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What would changing the standard of proof mean in practice?

The RCVS is in a small minority of regulators – and the only major regulator - at home and in comparable jurisdictions abroad, that still applies the criminal standard of proof, ie using ‘beyond reasonable doubt/so as to be sure’, when deciding the facts of a case, as other regulators have now moved to the civil standard, ie ‘the balance of probabilities/more likely than not’.

In light of the primary purpose of regulation, the civil standard is considered to be the more appropriate standard of proof as, as the Law Commission explained in its 2014 report on the regulation of health and social care professionals in England, ‘it is not acceptable that a registrant who is more likely than not to be a danger to the public should be allowed to continue practising because a panel is not certain that he or she is such a danger’.

The standard of proof used by a disciplinary process applies only to proving the facts of the case. If the standard was changed from criminal to civil within the current disciplinary structure (as opposed to a more comprehensive move to replace ‘serious professional misconduct’ with a ‘fitness to practise’ regime), the question of whether or not what has occurred amounts to serious professional misconduct would remain, as now, a matter for the judgement of the tribunal. More often than not, it is this that is the key question facing the tribunal rather than a dispute about facts.

Changing to a civil standard of proof would not be changing from ‘being sure’ to having no standard at all, as is sometimes perceived, nor is it the introduction of “easy” prosecutions, where each and every allegation made by a complainant is simply accepted. Respondents would still be entitled to full legal representation, be entitled to challenge any evidential assertions in the course of a hearing, and continue to benefit from evidential protections such as good character and hearsay directions. A change to the standard of proof also does not mean that matters would not continue to be robustly investigated.