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Health and Social Care Bill

We come now to the important subject of the standard of proof to be applied in fitness-to-practise proceedings and the proposal in Clause 107 to move all health regulatory bodies from the criminal to the civil standard. I approach the issue in the knowledge that the change is largely a done deal. The GMC has already decided to move across to the civil standard. It believes that this is the right thing to do for patients and that it can apply the standard in a way that is fair to doctors. Eight of the health regulatory bodies already use the civil standard, apparently without problem. So the reason for debating the clause is not to oppose the change but rather to ask questions about it. The Government’s White Paper, Trust, Assurance and Safety, outlined the key differences between the criminal and civil standards, which I do not need to repeat. It then said that, "““the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true””." This is a description of the so-called sliding scale of proof. The main argument for this is that, in the adjudication of a fitness-to-practise matter, we are dealing with what is essentially a protective jurisdiction; ultimately, it is the well-being of patients that is at stake. Under the criminal standard, a doctor may survive a challenge to his continued registration and yet, at the same time, come away with serious question marks over his competence as a practitioner. The evidence given by Lady Justice Smith to the Public Bill Committee in another place made clear her support for a move to the civil standard on the grounds that it was more appropriate for offences whose gravity fell short of the seriously criminal. I understand those arguments and, intellectually at least, can sign up to them. The questions that rear their heads are to do with the implementation of the standard. The sliding scale almost inevitably opens up scope for inconsistency and therefore unfairness as between different cases of a similar kind. A judgment by a panel that the allegations against a doctor are of a certain gravity and therefore merit a certain standard of proof might not be the same judgment if it were made by another panel. This underscores the need for comprehensive guidance to panels as well as thorough training for panel members. It would be helpful if the Minister could say something about this, bearing in mind that there will not always be a legally qualified person chairing the panel. One reason why Lady Justice Smith was sanguine about the GMC moving to the civil standard was the thought that a legally qualified chairperson would be familiar with how to apply it. By implication, someone who is not legally qualified will need considerably more in the way of an induction and training. We need to be sure that this is indeed happening. One aspect of the sliding scale that troubles me is its potential to be unclear and therefore unfair to the professional whose practice is under scrutiny. At the start of a hearing, it may not be evident how high or low the bar of proof needs to be. How can one know what evidence will be required to prove a given matter of fact until one knows how the panel views the gravity of that matter? How fair is that lack of clarity on the doctor and his defence team? Equally, facts may emerge during a hearing that serve to make the defence less or more serious in the eyes of the panel than it appeared to be at the outset. How fair is it on the doctor if the bar of proof moves down or up as the proceedings progress? How will this movement be made known to the defence team? I would be grateful if the Minister could say something about that when she replies. The BMA has softened its opposition to the change to the civil standard, partly, I think, because it recognises reality: the GMC is going to do it. However, it has consistently voiced a concern that is harboured by many doctors, which is that lowering the bar of factual proof in certain sorts of cases will, however subtly, lead to the practice of defensive medicine. Conscientious doctors, particularly when time is of the essence, want to go the extra mile for their patients. That sometimes means taking calculated risks, which may fall outside the usual norms of professional practice but which can be justified by the gravity of the situation and the lack of worthwhile alternatives. Not always will a doctor be able to consult colleagues about these decisions and not always is informed consent from the patient possible. However, we all know that many worthwhile advances in medical and surgical practice are made by those creative and imaginative doctors who believe that a new procedure is worth a try in the interests of a patient, particularly in an emergency. How ready will doctors be to do this sort of thing in the future? In voicing a fear about the growth of defensive medicine, we are not necessarily talking about new and adventurous procedures. A GP conducting his ordinary practice may say to himself that he should play safe by referring patients for diagnostic procedures, which he would not otherwise have done, simply for fear that a wrong decision would, on the balance of probabilities, be viewed as incompetent by a fitness-to-practise panel. The unintended consequences of that frame of mind would be a huge rise in referrals of every kind and description. How confident is the Minister that this will not, in fact, be the result of these measures? If she is confident, what evidence is she relying on? It would not, after all, be odd if doctors were to react in this way. One of the justifications of the move to the civil standard was spelt out in the White Paper, which said: "““There is currently a perception … that the criminal standard of proof … acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this … results in a culture of hesitancy and reluctance to refer cases to the GMC … It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment””." If that is indeed the perception, which I do not doubt, it follows that part of the point of the change to the civil standard will be to alter perceptions in a way that encourages referrals to the GMC rather than discourages them. Doctors will not be slow to grasp this. Does the Minister expect that there will in fact be an increase in the number of referrals to the GMC arising from these changes? If so, is the GMC geared up to deal with that? I hope that she will be able to shed some light on how the Government view the introduction of the civil standard, not so much from a theoretical standpoint as from a practical one.