Author's view that the trend among disciplinary bodies to move to a "flexible" civil standard of proof should be resisted, especially given a recent House of Lords decision

The Scottish Legal Complaints Commission will shortly take over the Law Society of Scotland’s role in receiving complaints against solicitors and adjudicating on inadequate professional service. However, complaints about the conduct of solicitors will continue to be dealt with by the Society.

Under the Legal Profession and Legal Aid (Scotland) Act 2007, the Society has been given the power to investigate cases of unsatisfactory professional conduct. This is a new category of complaint which falls short of professional misconduct.

By contrast, more serious allegations of professional misconduct will continue to be referred to the Scottish Solicitors’ Discipline Tribunal (SSDT). Whilst the burden of proof in professional misconduct cases applied by the SSDT is the criminal standard of beyond reasonable doubt, the 2007 Act is silent in relation to the standard of proof that will apply to unsatisfactory professional conduct cases. (It is understood that the Society will apply the civil standard of proof in such cases.)

Independent regulators of professionals in the United Kingdom are increasingly moving away from applying the criminal standard of proof in fitness to practise (“FTP”) proceedings. Already, the majority have moved or are moving towards applying a “flexible” civil standard of proof instead.

Medical precedent

By way of example, the General Medical Council is the independent regulator for doctors in the UK. It recently consulted on the introduction of the civil standard of proof at fitness to practise panel hearings when decisions are being made on disputed facts. Previously, the GMC applied the criminal standard of proof in their factual decision making in such cases.

Like many other regulators, the GMC follows a three stage process after hearing evidence:

  • whether the facts alleged have been found proved;
  • whether, on the basis of the facts found proved, the doctor’s fitness to practise is impaired; and
  • whether any action should be taken against the doctor’s registration.

Whether or not proved facts amount to impairment of a doctor’s fitness to practise is a matter of judgment and not proof: RHP v GMC & Biswas [2006] EWHC (Admin) 464.

It may therefore be that the SSDT will come under pressure to apply the civil standard of proof in professional misconduct cases.

However, although the concept of a flexible or “sliding scale” civil standard of proof has developed gradually over the years in England, the concept has recently drawn criticism from the House of Lords. Similarly, Scottish courts have specifically rejected this approach. This article will argue that the adoption of a flexible civil standard of proof by professional regulators may result in inconsistency of approach by FTP panels, which in turn may lead to more challenges to the determinations of those panels. Any attempt to lower the standard of proof in misconduct cases and introduce the flexible civil standard should be resisted in favour of clarity and consistency.

Public interest?

The move towards the flexible application of the civil standard of proof in fitness to practise proceedings has been justified by some professional regulators on the basis of the protection of patients/clients and the public interest, as well as being fair to professionals. However, public safety has not been accepted as a justification for lowering the standard of proof in criminal cases. For example, in June this year, a bill was introduced to the Scottish Parliament to reform the law on rape and sexual assault. Despite the low conviction rates, there has been no suggestion of changing the standard of proof in such cases to the balance of probabilities. Similarly, public safety arguments do not justify a change to the standard of proof in FTP panel hearings.

It has also been argued that the introduction of the flexible civil standard of proof will enable a lower threshold for findings of impairment to be made, thus enabling regulatory panels to take action more easily on less serious matters. But many regulatory panels already have powers to deal with matters falling short of findings of impairment, by way of issuing the professional in question with a formal warning.

In addition, other mechanisms exist for dealing with complaints that fall short of professional misconduct. Under the 2007 Act, for example, the SSDT has the power to remit a complaint back to the Society when it is not satisfied that the solicitor has been guilty of professional misconduct but considers that the solicitor may be guilty of unsatisfactory professional conduct. A range of sanctions are available to the Society should it make a finding of unsatisfactory professional conduct, including censure, fine, compensation or an order for retraining. 

English developments

In recent years, English courts appeared to have moved away from regarding the civil standard of proof as a rigid criterion by which facts were to be judged. Instead, the standard was to be tailored to the nature of the particular case. As Lord Justice Richards explained in R (N) v Mental Health Review Tribunal [2006] QB 468: “the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before the court will find the allegation proved on the balance of probabilities”.

For example, the risk of erasure of a doctor from the register is obviously a very serious consequence. In such cases, the General Medical Council intends to apply the rigour of the criminal standard of proof or a standard close to it when making findings in fact. By contrast, the consequences of sanctions other than erasure, such as issuing a written warning, are much less profound. In such circumstances, the GMC hopes to apply the civil standard of proof more flexibly.

The application of the flexible civil standard of proof has not been confined to decisions of professional regulatory panels. In considering an appeal against banning orders preventing attendance at football matches (Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 1213), Lord Phillips MR explained that “While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the magistrates to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.”

Similarly, in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, Lord Steyn judged a case dealing with applications for antisocial behaviour orders to be civil in nature. However, he took the view that some reference to the heightened civil standard would be necessary given the seriousness of matters involved.

Recipe for confusion

This approach has led to some confusion, as Lord Hoffmann recently observed on reviewing the English authorities: “Some confusion has, however, been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil… but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged.” (Re B (Children) [2008] UKHL 35 at para 5.)

Lord Hoffmann went on to recommend that “the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not… clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard” (para 13).

In light of Lord Hoffmann’s comments, professional regulators should arguably abandon the flexible civil standard and return to the criminal standard of proof in FTP proceedings.

The Scottish approach

The flexible civil standard has been specifically rejected in Scotland. In Mullan v Anderson 1993 SLT 835, a widow and her children raised an action of damages in the sheriff court against a man who had been acquitted in the High Court of the murder of her husband. The family’s averments amounted to an allegation that the defender had murdered the deceased, which was denied. When the defender’s motion for the action to be remitted to the Court of Session was refused, he appealed, arguing, amongst other things, that the sheriff had erred in law in concluding that the standard of proof required was on the balance of probabilities.

Although the appeal was allowed, their Lordships were of the view that the sheriff was correct in his determination of the appropriate standard of proof. Lord Morison rejected the suggestion that there existed in Scotland some standard intermediate between a balance of probabilities and beyond reasonable doubt:

“My view that any civil case, including this one, must be determined on a balance of probabilities does not ignore the obvious fact that it is more difficult to prove, according to the required standard, an allegation of murder or serious crime, because it is inherently unlikely that a normal person will commit such a crime. Certain English authorities cited... appear to have proceeded on the basis that this difficulty is to be reflected in a variation of the normal standard of proof, but in my view there is no justification in Scotland for that approach, and if it were applied it might well lead to uncertainty in any case where an allegation of serious criminal or immoral conduct was made.”

More recently in Wilson, Petr [2008] CSOH 96, Lord Uist indicated: “In my view there are only two standards of proof recognised by the common law: proof on the balance of probabilities and proof beyond reasonable doubt. There is no intermediate standard of proof, such as some kind of higher balance of probabilities. This was made clear by the judges in Mullan v Anderson”.

Future prospects

The increased application of the flexible civil standard of proof by professional regulators in FTP proceedings may therefore lead to uncertainty. Regulatory panels often include a mixture of professional and lay members, together with members who are not legally trained. The flexible civil standard of proof is a much more difficult concept for regulatory panels to understand and apply than the criminal standard of proof.

The practical effect of the application of the flexible civil standard of proof in FTP proceedings may amount to the application of different tests depending on the precise circumstances of any given case. Inconsistency in determinations by regulatory panels may in turn lead to an increased number of legal challenges.

A decision of the General Medical Council to suspend a Scottish general practitioner from the register for a period of three months was recently appealed to the Court of Session: Mallon v GMC [2007] CSIH 17. Despite dismissing most of the charges, in light of all the evidence and its findings in fact, the FTP panel concluded that the doctor’s conduct fell seriously short of the standards expected of a general medical practitioner. As a result, she was found guilty of serious professional misconduct. On appeal, the doctor argued that the allegations found proved fell short of serious professional misconduct.The penalty was therefore inappropriate and unnecessary.

The Inner House held that the test to be applied in such appeals is to look at the decision of the regulatory panel in the light of the whole circumstances of the case, always having due respect for the expertise of the panel and giving to its decision such weight as the court thinks appropriate (McMahon v Council of the Law Society of Scotland 2002 SC 475). However, in applying this test, the court also accepted that it was entitled to substitute its own judgment on the facts for that of the panel.

It remains to be seen how the Scottish courts will react to findings in fact made by the GMC or other professional regulators applying the flexible civil standard of proof rather than the criminal standard. In light of the recent House of Lords criticism of this approach, it is perhaps doubtful whether the flexible civil standard of proof will survive.

Government push

The Faculty of Advocates and the Bar Council of England and Wales both apply the criminal standard of proof to professional misconduct proceedings. By contrast, in February 2007 the UK Government published a white paper, Trust, Assurance and Safety – The Regulation of Health Professionals in the 21st Century, directing that the civil standard of proof, rather than the criminal standard, should be the common standard of proof for all nine health regulatory bodies: General Chiropractic Council, General Dental Council, General Medical Council, General Optical Council, General Osteopathic Council, Health Professions Council, Nursing and Midwifery Council, Pharmaceutical Society of Northern Ireland, and the Royal Pharmaceutical Society of Great Britain. The Health and Social Care Bill currently being considered by the UK Parliament includes provisions in relation to the standard of proof in FTP proccedings. In addition, the Royal College of Veterinary Surgeons and the Faculty and Institute of Actuaries apply the flexible civil standard. It may only be a matter of time before there are calls for the SSDT to follow the crowd, but this should be resisted.

Jillian Martin-Brown is an associate in Dundas & Wilson’s Dispute Resolution Group, specialising in professional discipline and regulationg

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