Regulation of Health and Social Care Professionals Consultation

9.50 For most regulators the fitness to practise rules specify that the standard of proof
is the civil standard, on the balance of probabilities. For some regulators the
standard is not specified. However, section 112 of the Health and Social Care Act
2008 inserted section 60A into the Health Act 1999 which imposed a requirement
for all the health regulators to use the civil standard of proof. This standard
applies only to findings of fact. Whether those facts amount to the statutory
ground of the allegation and constitute impairment is not a matter which needs to
be proved but is a matter of judgment for the Panel. 42 Case law has confirmed
that there is no flexible civil standard of proof and the seriousness of the
allegation has no special significance. 43
Hearings in public
9.51 The default position for most of the regulators is that hearings should be in public,
meaning that non-parties can attend. This can apply to all or part of the hearing.
However, the default position can be reversed in certain cases. Some of the
regulators have a broad provision that hearings can be held in private where this
is in the interests of any person, or the person concerned and any third party. At
other regulators the Panels are required to consider matters of principle such as
whether the circumstances of the case outweigh the public interest of a public
hearing, or whether the interests of justice demand a private hearing. Some of
the rules require that before holding a private hearing the Panel must invite
representations from parties and/or obtain advice from the legal adviser.
9.52 Most of the regulators have rules which specify that health cases must be in
private except if a public hearing is appropriate or in other cases similar to those
described above. Some fitness to practise rules also extend to interim order
cases the default position of a private hearing.
Location of hearings
9.53 Most regulators have discretion about where Panel hearings can take place.
However, the Health Professions Council is required to hold hearings in the UK
country in which the registrant is situated or resides. 44
Vulnerable witnesses
9.54 Where a person is classified as being a “vulnerable witness”, special measures
can be introduced to assist the giving of evidence. Most regulators’ rules define
who is a vulnerable witness by reference to whether the person has a mental
disorder, impaired intelligence or physical disabilities, the allegations are of a
sexual nature or the witness has been intimidated. Some regulators are required
to treat any witness under 18 as being a vulnerable witness, whilst for others the
age is under 17. At the General Chiropractic Council and General Osteopathic
Council there are no express provisions for vulnerable witnesses.
42
Council for the Regulation of Healthcare Professionals v General Medical Council [2006]
EWHC 464 (Admin).
43
Re B [2008] UKHL 35 at [13] to [16] and [69] to [73] and Re Doherty [2008] UKHL 33 at
[27] to [29] and [44] to 52].
44 Health Professions Order 2001, SI 2002 No 254, art 22(7).
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