Privy Council partially upholds appeal against decision to remove vet from the Register

The Privy Council has partially upheld and partially dismissed an appeal submitted to it by Dr Gerhard Schulze Allen against a decision by the RCVS Disciplinary Committee in January 2018 to direct that his name be removed from the Register.

The Disciplinary Committee had directed that Dr Schulze Allen’s name be removed from the Register after finding him guilty of serious professional misconduct in respect of four charges against him. These related to his conviction for petty theft in California in the United States, and his subsequent dishonesty in not disclosing the conviction to the RCVS.

Following the Disciplinary Committee hearing, Dr Schulze Allen submitted an appeal to the Privy Council. The basis of his appeal revolved around whether, under Californian law, his conviction for petty theft was a conviction for a criminal offence, or whether it was a conviction for an infraction of petty theft, and whether an infraction under US law was a criminal offence.

The Privy Council considered the background to the case, noting that Dr Schulze Allen had been unclear in his position as regards the conviction during the course of his initial dealings with the RCVS, and had only produced evidence to the Disciplinary Committee after it had made its decision as to the facts. The Privy Council also had regard to a decision made by Judge Berg in the US Administrative Court in July 2018 who, when considering Dr Schulze Allen’s appeal against the Veterinary Medical Board in California’s refusal to grant him a veterinarian licence, decided that whether an infraction for petty theft was a criminal offence is “open to interpretation” under US law.

In relation to the College’s first charge against him – namely, that Dr Schulze Allen was convicted of a criminal offence – the RCVS argued that, while the theft is not a criminal felony in California, under English law it would be considered so.

The Board of the Privy Council which heard the appeal – comprising Lords Wilson, Carnwath and Lloyd-Jones, found that, in relation to this charge, the RCVS had not proven beyond all reasonable doubt that Dr Schulze Allen was convicted of a criminal offence under Californian law. It therefore upheld Dr Schulze Allen’s appeal against the Disciplinary Committee’s finding that he had committed a criminal offence.

The Privy Council then considered Dr Schulze Allen’s appeal against the third and fourth of the charges against him - that he was dishonest in his representations to the College that he did not have a ‘criminal’ conviction and did not have a ‘criminal record’. The Privy Council found that, since the conviction for petty theft was an infraction, and was not a criminal offence and did not leave Dr Schulze Allen with a criminal record, then, strictly speaking, his representations to the RCVS were not false and so upheld his appeal against these two charges.

The Privy Council then considered Dr Schulze Allen’s appeal against the College’s second charge against him. This charge was that he had, in a written application for restoration to the Register, represented that he did not have any cautions, criminal convictions or adverse findings. The College argued that he still had a responsibility to make a full and frank disclosure about his infraction, even if it did not meet the threshold of ‘criminal’ under Californian law.

The Board of the Privy Council noted that it had, on Dr Schulze Allen’s behalf, done its best to identify some argument that his conviction for an infraction, namely for petty theft, does not amount to an “adverse finding”, but the Board concluded that, in that quest, it had failed. The Board finding that “the conviction obviously amounted to an adverse finding.”

The Board agreed with the College’s argument, saying that veterinary surgeons, upon renewing their registration, are expected to declare any ‘convictions, cautions and/or adverse findings’ and decided that Dr Schulze Allen should have declared the petty theft conviction on the basis that it should be considered an adverse finding. The Board concluded that “there is no material by reference to which the Board [of the Privy Council] can depart from the [Disciplinary] Committee’s conclusion that, in answering “no” to that question, he knew that his answer was untrue. In other words, his denial was dishonest.”

In its conclusion the Privy Council stated: “The Board therefore allows the appeal against the [Disciplinary] Committee’s conclusion on the first, third and fourth charges. But it dismisses the appeal against its conclusion in relation to the second charge, namely that in that regard Dr Schulze Allen had been guilty of disgraceful conduct in a professional respect.”

In relation to the Disciplinary Committee’s sanction requesting that Dr Schulze Allen be removed from the Register, the Privy Council determined that it would set “aside the sanction which the Committee imposed on him and remits to them the task of identifying the appropriate sanction in relation to the second charge.”

As a result of the Privy Council’s decision, the Disciplinary Committee will be holding a further hearing in relation to Dr Schulze Allen to decide the sanction in relation to the second charge against him. The date of this hearing is yet to be determined. In the meantime Dr Schulze Allen remains on the Register of Veterinary Surgeons.