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“It is very difficult to defend yourself against a balance of probabilities”

31 March 2020, at 2:00pm

The RCVS Disciplinary Committee (DC) is considering lowering the standard of proof needed to convict a vet of misconduct. It currently stands that the committee must have something proved to a criminal court standard “so as to be sure”. They are considering reducing the burden of proof for your accuser to just “the balance of probabilities”. A past president of the BVA has also been quoted as saying she would support “moving away from the criminal standard” of proof. I don’t know about you, dear reader, but if someone is going to take away my career (and therefore my house and means of supporting my family) then, well, to be frank, they need “to be sure”, not just think well, you know what, on balance, they might have done it. And then have your life ruined on that basis.

I am indebted to Richard Stephenson, ex-RCVS council and DC member, for corresponding with me about this subject and giving me further information.

One reason the RCVS has given is that moving to a “balance of probabilities” standard of proof would increase public trust in the profession. But as the RCVS has recently published a survey that showed a 94 percent trust level in vets this hardly seems a valid argument. Especially as this is higher than some professions whose regulators do use this standard, such as accountants and GPs. One thing that sets us apart from other professions is that our patients, who we have a primary responsibility to do the right thing for, are not going to be the ones making the complaint. And their interests may, and often do, vary from their owners’. GPs have seen a big increase in disciplinary cases, and subsequent appeals, after their regulator made this change in proof. There has also been shown to be a negative impact on patient safety in human healthcare by changing the standard of proof, no doubt from increased defensive medical practice.

For vets, a DC case costs overall around £50,000. An increase in cases following such a change will hugely increase costs and therefore RCVS expenses and fees. Besides that, very few cases that are not upheld against a vet are due to the evidence or proof not being found to be sure. The RCVS seem to be looking for a problem that is not there.

In tandem with this, the RCVS has discussed bringing in a wider range of sanctions against vets for disciplinary matters. This in itself is not a bad thing; at the moment there is not much other than being struck off and a reprimand. In the eyes of the public, a reprimand from the RCVS would not seem much of a punishment, but for a practising vet it would be devastating, as would the ordeal of the disciplinary process. So, it is not right to couple the two together; you cannot be found to be probably guilty for anything – the DC must be sure. The balance of probabilities is not a sliding scale, where you need to be more sure for a more serious case than for a less serious one.

The effect of a disciplinary case has been well studied in health workers, with approximately a quarter developing physical symptoms and more than a quarter being signed off work for a month or more. For vets with little or no paid sick leave, this poses a real problem – either keep working or lose your income.

We can also quote Lady Hale, she of the famous spider brooch who delivered the verdict on the prorogation of parliament, that in respect of civil proceedings where a sanction on the respondent may be the outcome “there are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof”.

After floating this idea, the RCVS president wrote, in January 2020, that the RCVS has no “imminent plans” to make this change. It is under review by the college and will have an impact on vets if implicated. If it happens and we follow what happened to human healthcare workers we will see more cases going through the disciplinary process. We will face our livelihoods being stripped from us on the basis of what probably happened. Not what the DC can be sure happened. It is very difficult to defend yourself against a balance of probabilities. I would urge all of you reading this to contact the RCVS and make your concerns known.