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