LEGAL AND ETHICAL ISSUES ARISING FROM THE RECENT
FOOT AND MOUTH DISEASE OUTBREAK
In a recent Veterinary Times article, I compared the 1967 operating methods for Foot and Mouth disease control with those of 2001 and suggested that this year's disaster had been made much worse because MAFF had run down its Veterinary Field staff and relied on a centralised bureaucratic system to make up the deficit. When the epidemic got out of hand, the government turned to academics who prescribed two significant departures from the traditional operating procedure; killing all livestock within 3 km of an infected place, rather than keeping them under close observation, and requiring Temporary Veterinary Inspectors (TVI) to guess the diagnosis in uncertain cases, rather than make it properly. There is little doubt that this was negation of good clinical practice and was wasteful of animals' lives, of taxes and of private wealth. I suggested that, arguably, MAFF had used its power as paymaster to subvert professional standards such as to bring the profession into disrepute. In this article I wish to explore this a little further.
The Veterinary Surgeons Act (1966) restricts the practice of veterinary surgery to members of the Royal College of Veterinary Surgeons (RCVS). The Guide to Professional Conduct (2000 p30) states;
The Veterinary Surgeons Act (1966) provides, subject to a number of exceptions, that only registered members of the Royal College of Veterinary Surgeons may practice veterinary surgery. "Veterinary surgery" is defined within the Act as encompassing the "art and science of veterinary surgery and medicine" which includes the diagnosis of disease and injuries in animals, tests performed on animals for diagnostic purposes, advice based upon diagnosis and surgical operations which may not necessarily form part of a treatment. These restrictions are in the interests of ensuring that animals are treated only by people qualified to do so. (Author's italics)
On being admitted to the RCVS register, we swear an oath that includes the phrase, "that my constant endeavour will be to ensure the welfare of animals committed to my care." This oath, it appears, has no legal validity; it is similar to a statement deploring bad manners. Therefore, in law, we need not endeavour to ensure the welfare of animals committed to our care. Nevertheless the RCVS rightly expects us to observe this oath. Moreover, as the guardian of professional standards, the College has declared its jurisdiction over all veterinary surgeons (Guide to Professional Conduct, 2000 p 43) and wherever we work, we may be disciplined if we fail to practice to a reasonable standard. We must also practise to the state of the art and we undertake continuing professional development (CPD) to that end. These obligations regarding clinical standards and animal welfare are not suspended on starting work for the State and presumably apply to the Chief Veterinary Officer and his staff.
Relationship of a veterinary surgeon with laymen
The Guide to Professional Conduct (2000 p8) states that a veterinary surgeon must "co-operate with colleagues and other health professionals when appropriate." The operative words are health professionals , co-operate and appropriate. We remain responsible for any measures that the other health professional might suggest, i.e. for the practice of veterinary surgery. If we cannot approve the other's suggestion, we should not implement it. If we do so, and thereby lower our standards to meet our client's (paymaster's) wishes, we cannot absolve ourselves from the responsibility for any unfortunate outcome. Indeed, it is likely a court would hold us fully responsible and the College almost certainly would deem us to have acted unprofessionally. We would probably have no defence from pleading that we co-operated against our will and judgment, to earn our fee. If this is so, it means that the CVO whilst paying attention to his civil service seniors and academic epidemiologists, was not bound to follow their direction.
The diagnosis of FMD
The diagnosis of Foot and Mouth disease (FMD) and its treatment, namely euthanasia of affected and contact animals, is the practice of veterinary surgery, as defined in the Veterinary Surgeons Act. The diagnosis is largely based upon clinical findings and usually offers no serious problem. Sometimes it is not straightforward because the presenting lesions are not typical. But it may not be possible to rule it out either. In such cases laboratory investigations of tissues and fomites are indicated. However, such is the nature of the disease, that when the first affected animals do not show typical lesions, it is often only a matter of hours before typical lesions do appear in the first affected or the contact animals. Therefore the best practice requires laboratory tests and/or keeping the animals under close observation. In positive cases the lesions soon appear; in negative cases they do not. This simple protocol, used in all previous FMD outbreaks, may be regarded as representing the state of the veterinary art. Anything less than the application of this standard, to the detriment of the animals, is probably unethical, as defined in the Guide (p 42) being "a departure from that standard of behaviour accepted as the norm."
FMD positive diagnoses
In early March 2001, TVIs were presented with animals with clinical histories and lesions typical of FMD. In many, if not all, instances, the veterinarians at HQ declined to accept the diagnosis and required laboratory confirmation. This was not best practice and appears to have been a general policy, rather than a response to individual cases. The effect was to prolong the suffering of the affected animals, the development of disease in more animals and the generation of more virus challenge to neighbouring farms. The discussion between the TVI and HQ usually, perforce, took place within the farmer's hearing and it is arguable that the differences of opinion brought the profession into disrepute.
Slaughter on Suspicion and the three km cull
After a certain date in 2001, there was a change of policy and from demanding laboratory confirmation of all clinical cases; the veterinarians at HQ began to refuse them to uncertain cases, or to allow a period of observation. Instead they required the TVI to choose between declaring the animals FMD free, or advising slaughter "on suspicion". There is a significant difference between not being able to rule out the presence of the disease and suspecting that it is present. The option offered to the TVI did not admit of this difference and placed him in a dilemma. Because opting for the negative diagnosis carried the onerous responsibility for mis-diagnosing a positive case, with frightful consequences, a TVI usually opted for the "slaughter on suspicion." He thus did not arrive at a diagnosis by due process but made a guess. The correct diagnostic procedure (state of the art) was not implemented with the result that perfectly healthy animals committed to his care, were often slaughtered in very unsatisfactory conditions. In obliging his paymasters, he could not but fail in his duty to the animals committed to his care.
Killing all the susceptible livestock within three km of an infected place, irrespective of local circumstances, extended the notion of slaughtering on suspicion to the extent that animals were suspected of suffering FMD merely on account of their geographical location. Moreover, in these circumstances, the TVI "suspected" disease and served Form A because he was instructed to do so, not because he suspected it. This was a further departure from the state of the art diagnostic protocol, for the decision to kill took no account of local circumstances. It is arguable that the TVI signed the Form A in the absence of reasonable grounds for suspecting the presence of FMD on the farm in question. Such grounds as existed came from a computer model that took no account of the local situation.
The withholding of laboratory tests from animals that might have benefited from them was surely a breach of duty to animals committed to our care. If this were the CVO's decision, after considering the advice of academic modellers, it would seem he failed to follow the state of the art diagnostic practice. If, on the other hand, he acted upon the direction of ministers, non-clinical scientists and administrators, albeit reluctantly, he placed himself in the position of the veterinary surgeon who compromises good veterinary practice to please a client who insists on following a course prescribed by a layman. If he were completely over-ruled and required to do as he was told, it raises the question as to whether or not DEFRA veterinary surgeons are answerable for their conduct to the RCVS.
After slaughter, animals killed "on suspicion," having been refused the benefit of laboratory tests when alive, were then subjected to those very tests and the results given to the farmer. These often cast doubt on the diagnostic, or rather guessing, competence of the TVI. Nothing could be more calculated to bring the profession into disrepute, and if the CVO were responsible for this policy, arguably, he has a case to answer for.
Motive for the SOS and 3 km cull
There are grounds for believing that the changes to the diagnostic protocol were dictated by the government's electoral concerns. As early as April 26th 2001, Valerie Elliot wrote in The Times, "There will be no new FMD cases by the time of the election date of June 7th , the government's Chief Scientific Officer has predicted. David King told the Agriculture Select Committee that epidemiologists believed that the number of new cases would drop to zero in the days before June 7th." Clearly this date was significant to the modellers, presumably because they were asked about it. It had no significance from a disease control point of view. This provides the reason for suspecting that that the drastic culling was instituted to validate the model's prediction and to eradicate the disease in time for the election, even though it required debasing the diagnostic criteria and killing far more animals than was strictly necessary for disease control.
In carrying out a FMD diagnosis protocol (and 3 km cull) that was unduly influenced by, if not at the behest of, non-clinical scientists, administrators and politicians, and which fell short of the professional standard (state of the art), we arguably placed ourselves in the situation of a practitioner who co-operates with a layman and resorts to bad practice to please a client. It seems to me at least three issues arise.
1. Is the diagnosis of FMD an act of veterinary surgery and thereby restricted to members of the RCVS, or can anybody do it?
2. May a lay employer, i.e., DEFRA, legally require a veterinary surgeon to act contrary to professional standards?
3. Do those people who have had stock slaughtered "on suspicion" or in the 3km cull, without evidence of their being affected by FMD, have a case for negligence against the veterinary surgeons concerned (CVO and TVIs) in that the correct diagnostic procedures were not carried out?
I have had two legal opinions on these matters. One lawyer thought that the wording of the relevant statutes seems to permit the civil service mandarins to control animal disease without any veterinary involvement all, if they so choose. Any remaining doubts will be swept away by the Bill now before Parliament, for this measure makes no mention of a veterinary in-put and will give officials carte blanche to do whatever they wish, with any disease. This, according to another lawyer, indicates the government knows it has acted illegally and seeks to avoid being caught out in future. This lawyer feels that the eradication of FMD is a veterinary practice and that DEFRA had no authority to require its vets to debase the state of the art for politico-administrative reasons. The justification for the contiguous cull was "suspicion"; but the suspicion was that of a remote academic computer modeller and not that of the veterinary surgeon in attendance. If this view is right, aggrieved animal owners could sue the TVI and the CVO. But, in that event, it appears the CVO might be fire-proof, being an employee of DEFRA, while the TVI would not, because he is fee-earning.
I suspect the mandarins know all this and the sooner they can get vets out of animal disease control, the better for them. Once the lab tests are thought reliable, technicians will be despatched to take the samples and the vet will be redundant. Thus the DEFRA mandarins will be able to practice veterinary surgery, something which, strangely, they have long itched to do. The public should be warned of the consequences.
The profession and the public
1. Whatever the legal situation, should not the RCVS make it plain to the public that DEFRA instructed veterinary surgeons to lower their normal ethical and professional standards so far as diagnosis was concerned?
2. Should not the RCVS declare that the SOS policy and the 3km cull, never having been used in the past and being based on the theoretical assumptions of academic models, were unnecessary and unethical?
3. Does the RCVS have any jurisdiction over the conduct of members employed by DEFRA?
4. If it does, should it not, in the public interest, review all DEFRA's veterinary practices along with the documentation that staff are required to sign in their capacity as veterinary surgeons?
The answers to these questions may never be known because people who have lost stock might not find it financially worthwhile to risk a legal action, and the College might not wish to inquire into the matter. I suspect that when it comes to the crunch, DEFRA vets are immune from RCVS jurisdiction and that, in effect, we have two standards of professional conduct, one for when we work for DEFRA and another for the rest of the time.
Veterinary Times Volume 32 Number 1, 14th Jan