Not microchipping is not an offence

Despite the new regulations requiring all dogs are microchipped, an owner’s failure to do so does not constitute an offence. Vets should have a clear understanding of the regulations to be able to give informed advice to their clients.

On February 24, 2015 The Microchipping of Dogs (England) Regulations 2015 came into force. Regulation 3 stipulates that, from April 6, 2016 all dogs older than eight weeks of age, which are not certified working dogs or subject of a veterinary health exemption, must be microchipped. The regulation defines microchipped as, not only being implanted with a microchip that complies with ISO standards 11784:1996 and 11785:1996, but also that the details of the keeper and the dog are recorded on an approved database.

Regulation 8(1) clarifies the responsibility of ensuring the database details are updated is with the keeper of the dog. “The keeper” is defined in regulation 2 as (other than working or assistance dogs) the person with whom it normally resides; in relation to a new-born puppy, it is the owner of the bitch that gave birth to it.

Despite the heading of regulation 3 being “Obligation to microchip dogs”, which is reinforced at 3(1) “every keeper… must ensure that it is microchipped”, and again at regulation 8(1) “the new keeper must… record their full name and address”, the regulations do not make failure to do so an offence.

However, what is an offence, under regulation 8(2) is the transfer of a dog that is not microchipped to a new keeper.

The explanatory notes accompanying the regulations make it clear a new keeper who fails to comply with regulation 8(1), in accordance with regulation 3 would result in the keeper being subject to an enforcement action by an authorised person.

Regulation 11 lists authorised persons, but, in practical terms, it means a police officer or a dog warden. An authorised person may, if required, serve a notice under regulation 12(a) on a keeper requiring a dog is microchipped within 21 days. Failure to comply with this notice would constitute an offence. The “may” and “if required” of regulation 12(a) confirm it is a discretionary power.

Veterinary surgeons have a fiduciary relationship with their clients; information gained by virtue of that relationship is, therefore, confidential.

The microchip status of any dog placed in a vet’s care should be of no consequence, other than how it impacts on the professional relationship; the dog’s welfare; or the client’s enjoyment of his or her pet. In short, veterinary surgeons are not authorised persons.

It would be logistically, at best, very difficult for vets to check whether every dog entrusted to their care is microchipped. The presence of a chip, by itself, does not satisfy the definition for the purposes of the regulations of being microchipped; the vet would also have to confirm the correct, current name, address and telephone number were registered on an appropriate database.

If a client presents a new puppy or adult dog for microchipping after April 6, 2016 the vet’s responsibilities are to microchip the pet and ensure the details provided by the client are registered. The client should also be advised of the necessity of updating any change of details to maintain the dog’s microchipped status.

A question not so easy to answer is what should form the basis of the vet’s advice to an owner their dog should be microchipped?

In my practice a few weeks ago an old gentleman said: “My dog is 11 years old and I’m not having her microchipped; what can they do to me?” I replied: “That’s fine; it is highly unlikely there would be any legal consequences.”

A fiduciary must not misleadingly impart only half truths. A statement that does not present the whole truth may be regarded as misrepresentation (Tate v Williamson [1886] LR 2 Ch App 55).

I will continue advising my clients to have their pets microchipped regardless of species. I see the benefit of prompt reunion after a pet has become lost as an obvious advantage, one with which an owner can readily identify.

Some insurance companies provide incentives by discounting their premiums for microchipped animals; it has long puzzled me why insurance companies do not insist on microchipping as an aid to fraud prevention.

The legislator’s intentions are clear. The purpose of the regulations is to control and monitor the breeding of puppies and to have a mechanism in place to monitor dogs that have, for one or more reasons, been brought to the attention of the authorities.

The regulations have not been drafted to make life difficult for the majority of responsible owners who fully intend to look after their dogs and attend to their lifelong welfare needs.

It is for each vet to decide on his or her motivation for advising a client on microchipping, but being less than honest and suggesting the owner will incur a fine and you are looking out for his or her bank balance will only undermine our profession.

In recent years many of the professions have lost a great deal of their credibility with the public. The veterinary profession is still, by and large, held in high esteem and its future reputation is in our hands.