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‘The RCVS should not change the standard of proof in disciplinary cases’
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  1. Gillian Nevin

Abstract

Gillian Nevin argues that vets would be unfairly disadvantaged if the RCVS changes to a civil standard of proof in disciplinary cases.

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Gillian Nevin is a professional negligence and disciplinary lawyer and partner at Knights PLC, Chester

At its June 2020 meeting, the RCVS council decided to consult with the professions (veterinary surgeons and veterinary nurses) on possible changes to the disciplinary system. At its latest meeting, it agreed that this consultation process will start around the end of this month or early November.

By far the most important of the proposed changes is that to the standard of proof applied when deciding the facts of a case, from the current standard (as used in criminal cases and often expressed as ‘beyond reasonable doubt’) to the civil standard (where decisions would be made ‘on the balance of probabilities’).

It is imperative that vets and nurses appreciate the gravity of what they are being asked to consider

It is imperative that vets and nurses appreciate the gravity of what they are being asked to consider, as there can be little doubt that an altered standard of proof will result in more findings of misconduct. Once the standard is changed, there will be no going back.

Historically, there has been some debate about the correct standard. The relevant legislation is Rule 23.6 of the Veterinary Surgeons and Veterinary Practitioners (Disciplinary Committee) (Procedure and Evidence) 2004 Rules, which essentially provides that the disciplinary committee must be satisfied so that they are sure of the facts of the charge against the respondent in order to find it proved.

In England, only the RCVS and the Farriers Registration Council still use the criminal standard for misconduct proceedings.

So why is the RCVS wanting this change?

The RCVS states that the proposed changes to the disciplinary system as a whole have been developed with the aim of making it more compassionate and modern, while still maintaining public protection at its heart.

The RCVS must have been persuaded by the fact that the vast majority of regulators now use the civil standard – the most recent notable converts being the legal profession. But, it is worth considering what impact a reduction in the standard of proof will actually mean for vets and nurses caught up in the disciplinary process.

The RCVS is clearly mindful that there will be concerns among the professions about the impact of lowering the standard of proof – it reports research that suggests the move would not lead to a major increase in cases being referred to its disciplinary committee.

In a statement that accompanies the proposals, the RCVS says the number of extra referrals is likely to be very low. The RCVS has estimated that last year just two additional cases would have been dealt with by its disciplinary committee under an altered standard of proof.

However, the RCVS research did not appear to address the effect of a reduced standard of proof during a disciplinary hearing itself. A review of a number of recent decisions reveals that, had the lesser standard of proof been applied in these cases, additional charges would have been found proved against the respective respondents and may well have resulted in more severe sanctions being imposed (see box).

In 2019, both the Bar Standards Board and the Solicitors Disciplinary Tribunal introduced the civil standard in disciplinary proceedings. When the legal profession was consulted about the change, the Law Society voiced its concerns about what the lesser standard would mean for solicitors, commenting that it would be unfair and unjust to end a solicitor’s career unless the tribunal could be sure of the facts on the evidence heard and tested before it. It is too early to reach any firm conclusions about the impact on the legal profession, as only investigations that commenced after the rule change was implemented have been affected. Therefore, to date, only a limited number of cases have been determined on the balance of probabilities, but early signs are that tribunals are more likely to not work in the respondent’s favour.

Recent cases that could have had more severe sanctions had a lesser standard of proof been applied

Case 1 – Dr G: a number of charges found not proved as the disciplinary committee (DC) ‘could not be sure’. The respondent was given a reprimand and warning in relation to charges admitted and/or proven.

Case 2 – Dr K: the respondent faced a number of serious allegations regarding failures in the treatment of a cat, which were predicated on him being the admitting vet. The DC found it was ‘more likely than not’ that the respondent admitted the cat, but as the standard of proof required the DC to be sure, they ‘could not go that far’. The respondent was suspended for four months on the charges found proved.

Case 3 – Dr C: the DC stated they could ‘not be sure’ that there was a duty upon the respondent to perform surgery on the evening in question. The DC also found that a connected charge ‘could not be proved to the requisite standard’. The charges proved did not constitute disgraceful conduct and the respondent was not subjected to any sanction.

Case 4 – Dr P: the DC stated there was ‘insufficient evidence to prove to the required standard’ that the respondent subsequently became aware his colleagues had removed puppies. As a result, two connected charges could not be found proved. The charges found proved or admitted were not disgraceful conduct.

Case 5 – Dr S: the respondent faced a charge that she had taken photos of animals she had treated. The DC said it was not sure how the respondent had requested permission to use photos and so the DC ‘could not be sure the facts of the charge were made out’. The respondent received a reprimand and warning for charges admitted and proved.

Case 6 – Dr V: this matter was concerned with what information the respondent had given to a purchaser when he examined a horse. The DC said ‘there was no independent corroboration for either account. The Committee were not satisfied so it could be sure that the R [the respondent] said the words in the preamble to the charge’. The charges found proven did not amount to disgraceful conduct.

Of course, a balance must be struck between the need to protect the public’s faith in the professions and the livelihoods of vets and vet nurses – this is something that all professional bodies grapple with.

But why should the veterinary profession be expected to adhere to the same standards as lawyers and doctors? Is there any evidence that this is what the public really expects? Surveys demonstrate that the general public already holds the veterinary profession in high regard in relation to trust. There is no suggestion that the current disciplinary regime is allowing veterinary professionals who are unfit to practice to slip through the net, and as the old maxim says, ‘If it ain’t broke, don’t fix it’. The RCVS is keen to emphasise its wishes to modernise the disciplinary system to protect the public and animal welfare, as well as uphold the reputation of the professions. Several sections of the Code of Professional Conduct are drafted in terms reflective of those applicable in medical professions; for example, the areas which relate to obtaining informed consent from a client.

The RCVS Legislation Working Party, which worked up the proposals, even concedes that there may be a case for the regulation of the veterinary profession to differ from other professions, even those in the healthcare sector. Companion animals are often of low value and in the eyes of the law, an animal is a chattel. Since animals cannot exercise the same rights as a patient being treated by a doctor, it is arguable, surely, that it would be reasonable for there to be a distinction between the professions. As a society, we generally accept that human lives are valued more greatly than those of animals, and this is reflected in the more severe criminal sanctions imposed when injuring or killing a person as opposed to an animal. Therefore, it follows that veterinary surgeons and nurses should not be subject to the same stringent standards expected of medical professionals.

It is worthy of note that in the consultation held by the solicitors and barristers profession, strong objections were raised by the professionals to the proposals, yet the civil standard of proof was still adopted.

Given the trend in other professions to adopt the civil standard of truth, it is understandable that the RCVS is holding a consultation to gauge views on the topic. It is likely that only the most politically minded veterinary professionals will have given the matter much, if any, thought. However, it is imperative that very serious consideration is given to lowering the standard of proof and the professions must bear in mind that successful prosecutions have severe consequences, often resulting in a lengthy suspension or the ultimate penalty of being struck off the Registers. It is likely that such a change will also place veterinary surgeons and nurses under more pressure, given that it is accepted that these professionals already suffer from a great deal of stress. I urge you all to consider the implications carefully and provide your input to the consultation process. ●

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