RCVS v Samuel - College's sanction deemed unfair

Today, the Judicial Committee of the Privy Council has quashed the decision of the Royal College of Veterinary Surgeons to remove Dr Gary Samuel from the register of veterinary surgeons.

Vet Juris has yet to critically analyse the Privy Council's judgment. But, in his conclusion Lord Toulson said that the Committee's (RCVS) finding that Dr Samuel was unfit to practise "cannot fairly stand".

Jude Dawson prompts rabies questions in Parliament

Jude Dawson’s article, published on this site in September and also in the Veterinary Record (Oct. 2013 vol. 173:14 pp.348-349), on the risk posed to vets by the emergence of rabies, has sparked a wealth of interest.

Most surprising, however, was a communication from the offices of Professor the Lord Trees. Lord Trees is interested to take the matter further and to that end has tabled two questions in Parliament, relating to the article, for written answers from Her Majesty’s government.

Also, following the article's publication, the British Small Animal Veterinary Association (BSAVA) has written to Public Health England, pointing out many of the issues that were raised in the article. The letter, signed by BSAVA President Professor Michael Day, urges Public Health England to consider including veterinary staff on the list of those entitled to receive pre-exposure rabies vaccinations.

You read it here first.

Vets' risk from rabies will increase

In July of this year a client presented a pipistrelle bat at my practice. My professional obligations required that I administer to the welfare needs of the animal. My statutory obligations[i] required, that as a protected species, the bat should be tended to and released when no longer disabled; or humanely destroyed if it had no reasonable chance of survival.

I double gloved with heavy, latex examination gloves before performing a preliminary examination. Other than identifying several small perforations to the membranes of both wings the animal appeared to be free of any obvious injuries.

The first priorities were to attend to the bat’s hydration status and to reduce the stress of it being captive; later focusing on its nutritional needs. I contacted the Bat Conservation Trust so that I could pass the bat into the care of one of their representatives. It was during one of the feeding sessions that I was bitten twice on the finger through the doubled gloves.

On hearing of the incident a member of the Trust contacted me at my practice. He was anxious that I seek medical attention and receive a rabies post-exposure prophylaxis course. After several phone calls to various NHS facilities I was finally directed to the virology department of Leeds General Infirmary. The unit could not have been more helpful. They prepared a rabies immunoglobulin – tailored to my body weight – and a course of vaccines.

The urgency of treatment was explained to me; the immunoglobulin was heat labile and, despite being on ice, would be inactivated in a few hours. The virology unit liaised with my GP surgery and arranged for a doctor to administer the injections. The immunoglobulin was administered intramuscularly in four sites; I was also given a vaccination intramuscularly. The vaccines are to be repeated on days three, seven, fourteen and twenty-eight.

As a veterinary legal researcher I was naturally curious as to the health and safety implications to the practicing veterinary surgeon that emanate from the double obligations imposed by the RCVS and Parliament.

Section 2 of the Health and Safety Act[ii] outlines the general duties of the employer towards their employees. In particular, section 2(2)(b) relates to the making of reasonable and practical arrangements  that ensure the absence of risks to health in the handling of articles. My interpretation of this section leads me to the conclusion that veterinary staff should be protected from the risk of rabies by means of routine, pre-exposure vaccination.

Pet travel, to and from Europe is becoming more popular; over one million pets have already travelled by Eurotunnel[iii] and this only accounts for 65% of the animals entering the U.K. With the relaxation in the previous safety checks that were necessary for the issuing of a pet-passport, there are undoubtedly many animals entering the U.K. without protective titres of rabies antibodies. In my own practice, when blood testing was required prior to the issuing of a passport, between five and ten percent of animals failed to achieve the required antibody levels after the first inoculation.

With this in mind I wanted to ascertain the diagnosed incidence of rabies in the whole of the European Union. The figures[iv] reveal that between 2002 and 2012 there have been 27,974 confirmed cases of rabies in the E.U. recorded across all species. When restricted to just domestic animals the numbers fall to 4,791 reported cases. When further restricted to just cats and dogs, the species that veterinary surgeons in this country could potential come into contact with, the number of reported cases is 2,990.

The annual reported incidence of canine and feline rabies in the E.U. has diminished gradually from 420 cases in 2002 (with a high of 482 in 2003) to 127 cases in 2012 (with a low of 92 in 2011).

A worrying aspect is that, in Romania, this trend is being reversed. In 2002 there were 28 cases of rabies in cats and dogs and in 2012 there were 82 confirmed cases. In the first six years of the last decade Romania reported 327 cases; in the last five years there were 406 cases. In the last five years Romania, alone, has accounted for 55% of the E.U.’s rabies in cats and dogs. It should be borne in mind that Romania becomes a full member of the E.U. on the January 1^st 2014; many Romanians will want to come to the U.K. and many of those will want to bring their pets with them.

Arranging to be vaccinated against rabies is a simple process[v]. Contact your GP’s surgery and tell them you are a veterinary surgeon. Advise the doctor that you are obligated, as a matter of professional and legislative duty, to administer to the welfare needs of any bat that is presented to you. Also advise the doctor that due to changes in the U.K. quarantine laws and the relaxation in monitoring the efficacy of canine and feline rabies inoculations, rabies is becoming an emergent disease. The doctor will then instruct a nurse to administer the course of vaccination; she/he will then ask you for £120-£150 for the service (it is not available on the NHS).

It is ethically wrong for a State to single out a group in society and compel them to be placed in the front line of vigilance against a potentially lethal disease; remove the safeguards that have been in place for more than a century; multiply the risk factor by extending free movement of people and their pets, and then tell them that the State will not offer any protection – you must pay for it yourselves. I would call on the bodies that represent the veterinary profession in this country to unite and have this issue raised in Parliament. 

[i] Wildlife and Countryside Act 1981, sections 9, 10(3)(a), 10(3)(b) and schedule 5

[ii] Health and Safety at Work etc Act 1974

[iii] http://www.eurotunnel.com/uk/tickets/travelling-with-your-pet/

[iv] www.who-rabies-bulletin.org

[v] http://www.nhs.uk/Conditions/Rabies/Pages/Prevention.aspx

(C) VJ 2013

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