We arrive at the proposed high-profile and significant change to the standard of proof. Amendments Nos. 50 and 51 are probing amendments to seek clarification on the role and nature of the civil standard of proof. They are, in part, an attempt to reflect on the face of the Bill the sliding scale with which the civil standard of proof is ostensibly applied within common law. Amendment No. 57 seeks a similar change to Clause 115, which deals with the standard of proof in proceedings related to the registration of social workers.

Lady Justice Smith made three recommendations relevant to this discussion in her fifth report of the Shipman inquiry. As regards evidence, she said in recommendation 80:

“As part of their training, FTP panellists should be advised about their discretion to admit hearsay evidence and other forms of evidence not admissible in a criminal trial. Panellists should also be advised, during training, that it is entirely appropriate for them to intervene during FTP panel hearings and to ask questions if they feel that any issue is not being adequately explored.”

As regards standard of proof, she said in recommendation 81:

“The GMC should reopen its debate about the standard of proof to be applied by FTP panels. The civil standard of proof is appropriate in a protective jurisdiction. It is arguable that the criminal standard of proof is appropriate in a case where the allegations of misconduct amount to a serious criminal offence.”

As regards reasons for findings of fact, she said in recommendation 83:

“FTP panels should be required to give brief reasons for their main findings of fact.”

The civil standard was taken up by the chief medical officer in “Good Doctors, Safer Patients”, as his first recommendation:

“In adjudicating upon concerns about a doctor’s performance, health or conduct, the standard of proof should be the civil standard rather than the criminal standard... This will reduce the number of cases where a doctor is not judged ‘bad enough’ to enter formal General Medical Council procedures but is still a cause of serious concern to professional colleagues, management or patients in a local service.”