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.

Most people do their best to avoid the burden of excessive consumer or mortgage debt that bring with them the fear of bailiffs, repossessions and the ultimate sanction and stigma of personal bankruptcy.

That was recognised with the introduction of the Enterprise Act 2004 which permits many bankrupts to be discharged after one year and the ability, after the period of bankruptcy has ended, once again to obtain credit of more than £250 and to become a company director.  In reality, though, mortgage companies, banks and credit card companies will be slow – some may even say stupid – to consider lending to those who have not demonstrated a period of recovery and financial stability.

It came as a surprise, therefore,  to read a Times  report (Lax British bankruptcy rules ‘make credit crunch worse’ – 02 May 2008)

http://business.timesonline.co.uk/tol/business/industry_sectors/banking_and_finance/article3858044.ece

It seems that the National Institute of Economic and Social Research thinks the new rules have fostered an environment in which people are happy to take on debt that they cannot repay, thereby inflating the losses of banks and other lenders.  It calls for international co-operation to make bankruptcy laws more stringent, especially in the United States, where lenient bankruptcy and mortgage rules permit borrowers to wipe out debts without penalty.  It suggests that the current law amplifies the scale of the global credit crisis.

The alternative and better view may be that the lending institutions are the authors of their own misfortune:  that they have through profligate and ill-judged lending policies encouraged people to borrow beyond their means without examining sufficiently their ability to honour their commitments or ensuring that they have adequate security if the borrower defaults.

There was a time when a mortgage company would not lend more then 2.5 times a salary, but now people are encouraged to borrow sums which amount to several times their income.  Not only has that placed severe pressure on the ability to repay but in itself has fuelled house prices.  Furthermore, with all eyes on profit and none on prudence, the banks continue to offer unsecured loans running into thousands.  It may be argued that the irresponsibility – which plays a large part in boosting consumer spending, thus inflation - lies primarily with the lending institutions that lend freely and voluntarily assume the accompanying risks.

The remedy is always in the hands of the lender:  lend wisely; take adequate security for the loan;  ensure at the outset that the borrower has good reason to require an advance and has the ability to repay it; require the borrower to take adequate insurance for the loan in the event of sickness.  The lending institutions are big enough and powerful enough to protect themselves; harsh and vindictive bankruptcy policies are unnecessary.

Government is considering lowering the drink/drive limit from 80 milligrams per 100 millilitres of blood to 50 milligrams.  (The Times: 21.04.08)

The proposal is that the existing mandatory disqualification for a minimum 12 –month period will not apply to first offenders.  Instead, they will receive 6 points on their licences and be disqualified only if they offend again within a period of 5 years.

The notion that 6 points is an appropriate penalty is an indicator that they are envisaging a fixed penalty fine to go with it, thus maximising revenue whilst keeping offenders out of court.

One wonders what real benefits are envisaged from such a scheme.  In 2006 540 people were killed in drink-drive crashes and currently around 95,000 drivers a year are banned for at least 12 months for failing a breath test or refusing to be tested.

Under the current law most offenders are fined fairly heavily (depending upon the level of alcohol in the blood) and a graduated period of disqualification is imposed.  A driver with twice the legal limit of alcohol in the blood can expect to receive a disqualification from around 20 months to 2 years.  A second conviction within 10 years carries a compulsory disqualification of at least 3 years.

At first sight the proposed change to the law would seem to do nothing to make our roads safer.  It will mean merely that a greater number of irresponsible drinking drivers will keep their licences and thereby remain a danger to the law abiding public.

If, however, this is just another government measure to raise money by seeking a further excuse to fine a greater number of motorists without regard for the safety of road users in general, then no doubt more money will flow into the Treasury’s coffers.

The public would be better protected by retaining the existing scheme but imposing an automatic 6 month ban for offenders convicted with readings between 50 and 80 milligrams, and bring it home with a national advertising campaign along the following lines:   IF YOU DRINK AND DRIVE YOU WILL  BE DISQUALIFIED FROM DRIVING.