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Criminal standard must prevail

Weakening the standard of proof for GMC hearings will be unworkable and unfair, argues Dr Krishna Korlipara

Weakening the standard of proof for GMC hearings will be unworkable and unfair, argues Dr Krishna Korlipara

The GMC has launched a consultation on its proposal to replace the criminal standard of proof with a flexibly applied civil standard at its panel hearings. These hearings can of course lead to the suspension or erasure of doctors whose fitness to practise is found to be impaired.

The proposal to accept a lower standard of proof, based on a balance of probabilities rather than beyond reasonable doubt, is apparently based on the advice of a leading counsel. But there are serious concerns over how it will work in practice – and its effects on the medical profession.

We are told that under a flexibly applied civil standard, the more serious the allegation, the higher will be the standard of proof required. With serious allegations that might result in the erasure of a doctor's registration, the standard of proof would be so high that it would be practically indistinguishable from the criminal standard. We are assured the changes shouldn't make any difference to the number of doctors erased from the register. But let us now examine in detail how the proposed system would work.

There are three stages to fitness-to-practise hearings. First comes fact-finding. At this stage, the prosecuting lawyer acting for the GMC has to prove each allegation against the doctor – it is not for doctors to prove their innocence.

During the second stage, the GMC panel determines whether, on the facts proved, the doctor's fitness to practise is impaired. At the third stage, the panel decides on appropriate sanctions. The proposed changes affect only fact-finding, not the panel's subsequent judgments.

But there is no reliable way the panel can predict in advance of the fact-finding stage which of the allegations – individually or cumulatively – if proved would lead to suspension or erasure. Some allegations can look trivial when taken in isolation.

Yet when a number of different facts have been proved, each based on the balance of probabilities, a panel might well conclude that the doctor was no longer safe to be on the register. Suspension or even erasure could follow. A doctor's livelihood therefore may rest on the balance of probabilities and miscarriages of justice may occur – particularly where a doctor's conduct is in question.

Cases of conduct are quite distinct to those involving performance or health, where a panel will have access to appropriate specialists to assess the doctor's fitness to be on the register. Performance is rigorously assessed on the basis of consultation skills, disease management and continuing professional development. Similarly, a doctor's health report will be obtained from a GP and a health examiner appointed by the GMC. There are adequate safeguards in such instances to protect a good doctor. Conduct cases, however, rely upon external witnesses to provide evidence, which then has to be corroborated or assessed for reliability. This requires a rigorous test and that ought to mean the criminal standard of proof.

The GMC's duty is to protect patients from doctors whose fitness to practise is impaired. It cannot be in the public interest, however, if good doctors are found guilty and prevented from practising medicine by unsafe legal processes.

Dr Krishna Korlipara is a GP in Bolton, Lancashire, and a member of the GMC

Dr Korlipara: 'It cannot be in the public interest if good doctors are found guilty by unsound legal processes' Dr Korlipara: 'It cannot be in the public interest if good doctors are found guilty by unsound legal processes'

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