The standard of proof applied by a disciplinary tribunal or panel can be a source of confusion and has been a cause of ongoing debate in the context of professional discipline and regulation. This is particularly the case where the disciplinary scheme in question does not specifically state the standard of proof to be applied. Even amongst those schemes (probably the majority) which do, there is no consensus as to the approach to be adopted. Whereas some professional disciplinary regimes insist upon the application of the higher criminal standard, others would apparently regard the interests of justice to be best served by the application of the civil standard; that is, proof on the balance of probabilities. To muddy the waters further, there has in recent years been increasing reference to an apparent "third standard", or civil "sliding scale". In this article, we will try to debunk some of the jargon surrounding this often confusing topic.
Traditionally, the courts in England and Wales and Scotland have applied one of two standards of proof, according to the type of case. In civil cases, the applicable standard is the "balance of probabilities", whereas the higher standard requires in criminal cases that the facts in issue are proven, by the prosecution, "beyond reasonable doubt". At least conceptually, the position is reasonably clear insofar as civil and criminal court proceedings are concerned.
The position of the professional disciplinary tribunal can be a little more complex. On the face of it, the types of case heard by such bodies do not always neatly resemble either civil or criminal proceedings, having in different cases characteristics in common with both types of court case and making the choice of appropriate standard of proof problematic.
On one view, any hearing which might result in punitive sanction (for example, monetary fine or disbarment from membership of a profession) ought to accord to the respondent the benefit of reasonable doubt and therefore apply the criminal standard of proof. On the other hand, a large number of disciplinary cases arise which do not raise substantive issues of misconduct, but are perhaps better characterised as professional service complaints. In such cases the likelihood of significant punitive sanction is small and the circumstances in which the case arises relate more closely to civil court proceedings.
More widely, it requires to be borne in mind that the purpose of disciplinary proceedings is different from that of the criminal law, being in broad terms the proper regulation of a profession, with a view to the public interest and the protection of the public. It can clearly be argued that the basis for the jurisdiction of a disciplinary body differs from that of the criminal courts, the powers of the disciplinary body arising from a contractual or quasi-contractual arrangement to which members sign up upon joining the profession.
As matters stand, there is no consensus as to the most appropriate standard of proof to be applied in disciplinary cases. Different professions take different approaches. The Bar Council of England and Wales, for example, in terms of its disciplinary scheme, makes provision for the application of both standards: the criminal standard applies in relation to charges of professional misconduct, whereas the lower civil standard is applicable in allegations of inadequate professional service. The disciplinary scheme applied by the Faculty of Advocates in Scotland, on the other hand, makes no such distinction and simply applies the criminal standard in relation to its proceedings. Other regulatory bodies, including the General Dental Council, Institute for Chartered Accountants in Scotland and Faculty and Institute of Actuaries have all adopted the civil standard in respect of their proceedings. The General Dental Council in particular have changed relatively recently from the criminal to the civil standard.
Two standards or three?
There has in recent years been an occasional but noticeable tendency to refer to an apparent third standard, the so-called "civil sliding scale ". This is a complex issue meriting a more detailed discussion, which we will address in a forthcoming edition of this e-bulletin. For present purposes however, it should suffice to highlight that there is in fact no third standard of proof as such. The concept of the 'sliding scale' is derived from a number of well-known judicial statements and simply refers to the amount of evidence which will be required in any given case. There remain just two standards of proof: the higher (criminal) standard and the civil standard (balance of probabilities).
The jury remains out as to what is the most appropriate standard of proof for the purposes of professional disciplinary proceedings, but there is a detectable trend towards the adoption of the civil standard of the balance of probabilities. In light of the recently published Donaldson report (discussed elsewhere in this e-bulletin), it may be that the General Medical Council will in due course change its applicable standard to the balance of probabilities, for the purposes of Fitness to Practise Panel proceedings. This would also be in line with the recommendations of Dame Janet Smith in her report into the regulation of the medical profession, as well as the relatively recent decision of the General Dental Council to adopt the civil standard of proof. It no doubt remains arguable however that the criminal standard ought to be applied in disciplinary cases which are of a serious or quasi-criminal character.
It is clearly important that the appropriate standard of proof is given careful consideration and that suitable express provision is made under the terms of the relevant disciplinary scheme. The omission of any specific provision in the rules may give rise to confusion and lengthy legal argument.