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Health and Social Care Bill

Clause 107 requires all the healthcare professions’ regulatory bodies and the new Office of the Health Professions Adjudicator, OHPA, to use the civil standard of proof. Clause 119 requires the General Social Care Council and the Care Council for Wales to use the civil standard of proof. In practice, most of these bodies already apply the civil standard, but this clause enshrines the civil standard in primary legislation. The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt. The civil standard, on the other hand, requires the decision-maker to be satisfied on the balance of probabilities that the facts are true or the events occurred—that is, it is more likely than not that the facts are true or that the events occurred. It is important to emphasise that the change to the civil standard will not remove the need for robust evidence to support serious allegations. So where does the standard of proof apply? There are three steps in the decision-making process. First, the panel must decide if the allegations are true. Have the facts been proven? Secondly, if the panel considers that the facts have been proven, it then has to decide whether the proven facts amount to an impairment of the practitioner’s fitness to practise. Finally, having heard factors in mitigation and other representations, the panel must decide whether to impose a sanction on the practitioner’s registration. The standard of proof applies only at the first stage, where the panel is deciding whether the evidence presented by either party to the hearing is true. The civil standard is not relevant at stage 2, in relation to the decision that a person’s fitness to practise is impaired. That is a matter for the panel to make a judgment on, based on its expertise and knowledge. Nor does the standard of proof apply to stage 3—the decision on what, if any, sanction should be imposed. I was asked why the Government believe that the civil standard is appropriate. Let me first say that the use of the civil standard of proof reflects the nature of fitness-to-practise hearings. The hearings panel is not a criminal court and is not applying the criminal law. The purpose of the regulatory action is to protect patients, not to punish the practitioner. We agree with Lady Justice Smith that medical regulation is a protective jurisdiction and that therefore the civil standard of proof is appropriate. This argument applies equally to other professions and not just to the health professions. I know that there have been concerns that the use of the civil standard of proof is unfair to doctors. I believe that the use of the civil standard of proof in fitness-to-practise procedures will ensure a balance between fairness to the accused practitioner and the protection of the public. Looking at how the civil standard of proof has worked for other health profession regulators, we find no evidence that the civil standard could result in unjustified adverse findings against a doctor, as ably described to the Committee by the noble Baroness, Lady Cumberlege. There have been suggestions that the change in the standard of proof will lead to more doctors being struck off. However, as I said, the standard of proof used does not determine the sanctions imposed; it just determines the level of certainty required in establishing whether the facts or events did or did not occur. The experience of the General Dental Council, which is still in the transition stage of changing to the civil standard, is that there has been no increase in erasures. It is not as though changing from the criminal to the civil standard of proof is something new or untried. The civil standard of proof is already used by the majority of health and social care regulators. Of the eight health regulatory bodies, only three still use the criminal standard—the General Medical Council, the General Optical Council and the Nursing and Midwifery Council. The others and the regulators of social care workers have been using the civil standard successfully. The General Medical Council has already, independently, decided to move to the civil standard of proof ahead of being required to do so by this Bill. The move to the civil standard matches best practice in other areas. For example, the Independent Police Complaints Commission has successfully used the civil standard of proof since 1999. The civil standard is also used by the Solicitors Disciplinary Tribunal and by other professions, such as architects, vets, teachers, actuaries and chartered accountants. Concerns have been raised about the possibility of panels finding it difficult to understand how to apply flexibly the civil standard. I hope that I can reassure noble Lords by saying that the General Dental Council, which, as I said, is in the transition stage of moving to the civil standard, has told us that not only are its panels coping with this very well, but they are coping very well when they still have to hear some cases under the criminal standard. That is a testament to the effectiveness of the training that the General Dental Council has provided in preparation for the change. I turn to some specific questions raised by noble Lords. The noble Earl, Lord Howe, raised the issue of training and asked what the GMC is doing to prepare for the change. The GMC has carried out an extensive training programme for those directly affected by the introduction of the civil standard of proof, including panellists, legal assessors—lawyers who advise panellists on points of law during hearings—its in-house legal team and GMC staff involved in fitness-to-practise work. The training programme has been tailored to meet the needs of that particular audience, so that legal assessors, panellists and panel secretaries receive fairly detailed training, which includes a number of legal judgments, while panellist training includes a number of case studies. The training for investigation staff, who are not directly involved to the same degree, provides an overview of the change. The noble Earl asked how consistency in the application of the standard can be assured. In addition to formal training, the GMC provides regular bulletins and other communications to panel chairmen and legal assessors. This flow of information about process and procedure includes updates on appeal cases, including those on regulators’ cases, relevant judicial reviews and statements on salient points of adjudication. The GMC has a panel development team, which deals with panellists’ inquiries, monitors panellist feedback, provides the secretariats for a panellist forum in regular meetings between GMC managers and panellists’ representatives, audits all panel decisions, provides feedback, takes responsibility for panellist recruitment and retention, carries out panellist appraisal and assessment, maintains the list and provides management information on panel activity. We expect that OHPA will consider having similar arrangements in place. The noble Earl asked about legally qualified chairmen. As eight out of the 11 heath professional regulators already use the civil standard, the vast majority do not have legally qualified chairmen. Perhaps the proof of fairness lies in the very low number of successful appeals to the High Court. He also asked about hearings, facts and evidence. I have outlined what the fitness-to-practise panel will do. It will have the assistance of a legal chair or assessors to advise it. He asked whether we anticipate more referrals for hearings. The advice provided by CHRE is that there may be a limited impact on decisions at the investigative stage. Decision-makers at that stage will inevitably be influenced by perceptions of the likelihood of the facts underlying a complaint being proved. The General Dental Council has not found any increases in erasures at the decision stage of adjudication. The noble Baroness, Lady Finlay, asked why this needs to be in the Bill. That was answered very well by the noble Baroness, Lady Tonge. We think that changing to the civil standard is the right thing to do. It is a recommendation of the Shipman inquiry, and many regulators are already using it. We want to ensure consistency, not just now but in future, so that all health and social care regulators use that standard. That is why it is in the Bill. The noble Baroness, Lady Tonge, spoke about defensive medicine, an issue that was also raised in another place. The noble Earl, too, asked whether health professionals would practise more defensively, erring on the side of caution. That argument rests on the idea that under the criminal standard professionals might choose more risky but potentially more effective clinical interventions. The Government do not believe that that would be the case. We do not believe that healthcare professionals will behave in that manner as a result of this change. We have confidence in their high professional standards and commitment to their patients. Where there is doubt, uncertainty or significant risk in making such judgments, healthcare professionals, who usually work in teams with other professionals, would generally make such decisions in consultation with their colleagues to ensure consensus of expert opinion and agreement. The noble Baroness, Lady Tonge, asked what civil standards allow one to consider when making a judgment. It has been suggested that the change to the civil standard of proof will enable a panel to consider hearsay evidence. It is up to the chair of the panel to decide the admissibility of evidence, having taken into account representations from the parties concerned. This is a matter of civil procedure, as dealt with in procedural rules, not of the standard of proof. Once the evidence is admitted, the facts have to be considered by the panel using the civil standard of proof. I confirm that the change to civil standards will not affect in any way the admissibility of evidence or whether new evidence can be considered during the proceedings. The change to the civil standard of proof enshrined in primary legislation will address concerns that the use of the criminal standard protects the interests of the professionals at the expense of the interests of patients. There is no convincing argument that one set of healthcare professionals should be treated in a different way from another set of healthcare professionals. This clause will ensure that we maintain consistency across the professional regulatory bodies so that the same level of protection is offered to all patients, no matter what kind of professional is caring for them.