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

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]