Subject to formal decision by the Privy Council, the General Medical Council has announced that a new rule introducing the civil standard of proof will apply to all new fitness to practise panel hearings commencing on or after 31 May 2008: http://www.gmc-uk.org/

At present, the standard is the same as that in criminal trials:  proof beyond reasonable doubt.  In other words, before a tribunal can find an allegation proved, it must be sure that the case is made out.  The change, which will bring the Council into line with most other regulatory tribunals, will be the same as that which applies in civil actions which is proof on a balance of probabilities.  That is to say, before a tribunal can find an allegation proved, it must find that it is more probable than not that the case is made out.

At first blush, there seems to be a considerable lowering of the standard of proof but in reality doctors may have little to fear because, although there is only one civil standard of proof, the degree of probability required to determine proof depends, as Lord Denning said in Blyth v Blyth [1966] AC 643, on the subject matter:  “In proportion as the offence is grave, so ought the proof to be clear.”

There is, it is said, no intermediate standard, nor is the civil standard to be broken down into sub-categories designed to produce one or more intermediate standards.  But Lord Justice Richards said in R v (N) v Mental Health Review Tribunal [2006] QB 468 that although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application.  In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.  Thus, he says, the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.  He added, “The more serious the consequences, the stronger the evidence required in practice to prove the matter on the balance of probabilities.”

He went on at para 69 of the judgment:  “Although there remains a distinction in principle between the civil standard and the criminal standard, the practical application of the flexible approach demonstrated in the authorities means that they are likely in certain contexts to produce the same or similar results.”

It would appear that fitness to practise panels are unlikely to engage in  complicated exercises of mental gymnastics to decide where a case falls on a sliding scale of probabilities.  Far more likely is that before finding a case proved they will, as they have always done, require clear and compelling evidence in support of the allegations against the doctor.