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LWP update 4: towards a ‘fitness to practise’ regime

During July and August, Vet Record is publishing a series of features about the key recommendations contained in the recent report of the RCVS Legislation Working Party (LWP), from some of those who were directly involved in making them. In the fourth and last of this series, RCVS Registrar Eleanor Ferguson discusses how the LWP’s recommendations would move the RCVS towards a 'fitness to practise' based regulatory regime. 

Original article: reproduced below with kind permission of Vet Record

Introducing a modern ‘fitness to practise’ regime

Eleanor FergusonUnder the Veterinary Surgeons Act 1966 (VSA), the RCVS may only take action against a veterinary surgeon or veterinary nurse where there has been ‘serious professional misconduct’ (SPMC). The definition of SPMC is widely accepted as conduct that falls far below the standard expected of a veterinary surgeon or nurse. As such, the college can only deal with the most serious of allegations, which fall into that category.

By contrast, almost all human healthcare regulators operate a variant of the ‘fitness to practise’ (‘FTP’) model. The key characteristic of the FTP model is that it focuses on whether a registrant’s fitness to practise is ‘currently impaired’, rather than whether they have been guilty of SPMC in the past.

The SPMC model is now considered to be outdated as it is backward looking, focusing on past misconduct. By way of contrast, the emphasis of FTP is forward looking, focusing on whether there is any risk to the public or the public interest.

Moving the focus away from SPMC would also allow the college to consider matters where a practitioner’s fitness to practise is impaired for other reasons (such as those currently addressed by the existing RCVS health and performance protocols) which, in turn, would better protect animals and the public.

The LWP has therefore recommended that any new legislation should include measures with a view to achieving:

  • A ‘forward-looking’ process with the protection of animals and the public at its heart;
  • An enhanced suite of powers available to enable more effective investigations and case management;
  • A reduction in the length and cost of investigations/proceedings wherever possible; and,
  • The ability to amend/update legislation more easily in the future as systems and thinking develop.

An FTP model is very much a ‘package’ to be looked at in the round and the LWP has therefore made a significant number of recommendations that would put the model into practice for the veterinary profession.

There isn’t room here to discuss all of them, but I will mention some of the key ones.


Introducing the concept of ‘current impairment’

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.

Under an FTP model, the DC would need to be satisfied that the veterinary surgeon’s or nurse’s fitness to practise 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 could conclude that there is no (or very low) risk of repetition of similar behaviour. If the DC came to this conclusion, it could dismiss the case without proceeding to sanction.

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 on past behaviour.


Widening the grounds for investigation

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’s or a nurse’s ability to practise safely, the RCVS has devised health and performance protocols. These provide a framework that allows the vet or nurse to remain in practice subject to giving appropriate undertakings to protect animal welfare and the public interest in cases that would otherwise go to a DC hearing.

However, this can only occur with the consent of the individual concerned. Where there is no consent, the preliminary investigation committee has no option but to refer the matter to the DC.

A more satisfactory situation might be to refer such cases to a dedicated ‘health’ or ‘performance’ committee that has a range of appropriate powers designed to support the veterinary surgeon or nurse and to provide a more proportionate and compassionate outcome.


Introducing interim orders

Interim orders would allow a temporary restriction on a veterinary surgeon’s or a nurse’s right to practise pending a final decision by the disciplinary committee.

The LWP recommends that the RCVS should be able to use ‘interim orders’, a temporary restriction on a veterinary surgeon’s or a nurse’s right to practise pending a final decision by the DC. Such cases, which are likely to be relatively rare, would arise where the allegations raised are serious enough that if proven they would mean that the veterinary surgeon or nurse posed a significant risk to the public or to animals.

Referral to an interim order panel would not mean that any final decision had been made. As an alternative to fully suspending, where the panel had concerns it might choose to impose conditions of practice. Interim orders (with or without conditions) would be reviewed regularly.

The current lack of power to use 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 the DC has decided to suspend or remove a practitioner’s registration. In such cases, the sanction does not come into effect until after the statutory appeal period of 28 days – or later if an appeal is lodged. The result of this is an illogical situation where a practitioner has been found to be unfit to practise, and yet is able to continue practising.


Introducing reviews of suspension orders

At present, the DC has no power to review the suspension orders it imposes. This means that if a practitioner is, for example, suspended for six months, they are automatically restored to the register once that time has elapsed. The practical effect of this is that where the DC has concerns regarding a respondent’s fitness to practise, it has no choice but to remove them from the register completely as this is the only way to retain any control over that person’s restoration to the register.

The LWP recommends that the DC should be able to review suspensions and, if necessary, extend the suspension or impose conditional registration as part of that review; it would then be able to ensure protection of animals and the public and, at the same time, impose a more proportionate sanction on the veterinary surgeon or nurse.


Introducing a wider range of sanctions

The range of sanctions ordinarily applied by the DC is very limited, principally being to issue a reprimand or warning, or suspend or remove an individual’s name from the register (or, with the agreement of the veterinary surgeon, judgement can be suspended for two years).

The LWP recommends that the DC should be able to apply sanctions of ‘conditional’ or ‘restricted’ registration, a power almost all other regulators have. Again, the power to impose conditions of practice orders would allow the DC, in suitable cases, to adequately protect animals and the public by imposing a less onerous sanction. 

August 2020