Memorandum submitted by Patricia Gail
Saluja (Vet 27)
SUMMARY
This submission contends that the VSA 1966 should
be replaced by a new statute. The current Act has been rendered
unsuitable as a result of wide-ranging changes in the nature of
veterinary medicine and the manner in which services are delivered,
in public attitudes and expectations regarding professional regulation
and in the general legal order, particularly the enactment of
the Human Rights Act 1998. In summary, the new statute should
provide for the following.
The Establishment of five bodies outlined as follows:
Three separate professional regulatory bodies:
one body for regulating veterinary surgeons and veterinary practices,
including corporately-owned practices (this would be a continuation
of the current RCVS Council); one body for veterinary nurses (a
Veterinary Nurses Council) and one body for other veterinary care
providers (a "Veterinary Care Professions Council").
These three bodies would maintain professional registers and set
standards and rules for education, qualifications and professional
conduct. They would not, however, deal with professional disciplinary
matters.
One single overarching body, a "Veterinary
Board": This would monitor the performance of the professional
regulatory bodies and would also form a single portal for the
receipt and investigation of complaints and queries regarding
veterinary practices and all groups of professionals. The Board
should have powers to issue warnings and advice and, in certain
cases, impose interim suspensions or conditions on continued practice.
One "Fitness to Practice Panel": This
would be independent of the regulatory bodies and the Board and
would hear disciplinary inquiries for all the groups regulated
by the Act. The sanctions available to it should be clearly stated.
In addition to the above, the new act should introduce
the following reforms:
— prescribed appointment of lay
persons onto the regulatory bodies, the overarching Board and
the Fitness to Practice Panel;
— empowerment of veterinary surgeons
to delegate specified tasks of veterinary surgery to people holding
qualifications recognised by the RCVS Council;
— revision of the grounds for
disciplinary action along the lines prevailing in human health
care systems; and
— a requirement for practising
certificates in addition to membership of the relevant regulatory
body, with renewal of the certificate being contingent upon fulfilment
of approved CPD.
Finally, it is proposed that the new Act should
be entitled "Veterinary Practice Act", that the term
"veterinarian" should replace "veterinary surgeon"
and that the definition of "animal" should be revised.
1. The need to replace the Veterinary
Surgeons Act 1966: Overall, there is a general consensus in
the UK that animals and the public are served very well by veterinary
surgeons.[2]
However, in the decades following the enactment of the Veterinary
Surgeons Act 1966 ("VSA 1966"), major changes and developments
have taken place in the following areas: the nature of veterinary
medicine itself (eg great expansion in the range and sophistication
of treatments); the manner in which services are delivered (eg
growing involvement of other occupations; the advent of corporately-owned
practices); changes in public attitudes (eg concerns over professional
regulation, particularly with regard to matters such as monitoring,
transparency, openness, accountability); and developments in the
general legal order (eg the Human Rights Act 1998, the Freedom
of Information Act 2000 and judicial decisions in cases concerning
professional regulation).
2. In the light of these developments,
the VSA 1966 is no longer suitable for regulating the practice
of veterinary medicine and should be replaced by a new statute.
The following submission proposes a variety of reforms for incorporation
into future legislation.
I. EXPANSION
OF THE
RANGE OF
PERSONS TO
BE REGULATED
3. The VSA 1966 regulates only veterinary
surgeons. This was appropriate at the time of the statute's enactment,
when regulation of the vet essentially achieved regulation of
the practice. The veterinary surgeon still plays a pivotal role,
but, as indicated above, there are now a variety of other occupations
involved. These include, for example, nurses, physiotherapists,
behaviourists, bovine ultrasound scanner operators and equine
dental technicians. Whilst these persons are for the most part
required to have recognised training, their work with animals
is not subject to full statutory regulation.[3]
4. It is submitted here that statutory regulation
of non-veterinary service providers is desirable in the interests
of animal welfare and public protection. Psychologically also,
acquiring the status of a regulated profession enhances the motivation
of the persons concerned, raises the profile of their work and
attracts good candidates into the field.
5. The various occupational groups involved
have already indicated a wish to be regulated—not by
vets—but alongside vets.[4]
The crucial task would be to find a form of organisation which
would allow for this whilst at the same time presenting a clear
and coherent face to the public.
6. There is also a need to regulate practices
and other legal persons involved in the provision of veterinary
services. This is particularly important in view of the growing
trend for practices to be corporately owned, possibly by parties
who are not veterinary surgeons and whose policies and practices
could conflict with the welfare of animals and/or the protection
of the public.
7. If the foregoing reforms were implemented,
the title of the new legislation should reflect its broadened
scope, eg "Veterinary Practice Act".
8. It is suggested that the new system could
be based on a framework comprising three professional regulatory
bodies and two overarching bodies which would be independent of
each other and of the professional regulatory bodies.
9. The three professional regulatory bodies
would be the RCVS Council plus two new bodies, a Veterinary Nurses
Council and a Veterinary Care Professions Council. The two independent
overarching bodies would be a Veterinary Board and a Fitness to
Practice Panel. In outline, these entities would function as follows.
10. The Regulatory Bodies: First,
the RCVS Council would continue to govern veterinary surgeons
and, accordingly, would maintain the register, set standards for
education, qualifications and professional conduct. Crucially,
though, it would cease to deal with disciplinary matters. The
Veterinary Nurses Council would perform similar functions with
regard to veterinary nurses. Finally, the Veterinary Care Professions
Council would regulate the remaining diverse providers of veterinary
services, in a way analogous to that exercised by the Health Professions
Council in relation to 13 different groups of human healthcare
professionals (eg arts therapists, biomedical scientists, podiatrists,
dieticians, etc).
11. In addition to the above functions,
the RCVS Council would have powers to regulate practices through
a system of inspection and issue of certificates of suitability.
12. The Veterinary Board: This would
monitor the performance of the regulatory bodies and would form
a single portal for the receipt and investigation of all complaints
and queries regarding veterinary practices and all groups of professionals.
This would promote uniform compliance with standards and would
facilitate access to the complaints system. The importance of
such an integrated system was highlighted by the Kennedy Report
on the Bristol heart surgery inquiry.[5]
13. The Veterinary Board should have powers
to issue warnings and advice and, in certain cases, to impose
interim suspensions pending formal disciplinary hearings. It should
also be able to impose conditions on practitioners where, for
example, training or medical treatment is required, but where
interim suspension or a formal hearing are not deemed to be necessary
in the interests or animals or the public.
14. Cases which are too serious or contentious
to be disposed of by the Board would be referred to the Fitness
to Practice Panel for a disciplinary hearing.
15. The Fitness to Practice Panel:
This would replace the existing Disciplinary Committee and would
be independent of the regulatory bodies and the Veterinary Board.
It would hear disciplinary inquiries for veterinary surgeons,
nurses and other veterinary care professionals. The independent
position of this body would accord with the right to a hearing
by an "independent and impartial tribunal established by
law" according to Convention Article 6 as scheduled to the
Human Rights Act 1998.
II. INVOLVEMENT
OF LAY
PERSONS
16. Mainly as a result of a series of notorious
health care cases in the 1990s and 2000s, the public now expects
greater involvement in the regulatory regimes for the professions.
Such involvement enhances transparency and public confidence in
the professions. Also, for the benefit of the professionals concerned,
it provides objective protection against accusations of undue
bias or self-serving.
17. Accordingly, it is submitted here that
lay persons should be appointed onto the governing bodies for
veterinary surgeons, veterinary nurses and other veterinary care
professionals. In the Kennedy Report, it was stressed that the
need to involve the public in professional regulatory bodies applies
as much to discipline as to other activities.[6]
Furthermore, it has been reported, in connection with hearings
before the General Medical Council and the General Dental Council,
that lay members of disciplinary panels make a valuable contribution,
asking astute and intelligent questions and displaying a talent
for addressing the pertinent issues.[7]
Therefore it is proposed that there should also be lay appointments
onto the Veterinary Board and the Fitness to Practice Panel (or
whatever terms are applied to the investigative and adjudicative
bodies concerned).
18. It is important that lay membership
should be explicitly prescribed in new legislation, rather than
being left to policy as is the case at present with regard to
RCVS Council appointees. This would not only guarantee its continuance
with time but would also provide for a consistent level of lay
representation. This would bring veterinary legislation in line
with statutory rules governing other professions such as medicine,
dentistry and nursing and midwifery in the UK and with recent
veterinary legislation in certain other jurisdictions such as
Ireland[8]
and New Zealand.[9]
19. Lay appointments should be made through
open competition and scrutinised by an independent panel.
III. DELEGATION
OF SPECIFIED
PROCEDURES
20. As veterinary science develops and new
medical and surgical treatments come on stream, veterinary nurses
and other members of the team are likely to be required, on a
repeated basis, to perform new tasks. Under the present Act, the
undertaking of such activities may require the cumbersome and
lengthy process of seeking ministerial orders under section 19
(5) to amend the provisions of Schedule 3 or to vary an order
previously made under subsections (4) or (5) of section 19.
21. In order to facilitate the delivery
of up-to-date veterinary services, whilst assuring the protection
of animals and the public, new legislation should give veterinary
surgeons power to delegate specific tasks of veterinary surgery
to people holding qualifications recognised by the RCVS Council.
IV. REVISION
OF THE
GROUNDS FOR
DISCIPLINARY ACTION
22. The VSA 1966, section 16 sets out three
grounds on which the Disciplinary Committee (DC) may take action
against a person's registration, namely criminal conviction, disgraceful
conduct in any professional respect and fraudulent entry in the
Register.
23. It is submitted that, for all professionals
concerned, these grounds should be revised. As a preliminary point
however, it is proposed that the legislative terminology should
be changed to reflect the fact that the underlying principle is
that of establishing the status of a person with respect to his
fitness to practise. Accordingly, the name of the adjudicatory
body, as mentioned at paragraph 15 above, should be changed from
"Disciplinary Committee" to "Fitness to Practise
Panel" (the term "panel" signifying the fact that
it is independent of any committee arrangement of the professional
regulatory body concerned). Also, the legislation should use the
expression "impaired fitness" rather than the current
term "unfit". This aligns better with the range of sanctions
that are actually imposed. Thus while the Act mentions only removal
and suspension from the register, the DC can, and does, exercise
its discretion to issue reprimands and warnings and to impose
conditions on practice. Clearly none of these options accord with
the impression created by the blanket term "unfit".
It is hoped that, for accuracy and transparency, any new legislation
would explicitly state all the sanctions at the disposal of the
adjudicatory body.
24. Turning to the question of statutory
grounds of impaired fitness, it is recommended that revisions
be made to all the existing grounds, ie convictions; fraudulent
entries; disgraceful conduct.
25. First, the ground of criminal conviction
should be expanded to cover convictions prior to registration
as well as determinations by other regulatory bodies. On a literal
interpretation of the present statutory wording, the DC does not
have jurisdiction to consider a situation where there has been
a conviction before registration. Amending the provision to cover
pre- as well as post-registration convictions would accord with
the view of Walter LJ in R v Prosthetists and Orthodontics
Board ex p Lewis,[10]
where his Lordship observed that the legislation
was "...intended to raise the standards of the profession
for the protection of the public", and went on to hold
as follows: "It would be absurd if conduct committed the
week before registration had to be ignored, whereas conduct during
the week after would lead to a striking-off from the register."[11]
26. Furthermore, the legislation should
explicitly confer power to consider determinations of other regulatory
bodies. This ground is included, for example, in the fitness to
practice rules of the General Medical Council,[12]
the General Dental Council[13]
and the Nursing and Midwifery Council.[14]
The case of RCVS v Humphrey (2001)[15]
indicates willingness to consider such determinations, and, for
the sake of transparency and for guidance to subsequent adjudicators,
it is appropriate for the ground to be enshrined in legislation.
27. Next, with regard to fraudulent entry,
it is submitted that this measure should be extended to cover
entries in the register which have been erroneously made. One
such case was referred to at several points during the course
of litigation between a Dr Uruakpa and the RCVS.[16]
Five years after the registration in question, the error was discovered
and the individual was removed from the register. It seems incongruous
that this sort of situation is not covered by statutory provisions.
Indeed erroneous registration is explicitly dealt with in the
legislation for medicine,[17]
dentistry[18]
and nursing and midwifery.[19]
28. Finally, the category of "disgraceful
conduct" should be abolished altogether and replaced by three
new grounds of impairment, namely, "misconduct", "deficient
professional performance" and "adverse physical or mental
health". It is recognised that the Disciplinary Committee
has actually managed to shoehorn this entire spectrum of cases
into the existing ground of "disgraceful conduct". Nevertheless,
it is argued that the statute should provide a more explicit list
of the categories under which fitness to practise may be called
into question. There are several reasons for this recommendation
and these are indicated in the following account.
29. "Misconduct" is favoured over
the term "disgraceful conduct in any professional respect"
which is an archaic expression failing to convey a notion of the
role of a modern regulator. Also, it creates the mistaken impression
that regulation is only about behaviour and has no bearing on
professional performance. Furthermore, it suggests that the culpable
conduct must take place within the context of professional activity,
and that misdemeanours outside the sphere of work do not count.
The decisions of the RCVS Disciplinary Committee clearly show
that this picture does not prevail in reality.
30. The switch from "disgraceful conduct"
to "misconduct" would not lead to vets being unfairly
impugned for minor events, as existing case law would continue
to provide guidance to adjudicators. It is relevant to note that
"misconduct" has replaced "serious professional
misconduct" for medics,[20]
dentists[21]
and nurses/midwives.[22]
31. With regard to the issue of performance
at work, the expression "deficient professional performance"
should be adopted in order to denote work which is of such a standard
that it calls into question a person's registration. The adjective
"serious" need not appear, since the standard of the
performance will have to be judged in the context of whether it
has impaired the practitioner's fitness to practise.
32. In some performance cases, one would
anticipate that there will be scope for remedial intervention,
eg imposition of conditions on practice, undertaking prescribed
training or study. These options should appear in the statute.
33. The final proposed new ground for impaired
fitness is that of "adverse physical or mental health".
Veterinary medicine can be a very stressful profession and veterinary
surgeons suffer from certain health problems at significantly
higher rates than the general population.[23]
This situation should be recognised by the introduction of a specific
statutory ground of impairment caused by adverse physical or mental
health. At present, the DC must manage health-related problems
under the heads of conviction or disgraceful conduct. Where some
form of continued practice is deemed suitable (and this is not
always the case), the Committee postpones judgment subject to
agreement to certain conditions, including undergoing medical
treatment. For such cases, however, it is submitted that the establishment
of a distinct health ground has the advantage of moving the respondent
out from the conviction or conduct grounds and the associated
connotations of blameworthiness. This reform is in line with fitness
to practice legislation for other professions in the UK[24]
and with recent veterinary legislation in certain other jurisdictions.[25]
V. DEFINITIONS
34. There are two points of contention here.
These concern the use of the term "Veterinary Surgeon"
and the definition of "animal".
35. The term "Veterinary Surgeon":
Whilst it is clear from the Interpretation section of the 1966
Act that veterinary surgery covers medical as well as surgical
functions, this fact may not always be clear in the mind of the
public. Therefore it is suggested that the expression "veterinarian"
would be more suitable. This proposal is based on my own experience
of situations where people have expressed the belief that the
title denotes some sort of specialisation on the part of the practitioner
in question. In particular, on two occasions I have heard neighbours
reporting that they had taken an animal to a particular practice
because the vets were all surgeons and therefore would
be better qualified should the animal need an operation. In each
case the person concerned was quite taken aback to hear that all
registered vets are designated as "veterinary surgeon"!
36. The RCVS Council has already discussed
the case for adopting the designation "veterinarian"
and this change was supported on a show of hands by 16 in favour
as against only 7 in favour of retaining the present terminology.[26]
37. The definition of "animal":
In the Interpretation section we find this cryptic expression:"
"animals" includes birds and reptiles". What is
the significance of this statement? Why would birds and reptiles
not be included among animals? Does it imply that creatures
further down the evolutionary scale such as amphibians and fish
are not included? Presumably it does not intend to exclude
them. For example, amphibians and fish and even octopods used
in scientific experiments come under the protection of the Animals
(Scientific Procedures) Act 1986 and, accordingly, fall within
the remit of a veterinary surgeon.
38. New legislation should define animal
in a clearer way, along the lines found in certain other jurisdictions,
for example:
"animal" means an animal of the Kingdom
Animalia other than a human being" (Ireland: Veterinary Practice
Act 2005, s 2(1)); or
"animal" includes an unborn animal,
but does not include a human being" (Province of Alberta,
Canada: Veterinary Profession Act 2006, s 1(a)).
A mention of the unborn animal is helpful, given
the importance of veterinary obstetrics, particularly with regard
to farm animals.
VI. KEEPING UP
TO DATE
39. Veterinary surgeons and other service
providers should be legally required to keep up their skills by
doing a prescribed amount of relevant CPD each year so as to qualify
for an annual licence/practice certificate which would be separate
from registration with the College. This system, which is in place
for lawyers enrolled in the Law Society of Scotland, benefits
the practitioner and promotes public confidence in the profession.
CPD is already the norm in the veterinary profession and it would
be helpful to crystallise it as a statutory requirement for all
veterinary service providers.
VII. ENSURING
FLEXIBILITY
40. Finally, a new Act should contain a
provision equivalent to section 60 of the Health Act 1999. This
would facilitate the modification of the regulatory system, including
amendment of the primary legislation, by way of making orders
in Council where change is needed in order to secure improvements
or adaptation to new circumstances.
September 2007
2 Woodbine, U (2006) Public Trust Levels High for
Veterinary Surgeons, Veterinary Times, 20 February,
p 4. Back
3
Farriers are an exception to this pattern as they are constituted
as a profession regulated under the Farriers Registration Act
1975 as amended. Back
4
See for example RCVS "Latest News" (7 March 2005) Latest
Discussions on Veterinary Surgeons Act Review, www.rcvs.org.uk Back
5
See Synopsis at paras 7 and 19 (www.bristol-inquiry.org.uk) Back
6
Final Report Summary-Recommendations 105 and 158. Back
7
Robertson, M (2007) "The Role and Responsibilities of Tribunal
Panel Members", Professional Discipline Update Seminar,
Shepherd and Wedderburn Solicitors, Edinburgh (22 May). Back
8
Veterinary Practice Act 2005, s 16. Back
9
Veterinarians Act 2005, s 77. Back
10
[2001] EWCA Civ 837. Back
11
para 33 of the judgment. Back
12
Medical Act 1983, s 35C. Back
13
Dentists Act, s 27(2)(g). Back
14
Nursing and Midwifery Order 2002 (SI 2002/253), art 22(1)(v). Back
15
www.rcvs.org.uk/ Back
16
No EAT/1074/98; [2005] EWCA Civ 667. Back
17
Medical Act 1983, s 39. Back
18
Dentists Act 1984, s 24(2). Back
19
Nursing and Midwifery Order 2001 (SI 2002/253), art 22(b). Back
20
Medical Act 1983, s 35C(2)(a). Back
21
Dentists Act 1984, s 27(2)9a). Back
22
Nursing and Midwifery Order 2001, art 22. Back
23
See for example Kinlen, LJ (1983) "Mortality among British
Veterinary Surgeons", British Medical Journal 287,
p 1017 and Mellanby, RJ (2005) "Incidence of Suicide in the
Veterinary Profession in England and Wales", Veterinary
Record, vol 157, p 415. Back
24
Eg medicine (Medical Act 1983, s 35C(2)(a)); dentistry (Dentists
Act 1984, s 27(2)(c)). Back
25
Eg Ireland (Veterinary Practice Act, s 76(1)(b)); New Zealand
(Veterinarians Act 2005, s 44(5)). Back
26
RCVS (2004) Minutes of the Extra-Ordinary Meeting of Council
Held on 3 March (available at www.rcvs.org.uk). Back
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