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Cite as: [2003] UKPC 34

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Tait v. Royal College of Veterinary Surgeons (RCVS) [2003] UKPC 34 (20 March 2003)

ADVANCE COPY

Privy Council Appeal No. 67 of 2002

Alan Roderick Tait Appellant

v.

The Royal College of Veterinary Surgeons Respondent

FROM

THE DISCIPLINARY COMMITTEE OF THE

ROYAL COLLEGE OF VETERINARY SURGEONS

---------------

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

20th March 2003, Delivered the 15th April 2003

------------------

Present at the hearing:-

Lord Steyn

Lord Slynn of Hadley

Lord Walker of Gestingthorpe

[Delivered by Lord Steyn]

------------------

At the conclusion of the hearing on 20 March 2003 their Lordships announced that they had agreed humbly to advise Her Majesty that the appeal ought to be allowed and that they would give their reasons later. This they now do.

This is an appeal under section 17 of the Veterinary Surgeons Act 1966 against decisions made by the Disciplinary Committee of the Royal College of Veterinary Surgeons on 27/28 June 2002 and 31 July 2002.

A Notice of Inquiry dated 14 March 2002 contained four charges against the appellant. The charges were amended on 19 June 2002. For reasons which will become clear later it is only necessary to set out the first two charges. Charge 1 reads as follows:

"That being registered in the Register of veterinary surgeons:-

Between 22 August 2001 and 27 August 2001, whilst practising veterinary surgery at The Veterinary Surgery, 'Robin Royd', 193 Huddersfield Road, Thongsbridge, Holmfirth, Huddersfield HD7 2TT and at 5 Saddleworth House, 113 High Street, Uppermill, Saddleworth, Oldham OL3 6BD, having accepted as an in-patient, Frances, an English bull terrier bitch belonging to Edward Redman and Alison Turner you falsely misrepresented to Edward Redman and/or to Alison Turner the professional veterinary service that you had provided to Frances in particular:-

(i) you stated that you had carried out surgery on Frances when you had not done so, and/or

(ii) you provided a radiograph of a (male) dog as evidence that you had taken a radiograph of Frances.

AND THAT in relation to the facts alleged, you have been guilty of disgraceful conduct in a professional respect."

Charge 2 read as follows:

"On 19 or 20 December 2000, whilst practising veterinary surgery ... having carried out an ovaro-hysterectomy on Suzie, a greyhound bitch belonging to Dr and Mrs Khan, you failed to provide adequate postoperative care in that:-

(i) on 20 December 2000 you discharged her from Uppermill Surgery when she was not sufficiently recovered from major surgery and/or

(ii) later the same day, you failed to respond adequately to the first and/or second telephone calls by Dr Khan requesting that you attend to Suzie.

AND THAT in relation to the facts alleged, you have been guilty of disgraceful conduct in a professional respect."

The hearing of the inquiry was due to take place on 2 May 2002. The appellant did not attend and the hearing was adjourned to 27 June 2002. Again, the appellant did not attend. He applied in writing for an adjournment on the ground of ill health, viz alleged hypertension. He produced no medical evidence. The Legal Assessor directed the Committee as to the approach to be adopted. The Committee refused the application for an adjournment and proceeded to hear the charges against the appellant in his absence. On 28 June 2002 the Committee received information that the appellant had been taken to hospital. The Legal Assessor advised the Committee that it might wish to treat this as a further request for an adjournment. The Committee decided to proceed with the hearing but to make only findings on the facts of each charge. On 28 June 2002 the Committee found all the charges proved. The issues of whether the proved facts amounted to disgraceful conduct on the part of the appellant and the question of penalty were adjourned to 31 July 2002. At the resumed hearing on 31 July 2002 the appellant was present and was represented by counsel who applied for a reopening of the inquiry. The Committee refused to re-open the factual issues surrounding the charges. The Committee found that charges 1 and 2 each amounted to disgraceful conduct. On the other hand, the Committee found that charges 3 and 4 did not amount to disgraceful conduct. (This is the reason why charges 3 and 4 are not directly relevant to the disposal of the present appeal.) The Committee directed that the appellant's name be removed from the Register.

There are three issues in this appeal. First, it is submitted that the Committee was wrong to hear the case in the absence of the appellant on 27/28 June 2002 and mis-directed itself as to the correct approach to be adopted in considering whether to hear the case in the absence of the appellant. Secondly, and alternatively, it is argued that the Committee was wrong to refuse on 31 July 2002 to set aside its findings of fact reached on 28 June 2002 in the absence of the appellant and to re-open the charges against the appellant. Thirdly, it is contended that the Committee's approach to the penalty to be imposed was flawed and that the making of the decision to remove his name from the Register was manifestly excessive in all the circumstances.

The First Ground: Refusal of an Adjournment on 27 and 28 June 2002.

Counsel for the appellant drew attention to the observations of Lord Bingham of Cornhill in R v Jones (Anthony) [2002] 2 WLR 524. Lord Bingham said (at 530) that "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution". Lord Bingham approved a checklist of matters relevant to the exercise of the discretion provided by the Court of Appeal: R v Hayward [2001] QB 862 para 22(5), at p 873. Pertinent to the present case these decisions show that the following factors were significant: (1) the seriousness of the case against the defendant, (2) the risk of the tribunal reaching a wrong conclusion about the reason for the absence of the defendant, and (3) the risk of reaching a wrong conclusion on the merits as a result of the appellant's account not being heard by the Committee.

The appellant was plainly at serious risk of the penalty of removal from the Register being imposed, notably because the first charge involved an allegation of dishonesty in the discharge of professional duties.

The Committee further knew (1) that the appellant disputed the facts alleged in the first two charges and (2) that the appellant wanted to contest those charges.

Against this background the Legal Assessor gave the following direction to the Committee as to the approach to be adopted to the application for an adjournment on 27 June 2002:

"As Legal Assessor, I would like to say one or two things so that it may appear on the transcript. Your duty is to consider reasonably and fairly the nine grounds which counsel has enumerated before you, and take each one in turn, and decide whether there is substance in any of these grounds which would justify the granting of an adjournment. You must consider in each case whether Mr Tait has had time enough to deal with it, or whether it is a case where he has brought the matter upon himself, or has avoided the question, or whether he is justified and it is likely, if the case proceeds, that an injustice will be done to him. It is a case of taking a careful and considered view of the situation - a balance - and remembering always the desirability that a case of this kind ought to be heard quickly in the public interest and in the interests of the profession because, if the allegations are founded and proved, it is desirable that they are dealt with quickly. On the other hand, it is no task of the Committee to deal with the case in a way that will cause an injustice to Mr Tait. At all times, the Committee will remember that it has absolute discretion. It should do what it believes and considers to be right." [Emphasis added]

This direction does not comply with the requirements of the decision in Jones. It was not correct to say that the Committee had an absolute discretion. The discretion was a severely constrained one. The direction did not mention that the appellant was at serious risk of removal from the Register. It did not draw attention to the risk of a wrong decision about the appellant's alleged ill health. It did not sufficiently highlight the risk of the Committee coming to a wrong conclusion on the merits without the account of the appellant. The guidance placed before the Committee was inadequate. Normally, one would expect the Committee to rely on the guidance of the Legal Assessor. Prima facie therefore the Committee appears to have misdirected itself. If the Committee relied on the direction, it was based on materially incorrect guidance.

Counsel for the College emphasised that on 31 July 2002 the Committee had the benefit of argument by counsel for the appellant. The Committee reviewed its earlier decision. It gave detailed reasons for concluding that "it did exercise the utmost care and caution in making its decision". The reasons were as follows:

"The Committee has carefully considered the arguments put by Counsel for Mr Tait to the effect that there should be a re-hearing of the charges and have taken into account, in particular, the legal authorities cited and the three medical reports from Dr Vedi which were submitted. The Committee has also considered the submission and points put by Miss Smith for the College. In conclusion the Committee has decided to proceed with the case.

In reaching this conclusion the Committee has weighed the public interest considerations of this case alongside the difficulties experienced by Mr Tait. The Committee is very aware that the facts found in relation to two of the charges involved dogs which had died and is mindful of its responsibilities to act in the interests of both animal welfare, animal owners and the wider public.

In reviewing the decision which it made on 27 June 2002 to hear the case in Mr Tait's absence the Committee feels that, in the words of Lord Bingham, in the House of Lords case to which reference was made (R v Jones [2002] 2WLR 524, at page 530H) it did exercise the utmost care and caution in making its decision. Its reasons were given in writing at the time.In considering the question in the light of the evidence presented today the Committee took the view that the essential questions were whether or not Mr Tait was genuinely unable to attend on 27/28 June 2002 and whether his state of health was such that he could be said to have been involuntarily absent. The Committee took the opportunity to address a number of questions to Mr Tait about the occasions on which he had sought medical advice or treatment and about his medical reports, some of which it appeared had been lost by the relevant authorities. The Committee found a number of inconsistencies in what they heard, for example, in relation to whether Mr Tait had been taken to hospital on 27 (the first day of the hearing) or on 28 June (having heard that the Inquiry was to proceed in his absence) and were surprised that Mr Tait was not able to verify the fact that he had attended the Casualty Department of his local hospital, but left because of the queue, and that he had collapsed later at home. The Committee felt it was relevant to note that he was unable to verify his collapse in a medical report; that he did not obtain medical assistance that day and that he did not draw it to the attention of the College that day, as the Committee was sitting hearing his Inquiry, nor in subsequent correspondence. The Committee felt that Mr Tait's recollection could not be relied upon and felt that the written reports submitted by Dr Vedi presented a less than full account of the difficulties which Mr Tait described. For example, Dr Vedi made no reference to the potentially fatal consequences of Mr Tait's level of hypertension and the fact that he had collapsed on one or other of the dates of the hearing in June.

The Committee noted legal advice to the effect that the burden of proof was on the respondent to establish on the probabilities that he was not able to attend the Inquiry. In the absence of sufficiently persuasive evidence it concluded that Mr Tait had had a number of opportunities both to ensure he was properly legally represented and to attend the Inquiry himself at an earlier stage."

It has to be said that the letters from Dr Vedi to which the Committee referred were far from clear. On the other hand, the letter of Dr Vedi dated 8 July 2002 did state explicitly:

"I was not aware that Mr Tait had a hearing on the 26 and 27 June 2002 (sic). Had I been aware of the situation I would have advised him not to attend the hearing on medical grounds. He is now fit and able to attend the hearing on the 31 July 2002 despite the fact that he is having to cope with several stress factors."

It must be considered whether the reasons given on 31 July 2002 remove the apprehension that the Committee misdirected itself by refusing an adjournment on 27/28 June 2002.

Certainly, the reasons of 31 July 2002 go a considerable way to assuaging the anxiety which the Legal Assessor's guidance of 27 June 2002 caused. On the other hand, the reasons of 31 July 2002 do not state that the Committee was not influenced by the Legal Assessor's reasons. In a case which is finely balanced their Lordships cannot with complete certainty eliminate the risk that the Legal Assessor's guidance played a role in the Committee's deliberations on an adjournment on 27 June 2002. In any event, given that there are significant differences between the Legal Assessor's guidance of 27 June 2002 and the reasons of 31 July 2002, their Lordships cannot confidently conclude that when the Committee refused an adjournment on 27 June 2002 justice was seen to be done.

For these reasons the first ground of appeal succeeds. The decision to refuse an adjournment was wrong. It follows that the subsequent decisions of the Committee on 28 June 2002 in making findings of fact, as well as the decisions made on 31 July 2002, culminating in the direction to remove the appellant from the Register, must be quashed.

The Second Ground: Review on 31 July 2002.

For substantially the same reasons as already discussed, their Lordships also conclude that, in any event, on 31 July 2002 the Committee ought to have set aside the findings of fact made on 28 June 2002 and re-opened the case.

The Third Ground.

Counsel for the appellant submitted that the removal of appellant's name from the Register was manifestly excessive. Strictly it is unnecessary to consider this aspect. Having heard full argument from counsel for the appellant it is, however, appropriate to comment on the point. For all professional men a finding of dishonesty lies at the top end of the spectrum of gravity of misconduct: Bolton v Law Society [1994] 1 WLR 512; Gupta v General Medical Council [2002] 1 WLR 1691, para 21; Patel v General Medical Council, PC Appeal No. 48 of 2002, para 10. If charge 1 is well founded, it falls into this category. If it had been necessary to do so, their Lordships would have ruled that removal from the Register was necessary to protect the public interest.

Conclusion.

Their Lordships will therefore humbly advise Her Majesty that the appeal should be allowed and that the matter should be remitted to the Committee for rehearing. The respondent must pay the appellant's costs.