The replacement of the term “owner” with “guardian” has been proposed by animal activists for many years, but rejected by many veterinary associations concerned about the unintended consequences of such a change in designation.
According to the AVMA “[a]ny change in terminology describing the relationship between animals and owners, including ‘guardian,’ does not strengthen this relationship and may, in fact, harm it. Such changes in terminology may adversely affect the ability of society to obtain and deliver animal services and, ultimately, result in animal suffering.”
The Missouri Veterinary Medical Association warns that guardianship may result in “a delay in the veterinarian’s ability to provide medical care . . . ”
The Council of State Governments opposes legislation that reclassifies pet, livestock or animal owners as guardians or that otherwise alters the legal status of the animals because, among other concerns:
guardianship status would permit challenging in a court of law the course of treatment an animal’s owner and veterinarian decide on, or permit animal owners and veterinarians to be sued for providing what another individual may regard as inadequate care.
However, a change in status from owner to guardian is not required for pet owners to be charged with animal cruelty violations for their alleged failure to provide adequate veterinary care.
Many states include in the definition of animal cruelty the failure to provide an animal with necessary care. Importantly, further guidance on what constitutes necessary care, particularly in terms of veterinary treatment, is often absent.
In New Jersey individuals may be found criminally or civilly liable if they
Fail, as the owner or as a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care (see 4:22-17(a)(4)); or
Fail, as the owner or a person otherwise charged with the care of a living animal or creature, to provide the living animal or creature with necessary care, or otherwise cause or procure such an act to be done. (see4:22-26 (a)(4)).
‘Cruelty to animals’ includes mistreatment of any animal or neglect of any animal under the care and control of the neglector, whereby unnecessary or unjustifiable physical pain or suffering is caused. By way of example this includes: . . . failure to feed properly or give proper shelter or veterinary care to an animal. Del.A.S. § 1325(a)(6)
In People v. Arroyo, 777 N.Y.S.2d 838 (N.Y. Crim. Ct. 2004), the court considered the following “novel question”:
Does a pet owner commit an act of cruelty, for which he or she could be prosecuted criminally, by not providing an ill pet (in this case, terminally ill) with medical care? To answer this question the court must review not only the statute forbidding cruelty against animals, but also constitutional due process principles requiring fair notice of conduct that is criminally proscribed, as well as our current standards of morality with respect to pet owners’ duty to provide medical care for their animals.
In this case, a dog’s owner was charged with animal cruelty because he failed to have the dog treated for mammary cancer which would have required extensive, painful surgery which he could not afford and did not want his dog to endure. The court analyzed the relevant statutory terms and found that the “the term ‘sustenance’ in the statute does not include medical care” and therefore the statute did not provide the required notice to the dog owner that failing to provide medical care was a violation of the statute. The court also found that causing “unjustifiable pain” to an animal means “what is not reasonable, defensible, right, unavoidable or excusable.” The court concluded that the animal cruelty statute did not mandate an “affirmative duty to provide medical care in all cases, regardless of the expenses or the owner’s ability to meet them.”
However, in other jurisdictions, pets have been seized and surgery performed or required without notice or approval of the pet’s owner. In Daskalea v. Washington Humane Society, 577 F. Supp. 2d 82 (D.D.C. 2008) several pet owners sued the Humane Society that had seized their pets and without notice or the opportunity to challenge the seizure sterilized one pet owner’s pedigreed breeding dog and mandated unnecessary veterinary treatment and in one case surgery to a terminally ill dog who subsequently died. The court found that the dog owners had been denied due process by the Humane Society who failed to permit them the opportunity to be notified and heard before the seizure and unnecessary veterinary services were completed or mandated.
The American Veterinary Medical Association promotes the optimal health and welfare of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals’ care.
Whether “owners” or “guardians,” a pet owner’s requirement to provide for adequate veterinary care must be carefully considered and based on the best available science, in light of sound public policy.