a government white paper published on 21 February this year calling for a common standard of proof across all health professional regulators. The government hopes to include the changes in its Health and Social Care Bill, which is expected to come before parliament in the next session. Announcing the proposed change, the GMC's president, Graeme Catto, said that it would not lead to more doctors being struck off.
But Dr Singh said that the Medical Protection Society was not reassured: “We know that a lower standard of proof will be applied in less serious cases. This will inevitably lead to significantly more findings of impairment to practise; and all sanctions, including erasure, are open to the panel.”
The GMC consultation runs from 20 August to the end of October 2007. Consultation documents are at www.gmc-uk.org.