An alternative prescription

Prior to 2008, the major statutory regulators of the healthcare professions had applied the criminal standard of proof in determining allegations of misconduct against practitioners. They had done so as a matter of custom and practice in a statutory vacuum. In July 2008 Parliament passed the Health and Social Care Act 2008, s 112 of which requires disciplinary panels of the General Medical Council (GMC), General Dental Council (GDC), Nursing and Midwifery Council (NMC) and General Optical Council (GOC) to apply the standard of proof which “is that applicable in civil proceedings” (the new rule). That was the same language which the GMC had adopted several months earlier when it amended its Fitness to Practise Procedure rules.

The new rule could easily have been expressed in different terms. The statutory rules governing police disciplinaries and school exclusion decisions expressly require facts to be proved “on the balance of probabilities”. That was not the formula adopted by Parliament for the healthcare regulators. Nonetheless,