RCVS v Chikosi - Racist and illogical?

Much has been written over the past few weeks about the judgment of the Disciplinary Committee of the RCVS in the case of Munhuwepasi Chikosi. A great deal of the discussion has little or no relevance to facts that lead to the outcome of the case; instead  focusing on issues such as – should a blanket be used to move an injured animal?

Mr Chikosi had been charged with unreasonably delaying in attending to Mitzi (the injured dog) and/or allowing Mitzi to remain in pain and/or suffering for longer than was reasonably necessary.

Unfortunately, Mr Chikosi was unrepresented at the hearing and what factors, if any, he had considered, which may have explained his delay before attending to Mitzi at the farm were unexplored. However, at paragraph 31 of their judgment the Committee concluded that Mr Chikosi’s conduct may have been the result of his being an “overseas veterinary surgeon”.

In recent months it has been suggested in the veterinary press that the racial origin of a veterinary surgeon may have been an influencing factor in some of the decisions that have been handed down by the RCVS’ Disciplinary Committee. Had Mr Chikosi chosen to take his case to the Privy Council, this reference to his race would probably have constituted grounds for appeal.

For Mr Chikosi to be guilty of allowing Mitzi to remain in pain and/or suffering for longer than was reasonably necessary two questions have to be answered. The first, was Mitzi in pain? If this were answered in the affirmative the second question would be, how long was Mitzi in pain? Neither of these questions has been satisfactorily addressed in the Committee’s written judgment.

Mr Mathews (Mitzi’s owner) phoned Vets Now and said that he had run over his dog and it was in considerable pain. It would be reasonable to conclude that Mr Mathews’ assessment was honest, but one cannot determine if it was accurate, not to the standard of proof required: “to be sure”. An injured animal thrashing involuntarily in the immediate aftermath of an accident may suggest it is in pain to a lay person but as any medically trained person knows this is often not the case.

At paragraph 28 of their judgment the Committee states that the evidence that Mitzi was in pain was that she uncharacteristically bit Mr Mathews’ son. This “proof” is less than rational. There are many reasons why a severely injured animal might uncharacteristically bite, pain is one of them; other reasons include fear, seizure, shock, hypoglycaemia and confusion.

It is possible that Mitzi suffered pain when moving her was attempted and it is possible that this induced her to bite Mr Mathews’ son. But, if this were the case, the question that has to be asked is, was the pain inflicted, in this instance, unnecessary? By direct analogy, a severely injured person in the road may be totally pain free but on moving the patient from the road surface to a stretcher may cause considerable, but necessary, pain. If the infliction of pain is not unnecessary it is not unlawful.

As suggested above, even if Mitzi were in pain at the time the owners attempted to lift her it is not evidence that she was in pain whilst on the ground. If it is not proved that Mitzi was in pain Mr Chikosi would have no charge to answer.

At paragraph 19 Mr Chikosi is quoted as diagnosing Mitzi’s status as hypothermic and in hypovoleamic shock. The Committee’s own, unsubstantiated, opinion at paragraph 28, that Mitzi probably had major internal organ damage. This, added to Mr Chikosi’s own clinical assessment, suggests that Mitzi would probably have lapsed into insensibility reasonably quickly. One has to ask, how did the Committee come to the conclusion at paragraph 28 that, if Mitzi were in pain it would have been for at least one hour?

A second ground for appeal to the Privy Council, had Mr Chikosi chosen to pursue the matter would have been that the Disciplinary Committee had not discharged their burden of proving the charge to the required standard.

The right to appeal the Disciplinary Committee’s decision to the Privy Council is Mr Chikosi’s alone. This fact was also voiced by Mr Richard Dixon, group managing director of Vets Now, in a recently published article. Mr Dixon was responding to the question “will you/Vets Now be appealing?” Mr Dixon said “It is a shame that the RCVS doesn't have an internal process that would enable them to review their decision.”

The process which will enable the RCVS to look again at its decision is judicial review. Judicial review can test the lawfulness of the decisions of public bodies (including the RCVS’ Disciplinary Committee). The procedural rules are complex and are set out in section 31 of the Senior Courts Act 1981 and the Civil Procedure Rules. In short, the right person must seek the right remedy in the right proceedings; engaging a lawyer who specialises in constitutional law would be recommended.

The right person, unlike appealing the case to the Privy Council, is any one with locus standi – a person or body with sufficient interest. In theory, this could be any veterinary surgeon, but more practically it could be the BVA, the VDS or Vets Now. If anyone or group wanted to pursue this avenue the most pressing issue at present is time; Part 54 of the Civil Procedure Rules stipulate that a claim must be brought “promptly and in any event, within three months” of the decision complained of; this makes the cut off date for judicial review 18^th September.

© VJ 2013

The RCVS and the myth of "informed consent"

Quoting from the RCVS Code of Professional Conduct at paragraph 11.1 - that “Informed consent, which is an essential part of any contract, can only be given by a client who has had the opportunity to consider a range of reasonable treatment options, with associated fee estimates, and had the significance and main risks explained to them.” Unfortunately, the RCVS is wrong in the assertion that informed consent constitutes any part of a contract. 

A contract is comprised of four component parts: an offer, an acceptance, consideration and an intention to create legal relations. The offer and acceptance together constitute the agreement. The consideration has a specific legal definition, but simply put, it is the exchange of promises; the veterinary surgeon promises to perform an operation and the client promises to pay for the work that is done. The intention to create legal relations is a rebuttable presumption in any commercial undertaking. 

As was stated in the case of Chatterton v Gerson, [1981] 1 All ER 257, a lack of informed consent as to the risks inherent in a medical procedure does not vitiate the patient's consent to it, provided he knows its nature in broad terms. Additionally, as per Lord Diplock, Lord Keith and Lord Bridge in the case of Sidaway v Governors of Bethlem Hospital [1985] 1 AC 871, English law does not recognise the doctrine of informed consent. 

This does not mean that there is not a legal (and moral) obligation to inform the client so that they are able to make a balanced judgment. But, failure to do so would not invalidate the contract. Any liability would not lie in surgical trespass but in the tort of negligence. Negligence in the duty to inform would only be an issue if it were shown that the client would not have consented had they had fuller information. 

The law on the duty to warn is not controversial, Lord Bridge of Harwich in the Sidaway case said “when questioned by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must be to answer both as truthfully and as fully as the questioner requires.” In the same case it was made clear that this was primarily a matter of clinical judgment. Lord Templeman said, “…it was for the doctor to decide what information should be given to the patient and the terms in which that information should be couched.”  

It is important to be empathetic with the client; to be open and accommodating in answering any questions that the client may have. That is not the same as burdening the client with information that they either do not need or, in many cases, do not want to know about. The vet/client relationship is one that is based on trust and understanding that, in many cases, would have been built over a number of years. The vet’s role is to guide the client through the process of their pet’s illness and to, benignly, use their Aesclepian authority. 

Empathy requires that one should be responding to the client’s needs and not just passing over a prescribed list of possible adverse consequences.  “The decision on what risks should be disclosed for the particular patient to be able to make a rational choice whether to undergo the particular treatment recommended by a doctor was primarily a matter of clinical judgment” (Lord Templeman).  In Bolam v Friern Hospital Management Committee [1957] 2 All EWR 118 it was held that, “the doctor could not be criticised if, believing the dangers involved in the treatment to be minimal, he did not stress them to the patient.”

 

Of course, I agree with the tenor of the RCVS statement; after all effective communication is an essential ingredient to the "art" of veterinary medicine. Most veterinary surgeons and, indeed, veterinary nurses do a superb job of informing clients of the treatment options and consequences of such treatments that their pets may have to undergo. This is done at a time when the client is usually under some stress and feeling anxious. They will often be relying on the veterinary team for some emotional support. The veterinary surgeon or nurse should not feel compelled or constrained as to what information is passed onto the client on the basis of a legal doctrinal fallacy. 

VJ(c)2013

Dog trapped in car

I was in the middle of my Saturday morning clinic yesterday when the practice received a phone call from a concerned client. She was concerned about a dog, a white German shepherd that had been locked in a car since 2 a.m. and was now, at 12 p.m. on a warm and muggy day, apparently in distress. The lady had phoned the police, but according to the caller, they were not very interested in the matter. She wanted my advice as to what she could do. I told her to smash one of the car windows so that the dog could at least get some air and possibly be released from the car’s confines.

So, what is the legal position when one deliberately smashes a window of someone else’s car?  The offence of criminal damage in section 1 (1) of The Criminal Damage Act 1971 reads: “A person who, without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence”.

The defence to the action that I advised are contained in the phrase “without lawful excuse”. This defence is given in section 5(2)(b) of the Act:

A person charged with an offence to which this section applies shall… be treated for those purposes as having a lawful excuse… if he destroyed or damaged… property in question… in order to protect property belonging to himself or another… and at the time of the act…he believed: (i) that the property… was in immediate need of protection; and (ii) that the means of protection adopted…would be reasonable having regard to all the circumstances.

In addition to the advice above that I gave, I also recommended that she should notify the police of her proposed actions; primarily as I thought that it might motivate them into action. Unbeknownst to me, my conversation was overheard by a retired police officer. Her comments were that that was exactly the advice she would have given. In fact, she said, that was the primary use she made of her truncheon whilst she was serving as an officer.

It appears then that the advice is good.
2012 (C) VJ

Veterinary prescription fraud

The British Veterinary Association have been cited as calling on the Veterinary Medicines Directorate to introduce more robust measures to stop prescription fraud. Unfortunately Vet Juris thinks it is going to be a very long wait.

The problem with veterinary prescriptions is that there is no mechanism in place to cancel prescriptions once they have been filled by a pharmacist. Unlike human scripts, our prescriptions are not serial numbered and they do not have to be forwarded on to a central body, for the pharmacist to receive payment and the script to be cancelled. Because of this difference, a major problem in prescription fraud has been the duplication of the document by scanning multiple times or faxing the same document to several internet pharmacies.

At The Vet we have started embossing the practice details over the signature of the prescribing vet and adding a line: “Invalid if not embossed”; thereby preventing faxing or scanning . Unfortunately, this does add a level of difficulty for the client wishing to purchase their medicines via prescription, but it is a step forward in preventing prescription fraud.

Time will tell if this system works or not; perhaps pharmacies could be mystery shopped with invalid prescriptions. What is really needed is for the VMB to stop sitting on the fence and suggesting voluntary schemes, that will never be fully complied with, and introduce a standardised and serial numbered prescription pad that can be used on a national basis.

VJ(C)2012               

A case of tail docking

Vet Juris notes with interest the case of veterinary surgeon Mr David Smith MRCVS that is reported in the Veterinary Record 2012, 170;586. Central to the case was Mr Smith’s “erroneous interpretation” of the Animal Welfare Act 2006.

Mr Smith had contacted, through a staff member, the RCVS and DEFRA to ascertain if the procedures he was proposing to carry out (the docking of 13 rottweiler puppies' tails) were permissible; Mr Smiths’ employee was told by the RCVS to direct Mr Smith to the above Act (a 74 page, 69 section document). Mr Smith is a veterinary surgeon not a lawyer, whereas, the RCVS employ lawyers for the very purpose of interpreting parliamentary legislation. Would it have been so very difficult for the RCVS to advise Mr Smith of his legal position?

Mr Smith read and misinterpreted  the Act thereby, believing it was permissible to perform the procedures. So too did the RCVS misread the Act; section 4(1)(a) states “A person commits an offence if – an act of his, or his failure to act, causes an animal to suffer”. The RCVS knew what procedure Mr Smith was contemplating and did not act, in any positive way, to stop the commission of the offence. They are, in Vet Juris’ opinion as guilty as Mr Smith and were not, therefore, competent to pass judgment in the case.

Vet Juris finds it perplexing, why the RCVS should insist that the veterinary surgeon himself should contact the College and not a member of his administrative staff. To whom was he supposed to talk, the President of the College, a council member or a member of the College’s own administrative staff? The College should get off of its high horse; they are after all paid for by the Membership. Are the College suggesting that they give one answer to administrative staff and another to veterinary surgeons? And, additionally, why the necessity to get any phone advice confirmed in writing, are the RCVS suggesting that they are liable to change their story if confronted?

VJ (C) 2012

Is a rabbit less sentient than a cat or dog?

European Directive 86/609/EEC that was implemented into U.K. legislation through the introduction of Animals (Scientific Procedures) Act 1986 is to be replaced by European Directive 2010/63/EU. This new Directive came into force in November 2010, but, as is usual, a two year period is allowed for drafting of transposing legislation which must be completed by November 10^th this year and implemented by 1^st January 2013. The transposing legislation is said to be taking into account a large public and interested body consultation.

The new legislation is to iron out the variations in the previous implementation process and to strengthen the “3Rs”: Replace, reduce and refine, of the use of animals in scientific research. However, the U.K. Government intends to retain current, stricter standards, which exceed Annex III to the Directive, and retain special protection for dogs, cats and horses, and non-human primates.

Worryingly, the U.K. Government wishes to explore opportunities to simplify the detail of personal licence authorities, while reassuring us that this will not lead to a reduction in protection. The U.K. will not be implementing less frequent inspections than are currently undertaken in the UK.

Vet Juris welcomes any legislation that enhances the welfare of animals. However, we are puzzled; what moral or ethical code would allow rats, rabbits, ferrets, mice and other mammals to be subjected conditions or to experimental procedures that are too noxious for cats, dogs, equids and non-human primates? Is this just species-ism? Maybe, rabbits and the such just don’t mind having cosmetics and cleaning products put in their eyes.


The Government's plans can be seen at this web site:
www.homeoffice.gov.uk/publications/about-us/consultations/transposition-protection-animals/

The full text of the Directive can be seen at this web site:

http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:276:0033:0079:EN:PDF

Stop press.
The government are now considering legislation to allow stray, unclaimed pets to be used in scientific research; despite the above assurances.

© VJ 2012

Update on Dr (now Professor) Blass

Today Vet Juris has contacted Professor Eddie Blass at the Swinburne University of Technology in Melbourne, Australia and asked her for her comments. We will let this story lie for a few weeks, a few of my contacts have been made via snail mail so Vet Juris will wait and see what sort of responses we receive before making any further comment.

VJ (C) 2012