Part 4: Introduce a modern ‘Fitness to Practise’ regime

43. Under the VSA, the RCVS may only take action where there has been ‘serious professional misconduct’ (SPMC). The definition of SPMC is widely accepted as conduct which falls far below the standard expected of a veterinary surgeon. As such, the RCVS can only deal with the most serious of allegations, and negligence, ie conduct falling below the standard expected, falls outside the scope of the RCVS’ powers.

44. Almost all human healthcare regulators operate a variant of the ‘Fitness to Practise’ (‘FTP’) model^[6]. The key characteristic of the FTP model is that it focuses on whether or not a registrant’s fitness to practise is ‘currently impaired’, rather than whether they have been guilty of SPMC in the past. Prior to FTP, the prevailing model for regulation was the ‘unacceptable professional conduct’ (‘UPC’) model (a concept very similar to disgraceful conduct/SPMC); however, this model is now considered to be outdated as it is backward-looking, i.e. focusing on past misconduct. By way of contrast, the emphasis of FTP is forward-looking, i.e. focusing on whether there is any risk to the public or the public interest. Moving the focus away from disgraceful conduct would also allow the RCVS to consider matters where a practitioner’s fitness to practise is impaired for other reasons (such as those currently addressed by the existing RCVS Health and Performance Protocols) which in turn would better protect animals and the public.

45. In a recent paper^[7], the Professional Standards Authority (PSA) called for a number of reforms of the FTP model, and the LWP’s recommendations take these latest proposals into account.

46. The LWP recommends that any new legislation should include measures with a view to achieving the following:

a. A ‘forward-looking’ process with the protection of animals and the public at its heart

b. An enhanced suite of powers available to enable more effective investigations and case management

c. A reduction in the length and cost of investigations/proceedings wherever possible

d. The ability to amend/update legislation more easily in the future as systems and thinking develops.

47. In addition to these broad objectives, there are also a number of specific matters that require attention. All of these matters, broad and specific, are explored in more detail below. 

A 'forward-looking' process with the protection of animals and the public at its heart:

48. Legislative changes in a number of areas would assist the RCVS in achieving this objective:

Recommendation 4.1: Introducing the concept of 'current impairment'

a. Under the current system, if a veterinary surgeon or veterinary nurse is found guilty of misconduct the Disciplinary Committee (DC) proceeds straight to the sanction stage, and the sanction is determined on the basis of that past misconduct. The LWP recommends that this is changed in line with the fitness to practise model. Under this system, DC would need to be satisfied that the veterinary surgeon’s or nurse’s fitness to practice is currently impaired before it could proceed to the sanction stage. This means that in circumstances where the veterinary surgeon or nurse has taken steps to remediate their failings and shown significant insight into what has gone wrong, the DC may conclude that there is no (or very low) risk of repetition of similar behaviour and as such, the veterinary surgeon’s fitness to practise is not currently impaired. If the DC comes to this conclusion, it must dismiss the case without proceeding to sanction, even though the veterinary surgeon or nurse has been guilty of misconduct in the past. This approach is more consistent with the aims of regulation, because it focuses on whether the veterinary surgeon or nurse currently poses a risk to animals and the public, rather than whether he or she has posed a risk in the past.

Recommendation 4.2: Widening the grounds for investigation

b. At present, the RCVS may only investigate where there is an allegation that could amount to SPMC. This means that the RCVS may not intervene in cases where a practitioner might pose a risk to animals, the public or the public interest for other reasons.  For cases involving allegations of poor performance or ill-health affecting a veterinary surgeon or nurse’s ability to practise safely, the RCVS has devised the Health and Performance Protocols, which provide a framework for the RCVS to work with an individual towards the common aim of becoming fit to practise, however these can only be engaged with the consent of the individual concerned. Where there is no consent, the PIC have no option but to refer the matter to the DC. A more satisfactory situation might be the option to refer such cases to a dedicated ‘health’ or ‘performance’ committee that has a range of appropriate and proportionate powers designed to support the veterinary surgeon or nurse in regaining their fitness to practise.

Recommendation 4.3: Introducing powers to impose interim orders

c. 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. The current lack of power to impose interim orders is not only problematic during the investigation stage, it is also an issue in cases that have been through the full hearing process and DC have decided to suspend or removal a practitioner’s registration. In such cases, there is a statutory appeal period of 28 days and, as such, the sanction does not take effect until that time has elapsed (and if an appeal is lodged, not until that the appeal is dismissed or withdrawn). The result of this is an illogical situation where DC have determined that a practitioner is not fit to practise and yet they are permitted to practise for 28 days or significantly longer (sometimes up to a year) depending on whether or not an appeal has been lodged.

Recommendation 4.4: Introduce reviews of suspension orders

d. At present, DC has no power to review the suspension orders it imposes; in other words, if a practitioner is suspended for six months they are automatically restored to the Register once that time has elapsed, whether or not they are fit to be restored. The practical effect of this is that where DC has concerns regarding a respondent’s fitness to practise, it has no choice but to remove them from the Register completely as it is the only way to retain any control over that person’s restoration to the Register. The LWP recommends that DC be empowered to review suspensions and, if necessary, extend the suspension or impose conditional registration as part of that review; they would then be able to ensure protection of animals and the public and, at the same time, impose a less onerous sanction on the veterinary surgeon or nurse.

Recommendation 4.5: Introduce a wider range of sanctions

e. The range of sanctions available to DC is very limited, in that it may only issue a reprimand or warning or suspend or remove an individual from the Register^[8]. The LWP recommends that DC be given the power to impose conditional or restricted registration (also known as ‘conditions of practice orders’), a power almost all other regulators have. Again, the power to impose conditions of practice orders would allow DC, in suitable cases, to adequately protect animals and the public by imposing a less onerous sanction.

An enhanced suite of powers available to enable more effective investigations and case management:

49. There are a number of additional powers that would enable the RCVS to better achieve this objective. These are outlined below:

Recommendation 4.6: Introduce the power to require disclosure of information

a. Other regulators, including the healthcare regulators, have statutory power to require disclosure of information where that information may be relevant to a fitness to practise investigation. By way of contrast, the RCVS has no such power and instead must rely on the cooperation of the relevant parties, which is not always forthcoming. In recent times, the RCVS has had particular difficulty in obtaining information from a number of organisations, which has resulted in difficulties with investigations. This situation is unsatisfactory as it hinders the RCVS from effectively carrying out its investigative duties; the LWP recommends that this is remedied.

A reduction in the length and cost of investigations/proceedings wherever possible:

50. There are a number of areas where legislative change could reduce the length and cost of investigations and disciplinary hearings:

Recommendation 4.7: Formalise role of Case Examiners and allow them to conclude cases consensually

a. At present the RCVS does have a ‘case examination’ stage, but it does not operate a true Case Examiner (CE) model. In the case of other regulators that use the CE model (e.g. the General Medical Council (GMC), GDC, Nursing and Midwifery Council (NMC) and General Optical Council (GOC)), CEs make decisions in pairs (one registrant and one lay) and, in some cases, one or both are employees of the regulator. CEs also have powers that allow them to dispose of suitable cases consensually where the threshold for referral is met (so long as the wider public interest can be satisfied by disposing of the case in this way). This model is more cost effective than convening the Preliminary Investigation Committee (PIC) for all decisions (NMC has recently reported a year-on-year decrease in FTP spending and has attributed this, in part, to the introduction of CEs). It allows for quicker and more consistent decision-making, and is less stressful for the respondent if the case is subject to consensual case conclusion. The CE model may be particularly useful in health and performance cases where undertakings or conditions are used (similar to the result achieved by the RCVS Health and Performance Protocols).

51. The LWP have also made recommendations in relation to restoration periods, the appeal process and case management conferences: see Annex A for details.

Standard of proof

52. The RCVS is in a small minority of regulators – and the only major regulator – that still applies the criminal standard of proof, ie 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, i.e. 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 is set out in the 2004 rules and as such, can be amended without the need for a change in primary legislation. Consideration of this issue was included in the last two RCVS Strategic Plans, and is being considered separately by RCVS Council, but is included here for completeness.^[9]

Recommendation 4.8: Futureproofing of the disciplinary process

53. The RCVS’ disciplinary process derives directly from the VSA, which is a piece of primary legislation. As a general principle, primary legislation is not easy to amend and, even where there is appetite for amendment from Defra (which is not guaranteed), doing so usually requires a lengthy, drawn out process. In recent years, the RCVS has twice amended the VSA by Legislative Reform Order (LRO), however the scope of amendment that can be achieved by LRO is limited and so it is unlikely to be the correct instrument for achieving the degree of disciplinary reform recommended in this report.

54. A new Act of Parliament is likely to be required to achieve the disciplinary reforms proposed above (and in this report in general). The LWP therefore recommends that disciplinary reform is implemented predominantly through secondary legislation, with primary legislation serving only to enable that secondary legislation. An example of how this could work is the Health and Care Act 1999 (HCA) which, at section 60, enables the named healthcare regulators to modify their regulatory processes in any way ‘that is expedient for the purpose of securing or improving the regulation of the profession or the services which the profession provides or to which it contributes’ through an Order in Council^[10].  

55. However, even an Order in Council in not necessarily a straightforward process and may still take a significant amount of time (for example, it took the GDC just over two years to obtain an order in relation to case examiners). As such, the LWP recommends that if other legislative mechanisms exist that would allow more flexibility and enable the RCVS to amend legislative provisions more quickly as time moves on and attitudes change then these should be considered. These could include a mechanism similar to those in the new Social Workers Regulations 2018, allowing reform subject to rules concerning consultation requirements and approval by the Secretary of State.

^[6] First Rate Regulator report 2013, P34
^[7] https://www.professionalstandards.org.uk/docs/default-source/publications/thought-paper/right-touch-reform-2017.pdf?sfvrsn=2e517320_7
^[8] DC may also take no further action or postpone judgment (with or without undertakings) for up to two years, however these are powers are not true ‘sanctions’
^[9] Any paper presented to RCVS Council regarding changing the standard of proof to the civil standard would be subject to consultation, and would be likely to also include proposals for a range of new options for concluding cases might be implemented under the current framework, along with a package of measures to expand the range of sanctions.
^[10] A secondary piece of legislation approved by the Queen on the advice of the Privy Council