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The Judicial Committee of the Privy Council Decisions
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 UKPC 48
Privy Council Appeal No 0007 of 2010
Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent)
From the Disciplinary Committee of the Royal College of Veterinary Surgeons
JUDGMENT DELIVERED BY
20 December 2011
Heard on 1 November 2011
(Instructed by Stephensons)
Joanna Smith QC
(Instructed by Penningtons Solicitors LLP)
(a) 25 October 2007, when Mr Holmes performed a staphylectomy upon Jake;
(b) 1 November 2007, when he performed a second staphylectomy upon him;
(c) 5 February 2008, when he performed a third staphylectomy upon him;
(d) 11 February 2008, when he performed a fourth staphylectomy upon him; and
(e) 14 March 2008, when he performed a tracheostomy upon him.
A staphylectomy is a surgical procedure to cut away part of the soft palate above the throat. A tracheostomy is or, in what follows, will be taken to describe a procedure to insert a permanent tube through the neck into the wind-pipe.
(a) that Mr Holmes performed the first staphylectomy without having sufficient clinical grounds for so doing (one charge);
(b) that he had not referred Jake to a specialist (or discussed with Mrs Marsden the option of so doing) prior to performing each of the four staphylectomies (four charges);
(c) that he had not given adequate consideration to alternative treatment options prior to performing the first staphylectomy and the tracheostomy (two charges);
(d) that he had not obtained the informed consent of Mrs Marsden to any of the five procedures (five charges);
(e) that he performed the second, third and fourth staphylectomies when he knew or ought to have known that they were outside his area of competence (three charges);
(f) that he failed to provide any or any sufficient analgesia to Jake in respect of any of the five procedures (five charges); and
(g) that he failed to provide adequate post-operative care to Jake following the tracheostomy (one charge).
(a) 14 July 2008, when Mr Holmes extracted Henry's upper back molar teeth;
(b) 6 August 2008, when he gave Mrs Auckland advice (which she declined to accept) that he should extract Charlie Brown's molar teeth; and
(c) 29 October 2008, when he extracted Dream Topping's molar and/or upper molar teeth.
(a) that Mr Holmes extracted the teeth of Henry and Dream Topping without having sufficient clinical grounds for so doing and advised that he should do so in the case of Charlie Brown without having such grounds (three charges);
(b) that he performed those extractions and gave that advice without having given adequate consideration to alternative options for the treatment of each of the three cats (three charges);
(c) that in the case of Henry and Dream Topping he performed the extractions without having obtained the informed consent of Mrs Auckland to his doing so (two charges); and
(d) that he failed to administer any or any adequate pain relief to either of those cats during the anaesthesia and/or immediately post-operatively (two charges).
(a) Mrs Marsden and Mrs Auckland;
(b) two other veterinary surgeons in practice in Grimsby, who had examined Charlie Brown's teeth in October 2008 and July 2009;
(c) Professor Brockman, a specialist soft tissue veterinary surgeon;
(d) Mr Crossley, a specialist dental veterinary surgeon; and
(e) Mr Ash, a veterinary surgeon who had worked in a small animal practice for 25 years and who, like Professor Brockman and Mr Crossley, gave expert evidence.
Mr Holmes gave evidence himself and called his wife to give brief evidence about Jake's condition a few days after performance of the tracheostomy. He did not call expert evidence.
B. THE APPEARANCE OF BIAS
(a) The governing body of the College is its Council, which now has 42 members, of whom at least 31 must be members of the College (i.e. registered veterinary surgeons) and at least four must be lay members.
(b) The Council has a number of committees, of which three are relevant.
(c) The preliminary investigation committee ("the PIC") is required to be established by s 15(1) of the Act, by which it is "charged with the duty of conducting a preliminary investigation into every disciplinary case".
(d) Paragraph 1(1) of Schedule 2 to the Act requires the PIC to consist of the President and the two Vice-Presidents of the College and three other Council members, whether lay or otherwise. The quorum for a meeting of the PIC is three.
(e) If the PIC decides that there is a realistic prospect that the registered veterinary surgeon about whom a complaint has been made ("the registrant") will be found to have been guilty of "disgraceful conduct in any professional respect" (or that either of two other criteria in respect of him will be held to be satisfied), it will refer the case to the DC which must accept and determine it.
(f) Upon reference to the DC, a charge (or charges) will be formulated against the registrant and brought against him in the name of the College. The College will instruct its solicitors (who may themselves instruct Counsel) to prosecute the charge before the DC, to serve the documentary evidence of the College upon him and to effect disclosure in accordance with rules.
(g) Paragraph 2(1) of Schedule 2 to the Act requires the DC to consist of a chairman and eleven other members. By subparagraph (2), all twelve of them have to be members of the Council. At least six of them must be registered veterinary surgeons and at least one of them must be a lay member. The quorum for a meeting of the DC is five.
(h) By paragraph 2 (5) of the schedule, a member of the constitution of the PIC which has referred a complaint to the DC cannot sit on the DC which hears it.
(i) The duty of the DC is to find the facts: to determine whether, and if so in which respect or respects, they amount to disgraceful professional conduct on the part of the registrant and to pass judgment upon the appropriate sanction. The DC reports its determinations to the Council, which has no power to interfere with them.
(j) The advisory committee ("the AC") provides advice and guidance to the Council about the professional conduct of veterinary surgeons. It formulates and updates the "Guide to Professional Conduct". Theoretically the Council can make amendments to it before publishing it. The DC will take the contents of the Guide into account in determining whether a registrant has been guilty of disgraceful professional conduct.
(a) members of the DC should serve a term of four years;
(b) no one should be a member both of the AC and of either the PIC or the DC simultaneously;
(c) by way of extension of the statutory provision noted at para 14(h) above, no one should be a member of the PIC and DC simultaneously;
(d) at least three years should elapse between cessation of a person's membership of the PIC and his appointment to membership of the DC; and
(e) the panel of the DC appointed to hear a complaint should if possible consist of seven of its members (rather than the quorum of five), of whom the chair and at least two others should be lay members.
(a) The complaints against him were brought in the name of the College but all the members of the DC which heard the complaints were members of the Council of the College. Mr Holmes does not suggest that, within a legitimate system of professional self-regulation such as this, the complaints should be brought otherwise than in the name of the College; and he accepts that statute presently requires that all members of the DC should be members of its Council. But the Board agrees with Mr Holmes that the statute does not, of itself, preclude his seeking to complain about the connection between the prosecution and the committee which it mandates; and it also agrees that, in the light of his concession about the effect of the present appeal upon his rights under Article 6, the complaint can be advanced notwithstanding the absence of any application on his part for a declaration of the incompatibility of the statute with the article.
(b) The system allows members of the DC previously to have been members of the PIC. The complaint is thus that those who fulfil the judicial role may previously have had a role in the sanctioning of prosecutions. Within this systemic complaint lies the major complaint of Mr Holmes specific to the instant proceedings. It relates to Professor Crispin, who was a member of the DC in them. There are two aspects of his complaint about the professor: first that she had been appointed to the DC only two years after the cessation of her membership of the PC in breach of the convention that three such years should elapse; and second that she had served on the very PIC which in 2005 had referred to the DC the complaints against him which it determined in 2006. It was the discovery of this last fact which led the DC in the instant proceedings to consider itself unable, even at the end of the hearing, to make the postponed judgment arising out of the 2006 proceedings.
(c) The system allows members of the DC and of the PIC previously to have been members of the AC; for example in October 2009 at least three of the six members of the PIC had previously been members of the AC. Thus (runs the argument) those who determine complaints or have a preliminary role in sanctioning their prosecution may have helped to craft the Guide which will be taken into account in the determination of issues of professional misconduct.
(d) The system allows members of the PIC previously to have been members of the DC. The complaint is thus that those who have a preliminary role in sanctioning prosecutions may previously have fulfilled the judicial role. Within this systemic complaint lies the subsidiary complaint of Mr Holmes specific to the instant proceedings. It relates to Mrs Nute, who was at least nominally a member of the PIC in the instant proceedings and who had been a member of the DC in the proceedings against him in 2006.
"20 The contention for the appellant that the role of the preliminary screener is prosecutorial cannot be accepted. It is more akin to the role of examining justices or a judge ruling on a submission of no case to answer. But that by no means disposes of the appellant's points under article 6(I). In the opinion of the Board, when the participation of the President both as preliminary screener and as chairman of the PCC is seen in conjunction with the predominance of council members in both the PPC and the PCC, and in conjunction moreover with the fact that the disciplinary charge is brought on behalf of the council, the cumulative result is an appearance and a real danger that the PCC lacked the necessary independence and impartiality. Only the ultimate right of appeal to Her Majesty in Council saves the day."
So the chairman's role as a preliminary screener was objectionable not because it was in itself prosecutorial but because it set in train the process which led to the prosecution and raised concern that, in that role, he had made a decision, albeit limited, which might colour his later approach to the case as chairman of the committee. Lord Cooke went on to note that the respondent was seeking, just as the College is presently seeking, to secure statutory amendment so as to preclude members of the council from serving on the Professional Conduct Committee. He commented, also at para 20, that:
"If this means a divorce between the general policy-making functions of the council and the distinctive functions of adjudicating on disciplinary charges, it will go far to remove the difficulties that have arisen."
"  The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively.....
 The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious.... Her approach must not be confused with that of the person who has brought the complaint. The 'real possibility' test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
 Then there is the attribute that the observer is .'informed', It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment. "
(a) It is one thing for the Board, as it did in Preiss in the case of the dentists and as it hereby does in the case of the veterinary surgeons, to support statutory reform so as to enable members of the disciplinary committees to be chosen from outside the council. It is another for it to conclude that the members of the DC, aware that it is presently required to be composed of members of the council of the College in whose name the complaints are brought, might, in the light of their membership of the Council, be thereby motivated to uphold the complaints. The fair-minded and informed observer would find such an argument as elusive as does the Board. In this regard it prefers the dicta of Elias J in Brabazon-Drenning above to those of Lord Mackay in Tehrani to which it has made reference at para 21 above.
(b) The College has adopted a convention designed to eliminate co-terminous membership of the PIC and the DC. It is indeed surprising that its system was insufficiently robust to secure full application of its convention to the case of Professor Crispin. But a fair-minded observer would not conclude that, following a gap even of only two years since service on the PIC, a member of the DC might, as a result of that prior service, somehow remain predisposed to uphold a complaint irrespective of its intrinsic strength. The professor's membership of the PIC which referred the complaint against Mr Holmes heard by the DC in 2006 might, however, have troubled the observer and thus the Board had it not been for his request to the DC in the instant proceedings to study in advance of the hearing the papers made available to the DC in the 2006 proceedings. It is fanciful for Mr Holmes to suggest that, as a result of her service on the PIC, the professor might have recalled matters unfavourable to him which were not visible in the papers made available to the DC in 2006 and thus to the DC in the instant proceedings.
(c) The College does not permit simultaneous membership of the AC and of either the PIC or the DC; and it may be that, in the event of statutory reform, members of the latter committees will never have been members of the AC. But the Board does not accept that a past contribution, through membership of the AC, to the exposition in the Code of standards of competence could fairly be regarded as predisposing a member of either committee against a registrant; see Sadighi v General Dental Council  EWHC 1278 (Admin), per Plender J at para 4.
(d) The Board perceives no real possibility of bias in previous membership of the DC on the part of a member of the PIC. In any event, however, the Board is asked to appraise a complaint of apparent bias on the part of the DC, not of the PIC. The role of the PIC in the present case is water under the bridge; there is no criticism of its reference to the DC of the complaints against Mr Holmes. On that footing the complaint about Mrs Nute falls away; in fact, however, at the meeting of the PIC on 21 April 2010 when, crucially, it decided to make the reference, she took no part in the discussion by reason of her membership of the DC in 2006.
C. FINDINGS AND CONCLUSIONS OF THE DC
(b) There were factual issues between them and, in relation to one of the more important, namely whether they had first discussed the initial staphylectomy prior to the date of its performance, the DC preferred the evidence of Mr Holmes that they had not done so. The other factual issues between them were largely unimportant. It was, for example, agreed that at no time - not even after the failure of the first and subsequent staphylectomies - had Mr Holmes suggested a referral to a specialist or given Mrs Marsden such advice about options for alternative treatment as would have rendered her consent to the procedures informed. Nor was there any issue about the very limited post-operative analgesia which Mr Holmes provided for Jake and which included Anadin Extra as his recommendation for use in the short term following the second staphylectomy although it is not even licensed for use in animals.
(b) Although Mr Holmes accepted that he had no experience of performing anything other than an initial staphylectomy, he put forward the schedule in order to demonstrate his familiarity with the procedure. The DC was therefore correct to address the schedule; and it was entitled both to record Professor Brockman's astonishment at the number of staphylectomies performed by Mr Holmes, as a general practitioner, including upon breeds of dog with no predisposition to oversized soft palates, and to conclude, with appropriate caution, that the clinical justification for them was unclear.
(b) The finding was justified by reference to the evidence of Mrs Marsden about Jake's condition, to the explanations of Mr Holmes, which he acknowledged to have been inconsistent, about the reasons for the procedure and to the evidence of Mr Ash that he discerned insufficient grounds for it.
(b) When asked to address photographs of mouths of cats with different conditions, Mrs Auckland likened those of Henry and Dream Topping to a mouth which, when addressing the same photographs, Mr Ash described as infected with mild gingivitis. His evidence was that extraction was inappropriate for such a condition. It would be impossible for the Board to override the DC's conclusion that the evidence of Mrs Auckland was thoroughly credible. It was also legitimate for the DC to draw an inference from the evidence about Charlie Brown, whose teeth had, notwithstanding Mr Holmes' advice, not been extracted: three months after his advice had been given a second veterinary surgeon in general practice examined his teeth and identified mild gingivitis which in her view did not justify extraction; and a year later a third such surgeon noted that his teeth were perfect.
(b) The argument is misconceived. The appearance of a litigant in person at a long hearing presents many challenges but yields to a judicial body a degree of exposure to him which may be valuable to it in relation to issues of credibility, whether it works in his favour or otherwise.
(b) It was the firm evidence of Mrs Auckland that Mr Holmes had not discussed the advantages and disadvantages of extraction in comparison with other forms of treatment. By contrast the evidence of Mr Holmes about such discussions was vague, general and unsupported by notes. The finding is impregnable.
(b) Had the change of practice been the only or even the primary basis for its finding, Mr Holmes' objection might have been valid. But in this regard the other evidence was stark: his view that, by reason of the anaesthetic, there was no need to prescribe post-operative analgesia was described as unacceptable both by Mr Crossley and Mr Ash.
(b) The parties agree that the DC was correct to remind itself that disgraceful conduct within the meaning of the section means conduct which falls far short of that which is expected of the profession: see the judgment of the Board, delivered by Lord Carswell, in Macleod v The Royal College of Veterinary Surgeons  UKPC 39, at para 21. But the present Board needs also to remind itself of his observations, at para 23, that, in this area of the appeal, which relates to the standards of the profession, the expertise of the DC is entitled to substantial respect. Each of its two decisions culminated in a meticulous consideration of the gravity of each charge which it had found proved; and three of the charges were considered to lack the gravity required by the section. Although the 28 other charges were correctly considered on an individual basis, they fell into general categories: insufficient clinical grounds for the procedures; a failure to render the consents of the owners informed by a discussion of other options; procedures performed on Jake following the first two staphylectomies which were outside the competence of Mr Holmes instead of referral of Jake to a specialist; and a failure to provide any or insufficient analgesia following the performance of all seven procedures on the three animals. The effect of the evidence of the three experts was that these various failures fell far below the area of clinical misjudgement.
(b) The DC's summary of the mitigation of Mr Holmes in its Decision on Sanction was fair. The points to which it is said to have omitted to refer are either relatively insubstantial (for example that Mr Holmes did not act with a view to financial gain) or incorrect (for example that his career was "unblemished") or at any rate questionable (for example that he showed insight into the deficiencies of his past conduct). The Board is constrained to agree with the DC that, when considered in the light of the "disgraceful" conduct of Mr Holmes found proved against him in 2006, the only sanction appropriate to the catalogue of egregious misconduct reflected in the 28 charges which fell within the section was the erasure of his name from the register. Such was the only disposal which could properly reflect the primary need to serve both the interests of animal welfare and the reputation of the veterinary profession: see the decision of the Board, delivered by Lord Rodger in Gupta v General Medical Council  UKPC 61,  1 WLR 1691, at para 21.