Standard of proof: an open letter to Vet Record

RCVS President Dr Niall Connell has written an open letter to Vet Record following its publication of an article ‘Standard of proof for disciplinaries could change’ on 18 January to summarise the full range of discussion that RCVS Council held at its meeting on 23 January, and to provide some further background to Council's thinking at this early stage.

The Editor
Veterinary Record

28 January 2020

Dear Editor

Following publication of your article ‘Standard of proof for disciplinaries could change’ (VR, 18 January 2020, vol 186, p 43), I should be grateful for the opportunity to summarise the full range of discussion that Council considered at its meeting on 23 January (of which potentially changing the standard of proof was only one element), and to provide some further background to Council’s thinking at this early stage. At the outset, I would emphasise that no decisions have yet been made, nor would they be without consultation.

At the outset, I would emphasise that no decisions have yet been made, nor would they be without consultation.

For some years now the RCVS has been looking at innovative and creative ways to modernise its regulatory procedures within the constraints of the Veterinary Surgeons Act 1966, with the ongoing aim that they remain fit for purpose, maintain public trust and handle all cases fairly, objectively and, increasingly, compassionately.

In 2013, membership of the Preliminary Investigation and Disciplinary Committees was separated from that of Council, with members of those committees independently appointed. Separate processes have been implemented to allow for health- and performance-related cases to be handled through a different route, avoiding a full disciplinary hearing where it might be inappropriate or unnecessary. And, under our Charter powers, we have successfully introduced alternative dispute resolution via the Veterinary Client Mediation Service to help resolve those ‘lower-level’ concerns that do not meet the threshold for serious professional misconduct.

These other measures ... include the possibility of extending the range of options for concluding cases with introduction of a broader (and less severe) range of outcomes.

Reviewing the standard of proof applied in our concerns investigation and disciplinary processes has also been on the College’s agenda for some time, initially as part of the First-Rate Regulator initiative in 2013, before being incorporated into our 2014-16 and 2017-2019 Strategic Plans, and then being considered by our Legislation Working Party.

It is coming before Council for discussion at this point as part of a broader range of measures that result from the modern interpretation of both RCVS statutory and Charter powers. These other measures, if adopted, include some structural changes to the concerns investigation process with the intention of simplifying it, potentially speeding it up and providing greater clarity and transparency. They also include the possibility of extending the range of options for concluding cases with introduction of a broader (and less severe) range of outcomes. Other regulators that apply the civil standard of proof typically have a broader range of options at their disposal when dealing with fitness to practise cases, as a result of more up-to-date legislation.

Regarding standard of proof specifically, our main reason for addressing this is not, as has been surmised by some, to bring more veterinary professionals before the DC, although I can understand the widespread disquiet and anxiety that this premature conclusion has caused. It is instead a question of asking Council to consider what is regulatory best practice for the veterinary professions, in order to best protect the public and maintain its trust in professional regulation – such trust is complementary to, but not the same as, the deservedly high levels of public trust in veterinary professionals themselves, as re-evidenced in our recent trust index survey. Indeed, the fundamental purpose of professional regulation is the protection of the public and not the punishment of the individual where misconduct has been found.

Our main reason for addressing this is not, as has been surmised by some, to bring more veterinary professionals before the DC, although I can understand the widespread disquiet and anxiety that this premature conclusion has caused

Changing the standard of proof required in our regulatory proceedings from criminal (‘so as to be sure’) to civil (‘on the balance of probabilities’) potentially affords this greater level of public protection and confidence, which is why all other healthcare (and most other) regulators have already made this change. In its 2014 report on the regulation of health and social care professionals in England, the Law Commission explained that:

‘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 to practise because a panel is not certain that he or she is such a danger.’

Whilst introducing a lower standard of proof could result in more cases progressing further through the disciplinary process, it is not certain. To help in its decision making, Council has asked for a review of past cases to consider what, if any, effect this might have had on whether they would have progressed to DC and the outcomes. Such a change would not, of course, alter the facts of any particular case, but it is incumbent on the College to ensure it has the means to deal with all cases appropriately, fairly and proportionately.

I would reiterate that Council’s consideration of all these proposals is at a very early stage. Its only decision in January was to ask for more information and data so that it can consider and scrutinise them in more detail at a future meeting.

Should Council subsequently decide to further pursue the proposal to change the standard of proof, this would then be put out to public consultation later in the year, thereby allowing all veterinary professionals, as well as members of the public and other stakeholders, the opportunity to share their views with us.

Yours faithfully

Dr Niall Connell MRCVS

President
Royal College of Veterinary Surgeons