There has been much talk about the standard of proof in the veterinary profession which seemed to begin with an interesting article in the Veterinary Record in January 2020 entitled “Standard of proof for disciplinaries could change” (Loeb, 2020). It prompted a response from the then-president of the RCVS in the form of a letter (Connell, 2020). This letter made several points including the fact that reviewing the standard of proof applied in disciplinary processes has been on the College’s agenda for some years. In that same issue of the Veterinary Record, Richard Stephenson also had a letter published with the title “Standard of proof should not be lowered” (Stephenson, 2020).
Another flurry of published activity on the topic occurred with a feature piece written by Eleanor Ferguson, registrar of the RCVS (Ferguson, 2020). This article was the fifth in a series looking at the proposals contained within the RCVS’s Legislation Working Party (LWP) and was specifically on the short-term proposals for reforming the RCVS disciplinary process. My personal interpretation of this article is that there is a desire within the RCVS to move from the current criminal standard of proof to the civil standard of proof on the fact-finding aspects of a disciplinary hearing.
Put another way, the criminal standard of proof is “beyond reasonable doubt” or “so as to be sure”. The civil standard of proof on the other hand is “on the balance of probabilities” or “more likely than not”. If a veterinary surgeon faces an allegation of professional negligence then this is a civil claim and the burden of proof on the claimant is one of “on the balance of probabilities”.
So, at the moment when a veterinary professional is at a disciplinary hearing, the standard of proof applied when deciding the allegations being faced is that the facts must be “beyond reasonable doubt”. If the standard of proof was lowered to that currently used in a civil negligence claim, the facts would only have to be proven to be what happened “on the balance of probabilities”. Make no mistake that whatever the stated aim(s) of such a change is, it will result in more findings of misconduct.
The RCVS has engaged in a consultation process with the professions (veterinary surgeons and veterinary nurses) on these possible changes to the disciplinary process. Eleanor Ferguson issued a press release when the consultation was first announced, and further information can be found on the RCVS website. Eleanor states that the likely increase in the number of cases being referred from Preliminary Investigation Committee to Disciplinary Committee would be low.
Gillian Nevin, a professional negligence and disciplinary lawyer with whom I have worked at several disciplinary hearings, produced a very persuasive article (Nevin, 2020), in which she states “It is imperative that vets and nurses appreciate the gravity of what they are being asked to consider, as there can be little doubt that an altered standard of proof will result in more findings of misconduct. Once the standard is changed, there will be no going back.” Nevin concludes with the sentence “I urge you all to consider the implications care-fully and provide your input to the consultation process.”
The RCVS has repeatedly made the point that it is one of a small minority of UK regulators still applying the criminal standard of proof and that other regulators have moved to the civil standard of proof. The RCVS goes on to highlight that the civil standard is used by veterinary regulators in New Zealand, Australia, Canada and South Africa.
I do not believe that this provides a good reason to change. The medical regulatory process is frequently used as an example in this current debate, but the veterinary profession is patently not a human healthcare provider. It would seem to me that the system currently in place has not only served its purpose well to date, but could continue to do so.
The LWP appear to have suggested that a change to a civil (on the balance of probabilities) proof would only affect a few disciplinary cases. Whilst I would disagree, even if it were so the change has the potential to have a massive impact on some individuals. The fact that there may only be a few such individuals does nothing to reduce the impact on those people.
To me, the one certainty would seem to be that lowering the standard of proof will increase the number of cases being progressed to a disciplinary hearing. At such hearings, more cases will be considered to have the facts proven by the disciplinary committee and this will have to mean that more veterinary surgeons and veterinary nurses will receive a sanction. It is important to appreciate that heightened standard is not only applied to the hearing itself, but also at the stage the Preliminary Investigation Committee makes a decision.
So please engage with this consultation process and make your views known. The RCVS Legislative Reform Consultation has been extended to 23 April 2021 so there is still time to make your views known.
