Doshi, R (on the application of) v Southend-On-Sea Primary Care Trust

Proceedings before a professional disciplinary tribunal are civil proceedings unless legislation or binding authority requires otherwise. The starting point is the balance of probabilities, applied flexibly so that serious allegations require cogent and compelling evidence. The criminal standard may be appropriate in particular contexts, but allegations of quasi-criminal misconduct against a doctor do not automatically require it. A tribunal may lawfully direct itself by reference to the seriousness of the allegation and the strength of the evidence, provided the process is fair. A tribunal’s later statement that it would have reached the same findings to the criminal standard can be relied on where the chronology shows that this was its genuine conclusion.

This was a statutory appeal under section 11 of the Tribunals and Inquiries Act 1992 from a decision of a Family Health Services Appeal Authority panel. The panel had upheld the removal of a general practitioner from the performers list after finding seven allegations of inappropriate sexualised behaviour proved.

The appellant challenged the decision on two grounds: that the panel had acted unfairly by postponing its ruling on the standard of proof, and that it had applied the wrong standard. A separate ground was abandoned. The central issues were whether the panel had been required to apply the criminal standard and whether its procedure caused any legally material unfairness.

1. Appeals dismissed. The proceedings before the panel were civil in character. The starting point was the civil standard, namely the balance of probabilities, although that standard is flexible in application.
2. There are only two standards of proof. Seriousness affects the evidence required to satisfy the civil standard; it does not create an intermediate standard. In some contexts, policy or pragmatism may require the criminal standard, but the authorities concerning legal-profession discipline did not establish a general rule applicable to disciplinary proceedings against doctors.
3. The rules governing the panel were silent on the standard of proof. The authorities concerning medical disciplinary proceedings supported a discretionary and context-sensitive approach. The panel was therefore entitled to direct itself that serious allegations required cogent and compelling evidence, while deciding whether it was satisfied on the balance of probabilities.
4. The panel’s approach reflected the reasoning in Re H and Others and was consistent with the observation in R (N) and Mental Health Review Tribunal (Northern Region) and others that the flexible civil standard may produce results similar to the criminal standard. The panel’s statement that it would have made the same findings applying the criminal standard was not a catch-all. Given the chronology, it indicated that the panel had in fact considered and accepted that conclusion during its deliberations.
5. The panel should preferably have ruled on the standard at the outset, but the delay did not cause actual or apparent unfairness. There was no evidence that it affected the decision whether the appellant would give evidence, cross-examination, or closing submissions. The findings were based on a thorough and careful assessment of the evidence and were safe.

The judgment records a statutory appeal to the High Court from a Family Health Services Appeal Authority panel decision dated 28 April 2006. The High Court dismissed both the primary appeal and the consequential appeal concerning national disqualification.