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Would changing the standard of proof substantially increase the number of complaints being taken to the Disciplinary Committee?

One obvious potential effect of changing the standard of proof when deciding the facts of case – and one much talked about – is that it would lead to an increase in the volume of cases being referred to Disciplinary Committee (DC). We do not anticipate that this would be the case.

In order to estimate the impact in numbers of any change to the civil standard, a comprehensive review of all cases dealt with by the Preliminary Investigation Committee (PIC) in 2019 was carried out.

Of 103 Preliminary Investigation Committee (PIC) decisions to close a complaint, 16 decisions were identified where there may have been some, however remote, possibility that a different decision could have been made had the standard of proof been the civil rather than criminal one. In all other cases, the reasons for closure by PIC would not have been affected by the standard, for example, because in the Committee’s view there was no real prospect of the facts, even if they were proved, amounting to serious professional misconduct.

These 16 decisions were then considered and assessed jointly by the Registrar, Head of Professional Conduct, and external solicitors. An assessment was made as to whether, if the PIC had been considering a case in the context of the civil rather than criminal standard of proof being applied by the Disciplinary Committee, a different decision may have been reached.

Of the 16 closed cases considered, there were only two identified where it was considered that the PIC might have made a different decision and forwarded the matter to the Disciplinary Committee had the standard of proof been civil rather than criminal. In addition, there were three cases that might be considered borderline, but on balance, the review was of the opinion that a change to the standard of proof would not have altered the decision. Conversely, we also estimated that three cases that did go to DC during 2019 would probably not have done, had the ‘Charter Case Committee’ option been available. A ‘Charter Case Committee’ would have the remit to conclude cases referred to it by the PIC. It would have a defined and limited range of disposals available to it; these could include for example: issuing a public warning; issuing a private warning; issuing public advice (i.e. advice published on the RCVS website); or issuing advice that would remain private.

Many of the closed cases that were considered as part of the review involved clinical allegations where PIC had taken the view that, even if proved, there was no real prospect of the facts being found to amount to serious professional misconduct.

As can therefore be seen, the likely increase in the number of cases being referred from PIC to DC were the civil standard to be applied is low and chimes with a comment made by the General Optical Council (GOC) that ‘the experience of the GOC is that very few cases turn on disputed facts; the central issue is generally whether agreed facts amount to professional misconduct / impairment of fitness of practise, and what is the appropriate sanction.’