Joseph Lennox Holmes v Royal College of Veterinary Surgeons
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] UKPC 48 |
| Date | 20 December 2011 |
| Docket Number | Appeal No 0007 of 2011 |
| Court | Privy Council |
[2011] UKPC 48
Privy Council
Lady Hale
Lord Kerr
Lord Wilson
Appeal No 0007 of 2011
Appellant
Rowan Morton
(Instructed by Stephensons)
Respondent
Joanna Smith QC
Jonathan Chew
(Instructed by Penningtons Solicitors LLP)
Heard on 1 November 2011
Mr Holmes appeals to Her Majesty in Council under s17 of the Veterinary Surgeons Act 1966 ("the Act") against a direction given on 11 January 2011 by the disciplinary committee ("the DC") of the Council of the Royal College of Veterinary Surgeons ("the College") that his name be removed from the register of veterinary surgeons.
Mr Holmes is aged about 58. Until earlier this year he had for about 25 years been in sole practice near Grimsby as a veterinary surgeon. A significant number of owners of small animals in the area of Grimsby speak very highly of his treatment of their animals.
The DC's direction dated 11 January 2011 followed its hearing of two complaints against Mr Holmes, namely by Mrs Marsden and Mrs Auckland, which it conducted on ten days between 18 and 29 October 2010 and upon which it announced decisions on 10 January 2011. At that hearing Mr Holmes represented himself and, as now, Ms Smith QC represented the College. Before the Board, however, Ms Morton represents him—very skilfully.
The complaint of Mrs Marsden related to the treatment by Mr Holmes of Jake, her King Charles Spaniel, between October 2007 and March 2008, when he was aged six. Ultimately, in May 2008 and at Mrs Marsden's request, Mr Holmes euthanatised Jake. There were 21 charges against him in respect of his treatment of Jake on five dates, namely
(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.
The 21 charges in respect of Jake can be summarised as follows:
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(a) that Mr Holmes performed the first staphylectomy without having sufficient clinical grounds for so doing (one charge);
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(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);
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(c) that he had not given adequate consideration to alternative treatment options prior to performing the first staphylectomy and the tracheostomy (two charges);
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(d) that he had not obtained the informed consent of Mrs Marsden to any of the five procedures (five charges);
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(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);
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(f) that he failed to provide any or any sufficient analgesia to Jake in respect of any of the five procedures (five charges); and
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(g) that he failed to provide adequate post-operative care to Jake following the tracheostomy (one charge).
The complaint by Mrs Auckland related to the treatment by Mr Holmes of three of her male Persian cats, namely Henry, Charlie Brown and Dream Topping, between July and October 2008. There were ten charges against him in respect of his treatment of the cats on three dates, namely
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(a) 14 July 2008, when Mr Holmes extracted Henry's upper back molar teeth;
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(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
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(c) 29 October 2008, when he extracted Dream Topping's molar and/or upper molar teeth.
The ten charges in respect of the cats can be summarised as follows:
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(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);
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(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);
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(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
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(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).
At the hearing the College adduced oral evidence from
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.
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(a) Mrs Marsden and Mrs Auckland;
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(b) two other veterinary surgeons in practice in Grimsby, who had examined Charlie Brown's teeth in October 2008 and July 2009;
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(c) Professor Brockman, a specialist soft tissue veterinary surgeon;
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(d) Mr Crossley, a specialist dental veterinary surgeon; and
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(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.
Before the DC was also a quantity of written material. It included Mr Holmes' clinical notes relating to Jake and the cats which he was constrained to admit were deficient in important respects. In order to demonstrate his particular expertise in this respect Mr Holmes also produced a schedule derived from his clinical records which indicated that, between 1992 and 2009, he had performed 88 staphylectomies.
The DC found all 31 charges proved. It then proceeded to consider the contention of the College that the conduct of Mr Holmes which was the subject of each charge had been "disgraceful…. in [a] professional respect" within the meaning of s16(1)(b) of the Act. In respect of 28 charges it determined the contention to be correct. By contrast it declined to accept that, in failing to refer Jake to a specialist (or to discuss the option of so doing) prior to performing the first and second staphylectomies and in performing the second in the knowledge (actual or constructive) that it was outside his area of competence, Mr Holmes had been guilty of disgraceful conduct in a professional respect.
Pursuant to the same subsection, the DC's determination that the conduct of Mr Holmes comprised in 28 of the charges had been disgraceful in a professional respect conferred upon it a discretion to direct that his name be removed from the register or that his registration be suspended. In this respect it considered (or, as Mr Holmes would prefer to say, purported to consider) mitigation which he put forward. But it also—rightly—considered the fact that in 2006 the DC, differently constituted, had found that four other charges against Mr Holmes were proved and had determined that each amounted to disgraceful conduct in a professional respect. The four charges had concerned his inappropriate administration in 2004 of two types of cytotoxic drugs (i.e. drugs which damage or destroy cells), his failure to obtain informed consent for their administration and his inappropriate supply of one of them in tablet form. In these earlier proceedings Mr Holmes had offered undertakings about his future conduct in consideration of which the DC had postponed judgment upon the sanction appropriate to its determination. That judgment remains postponed. It was only at the specific request of Mr. Holmes, who wished to contend that he had been the victim of unfairness and bias in the course of the earlier proceedings, that the papers in relation to them were placed before the DC for consideration prior to the hearing of the instant proceedings; and at its outset he unsuccessfully argued that it should first consider his contentions in regard to them and make the postponed judgment arising out of them. In the event, for reasons to be explained in para 19(b) below, the DC did not make such a judgment even at the end of the hearing; but such did not preclude its weighing the gravity of Mr Holmes' misconduct in relation to Jake and the cats in the light—among other things—of the determination in 2006.
Having given what it called "serious consideration" to an analogous postponement of the judgment upon sanction and having also considered use of its power to direct suspension of his registration, the DC concluded that the only appropriate sanction was a direction for the removal of his name from the register.
Mr Holmes contends that features of the general system operated by the College for the determination of disciplinary complaints and features of its operation specific to the instant proceedings represent deficiencies which combined to give rise to an appearance of bias against him on the part of the DC. In the absence of his right of appeal to the Board, it would (so Mr Holmes argues) have infringed the right "to a fair…hearing by an independent and impartial tribunal" conferred on him by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (cmd 8969). He accepts that his right of appeal to the Board, to which (as he concedes) he cannot ascribe any deficiencies relevant to Article 6, would negative any such infringement: Albert and Le Compte v Belgium (1983) 5 EHRR 533 at para 29. But he rightly submits that, were the DC indeed to have exhibited an appearance of bias...
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