Williams v The Royal College of Veterinary Surgeons [2008] UKPC 39

Judicial Committee of the Privy Council

Case No Privy Council Appeal No 92 of 2007

Venue FROM THE DISCIPLINARY COMMITTEE OF THE ROYAL COLLEGE OF VETERINARY SURGEONS - - - - - - - - - - - - - - - - - REASONS FOR DECISION OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE 9th June 2008,

Between

WilliamsAppellant

The Royal College of Veterinary SurgeonsRespondent

Before

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Carswell

Lord Mance

Date 28 July 2008

[1]:- Lord Hoffmann Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Carswell Lord Mance - - - - - - - - - - - - - - - - [Delivered by Lord Mance ] This appeal is brought by the appellant, Mr John Williams, under section 17 of the Veterinary Surgeons Act 1966 against the decision of the Disciplinary Committee of the Royal College of Veterinary Surgeons ("RCVS") given on 13th November 2007 instructing the removal of his name from the register on the ground of disgraceful conduct. By his original petition of appeal, Mr Williams challenged the finding of disgraceful conduct, but this challenge was abandoned, so that the sole submission on which the Board heard submissions on his behalf has been that the penalty of removal from the register was disproportionate and excessive, and that the appropriate order would have been for suspension perhaps (it was suggested) for a year.

[2]The facts can be shortly stated. Mr Williams is a vet of long experience, in respect of whose work and character very many warm testimonials were submitted to the Disciplinary Committee. On Sunday 8 October 2006 he received a telephone call asking him to arrange to certify for export purposes three horses, Russel, Centos and Namur 47, all stabled at a yard at Claverdon owned by Mr Nick Skelton (a client of Mr Williams for over 30 years) and all due to be transported to the United States by air via Holland on Tuesday 17 October 2006. This was a very short time scale. Certification involved taking Contagious Equine Metritis ("CEM") swabs from each horse, having them cultured for six days at a laboratory approved by the Department of the Environment, Food and Rural Affairs ("DEFRA") located in this case in Bury St Edmonds, receiving back negative results, completing the certificates accordingly and having them countersigned by DEFRA in Leicester (a three-hour round trip from Mr Williams' surgery). DEFRA's countersignature was required to certify both that Mr Williams was an official veterinarian of DEFRA authorised to sign the certificates and that the CEM swabs to which the certificates referred had been sent to a DEFRA approved laboratory for the CEM tests.

[3]Mr Williams attended at Mr Skelton's stables, which were near his home, at 9.00 a.m. on the next day, Monday 9 October, and took swabs to be sent off by courier to the laboratory. At some time during the same week Mr Williams was informed that certificates would be available only at lunchtime on 17 October 2007, the day of intended export. He had a busy diary on 17 October, with clients to visit some 40 or 50 miles away, and he was concerned about the limited time available for certificates to be taken to Leicester for counter-signature and returned. He accordingly determined to attend first thing at 9.00 a.m. at Mr Skelton's stable, where he signed clean certificates, stating inter alia that the CEM tests had been undertaken at a DEFRA approved laboratory "with a negative result" in each case. These were taken to Leicester, where the relevant DEFRA officer noticed that no DEFRA laboratory results accompanied the certificates, and rang Mr Williams' practice. By then the practice had received results for Centos and Namur 47, copies of which were faxed to DEFRA and enabled the DEFRA officer to countersign the certificates for those two horses. No results had however been received for Russel, due it appears to failure by Mr Williams or his practice ever to send the relevant swabs for culturing. DEFRA refused to countersign and returned the certificate for Russel. In the event Mr Skelton was able to arrange a waiver, so that the horse was exported as arranged. Mr Williams was invited to come to Leicester to explain the position regarding Russel. He came on 6th November 2006, and disclosed the position recounted above in relation to all three horses.

[4]DEFRA then took steps which led to Mr Williams's removal from its panel of Local Veterinary Inspectors ("LVIs"). His appeal against that decision failed in January 2007, when DEFRA also determined that the matter should be referred to the Preliminary Investigation Committee of the RCVS for consideration of any disciplinary action. The present proceedings ensued. The disciplinary charge was heard over two days, during the course of which the Disciplinary Committee heard evidence from three DEFRA officers as well as Mr Williams. In closing submissions before the Disciplinary Committee, Miss Curtis representing the RCVS emphasised that the College had always accepted that, although when signing Mr Williams "knew that what he was doing was wrong, there was no ultimate intention to deceive and his overall purpose was not one of dishonesty". But she also drew attention to a history of three previous occasions on which Mr Williams had been suspended by DEFRA or its predecessor ministry from LVI duties. By letter dated 26 May 1989, he had certified sheep for export to France, 28 of which were on examination at Dover found to be unfit to travel, mainly because of chronic lameness and in one case because the sheep was suffering from scab. Mr Williams had offered no explanation. (The letter also drew attention to "a warning letter …. concerning similar incidents in July of last year".) The suspension was temporary, pending retraining which was satisfactorily completed by 30 August 1989. Secondly, by letter dated 14 October 1997 he was again suspended pending retraining, on account of inability to explain the difference between the number of pigs certified for export for slaughter and the number of ear tags listed on the schedule and failure to return a true copy of the certificate issued to the ministry veterinary office. On 11 November 1997 the ministry wrote recording his satisfactory completion of retraining, but warning that for the time being his completed export certificates would be closely monitored and "Any shortfall will be viewed extremely seriously". Nevertheless, thirdly, on 18 February 2003 DEFRA had occasion to suspend Mr Williams on the grounds that "your actions in signing an export health certificate for Atlantic Lady at Warwick Racecourse on 21 December 2002 fell far short of the requirements laid down in LVI instructions 22(a) section D. These state clearly that use of correction fluids is unacceptable, incomplete certificates must not be signed and LVIs must retain a copy of each certificate issued for a minimum of one year." The letter said that further investigation was being recommended, and that the suspension was to continue pending this and formal retraining as well as a possible reference to the RCVS. The suspension was not lifted until 18 June 2004, when DEFRA wrote pointing out that this had been the third time since 1989 that his LVI appointment had been suspended, on each occasion for deficiencies in export certificates, adding:

"The international trading credibility of this country is largely founded on a trust in the certification provided and deficiencies therefore put our national reputation at risk. Deficiencies also put at risk the reputation of the veterinary profession at large. With this in mind, I made clear my official view that any repetition of these failures on your part will result in my firm recommendation that your appointment as LVI be terminated. In discussing the underlying reasons for your failings, you identified client pressure and time as the main contributory factors. I will repeat my advice and support. You must be satisfied that you have adequate time and support to provide the quality of certification expected and required. You will have our full support if owners or agents are critical of attention to detail and of any delay that results."

[5]In mitigation before the present Disciplinary Committee, Mr Corless, who then appeared on behalf of Mr Williams, noted that the College accepted that it was never Mr Williams' intention to deceive. He also noted that there was no harm or likelihood of harm to any of the horses, that there was "no personal gain for Mr Williams, save, one may say, he was seeking to comply with his client's wishes", that he "did it to facilitate the export of these horses and in a busy practice and in the reality of the world that cannot simply be ignored. Horses have slots on aeroplanes, which if missed can cause great inconvenience and difficulty", and that it was probably from Mr Williams that DEFRA became aware that the certificates for Centos and Namur were signed without the test results being present. He further noted that Mr Williams was unlikely to be able to practise again as an LVI, and, as to the previous suspensions, that none had led to any previous disciplinary proceedings by the RCVS. He referred to the very many highly complementary testimonials given in respect of Mr Williams. In conclusion he invited the Committee to consider the options, starting with the most lenient of penalties, to accept that Mr Williams had learned a very salutary lesson and to have regard to what he said would be the grave financial difficulty that Mr Williams would suffer if unable to practise for any substantial period of time.

[6]After private consultation, the Committee's legal assessor recorded publicly that he had advised the Committee that the previous LVI suspensions "being the result of an informal process, were not to be equated to a formal previous finding by the Disciplinary Committee", and also that the Committee should take into account as a mitigating factor Mr Williams' admission of the facts supporting the charges.

[7]The Committee started by accepting the admission as a mitigating factor, but evidently, and in the Board's view understandably, viewed as an opposing factor the three previous LVI suspensions and the contents of the relevant correspondence, set out above. It mentioned the many testimonials to Mr Williams' competence and diligence as well and noted that "His counsel pointed out that Mr Williams had never sought to deceive nor to hide his position from the College or from the State Veterinary Service. He recognised his error which was made while trying to facilitate matters on behalf of his client. It was a misjudgement in a busy life which has caused him much distress. As he saw it, he had acted with the best of motives, but had learned a salutary lesson from this, his appearance before the Committee."

[8]The Committee concluded by saying:

"The Committee has given careful and anxious consideration to these mitigating factors that have been urged on behalf of the Respondent. However, the Committee was also invited to assess the character of the Respondent and sadly it assessed the Respondent's attitude to certification as being either irresponsible, or cavalier, or both. In order to maintain public confidence in veterinary certification and to reinforce to the profession the importance of accurate certification, and having regard to the fact that the Respondent has issued inaccurate export certificates on several previous occasions, which were followed by clear warnings to take the utmost care when issuing such certificates, the Committee considers that it has no alternative but to instruct the Registrar to remove Mr Williams' name from the Register."

[9]The Board acknowledges the assistance that it has had from the agreed statement of facts and issues prepared by both counsel, which also includes an analysis of the principles governing the Board's exercise of its appellate jurisdiction in this field. These are to be derived from cases up to and including the Board's decision in Walker v. The Royal College of Veterinary Surgeons (Privy Council Appeal No 16 of 2007)

[2007] UKPC 64

. Mr Jason MacAdam, who represented Mr Williams before the Board, accepted in his helpful case, skeleton and oral submissions, that, although an appeal is by way of re-hearing, particular weight falls to be given to the expertise of the Disciplinary Committee when dealing with matters of professional competence, including the weighing of the seriousness of professional misconduct, but he drew attention to this factor emphasised in paragraph 13 of the judgment of the Board in Walker . "13 ….. The reputation of and confidence in the integrity of the profession of veterinary surgeon is important in a manner which bears an analogy to, even if it is not precisely the same as, that described by Sir Thomas Bingham in Bolton v. Law Society [

[1994] 1 WLR 512

]. But that is not to say that it would be correct to bracket all cases of knowingly inaccurate veterinary certification into a single group and to treat them as equivalently serious. That would not be right when considering either how far an offender needs to be deprived of the opportunity of practice in order to prevent re-offending, or what sanction is necessary to maintain or restore public confidence in the profession. Deterrence is an important consideration, but it must be deterrence in the light of the particular circumstances of the offence to which any deterrent sanction is directed." That was said in a paragraph which commenced:

"The correctness of veterinary certificates is also a matter of importance, and can in some contexts bear on animal and indeed human health. The RCVS's Guide to Professional Conduct (2002 edition) underlines the obvious need for truthfulness and accuracy, in the interests of both clients and third parties."

[10]Mr MacAdam submitted that in the present case the Disciplinary Committee failed properly to distinguish between the present and more serious cases of inaccurate certification, inappropriately elevated the previous incidences of false certification to the same level as the present and thus attached too much weight to them, failed to approach the question of the appropriate sanction from the viewpoint of imposing the least severe sanction possible, failed to identify the salient features of the case, failed to take into account or mention the various mitigating factors (particularly those mentioned by counsel as summarised in paragraph 5 above and the testimonials) and was, in the light of the Board's decision in Walker , wrong to impose the ultimate sanction of erasure.

[11]It is true that more serious offences, such as those involving positive deceitfulness, can be envisaged. However, Mr MacAdam accepted, rightly, that there could be no quarrel with the Committee's categorisation of Mr Williams' attitude as "irresponsible, or cavalier, or both", and that it was impossible to suggest that Mr Williams was entitled to rely on the DEFRA officers responsible for countersigning certificates to pick up the absence of information about the identity of the testing laboratory. If everyone was entitled to rely on someone else, then one could just as well suggest that the DEFRA officers were entitled to countersign without more in reliance on Mr Williams' certificate that a negative laboratory result existed. The reality is that Mr Williams' attitude of compliance with what was expedient did create a risk, small maybe, that export would take place without any negative laboratory result being obtained at all and so indeed in circumstances where the horse was suffering from an unknown ailment which the DEFRA laboratory tests would have detected.

[12]In this context, the Committee was in the Board's judgment entitled to give the weight that it did to the background of previous suspensions and warnings in respect of previous inappropriately signed export certificates. These occurred in circumstances largely unexplained but repeated over the years, and, most recently, less then four years prior to the present incident. While the suspensions were arrived at by an informal route, there has been no suggestion that the facts stated in the correspondence confirming them were incorrect, or that there were other mitigating factors relating to them which could be relevant. In cross-examination, Mr Williams said in answer to the question whether he had in the present case been putting the convenience of his client above the professional integrity of a certificate that "As practising veterinary surgeons, we are basically paid by our clients and we offer as good a service as we possibly can to our clients" (not itself a happily phrased answer in context) and went on to admit that this meant that he had been putting his clients' interests above integrity. The circumstances of the present offending represent a most unfortunate repetition of a tendency to succumb to "client pressure and time" against which Mr Williams had been strongly cautioned less than two and a half years previously (see paragraph 4 above).

[13]In the Board's view the criticism that the Committee did not take into account or give adequate weight to the mitigating factors identified before the Committee by counsel also fails. The Committee's decision on the appropriate sanction followed shortly after hearing from counsel and its own legal assessor. The Committee referred to and summarised the mitigation (see paragraphs 7 and 8 above) in a way showing that it had taken in and considered the points made. Bearing in mind the weight to be given to the Committee's view on such issues, the evaluation and conclusion which it reached (see paragraph 8 above) cannot in the Board's view be regarded as inappropriate. The Committee, when referring to counsel's submission that Mr Williams "had learned a salutary lesson from this, his appearance before the Committee" had clearly in mind the submission that a suspension (or less) would suffice to mark the gravity of the offending. But the cumulation of further factors which the Committee went on to mention led it to the conclusion, understandable in the Board's view, that removal from the Register was the only appropriate penalty.

[14]The reasoning and decision in Walker do not, in the Board's judgment, assist Mr Williams in the present case. True, in both cases veterinary surgeons in receipt of excellent testimonials acted expediently, in ways which they thought would assist their clients' interests and without receiving direct financial benefit, and when this was discovered were frank in their admissions. But in Walker there was no medical purpose (and some degree of extra risk) in the course of injections which would have had to be given had not Dr Walker slightly backdated the two certificates, and the Board expressly distinguished the circumstances "from those of cases where there was a deliberate misleading of insurers, purchasers or export agencies about the physical status or condition of an animal, or where there was a risk to animal or human health" (paragraph 22). Here, although there was no intention to deceive, Mr Williams' attitude to export certification was cavalier or irresponsible or both in a way which created at least some risk that an unfit animal might be exported and the integrity of export certification brought into question. In Walker , when examining cases of removal from the register, the Board indicated that it treated Dr Walker's offending as being in a significantly lower category of seriousness than circumstances where "charges were found proved of issuing clean health certificates for the export of two animals before the actual test results justifying them were known and, so, at a time where there was still a possibility that each animal was infected with a notifiable disease" (see paragraphs 20 and 22). Finally, although Dr Walker was being dealt with for two instances of ante-dating, some three years apart, he had not previously received any sanction or warning, whereas the Committee had before it in the case of Mr Williams an unhappy previous history which was bound to influence its attitude.

[15]The Board detects no error of fact or law in the present Disciplinary Committee's reasoning and it considers that no basis has been shown for challenging the Committee's overall evaluation and conclusions. The Board will accordingly advise Her Majesty that this appeal should be dismissed with costs.