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Health and Social Care Bill

My Lords, I support the amendment tabled by my noble friend Baroness Finlay. I confess that my experience, going back many years to chairing panels under the old General Medical Council arrangements, was that the criminal standard of proof was properly and sensibly applied in leading to sanctions that might affect a doctor’s registration. However, I appreciate the reasons why, in her thoughtful report after the Shipman inquiry, Dame Janet Smith made the powerful suggestion that that criminal burden of proof set too high a standard for sanctions to be employed against a doctor who had been guilty of some failing in his or her practice. The issue is not simply malpractice or criminal behaviour. The new panels also cover issues relating to the doctor’s fitness to practise on the grounds of professional standards or competence, as the noble Baroness, Lady Finlay, implied. Sanctions can be applied by the body to require a doctor to undergo a period of retraining, for example, if it is shown that his or her standard of practice is less than adequate. Issues also arise in relation to a doctor who may be suffering some form of ill health, which may impair his or her standard of practice. In those cases, a civil standard of proof is perfectly adequate. I am still concerned that in some cases of alleged malpractice the use of the civil standard, even if applied flexibly, as the General Medical Council has now suggested, means that there is a serious risk that injustices may occur. This amendment cleverly leaves open the possibility for the criminal standard to be applied if the practice of OHPA demonstrates that there are cases where the application and use of the civil standard is endangering doctors’ livelihoods at a level that appears to suggest the possibility of serious injustice. The GMC has been applying the civil standard flexibly and will do so until OHPA is fully established and working. I fully appreciate that other regulatory authorities—in nursing, midwifery, dentistry and other professions—are now using the civil standard of proof. However, reservations about its use continue to trouble me and for that reason I support the amendment.