Recognition of animal sentience on the rise

Shifting legal sands raise questions about veterinary malpractice claims, insurance costs

Published: May 14, 2020
By Ross Kelly

Illustration by Tamara Rees
Reference photo source: AdobeStock/photology1971

To the locals, Australia's capital city of Canberra is known as the "bush capital."

Home to around 400,000 people, Canberra is sleepier than the coastal metropolises of Sydney and Melbourne. And it harbors an abundance of native animal life.

It's not completely out of the ordinary, for instance, to see kangaroos hopping about in Canberra's suburban parks. The city also is home to hundreds of bird species, including the emu, and flanked by mountain ranges and nature reserves.

Some local politicians will tell you that it's perhaps no surprise, then, that the small jurisdiction that encompasses Canberra, called the Australian Capital Territory, has adopted to some of the strictest animal welfare laws in the world.

Last October, the left-leaning government there started enforcing legislation that recognizes animals as "sentient beings that are able to subjectively feel and perceive the world around them" and possess "intrinsic value."

Nowadays, if you're a pet owner in Canberra, you could be fined up to AU$4000 (US$2,571) for failing to walk your dog. The fine is issuable, the legislation states, if an animal is "confined so that it cannot exercise for a continuous period of 24 hours."

Harsher penalties, of up to AU$16,000 (US$10,285), apply if individuals "in charge of an animal" don't provide "appropriate treatment for illness, disease or injury,” including veterinary treatment.

The rules were inspired by the territory's Animal Welfare and Management Strategy, released in 2017. "Canberrans love animals," then city services minister Meegan Fitzharris says in the introduction to the paper. "This love and appreciation of animals means our community is very concerned — and has a high level of awareness — about animal welfare." ­

Cute kangaroos and towering emus notwithstanding, Canberrans aren't the only people paying greater heed to animal sentience, which, loosely defined, denotes a recognition that animals are conscious beings capable of feeling pleasure, pain and emotions, such as distress and joy.

In late February, Scotland appointed members to a new independent Animal Welfare Commission, claimed to be the first body of its kind in the United Kingdom. Among the Scottish commission's remit: to consider "possible legislative and non-legislative routes to further protect the welfare of sentient animals."

The U.K.'s ruling conservative government, meanwhile, recently pledged to enshrine the concept of animal sentience into national law, bringing it in line with European Union directives that have been in place for decades. France, New Zealand and the Canadian province of Quebec all explicitly recognized animal sentience in their laws in 2015. Sweden and the Belgian capital of Brussels both joined the club in 2018.

In the U.S., Oregon appears to be the only state so far to specifically cite animal sentience in its laws, in 2013. However, politicians from U.S. states including New York, Massachusetts and Nevada are currently advocating through proposed legislation a greater recognition of animals' intrinsic worth when they are harmed.

The political landscape is shifting as scientists more forthrightly proclaim that animals are conscious beings, and as households spend more enthusiastically on pets cherished as family members.

For the veterinary profession, the shift presents a two-edged sword. Some new rules are encouraging more veterinary oversight, but they also stoke long-held concerns about the financial consequences of valuing pets on a par with people.

Animals in developed economies traditionally have been described in statutes as "chattel," meaning movable property — like a car or a toaster. That means little regard typically is paid to an animal's intrinsic worth, or the emotional bond with its owners, when it is wrongfully killed. Damages claims are instead determined by the replacement cost of the animal, which might not be very much; perhaps even zero if it happens to a mangy old mongrel.

Should non-economic considerations such as emotional bonds become recognized in court, the fear is that veterinarians could be exposed to life-changing damage awards in malpractice cases. Indemnity insurance premiums for all practitioners might rise as a result, pushing up the cost of veterinary care for animal owners.

Love of pets tests the legal orthodoxy

Recognizing animal welfare:                   An evolution

So far, it appears that non-economic damages have not been paid out in veterinary malpractice cases anywhere, even in jurisdictions that have introduced tougher animal welfare rules.

The Australian Capital Territory, more than six months after the introduction of its strict new law, has yet to issue a single fine, Gerry Murray, senior director of communications at its transport and city services department, told the VIN News Service. "All cases of reported animal welfare concerns are thoroughly investigated," Murray said. "A warning can be issued where appropriate, including cases where someone has not fully understood their responsibilities or if it is their first offense."

The Australian Veterinary Association (AVA), the industry's chief lobby group Down Under, said it welcomed the territory's legislation, not least because it requires owners of sick animals to seek veterinary treatment. The legislation does not specify whether a veterinarian could be considered as a "person in charge of an animal," and therefore finable for not providing appropriate treatment.

"Vets already exercise this duty when they are caring for an animal, so we do not believe the legislation would make vets more vulnerable to punishment or malpractice claims," AVA spokeswoman Natalie Howard said. The government's Murray said veterinarians in the territory are regulated by the Veterinary Practice Act 2018, while animal welfare laws "apply to everyone."

Practitioners contacted by VIN News generally expressed support for the increasing legal recognition around the world of animal sentience. At the same time, they wondered how tougher animal welfare rules would be enforced. And they resisted the idea that non-economic damages should be paid in malpractice cases — and not just because of the financial implications for the veterinary profession.

Dr. Chiara Switzer, a relief veterinarian in Toronto, Canada, posted about the topic a few years ago on message boards of the Veterinary Information Network, an online community for the profession and parent of VIN News. In a recent interview, Switzer said courts would struggle to prove the intensity of emotional bonds that exist between owners and their pets, in any case. "It's a hard thing to examine and an easy thing to fake, since the courts can only really get testimony from one side," she said.

Switzer believes that even plants are sentient beings. But in her view, that doesn't necessarily mean all living things have equal value. "Being sentient does not imply or confer an equivalency with other sentient beings, it's just a characteristic we all share," she said. "Therefore, the 'intrinsic worth' of a poodle is not equivalent to that of a person, a Holstein steer, a green iguana, or a mustard plant."

Dr. Tanya Stephens, from the Haberfield Veterinary Clinic in Sydney, Australia, supports the Australian Capital Territory's introduction of large fines. Stephens is president of Australian Veterinarians for Animal Welfare and Ethics, a special interest group of the Australian Veterinary Association. Stephens is concerned the penalties won't be effectively enforced, partly because enforcement responsibilities often rest with underfunded charities, such as the Royal Society for the Prevention of Cruelty to Animals.

"We really should have a specialist police unit within the police force to do the enforcing," said Stephens. "Big fines are fine, but let's have transparent, enforceable fines."

At the same time, Stephens questions whether veterinarians should be made liable for big financial penalties in malpractice suits for making genuine mistakes. "If you look at complaints against vets, most of their behavior is not malicious," she said. "A lot of things that go wrong in vet practices go wrong because veterinary medicine is not an exact science."

She added: "In the less common instances where you have a veterinarian who is intentionally cruel to an animal, they could be charged under animal welfare legislation and also deregistered by their professional body. So there are remedies there already."

Associations representing veterinarians, too, generally oppose the award of non-economic damages in veterinary malpractice cases. The American Veterinary Medical Association, for instance, regularly intervenes in U.S. court cases to warn judges about the potential harm to the profession from runaway legal and insurance bills.

Raj Reddy, director of the animal law masters program at Lewis & Clark Law School in Portland, Oregon, sees no need for veterinarians to be fearful the damages situation will change, at least not in the near future.

Still, Reddy observes that courts increasingly struggle to determine what level of damages are appropriate in cases involving veterinary malpractice.

"If we increasingly recognize that animals can suffer harm, that might be calculated in potential damages cases," he said. "Here in the U.S., I see that as being so far down the road that it's not something that a lot of policymakers would consider in and of the moment. But it is something courts could eventually seize upon to make determinations that this animal suffered in this particular way under this particular veterinarian's care, and that practitioner should be held liable, just as if the patient were a human patient."

Already, judges have awarded non-economic damages when animals are harmed, such as when law enforcement officials shoot pets in people's homes, or a pet is recklessly run over by a car. To be sure, when lower-court rulings awarding non-economic damages have been appealed to higher courts, they often have been reversed.

When a stuffed animal is worth more than a live one

A big test came in 2013 in Medlen v. Strickland. A Texas appeals court had ruled that the owner of a dog, Avery, accidentally euthanized at a shelter, was entitled to loss-of-companionship damages that recognized Avery's intrinsic or sentimental value. However, the state's Supreme Court overturned that ruling, referencing a landmark 129-year-old ruling, Heiligmann v. Rose, which firmly established in Texas law the concept that animals are property.

"The majority rule throughout most of America — including Texas since 1891 — leavens warm-heartedness with sober-mindedness, applying a rational rule rather than an emotional one," Texas Supreme Court Justice Don R. Willett said.

Even so, Christopher Berry, senior staff attorney at the California-based advocacy group Animal Legal Defense Fund, points to recent rulings that show a greater regard for sentience. And he expects U.S. courts to more frequently award non-economic damages when animals are harmed, whether through abuse, neglect or even veterinary malpractice.

"We live in a society now where people understand that companion animals are part of the family," he said.

Berry noted that courts today consider more factors than replacement costs when determining an animal's worth. These, he said, may include the cost of veterinary care. An example of such a ruling is the 2016 case of Barking Hound Village v. Monyak, when the owners of dog given a toxic dose of medication at a kennel successfully claimed treatment expenses.

Forcing payment for corrective medical procedures indicates that courts are beginning to reject the idea that animals are merely property, according to Anne Greenaway, principal of New South Wales-based law firm Lawyers for Companion Animals.

Greenaway recalled a recent case in Australia that involved one dog mauling and badly injuring another dog. The lawyer defending the attacking dog's owner insisted his client shouldn't have to pay the thousands of dollars needed to heal the victim. He argued that if someone's car was destroyed in a crash, they wouldn't pay more to get it repaired than the cost of a new car. So, he said, why should the injured dog's owners be paid more than its market value?

Greenaway said the case was settled out of court, with the owners of the injured dog getting almost all of the money they asked for. "If a judge was going to rule against [the defense lawyer's] argument, the judge would have to say that a dog and a car are not the same," she said.

The Animal Defense Fund's Berry also points out a startling discrepancy raised in Medlen v. Strickland — one involving the idea of a dead, stuffed dog.

During that case, it was argued that property itself can have sentimental value, a concept sometimes referred to as "sentient property." The court recognized that there were indeed legal precedents in which an inanimate item of property was ruled to have sentimental value beyond its market worth, such as a family heirloom like a brooch. So, the Medlens asserted, they could hypothetically seek sentimental damages if a stuffed-and-mounted Avery had been negligently destroyed. So why couldn't they recover sentimental damages for a live Avery who had been wrongfully euthanized?

The court, while acknowledging this seemingly absurd inconsistency, was nevertheless unbent, alluding to the need to consider "something akin to a cost-benefit analysis to assure that this expansion of liability is justified."

Berry pushes back on that argument. Veterinarians, he notes, long have been profiting from the emotional bond that exists between animals and humans. "You can't have your cake and eat it, too," he said.

Other experts believe that assigning big damages payouts based purely on emotional connections would mean disrupting well-founded principles of the law.

Dr. Charlotte Lacroix, a lawyer who also has practiced as a veterinarian, notes that in the U.S., even in situations in which humans are harmed, loss of companionship damages in malpractice cases (known technically as loss of consortium) are available only to spouses. Those damages are unavailable to other family members, such as children.

"I don't think we're quickly going to see a situation where somebody will have greater rights for the loss of an animal than for a human being," she said. "There would have to be an interesting carve-out from current laws that apply to humans."

Limiting loss of consortium damages in human cases to spouses makes it simple to assess who gets paid. Figuring that out for pets, would be more challenging. "Animals have so many people that love them," Lacroix said. "Does everybody get to collect?"

Lacroix, the founder and chief executive of law firm Veterinary Business Advisors, acknowledges that some courts have recognized an emotional connection to animals in damages claims, such as when police shoot the family dog. But she stresses such cases often involve distinct instances of reckless disregard causing emotional distress. "So it's a question of whether we're talking about simple negligence, reckless disregard or an intent to harm," Lacroix said. "And the appellant will also have to establish emotional distress, which can be difficult. Probably close to 20 states allow for those kind of damages now."

Veterinarians, lawmakers eye middle ground

Despite the legal complexities, changes are being pushed in some U.S. states that would direct courts to consider damages that value an animal's worth, either intrinsically or in regard to the companionship, comfort and protection it provides to its owner.

At least four separate bills to that end were lodged in 2019, by lawmakers in New York, New Jersey, Massachusetts and Nevada. None has yet passed out of committee. In Massachusetts, for example, non-economic damages would be capped at $25,000.

Mark Cushing, a lawyer and founding partner of the Animal Policy Group consultancy in Arizona, doubts such legislation will ever make it over the finish line.

Cushing said lawmakers in other states regularly have tried, in vain, to do something similar. The financial sticking point isn't limited to the potential for higher malpractice damages and insurance costs. Veterinarians, he said, also would feel inclined to spend more on medical technology to hedge against things going wrong in the first place.

"The trade-off is the 12-year-old who loves the shih tzu more than anything, versus the entire system becoming significantly more expensive and the inevitable winnowing of access to care," he said.

Lacroix, by the same token, posits that toughening the rules for veterinarians would toughen the rules for pet owners, too. "If you start giving animals a greater standing, that means people are going to be required to care a lot more for their animals," she said. "They're not going to be able to do elective euthanasia. They're going to be regulated, which will put a lot of people in the poorhouse. So you can't just have it one way."

Dr. David Carser, president of the Chicago-based not-for-profit Veterinary Defence Association America, agrees. Most people would accept that animals are sentient, he said, but the problem occurs when trying to determine where to draw the line in terms of animal rights.

"It complicates the issue greatly, when humans at one extreme regard pets as almost human, but on the other hand, still kill and eat other animals," Carser said. "A mixed animal practitioner has to maintain two completely opposed value systems when treating animals: pets as humans versus production animals as merely economic units."

A shining example of that conflict can be demonstrated in none other than the Australian Capital Territory. Despite recently enacting its tough animal welfare rules, the territory is still holding its annual kangaroo cull, an event that sees scores of the animals shot to prevent overgrazing. Kangaroos feed on grasses that sustain other wildlife and livestock. More than 4,000 kangaroos were slaughtered in last year's cull.

"It's horrific," the Australian animal lawyer Greenaway said. "It's not only the ones that they kill but the ones that they terrify. Kangaroos are a very sensitive creature and can develop myopathy, a disease that causes muscle deterioration, when they're stressed."

To be sure, Greenaway believes the territory's government is ahead of the pack when it comes to considering animal rights, at least for companion animals. The kangaroo cull, she said, "is completely inconsistent with their recognition of animal sentience."

How easily politicians and judges can find middle ground on such complex issues in a practical sense is an ongoing challenge. The potential for damages caps to be set in U.S. states such as Massachusetts indicates that lawmakers are trying to satisfy all sides. The proposed bill in New Jersey not only caps payouts at $5,000 but states that professional negligence cases involving licensed veterinarians would be exempted from non-economic damages claims.

And courts aren't always necessary to compensate aggrieved pet owners. Jennie Jones is head of Britain's Veterinary Client Mediation Service, which attempts to provide a bridge between veterinarians and animal owners in malpractice disputes, to keep them out of court. She says financial settlements are reached in about 40% of the cases involving the service, with payouts averaging £200-to-£300 (US$226-to-$339) over the past year. Jones, too, reckons Britain's courts would be wary of challenging the status quo in malpractice cases, given the wider impact on the veterinary community, especially with regard to fees and insurance costs.

"They'd be very mindful of making a decision that would be seen to say, open the floodgates and move that whole area of law into a very different space," she said. "This area is very difficult for veterinary professionals. They are passionate about animals and they understand the connection between animals and humans. The legal process, even if the law recognized the impact on animals as a sentient being, would rarely address the real emotions involved."

In a "quick poll" survey of VIN members on animals as property, conducted in August 2016, respondents gravitated toward a middle-ground solution. The majority of 2,159 respondents, at 52.7%, indicated that animals "should be given their own classification with more rights and protections than a chair, but less than people, or what some have proposed to call, 'sentient property.' " The next most popular response, at 24%, was that animals should remain classified as property.

For his part, Carser from the Veterinary Defence Association suspects that shifts in the law will have their limits, no matter where in the world.

"The recognition of animal sentience in states and countries seems to ebb and flow," he said. "It increases until the proposers realize how complicated and difficult such laws would be to apply in practice, then it dies back again."

But Berry at the Animal Legal Defense Fund sees momentum flowing harder in one direction. "The pressure is there for change," he said. "We're just waiting for the lid to blow off the kettle."

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