ARTURAS ZUKAUSKAS MRCVS DECISION OF THE DISCIPLINARY COMMITTEE

Transcription

1 ROYAL COLLEGE OF VETERINARY SURGEONS INQUIRY RE: ARTURAS ZUKAUSKAS MRCVS DECISION OF THE DISCIPLINARY COMMITTEE The Respondent appeared before the Disciplinary Committee to answer the following charges: That, being registered in the register of veterinary surgeons, you 1. Between 11 December 2013 and 11 December 2016, failed to comply with requirements of the Royal College of Veterinary Surgeons ( RCVS ) in relation to Continuing Professional Development ( CPD ), more particularly in that you: a. did not undertake adequate CPD; and / or b. did not provide CPD records to the RCVS when requested to do so; and / or 2. On or around 14 March 2016, made a declaration to the RCVS that you had complied with its requirements for CPD when you had not in fact done so, and the said declaration was therefore: a. dishonest; and / or b. incorrect, and you ought to have known and / or had reason to know that it was incorrect; AND that in relation to the above, whether individually or in combination, you are guilty of disgraceful conduct in a professional respect.

2 At the outset of the hearing, Counsel for the College applied to amend the charge so that it read only as follows: That, being registered in the register of veterinary surgeons, you 1. Between 3 November 2014 and 26 July 2017, failed to comply with requirements of the Royal College of Veterinary Surgeons ( RCVS ) in relation to Continuing Professional Development ( CPD ), more particularly in that you: a) Between 3 November 2014 and 10 December 2016, did not provide your CPD records to the RCVS when requested to do so by letters dated 3 November 2014, 14 September 2015, 20 November 2015 and/or 4 November 2016; and/or b) Between 11 December 2016 and 26 July 2017, following requests from the RCVS for your CPD records, did not provide your complete CPD records to the RCVS; AND that in relation to the above, whether individually or in combination, you are guilty of disgraceful conduct in a professional respect. 1. Counsel for the RCVS ( the College ) made the application relying upon Rule 14(1) of the Veterinary Surgeons and Practitioners (Disciplinary Committee) (Procedure and Evidence) Rules ( the 2004 Rules ) which provides: The disciplinary proceedings to which these Rules apply are in the nature of civil proceedings, and the Committee may allow such further evidence, amendments and submissions and give such further directions as it considers appropriate in all the circumstances. 2. She also referred to Rule 5(6) and Rule 28(2) of the Rules. She explained to the Committee that the College: a) no longer alleged that: i. the Respondent behaved dishonestly in relation to the declaration which he made in or around 14 March 2016, or that that declaration was incorrect, and therefore Charge 2 was effectively no longer being pursued; ii. the Respondent did not undertake adequate CPD, and therefore Charge 1(a) was no longer being pursued; b) has provided further particularity of the original charge 1(b) in Charge 1(a), as sought to be amended; and that

3 c) Charge 1(b), as sought to be amended, reflected an alleged failure on the part of the Respondent to provide proper CPD records to the RCVS until very shortly before the hearing. 2. Counsel for the College submitted that these amendments could be made without injustice to the Respondent as the first withdrew original charges, the second provided more particularity and in fact narrowed the dates of the original charge 1(b) and the third reflected the behaviour of the Respondent in not submitting his CPD records until the last minute despite requests. 3. Counsel for the Respondent accepted that the Committee had the power to make the amendments under Rule 14(1) of the 2004 Rules and that the power could be exercised providing there was no injustice to the parties. He informed the Committee that the Respondent had no objection to the amendments. On behalf of the Respondent, he admitted the facts of the amended charges. 4. The Legal Assessor advised the Committee that it had the power to allow the amendments under Rule 14(1) of the 2004 Rules and indicated that the discretion to exercise that power should be in accordance with Rule 5(2)(b), namely it could be exercised provided there was no injustice to the parties. 5. The Committee determined to allow the amendments. The Facts 6. The facts of the amended charges having been admitted by the Respondent by his Counsel, Counsel for the College then proceeded to open the College s case. She explained that the College relied upon the witness statements of Michael David Hepper dated 1 st June and 8 th August Mr Hepper was and is the Chief Investigator within the Professional Conduct Department of the RCVS. In his witness statements he referred to the RCVS Code of Professional Conduct for Veterinary Surgeons ( the Code ) which has been in force since 1 December The following paragraphs of the Code are relevant to these proceedings: 3.3 Veterinary surgeons must maintain and develop the knowledge and skills relevant to their professional practice and competence, and comply with RCVS requirements on the professional development phase ( PDP ) and continuing professional development ( CPD ). 5.2 Veterinary surgeons must provide the RCVS with their PDP and CPD records when requested to do so. 7. Mr Hepper then referred to a letter dated 17 June 2013 which the College s then Registrar had sent to the Respondent to remind him of his obligations in relation to CPD and to provide advice as to how to ensure compliance. That letter contained the following passage:

4 Some members are under the mistaken impression that they need to have attended 35 hours worth of external courses each year in order to comply with the CPD requirements. However, there are many ways to undertake CPD which do not necessarily involve external courses. 8. Counsel for the College referred to a number of further letters which Mr Hepper had exhibited to his first witness statement which senior persons in the College, including himself, had written to the Respondent, requesting him, amongst other matters, to submit his CPD records. These letters were dated and contained requests as follows: 3 November 2014, in which the Registrar asked the Respondent to submit his CPD records for the years 2011, 2012 and 2013 by 1 December 2014; 14 September 2015, in which Ms Jenny Soreskog-Turp, Senior Education Officer and a member of the CPD Referral Group, asked the Respondent to submit his CPD records for the years 2012, 2013 and 2014 by 13 November 2015; 20 November 2015, in which Ms Soreskog-Turp again asked the Respondent to submit his CPD records for the years 2012, 2013 and 2014 by 11 December 2015; 4 November 2016, in which Mr Hepper asked the Respondent to submit his CPD records for the years 2012, 2013 and 2014 by 25 November Mr Hepper explained that the Respondent failed to provide his CPD records as requested by the College. In the first three of the above letters sent to the Respondent, he was given a warning that persistent failure to comply with CPD requirements, including failure to respond to requests for access to CPD records may render a veterinary surgeon liable to be reported to the Preliminary Investigation Committee ( PIC ). In the last letter dated 4 November 2016, which was sent and received by recorded delivery, the Respondent was advised that the CPD Referral Group had referred him to the Professional Conduct Department for investigation. 10. On 14 March 2016 the Respondent, as part of the annual renewal process had confirmed that he complied with the College s requirements for CPD, but he did not submit his CPD records. On 11 December 2016 he sent an to Ms Soreskog- Turp informing her that since 2012 he had not done enough CPD courses and that he would address the situation. This was the first response which the Respondent made to the several CPD requests made by the College. Ms Soreskog-Turp replied by asking the Respondent to send her a record of his CPD activities and a plan as to how he would make up the hours so that he would be compliant. He was asked to respond by 17 February He did not make contact with the College by that date. 11. On 5 April 2017 Mr Hepper wrote to the Respondent informing him that on 10 May 2017 matters relating to his CPD would be considered by the PIC. This letter was sent by recorded delivery. In response on 1 May 2017 the Respondent sent an to Mr

5 Hepper, informing him that Currently, I carried out for 49 hours at this time, and advising him that he would take all necessary CPD for 2015, 2016 and He attached various certificates in relation to CPD undertaken, the vast majority of which had been in Counsel for the College went on to explain that the full picture was not provided until the Respondent served his witness statement in these proceedings on 28 July That statement exhibited his CPD records and listed numerous hours of CPD having been undertaken contemporaneously in 2013, 2014, 2015 and 2016 which had not been notified previously to the College. 13. Counsel for the College acknowledged that the Respondent had registered with the College s online CPD system on 21 March 2012 but stated that he had made no entries on it before 7 February The Respondent gave evidence based on his witness statement dated 27 July In that witness statement he acknowledged that he did not fully understand the requirements of CPD. He accepted he had received letters from the RCVS in June 2013 and November 2014 but believed they were circular letters and just filed them. He stated that there had been a period of time in 2013 / 2014 when he was not living at home, although he was living in the local area. He considered that this may explain why he did not give the letters appropriate attention. He stated that it was not until September 2015 that he started paying more attention to the CPD requirements. He acknowledged that he had communications with Ms Soreskog-Turp in 2016 in which his CPD record was discussed. He contended that he always had the belief that he would complete the necessary CPD hours within a three year period and would therefore fulfil CPD requirements. In June / July 2017 he advised Synergy Farm Health Limited ( Synergy ), his employers, of the Notice of Inquiry in this matter which he had received from the RCVS. Synergy assisted him in putting together a full list of CPD hours which he set out in his witness statement. He apologised to the RCVS for the problems I have caused regarding my CPD training 15. In his oral evidence the Respondent stated that he had been a veterinary surgeon since 1986 qualifying in Lithuania. He had worked with cattle. He is now a TB tester having done the appropriate training. He arrived in the UK in 2006 and was admitted to the Royal College Practising Register in May He worked for three and a half years as a meat inspector in slaughterhouses. He then went to the Cedar Veterinary Practice in Ringwood in Hampshire, working with cattle, before starting with Synergy in March 2010 where he has been doing TB testing. Currently more than 95% of his work is in TB testing. He has been very busy working full time and in fact in every four weeks, he worked three six day weeks. 16. The Respondent stated that CPD is very important for him and for his professional development. He stated that if he does CPD, I know a little bit more, I grow, slowly, but I grow in my professionalism. He stated that he misunderstood how he could achieve the requisite hours, believing that he had to do external courses. In 2017 he

6 discovered that he had in fact achieved plenty of counted CPD hours, although he did not recognise this before. 17. The Respondent acknowledged that he did not respond properly to an from Ms Soreskog-Turp dated 30 November 2016 asking for another copy of his CPD records. In his reply dated 11 December 2016, he was stating that he understood he was short of CPD hours and that he would need to do CPD hours to catch up. He said that he believed Ms Soreskog-Turp had tried to contact him two times in 2016, but he had not managed to speak to her. As his English was not good, he had a not very good understanding of the message she had left. He only realised in June 2017 that other activities he had carried out counted towards CPD. He had not read the letter dated 17 June 2013 properly. He has now received assistance from the manager of Synergy and Nick Perkins of the Veterinary Defence Society. He acknowledged he had not read the earlier correspondence correctly. He had not understood everything and apologised for that repeatedly. In future he would read his correspondence and look for assistance from Synergy, including from the Director. The Respondent explained that when he saw the recorded delivery letter from Mr Hepper, he tried to ring him without success. 18. The Respondent stated that he had tried to grant access to the College to view his CPD record on 7 February 2017 and again repeatedly on 12 February He may not have been successful. He referred to the extensive webinars he had undertaken from 7 th February 2017 which, together with a number of earlier ones, were now posted on his page of the web site. He had done more but been told by Nick Perkins that it was not necessary to post any more. He offered big apology and assured 100% that this will not happen again. He reaffirmed how important CPD was to him and how important recording of his CPD was to the College. 19. In cross examination the Respondent acknowledged that there was a CPD regime in Lithuania and that he was familiar with it, although it was flexible. He had now been working in the UK for 11 years. He accepted that by November 2014 he had been a veterinary surgeon for 26 years, 8 of which had been in the UK. He said he was well aware of the responsibilities of being a veterinary surgeon and now knew the importance of CPD. He stated that he understood the importance to the College of being able to monitor a veterinary surgeon s CPD to enable it to discharge its duties as regulator. He accepted that he should have read the correspondence in June 2013 and November He did not accept that he ignored this correspondence but acknowledged he did not read it properly and did not think it was important. He understood that he could not decide if it was not important if he got no help. He accepted he did have advice from four Lithuanian Veterinary Surgeons later, but explained that they did not push him. He had generally felt ashamed to ask for help. He accepted he could have talked to the College. He accepted he did not read the letter dated 20 November 2015, although he had a responsibility to read it. He said that he now understood the position about doing CPD set out in the letter dated 17 June He had not understood that before. He accepted that in the letters dated 3 November 2014, 14 September 2015 and 20 November 2015 he was repeatedly

7 informed that if he was unable to meet CPD requirements, he should submit his CPD records. He understood that his behaviour had caused a great deal of time loss to the College and inconvenience and that he had prevented the College from discharging its regulatory function. He stated he was sorry about that. He did not accept that he had shown disrespect 100%. 20. Counsel for the Respondent submitted that the Committee should recognise that the Respondent was less familiar with process in the UK and that there was a language barrier. In particular he had not understood the information contained in the letter dated 7 June 2013 concerning completion of CPD courses. The Committee could take into account the job that the Respondent was undertaking as a TB tester, undertaking CPD courses was difficult to achieve when doing this work. He submitted that in reality there was no evidence of disrespect for the College or blatant disregard of his obligations. He had corresponded with Ms Soreskog-Turp in 2016, he had responded reasonably promptly to her dated 30 November 2016 by an dated 11 December 2016 indicating a plan to complete his CPD. He had responded to her dated 30 January He had sought to grant the RCVS access to his CPD record on 7 February 2017 and 12 February He had undertaken numerous webinars. He had responded to the letter from Mr Hepper dated 5 April 2017 by sending the dated 1 May 2017 indicating what he had done and what he planned to do and that he had undertaken 45 hours of CPD activity in the first 4 months of He had therefore not shown complete disregard. Moreover not all this activity was in response to the involvement of Synergy. He submitted that there were no aggravating features in the case. He submitted that the Committee should take into account the Respondent s language problems. 21. The Committee accepted the Respondent s admissions to the charges and found the facts proved. Determination on Disgraceful Conduct in a Professional Respect 22. The Committee accepted that the test for this was as set out by the Legal Assessor, namely whether the conduct falls far short of that which is expected of a member of the veterinary profession. It was entitled to take into account the aggravating and mitigating factors in the case provided they did not amount to personal mitigation. The question of whether conduct amounts to disgraceful conduct in a professional respect is a matter of judgement for the Committee, not a matter which is to be decided on a burden or standard of proof. 23. The Committee finds that the Respondent had a duty to respond to the letters sent to him as set out in charge 1 under the Code. The last of those letters was sent by Recorded Delivery. He did not respond to any of them in due time and when he finally responded to the last dated 4 November 2016, he did not deal with the College s request for his CPD records. His explanation for these failures is that they were occasioned by lack of understanding of his obligations, his lack of understanding of English and his failure to obtain appropriate advice. His position is that latterly he did make some responses although they did not meet the requests of the College. He

8 had been a veterinary surgeon working in the UK since Since February 2016 the Code has provided that: Veterinary Surgeons must communicate effectively, including in written and spoken English, with the veterinary team and other veterinary professionals in the UK. From that date, if not earlier, the Respondent should have been concerned to understand English sufficiently well to address the correspondence from the College. Whilst the Committee did not consider that his conduct in this respect amounted to disrespect, it did consider that he had shown a disregard of his obligations. At all times he could and should have made appropriate efforts to respond to the correspondence from the College and obtain appropriate advice. In effect he put off dealing with these matters and put his head in the sand. To fail to fulfil his obligations over a period of some 2 years as set out in charge 1 falls, in the Committee s view, far short of that which is expected of a member of the veterinary profession and therefore amounts to disgraceful conduct in a professional respect. 24. In respect of charge 2, notwithstanding the recorded delivery letters sent to the Respondent on 4 November 2016 and 5 April 2017, he did not finally disclose his complete CPD records until service of his witness statement dated 27 July 2017 on 28 July This caused the College a considerable amount of concern and extra work. Had he done so much earlier, much of this matter would have been avoided. The Respondent was once again in breach of his obligations. In the Committee s view, the conduct of the Respondent in this regard falls far short of that which is expected of a member of the veterinary profession and therefore amounts to disgraceful conduct in a professional respect. Decision on Sanction 25. The Committee read witness statements of Ms Joanne Masters RVN, the Practice Manager of Synergy dated 28 July 2017, Mr Andrew Davies, Managing Director of Synergy dated 28 July 2017 and Mr James Read, a dairy farmer dated 29 July 2017 tendered on behalf of the Respondent and heard their oral evidence. All of them spoke very highly of the Respondent in relation to his professionalism and reliability as a TB tester, and his efficiency in that regard not only in relation to his ability to carry out TB testing but in terms of paperwork. In addition it read a number of testimonials from colleagues in Synergy and from his clients. When making submissions in relation to these Mr Kennedy drew attention in particular to the testimonials which asserted that the Respondent was a credit to his profession. 26. Counsel for the College provided the Committee with a previous decision of the Disciplinary Committee dated 15 December 2016 relating to a Veterinary Nurse ( VN ) who had on numerous occasions failed to respond to the legitimate requests from the College for confirmatory information pertaining to her compliance with her CPD

9 obligations. She was found guilty of disgraceful conduct in a professional respect. The Committee on that occasion imposed a period of 2 months suspension. 27. Counsel for the Respondent addressed the Committee on sanction. He referred to the purpose for which sanctions are imposed, namely the protection of the public interest. That is set out in paragraph 8 of the Guidance as follows: It is in the public interest that veterinary surgeons protect and promote the health and welfare of animals and conduct themselves in a professional manner. The protection of the public health is clearly in the public interest. The protection of the profession s reputation and upholding and maintaining standards within the profession are also in the public interest. He contended that the only element to be considered in this regard in the context of the charges found proved was the profession s reputation and upholding and maintaining standards within the profession. 28. Mr Kennedy referred to the principle of proportionality. In respect of the letter testimonials from farmers he made the following points: they had worked with the Respondent for a number of years and asked for him personally when requiring TB testing; they refer to his quiet, relaxed and competent way of handling TB testing, his effective handling of animals, his ability to deal with the stressful situations which farmers were in and his wider clinical abilities. He referred to Ms Masters evidence. The audit regime which Synergy had run in relation to CPD so far as its employed veterinary surgeons were concerned had not historically applied to contracted veterinary surgeons. She admitted that such veterinary surgeons could have slipped through the net. Mr Kennedy relied upon the Committee not having found the Respondent to have been disrespectful in its determination on disgraceful conduct, nor to have shown blatant disregard for his obligations. He asserted that that may have stemmed from the Respondent s attempts to assist the College since December He relied on the observation made by the Committee that, had the Respondent taken more effective action since December 2016, much of the complaint against him could have been resolved. 29. Counsel for the Respondent accepted that there was at least one aggravating factor, namely that the misconduct had been sustained over a period of time but he argued that that this had significantly abated since December He stated that the conduct of the Respondent had fallen short of being blatant and had not shown wilful disregard. So far as mitigating factors are concerned, he relied on the Respondent s long and unblemished career, his open and frank admissions from December 2016, his subsequent efforts to avoid a repetition of his behaviour and his demonstration of considerable insight. In that regard he cited that the Respondent had recognised his past mistakes and resolved not to repeat them, recognising his professional obligations and now employed a system of working to ensure that there would be no repetition.

10 30. Counsel for the Respondent also referred to the language problems experienced by the Respondent, recognising that they were not a point of mitigation, but represented an explanation as to why these matters had occurred. He reminded the Committee of the apologies which the Respondent had offered. 31. So far as public confidence in the profession is concerned, he argued that the public might well feel protected by the College taking the breaches of the Respondent s obligations to respond to their legitimate requests for information so seriously as to institute proceedings against him. As to the previous decision of the VN, he referred to the differences between that case and this one. These included the period of time that the VN had failed to respond to requests from the College being 4 years and that the number of requests were significantly larger, involving 11 letters, 2 s and 3 telephone calls. The VN had only responded at the very last minute and had never demonstrated that she had in fact complied with her CPD obligations. She offered no excuse or mitigation for her conduct. Counsel for the Respondent also offered some personal mitigation. This was a first offence by the Respondent. He is the sole breadwinner for the family. Further, it would cause the farmers and Synergy difficulty if he were not able to continue TB testing. He contended that the appropriate sanction was a reprimand. 32. The Committee received advice from the Legal Assessor that it should apply the principle of proportionality as set out in the Guidance and recognise that the purpose of sanction was to protect the public interest. He reminded the Committee that it should consider aggravating and mitigating factors including personal mitigating factors when considering sanction. 33. The Committee considered that the following aggravating factors were present in the case. The misconduct was sustained over a period of time. There was a disregard for the obligations which the Respondent had towards the College. That disregard was unacceptable. A veterinary surgeon should never ignore his regulator. The Respondent had done so over a long period of time. 34. The Committee accepted all the mitigating factors advanced on behalf of the Respondent. So far as the admissions were concerned it noted that from December 2016, the Respondent s position towards the College was much more open and positive. When the charges were presented to him he immediately admitted them. So far as the Respondent understanding of English was concerned, the Committee noted the way Counsel for the Respondent presented his argument. It did not accept that the Respondent s inability to communicate in English could ever be a mitigating factor in itself. The Committee remind the Respondent of his obligation under paragraph 2.4 of the Code as follows: Veterinary Surgeons must communicate effectively, including in written and spoken English, with the veterinary team and other veterinary professionals in the UK.

11 35. The Committee accepted that the public interest dimension in this case did not concern the welfare of animals, nor public health. This case was about the protection of the profession s reputation and upholding and maintaining standards within the profession. It accepted the distinctions which Counsel for the Respondent urged in relation the previous case of the VN, in particular the fact that she did not offer any explanation for her misconduct and there was no evidence that she had carried out her CPD. The Committee regarded the testimonial evidence advanced by the Respondent as very impressive, in particular the oral evidence of the 3 witnesses. It noted the personal mitigation particularly concerning the Respondent s family and that he had never transgressed before. 36. The Committee then turned to sanction. It considered that the case was too serious to take no further action. The Respondent has been found guilty of disgraceful conduct in a professional respect. To take no action would not send out the right message to the profession and the public. As to postponing judgement, such a measure would serve no purpose as the Respondent has undertaken appropriate CPD and is up to date in that respect. 37. The Committee has determined to impose a reprimand. In doing so it acknowledged that the Respondent has shown considerable insight into his behaviour. He has acknowledged that he has needed help in communicating with the College. It noted that he is a good and proficient veterinary surgeon in the work which he undertakes. He expressed remorse for his behaviour. He has carried out sufficient CPD and since December 2016 has been communicating with the College. The Committee considers it unlikely that he will transgress again. 38. The Committee has decided that it is appropriate in this case to add a warning to the decision to impose a reprimand. It is mindful of the fact that other veterinary surgeons registered with the College have a duty to discharge their CPD obligations and they honour those obligations. Moreover the conduct of the Respondent has involved a considerable amount of work and expense for the College. It might have been minded to impose a more serious sanction had the Respondent s case not had the distinguishing features from that of the VN. 39. The warning as to future conduct is as follows: In future you must respond in a timely and appropriate manner to any communications which you receive relating to your position as a Member of the Royal College of Veterinary Surgeons. DISCIPLINARY COMMITTEE 10 AUGUST 2017