Lumen writes: The burden of proof

The burden of proof

An area that should seriously concern all of us has been opened for debate/consultation following release on the January 23 of the GOC's call for 'stakeholders and partners to comment on the standard of proof that should be used to judge the truth of facts presented in its professional hearings'. The consultation process will end on the March 31.

It may not at first glance seem as heavy as some of the other recent 'intrusions' into practice life. However, one's continued (and hopefully blemish-free) registration is pivotally crucial to one's professional life and career. I have been fortunate thus far in not having been subjected to a GOC investigation. I do, however, know one or two who have, and irrespective of the outcome (in their situation the cases were dismissed), it was totally disruptive to their well-being at that time. The mere fear of being 'up in front of the GOC', should ensure this is one experience that we can all go happily to our graves without.

Currently, along with the vast majority of all the other major professions, the GOC's required standard of proof is the 'criminal' standard. The prosecution would have to show that the defendant was guilty 'beyond all reasonable doubt'. This is quite different to what is termed the 'civil' level of proof which is somewhat lower, requiring that a defendant be shown to be guilty 'on the balance of probabilities'. In percentage terms, this means that a defendant is about 33 per cent more likely to have a guilty verdict reached against them under a civil level of proof, as opposed to a criminal level.

If this is yet another example of the post-Shipman fallout having a potentially disproportionately impact on professions other than medicine, then we need to ensure our concerns are heard before yet another 'diktat' is unnecessarily imposed.

I am sure the GOC (among others) is under some pressure to reduce the burden of proof from the 'criminal' to the 'civil' level, and more readily and less expensively reach a positive outcome against alleged transgressors of its rules. I hear on the grapevine that the dentists have just moved from the criminal to the civil level of proof. A similar reduction in the required standard of proof may help the GOC more positively consider action where currently it languishes in inaction. However, the downside is that appeals in these dormant cases would most likely also be judged at the lower level of proof, thus encouraging more appeals that 'on the balance of probabilities' are more likely to succeed.

The risks of physical harm within a typical optometric modus operandi are significantly lower than medicine, pharmacy and dentistry. This is reflected in both our professional indemnity premiums and the number of registered complaints. The public should have significantly less concern for their well-being in our hands than with others. The guidance issued by our professional bodies, elements such as our need for maintenance of competency as a requirement of continued registration and the increasing vigilance within the GOS context is sufficient enough argument to leave the standard as it is. Those who truly transgress should quite easily be dealt with under the current standards. I would much rather the recently introduced fitness to practise panels be allowed to operate under the current, criminal level of proof for a period of time sufficient for the process to be judged on merit.

I am all for public protection (although the GOC's Section 60 and recent contact lens legislation would seem at odds with this). Clearly, a lower standard of proof may be argued to err on the public's side. However, what is more important is the quality of evidence and magnitude of the crime, not the ease with which any complaint may be upheld. If we sit back and do not submit our concerns to be added to the consultation process, we will only have ourselves to blame. There but for the grace of god