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Health and Social Care Bill

I will speak also to the Question whether Clause 119 should stand part of the Bill. It is included in this group simply as a tidying-up exercise and to provide consistency. My main question to the Minister is why this has to be in legislation. In another place on 15 May the Minister said: "““These rules are not contingent on the changes in the law being proposed in the Health and Social Care Bill””.—[Official Report, Commons, 15/5/08; col. 66WS.]" The GMC has said in its briefing that it does not need primary legislation to implement the civil standard of proof. If it is not needed in primary legislation and can be implemented anyway, why do we need this provision in the Bill? Sufficient doubts have been raised within the profession and by others outside to make one wonder whether it would not be wiser to allow this change to happen, to let it work through and then, if problems arise, to reverse the requirement to a criminal standard of proof at all times, as that would avoid the need for primary legislation. The change is happening anyway without primary legislation. It is worth noting that, although it has softened its approach, the BMA feels that there is a lack of confidence in this measure among doctors—a view that I echo. I draw to the Committee’s attention the fact that the Court of Appeal has registered a concern over the confusion that can arise when the civil burden of proof is imposed. The House of Lords concluded that magistrates, for example, should apply the criminal standard in all cases and avoid ever using the civil standard. Even Dame Janet acknowledged in her report on Shipman that it would be unreasonable, without a legally qualified chair, to expect a panel to use the flexible standard properly. It is worth noting what lawyers have done in relation to misconduct. The sliding scale of the civil standard links two extremes, the high end of which corresponds to the criminal standard—beyond reasonable doubt—while the low end corresponds to a balance of probabilities. The disciplinary tribunal of the Law Society and the Bar’s code of conduct require the application of the criminal standard of proof by tribunals dealing with misconduct of lawyers. Courts have found it confusing when the burden of proof is undefined between the criminal and civil standards, and case law now dictates that the criminal standard of proof is to be used in disciplinary proceedings involving lawyers. There is a sense that the flexible standard could be applied fairly to the regulation of doctors but not to lawyers. The evidence used by those without judicial training and experience seems to have led to difficulties, such that lawyers are now judged only by the criminal standard of proof. Therefore, I return to the fundamental question: do we need these clauses in the Bill? Is it wise to include them or, given that they are not needed, would it be much wiser not to have them but to allow the GMC changes to continue? I understand from the GMC that one reason why it wants to go to a civil burden of proof is that lesser sanctions would apply than someone being struck off—that is, imposing on a doctor remedial action, retraining, supervision and so on—and it feels that that would be easier. However, given that it is doing that anyway, I simply ask: why have these clauses in the Bill?