11 February 2022

A recent Appeal case, Byrne v General Medical Council [2021] EWHC 2237 (Admin), has confirmed that the civil standard of proof should not be applied on a ‘sliding scale’ when considering evidence in fitness to practise proceedings. Historically, if an allegation was more serious, it followed that stronger evidence would be required to prove the case. The appeal case cements the position that allegations in fitness to practise proceedings require to be proved ‘on the balance of probabilities,’ with no provision of a higher threshold of evidence for allegations threatening more serious consequences.

Standard of Proof in Fitness to Practise proceedings

In 2008 the General Medical Council fitness to practise hearings adopted the civil standard of proof in regulatory proceedings. They had decided to align hearings with those of other healthcare regulators by requiring cases to be proved ‘on the balance of probabilities’ instead of applying the criminal standard of proof which requires a case to be proved ‘beyond reasonable doubt’.

This has led to consideration of how fitness to practise panels should treat evidence relating to allegations of a criminal nature when applying the civil standard of proof.

When the civil standard was adopted in fitness to practise proceedings, emphasis was placed on the commentary in R (N) v Mental Health Review Tribunal [2006] Q.B. 468, which accorded flexibility to the application of the civil standard. It was noted that more serious allegations and consequences would require the production of stronger evidence to satisfy that the allegation was proved on the balance of probabilities.

Until recently, fitness to practise proceedings before the MPTS have applied the civil standard of proof under the interpretation provided by Lord Hoffman’s comments in B v (Children) [2008]. It was held that there is only one civil standard of proof, however, it followed that the civil standard of ‘balance of probabilities’ should be interpreted in line with inherent probabilities.

What does Byrne v GMC tell us?

The MPTS have adopted authority from the 2021 case which clarified that there is no requirement for a heightened civil standard of proof in particular classes of cases. It is not the case that a more serious allegation requires more cogent evidence for it to be proved. It was said that if something is inherently improbable, this will be balanced when considering the probability that it occurred based on the quality of evidence provided. It was held that there is “no logical or necessary connection between seriousness and probability.”

In practice, this means that regardless of the allegation made against a practitioner, the General Medical Council will have to provide evidence to prove that it is more probable than not that the alleged incident occurred. Based on the Byrne decision, there will be no higher threshold of evidence required for a more serious allegation, such as sexual misconduct to be proved. The MPTS will apply the standard on the basis that even if an allegation is considered more serious, it does not follow that it is less likely to have occurred.

BTO’s Professional Discipline and Clinical Defence team specialises in defending regulated and unregulated healthcare professionals. We offer expertise in all areas of professional discipline. Should you require any advice regarding the above issues or any other matter, please get in touch.

Phoebe Crane, Trainee Solicitor (Author of article): pcr@bto.co.uk / 0131 222 2939

Natalie McCartney, Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2957