Nay, nay, and thrice nay

Like most people in this profession I have problems with the RCVS Disciplinary Committee’s judgement on the Munhuwepasi Chikosi case last year.

I have read the report available on the RCVS website, and spotted many of the subtleties of wording that the college now rely on to defend itself. I also agree with the criticisms levelled by Jo Dyer at the RCVS’ response to her petition to remove mandatory house visits from the code of professional conduct; they are pedantic semantic arguments which arrogantly ignore the situation the consulting vet is in.

This case highlights many of the concerns I have with the Royal College’s disciplinary process, which I will outline later. However, this isn’t going to be a detailed review of the case and its effects (that’s beyond the scope of a short blog like this), just the major points as I see them.

I take issue with the DC’s assertion that transport of patients on blankets is unacceptable, and this issue has since been revisited by the RCVS and “clarified”. Ahem. This one judgement made me submit a Freedom of Information (FOI) request to the RCVS to find out the names of the people who sat on that particular Disciplinary Committee and, looking at their published CVs, I think there is a heavy “academia” or rather “ivory tower” mentality with that particular mix of people – this included three professors, who have spent the majority of their working lives at vet schools. There were three people sitting who were practitioners, but they were arguably not representative of the profession at large (one is also a barrister, and one is a peripatetic ophthalmologist who does mostly eye scheme gradings).

As an emergency out-of-hours practitioner I do not think a vet should ever abandon their post in a veterinary hospital to answer a house call without arranging cover. House calls are notoriously unpredictable and can be dangerous. Even when they go well they always last longer than you would think.

The implication that Mr Chikosi should have dropped everything and raced out of the practice to attend is obviously ridiculous for many reasons. This all took place out of hours when there was just him and his veterinary nurse on duty (a virtually universal state of affairs in out-of-hours practice). However, the committee seems to believe that either Mr Chikosi would have managed single-handed, or that the two of them should have left the premises (with in-patients). They noted that the practice log said things were quiet, and used this to justify their view that Mr Chikosi should have attended immediately.

I cannot count the number of times I’ve turned to my nurse and said “quiet night tonight, eh?” only for the phone to start ringing or for wounded animals to turn up on the doorstep and things to change very quickly – part of the appeal of emergency work is that you cannot know from one minute to the next what’s going to happen, and the night’s work changes very suddenly. People just turn up and rightly expect to see people who can help right away.

One complicating factor is that Mr Chikosi did not attend the hearing and the DC’s decision was made in his absence (the committee being satisfied that he knew of the charges and the hearing and that he had returned to Zimbabwe knowing this). In its closing statements, the committee said part of its consideration for “striking off” was because they did not want him to return to the UK able to practice without further discussion. As a further result of this David Bailey is organising a campaign to get Mr Chikosi reinstated; Mr Chikosi’s family has settled in the UK from Zimbabwe and he would like to return.

One commentator echoed a feeling I had when reading the judgement; that it was prejudiced by Mr Chikosi’s origin. Jude Dawson MRCVS DipLaw comments on his Vet Juris blog that the committee concluded Mr Chikosi’s conduct was as a result of his being an “overseas veterinary surgeon”. This blog is well worth a read and dissects the judgement from the point of view of an appeal.

In many ways this case irritated me and my disquiet with the RCVS’ disciplinary proceedings:

• There is no appeal process. The next port of call for a vet who feels wronged by the process is the Judicial Committee of the Privy Council, which does not usually send a case back to the RCVS DC (or indeed the GMC or GDC) for reconsideration unless there has been an error on a point of law. Its usual attitude (and quite rightly, I suppose) is that the RCVS is best placed and entitled to choose who it does and does not allow into the profession. The Judicial Committee will not revisit the case or rejudge it, save for errors of law; it will only look at the reasoning explained in the text of the judgement.
• The complaint is funded and handled by the RCVS. The defendant is left to fund this themselves. Even in cases where they are exonerated (which seem to be quite rare) the defendant will have a hole in their pocket for travel, accommodation and, if they can afford it, representation – not to mention the time spent preparing. The RCVS side of things can cost in excess of £30,000 (I am formulating further FOI requests to break this down, but current study gets in the way of preparing a coherent set of questions). The Veterinary Defence Society helps with the representation side of things, but a surprising number of defendants seem to represent themselves, which leads me on to…
• The presumption of guilt¹. I am not an expert, just an interested layman, but the opinion I have formed from reading DC judgments is that, where a defendant vet represents themselves, the DC can infer whether the defendant has “insight”, “regret” and so on from the vigour with which they defend themselves. This right on the part of the DC to do this has been upheld by the Privy Council in other appeals. However, this seems to me to load the choice of a defendant; take the “not guilty” route and mount a spirited defence with the risk that if the DC are of the opinion (remember it’s not “beyond reasonable doubt”, but “on the balance of probabilities”² that they are guilty, the manner in which they tried to establish innocence counts against them, or take the “guilty” route and throw oneself on the mercy of the DC, and throw away any chance of any appeal ever.
• The lack of judgement by one’s peers. As shown in the Chikosi case, half the DC were professors from vet schools, and those practitioners who were there are likely never to have been in the situation Mr Chikosi was in. This view is supported by the reaction and subsequent retraction to the blanket transport issue. Academics and practitioners are different populations of vets with different attitudes and outlooks and experiences. That said, I for one did not apply for a position on the new, separate, Disciplinary Committee, simply because I could not afford the time out from my regular job to read, assess, and sit on cases. I think many of you are similar.
• To be considered for reinstatement after being struck off, one must usually accept the judgement and show regret and insight as well as personal and professional development. Again, no challenge to the decision allowed.

As I said, this isn’t the place for a detailed paragraph-by-paragraph analysis of the judgement with cross-referencing to law and Code of Professional Conduct, but it’s a light skimming over the issues opened up by this one case. This case is not only one – other cases cause disquiet in other ways, too, but this one affected us all and we will still be talking about it years from now.

1. If anyone in the RCVS is reading this, this deliberately provocative statement will have them reaching for their keyboard and CAPS LOCK button, but it’s intended to get my point across in a very short time. The reality is more subtle and more nuanced than that one sentence.
2. A recent Privy Council ruling (Samuel v RCVS, heard March 26, 2014) points out that there is confusing and illogical guidance given to the DC where standards of proof are concerned. If you are interested, it can be found at http://www.jcpc.uk/decided-cases/docs/JCPC_2013_0030_Judgment.pdf paragraphs 26-30. As a further aside racial aspects of DC committee decisions, in this case failing to take in to account the magnitude of racial provocation, were called in to question again.