Legislative reform consultation

The LWP recommends that the RCVS should have the power to impose interim orders, i.e. a temporary restriction on a veterinary surgeon or nurse’s right to practise pending a final decision by DC where a veterinary surgeon or nurse poses a significant risk to the public or to animals. Interim orders are already used by the regulators of other healthcare professions. The decision to impose an interim suspension would be determined by a panel. Typically, an interim orders tribunal hearing can choose to take no action, impose conditions to limit practise or behaviour, or suspend the individual while investigations are under way. Interim orders are reviewed regularly.

By design, the use of interim orders would be very rare. Interim orders would only be applicable where the risk to animal health and welfare was high and the case against the veterinary surgeon or nurse was overwhelming and particularly clear-cut. In these rare circumstances it is not acceptable, from an animal health and welfare or public interest perspective, for a veterinary surgeon to be able to continue to practise while awaiting the outcome of their case.

Every veterinary practice must be compliant with a number of laws and regulations relating to standards. At present, these are covered by the ‘Core Standards’ level of the RCVS’s Practice Standards Scheme (PSS). However, as that scheme is not mandatory the RCVS has no power to assure that these standards are being met in a significant minority of practices. It is well understood that there are many excellent practices who are not members of the PSS, but it is the role of a regulator to assure and uphold standards – it cannot merely assume them.

Mandatory practice regulation would provide this assurance for the public by ensuring that all practices are inspected. Any mandatory scheme could look somewhat different to, and sit alongside, the existing PSS scheme.

A mandatory scheme would be somewhat toothless without the College having Powers of Entry to ensure that they are able to inspect practices, in line with the powers currently held by the Care Quality Commission (CQC) in the human healthcare sector.

The LWP agreed a number of overarching principles when considering any future recommendations for reform of the VSA. One of these was that “the vet-led team should fall under a single regulatory umbrella”. The LWP report builds on the RCVS Review of the Minor Procedures Regime (RMPR) report published in January 2019, which resulted in RCVS Council approving a pathway for veterinary and animal health paraprofessionals to become associates of or accredited by the College, and therefore fall within the College's regulatory remit.

In this way it is anticipated that the standards of all those working in the vet-led team could be underpinned by the RCVS, similarly to the model used by the General Dental Council. Regulation is particularly important where a paraprofession’s work includes acts of veterinary surgery. This is one of the key recommendations of the report, and it is an example of where the LWP has sought to examine and learn from what other regulators do and use this to make recommendations that would allow our regulation to be more responsive to future changes. Additional allied professions working in the vet-led team could be added over time, ensuring that all those working in the vet-led team fall under the appropriate registration, continuing professional development and disciplinary proceedings to ensure the highest standards of animal health and welfare and public confidence.

The LWP supports statutory protection for the professional titles of all allied professions regulated by the RCVS, including veterinary nurses. This would give better clarity and assurance to both the professions and the public.

Over the years, the veterinary nursing profession has expanded and developed considerably, and RVNs are now an allied profession in their own right, regulated by the RCVS under its Royal Charter powers. This was not always the case. In 1988 a Statutory Instrument (SI) was introduced that aimed to protect animal welfare by reserving certain tasks to veterinary surgeons that had previously been performed by untrained lay people. This included cat castrations, as at this time the veterinary nursing profession was newly formed and the Schedule 3 amendment to the VSA which allowed for VNs to undertake minor acts of veterinary surgery was still three years away.

This effectively removed the ability for VNs to carry out cat castrations. However, the LWP recognises that the veterinary nursing profession has developed significantly since the introduction of the SI. Veterinary nurses are no longer ‘lay people’, but are properly regulated allied professionals in their own right. The LWP also considered the work of the Veterinary Nursing Schedule 3 Working Party, and its survey of both vets and VNs, which supported VNs being able to undertake additional work that is not currently permitted, including cat castrations. The LWP therefore recommends that RVNs should be able to carry out cat castrations, a relatively low-risk procedure, under the direction and supervision of a veterinary surgeon. A veterinary surgeon would always need to be on hand to assist should complications develop.

The RCVS is in a small minority of regulators – and the only major regulator - at home and in comparable jurisdictions abroad, that still applies the criminal standard of proof, ie using ‘beyond reasonable doubt/so as to be sure’, when deciding the facts of a case, as other regulators have now moved to the civil standard, ie ‘the balance of probabilities/more likely than not’.

In light of the primary purpose of regulation, the civil standard is considered to be the more appropriate standard of proof as, as the Law Commission explained in its 2014 report on the regulation of health and social care professionals in England, ‘it is not acceptable that a registrant who is more likely than not to be a danger to the public should be allowed to continue practising because a panel is not certain that he or she is such a danger’.

The standard of proof used by a disciplinary process applies only to proving the facts of the case. If the standard was changed from criminal to civil within the current disciplinary structure (as opposed to a more comprehensive move to replace ‘serious professional misconduct’ with a ‘fitness to practise’ regime), the question of whether or not what has occurred amounts to serious professional misconduct would remain, as now, a matter for the judgement of the tribunal. More often than not, it is this that is the key question facing the tribunal rather than a dispute about facts.

Changing to a civil standard of proof would not be changing from ‘being sure’ to having no standard at all, as is sometimes perceived, nor is it the introduction of “easy” prosecutions, where each and every allegation made by a complainant is simply accepted. Respondents would still be entitled to full legal representation, be entitled to challenge any evidential assertions in the course of a hearing, and continue to benefit from evidential protections such as good character and hearsay directions. A change to the standard of proof also does not mean that matters would not continue to be robustly investigated.

One obvious potential effect of changing the standard of proof when deciding the facts of case – and one much talked about – is that it would lead to an increase in the volume of cases being referred to Disciplinary Committee (DC). We do not anticipate that this would be the case.

In order to estimate the impact in numbers of any change to the civil standard, a comprehensive review of all cases dealt with by the Preliminary Investigation Committee (PIC) in 2019 was carried out.

Of 103 Preliminary Investigation Committee (PIC) decisions to close a complaint, 16 decisions were identified where there may have been some, however remote, possibility that a different decision could have been made had the standard of proof been the civil rather than criminal one. In all other cases, the reasons for closure by PIC would not have been affected by the standard, for example, because in the Committee’s view there was no real prospect of the facts, even if they were proved, amounting to serious professional misconduct.

These 16 decisions were then considered and assessed jointly by the Registrar, Head of Professional Conduct, and external solicitors. An assessment was made as to whether, if the PIC had been considering a case in the context of the civil rather than criminal standard of proof being applied by the Disciplinary Committee, a different decision may have been reached.

Of the 16 closed cases considered, there were only two identified where it was considered that the PIC might have made a different decision and forwarded the matter to the Disciplinary Committee had the standard of proof been civil rather than criminal. In addition, there were three cases that might be considered borderline, but on balance, the review was of the opinion that a change to the standard of proof would not have altered the decision. Conversely, we also estimated that three cases that did go to DC during 2019 would probably not have done, had the ‘Charter Case Committee’ option been available. A ‘Charter Case Committee’ would have the remit to conclude cases referred to it by the PIC. It would have a defined and limited range of disposals available to it; these could include for example: issuing a public warning; issuing a private warning; issuing public advice (i.e. advice published on the RCVS website); or issuing advice that would remain private.

Many of the closed cases that were considered as part of the review involved clinical allegations where PIC had taken the view that, even if proved, there was no real prospect of the facts being found to amount to serious professional misconduct.

As can therefore be seen, the likely increase in the number of cases being referred from PIC to DC were the civil standard to be applied is low and chimes with a comment made by the General Optical Council (GOC) that ‘the experience of the GOC is that very few cases turn on disputed facts; the central issue is generally whether agreed facts amount to professional misconduct / impairment of fitness of practise, and what is the appropriate sanction.’