House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Sixth Report

2 Proposals for a new Act

10. In 1966 the average veterinary practice would have consisted of one or two surgeons working as sole practitioners or in partnerships. In the modern practice, care is often provided by a team of veterinary surgeons, veterinary nurses and lay staff. Some procedures are delegated to non-veterinarians, and increasingly, those using complementary and alternative therapies. The Royal College of Veterinary Surgeons (RCVS) estimates that nearly a fifth of practice premises are owned by companies or other corporate entities.[13] This reflects the trend towards large practices and away from the more traditional sole practitioner. It was in response to the changes in the profession, and the regulation of the medical and related professions following the Shipman inquiry, that the RCVS set up a working party in 2003 to review the 1966 Act. The RCVS held two consultations in 2003 and 2005 with the veterinary profession (and separately with the veterinary nurse profession) to review whether a new Act would be desirable. The first consultation in 2003 received 470 responses from individual veterinary surgeons, from a total of approximately 20,000 registered vets, 13 responses from organisations and 124 responses from individual veterinary nurses.[14] The second consultation in 2005 received only 86 responses from individual veterinary surgeons, in addition to responses from 36 organisations, four veterinary nurses and 40 others (mostly members of the public).[15]

11. In 2003, the Department for Environment, Food and Rural Affairs (Defra) also carried out a public consultation on whether the Act needed reforming. The consultation broadly followed the lines of the RCVS 2003 consultation. A 157 interested organisations and individuals were consulted. A total of 91 responses were received.[16] Following the results of the consultation, Defra said that it was convinced of the need to modernise the Act and stated on its website that it was the intention to apply for Parliamentary time to bring forward new legislation in the 2005-06 Session. That did not happen. In its written submission to this inquiry Defra stated that the Act was in "urgent need of updating to bring it in line with modern concepts of professional regulation".[17] The Department told us that "the current regulatory framework fails to meet the needs of a rapidly changing veterinary services sector and the need for public confidence in the regulatory framework.[18] The submission, sent to the Committee in July 2007, said that Defra intended to bring in a White Paper with proposals for reform in "early 2008", taking into account the views of the Committee.[19]

12. Since 2003, discussions have been held between RCVS and Defra officials on proposals for modernising the regulatory framework for the provision of veterinary services.[20] After its 2005 consultation the RCVS adopted "firm proposals" for the main areas of the Act which it believed needed amending.[21] However, in evidence the RCVS told us that it had not yet decided on the detail of the structure or future composition of its Council, or of a Veterinary Nurses Council, and its membership.[22] The RCVS explained to us that it awaited a steer from Defra on whether the RCVS was "heading in the right direction" with its proposals.[23] The College had not attempted to draft a Bill.[24]

THE RCVS PROPOSALS FOR UPDATING THE 1966 ACT

13. The RCVS has proposed the following changes to the 1966 Act:

Veterinary nurses should be regulated as a profession alongside veterinary surgeons by a new independent Veterinary Nurses Council;

RCVS should have the power to regulate the delivery of veterinary services through a mandatory practice standards scheme;

The RCVS and Veterinary Nurses Council should have the power to require continuing professional development and revalidation;

The RCVS and Veterinary Nurses Council should have greater representation of lay members;

There should be a separation between the rule-setting, investigation of complaints and adjudication processes by ensuring that the board investigating complaints and the new Conduct and Competence Committee are independent from the RCVS Council and the Veterinary Nurses Council;

The new Conduct and Competence Committee should be given a greater range of powers, including being able to make interim orders pending proceedings, and

Veterinary Surgeons should have the power to delegate specified procedures to people holding qualifications recognised by the RCVS Council.

HOW THE RCVS PROPOSALS HAVE BEEN RECEIVED

14. There was general agreement amongst the majority of respondents to our call for evidence that the Act was out of date,[25] with particular reference to the disciplinary process. Some submissions pointed out that the existing Act had generally worked well until now and questioned whether revised primary legislation was necessary or whether the Act could be sufficiently updated through secondary legislation.[26] However, opinion in the veterinary profession, and in other animal treatment professions, was sharply divided over the RCVS proposals for: mandatory continuing professional development (CPD) and revalidation; a mandatory practice standards scheme; and whether or not the regulation of para-professionals ought to be brought under the control of the RCVS. We look in detail at these proposals in part three.

The need for a new Act

15. Some submissions to our inquiry questioned whether a new Act was necessary, in light of the fact that it had worked satisfactorily for over forty years. The British Veterinary Association (BVA) told us in its written submission that "there is a high level of public confidence in the veterinary profession, and on this basis it could be argued that substantial changes to the 1966 Act are neither justified nor necessary."[27] The President of the BVA told us in evidence that "there is no evidence that the Act is not working satisfactorily."[28]

16. The RCVS argues that new legislation is necessary because it believes that the current Act does not measure up to present-day expectations for the regulation of a profession. The RCVS keeps a register of qualified vets and intervenes when things go wrong. However, it is unable to take preventative action to ensure standards are being met. In particular:

the RCVS can not compel vets to keep their professional skills and knowledge up to date;
the current Act does not recognise veterinary nurses as a profession in their own right or provide statutory powers to regulate veterinary nurses;
the RCVS has no power to collect information about veterinary practices, just individual practitioners;
there is no proper separation between the Council which sets standards and the Disciplinary Committee which adjudicates;
the RCVS has no jurisdiction when a vet's competence or medical fitness to practice is at issue, and
the mechanism for regulating the activity of practitioners, other than veterinary surgeons, providing veterinary services—e.g. ultrasound scanners and artificial inseminators—is the unwieldy system of granting ad hoc Exemption Orders under Schedule III of the Act; many forms of treatment, such as equine dentistry and animal physiotherapy, are not regulated at all.[29]

PROPOSED CHANGES TO THE COUNCIL STRUCTURE

17. Under the RCVS proposals there would be one council for veterinary surgeons and another for veterinary nurses.[30] Each Council would be responsible for maintaining a register of qualified persons and issuing licences to practise. The Councils would issue guidance and make rules on professional conduct and competence.

18. A new, separate, Conduct and Competence Committee would receive and adjudicate on complaints against individual veterinary surgeons or veterinary nurses.[31] This function is currently discharged in respect of veterinary surgeons by the RCVS Disciplinary Committee. The proposed Conduct and Competence Committee would be independent as members of either Council would not be able to sit on the Committee.[32] The RCVS's proposals for a new disciplinary procedure are considered further in the next section.

19. In its submission to us, Defra noted that in recent years the RCVS (along with other regulators of professions) had been subject to criticisms about transparency, trust, accountability and public confidence due to its self-regulatory structure which allowed little input from the outside.[33] In medical and related professions, the trend had been to move away from traditional "self-regulation" to a model of "co-regulation" with greater involvement of lay members of the public. Defra considered that the number of lay members of the Council ought to be significantly higher than it is now, but that there should remain a professional majority. The majority of responses to Defra's 2003 consultation were in favour of lay appointments being made by an independent appointments panel (as opposed to Defra or the Privy Council).[34] Defra believed that further discussions with RCVS were needed on whether RCVS members of the Council should be wholly appointed or elected by the profession. Defra also believed discussions should be held on whether there ought to be a split between regulatory functions of the RCVS and its Royal Charter functions (the power to award Fellowships, Diplomas and Certificates to veterinary surgeons, veterinary nurses and others, to act as an informed and impartial source of opinion on veterinary matters, and also the concerns and property of the College, including its income).[35]

20. Submissions from the British Veterinary Association (BVA), the Kennel Club and the British Small Animal Veterinary Association also placed great importance on the inclusion of lay persons on the Council.[36] The BVA (the national representative body for the veterinary profession in the UK) believed that the current lay representation of the Council ought to be extended, as should lay representation at every stage of the disciplinary procedures, as "lay representation […] is an important factor in maintaining public confidence in the regulatory body; its disciplinary procedures; and the veterinary profession at large."[37] Several submissions raised concerns that the cost of setting up a new structure of councils and committees would be passed down to the veterinary practice and on to the consumer.[38] The RCVS had indeed proposed that the new disciplinary board would be financed through registration and retention fees to be levied by the Council.[39]

21. The RCVS thought that the current Council was too large in size and ought to be reduced from 40 members,[40] and that the lay membership of the Council should be increased.[41] However, it appeared that the RCVS had not yet produced firm proposals for a new Council. It was able to tell us that "in broad terms […] around 50%" of Council members would be lay people,[42] but was not able to give precise detail as to the structure of the Council or whether its members would be appointed or elected.[43]

22. We were disappointed that, given the amount of time and the level of consultation which has already taken place on the profession's governance, the RCVS had not yet sorted out the detail involved in its reform proposals. We believe that a profession of its size and importance should by now have had drafted a new Bill as a way of firming up its proposals and to help persuade Defra of its need for action towards new legislation in this area.

23. Whilst there is general support for the greater inclusion of lay members on the Council of the RCVS, the Royal College must develop a clear plan for the structure of its proposed new Council under a new Act. The proportion of lay membership should be no less than 40% and professional members of the Council should be both appointed and elected. It is entirely appropriate that members of the profession should meet the costs of their own regulatory body through registration fees. The RCVS should analyse the additional costs likely from the creation of its new structures, in addition to the other changes it has proposed, and how these will affect the average veterinary practice and its customers.

LIKELY TIMETABLE FOR A NEW ACT

24. Despite Defra's indication that a White Paper on a new Act would be brought forward in early 2008, Lord Rooker, Minister for Sustainable Food, Farming and Animal Health, told the Committee on 3 March that, following the reassessment of Defra's budget in recent weeks, there were no resources available in the current Comprehensive Spending Review (CSR) period (up to 2011) for further work on a White Paper.[44] In addition, there was no parliamentary time available for a new Act.[45] Lord Rooker told us that work would continue on the following areas:

the consolidation of existing Exemption Orders under the Act that permit the carrying out of certain procedures for the purposes of controlling and eradicating disease;
updating Schedule III of the Act to bring it in line with EU welfare of animals legislation;
resuming work on developing arrangements for allowing certain equine dental procedures to be carried out by non-veterinarians, and
widening the carrying out of TB testing to include trained technicians other than those currently permitted to carry out tests.[46]

However, it was unlikely that Defra would be able to proceed with work on a White Paper before 2011.[47]

25. In answer to follow up questions from us, Lord Rooker estimated that it would take Defra about six months to prepare a White Paper, setting out detailed and costed proposals for the future regulation of veterinary services, and thus a further six months to produce a draft Bill for publication. The cost of preparing these documents was estimated at £361,000. This sum did not take into account the cost of any further public consultation that might be needed prior to or after publication of the White Paper.[48]

26. Lord Rooker told the Committee that certain aspects of a new Act, for example a new structure for the complaints procedure, could possibly be introduced in a small, tightly focused Bill suitable for a Private Member's Bill,[49] but the other changes needed satisfactorily to modernise the Act would also require primary legislation as opposed to amendments made to the existing Act through secondary legislation.[50] The Minister also told the Committee that if the RCVS prepared a draft bill, Defra would provide advice on its provisions.[51]

27. The Veterinary Record reported that at a meeting of the RCVS Council on March 6 2008, the Acting Chief Veterinary Officer, Mr Fred Landeg, had stated that Defra's priorities currently lay with climate change and the environment.Mr Landeg is also reported as having advised the Council that the profession had to be clearer about what it wanted from a new Act, that it ought to communicate more effectively with Defra, and that it should aim to show a united front across the profession.[52] This advice strikes us as entirely reasonable. However, Lord Rooker's announcement to the Committee that work would halt on the White Paper has taken the profession by surprise. The RCVS told us only two weeks before the Minister's evidence that, following indications from the then Chief Veterinary Officer who sat by convention on its Council, it believed that its case for a new Act had been accepted by Defra, was supported at all levels and that work progressed towards new legislation.[53] From the outward indications of Defra's memorandum to us, and its web pages on the Veterinary Surgeons Act,[54] it had appeared that Defra intended to seek parliamentary time for new legislation in the near future. However, Defra does not appear to have kept the RCVS up to date with the latest developments in this area, which is surprising considering the close links between the RCVS Council and the Chief Veterinary Officer.

28. The resources for work on a White Paper for new primary legislation for the veterinary profession are unlikely to be available before 2011. Whilst this is a disappointment, the Royal College of Veterinary Surgeons should use the time now available to elaborate and clarify its proposals in greater detail, to consider further the case for those of its proposals which do not have general support within the profession, and to assess the potential cost of its proposals for regulating professional standards to the profession and to the consumer. We find it surprising that the RCVS Council was unaware of the decision taken by Defra to halt work on new primary legislation. Defra appears to have raised the profession's expectations that a new Act would be introduced in the near future. Defra should ensure that in future its working relationship with the RCVS is improved.

The disciplinary procedure

THE CURRENT COMPLAINTS PROCEDURES

29. Under the current disciplinary system, the Preliminary Investigation Committee (PIC) investigates cases where allegations have been made which, if proven, would be likely to result in a veterinary surgeon being removed or suspended from the register held by the RCVS.[55] The PIC decides whether or not to refer a case to the Disciplinary Committee (DC) by considering whether the complaint is within the RCVS's jurisdiction, whether there is an arguable case against the veterinary surgeon and whether there is a realistic prospect of proving the case.

30. The veterinary profession conducts tens of millions of consultations each year. In the year from 1 April 2006 to 31 March 2007, the RCVS received only 709 complaints, which represents a very small percentage of the total number of veterinary consultations.[56] Of those complaints, 272 alleged inadequate care on behalf of the vet; 150 complained about the quality of communications between the practice and the client; and 81 concerned fees. However, of the 731 complaints dealt with in 2006-07, 301 cases (41%) were closed because the complaint was not within the College's jurisdiction and only 11 (1.5%) were referred to the DC. Of the 13 disciplinary inquiries held during 2007, 6 vets were removed or suspended from the register, 1 vet was reprimanded, 3 cases were dismissed, 1 was postponed and 2 vets were found guilty of disgraceful conduct which was considered to be a sufficient sanction and no further action was taken.[57]

31. The only sanction that the DC has is to remove or suspend a veterinary surgeon from the register, and only if:

a) the vet has been convicted of an offence which in the Committee's opinion renders him or her unfit to practise veterinary surgery; or

b) the vet has been guilty of "disgraceful conduct" in any professional respect.

32. Disgraceful conduct is taken to mean misconduct as a result of unethical behaviour (e.g. misuse of controlled drugs) or clinical malpractice (e.g. serial incompetence) amounting to serious professional misconduct. This would not normally include a simple mistake, but that might provide the basis for a civil action for damages.[58]

33. A veterinary surgeon may appeal against removal from the register to the Privy Council, but there is no statutory appeal mechanism for the complainant.[59]

34. The RCVS provided the illustrative example of a veterinary surgeon who operates on a dog and leaves a swab inside. The vet might be liable to be sued for negligence, on which the RCVS has no power to adjudicate, but if he or she lies about having made the mistake, this might be considered serious professional misconduct.[60]

35. From the submissions received by us, there appeared to be widespread dissatisfaction with the current disciplinary procedures, particularly as, under the provisions of the Act, the members of the PIC and DC must be drawn from the RCVS Council.[61] Most submissions agreed that the reputation of the profession was at stake and that change was necessary to bring the regulation of veterinary surgeons in line with changes made in the human health profession. One submission argued that complaints investigation ought to be taken away from the RCVS altogether.[62] Others considered that the system had produced inconsistent judgments and sentencing, and questioned whether the process was compliant with the Human Rights Act.[63]

36. Defra considers the current system inflexible, lacking transparency and insufficiently "customer focussed".[64] The Department agreed with the RCVS that there needed to be clear separation between those that set standards, those who investigated, and those who decided on complaints.[65] Defra considered that the system did not:

[…] meet the public need for the investigation and resolution of complaints that directly relate to the competence and care of service provided by veterinary surgeons. There is evidence that public expectations are not being met and that a system which involves veterinary surgeons judging other veterinary surgeons will not inspire public confidence and trust.[66]

RCVS PROPOSALS FOR A NEW COMPLAINTS PROCEDURE

37. The RCVS proposes that the current Disciplinary Committee be replaced by a Conduct and Competence Committee (CCC) which would adjudicate on complaints referred to it by a separate body which the RCVS currently calls "the board".[67] The board would sift and investigate complaints received and decide which ones ought to be referred to the CCC.

Scope of the new "Conduct and Competence Committee"

38. The RCVS also proposed that the CCC should consider "fitness to practice" in the broadest sense—not just behaviour.[68] It should not be limited to considering the standing only of vets who had been convicted of an offence.

39. Defra believed that further discussion was needed as to who precisely should investigate, and adjudicate, on professional fitness to practice, as well as the cost of any changes to implement a new system for complaints against veterinary professionals. Defra also believed that mediation should be built into the process as part of a preliminary assessment of any complaint.[69]

40. The Department acknowledged that, under the current system, as the Disciplinary Committee was limited to considering only the most serious type of complaint, the overwhelming majority of complaints were sifted out. The Department considered that the dismissal of such a large number of complaints in such a manner would inevitably harm the reputation of the veterinary profession.[70] A submission to the Committee from a pet owner illustrated what must be a common frustration amongst complainants, which was that cases of alleged negligence by a vet were not dealt with by the RCVS. In that case, the complainant believed that pet food sold to her by her vet had caused the death of her cat.[71] The RCVS also provided us with several examples of cases which had been considered by the PIC but were not referred to the Disciplinary Committee.[72]

41. Defra's recommendation is that as well as professional misconduct, the RCVS should be able to investigate the lesser charge of "unsatisfactory" professional conduct:

It is inevitable that, in some cases, things will go wrong and owners who feel that their animals have suffered or perhaps died because, in their view, a veterinary surgeon, was at fault want somewhere to take their concerns. They see their case as a serious injustice and want recognition of mistakes made and an assurance that lessons will be learned. It is impractical for the RCVS to provide a detailed second opinion for every disputed case. However, a complaints system must enable the regulator to consider if there are grounds for concluding that a veterinary surgeon has not maintained adequate levels of professional expertise or standards. Therefore, as well as "professional misconduct", the regulator should have powers to address "unsatisfactory professional conduct", with appropriate remedies, which forms the basis of the vast majority of complaints received by the RCVS.[73]

42. We agree wholeheartedly with the Department's assessment of the drawbacks of the present disciplinary system. It is not satisfactory for customers who have a genuine case for complaint about the professional standards of a vet to only have recourse to the civil law, without any appeal to a regulatory body.

Range of sanctions open to the RCVS

43. Several submissions argued that there ought to be great flexibility in the disciplinary process to allow a wider range of sanctions less severe than suspension or removal from the register.[74] One submission suggested that the Committee should have the power to raise fines to penalise minor offences as current sanctions seemed to range from "the draconian to the ludicrously lenient".[75]

44. The RCVS proposed that both the board and the CCC would be able to dispose of a complaint by giving a formal warning. The board would also be able to give formal advice to a veterinary surgeon. The RCVS further recommended that the CCC should be able to impose conditions or restrictions in addition to suspension or removal from the register which are the only sanctions currently available to the DC, although power to impose fines was not canvassed. Defra agreed with the RCVS's proposals.[76] We agree that there ought to be a wider range of sanctions available to the Royal College of Veterinary Surgeons in order to give greater flexibility and proportionality to the operation of the complaints process.

45. The RCVS propose that there should be a power to make an interim order pending disciplinary proceedings.[77] The BVA was:

[…] very concerned about the possible consequences for a practitioner who was suspended prior to their hearing and subsequently found not guilty. Such action would remove the practitioner's means of earning a living, and could potentially jeopardise the future of their business, neither of which are acceptable unless the individual is actually guilty of unprofessional conduct.[78]

46. The RCVS admitted that responses to its two consultations had indicated that its proposals for interim orders were "controversial":

Circumstances can, however, arise from time to time where intervention is necessary, particularly where a practitioner suffers severe health problems. In such cases it seems right to have power to take action in the public interest, subject to the same safeguards as apply under the human health legislation (see, for example, article 31 of the Health Professions Order 2001, SI 2002/254).[79]

The Department agreed that, for exceptional cases, there should be a power to make an interim order pending proceedings, suspending a veterinary surgeon or imposing conditions.[80]

RECENT REVISIONS TO THE COMPLAINTS PROCESS

47. The Royal College has been exploring non-statutory changes to its procedures.[81] Following a review in 2007 of its Preliminary Investigation Committee's procedures, and with the aim of making the disciplinary process as transparent as possible, on 5 March 2008 the RCVS published revised procedures for the handling of complaints. These involve:

separating out the Committee's two functions of investigating complaints and deciding whether they merit referral to the DC (so that the same people do not undertake the investigation and then assess the outcome);
providing for complaints to be initially assessed by a legal qualified member of staff to see whether or not they fall within the jurisdiction of the College, and involve an independent lay observer in deciding whether there is an arguable case which should be referred to the PIC, with the aim of targeting the cases that the PIC and DC are able to deal with and help to speed up the process;
providing greater transparency in decision making, for example through making written guidance on the decisions of the PIC and DC available online, and in the posting of a guidance note for the public on how to make a complaint to the RCVS.

48. However, the RCVS told the Committee that there was only so much it could do without a change to the governing legislation:

Our aim is to ensure that our procedures are fair to both complainants and respondents, transparent and credible. There is, however, one problem. The Act requires both PIC and the Disciplinary Committee to be composed entirely of Council members. As you know, this is something that we want to change, because it makes it difficult for us properly to separate standard-setting, investigation and adjudication. We do all that we can to keep the membership and functions of the two Committees separate, but there is no way round the fact that the members of both are involved as Council members in policy debates which may be relevant to cases which they handle as Committee members. No matter how we improve our internal procedures, we cannot get over the fact that the Act entrusts the screening and adjudication of complaints to two Committees whose composition is specified on the face of the legislation.[82]

49. There is a pressing need for the disciplinary process for veterinary surgeons to be updated. We agree that there ought to be a separation between the RCVS Council, which sets rules for the profession, and the Disciplinary Committee, which adjudicates complaints on the basis of those rules. This should not wait until 2011. The RCVS should hold further discussions with Defra on whether changes to the process could be achieved through a more modest legislative proposal than would be required for wholesale reform of its procedures. For example, a Private Member's Bill drafted with advice from Defra could be taken through by a Member of Parliament sympathetic to the RCVS proposals. Meanwhile, the RCVS should continue to improve its current procedures through administrative reforms which can be achieved within the current legislative framework.

13 Ev 2 Back

14 Royal College of Veterinary Surgeons, Responses to Consultation Papers of 5 February and 12 March 2003, 10 June 2003 Back

15 Royal College of Veterinary Surgeons, Review of the Veterinary Surgeons Act: Further report from the Working Party, 3 November 2005, para 4 Back

16 Defra, Summary of the responses to the consultation on proposals to modernise the Veterinary Surgeons Act 1966, December 2004 Back

17 Ev 51 Back

18 Ev 54 Back

19 Ev 53 Back

20 Ev 52 Back

21 Ev 1 Back

22 Qq 24, 26, 53 Back

23 Ev 19 Back

24 Qq 28-31 Back