I am grateful to my hon. Friend for that Intervention. If the Minister feels it would be helpful to intervene, I am happy to give way; otherwise, I am sure that he will address the matter when he responds to the amendments. That is the test that we should apply with patients’ safety and welfare uppermost in our minds, while recognising that we are so dependent on the medical profession that we must ensure that it believes that there is trust and natural justice in this process.

As I said earlier, the civil standard was taken up by the chief medical officer in his report. That report also noted the example of New Zealand’s adjudication body, the Health Practitioners Disciplinary Tribunal, which uses the civil standard of proof. The chief medical officer noted what he saw as

“long-standing discordance in the threshold for determining an unacceptable standard of practice between the General Medical Council and the NHS employer...[which] can lead to a situation where a doctor survives a challenge to continued registration, but is not regarded as someone whom an NHS employer would trust to look after patients safely”.

He also noted that

“it is argued by some that the sanctions imposed by the General Medical Council are so devastating to an individual doctor’s livelihood and reputation that the criminal standard of proof must apply (those who advocate this cite human rights legislation when it is suggested otherwise)”.

Having said that, the chief medical officer does not make much of an argument for the civil standard beyond accepting Lady Justice Smith’s recommendation.

The Government white paper, “Trust, Assurance and Safety”, noted the Government’s agreements with both Lady Justice Smith and the chief medical officer. Chapter 4 stated:

“The standard of proof itself refers to the level of certainty that must be achieved in order to prove disputed facts and is applied only in determining whether or not alleged facts are found proven...The criminal standard of proof requires that panels assessing facts about health professionals must be wholly convinced that the facts are fully proven, beyond any reasonable doubt, or they must find in favour of the health professional...Generally, the civil standard requires that the facts are judged more likely than not to be true (known as ‘the balance of probabilities’). However, the civil standard of proof can be flexibly applied to take into account the circumstances and gravity of individual cases, with more serious matters requiring a greater degree of probability of the evidence being true...The sliding civil scale is already used by the substantial Majority of health regulators” in child protection cases and employment tribunals.

Most importantly, the White Paper stated:

“There is clear legal authority that, in cases of sufficient gravity, the flexibly applied civil standard, sometimes referred to as the sliding civil standard, is virtually indistinguishable from the  criminal standard. This is most likely to be applied to cases that are of sufficient gravity that a health professional might lose his or her livelihood.”

“Trust, Assurance and Safety” picked up on the theme established by Lady Justice Smith and the chief medical officer that professional regulation is a protective jurisdiction.

The White Paper also argued:

“There is currently a perception...that the criminal standard of proof...acts as a bar or an impediment to the referral of complaints to the GMC. It is considered that this results in a culture of hesitancy and reluctance to refer cases to the GMC...The perception that it is not worth taking action due to the perceived difficulties in proving allegations to the required standard of proof potentially weakens public confidence in the health regulators and threatens public health safety. It is intended that the use of the sliding civil scale will go some way towards removing this perceived bar or impediment”.

I note with concern that, as with the creation of OHPA, the legislative move seems to be as much in response to perception as to actual fact. In an answer to a question put by me in the oral evidence session, Lady Justice Smith restated her commitment to the civil standard of proof and its location in the common law of England.

Having set out the political trajectory of the Clause, it would be helpful for the Committee if the Minister were to outline the impact of the move to the civil standard, which is a point picked up by my hon. Friend the Member for Tiverton and Honiton. I want briefly to consider the standard of proof itself, in which case we can judge more carefully how long it will take to conduct FTP panels, fairness—both within and between adjudication—changes in the quality of issues referred to FTP panels and the question of defensive medicine.

On the standard of proof, it is right to draw the Committee’s attention to the written submission by the Medical Defence Union, which argues that

“the criminal standard of proof of ‘beyond reasonable doubt’ or of ‘being sure’ does not create an artificially high standard of proof as it does not equate with certainty. A reasonable doubt is the sort of doubt that might affect the mind of the person dealing with matters of importance in his own affairs”.

I believe that the relevant ruling is Walters v.the Crown 1969. There is also an interesting legal argument, which may be better pursued in Another place, that the civil standard does not offer a balance of probabilities as precise as 49 to 51 per cent., as Lady Justice Smith contends. I think that that arises from rulings such as Lord Bingham in B v.Chief Constable of Avon and Somerset Constabulary 2001 and Lord Phillips in Gough v.Chief Constable of the Derbyshire Constabulary 2002.

It would be helpful if the Minister were to outline both the evidence for the move to the civil standard beyond Lady Justice Smith’s recommendation and examples where the criminal standard has led to dangerous or incompetent doctors being allowed to continue to practise. Linked to that is the question of the fair application of a sliding scale, rather than a more definite measure. Lady Justice Smith, while making it clear that she supported the move to the civil standard whether or not fitness to practise panels have legally qualified chairmen, asserted that

“a legally qualified chairman...will understand how it works.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 38.]

That poses an obvious issue of fairness between hearings, as, if the different chairs are applying the civil standard to different levels, a doctor who would be found liable under one chairman might be found not liable under another. It would be helpful if the Minister were to advise the Committee on the checks within the system, as nobody wants an increase in costly, time-consuming and psychologically wearing appeals. That is one of the key points that has arisen as result of this move.