Carol Gray and David Favre This chapter consist of two parts. The first half is the realm of David Favre, a professor of animal law at Michigan State University College of Law. This half examines some of those circumstances when the law intervenes in the practice of veterinary medicine requiring action or limiting options that might otherwise be available to a veterinarian. This includes a legal duty to report when a client is suspected of violating anti-cruelty or duty of care laws, and when there is a duty to report misconduct by another veterinarian. This half will be focused entirely on the law/s of the United States as the author is unfamiliar with the veterinarian laws of other countries. The second half of the chapter is the realm of Dr. Carol Gray, a veterinarian with a PhD in law, who considers the complex issues of consent. These include when to obtain consent from a client before giving treatment to an animal, how to obtain it, and the problem of assessing whether the client is capable of providing consent. She provides information from a number of different countries to compare and contrast these issues. While the primary consideration of this book concerns the ethical questions facing the veterinary profession, it is important to be aware of the legal context and constraints on the profession. The worlds of law and ethics often overlap, but not always. The legal context is actually less intrusive, dealing with fewer issues than the ethical issues that veterinarians face. But when it does speak, it trumps personal or even group ethical policy. Some small points of clarification for the language used in this chapter. The “law” relates to adopted statutes or court decisions that set out rules of conduct and creates legal responsibilities (for example, a law might require the reporting of suspected animal cruelty). A “regulation” is a rule adopted by an agency under the authority of legislatively adopted law (for example, a regulation adopted by a Board of Veterinary Medicine might require the keeping of specific records for all acts of euthanasia). A “code” refers to a set of directions and constraints formally adopted by a professional organization. It is not a law, but if referenced in regulations, can be operational in investigations concerning unprofessional conduct. “Professional ethics” exist when a group of veterinarians agree upon an expectation of conduct by the members of the group. This may be in writing or may not (for example, it is acceptable to cut off a dog’s tail only if there is a medical reason for that specific animal). “Personal ethics” is when an individual veterinarian makes an ethical decision out of their own beliefs and experience independent of the law or existing codes. The legal system provides boundary lines for what any individual veterinarian may believe is or is not ethical conduct. Legal requirements will trump personal and professional ethics when there is a conflict, but hopefully, more often the law supports both. There are many fewer laws about the treatment of animals than there are ethical issues that might be faced in the practice of veterinary medicine. The property status of domestic animals is a cornerstone to considerations both of law and ethics. This ancient categorization causes conceptual difficulty. In law, it produces the question of whether there is a duty to protect animals from bad human actors or is it just dealing with bad human actors. In the world of ethics, it raises the issue of when there is an obligation to the animal that may be different than the duty to the human client. While no one suggests that ethical duties exist toward a car, that is, a mechanic has no obligation to the car that is in his shop, everyone reading this book will accept the base statement that a veterinarian has an ethical obligation to their animal patient. The law also distinguishes animals as a unique type of property by providing criminal laws specifically adopted for their protection. Indeed, this special status was first recognized over 150 years ago with the adoption of the 1867 New York Anti-Cruelty Law (Favre and Tsang 1993). Thus, the laws consider animals through two very different lenses – that of general personal property like a table and that of living beings who can feel pain and suffer. The status of just being property is particularly troublesome when the issue of damages for harm to an animal arises in civil court. The most common test for determining the amount of economic damages in the United States is the fair market value test: We have defined it [fair market value] as the amount of money which a purchaser willing, but not obliged, to buy the property would pay an owner willing, but not obligated, to sell it, taking into consideration all uses to which the property is adapted and might in reason be applied. (Donaldson vs. Greenwood) Neither veterinarians nor most companion animal owners accept this, as both understand that a substantial and real bond can exist between humans and companion animals. Additionally, this bond is beneficial to humans (Favre and Dickinson 2017) and therefore should be recognized and supported by the legal system. But after two decades of trying by owners of companion animals to convince the courts, no state supreme court has allowed compensation for the human pain and suffering or loss of companionship when a companion animal is harmed or killed (Scheele vs. Dustin [Vermont], and Strickland vs. Medlen [Texas]). The American Veterinary Medical Association (AVMA) has stated that it accepts the existence of the human–animal bond (AVMA n.d.a), but does not support awarding damages for harms to an animal beyond that of economic damages, rejecting damages for human pain and suffering or loss of companionship (AVMA n.d.b). This suggests the dominant view of this important organization is that animals are just property. This of course is in contradiction to a profession that is very willing to advise treatment for companion animals that may well be more than 10 times their economic value. In criminal law, the property status of the animal is also an issue when a person is being charged with a crime or sentenced for having committed a crime. Are animals individuals or a member of one group? For example, if someone breaks into a house and steals five computers, they are charged with one count of theft. If someone breaks into a house and kills six cats, is that one or six crimes? Hopefully, it can be agreed that it is six crimes. This is a cutting-edge issue that was given visibility when the Supreme Court of Oregon upheld the charging of 12 crimes when 12 horses were harmed by an individual (Oregon vs. Crow). The criminal sentencing guidelines that exist in many states will provide for longer prison sentences if an individual is found guilty of six counts rather than one count of a crime. In sentencing guidelines, animals are not given the status of humans, but they seem worthy of being more than just a piece of property. The sentence for bashing a bike with a bat would be no different than the sentence for bashing a cat with a bat. In fact, it might be less, for the dollar value of the bike could well be much higher than the dollar value of the cat. Animals should not be personal property at all. Professor Favre has written extensively on the need for a new property category for animals, that of “living property” (Favre 2010). By the creation of this new category, the law can refine its perception of animals and provide them greater recognition within the legal system. The creation of this new category will also support the thinking of veterinarians in establishing their ethical code of conduct toward animals, as it gives a new space for creative thinking, perhaps in the area of damages for harm to companion animals. On the more pragmatic level it must be acknowledged that veterinarians play a significant role in determining the ownership of specific animals. Proving, in a court of law, who owns an animal is actually difficult, as relates to companion animals, as ownership within a family setting is often fuzzy at best. Who paid for the animal? Was the purchase a gift to others within the family? Is it joint ownership between all the family members? Usually nothing is written down and three years later when the child heads off to college or a job in another city, it is unclear who owns the cute cat sitting on the sofa. When conflicts arise between family members or neighbors, it is often veterinary records that are sought to prove who has provided the care for the animal. As the state where the animal is living has no record of ownership, a veterinary record is often the best neutral third-party evidence of ownership. Of course, this is built upon the expectation that the veterinarian did make a determination of ownership when taking the animal into care. But a veterinarian is not a lawyer and does not hold a hearing for the presentations of proof on the issue of ownership. In the legal world, veterinary records can be evidence of who is the owner of an animal, but it is not final proof. Likewise, information from a chip inserted in an animal is just evidence of who is the owner, but is not conclusive proof. The issue of veterinary ethics is front and center when a veterinarian is sued for malpractice concerning the treatment of an animal. The law provides the place, the context, the procedure, the judge and jury, and lawyers to aid both parties to the lawsuit, but veterinarians create the substance of the dispute and testify as to the appropriate standards to use in making a judgment about the activity in question. A veterinarian is liable for civil damages under a claim of malpractice (professional negligence) only if their actions fall below the standard of care expected as a minimum within the veterinary community (Barney vs. Pinkham). The jury makes the final determination, but the information provided to the jury is by expert witnesses of veterinarians who practice within the community. This is not best care or average care, but least acceptable care (Block 2018). This legal threshold should be approximately the same level as that which by ethical analysis the action or inaction is unacceptable to the veterinary community and noted as unprofessional. It is also presumable that conduct below this level of care is of concern to any state administrative board with the power over the veterinarian license. A key point is that the law itself does not prescribe where the boundary is located between acceptable and unacceptable conduct, only the profession itself can do that. This is developed within each state and sometimes on a regional basis within a state, or by specialty within the profession. Those who hold themselves out as horse specialists will be judged as to acceptable practices by other horse specialists, not the average dog and cat practitioner, nor the lawyer in the courthouse. Now, what makes it interesting is that in a court proceeding, if the lawyers have done their jobs, there will be experts on opposing sides. This may represent a dispute within the community about where to draw the line, or just individual veterinarians who would draw the line at different places. Note that it is the jury of nonveterinarians who will decide which of the expert testimony to accept. A large number of civil cases involving veterinarians can be found at https://www.animallaw.info/cases/topic/veterinarian-issues. An individual must have a state-issued license to practice veterinary medicine. This gives the state licensing board jurisdiction to revoke a license of an individual if the standards of the profession have been violated. It is within the power of these state boards to sanction or punish the licensee up to the permanent revocation of the license. While the structure and power of the board is similar in the 50 states, the statement of legal standards that will be used by the agencies vary greatly. Also note that other countries may have different structures than what is presented here. As a lawyer, this author is rather amazed by the haphazard or nonexistent standards that the various state administrative boards use to judge the actions of veterinarians. The Michigan Board of Veterinary Medicine has no such document, not one page of rules of conduct. The legislature has no comprehensive law, and the Board has not adopted detailed regulations on the level of ethics expected of veterinarians. Other states have taken different paths. The Alabama State Board of Veterinary Medical Examiners, not the legislature, adopted regulations (Alabama State Board) with 20 items of general concern to the Board. The last specifically list grounds for disciplinary action, including: But, concerning the treatment of animals, only the following sentence is provided: All of the words in this last section are general legal terms, but no court is involved, and the terms are undefined in the regulations for the context of professional veterinarian practice. Thus, the Board has authority to consider individuals under the standard of malpractice, but there is no definition of the word, or examples, or guidelines as to what constitutes “incompetence, gross negligence, or other malpractice.” This leaves individuals vulnerable. It will be difficult to know in advance if an action or inaction, which the individual may consider ethical, is in compliance with what the Board of Veterinary Medical Examiners considers professional. The State of New Hampshire took a different approach. They relegated the issue of defining professional misconduct to an outside organization: “Conduct which violates the Principles of Veterinary Medical Ethics of the AVMA as revised April 2016 shall constitute unprofessional or dishonorable conduct pursuant to RSA 332-B:14, II(c)” (New Hampshire Board of Veterinary Medicine n.d.) (it is not clear that this delegation of the creation of legal standards to a private party is lawful). This brings us to the one national code of ethics (AVMA Principles of Veterinary Medical Ethics) as adopted by the AVMA, a private nonprofit organization that veterinarians can join. It has no authority over the licensing of veterinarians. There is no mechanism for enforcement of this code by this organization, but obviously it can be used as a set of standards, either formally as in New Hampshire or informally by other state agencies. It is the most comprehensive statement of the general ethical obligations of veterinarians in practice. It should be pointed out that only a modest amount of this code deals with the treatment and well-being of the animals in their clinics. It has been suggested that professional codes of conduct serve as pivotal instruments of self-regulation, serving three essential functions: (i) regulate members of a profession and ensure high standards of practice; (ii) protect and reassure the public; and (iii) provide a framework that will guide practitioners in their decision-making (Magalhães-Sant’Ana et al. 2015). Many veterinarians see these codes as guidelines rather than as strict regulations that must be followed. One ethical question is what to do if a veterinarian becomes aware of facts suggesting that an owner may have mistreated an animal to such a degree that may constitute a violation of the state anti-cruelty laws or the duty of care laws. To report a client runs counter to the obligations of client confidentiality. It has been observed that veterinarians often are reluctant to do such reporting (Kogan et al. 2017; Joo et al. 2020) citing lack of training in recognizing and reporting abuse, uncertainty regarding whether abuse occurred, and a desire to educate rather than report clients (see Chapter 20 for a fuller discussion of the ethical duties to report abuse and neglect) (Case Study 5.1). There is a diversity of approaches among the 50 states on these issues (for a table reporting all state laws on the topic, see: https://www.animallaw.info/topic/table-veterinary-reporting-requirement-and-immunity-laws) (Animal Rescue League 2018). Fourteen states are silent on this specific topic. Other states do not require veterinarians to report animal abuse, but rather allow veterinary professionals to take such action. This is called voluntary or permissive reporting and is seen in states such as Georgia, Maryland, and Maine. Essentially, these laws or regulations give veterinarians the authority to break patient–client confidentiality and report abuse. Some states have laws that require reporting by veterinary professionals, while other states make it a duty in their veterinary rules of professional responsibility. In other words, a veterinarian may face disciplinary action with the veterinary licensing board in a state or even license revocation if they fail to report suspected abuse. About 20 states place a mandatory duty upon state-licensed veterinarians (and sometimes vet techs) to report suspected animal cruelty to the proper authorities including California, Colorado, Illinois, Minnesota, Oklahoma, and West Virginia. Usually, this consists of reporting the abuse to local law enforcement agencies. The Arizona statute is a good example of a broad mandate: A veterinarian who reasonably suspects or believes abuse, cruelty or neglect or animal fighting shall report to law enforcement within 48-hours after treatment or examination. The report shall include the breed and description of the animal and the name and address of the owner or person who sought the examination or treatment. (Arizona Statutes) Usually, the duty to report is paired with a release from civil liability for making the report: “Veterinarian who files a report as provided in this section shall be immune from civil liability with respect to any report made in good faith” (Arizona Statutes). Otherwise, the veterinarian might be liable in an action of defamation for suggesting the client had engaged in criminal activity. This is referred to as a grant of immunity. For example, some of the key statutory language in Michigan is: A veterinarian or veterinary technician who in good faith reports to a peace officer, an animal control officer, or an officer of a private organization devoted to the humane treatment of animals an animal that the veterinarian or veterinary technician knows or reasonably believes to be abandoned, neglected, or abused is immune from civil or criminal liability for making the report. (Michigan Statutes A) This language covers both civil and criminal issues, and all the law requires is that the report is in good faith. This term in the law means that the action is based upon factual information that reasonably leads the individual to believe there is a violation of the law. Even if it is later determined that there was not a violation of the law, the act of reporting is still protected. This would not cover making statements on Facebook or other social media, and so liability could still arise. In addition to reporting requirements in state laws, administrative regulations may concern reporting of animal cruelty. For example, under Kansas’ Rules of Professional Conduct for Veterinarians, the failure by a veterinarian to report to proper authorities the cruel or inhumane treatment of animals is grounds for disciplinary action. Oklahoma has a similar provision in its Rules of Professional Conduct for Veterinarians (2021). The AVMA also encourages veterinarians to report suspected abuse (AVMA n.d.c). A significant manual created by the Kirkpatrick Foundation and Animal Folks is available and includes explanations of law and supporting materials so a veterinarian can develop protocols that can guide actions when faced with animal neglect, cruelty, or abuse (Kirkpatrick Foundation and Animal Folks 2018). Another topic where the law may intrude upon the ethical choices that an individual may make is that of what to do when a veterinarian becomes aware of unprofessional conduct by other veterinarians. What to do is a difficult personal decision, and usually the person with the information would rather not do anything, for a number of reasons. However, if the profession is to be self-policed then someone has to step forward and raise a concern with the licensing agency (see Chapter 6 for a more thorough discussion of this topic). The duty to report is stated clearly in the AVMA Code of Ethics (AVMA Principles n.d.d): In those states that have incorporated the AVMA Code by either law or regulation, then the personal ethical decision about what to do has been superseded by the legal obligation to report. The failure to report itself could be considered a failure of professionalism, or unprofessional conduct. What is unclear is just how much information or evidence must be known to a veterinarian before the threshold of legal duty is crossed. In a number of difficult circumstances, a veterinarian will have to make a decision to treat or not treat an animal or perhaps to euthanize an animal when the veterinary–client–patient relationship (VCPR) has not been formally created. Society has decided that the well-being of the animal is of first priority and by law has delegated the decision to the veterinarian facing the question even when the owner is not present to consent. Consider the state of Michigan law that provides a legal waiver against claims of professional negligence in respect to emergency treatment or euthanasia when an owner cannot be found (but not for gross negligence or willful and wanton misconduct in providing treatment to an animal) (Michigan Statute B; Case Study 5.2). The prior Michigan Statute provides the veterinarian a full defense to any lawsuit filed by the owner. The veterinarian can just focus on the issues of care for the animal before them. This case study also illustrates one set of circumstances under which it is acceptable to proceed without consent from the animal’s owner, which leads neatly into the next section where the requirement for informed consent to veterinary treatment is developed. In human medicine, consent from the patient traditionally protected the physician from a charge of battery, or unlawful physical contact with another human being. This charge is rare in modern medical practice, but a lack of informed consent is often invoked in claims of medical negligence (Furrow et al. 2018). In veterinary medicine, the animal patient cannot give consent and, as discussed earlier in this chapter, is regarded as property. Therefore, consent in veterinary medicine protects the veterinarian from a charge of trespass to goods, or interference with another person’s property, but could a lack of informed consent also underpin claims of negligence against veterinarians? Requirements for consent to be “informed” vary between jurisdictions, so it is perhaps useful to journey around these differing professional ethical guidelines to try to distill the essence of what informed consent should look like and to discern alternative roles for consent in the veterinary context. Veterinarians are required to obtain consent from an animal owner before providing treatment. The requirement may be both ethical and legal. Ethical guidance is found in the AVMA’s Principles of Veterinary Medical Ethics (AVMA Principles n.d.d), which requires veterinarians to “respect the rights of clients,” while advising that veterinarians have a “responsibility to inform the client of the expected results and costs, and the related risks of each treatment regime.” Although not specifically labeled as consent, the latter advice requires veterinarians to provide clients with the information that would underpin informed consent. Veterinary treatment requires a VCPR, which can be terminated by either party at any time, except in emergencies. The decision of whether to establish or decline a VCPR depends on the discussion of “clinical findings, diagnostic techniques, treatment, likely outcome, estimated cost and reasonable assurance of payment” (AVMA Principles n.d.d), with all but the last named also being required components of informed consent discussions. Therefore, although the AVMA’s professional ethical guidance does not refer to “informed consent” per se, the required content of the discussion between veterinarian and client to establish a VCPR aligns with consent conversations. As discussed earlier in this chapter, whether the Principles are used, and how they are used, are decisions for individual state agencies. Similarly, the Model Veterinary Practice Act (AVMA 2019) provides a template for state legislation, stating that “consent should be obtained and recorded in the medical record prior to initiating any treatment.” Of course, how individual states incorporate the AVMA recommendations varies: for example, the Pennsylvania State Board (2021) expands on consent as follows: Veterinarians shall explain the benefits and reasonably anticipated significant potential risks of treatment options to clients. When the client or client’s agent is present, veterinarians shall document, by signature, the client’s consent for euthanasia and other treatments that have significant potential risks. Thus, at least ethically, the United States appears to have adopted the doctrine of informed consent to veterinary treatment. The AVMA, however, has taken a rather hesitant approach to defining consent. In May 2007, it approved a policy on informed consent (AVMA 2007a). Shortly afterwards, in November 2007, it released a statement to the effect that it had discontinued the use of the term “informed consent” in matters relating to veterinary medicine, replacing it with “owner consent” (AVMA 2007b). The case that prompted this change in terminology, Lawrence vs. Big Creek Veterinary Hosp., included a statement by the court that the informed consent doctrine as it applied to medical care also mandated the veterinarian’s duty of care. This case seemed to panic the AVMA, as it released its statement discontinuing the use of “informed consent” very soon afterwards. References to consent, in the Model Act and in the Principles, still appear without any accompanying requirement for it to be “informed,” although there are references to the “informed client.” Furthermore, the Model Veterinary Practice Act (AVMA 2019) explains that in 2019, the term “owner” was removed from “owner consent” in recognition that it is not always the owner who gives consent for treatment. Nevertheless, throughout this section, I will assume that any requirement for consent should be “informed consent” and will therefore use this term throughout. In contrast to the United States, the Canadian Veterinary Medical Association (CVMA) adopts the term “informed owner consent.” Its Principles of Veterinary Medical Ethics stipulate the content of a consent discussion in the section on Professional Responsibilities to Clients: The decision to accept or decline treatment and related costs should be based on adequate discussion of clinical findings, diagnostic techniques, treatment, likely outcome and estimated costs. (CVMA 2016) Informed consent is included under “duties to clients” in the Federation of Veterinarians of Europe’s (FVE) European Veterinary Code of Conduct: “Veterinarians shall, as far as reasonably possible, ensure informed consent is obtained from clients before treatments or procedures are carried out” (FVE 2019). The necessity for informed consent is confirmed in the UK Royal College of Veterinary Surgeons (RCVS) Code of Professional Conduct: “Veterinary surgeons must communicate effectively with clients … and ensure informed consent is obtained before treatments or procedures are carried out” (RCVS 2021) and in the Australian Veterinary Association’s (AVA) Code of Professional Conduct, which states that the client’s prior informed consent should be obtained for any treatment “if readily available” (AVA 2020). The Veterinary Council of New Zealand’s (VCNZ) Code of Professional Conduct (VCNZ 2020) additionally requires veterinarians to check the client’s understanding, ability, and authority to give consent, advises tailoring information to the individual client, treating consent as a continuing process rather than a single event, and is probably the most comprehensive ethical guidance on what constitutes informed consent. Only UK and New Zealand ethical guidance cover in detail who, apart from veterinarians, can be responsible for receiving consent from clients: the former includes registered veterinary nurses and student veterinary nurses who have had training (RCVS 2020), while the latter includes nurses and receptionists but limits their involvement to “common procedures” where protocols and training have been made available (VCNZ 2020). Examination of a sample of international professional ethical guidance reveals the weight given to the autonomy of the client, which is unsurprising in view of the history of informed consent in human medicine. Consent to treatment has been a requirement of physicians’ treatment of patients for many years, with early legal references to consent emerging in the 1950s/1960s. Previously, it was assumed that physicians would act in the best interests of their patients: this included hiding facts from patients that may upset them or prevent them from having beneficial treatment (Beauchamp 2011). The term “informed consent” first appeared in 1957, in the case of Salgo vs. Leland Stanford, Jr. University Board of Trustees. In the judgment of this case, the court decided that it was not enough to merely gain consent, but that the physician had to ensure that there was an accompanying “full disclosure of facts necessary to an informed consent.” Subsequent cases reinforced the idea of patient-centered disclosure, for example, in Canterbury vs. Spence (at 787), the statement that “the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked,” was modified by setting the standard to the information required by the “reasonable person.” Thus, risk disclosure involved giving the patient information about “material risks” that would be required by a “reasonable person” making a decision about treatment. The legal definition of consent was influenced by the new field of bioethics, which placed emphasis on patient autonomy or the right to choose what happened to one’s own body (Faden et al. 1986). Gradually, medicine and medical treatment moved from a paternalistic (“doctor knows best”) ethic to one based on patient self-determination. Autonomy is only one of the four principles of biomedical ethics (Beauchamp and Childress 2019), the others being beneficence (acting for the “good” of the patient), nonmaleficence (not doing any harm to the patient), and justice (equal treatment of all patients): some argue, however, that the greater weighting given to autonomy is undeserved (Brazier 2006; Caplan 2014). An autonomy-based consent features in more recent medical negligence litigation, with failure to disclose risks regarded as a breach of patient autonomy. The “reasonable patient” standard for risk disclosure was taken to a “particular patient” standard in the Australian case of Rogers vs. Whitaker, and in the UK, which was relatively late to accept the “doctrine of informed consent,” in the case of Montgomery vs. Lanarkshire Health Board. Human medicine has moved to a “particular patient” standard of information disclosure, which means that the information given must be based on what that particular patient needs to know, but has a similar journey taken place in veterinary medicine? Perhaps it is obvious that we cannot simply transpose the “patient autonomy” of human medicine to “client autonomy” in veterinary medicine, as the client is not the patient. Neither can we adopt the template of “proxy” consent given by parents on behalf of their children. Children have rights and are regarded as legal subjects, while animals are still regarded as their owner’s property, as discussed earlier. Nevertheless, the owner’s autonomy, unlike the autonomy of adult patients in medicine, is constrained by legal provisions protecting animal welfare. For example, an adult human patient has the right to refuse potentially life-saving treatment, a right enshrined in the Declaration of Lisbon: “A mentally competent adult patient has the right to give or withhold consent to any diagnostic procedure or therapy” (World Medical Association [WMA] 2015). Conversely, a client’s refusal to allow necessary veterinary treatment may contravene animal welfare legislation. Many state animal protection laws regard failure to seek veterinary attention as cruelty; for example, in Maine’s Animal Welfare Statute, it is clearly stated that “(n)o person owning or responsible for confining or impounding any animal may fail to supply the animal with necessary medical attention when the animal is or has been suffering from illness, injury, disease, excessive parasitism or malformed or overgrown hoof” (Maine Revised Statutes 2019, Chapter 17, s 1036). In most jurisdictions, veterinarians are already required to prioritize the welfare of the animal patient when providing treatment (AVMA Principles n.d.d; FVE 2019). Taking this to the next level of maximizing the animal’s interests in the contextual situation requires the veterinarian to advocate for these interests (see Chapter 7 for discussion of veterinary advocacies). This could be achieved by only offering treatment that will have a positive effect on welfare: for example, not offering the “do nothing” option. Such consent could be described as one based on beneficence rather than autonomy. Alternatively, in this scenario, the veterinarian could be considered to be exercising professional or Aesculapian autonomy (Rollin 2002). Taken to its extreme, professional autonomy may involve only offering the veterinarian’s “preferred” treatment option, for example, a particular method of surgery or treatment that fits with the veterinarian’s individual expertise. However, in terms of fairness or justice, the offering of “reasonable treatment options” would appear ethically preferable to offering a single treatment. The person involved in giving consent for veterinary treatment is usually the owner of the animal. Although the use of the term “owner” is controversial, bringing with it the concept of the animal as property, it replicates the terminology used in most legislation. The animal owner may be replaced in the decision-making role by someone providing care for the animal: this individual then becomes the owner’s “agent” when considering consent to treatment. In veterinary practice, agency includes those with whom the owner has a contract for the provision of boarding or training services (for example, kennel or stable proprietors, or trainers of sporting animals) but also friends and family of the animal owner. In view of the above, I will therefore use the term “client” to describe the person providing consent to veterinary treatment. To give consent, the client must be judged to have “capacity” to make decisions based on the information provided. Capacity is legally defined as the ability to understand information relevant to a decision, to retain that information, to use or weigh that information as part of the process of making the decision, and to communicate the decision (Mental Capacity Act 2005). Clients may have capacity to make some decisions but not others. In situations where a client appears to lack capacity to make a decision and therefore to give valid consent, the advice given to veterinarians is sparse. Professional ethical guidance from the AVMA does not mention capacity: neither do AVA nor CVMA Codes of Professional Conduct. RCVS guidance advises “Where it appears a client lacks the mental capacity to consent, veterinary surgeons should try to determine whether someone is legally entitled to act on that person’s behalf, such as someone who may act under a valid lasting power of attorney or enduring power of attorney” (RCVS 2020, s 11.32). Similar advice is given by the VCNZ, which also encompasses those who may be too young to give consent: “If the owner is less than 16 years of age or has limited capacity to provide consent, veterinarians should consider whether someone else can assist in providing informed consent” (VCNZ 2020, s 2.l). In addition to ascertaining capacity, the veterinarian may also need to verify the client’s age. How old does a child have to be to give consent for the treatment of a pet? Many codes of professional conduct rely on a legal age for consent, with most deciding on 18 years of age as the cut-off below which veterinarians should seek consent from a parent or guardian. For example, the RCVS guidance includes this recommendation on the basis that a person under the age of 18 cannot enter into a financial contract (in many, though not all, jurisdictions). Therefore, if obtaining consent from someone between 16 (the lower age limit for animal ownership in the UK) and 18, the RCVS advises that the signature of a parent or guardian should be obtained to guarantee payment of financial obligations (RCVS 2020, ss 11.27–11.29). The information that should be provided to clients to ensure consent is truly “informed” varies among jurisdictions. For example, a comprehensive list composed from UK medical and veterinary guidance is outlined in Table 5.1. Table 5.1 Components of informed consent (based on Gray 2019). As these requirements may vary between jurisdictions, it is sufficient to say that if all the listed components are included, then the consent received can be considered as “informed.” When considering risk disclosure, a common concern is how many risks need to be disclosed for a particular procedure? Veterinarians may be concerned that they must mention every single risk, no matter how rare, and that disclosing too much information may scare the client and reduce the likelihood that they will pursue the procedure. The terminology used by the RCVS in its supporting guidance on communication and consent may help: its advice is to discuss “both common and serious risks” with the client (RCVS 2020, s 11.2b). Any risks that are common to the proposed treatment (for example, the risk of postoperative wound infection with most surgical procedures) or that would be regarded as serious (for example, the small but devastating risk of death with general anesthesia) should be discussed. To these should be added any risks over which the client raises concerns (for example, soundness for future sporting performance). Professional ethical guidance on consent varies between two extremes: it may require that the client is offered all “reasonable treatment options” (RCVS 2020, s 11.2) or that “(a)ttending veterinarians are responsible for choosing the treatment regimen for their patients” (AVMA 2019, s 2.3). If taking the former approach, it is wise to define the term “reasonable” when applied to treatment options. Reasonable treatment options would include evidence-based treatments available at the practice, in view of current personnel and equipment, and the offer of referral to another practice if an alternative treatment, unavailable at the current practice, would be in the animal’s best interests. The question of how far clients should be prepared to stretch themselves financially to cover the costs of veterinary treatment is controversial. Yeates and Main (2010) suggest that they should be prepared to cover the costs of “reasonably necessary” treatment. “Reasonable” suggests that there are limits to owners’ obligations to fund treatment: such a proviso is necessary as more complicated and expensive surgeries become available for animals. Veterinary healthcare, like human healthcare in many jurisdictions, is a private form of medicine and therefore requires payment. The information required for a valid contract is similar to that required for informed consent. The ability and willingness to pay for an animal’s treatment (including the purchase of insurance coverage) are solely the client’s decision, with this aspect of decision-making regarded as a form of financial autonomy that must be respected. Clients can choose costly, innovative, and complicated surgery for their pets or can refuse to fund even basic treatment. However, this is not an unrestrained autonomy. The veterinarian may refuse to carry out the treatment requested by the client (for example, in the United States, by refusing to enter into a VCPR). Additionally, some veterinarians do not offer all clients the “ideal” options for treatment (Kipperman et al. 2017), a strategy that may not fulfill the conditions of informed consent. In other words, professional autonomy may prevail over the client’s financial autonomy. For example, a veterinarian may choose not to crop a dog’s ears (in countries where this is still legal) even though a client requests this and is willing to pay for it. Furthermore, as treatment progresses, the client must be involved in ongoing discussions regarding consent and fees. The contractual aspect of consent to veterinary treatment extends to the consent form, which can act as evidence of a financial contract provided that costs are clearly listed. However, like any other contract, it can be voided if the terms are too vague. Good practice requires that the client is provided with written evidence of the discussion that has taken place between veterinarian and client about proposed treatments, risks, and benefits, usually with the client signing a consent form. However, the presence, or production, of a signed consent form does not in itself confirm the validity of any associated consent (Maclean 2009). In this sense, consent in human and veterinary medicine are similar. Nevertheless, a well-designed consent form can provide a substantial foundation for veterinarian–client discussions, although most forms seem designed to provide authorization for treatment rather than to substantiate or facilitate client comprehension. The veterinary healthcare consent process could therefore be regarded as a mixture of a consent process for treatment and a contract for payment for this treatment. The information provided and agreed by both parties must fulfil the minimum required for valid consent, but there also needs to be clear discussion and recording of costs. Many model consent forms include space for client and patient details, the proposed treatment(s), reference to generic risks of treatment and/or anesthesia, financial obligations, and, finally, the signature of the client. There is often no space for documenting any additional information, treatment options, or patient-specific risks. Indeed, a study of UK consent forms found that they lacked space to properly document the accompanying discussion (Gray 2020). Either current consent forms need to be radically redesigned, or other methods of documenting consent need to be explored. Oral consent is often obtained for veterinary treatment, or for additional treatment while a patient is hospitalized. The accompanying conversation will often cover the required components of consent. With the increase in technological capacity and familiarity with its use in the veterinary context, future consent conversations could be recorded (with client consent), the recordings attached to clinical records and stored as evidence of consent. In the following scenarios, suggested actions are based on an amalgamation of “best practice” as described in the latest guidance on consent from several jurisdictions. However, it remains advisable that any veterinarian faced with a similar situation should check local professional ethical guidance and legislation for any differences. In Case Study 5.3 the first task is to prioritize patient welfare. This may proceed with agreement from the owner, for example, through the signing of an emergency authorization form to instigate life-sustaining treatment and analgesia. Meanwhile, a member of the veterinary team could look after the owner, trying to reassure them that everything is being done for their dog. When the owner seems better able to take part in a consent discussion, the options for treatment can be discussed and a VCPR set up if the owner wishes to proceed with treatment.
5
Veterinary Ethics and the Law
Introduction to First Half
Animals as Property
Malpractice and Ethics
Administrative Actions Against Veterinarians
Legal Duty to Report Owners/Clients
Legal Duty to Report Other Veterinarians
Where the Law Supports Ethical Decisions
Ethical and Legal Requirement to Obtain Informed Consent
Professional Ethical Guidance in the United States
Comparative Professional Ethical Guidance on Consent
The Ethical Basis of Consent – Autonomy
Human Medicine and Patient Autonomy
Veterinary Medicine – Whose Autonomy?
Requirements for Valid Consent
Ownership and Agency
Capacity
Age Limits on Giving Consent
Components of Consent
Information Requirements
Diagnosis and prognosis
Right to seek a second opinion
Options for treatment
Costs involved in treatment(s)
Nature and purpose of treatment(s)
Any conflicts of interest
Potential benefits of treatment(s)
Potentially beneficial treatments available elsewhere
Risks of treatment(s)
Advice on lifestyle that may moderate the disease process
Likelihood of success
Potential follow-up treatment
Personnel involved in care, including any students
Inviting questions/checking for concerns re diagnosis, treatment and costs
Right to refuse to take part in teaching and/or research
Options for Treatment
Financial Aspects of Treatment
Documenting Consent Decisions
Limitations to Informed Consent
Emergency Situations
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