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Health and Social Care Bill

moved Amendment No. 56A: 56A: Clause 107, page 54, line 9, leave out ““is”” and insert ““may be”” The noble Baroness said: My Lords, in Committee, we discussed the basis of this amendment, which is that we do not need to change the law to implement a civil burden of proof. Indeed, the GMC has now changed and is now training its panel members. We do not need to enshrine this in law; it has been implemented already. The initial report suggests that all is well and that problems are not being reported. That may be because the decisions at the moment are lenient, but we may see a swing towards greater stringency. I do not know and no one knows. Initially, I had great reservations about the change from the criminal to the civil burden of proof. I have had many discussions with the General Medical Council. I completely accept that the way in which this is working out seems fine, but the reservations about the future have not gone away. The BMA and the defence unions have expressed concerns that the civil burden of proof in the long term may not be the whole answer. Case law has dictated that the criminal burden, not a civil burden, of proof is used in disciplinary proceedings involving lawyers. In 2003, the House of Lords deemed that magistrates should avoid using the civil standard and should apply the criminal standard. The General Medical Council had a series of sanctions previously and these have been transposed into their new proceedings. One of the most important sanctions is the retraining of a doctor in areas of low competence where there is a departure from the standards laid out by the General Medical Council. The standards are designed to protect patients and not in any way to protect doctors. These protective standards were applied previously and are being applied in the hearings using the civil burden of proof. The concern of the defence unions is whether, over time, all the decisions will be deemed to be fair and consistent as the civil burden is applied flexibly and over an increasingly broad range of problems. Everyone must sincerely hope that they will be and that the system will be fair. In the light of problems and experience, however, there may be a need for a clear definition at the top end of the scale of flexibility and some cases may require the criminal burden of proof to be used. Changes may need to be implemented. My concern is that the Bill as drafted locks the regulators into a civil burden of proof. In her response to me in Committee, the Minister said: "““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””.—[Official Report, 21/5/08; col. GC 537.]" I was concerned that the Minister was unable to say that we have the evidence that this is the right thing to do and that we are right to exclude the criminal burden of proof. The amendment is drafted to enable us to leave that door open. We must ensure that there is a clear message in the Bill that, although the civil standard of proof will continue, as is already happening, in the event of a problem arising we will not have to go back through a legislative process and wait. If particular difficulties arise, they can be addressed by reverting to the criminal burden of proof in exceptional circumstances. The amendment is simply a broad safety net, providing alternative wording to avoid locking us into to a civil burden of proof. I beg to move.