If you are British and you are tried for an offence, you will not be found guilty unless unless the evidence points to your guilt 'beyond all reasonable doubt'. Despite this, many innocent people have been locked up or even hanged. We know this now more certainly than we ever did before because of the certainty of new DNA evidence. Why do we have such a system? It is to try and prevent such miscarriages of justice. We would prefer to have a few murderers going free than risk locking up innocent people. It also prevents governments abusing their power. But our government is now trying to get around this inalienable safeguard. The Americans have done it already in Guantanamo. There is this view around that if people are dangerous they should be locked away even if they cannot be shown to have committed any crime. We have the same in this country with attempts to get psychiatrists to lock away people who are bad and potentially dangerous but not ill - even if they have done nothing wrong!
Now it is errant doctors that they want to take out of action on the level of proof used in civil cases - the balance of probability. The curious thing is that all this stems from Harold Shipman who was a murderer and was and still would be tried under the ' beyond all reasonable doubt' standard that we should all hold so dear. The civil level of proof is designed for civil disputes between individuals where it is one person against another and the matter in question is a civil not criminal one. It is not appropriate for a misdemeanor of some sort. Doctors should not lose their livelihoods on a balance of probabilities.
Dr Grumble was on a train once and by chance found himself sitting next to a GP. He was on his way back to his practice having travelled a long way to try and help defend a colleague up before the General Medical Council. The doctor had been found guilty. The details of the case don't matter. What matters is that the people who best knew whether or not the doctor was a good one or not were not listened to. And that was the old system.
Not long ago Dr Grumble was asked to write a statement for the GMC about a colleague who had been called before them. An allegation had been made by a solicitor that the doctor in question had lost some notes. How for God's sake can a matter such as lost notes be taken so seriously? In any case, given the lack of secretarial support for consultants in many NHS hospitals, how can the doctor get blamed? No consultant has control over the number or quality of his supporting staff. As it happened the story had a happy ending and the solicitor was apparently made to look very foolish when she appeared as a witness. But doubtless the barrister defending my colleague didn't come cheap and he went through an anxious time. Things might have been different if he had been judged on the balance of probability.
The other problem that doctors have is that they have a great many encounters with a great many patients. Sooner or later one of thousands of patients may develop some sort of grudge against their doctor. Some of these patients may be mad, some bad and many may be just sad. Some may have a genuine grievance. But with so many clinical encounters that may lead to a complaint is it fair to judge a doctor on the balance of probability? If so, malicious accusations are bound eventually to succeed. This is just another example of government trying to protect itself rather than doing what is just.
Dr Grumble used to be a civil servant. He went on a special training course in Sunningdale to learn the key features which make a civil servant. He remembers the importance there used to be in separating the civil servant and his values from the politician. Dr Grumble wonders what the current Chief Medical Officer was taught on his course. Things certainly seem different.
Above is a picture of Sir Liam. Dr Grumble would not like to be one sided. If you want to read his views on applying the civil rather than the criminal standard to doctors you can read them here. But it is unlikely you will be able to make sense of them.
Here are the views of the BMA Chairman:
"It cannot be right, when a person's entire means of earning a living is at stake, to rely upon a balance of probabilities."Here's a quote from a colleague who wishes to remain anonymous:
"The proposal violates what any civilised society would regard as elementary human rights (presumption of innocence and the right to a fair trial). It does so under the breathtaking assertion that these abuses are necessary to protect patients."This was first posted under the title Standard of Proof on 12th November 2006. Dr Grumble was reminded of this post by the recent death of Dr Jeffrey Cream. Dr Cream was one of life's angels. But that did not stop the GMC from finding him guilty of serious professional misconduct. The professional conduct committee's chairwoman, Mary Clark-Glass, told Dr Cream that he had been "highly irresponsible"..... There was no appeal process. Dr Cream's reputation and merit award were threatened. He had to seek a judicial review in the High Court where the GMC ruling was described as irrational and perverse. Mrs Clark-Glass gets a mention here (it's worth reading) from none other than Ian Paisley Jnr.