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Analysis

Burden of proof set to change

17 June, 2008

Burden of proof set to change

The burden of proof in professional misconduct cases looks set to move away from a criminal standard and more toward a civil standard of proof.
The burden of proof in professional misconduct cases looks set to move away from a criminal standard and more toward a civil standard of proof. 

 

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Midwives magazine: April 2003
 

The RCM has supported a proposal by the NMC to move toward a civil standard of proof in professional misconduct cases.

 

Criminal v civil standard

 

The NMC wants to drop the criminal standard – proof ‘beyond all reasonable doubt’ – in its new Fitness to Practise rules. The civil standard relies on panel members deciding on ‘the balance of probability’.Anecdotal evidence and evidence of character could be admitted to the deliberations. It is also more flexible about the range of evidence that can be admitted and when it is available to panel members.

 

Consultation on Fitness to Practise rules

 

The Council is consulting on a range of new Fitness to Practise rules and procedures, including the standard of proof, between March and June.

 

General support for Fitness to Practice

Supporters say it will engender a less adversarial system, encouraging witnesses to give evidence. It is less likely that the facts of case might be subject to arguments about the rules of admissability.

 

The NMC’s midwifery committee

Cathy Warwick, chair of the NMC’s midwifery committee said that the opportunity to get more information in advance of a hearing was ‘very persuasive’. Jill Carter, a lay member said: ‘When I sit on a panel, I have to be sure beyond all reasonable doubt that what has been done is what is alleged. If I am not sure, that person is sent back to practise. It is not a position I feel comfortable with.’ Others talked of ‘struggling’ and ‘wrestling’with the decision. Bronya Webster said she is ‘60% convinced’ by civil standard.

 

Standard findings by the King’s Fund

 

A report by the King’s Fund for the General Medical Council (GMC) in 2000 spelt out the complexities of the civil standard. The report points out that the civil standard is ‘a flexible concept. There can be a sliding scale of probability, commensurate with the gravity of the offence and the severity of the potential penalty.’ The balance could range from 51% to 85%.

 

Newer regulatory bodies outside health, such as the General Teaching Council and the General Social Care Council, use the civil standard of proof. The GMC uses the criminal standard, but it is reviewing this.

 

All panellists will have to undergo training on the new rules and procedures, prior to their launch in November.

 

Reaction of NMC president

 

NMC president Jonathan Asbridge says the decision is a ‘milestone’ in the regulation of midwives, nurses and health visitors.

 

‘Many panellists have expressed concern that, using the criminal standard of proof, they cannot properly protect the public,’ he said.

 

‘Many serious cases are closed with the potential risks that brings to the public. Equally, many practitioners and other witnesses find the increasingly adversarial questioning by defence lawyers, who seek to raise doubts about their evidence, frightening and intimidating.

 

‘The civil standard is much more appropriate to a body that does not punish people, but rather whose aim is to protect the public.’

 

Commenting on the decision, the RCM’s director of learning, research and practice development Frances Day- Stirk said: ‘When I first sat in on the debate and looked at this, I had concerns.

 

‘But after looking at it in more depth and in relation to disciplinary hearings, it seems to make better sense. Of course it must still go out to consultation.’  

 

Laurence Pollock is the RCM Midwives Journal news editor

 

 

 

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