MacLeod v. The Royal College of Veterinary Surgeons (The Disciplinary Committee of the RCVS) [2006] UKPC 39 (24 July 2006)

Privy Council Appeal No 88 of 2005

Susie Macleod								Appellant
v.
The Royal College of Veterinary Surgeons	Respondent

FROM

THE DISCIPLINARY COMMITTEE OF THE
ROYAL COLLEGE OF VETERINARY SURGEONS

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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 24th July 2006

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Present at the hearing:-

	Lord Hope of Craighead
	Baroness Hale of Richmond
	Lord Carswell
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		[Delivered by Lord Carswell]		

1.	The appellant Mrs Susie Macleod is an experienced veterinary surgeon, who carries on a small animal veterinary practice known as the A120 Veterinary Centre in Little Hadham, Hertfordshire, in which she works part-time.  There are several other veterinary surgeons and a number of listed veterinary nurses and other staff in that practice.  In 2004 she set up a separate clinic in Sawbridgeworth, some seven miles away, entitled the Health4Pets clinic.  This establishment was staffed wholly by veterinary nurses, with no resident veterinary surgeon on the premises, although there was regular communication by telephone with the main practice and webcam pictures could be transmitted between the premises.  The clinic was advertised as offering primary and booster vaccinations, worming and flea treatments and health checks, including dental and weight checks, for clients’ pets.  It was not in dispute that its main function was to furnish facilities for the vaccination of small animals by veterinary nurses at considerably lower cost than the charges made by practices where veterinary surgeons carried out vaccinations.  In the course of their work at the Health4Pets clinic veterinary nurses administered vaccinations to small animals and furnished medicines for their treatment.  The appellant was charged with disgraceful conduct in a professional respect in that she had allowed and/or authorised this to be done.  The Disciplinary Committee of the Royal College of Veterinary Surgeons (“the College”) held an inquiry into the charges and found her guilty of disgraceful conduct on six of the seven charges brought against her.  They directed that she be suspended for eight months from the register of veterinary surgeons, so removing her right to practise for that period.  The appellant has appealed to the Board against the whole of the direction.

2.	Disciplinary proceedings against veterinary surgeons are governed by the provisions of the Veterinary Surgeons Act 1966 (“the 1966 Act”).  Section 15 provides for the constitution of a committee of the Council of the College known as the Preliminary Investigation Committee, which has the duty of conducting a preliminary investigation into every disciplinary case and deciding whether the case should be referred to the Disciplinary Committee, which must then consider and determine it.  The powers of the latter committee are contained in section 16(1):

“(1)  If -
 (a)	a person registered in the register is convicted in the United Kingdom or elsewhere of a criminal offence which, in the opinion of the disciplinary committee, renders him unfit to practise veterinary surgery; or

(b)	any such person is judged by the disciplinary committee to have been guilty of disgraceful conduct in any professional respect; or

(c)	the disciplinary committee is satisfied that the name of any such person has been fraudulently entered in the register.

the committee may, if they think fit, direct that his name shall be removed from the register or (except in a case falling within paragraph (c) of this subsection) that his registration therein shall be suspended, that is to say, it shall not have effect during a period specified in the direction.”

Under Rule 18.4(c) of the Veterinary Surgeons and Veterinary Practitioners (Disciplinary Committee) (Procedure and Evidence) Rules 2004, made under the powers conferred by paragraph 5(1) of Schedule 2 to the 1966 Act, the Committee has the further option of reprimanding a respondent and/or warning him as to his future conduct.   Section 17 provides for an appeal to the Privy Council against a direction of the Disciplinary Committee.

3.	The gravamen of the charge of disgraceful conduct was that the appellant had allowed or authorised the veterinary nurses to carry out treatments and prescribe medicines contrary to statutory prohibitions.  Section 19 of the 1966 Act makes it a criminal offence for anyone to undertake veterinary surgery unless he is registered in the register of veterinary surgeons or the supplementary veterinary register (for convenience in this judgment all such persons will be referred to by the term “veterinary surgeons”).  An exemption is provided by Schedule 3 to that Act, which lists treatments and operations which may be given or carried out by unqualified persons.  Paragraph 6 of the amended Schedule contains the following item:

“6.  Any medical treatment or any minor surgery (not involving entry into a body cavity) to any animal by a veterinary nurse if the following conditions are complied with, that is to say –

(a)	the animal is, for the time being, under the care of a registered veterinary surgeon or veterinary practitioner and the medical treatment or minor surgery is carried out by the veterinary nurse at his direction;
(b)	the registered veterinary surgeon or veterinary practitioner is the employer or is acting on behalf of the employer of the veterinary nurse; and
(c)	the registered veterinary surgeon or veterinary practitioner directing the medical treatment or minor surgery is satisfied that the veterinary nurse is qualified to carry out the treatment or surgery.

In this paragraph and in paragraph 7 below –
‘veterinary nurse’ means a nurse whose name is entered in  
the list of veterinary nurses maintained by the College.”

The supply and administration of medicines to animals are governed by section 58(2) and (3) of the Medicines Act 1968:

“(2)	Subject to the following provisions of this section -

(a)	no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class, specified in an order under this section except in accordance with a prescription given by an appropriate practitioner; and

(b)	no person shall administer (otherwise than to himself) any such medicinal product unless he is an appropriate practitioner or a person acting in accordance with the directions of an appropriate practitioner.

(3)	Subsection (2)(a) of this section shall not apply –
(a)	to the sale or supply of a medicinal product to a patient of his by a doctor or dentist who is an appropriate practitioner, or

(b)	to the sale or supply of a medicinal product, for administration to an animal or herd under his care, by a veterinary surgeon or veterinary practitioner who is an appropriate practitioner.”

It was not in dispute that the medicinal products in question were covered by section 58.  The two classes concerned were prescription-only medicines (“POMs”) and pharmacy and merchant list medicines (“PMLs”).  The appellant’s defence was that the acts of the veterinary nurses which were the subject of the charges were done when the animals concerned were in her care and the treatment in each case was carried out by the nurses under her direction.

4.	The basic facts of the case against the appellant were set out in charges 1 to 6 brought against her (charge 7 is omitted, as this was dismissed by the Disciplinary Committee):
“1.	On or about 15 June 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgeworth, you allowed and/or authorised the supply and/or administration of a prescription only medicine, namely a vaccine Duramune DAPPi + LC, to a Jack Russell Terrier dog named Ben, belonging to Sarah Milne, when:

(i)	Ben was not for the purposes of the supply and/or administration of that medicine under the care of a veterinary surgeon within the meaning of Part 2 H of the Guide to Professional Conduct; and/or,

(ii)	The person administering the prescription only medicine was not a veterinary surgeon, or a person acting in accordance with the directions of a veterinary surgeon.

2.	On or about 15 June 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgeworth, you allowed and/or authorised the supply and/or administration of a prescription only medicine, namely 3 x 2 pipettes of Frontline Dog and/or a pharmacy and Merchant List medicine, namely 1 tablet of Drontal Plus XL, to Sarah Milne for her Jack Russell Terrier dog named Ben, when:

(i)	Ben was not for the purposes of the supply and/or administration of those medicines under the care of a veterinary surgeon within the meaning of Part 2 H of the Guide to Professional Conduct.

3.	On or about 16 June 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgeworth, you allowed and/or authorised the supply and/or administration of a prescription only medicine, namely a vaccine Duramune DAPPi + LC, to a Jack Russell Terrier dog named Harry belonging to Lynne Titheradge, when:

(i)	Harry was not for the purposes of the supply and/or administration of that medicine under the care of a veterinary surgeon within the meaning of Part 2 H of the Guide to Professional Conduct; and/or,

(ii)	The person administering the prescription only medicine was not a veterinary surgeon, or a person acting in accordance with the directions of a veterinary surgeon.

4.	On or about 21 September 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgeworth, you allowed and/or authorised the supply and/or administration of a prescription only medicine, namely a vaccine Duramune DAPPi + LC, to a Jack Russell Terrier dog named Jake belonging to Maralyn Imbrogino, when:

(i)	Jake was not for the purposes of the supply and/or administration of that medicine under the care of a veterinary surgeon within the meaning of Part 2 H of the Guide to Professional Conduct; and/or,

(ii)	The person administering the prescription only medicine was not a veterinary surgeon, or a person acting in accordance with the directions of a veterinary surgeon.

5.	On or about 29 November 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgworth, you allowed and/or authorised the supply and/or administration of a prescription only medicine, namely a vaccine Fevaxyn Pentofel, to a cat named Kitkat belonging to Deborah Winkworth, when:

(i)	Kitkat was not for the purposes of the supply and/or administration of that medicine under the care of a veterinary surgeon within the meaning of Part 2 H of the Guide to Professional Conduct; and/or,

(ii)	The person administering the prescription only medicine was not a veterinary surgeon, or a person acting in accordance with the directions of a veterinary surgeon.

6.	Between July 2004 and October 2004, at your practice at Health4Pets, 2 Bakers Walk, Sawbridgeworth, you failed to make adequate arrangements for the provision of 24 hour emergency cover and/or failed to provide sufficient information of the arrangements for clients, more particularly:

(i)	On or about 30 August 2004; and/or,

(ii)	On or about 13 October 2004; and/or,

(iii)	Over and above this, between July 2004 and October 2004;

………………….

AND THAT in respect of each of the above-numbered charges, either individually or in any combination, you have been guilty of disgraceful conduct in a professional respect.” 										

5.	These basic facts of the supply of medicines and the treatment of the animals were not disputed at the hearing before the Board.  The appellant did not challenge the factual averments made in paragraph 8 of the respondent’s skeleton argument, which were as follows:
“a.	they [the veterinary surgeons in the appellant’s practice] were not present at the clinic when the vaccinations were carried out;
b.	they had never examined the animals;
c.	they had never read the animals’ medical records;
d.	they had never discussed the animals with their owners or agreed to take on their care;
e.	they did not know of the animals’ presence at the clinic or their condition;
f.	they had no discussion with the nurse administering the vaccine about the animal or its proposed treatment;
g.	they had no knowledge of the animals at all”

The appellant placed some emphasis, however, in her submissions to the Board on her provision of “protocols” to the nurses which they were strictly enjoined to follow.  In each case the nurse had a sheet on which she was required to fill in details about the individual animal, ticking boxes as she went, with instructions to refer the case to a veterinary surgeon on making certain findings about its health or condition.  The appellant said that the nurses were clearly instructed to confine themselves to booster injections and not to give a primary injection to an animal which had not been seen by a veterinary surgeon.  She claimed before the Disciplinary Committee that she had provided sufficient 24-hour emergency cover, but the Committee found it inadequate in a number of respects.  The appellant maintained before the Board that the main risk of acute reaction to vaccination was anaphylaxis, which statistics showed was of very low incidence indeed, so that the degree of provision of cover was sufficient in the circumstances.

6.	The charges refer in a number of places to the Guide to Professional Conduct, which is issued by the College to its members.  Part 2H of the Guide deals with the use of veterinary medicinal products, in the following terms:
“H	The Use of Veterinary Medicinal Products
1	This guidance is based on current EU and UK law and published guidelines and Codes of Practice ...
2	The responsible use of veterinary medicines for therapeutic and prophylactic purposes is one of the major skills of a veterinary surgeon and crucial to animal welfare and to the maintenance of public health.
3.	Under the Medicines Act 1968 the retail sale and supply of medicinal products is restricted to pharmacists with an exemption (at Section 58) for veterinary surgeons who are permitted to supply POM, P and PML medicines only for administration to animals under their care.
4	Failure by the profession to observe these requirements could result in the removal of the exemption for the supply of medicines by veterinary surgeons.
	
	‘Under His Care’

5	Although the Medicines Act does not define the phrase, the RCVS has interpreted it as meaning that:
a	the veterinary surgeon must have been given the responsibility for the health of the animal or herd by the owner or the owner’s agent
b	that responsibility must be real and not nominal
c	the animal or herd must have been seen immediately before prescription and supply or
d	recently enough or often enough for the veterinary surgeon to have personal knowledge of the condition of the animal or current health status of the herd or flock to make a diagnosis and prescribe
e	the veterinary surgeon must maintain clinical records of that herd/flock/individual

What amounts to ‘recent enough’ must be a matter for the professional judgement of the veterinary surgeon in the individual case.
Medicinal products must only be supplied under the authority of the veterinary surgeon who has the animal concerned ‘under his care’.”

Section 2D of the Guide requires veterinary surgeons providing a direct service to animal owners to make proper provision on a 24-hour basis for the relief of pain and suffering of all animals in an emergency.

7.	In addition the College has prepared from time to time advice sheets in relation to, inter alia, the giving of vaccinations.  The appellant obtained from the College in July 2003 the one then current and claimed to have relied on its terms in deciding whether she could legitimately make the arrangements which she operated at the Health4Pets clinic.  That advice sheet reads as follows:

“VACCINE ADMINISTRATION AND CERTIFICATION INFORMATION PARTICULARLY FOR LISTED VN’S

An initial vaccination of a small animal should be preceded by a full health check of the animal by a Veterinary surgeon.  The vaccination injection may be given by the vet or by a Listed Veterinary nurse acting under the direction of the vet.  It is strongly advised that the vet remains present while a Veterinary nurse gives the injection.
A Listed veterinary nurse may administer booster injections to the same animal under veterinary direction.
The animal’s owner should be informed whenever a Listed veterinary nurse is to administer a vaccine to the animal.

Patient records and certificates

A listed veterinary nurse may sign patient’s vaccination record cards.  The phrase ‘administered under veterinary direction’ should appear on the card whenever he or she does so.  The RCVS Advisory Committee recently decided that for general purposes (not formal certification) other veterinary practices should accept such records.

A Listed veterinary nurse may not sign, and thereby certify, vaccination certificates

A veterinary surgeon must be named during the administration of a vaccine in order to sign and certify a vaccination certificate.

Unlisted veterinary nurses may not administer any kind of injection, even if qualified.  To become ‘listed’, veterinary nurses must pay an annual retention fee to the RCVS.

OR Set out in an alternative form:

In accordance with Schedule 3 of the Veterinary Surgeons Act 1966 Listed VN’s may administer vaccines to an animal, provided.
(1)	the animal is under the care of a veterinary surgeon, and
(2)	the veterinary surgeon has authorised the vaccination.
The Royal College of Veterinary Surgeons advises that a full health check is carried out by a veterinary surgeon before an animal is vaccinated and the client is advised that a listed VN will administer the vaccine.

Listed VN’s should not sign veterinary certificates but may sign vaccination record cards ensuring the record clearly shows that the signature is that of a listed VN and, it is suggested, that the vaccine was administered ‘under the direction of (name) MRCVS.”

An amended version of this advice sheet was issued in September 2004, after the appellant had commenced to operate the Health4Pets clinic, which contains a significant change in the second paragraph.  Instead of referring to booster injections, which are carried out at intervals of a year or longer after the initial vaccination of an animal, it referred to “second” injections, which form part of the course of two initial injections and are reckoned to require closer veterinary supervision.  Miss Morris, counsel for the Disciplinary Committee, accepted that the wording of the earlier advice sheet, with its reference to booster injections, was incorrect and that it should have referred to second injections.

8.	On 31 July 2003 the appellant had a telephone conversation with Mrs Sue Whall, a solicitor who held the post of Secretary and Clerk to the Disciplinary Committee and regularly gave advice to members of the College about matters the subject of the Guide and advice sheets.  The appellant consulted her about extending the practice, but did not discuss with her the possibility that this might be done by opening a clinic in separate premises staffed only by veterinary nurses and other staff and not by veterinary surgeons.  Mrs Whall’s note of the conversation, upon which she depended for her recollection, was as follows:

“Sue advising re advertising re offer of vaccinations.  VNs carrying out booster vaccinations under direction of vet and advice on veterinary certificates/VN record of vaccinations; health checks by vet and circumstances when relevant clinical history ought to be obtained, when vet taking over responsibility for a case.”

The appellant produced in evidence before the Disciplinary Committee her own contemporaneous note of her conversation with Mrs Whall, which read as follows:

“RCVS 31.7.03

Re vaccines

It not thought necessary do not need to request notes.  Cannot advertise medicine.  Can advertise fees.  Advert is fine, all vaccines £10.  RCVS only up to date guide professional  2c.  New people full health check contact VS if under treatment, or see clinical history as long as welfare of animal.  “Any reason we need to contact yr VS?”  Ask client.  VNs “VS is present whilst inj is given is advised.  Listed VN may admin.  VN can put on clinical records.  Non-VN can vac but VS must sign cert.  NOT rabies.”

9.	The appellant maintained at the hearing before the Disciplinary Committee and again before the Board that she interpreted the documents in good faith in such a way that she concluded that she was legitimately entitled to staff and run the Health4Pets clinic in the way in which she did.  She claimed that she followed the Guide and advice sheet available to her in the respects in which it imposed mandatory requirements and exercised her own discretion in the respects in which the language was less than mandatory, such as the use of the words “should” or “advise”.  She argued that she was misled by the wording of the second paragraph of the advice sheet into supposing that a veterinary nurse could carry out booster injections, so long as it was under veterinary direction, which she interpreted as extending to the system whereby she gave standard directions to the nurses by means of the “protocols”.

10.	The College received several complaints from veterinary surgeons practising in the same vicinity as the appellant about the procedure at the Health4Pets clinic, which they alleged was potentially harmful to animals when vaccinations were carried out without the presence and direct supervision of a veterinary surgeon.  The animals whose treatment was the subject of the charges were sent to the clinic by the complainants in order to furnish evidence.  Not surprisingly, the appellant suggested that there was an element of suppression of competition in their motives in doing so, and advanced an argument based on what she termed “European competition law and policy”.  The Committee had evidence, however, from Mrs Christiana Hill, a veterinary surgeon who had worked as locum at the A120 clinic.  She stated that she had felt concern about the legitimacy of the operation of the Health4Pets clinic, which played some part in her decision to leave the practice.  Evidence was also given to the Committee about the facilities at the Health4Pets clinic and the adequacy of the answering machine advice out of hours.

11.	Following the receipt of complaints about the operation of the Health4Pets clinic the College asked for comments from the appellant on their contents, commencing with a letter of 12 July 2004 enclosing a copy of a complaint from Dr RP Lehner of Bishops Stortford Veterinary Hospital.  The appellant replied in detail to this and other complaints in a series of letters between 13 August 2004 and 10 March 2005.  The Preliminary Investigation Committee considered the matter and decided to refer it to the Disciplinary Committee, formulating the charges on which the Disciplinary Committee’s inquiry proceeded.

12.	The Disciplinary Committee heard evidence and submissions on 5, 6 and 7 September 2005.  It then, in accordance with its usual practice, made what it termed findings in a document dated 7 September 2005.  This was a substantial document, in which the Committee referred shortly to the evidence and the contents of Part 2H of the Guide to Professional Conduct.  It made the following findings:

“The Committee has decided that Mrs Macleod’s interpretation of the term ‘under his care’ was incorrect, and that her provision of care was not ‘real’, but merely ‘nominal’.  She was unaware of each individual animal attending the clinic and did not examine any animal attending the clinic for the first time.  Moreover the Committee is satisfied that the reference in sub paragraph (c) to the animal being seen immediately before prescription and supply refers to being seen by a veterinary surgeon and nobody else.  Indeed the alternative in paragraph (d) refers specifically to a veterinary surgeon and the qualifying sentence below the sub paragraphs equally refers to the professional judgment of the veterinary surgeon in the individual case.  Further the paragraph concludes that medicinal products must only be supplied under the authority of the veterinary surgeon who has the animal concerned ‘under his care’.

The Committee is satisfied that Mrs Macleod is mistaken in her opinion that being under the care of a veterinary nurse was the equivalent of being under the care of a veterinary surgeon, especially with regard to the dispensing and administration of POMs and PMLs.”

It went on to hold that that it was satisfied that the arrangements in place did not comply with the requirements of the Veterinary Surgeons Act 1966, in that they did not come within the statutory exemptions contained in the amended Schedule 3.  It considered that the appellant’s contentions that these arrangements conformed to the requirements of the Guide to Professional Conduct were erroneous and that they contravened both the Guide and the Medicines Act 1968.  It examined the several charges and held in respect of charges 1, 3, 4 and 5 that in each case the animal was not under the care of a veterinary surgeon nor were the veterinary nurses acting under the direction of a veterinary surgeon.  It also found charge 2 proved, concerning the supply of medicine to the Jack Russell terrier Ben.  It rejected the appellant’s contention that the animal was under the appellant’s care, as she had no knowledge of him and had not obtained his previous medical records.  It expressed the clear view that in order to satisfy the exception set out in section 58 (3), relating to the administration of medicines by a veterinary surgeon, that person must be physically present in the building or must be quickly and easily accessible to be able to respond to a clinical emergency.

13.	In respect of charge 6 the Committee made the following finding:

“… whilst the committee acknowledges that the provision of an answering machine to provide 24 hour emergency cover is capable of providing adequate arrangements for such cover, it is satisfied, that on the evidence it has heard from Mrs Pettit that the implementation and supervision of the operation of the system was not adequate.  The arrangements for changing the recorded message and checking the answering machine were haphazard.  The Committee accepts the evidence of Dr Lehner, Miss Forman and Mrs Lee, that on the occasions they telephoned out-of-hours, either the recorded message did not give details of emergency cover or was not in operation.  The Committee is also satisfied that insufficient information was provided to clients about the arrangements for emergency cover.  The leaflet produced about the A120 Veterinary Centre contains no reference to out-of-hours cover and the pack produced Mrs Milne did not include a leaflet about the Queen Mother Veterinary Hospital, North Mimms.”

14.	On 8 September 2005 the Disciplinary Committee received submissions on the various charges in the light of its findings.  It also received evidence adduced on behalf of the appellant.  It considered the charges in private session and returned to announce that it found that the charges proved amounted to disgraceful conduct in a professional respect.  Further evidence on behalf of the appellant was given and counsel addressed the Committee in mitigation.  After a further period in private session the Committee produced its judgment, recorded as follows:

“Mrs Susie Macleod is a small animal practitioner who has gained considerable respect from her clients and from fellow members of the profession.  She has established a successful and well run veterinary centre in Little Hadham, Hertfordshire.  In July 2004 she opened a nurse run vaccination only clinic in Sawbridgeworth, 30 minutes driving time from her main veterinary centre.
The clinic was staffed only by qualified veterinary nurses and was very limited in the facilities and medicinal products that were stocked.  The main function of this clinic was to provide vaccination for small animals at a reduced price.  There was no provision for the patients to be examined or even seen by a veterinary surgeon, although telephone contact with veterinary staff at the main centre was maintained.
The Committee is very concerned that the animals seen at the nurse run clinic were not under the care of a veterinary surgeon at the time of vaccination or for any subsequent period when an adverse reaction might have occurred.  Additionally, the facilities were insufficient to provide first aid to animals in an emergency situation.  Evidence from some of the witnesses clearly indicated that the provision for 24 hour care by a nurse run clinic was grossly inadequate.  These are all requirements contained in the Guide to Professional Conduct, and apply to all clinics.
The Committee considered these issues carefully and it is sure that the charges, whether taken separately or together, constitute disgraceful conduct in a professional respect.
The Committee wishes to emphasise the importance of the statutory provisions governing the conduct of veterinary surgeons and the Guide to Professional Conduct.  Animal welfare is a primary objective of the Guide.  The Committee has decided that Mrs Macleod’s actions were capable of jeopardising animal welfare.  The Committee does accept that there is no evidence that any animal suffered directly during the period when the clinic was open.  However, Mrs Macleod failed to heed the advice given by the Professional Conduct Department of the Royal College of Veterinary Surgeons.
The Committee has considered each of the sanctions that could apply following these findings.  The Committee considered that the appropriate sanction should be that Mrs Macleod be suspended from the Register for a period of eight months.”

15.	At the hearing before the Board the appellant conducted her own appeal, with the assistance of a McKenzie friend.  Her oral and written arguments, which put her case with admirable clarity, may be encapsulated in the following propositions:
(a)	the animals concerned were properly to be regarded as having been under her care;
(b)	the treatments were carried out and the medicines were administered under her direction;
(c)	she genuinely believed that she was acting in accordance with the Guide to Professional Practice and advice sheet;
(d)	her actions did not amount to disgraceful conduct in a professional respect.
(e)	the sanction of suspension imposed was disproportionate and unreasonable.

16.	If treatment by a veterinary nurse is to be brought within the exemption contained in paragraph 6 of the amended Schedule 3 to the 1966 Act two conditions must be satisfied: the animal must be, for the time being, under the care of a veterinary surgeon and the treatment must be carried out by the nurse at his direction.  The same requirement, that the animal be “under his care”, appears in the exemption contained in section 58(3) of the Medicines Act 1968.  Their Lordships are unable to accept that either of these conditions was satisfied in the present case on any interpretation of the legislation.

17.	Part 2H of the Guide to Professional Conduct, set out in paragraph 6 above, contains the interpretation of the phrase “under his care” accepted by the College.  Their Lordships regard that interpretation as providing accurate and helpful guidance to members of the veterinary profession.  On the facts of the present case it is in their view impossible to conclude that the animals concerned were under the appellant’s care.  The statement of facts and issues prepared on behalf of the College (but not agreed by the appellant) contains in paragraph 7 seven reasons why it may be said that the animals were not under her care:

“When the medicines were administered to the animals:
a.	neither Mrs Macleod nor any other veterinary surgeon was present at the clinic;
b.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets had examined the animals;
c.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets had read the animals’ medical records;
d.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets had discussed the animals’ care with their owners, nor agreed with them to take on their care;
e.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets knew of their presence at the clinic, or of their condition.
f.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets had had any discussion with the nurses administering the medicines about the animals’ presentation or about their proposed treatment;
g.	neither Mrs Macleod nor any other veterinary surgeon linked to Health4Pets had any knowledge of the animals at all.”

In their Lordships’ opinion these reasons contain unanswerable reasons for accepting the College’s contention that the animals were not under the appellants’ care.

18.	This conclusion is sufficient to establish that the appellant was acting in breach both of the Veterinary Surgeons Act 1966 and the Medicines Act 1968.  Their Lordships also consider, however, that the treatment carried out by the veterinary nurses in vaccinating the animals cannot be said to have been done under the appellant’s direction.  The appellant argued that her “protocols”, consisting of instructions to the nurses and forms which they had to complete, constituted sufficient direction to them.  Their Lordships cannot agree.  They do not wish to attempt to define in detail the circumstances in which treatment is carried on under the direction of a veterinary surgeon, for those circumstances may vary widely.  The concept does, however, connote an element of immediacy and potential control of the treatment which was wholly lacking in the carrying out of vaccinations at the Health4Pets clinic.

19.	The charges were framed in terms of the requirements of the Guide to Professional Conduct, which interprets the statutory phrase “under his care” for the assistance of practitioners.  The appellant quite correctly relied on the contents of the Guide and if they could be said to have given her good reason to suppose that she was entitled to make the arrangements which she put in place at the Health4Pets clinic, then she might be able to rely on that by way of defence to the charges.  Their Lordships cannot accept that there is anything in the terms of Part 2H of the Guide which would excuse the appellant.  The definition in that document of the phrase “under his care” is clear.  For the reasons contained in the statement of facts and issues set out above their Lordships do not consider that it can be said that any of the animals concerned in the charges was at the material time under the appellant’s care.

20.	In support of her case the appellant pointed to the advice sheet current at the time when she set up the Health4Pets clinic and claimed that it was misleading.  Criticisms could be made of the drafting of this document, which was less than crystal clear in the advice given to practitioners, and it is accepted that the reference to booster injections was an error.  Nevertheless, the thrust of the advice given is all in one direction, and while it uses the words “should” and “advised” rather than explicitly mandatory terms, it is in their Lordships’ opinion tolerably clear where the permissible limits lie.  Moreover, it states without any ambiguity that when booster injections are given that must be under veterinary direction.  A reader interpreting that phrase in the light of the first paragraph of the advice sheet could be under no misapprehension that that such direction requires something more immediate than the remote degree of control exercised over the nurses at the Health4Pets clinic.

21.	The Disciplinary Committee was accordingly justified in their Lordships’ view in concluding that the appellant had acted in breach of the requirements of the legislation and in contravention of the Guide.  The appellant argued, however, that it was not disgraceful conduct in a professional respect within the meaning of section 16(1)(c) of the Veterinary Surgeons Act 1966.  In the case of most professions the prohibition is framed in different terms from disgraceful conduct in a professional respect, that which is most commonly found being serious professional misconduct.  At its hearing the Disciplinary Committee was advised by its legal assessor that disgraceful conduct in a professional respect is conduct which falls far short of that which is expected of the profession.  Their Lordships consider that that was an appropriate definition and that the Committee was correctly advised.

22.	It was for the Disciplinary Committee, having made its findings of fact, to determine whether on those findings the appellant’s conduct amounted to disgraceful conduct in a professional respect.  The appellant submitted that its determination was unjustified on the facts and that it was unduly censorious.  It may therefore be useful to revisit the statements of principle adopted by the Board in assessing the decisions of professional disciplinary tribunals.  The Board took the opportunity to review these principles in Ghosh v General Medical Council [2001] 1 WLR 1915.  Lord Millett, giving the judgment of the Board, set them out in paragraphs 33-4 in terms which, mutatis mutandis, are applicable to the present appeal:

“33.	Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect.  The Board’s jurisdiction is appellate, not supervisory.  The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the Committee.  The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the Committee or in its decision, but this is true of most appellate processes.

34.	It is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence.  But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past.  In Evans v General Medical Council (unreported) Appeal No 40 of 1984 at p.3 the Board said:
‘The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled.  It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee. … The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence.  This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.’

For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public.  But the Board will not defer to the Committee’s judgment more than is warranted by the circumstances.  The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration.”

23.	In Moody v General Osteopathic Council [2004] EWHC (Admin) 967, para 14 Collins J referred, in terms with which their Lordships would agree, to the necessity to attach great weight to the decision of a committee whose members have the expertise and know what are the appropriate standards that are expected of members of the profession.  He added:

“As must be obvious, when it comes to questions of professional competence the committee’s views are to be accorded the very greatest of weight.  When it comes to decisions which do not so much depend upon professional expertise, this court may be in a better position to be able to form a judgment for itself.  But this court must never act unless it is plain that in the circumstances the decision was one which, as I would put it, clearly wrong.”

The standard to which Collins J referred, that the decision must be plainly wrong, is similar, if not identical, to that which is applied to decisions of judges exercising judgment in balancing factors in decisions relating to family matters: see, for example, the observations of Sir John Arnold P in the Court of Appeal, approved on appeal in the House of Lords, in G v G [1985] 1 WLR 647, 650.  It has been said many times that in such cases there is a generous ambit within which judicial disagreement is perfectly possible and within those bounds decisions should not be upset on appeal.  Their Lordships consider that that is an appropriate criterion for them to adopt when considering appeals against decisions of professional disciplinary bodies.

24.	When they apply the principles which they have set out, their Lordships have no hesitation in upholding the decision of the Disciplinary Committee that the appellant was guilty of disgraceful conduct in a professional respect.  The detailed findings made by it and the expression of opinion contained in its judgment that the appellant’s actions were capable of jeopardising animal welfare give sustainable grounds for reaching its ultimate decision, and their Lordships are of opinion that that decision fell within the ambit of sustainable conclusions.

25.	When it came to the question of considering the sanction to be applied, the Committee was correctly advised of the gradation of penalties open to it and the order in which it should approach them.  The appellant’s counsel advanced to the Committee in considerable detail reasons for accepting the conclusion that the appellant’s actions were all done out of proper motives and with no intention to flout the rules.  Before the Board the appellant herself constantly repeated that she had made a genuine mistake about her entitlement to set up the arrangements in the Health4Pets clinic, and that she had eventually closed it down, even though she had not then been found to have been wrong.  The Committee accepted in its findings that she was mistaken in her opinion.  It did not go into any detail about the circumstances in which she formed that opinion, the extent of the advice which she obtained or the question whether she should have sought further advice or revised her view when it became apparent that its correctness was being challenged.  It did not make any finding on whether she made a completely innocent and genuine mistake, closed her eyes to difficulties of interpretation which she did not want to see, deliberately chose the interpretation which best suited her book or purposely sailed close to the wind with knowledge that her interpretation was unlikely to be upheld.  What they have said is that she was mistaken, and the Board must take that as a finding that the appellant did not appreciate that she was acting in breach of the legislation or the Guide to Professional Conduct.  Nor did the Committee weigh the extent of the risk of harm to the welfare of animals against the benefits to the public of a cheap and conveniently accessible vaccination service.  Finally, it did not avowedly consider whether a reprimand or warning would have sufficed to establish the proper principles relating to the carrying out of treatment and the supply of medicines by listed veterinary nurses and prevent the repetition of incorrect practices.

26.	Their Lordships are conscious of the principle that it requires a strong case to interfere with the sentence of a professional disciplinary body, who are regarded as the best people to weigh the seriousness of professional misconduct: see, eg, McCoan v General Medical Council [1964] 1 WLR 1107, 1113.  In the absence of any more clear and detailed finding on the appellant’s state of mind, however, and in view of the brevity of the Committee’s consideration in its judgment of the issues relating to sanction, their Lordships consider that they would be justified in examining afresh the culpability of the appellant and the appropriateness of the penalty of suspension.

27.	The appellant submitted that it was excessive and disproportionate, since it would involve her in financial outlay of many thousands of pounds, which would amount to the equivalent of an extremely heavy fine.  Approaching the case as one of a genuinely mistaken, if seriously misconceived, interpretation on the appellant’s part of her professional obligations, their Lordships are inclined to see a fair amount of substance in her submissions.  They have to bear very clearly in mind the carefully considered remarks of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 518-9 concerning the imposition of a suspension which appears severe in order to maintain the reputation of a profession and sustain public confidence in its integrity.  Nevertheless, given the finding that the appellant laboured under a misapprehension, which has to be regarded as genuine, however unjustified, their Lordships have concluded that the penalty was disproportionately heavy.  They will set aside the suspension and substitute for it a reprimand and a warning as to her future conduct.
 
28.	To that extent the appeal will be allowed.  There will be no order as to costs of the appeal to the Board.