The standard of proof
It could not be long before the Human Rights Act and Dame Janet Brown's Shipman Report came together to question the criminal standard of proof that the General Optical Council's Disciplinary Committee has used to determine the guilt or innocence of members of the professions in cases of serious professional misconduct.
Life has moved on and the Disciplinary Committee has now become the Fitness to Practise Committee operating, thanks again to human rights legislation, at arm's length from the GOC. The Committee will deal with a wider range of infringements from deficient performance to what was known as serious professional misconduct.
The question has now been asked as to whether the criminal standard of proof as used by the GOC, and other registration bodies, is appropriate to protecting the public in today's climate or if a civil standard of proof should now be used.
This raises complex questions about whether a standard which requires proof to be beyond reasonable doubt or one that is based on a balance of probabilities best protects the public.
The GOC, to its credit, has taken a cautious approach to this matter and is committed to consult with stakeholders. A legal opinion, based on precedents and current practice among the newer regulatory bodies, has suggested that the criminal standard is no longer appropriate but that a 'flexible' civil standard should be adopted.
Flexibility would mean an increasingly high standard of proof according to the severity of the charge, not impossible to achieve, but it would require considerable expertise on the part of the new Fitness to Practise panels supported by expert legal advice.
While no one can argue with the need to ensure that the public is adequately protected, one also has to consider the human rights of the accused practitioners and that protection must not only apply to the finding of guilt or innocence but also to the damage that can be inflicted on a professional's reputation when dealing with less serious charges.
Now that we have a one size fits all fitness to practise system, together with a will to apply common standards across health care regulatory bodies, it seems inevitable the standard of proof will indeed have to be amended. In doing so it will have to be seen to be manifestly fair to both complainant and defendant.
The real world
The profession in Scotland has much to celebrate following the announcement by the Scottish Executive heralding the reform of eye care north of the border.
When one looks at the wasted time and energy spent since the inception of the NHS in trying to persuade the Department of Health in its various incarnations to take eye care seriously and reward optometrists and opticians appropriately, the achievement of a handful of dedicated practitioners is nothing short of a miracle. Add to this the changes in Wales and the question has to be asked, will England join the real world?
The signs are not auspicious, discussions on the GOS contract have started with the professions fighting just to be heard. The battle appears to be to maintain the status quo rather than to expand the service and bring real benefits to patients. Realistically the politics in England are very different from those in Scotland and Wales and the purse strings under much tighter control. One can only hope that common sense will prevail.