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Archbold v. Royal College of Veterinary Surgeons (RCVS) [2004] UKPC 1 (8 January 2004)

Privy Council Appeal No. 26 of 2003

William Alexander Carson Archbold Appellant

The Royal College of Veterinary Surgeons Respondent

FROM

THE DISCIPLINARY COMMITTEE OF THE

ROYAL COLLEGE OF VETERINARY SURGEONS

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

20th November 2003, Delivered the 8th January 2004

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Present at the hearing:-

Lord Steyn

Sir Philip Otton

Sir Kenneth Keith

[Delivered by Sir Kenneth Keith]

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At the end of the hearing of this appeal, their Lordships announced that they would humbly advise Her Majesty that the appeal brought by Mr Archbold should be dismissed and that they would give their reasons later. This they now do.

The appeal, brought under section 17 of the Veterinary Surgeons Act 1966, is against the decision of the Disciplinary Committee of the Royal College of Veterinary Surgeons given on 12 March 2003 to instruct the Registrar to remove Mr Archbold's name from the register of veterinary surgeons. That decision was based on its finding, in the light of the evidence and of his admission to the two charges he faced, that Mr Archbold was guilty of disgraceful conduct in a professional respect: section 16(1)(b) of the Act.

Mr Archbold had been given notice of the date of hearing but for reasons of health he decided not to attend and he declined an offer of an adjournment. The Committee did have three references before it, emphasising the value of Mr Archbold's work as a veterinary surgeon over a lengthy period. Further references were provided to the Board at the hearing of the appeal. Miss Smith, for the College, rightly accepted that their Lordships could consider additional references, but submitted, again correctly, that they did little more than emphasise the original three.

The charges, included in a notice of 20 November 2002, were based on two certificates which Mr Archbold had completed and signed on 17 February 2000. He had certified that he had attended and verified the identity of two cows and had administered lethal injections to them. The certificates were part of the "over thirty months" scheme which, according to the Committee, was introduced to prevent bovine animals over thirty months of age from entering the food chain as part of a package of measures to control BSE (bovine spongiform encephalopathy). In the words of the Committee, the role that the veterinary surgeon plays in signing the certificate is crucial to the operation of the scheme which provides for consumer protection, allows proper monitoring of disease control and helps to ensure animal welfare. The public is entitled to trust the signature on such a certificate.

Mr Archbold had admitted the facts alleged in an interview on 2 August 2000 and the charges by letter of 19 February, 20 February and 1 March 2003. In the last letter, in addition to admitting to charges, he admitted in relation to the facts alleged that he was guilty of disgraceful conduct in a professional respect.

The Disciplinary Committee concluded that the truth was that Mr Archbold had not attended and verified the identity of the two animals on the farm and he had not administered the lethal injections. Further, he had passed barbiturates in hypodermic needles and syringes to the farmer and had never identified the animals. "He clearly failed in his fundamental responsibilities as a veterinary surgeon."

In its determination the Committee began by recognising the importance of the over thirty months slaughter scheme. Mr Archbold's laxity in relation to the certification could have led to undue animal suffering, put public health at risk and provided a vehicle for fraud. By his actions he had failed to uphold the honour and reputation of the profession. The Committee said that it had given him due credit for the affection and high esteem in which the testimonials showed he was held within his community, particularly in respect of his small animal practice, but the gravity of his false certification could not be ignored. He had clearly brought the profession into disrepute. The Committee had accordingly taken the decision to instruct the registrar to remove Mr Archbold's name from the register.

Mr Keogh, for Mr Archbold, contended that removal from the register was excessive and disproportionate. In particular the appellant appeared to have been given no credit for his prompt and repeated admission of the primary facts alleged against him and his further admission that those constituted disgraceful conduct in a professional respect, nor for his very full cooperation with the respondent throughout the preparation of the case against him.

Next, it was submitted, the Committee had failed to take into account the uniqueness of the circumstances of the case, namely the appellant's misguided loyalty to, and trust in, the farmer whose animals were the subject of the false certificates. He had allowed a personal consideration to override his professional judgment, a lapse of judgment which was extremely unlikely to be repeated.

The College responded that in its submissions to the Committee it had highlighted, so far as matters of mitigation were concerned, the circumstances in which the appellant came to sign the certificates, particularly the circumstance that he had no knowledge of the certificates being used to make a false claim, the appellant's personal circumstances including his age, his state of health and the facts that he had successfully obtained assistance in his practice and had sought to limit his work to smaller animals. It had also called attention to the fact that the appellant had expressed contrition for his actions and that he had not acted in this way before. That is to say, all those matters were before the Disciplinary Committee when it reached its conclusion.

The appellant's submissions to the Board also emphasised the disgrace involved in removal from the register. The sanction of removal must hit a man of Mr Archbold's age very much harder than a younger practitioner with alternative career options. The submissions next called attention to the fact that there was the alternative penalty of suspension. The corollary of the statutory range of the punishments for "disgraceful conduct in any professional respect" is that that phrase must embrace a wide range of conduct ranging from misconduct so heinous that it warrants the ultimate sanction of removal through to various degrees of lesser misconduct meriting only a short suspension. Further, while a person removed from the register has a statutory second chance since he can seek restoration to the Register every ten months following the date of removal or any previous unsuccessful application, that statutory second chance was probably impracticable for the appellant who was already well past retiring age and who had effectively wound down his practice to a primary devotion to the care of small animals.

On the law, Mr Keogh submitted that the determination by the Disciplinary Committee was a determination of the appellant's civil rights within the meaning of article 6 of the European Convention on Human Rights. In terms of the position accepted in Ghosh v General Medical Council [2001] 1 WLR 1915, this Board, in dealing with the appeal by way of rehearing, is fully entitled to substitute its own decision for that of the Committee. The facts that the appeal is on paper and that the witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the Committee makes its decision, but that is true of most appellate processes. While the Board, it was said in that case, would accord an appropriate measure of respect to the judgment of the Disciplinary Committee, in particular concerning the measures necessary to maintain professional standards and to provide adequate protection to the public, the Board would not defer to the Committee's judgment more than is warranted in the circumstances. It is for the Board to decide whether the sanction of removal is appropriate and necessary in the public interest or excessive and disproportionate.

That expansive approach to the power of the Board on appeal, again accepted in this appeal, means that it is not necessary to consider the further contention that the rights in respect of the practice are "property" within the meaning of article 1 of the First Protocol to the European Convention on Human Rights. If their Lordships are not satisfied that the penalty is a proper and fair one they will not affirm it.

This is, however, a case of dishonesty in a professional respect. As was said in Bolton v Law Society [1994] 1 WLR 512, 518 and in Tait v Royal College of Veterinary Surgeons PC Appeal No 67 of 2002 at paragraph 13, proven dishonesty comes at the top end of the spectrum of gravity for misconduct. The gravity of the matter arises in this case not simply from the dishonesty but also from the possible consequences of the false certification. The declaration in the certificates which the appellant signed read:

"In my opinion after carrying out a clinical examination and making due enquiries, the animal from which this carcase was produced showed no signs of disease or pathological condition which would render the whole carcase unfit for human consumption."

Their Lordships agree that the imposing of the sanction of removal in the circumstances of this case properly fulfilled the Disciplinary Committee's stated duties to protect animals and the public and to uphold the honour and reputation of the veterinary profession. The penalty was just and fair and proportionate in all the circumstances. This is not an exceptional case of the kind mentioned in Preiss v General Dental Council [2001] 1 WLR 1926 at paragraph 31.

It was for the foregoing reasons that their Lordships humbly advised Her Majesty to dismiss the appeal. The appellant must meet the respondent's costs on this appeal.