Change to burden of proof in medical negligence cases

When the facts of cases of wrongdoing by doctors, nurses or professionals are being judged by their regulatory bodies, the panel must be sure beyond all reasonable doubt before sanctioning a member. However, the burden of proof is likely to change to being based on the balance of probabilities. So what are the implications of this for occupational health nurses and doctors?


It is not the function of authorities such as the General Medical Council (GMC) or the Nursing and Midwifery Council (NMC) to punish someone who is no longer up to the mark for reasons relating to health, conduct or performance. Punishment is reserved to criminal law, but the bodies can apply a sanction which affects a practitioner’s ability to work, whether by warning, conditions, suspension or erasure, and that may have a punitive effect. It has long been held that the reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but regulation is a part of the price.


The regulatory bodies are concerned with the protection of the public, the maintenance of public confidence in the profession, and ensuring adequate care for patients (or clients, as the case may be). It is of paramount importance that disciplinary procedures are carried out fairly, and due respect is given to the right to a fair hearing for the person against whom charges are brought.


Beyond reasonable doubt


The procedure followed in regulatory cases is that the prosecuting authority must prove its case. That is to say, it bears the burden of proof in establishing the facts underlying the allegations.


The regulatory bodies operate their disciplinary proceedings under rules specific to the particular profession. Even if procedures differ, the underlying common feature is the preliminary stage: the finding of facts. In GMC cases, if the facts are proved, it is then a question of the judgement of the panel as to whether the practitioner’s fitness to practise is impaired and, if so, whether any sanction should be applied.


The standard of proof required by the GMC and the NMC is currently the standard applied in criminal cases: that the panel hearing the case is “satisfied so that it is sure” of any finding of fact. The formulation “sure beyond all reasonable doubt” also sets a familiar standard. These words are taken to mean proof to a high degree of probability, but not proof beyond a shadow of a doubt.


The verdict of the jury – and, indeed, of a regulatory panel – need not be unanimous. A verdict can be accepted by 10 or 11 of the former, and a straight majority of the latter. Lord Hailsham, three times Lord Chancellor in the 1970s and 1980s said: “A reasonable doubt is nothing more than a doubt for which reasons can be given. The fact that one or two men out of 12 differ from the others does not mean that their doubts are reasonable.”


The use of the criminal standard of proof in cases where a professional’s career, reputation and livelihood are at risk has long been thought to be essential to securing a just decision. Its effect is that where there is a doubt, the hearing is resolved in favour of the accused.


However, a few spectacular wrong-doers have brought the potential failings of the system into the public eye. The GP Harold Shipman is the most notorious. There is a school of thought which holds that, with hindsight, if the standard of proof had not been so high, there was a chance that he might have had his professional activities curtailed at an earlier stage of his murderous career.


The recommendations of Dame Janet Smith’s Shipman Enquiry Reports (2004), supporting the Ledward Enquiry of 2000, have led to the GMC taking steps to alter its procedures to make the civil, rather than criminal, standard of proof the norm. This means that disciplinary panels will determine facts on “the balance of probabilities”. The current consultation about the proposed change relates not to whether it will come into effect, but how and when. So what effect will it have?


A sliding scale


Although there will be clear-cut matters on which the panel can be sure, the civil standard means that a decision can be made on the basis of what is more likely than not.


However, where charges relate to very serious matters, a sliding or heightened scale is expected to be applied. Thus, the panel will need strong evidence to support a finding of fact. In McCallister v General Medical Council (1993), it was said that what is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects. In a case before the General Chiropractic Council in 2004, the question of the standard of proof arose. The quotation from the judgment is that “the more serious an allegation of professional misconduct is, the stronger must be the evidence before that allegation is proved on the balance of probabilities.”


Anecdotal reports within the medical profession indicate that doctors fear that it will be easier for judgments to be made against them with a pronounced swing in emphasis in favour of the complainant. However, it appears that, with the weight of the Shipman report behind the impetus for change, it is more likely than not that within the next few months, the GMC will change to the civil standard of proof.


The nursing branches of the profession are likely to follow suit: it is arguable that the activities of the nurse and convicted murderer Beverley Allitt could also have been curtailed at an earlier stage with some energetic whistleblowing and a lower standard of proof.


Changing times


Only time will tell whether a change in the standard of proof will make it easier for a just solution to be achieved where professional problems arise. But justice works both ways: an accused doctor has the right to a fair trial. Equally, a patient needs to have their complaints considered and their evidence given the weight it deserves.


Occupational health professionals should not feel any degree of smugness that they are above the risk of disciplinary procedures. These are defensive times for medical staff, and patient power is increasing. It is advisable to keep up to date with the current handbooks on maintaining professional standards.




  • Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn, London.


  • Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.


  • Any enquiry about this article may be made to Joan Lewis at joanlewis25a@aol.com Telephone 020 8943 0393

Casebook




  • Gynaecologist Rodney Ledward was accused of bungling hundreds of operations. He was erased from the register in 1998 after General Medical Council (GMC) charges of gross professional misconduct were upheld in relation to 13 specimen charges. Two years later, the Ledward Enquiry report, prepared by Jean Ritchie QC, indicated that staff feared blowing the whistle on consultants in the NHS, and recommended a change to the civil standard of proof in GMC proceedings. Earlier complaints about Ledward’s inadequacies and a lower standard of proof might have prevented large numbers of injuries.



  • Richard Neale, another gynaecologist, trained in the UK, and then went to work in British Columbia, Canada. In 1979, the authorities there considered complaints about his clinical judgement and poor surgical techniques and decided that, unless he was retrained, he should retire.

    Before the judgment came into effect, he moved to Ontario, and news of his encounter with the British Columbia board did not follow him. By 1984, he was subject to disciplinary proceedings on the grounds of incompetence in his new domicile. He then returned to the UK to take up an NHS post in Yorkshire.

    In 1985, he was erased from the Ontario register, with nationwide effect. The Canadian authorities informed the GMC, but no link was made with his UK registration. When in 1987 he applied to be reinstated on the Canadian register with the support of his Yorkshire employers who did not know the background, the Canadians rejected the application because of “deep-seated attitudinal and judgmental qualities”.

    However his UK employer assumed that the GMC must have resolved the situation so as to allow him to continue to practise. He was not erased from the UK register until 2000, when 34 counts of professional misconduct and dishonesty were upheld against him by the GMC.

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