‘Lottery' fear over proof sliding scale

Regulation may become less stringent as a result of a sliding scale of proof for GMC cases. Nick Bostock reports

GPs say plans for a sliding scale of proof in fitness-to-practise cases will reduce medical regulation to a lottery.

They also fear that plans to slash medical representation on the GMC council will hit doctors’ confidence in the regulatory body.

Under the current system, facts underpinning any fitness-to-practise case against GPs have to be proven to the criminal standard of proof, meaning beyond all reasonable doubt.

But under CMO Sir Liam Donaldson’s proposals to reform the GMC, set out in Good Doctors, Safer Patients (GP, 21 July), this standard of proof would be lowered.

Sir Liam called for a switch to the civil standard of proof, so facts would have to be proven only on the balance of probability, making it easier to impose sanctions on doctors.

Softer approach

His stance has softened since the original report, with a call for a sliding scale system in which higher thresholds of proof would be required for cases in which severe sanctions were being considered (GP, 3 November).

The GMC’s response to the CMO’s recommendations last week backed this second solution. ‘The courts now speak of a civil standard of proof that is essentially flexible and is to be tailored to the facts of any given case,’ the GMC response says.

It says the criminal standard of proof is appropriate when contemplating a doctor’s erasure, but that ‘the consequences of sanctions other than erasure are less profound and the standard of proof can be applied more flexibly’.

The GMC says this system will afford patients better protection from substandard doctors, but remain fair. It says the system works in law courts, so there is no reason why it cannot do so in GMC hearings. It has also pledged to draw up detailed guidance and training.

Crucially, GMC president Sir Graeme Catto said: ‘We don’t envisage this would lead to a difference in the number of doctors erased from the register because the standard of proof would be similar at the top end.’

But GPs are not so confident. Some 36 doctors were erased from the register in 2005, and GPs believe that the sliding scale could boost this figure, and lead to a situation in which identical cases result in different outcomes. GPC Northern Ireland chairman Dr Brian Dunn said: ‘If you change the burden of proof there is every chance of the number of erasures going up. Many older doctors will think: “Do I want to have any part of this?” I think many will retire.’

Career risk

GPC member Dr Fay Wilson, also a GMC panel chairwoman, said that the sliding scale would not work because doctors view any negative finding by a GMC panel as ‘potentially career threatening’.

On this basis, she said, it was not fair to apply a lower standard of proof in any situation. Since the potential consequences of any sanctions determine the level of proof required in each case, high profile defendants may also argue that even minor complaints about them should not be upheld unless they could be proved beyond reasonable doubt.

Possible injustices

‘A low-level sanction could be catastrophic for a high-profile, well-respected GP but may not be so serious for a younger GP,’ Dr Wilson argued.

GMC member Dr Krishna Korlipara said the sliding scale system would force panels to consider cases in reverse and could cause ‘serious miscarriages of justice’.

‘Because they have to consider what the potential outcome of a case is at the outset to decide what level of proof to apply, they are judging before the facts are known,’ said the Bolton GP.

‘There is a clear risk that cases will be considered for erasure when that would not have occurred if the panels had assessed the facts first.’

Barristers have also warned the system could undermine fairness.

Dr Dunn said: ‘We talked to a barrister about this and in civil cases where defendants face several charges they are allowed to plead guilty to the least serious and the others are dropped. We’ll end up with plea-bargaining rather than proper justice.’

The GMC has also proposed a 50–50 split between lay and medical representation on its council. Dr Wilson said this would undermine doctors’ faith in its integrity.

‘Doctors accept GMC judgments because they are the profession’s own judgment. But if the medical majority is lost, it will be just like any other DoH agency.’

Dr Korlipara agreed: ‘The GMC is not fit for purpose without the medical majority.’

The consultation on the proposals ended last week. The DoH will set out plans early next year.

Its decision could have a profound impact on the future of general practice.

On the slide...

GPs fear a sliding scale of proof could mean:

  • More GPs struck off.
  • Different outcomes from identical cases.
  • Miscarriages of justice.
  • Plea-bargaining.

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