Can sliding scale of proof work?
Sir Liam Donaldson might now favour it, but there's no basis for a sliding scale standard in English law
Can sliding scale of proof work?
The highest standard of proof in serious cases where a doctor could be struck off, a lower standard in cases where the punishment is likely to be less severe.
This, Chief Medical Officer Sir Liam Donaldson now says, is what his proposal to change from the criminal standard to the civil standard of proof in fitness to practise cases will mean.
He adds that this sliding scale standard has always been his position, although the Department of Health's regulatory impact assessment of Good Doctor, Safer Patients, released at the same time, specifically ruled it out.
The department last week admitted it had made a mess of the assessment and had been too hasty in ruling out a sliding scale standard.
But can it work in practice?
Initially it appears a feasible third way. Most doctors feel a system which allows serious cases to be tried on a standard close to the criminal would be preferable to an approach based purely on decisions made on the balance of probability.
Although the sliding scale does not formally exist in English or Scottish law, precedents exist for its use. In an Appeal Court decision this year Lord Justice Richards noted: 'The essential point is that the civil standard of proof is flexible in its application and enables proper account to be taken of the ser- iousness of the allegations to be proved and of the consequences of proving them.'
The GMC is adamant the highest standard of proof should remain for cases in which a doctor could lose their livelihood but has already said it wants to pilot the sliding scale approach.
And other medical regulators operate similar systems.
The General Chiropractic Council uses a civil standard of proof and takes into account the severity of the charge. The more serious the charge, the more cogent the evidence required.
Margaret Coats, chief executive and registrar, says the GCC's conduct committee, with legal support, then uses its authority to decide whether the facts have been proven to the required level. 'If the unacceptable conduct related to matters where it would be proportionate to remove someone from the register, that's what we mean about the more cogent the evidence required,' she says.
But the GCC has never permanently removed a chiropractor from its register.
The Health Professions Council, which operates a civil standard of proof and permits hearsay evidence, takes a different tactic. Possible penalties are not considered until it has been decided whether or not fitness to practise is impaired.
Kelly Johnson, director of fitness to practise at the HPC, says: 'The system has to be that you have to keep these two things separate because you can't say "I'll only find it because we're only going to caution".'
It is this that sums up the problem of a sliding scale standard as proposed by Sir Liam for many legal experts and GPs.
How can you possibly have a system where you might be better off facing a more serious charge because you're more likely to get off?
Jeremy Allin, partner and chair at Lester Aldridge lawyers in Bournemouth, says: 'You can't really say "I think this is 80 per cent beyond reasonable doubt and 20 per cent balance of probabilities" – you'd go barmy arguing with yourself.'
What's the solution? For doctors, the absolute essential is that the criminal standard continues to be applied in cases where they could lose their livelihood.
Dr Brian Keighley, a GMC member and a GP in Balfron, Stirlingshire, says: 'A problem is that if you do erase someone, its now for a minimum of five years and it's impossible for someone to maintain their skills. It's very much like professional capital punishment.'
So if the sliding scale can't work, that means the existing system must stay.
GMC procedure since November 2004:
Civil standard applied when facts are in dispute and investigation committee considering issuing a warning
Panel 'must be sure of its decision' when making a finding on disputed facts