Burden and standard of proof in fitness-to-practise cases

Who must prove the allegation

In university fitness-to-practise proceedings in England and Wales, the burden of proof rests on the university (the provider bringing the allegation), not on the student. It is for the university to prove that the student did what they are accused of doing, and to explain how that conduct impairs their fitness to practise. The student is not required to prove their innocence.

This reflects the approach set out in the Office of the Independent Adjudicator’s Good Practice Framework on fitness to practise, which universities are expected to follow. The starting point is that the person or body making the allegation must establish it.

The standard of proof

The applicable standard is the civil standard, namely the balance of probabilities. This means the panel must be satisfied that it is more likely than not that the alleged conduct occurred. It is not the higher criminal standard of “beyond reasonable doubt”, even where the underlying conduct might also amount to a criminal offence.

Importantly, following the decision of the House of Lords in Re B (Children) [2008] UKHL 35, there is only one civil standard: the balance of probabilities. There is no sliding scale under which more serious allegations require a higher standard. The seriousness or inherent unlikelihood of an allegation may be taken into account when assessing whether the evidence is sufficiently cogent to show that something is more likely than not, but the standard itself remains a straightforward “more likely than not”.

The professional statutory regulators (such as those covered by section 112 of the Health and Social Care Act 2008) also apply the civil standard, which is consistent with the approach universities generally take in student fitness-to-practise cases.

Points that can shift or complicate this

There are a few important qualifications to be aware of.

First, the burden and standard set out above apply at the fact-finding or first-instance stage. At the appeal stage the position can differ. Some universities’ regulations provide that, on appeal, the onus shifts to the student to show that there are grounds to disturb the original decision, for example that the finding was unreasonable, that there was a procedural irregularity, or that there is new evidence. So the question of “who must prove what” depends on which stage of the process you are at.

Second, the precise rules are governed by the individual university’s own fitness-to-practise regulations, which each institution is entitled to set and which are authoritative for that institution’s procedures. You should read the specific regulations that apply to you, because the wording on burden of proof, the panel’s composition, the categories of allegation and the appeal grounds can vary between providers.

Third, a distinction is sometimes drawn between proving the facts of the allegation and the separate evaluative judgment about whether those proven facts amount to impaired fitness to practise. The balance of probabilities applies to establishing the underlying facts. Whether those facts impair fitness to practise is a matter of professional judgment for the panel, not something proved to a standard of proof in the same way.

Practical points

If you are facing or challenging a fitness-to-practise allegation, it is worth doing the following.

1. Obtain and read your university’s current fitness-to-practise regulations and any related procedure or student handbook, and check exactly what they say about burden and standard of proof at each stage.

2. Check whether the university has in fact produced evidence to support each element of the allegation, since it is for the university to do so. If the evidence does not, on balance, establish the conduct, the allegation should not be found proved.

3. Keep in mind the internal appeal route and, once internal processes are exhausted and you have a Completion of Procedures letter, the option of complaining to the Office of the Independent Adjudicator for Higher Education, which can review whether the university followed a fair procedure and applied its own regulations properly.

If you tell me which university and, ideally, share the relevant part of its fitness-to-practise regulations and the stage you are at, I can give a more precise answer tailored to your situation.