Professional Negligence and Liability
Chapter 25
VETERINARY SURGEONS
I. INTRODUCTION
25.1 The number of veterinary negligence claims has risen sharply over recent years. It continues to rise. Some claims (particularly those involving the mismanagement of herd or flock problems, or the treatment of valuable horses), are financially very significant. Others (typically those connected with the treatment of companion animals), are tiny, and fall well within the small claims bracket. 25.2 There are very few reported cases. In companion animal cases, with the exception of a few obvious heads of claim, the law relating to the recoverability of damages remains obscure. 25.3 The law determining the existence and breach of a duty of a care, and the law of causation, is identical to that in clinical negligence cases. This chapter generally refers and defers to the clinical negligence chapter on those issues.II. VETERINARY TRAINING AND THE STRUCTURE OF THE VETERINARY PROFESSION
25.4 All veterinary surgeons practising in the UK must be members of the Royal College of Veterinary Surgeons (RCVS). The RCVS is a creature of the Veterinary Surgeons Acts1 and is the governing body of the profession. Membership is obtained either by passing examinations set by the RCVS (generally for foreign graduates), or by obtaining a degree in veterinary medicine from one of the UK veterinary schools. Brexit resulted in, and will increasingly result in a serious dearth of veterinary surgeons in the UK. Morale in the profession has increasingly been reported as being very low, with many veterinary graduates leaving the veterinary profession. This haemorrhage of morale has been attributed in part to the growing influence of big corporate providers of veterinary services. To deal with these issues there are plans to open new veterinary schools. 25.4.1 Since 1 April 2012 each new veterinary graduate, on becoming a member of the RCVS, declares: “I promise and solemnly declare that I will pursue the work of my profession with integrity and accept my responsibilities to the public, my clients, the profession and the Royal College of Veterinary Surgeons, and that, above all, my constant endeavour will be to ensure the health and welfare of animals committed to my care.” 25.5 Admission to the UK veterinary schools is highly competitive. The basic qualifications are awarded after five years’ study (six at Cambridge). Many students will have taken an intercalated degree en route, typically in pathology, physiology or some other science relevant to veterinary practice. 25.6 Once the degree of MRCVS is awarded the newly qualified veterinary surgeon is legally able to perform all the work which can be described as veterinary medicine or surgery. There is nothing equivalent to the medical profession’s “pre-registration year”, although there has recently been a focus on equipping new graduates with “day one skills”. 25.7 The RCVS Code of Conduct makes it obligatory to undertake continuing professional development (CPD), but except in relation to membership of the Practice Standards Scheme (see below), compliance with this requirement is not systematically monitored as it is (for instance) in the case of medical practitioners.2 25.8 Many practitioners, however, opt for some sort of further formal study, often leading to the postgraduate qualifications. A very popular scheme is the Certificate in Advanced Veterinary Practice. Some will go on to be accredited as “Advanced Practitioners” or “Specialists”, or to obtain Fellowship of the RCVS (FRCVS), by reason of a meritorious contribution to knowledge, or clinical practice, of the profession. The criteria for Fellowship are: “Original innovative discovery or application of knowledge or development of the veterinary profession in a groundbreaking way” by demonstration of one or more of the following: a sustained contribution to scholarship, producing a body of creative work that has been disseminated, for example in a body of publications, in teaching materials, in educational documents, or in political documents; indisputable advancement of the subject; providing leadership to the veterinary profession; and advancement of the public understanding of the veterinary profession,3 or to become one of the RCVS’s recognised specialists in a particular subject. European specialist status can be obtained (from the European Board of Veterinary Specialisation) by arduous examination.4 25.9 The RCVS operates a voluntary “Practice Standards Scheme” whereby practices are inspected every four years and accredited.5 The RCVS Code of Professional Conduct (revised 2023) provides: “4.3 Veterinary surgeons must maintain minimum practice standards equivalent to the Core Standards of the RCVS Practice Standards Scheme.”6 25.10 Although, as in many other professions, there is a marked tendency towards consolidation of practitioners in larger practices (with the obvious advantages of sharing costs, views, expertise, administrative support and out-of-hours work), there are still many small and single-handed practices. Out-of-hours work is sometimes shared with neighbouring practices or (particularly in big urban areas), contracted out to an agency. In 2015 the British Mobile Veterinary Society, whose members travel to clients’ homes, was launched. Regular small animal veterinarians sometimes do home visits too—typically to perform euthanasia, or if the owner is too incapacitated to bring the animal into the surgery. 25.11 There is a significant trend towards increased specialisation, but many veterinary surgeons are still generalists, dealing with many species and numerous different problems. Many will provide for several species all the treatment that is provided for human patients in a major hospital. It is not at all unusual for a veterinary surgeon in a morning’s clinic to perform major orthopaedic, abdominal and gynaecological surgery, prescribe chemotherapeutic drugs for cancer, advise on public health matters and also do the sort of general clinic that a general medical practitioner would do—with the difference that the veterinary surgeon will often refer the cases to him or herself for the necessary treatment instead of to the local NHS hospital. 25.12 Often, though, there will be referral within a practice. One veterinary surgeon will have a particular interest in orthopaedic surgery, for instance; another will opt to do all the ENT work, and so on. It is becoming increasingly common for general practices to refer difficult cases to acknowledged specialists, either in private practice or at one of the veterinary schools or other specialist institutions (such as the Animal Health Trust). Some arrange for recognised specialists to visit the practice regularly to hold specialist clinics.7 25.13 Most practices do some laboratory work themselves. Larger ones will do most or all of it themselves, perhaps having a veterinary surgeon with a particular interest in histopathology or haematology. But most practices will make at least some use of external laboratories. These are run as free-standing commercial laboratories, or by large specialist veterinary practices, or by academic institutions. The Animal Health and Veterinary Laboratories Service (AHVLA) also maintains a chain of Veterinary Investigation Centres which offer excellent facilities for pathological and other laboratory analysis in cases which involve (or could involve) food animals.8III. WHO CAN TREAT ANIMALS?
25.14 The general rule is that the practice of veterinary surgery is restricted to members of the RCVS.9 There are, however, a number of exceptions:- (a) Re non-agricultural animals: Animal owners, household members or employees of the owner may carry out minor medical treatment (for example the administration of medicines and the dressing of wounds).
- (b) Re agricultural animals: the owner or carer can carry out medical treatment or minor surgery which does not involve entry into a body cavity. Examples include bovine hoof trimming or dehorning and the “rubber ring” castration of lambs.
- (c) Listed veterinary nurses, when acting in accordance with the Veterinary Surgeons Act 1966, Schedule 3 (as amended).10
- (d) Veterinary students (either full-time undergraduate students in the clinical part of their course, or overseas veterinary surgeons with a declared intention to sit the RCVS Statutory Membership Examination within a reasonable time), when acting in accordance with the Veterinary Surgeons (Practice by Students) (Amendment) Regulations 1993.11 Such students can examine animals, carry out diagnostic tests under the direction of a registered veterinary surgeon, administer treatment under the supervision of a registered veterinary surgeon and perform surgical operations under the direct and continuous supervision of a registered veterinary surgeon. The RCVS has given detailed guidance about what “direction”, “supervision” and “direct and continuous supervision” mean.12
- (e) Registered farriers, when acting in accordance with the Farriers (Registration) Acts 1975 and 1977. The division of responsibility between farriers and veterinary surgeons can sometimes give rise to controversy. This is discussed in the RCVS Code of Professional Conduct.13
- (f) Physiotherapists, chiropractors and osteopaths, when acting in accordance with the Veterinary Surgery (Exemptions) Order 1962.14
- (g) Blood sampling, when performed pursuant to the Blood Sampling Order 1983 (as amended).15
- (h) Animal husbandry trainees over the age of 17 in castrating male animals, disbudding calves and docking lambs’ tails.16
- (i) Anyone can administer life-saving or pain-relieving emergency first aid to an animal.17
IV. PROFESSIONAL INDEMNITY INSURANCE
25.18 The RCVS Code of Professional Conduct provides that: “Veterinary surgeons must ensure that all their professional activities are covered by professional indemnity insurance or equivalent arrangements.20 The previous edition went on to say “Such cover may be held individually or through an employer”.21 The new wording appears not to make individual insurance mandatory, so long as the individual veterinary surgeon has ensured that cover is present and sufficient. In practice most UK veterinary surgeons are insured through the Veterinary Defence Society (VDS). There are no specified minimum levels of insurance.V. THE EXISTENCE AND NATURE OF THE VETERINARY SURGEON’S DUTY
1. General
25.19 The RCVS Code of Professional Conduct provides that: “Veterinary surgeons must make animal health and welfare their first consideration when attending to animals”.22 This overriding duty may sometimes cause problems. A client may want the veterinary surgeon to do something which the veterinary surgeon considers is not in the best interests of the animal. The animal’s welfare must always trump other considerations. If the owner will not agree to the action that is in the animal’s best interests, there may be a professional obligation to breach confidentiality and notify (for instance) the RSPCA. 25.19.1 When is an animal “under the care” of a particular veterinary surgeon? When must a physical examination be performed? These questions are central to the establishment of a legal duty, just as, in many human clinical negligence contexts, the existence of a relevant duty will involve establishment that a doctor-patient relationship has been created. 25.19.2 The RCVS has given comprehensive guidance. Its summary reads: 1. “You will no longer need to carry out a physical examination to take an animal under your care. Under the new guidance, an animal is taken under your care when you are given, and accept, responsibility for it…. 2. When you take an animal under your care, you or another veterinary service provider on your behalf, must be able to provide in-person follow-up care on a 24/7 basis…. 3. As now, before prescribing POM-Vs, you will have to carry out a clinical assessment. From 1 September, it is up to you to decide whether this clinical assessment needs to include a physical examination, in all but a number of circumstances (see point 4, below). 4. You must always perform a physical examination in the following circumstances: 1. where a notifiable disease is suspected 2. when prescribing controlled drugs (unless there are exceptional circumstances) 3. when prescribing antibiotics, antifungals, antiparasitics or antivirals (unless there are exceptional circumstances)*. *NB The proximity of physical examination to prescribing will be slightly different depending on the species being treated… 5. It is your decision, once you have assessed the situation, whether or not to prescribe medicines remotely. To support you in using your professional judgement, we have set out a list of factors to consider when deciding whether a physical examination is necessary (see paragraph 6 of the new guidance, below).”23 25.19.3 A veterinary surgeon generally owes his client a concurrent duty in both contract and tort. Duties may also be owed to third parties: examples might include a non-client injured in the course of a negligently performed veterinary examination.24 As with other professions, it is good practice to plead both the contractual and tortious duties. 25.20 If the contract for the provision of veterinary services is with a limited company, it is generally wise, as well as suing the company for breach of contract, to allege against the individual veterinary surgeon concerned a breach of the common law duty of care, in case there is some way in which the company can say that it is not liable for the actions or inactions of the veterinary surgeon, or if there is doubt about the ability of the company to satisfy a judgment. It is important to be cautious about this, though. The courts look more critically than they used to at unnecessary joinder when coming to consider costs. When suing a partnership, it is important to check to ensure that the composition of the partnership is the same as at the time of the tort/breach of contract. If it is, the partnership can simply be sued in its partnership name (e.g., The Herriot Veterinary Centre (a firm)). If it is not, then (unless you are sure that the existing partnership has inherited all the material liabilities) the members of the partnership at the time of the relevant act or default should be identified, named and served.25 25.21 Sometimes allegations will be appropriately levelled only against a company or partnership providing veterinary services rather than an individual veterinary surgeon. This may happen, for instance, where there has been an administrative or other systemic failure resulting in loss or damage, and that failure does not lie at the door of an individual treating practitioner or a practitioner responsible for management. Accordingly one can envisage in veterinary malpractice cases allegations (for instance), of failing to ensure that there were adequate provisions on a particular night for out-of-hours care,26 or failing to ensure that veterinary records were available to a veterinary surgeon assuming care of a patient. Of course many such failures will be evidence of some general systemic failure, for which both the practice generally, as well as the individual in charge of management, will be responsible, but some may be one-off administrative failures for which only the practice generally is liable. 25.22 The contractual duties owed by a veterinary surgeon will be those expressly owed under the terms agreed with the client, and those implied into the contract. The express terms (except for exclusion clauses—as to which see paragraphs 25.26 to 25.27 below) are generally not very important, and in any event no useful generalisations can be made about them. The ambit of a veterinary surgeon’s retainer will generally be a question of fact.27 The implied terms are those implied by the Supply of Goods and Services Act 1982. The 1982 Act implies into contracts for the supply of goods and services together the same implied terms as the Sale of Goods Act 1979 implies into contracts for the supply of goods alone. The terms relating specifically to the supply of goods (title, compliance with description, quality and fitness for purpose, correspondence with a sample, etc.) are often directly relevant to veterinary practice, particularly in an agricultural setting where the veterinary surgeon supplies medicines, devices or other equipment. The most important term of the 1982 Act in veterinary negligence cases is, however, section 13, which provides:“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.”