Hopwood -v- Veterinary Surgeons Investigating Committee - [2002] NSWADT 44

No judgment structure available for this case.

CITATION: Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44 revised - 08/04/2002

DIVISION: General Division

PARTIES: APPLICANT
Greg Hopwood
RESPONDENT
Veterinary Surgeons Investigating Committee

FILE NUMBER: 003066

HEARING DATES: 23/04/2001, 24/04/2001, 10/08/2001

SUBMISSIONS CLOSED: 12/21/2001

DATE OF DECISION:
04/04/2002

BEFORE: Hennessy N (Deputy President); Thompson R - Member; Mayo-Ramsay R - Member

APPLICATION: Veterinary surgeon - review of orders of Veterinary Surgeons Investigating Committee - Veterinary Surgeons Act - veterinary surgeon - review of orders of Veterinary Surgeons Investigating Committee

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Veterinary Surgeons Act 1986
Veterinary Surgeons Regulation 1995

CASES CITED: Veterinary Surgeons Investigating Committee -v- Gelderman [2000] NSWADT 117
Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98
McDonald v Director General of Social Security (1984) 1 FCR 354
Briginshaw v Briginshaw (1938) 69 CLR 336
McCaughey v Stamp Duties Commissioner (1945) 45 SR (NSW) 192
Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1
Re Becker & Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158
Aavelaid v NSW Dental Board, (unreported, NSWCA, 16/10/98, BC9805424)
NSW Bar Association v Cummins (2001) NSWCA 284
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Hoile v Medical Board of South Australia (161) 104 CLR 157
Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee (1966) 1 QB 1
Dad v General Dental Council (2000) 1 WLR 1538
Khalil v Bray (1977) 1 NSWLR 256
Buttsworth v Walton, unreported, NSWCA, 19/12/91
Richter v Walton, unreported, NSWCA, 15/7/93
Herbert Adams P/L v FCT (1932) 47 CLR 222
D & R Henderson (MFG) P/L v Collector of Customs (1974) 48 ALJR 132
Kingston v Keprose P/L (1987) 1 NSWLR 404
R v Young (1999) 46 NSWLR 681
Saltoon v Lake (1978) 1 NSWLR 52
Deeps v Cook (1938) 55 WN (NSW) 115
Murray v McMurchy (1949) 2 DLR 442

REPRESENTATION: APPLICANT
A Stenmark, barrister
RESPONDENT
S Burchett, barrister

ORDERS: Proposed orders: (1) In relation to authority to amputate the pinna, the VSIC’s order is set aside. In substitution for that order, we order that the complaint in relation to this matter be dismissed; (2) In relation to charging in excess of the estimated fee, the VSIC’s order is set aside. In substitution for that order, we order that Dr Hopwood be reprimanded for that conduct; (3) In relation to record keeping and discharge instructions, the VSIC’s order is set aside. In substitution for that order, we order that Dr Hopwood be cautioned for that conduct; (4) The decision of the VSIC to order Dr Hopwood to pay $1,417.00 being the costs of, or incidental to, investigating the complaint is affirmed.

History of the complaint against Dr Hopwood

1 Dr Hopwood, the applicant in these proceedings, is a veterinary surgeon and has been the superintendent of the Northwest Animal Emergency Centre (NWAEC) since 1997. He has a Bachelor of Veterinary Science from the University of Sydney and was registered as a veterinary surgeon in NSW in 1974. He is currently studying at the Australian College of Veterinary Scientists, Chapter of Emergency and Critical Care. From 1990 to 1997 Dr Hopwood had appointments at 13 veterinary hospitals.

2 On 24 September 1998 Ms Beverley Anderson lodged a complaint against Dr Hopwood with the Australian Veterinary Association (AVA). Ms Anderson's adult son, Michael Anderson, and adult daughter, Tracey Weston, took Ms Anderson’s blue cattle dog, Boz, to Dr Hopwood on the evening of 12 September 1998 after he had been mauled in a fight with two of Michael's dogs. Boz died on 22 September 1998.

3 Ms Anderson’s letter of complaint set out what happened from her point of view between Saturday evening 12 September 1998 and Tuesday 22 September 1998. In the letter Ms Anderson referred to conversations she had with Dr Hopwood and conversations Dr Hopwood had with her son and her daughter concerning matters including options for treatment, the cost of surgery and how to care for Boz after he was discharged. The letter did not make any complaint about Dr Hopwood's record keeping. This fact is relevant to the question of the scope of the hearing before the Tribunal as discussed below at paragraphs 36 to 52.

4 Dr Hopwood operated on Boz and, during the course of that operation, amputated his left ear (pinna). The Veterinary Surgeons Investigation Committee (VSIC) investigated the complaint and by letter of the 18 October 1999, the VSIC asked Dr Hopwood to respond to its preliminary views and concerns arising from the complaint. The VSIC’s preliminary views were that Dr Hopwood:

5 As well as the preliminary views set out above, the VSIC’s letter to Dr Hopwood set out two further concerns. They were that:

6 After investigating Ms Anderson's complaint, the VSIC was satisfied of the truth of the complaint and concluded that Dr Hopwood had:

7 The VSIC did not come to any formal conclusion in relation to the concerns expressed in the letter of 18 October 1998 relating to record keeping and lack of care/communication on discharge. However, the VSIC stated that “. . . your actions were found to be in breach of Rule 5(3) of the Veterinary Surgeon’s Code of Professional Conduct.”

8 There is no issue in these proceedings about the Dr Hopwood’s competence in performing the surgery on Boz.

9 On 18 January 2000, the VSIC determined that it was satisfied of the truth of the complaint and resolved to caution Dr Hopwood and order him to pay $1,417.00 being the cost of the investigation. Dr Hopwood applied to the Tribunal for a review of the VSIC's orders.

Legislative Framework
10 Grounds for complaint.

As this is the first complaint of its kind to be heard by this Tribunal it is useful to set out in some detail the legislative framework within which we must determine this matter.

11 Under s 26(1) of the Veterinary Surgeons Act 1986 (the Act) the VSIC, the Board or any other person may make a compliant to the VSIC on any one of several grounds including that the veterinary surgeon "has been guilty of misconduct, or serious misconduct, in a professional respect" (s 26(1)(c)).

12 Both parties agreed that Ms Anderson’s complaint was made pursuant to s 26(1)(c) of the Act, even though she did not use the word “misconduct” in her letter of complaint.

13 The VSIC may investigate complaints even if they do not amount to misconduct. Section 26(5) states that:

The Investigating Committee may investigate a complaint relating to the conduct of a registered veterinary surgeon notwithstanding that it does not appear to constitute misconduct, or serious misconduct, in a professional respect or any other ground on which a complaint may be made under subsection (1), but where the Investigating Committee considers that the matter to which any such complaint relates does not warrant the making of the complaint, the Investigating Committee shall refuse to investigate the complaint any further.

. It is apparent from s 26(1) and (5) that there are four categories of conduct encompassed by s 26(1)(c): serious misconduct in a professional respect (category 1); misconduct in a professional respect (category 2); conduct which does not appear to constitute misconduct, or serious misconduct, in a professional respect or any other ground on which a complaint may be made but the VSIC considers that the matter warrants the making of the complaint (category 3); and conduct which the VSIC does not consider warrants the making of the complaint (category 4).

15 Section 28 of the Act sets out the decisions the VSIC can make in relation to a complaint. In summary, the VSIC has three options after investigating a complaint. It may: dismiss the complaint; caution or reprimand the veterinary surgeon and/or order him or her to pay the costs of the investigation and/or impose temporary conditions on the veterinary surgeon’s right to practise; or refer the complaint to the Tribunal if it is sufficiently serious.

16 In this case the VSIC chose the second option. These options correspond with the provisions of s 28(1)(a), s 28(1)(b) and s 28(1)(c) of the Act which are set out below:

17 Section 28(1)(b) gives the VSIC a general power to deal with a complaint under that section if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal. Section 28(2) also allows the VSIC to deal with the veterinary surgeon under s 28(1)(b) where it considers that his or her conduct falls within the third category set out above at paragraph 14. The VSIC’s legal representative Mr Burchett, submitted that it is implicit in the VSIC’s findings that it was satisfied of the truth of the complaint, that the VSIC found that Dr Hopwood was guilty of professional misconduct even though the VSIC made no formal finding to that effect.

18 In the VSIC’s final determination it found that Dr Hopwood had performed a procedure for which he had no authority. This conclusion accords with the VSIC’s preliminary view expressed in their letter of 18 October 1999 that Dr Hopwood was found to be in breach of Rule 5(3) of the Veterinary Surgeon’s Code of Conduct which relates to undertaking any veterinary procedure without ensuring that the owner is made aware of the likely extent of the procedure. A veterinary surgeon is deemed to be guilty of misconduct in a professional respect if he or she breaches Rule 5(3). (See s 22(c) of the Act and Cl 10(2) of the Veterinary Surgeons Regulation 1995 (the Regulation).) However this finding only relates to the allegation involving unauthorised amputation of the ear. Because the VSIC dealt with the matter under s 28(1)(b) it must have come to the view that despite being guilty of misconduct in a professional respect, this aspect of the complaint was not sufficiently serious to warrant its being referred to the Tribunal.

Jurisdiction and powers of the Tribunal

19 Because the VSIC chose to deal with the complaint against Dr Hopwood by exercising its powers under s 28(1)(b), Dr Hopwood has the right, under s 31 of the Act, to apply to the Tribunal for a review of the VSIC’s orders. Section 31 provides that:

A veterinary surgeon against whom the Investigating Committee has made an order under section 28(1)(b) may apply to the Tribunal for a review of the order.

20 The use of the word "review" suggests that the Tribunal is reviewing a "reviewable decision", namely the order of the VSIC. (Section 8 of the Administrative Decisions Tribunal Act 1997 (ADT Act) defines “reviewable decision” and s 38 of the ADT Act confers jurisdiction on the Tribunal to review reviewable decisions.)

21 This is the first occasion on which a person has exercised his or her right to apply to this Tribunal for the review of an order under s 31 of the Act. The Tribunal has previously dealt with matters where its original jurisdiction has been invoked because the matter has been referred to the Tribunal directly by the VSIC under s 28(1)(c). (See Veterinary Surgeons Investigating Committee -v- Gelderman [2000] NSWADT 117; Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98.) A preliminary issue arose as to the scope of the Tribunal’s powers when reviewing an order of the VSIC.

22 When reviewing a "reviewable decision" the Tribunal has the powers set out in s 63 of the ADT Act. That section states that:

23 In summary, the Tribunal must decide what the "correct and preferable decision is having regard to the material then before it". The Tribunal may exercise all the functions the VSIC could have exercised and may affirm, vary or set aside the VSIC's orders.

24 Having decided, pursuant to s 28(1)(b), that the complaint was not sufficiently serious to warrant its being referred to the Tribunal, the VSIC was limited in the kinds of orders it was entitled to make. It could caution or reprimand Dr Hopwood, order him to pay the costs of the investigation; and/or impose temporary conditions on his registration. In the light of s 63(2) of the ADT Act the question arises as to whether the Tribunal is similarly limited in relation to the kinds of orders it may make.

25 Counsel for the VSIC, Mr Burchett, submitted that in addition to its powers under s 63, the Tribunal may make the orders listed in s 32 of the Act when reviewing orders of the VSIC. In his submission, the Tribunal can exercise those powers whether it is reviewing a “reviewable decision” (as it is in this case) or making an original decision. Section 32 states that:

26 Mr Burchett’s submission, that the orders in s 32 are available when the Tribunal is reviewing orders of the VSIC, is based on the general words used in s 32. That section applies where “the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal.”

27 While this submission is arguable, we have come to a different conclusion. As far as we are aware, there is no authority on this point. Our conclusions are based on the principles of statutory interpretation including a reading of the Act before it was amended in 1998 to take into account the existence of the Administrative Decisions Tribunal (ADT).

28 Section 63 of the ADT Act sets out the Tribunal’s powers on review. In particular, the effect of s 63(2) is that the Tribunal may exercise all the functions that are conferred or imposed by the Act on the VSIC. “Functions” is defined in s 4 of the ADT Act to include a “power, authority or duty”.

29 Section 32 is expressed to relate to “a complaint against a registered veterinary surgeon (that) has been proved to the satisfaction of the Tribunal.” When reviewing an order of the VSIC, the Tribunal’s task is not to find that a complaint has been proved or not proved. Our task is to decide what the correct and preferable decision is having regard to the material then before us. For this reason, s 32 relates to the Tribunal’s powers when making original decisions, but not when reviewing the VSIC’s orders.

30 Our conclusion is supported by a comparison of the Act before it was amended in 1998 to take into account the establishment of the ADT. Section 28, relating to matters referred directly to the Tribunal by the VSIC, was in identical terms to the current s 28 except that the VSIC could refer a complaint to the Veterinary Surgeons Disciplinary Tribunal rather than the ADT. These matters were referred to as “inquiries” in the repealed provisions and invoke the ADT’s jurisdiction to make original decisions in the amended Act.

31 The repealed s 30A gave a veterinary surgeon the right to appeal against an order of the VSIC made under s 28(1)(b). The matter before the Disciplinary Tribunal was then treated as an appeal rather than an inquiry. Section 31 of the amended Act, which gives a veterinary surgeon the right to apply to the ADT for a review of an order made under s 28(1)(b), is the equivalent of the repealed s 30A. The appeal under the repealed provisions was dealt with by way of a new hearing and at the end of an appeal, the Disciplinary Tribunal was given the power to “confirm, quash or vary the order appealed against, having regard to the merits of the case.” These powers are equivalent to those available to the ADT under s 63(3) of the ADT Act.

32 It is apparent from a reading of the repealed s 30A and the repealed s 32 that they were intended to be exhaustive of the Disciplinary Tribunal’s powers in relation to appeals and inquiries respectively. Sections 30A and s 32 have some identical provisions, including 30A(9) and 32(7), and 30A(10) and s 32(8). If the Disciplinary Tribunal’s powers in relation to appeals was intended to be contained in both s 30A and s 32 there would have been no need to repeat the same provisions in each section.

33 Based on the plain meaning of s 32 supported by this reasoning, we find that s 63 of the ADT Act is exhaustive in relation to the powers of this Tribunal when reviewing orders of the VSIC. The powers set out in s 32 are not available to the Tribunal when reviewing “reviewable decisions.”

Onus and standard of proof

34 Because the Tribunal is reviewing the orders of the VSIC, neither party bears an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. Neither Dr Hopwood nor the VSIC has the responsibility of having to prove a case. The Tribunal makes a decision in place of the VSIC’s decision and "there is no presumption that the decision of the administrator is correct" (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

35 The standard of proof by which the Tribunal must be satisfied is the civil standard, ie proof based on the balance of probabilities, but qualified having regard to the seriousness of the facts in issue. Applying the principles in Briginshaw v Briginshaw (1938) 69 CLR 336 at 343-344, the Tribunal must give the evidence a close and careful scrutiny and be comfortably satisfied of the conclusions it reaches.

Scope of the complaint

36 The parties differed in their view as to the scope of the complaint that was before the Tribunal. After investigating Ms Anderson's complaint, the VSIC made two findings. These were that Dr Hopwood failed to communicate properly and effectively with the owner and that he performed a procedure for which he had no authority.

37 In addition, in a letter to Dr Hopwood from the VSIC dated 18 October 1999, the VSIC set out two other concerns, namely that Dr Hopwood's record keeping was inadequate and that he lacked care/communication when discharging Boz from NWAEC.

38 Mr Burchett, counsel for the VSIC, submitted that the Tribunal could take into account all the matters raised by the VSIC in their letter of 18 October 1999. Ms Stenmark, counsel representing Dr Hopwood, submitted that the Tribunal should not take into account any concerns in relation to record keeping or communication to the carers when Boz was discharged. This submission was based on three broad grounds.

39 The first ground was that the matters of "concern" were looked at by the VSIC and disregarded. Because the VSIC had already considered the matters referred to in their letter to Dr Hopwood of 18 October 1999 and because these matters were not part of any orders of the VSIC, they should not form part of the Tribunal's inquiry. The VSIC had impliedly dismissed those concerns. In those circumstances, the Tribunal does not have power to entertain them.

40 Ms Stenmark's second ground is related to the first. It was that the Tribunal must take into consideration the views of the VSIC as outlined in their letters to Dr Hopwood of 18 October 1999 and 18 January 2000. Their view was that concerns about record keeping should not be the subject of any specific findings.

41 Ms Stenmark’s third ground relates to procedural fairness. She submitted that the VSIC had never suggested that those further matters of concern would be enlivened before the Tribunal. The documents served by the respondent and relied on by it at the hearing did not reveal any serious concern on the part of the VSIC with Dr Hopwood's record keeping. No expert evidence was adduced in relation to that matter.

42 We do not accept Ms Stenmark’s submission that the Tribunal should not take into account the “concerns” raised by the VSIC. The scope of the Tribunal’s inquiry is determined by the scope of the complaint and any additional complaints made by the VSIC. We concluded at the hearing on 10 August 2001, that:

We can look at anything that has happened that would justify the caution or not justify the caution. We're not restricted to the reasons that the VSIC gives for the caution.

43 Accordingly, the Tribunal allowed evidence to be adduced in relation to all the matters over which the VSIC had either made preliminary findings or expressed concerns. We have not been persuaded by Ms Stenmark’s submissions to change our view that we may look at the totality of the complaint when determining what orders to make. Our reasons for this conclusion are set out below.

44 In certain circumstances, as provided for in s 27(2) of the Act, the VSIC can add a complaint to the complaint made by another person. Section 27(2) states that:

45 The VSIC did not expressly make any other complaints when investigating Ms Anderson's complaint. However it did express concerns in its letter of 18 October 1999 which were not specifically raised in Ms Anderson’s complaint.

46 Dr Hopwood accepted that the VSIC made an additional complaint but that no findings were made in relation to that complaint. The VSIC did not expressly make a complaint in addition to that made by Ms Anderson. However, it can be inferred that either the VSIC impliedly made an additional complaint (in relation to record keeping and communication on discharge) or that those concerns were further particulars of Ms Anderson’s complaint. The VSIC submitted that this was the correct conclusion. Ms Stenmark also accepted that the VSIC had made an additional complaint.

47 These findings mean that all the matters raised by the VSIC are validly before the Tribunal. Because the Tribunal is conducting a merits review of the VSIC’s orders, the application must be conducted as a hearing de novo. The Tribunal must have regard to “any relevant factual material” before it (ADT Act s 63(1)(a)).

48 The applicant’s second submission was that the Tribunal should take into account the views of the VSIC when reviewing its orders. While the Tribunal should take into account the views of the VSIC, it is not bound by those views. The Tribunal's role is to look afresh at the merits of the orders made by the VSIC. There is no presumption that these orders are correct. (See McCaughey v Stamp Duties Commissioner (1945) 45 SR (NSW) 192 at 207.) In Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 at 18, the High Court approved the following statement of Brennan J in Re Becker & Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161:

The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views."

49 In Aavelaid v NSW Dental Board, (unreported, NSWCA, 16/10/98, BC9805424) the Court of Appeal held that a disciplinary tribunal, constituted by a judicial member and lay members, though administrative, made judicial determinations. In reviewing a decision of the VSIC, the Tribunal is not bound by the grounds on which the VSIC reached its conclusion.

50 The applicant's third submission included a suggestion that the Tribunal would be in breach of the rules of procedural fairness if it took into account the VSIC’s concerns about Dr Hopwood’s record keeping and communication to the carers on discharge.

51 Dr Hopwood was on notice that the Tribunal would be taking into account the concerns of the VSIC. In our view, the applicant had sufficient notice that the concerns were part of the factual material that would be considered by the Tribunal and had ample opportunity to respond, and did in fact respond, to that material. If Dr Hopwood considered that he did not have an opportunity to respond to those matters, then he should have requested an adjournment at that time.

52 Our conclusion is that all the matters specifically raised in Ms Anderson's complaint together with the other matters referred to by the VSIC in their letter of 18 October 1999 may be taken into account by the Tribunal. This includes the concerns the VSIC had about record keeping and communication when discharging Boz.

Issues

53 The issue to be determined by the Tribunal, in general terms, is whether the VSIC made the correct and preferable decision in cautioning Dr Hopwood for his conduct and ordering that he pay the costs of the VSIC’s investigation pursuant to s 28. Based on that provision and the VSIC’s express or implied findings, the questions the Tribunal must ask itself are:

54 There is no definition of misconduct in a professional respect in the Act. In determining whether conduct amounts to misconduct in a professional respect, the Tribunal must take into account the Veterinary Surgeons' Code of Professional Conduct (Code of Conduct) which is Schedule 1 to the Veterinary Surgeons Regulation 1995 (the Regulation). The Code of Conduct sets out the rules of conduct which should be observed by a veterinary surgeon carrying on the practice of veterinary science. (Section 23 of the Act.)

55 Section 22 provides that certain conduct set out in the Code of Conduct is deemed to be misconduct in a professional respect. Pursuant to s 22(c) of the Act a veterinary surgeon is guilty of misconduct in a professional respect if he or she breaches any of the prescribed rules in the Code of Conduct. Section 10(2) of the Veterinary Surgeons Regulation 1995 (the Regulation) prescribes several rules, including rule 5(2), (3) and (12) as provisions a breach of which would deem a veterinary surgeon to be guilty of misconduct in a professional respect.

56 Rules 1, 5(2), 5(3) and 5(12) and 20 of the Code of Conduct are relevant to this matter. These provisions are set out below:

Rule 5(3) Except in the case of an emergency, a veterinary surgeon should not undertake any veterinary procedure on an animal without ensuring that the owner or person in charge of the animal is made aware of the likely extent and outcome of the procedure and of its probable cost. An example of an emergency is a circumstance in which there is an immediate threat to the life of the animal concerned.

Cl 5 (12) When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation.

57 "Emergency" is not defined otherwise than including an immediate threat to the life of an animal.

58 Clause 20 of the Code of Conduct relates to the duties of a person, like Dr Hopwood, who is the superintendent of a veterinary hospital. Clauses 20(1) and 20(2)(a) state that:

(a) ensure that a complete record is made at the time of each veterinary treatment and consultation (including any x-ray film, radiograph or ultrasound image) and that the record is retained for at least 2 years from when it is made;

59 In addition, even if the Tribunal is satisfied that there has not been a breach of the Code of Conduct, we must consider in relation to each allegation, whether Dr Hopwood is guilty of misconduct in a professional respect according to the common law meaning of that term.

60 In the matter of an inquiry by the Disciplinary Tribunal into a complaint against Lloyd (unreported decision of the Veterinary Surgeons Disciplinary Tribunal of NSW, 16/12/94) the Tribunal stated that:

In formulating the criteria to identify and assess misconduct in a professional respect apart from deemed misconduct in a professional respect under s 22(c) of the Act, the Tribunal is required to have regard to the principles established under the general law by common law precedent. It is not possible to lay down a standard of professional conduct other than in general terms. Whether a departure from professional standards in a particular case constitutes misconduct in a professional respect is basically determined by peer judgment ie the judgment of practitioners of good repute and competence and standing in the profession.

61 We accept the VSIC’s summary of the common law meaning of misconduct in a professional respect as follows:

Qidwai v Brown

Pillai v Messiter

NSW Bar Association v Cummins

Pillai v Messiter

Hoile v Medical Board of South Australia

Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee

Dad v General Dental Council

62 In considering these matters as an expert body, the Tribunal is not limited to the evidence of professional standards, unwritten rules or the opinion of professional brethren. We may form our own opinion of such matters from our own expert knowledge (Khalil v Bray (1977) 1 NSWLR 256; Buttsworth v Walton, unreported, NSWCA, 19/12/91; Richter v Walton, unreported, NSWCA, 15/7/93).

Non-expert evidence
63 Witnesses

. Ms Anderson, Michael Anderson, Tracey Weston and Dr Hopwood gave oral evidence. Mr Burchett, counsel for the VSIC, sought to adduce the evidence of Mr Anderson senior on the phone. We decided that his statement should be admitted and that Ms Stenmark be allowed to cross-examine by phone. Ms Stenmark declined this offer and requested that her objection to the admissibility of Mr Anderson's statement be noted. We have not relied on Mr Anderson’s statement in making any findings of fact.

64 The following paragraphs set out non-expert evidence. Where there is conflict in relation to the evidence on a significant point, we have made findings of fact and set out our reasons for those findings.

65 Background to attendance at NWAEC. On the evening of 12 September 1998, Ms Anderson's 13 year old blue cattle dog, Boz, was mauled by her son's two terriers. Mr and Ms Anderson were out of Sydney at their property in Mudgee at the time. After finding that their regular veterinarian’s surgery was not open, Tracey rang her mother. Ms Anderson told Tracey to take Boz to the emergency vet. She said "make sure you ask the vet whether it is worthwhile to put him through whatever needs to be done seeing as he is an old dog. I don't want him to have to go through it all if it would be better to put him down."

66 Interaction on attending NWAEC. Michael Anderson and Tracey Weston took Boz to the after hours emergency centre, NWAEC. Dr Hopwood, the superintendent of NWAEC, was on duty when they arrived at around 9 pm. Boz was in shock and had obvious wounds around his head, nasal area, lip, face and ear. When Tracey raised the possibility of taking Boz home and waiting until their parents came home, Dr Hopwood told them that if they took Boz home he would die of shock. Dr Hopwood stated:

I put it to them that I could do my best to investigate and repair the damage that had been caused to Boz; that I would need to admit the dog to hospital; that I would need to treat his shock conditions; that I would need to anaesthetise, that is perform a general anaesthetic on the dog, at a certain point, and perform surgery on the wounds and for that I asked their consent; in point that, providing them with a written form, which I asked them to sign.

67 Tracey said she raised the possibility of putting Boz down, but that Dr Hopwood examined Boz and said he could operate and that Boz would be OK after surgery. Michael said that Dr Hopwood said "He'll be OK. I'll give him some anaesthetic and stitch him up." Dr Hopwood said that he may have said if everything goes well, he should be OK, or that "hopefully" everything would be OK, but he did not give Michael and Tracey a guarantee that Boz would be OK. He said that because this was an emergency and because Boz had a great deal of matted hair and bleeding, it was impossible to know the full extent of the injuries until surgery had commenced. In those circumstances he would never give such a guarantee.

68 The difference in perceptions between Michael and Tracey and Dr Hopwood about this conversation is understandable. It was Michael and Tracey’s recollection that Dr Hopwood gave them an assurance that Boz would be OK. While that may well have been their perception, it is highly unlikely that a person with Dr Hopwood’s experience would ever give a guarantee that Boz would be OK given his age and the extent of his injuries.

69 We find that Dr Hopwood said words to the effect that Boz “should be OK” meaning that he was optimistic, but there were no guarantees. We do not intend by this finding to cast any doubt on Michael or Tracey’s credit. It was their genuine impression that Dr Hopwood gave them an assurance.

70 Estimated fees. Michael and Tracey told Dr Hopwood that their parents did not have a lot of money, but they would pay if Dr Hopwood thought Boz could be saved. According to Michael and Tracey, Dr Hopwood said it would cost a bit, and quoted $700-800. Dr Hopwood says he can't recall exactly what he told Michael and Tracey about the cost. He thinks he said it would be in the range of $780-820. This difference in evidence is not critical.

71 Tracey said that Dr Hopwood told her that he couldn't be sure that the cost would be $700 to $800 but that if it was over that amount or if there is anything else that needed to be done, he would ring. Michael gave Dr Hopwood his phone number and Dr Hopwood said he would ring when he finished the operation.

72 Consent form. Michael Anderson signed a form entitled “Consent for Treatment, Anaesthetic and Surgery”. That form states, in part, that “I . . . hereby authorise and give permission for treatment, anaesthetic and surgery to be performed on the animal described . . .” The “Estimated fee range” was recorded as from $780 to $820. Under the heading “Level of Care” there were three options which could be ticked: unlimited care, limited care and relief care. None of these boxes was ticked. Dr Hopwood said he does not usually tick the boxes because he has an understanding with the clients that the amount is an estimate. He assumed that authority had been given for the "limited care" option.

73 At the end of the form was the following acknowledgment “I have been given an ESTIMATE of the cost involved as detailed above. I accept this is an estimate only and realise that by the nature of the work performed for me not all costs or developments may be immediately apparent. Nonetheless I undertake to pay these fees at the time of discharge of the animal from the centre.”

74 Michael said that although he signed the form he didn't really read it. He said he signed it because he knew that unless he did so, the operation would not go ahead.

75 The surgery. Dr Hopwood operated on Boz under a general anaesthetic. He cleaned the wounds and sutured them. Dr Hopwood said that he was not aware of the full extent of the injuries when he began to operate. He only became aware of the full extent of each injury as he moved progressively from one wound to another. He attended to the ear last, after about one and a half hours of surgery and it was only after examining it closely that he realised it needed to be amputated because of the lack of any blood supply to that region.

76 The form known as a "docket" which Dr Hopwood completed after the surgery has the note "amputate L pinna" before other surgical procedures. The VSIC asked Dr Hopwood whether the amputation had occurred early in the surgery. Dr Hopwood said that his notes do not record what he did in chronological order. We accept Dr Hopwood’s evidence on this point. Given Dr Hopwood’s clear evidence, the order that the procedures are written down in the notes is not sufficiently persuasive for us to make a finding contrary to that evidence.

77 Consent to amputate the pinna. Dr Hopwood agreed that no-one gave him specific consent to amputate the pinna but he understood that his authority extended to doing "everything he could" to save Boz. He did not consider that it would be in the animal's best interest to ring anyone to get their permission to amputate the pinna at that stage. This is because the dog was old, surgery had already been going for approximately one and a half hours and it was more important to complete the surgery than delay proceedings by making a phone call. In particular, Dr Hopwood said that "the products of tissue degeneration and the process make for a very potentially toxaemic patient." In Dr Hopwood's view, Boz' pinna had to be amputated sooner or later and it was preferable to do it without delay while he was under anaesthetic.

78 Authorisation to incur extra costs. Similarly, Dr Hopwood did not think it necessary, or in Boz' best interests, to ring Michael to get his permission to charge more than the estimate of fees. In Dr Hopwood's view it was too dangerous to make such a phone call during surgery and he could not estimate the cost at the beginning of the surgery. He says that he did communicate the "probable cost" and he regarded the surgery as an emergency. The extra fees were incurred because of the greater extent of injury around the mouth and the amputation of the ear.

79 Post operative procedures. Dr Hopwood finished the operation and transferred Boz to a recovery unit.

80 Mr and Ms Anderson return to Sydney. Mr and Ms Anderson drove back to Sydney on the night of 12 September 1998. They went to visit Michael about midnight and stayed for between 30 minutes and an hour. He told them what had happened in more detail than he had explained on the phone.

81 Conversation with Michael. Dr Hopwood says that he rang Michael after midnight to report on the surgery. It was a short conversation in which he told Michael that things went OK and he was happy with the surgery. He also told Michael that he had amputated Boz' left ear. Dr Hopwood told the Tribunal that he did not discuss any possible increase in the estimate of fees during that conversation.

82 Michael denied that Dr Hopwood rang him. Michael said that he did not speak to Dr Hopwood after the operation. Ms Anderson also gave evidence that she was with Michael for 30 minutes to an hour around midnight and that Dr Hopwood did not phone. She said that the first thing she knew about the ear being amputated was the next morning when she rang Dr Hopwood at the surgery.

83 Michael, Tracey and Dr Hopwood all agree that Michael gave Dr Hopwood his telephone number prior to the surgery and that Dr Hopwood told Michael that he would ring when he finished the operation. Dr Hopwood stated that he had made a phone call to Michael in a letter to Dr Joanne Sillince, the Convener, Ethics and Complaints Committee AVA, on the 14th October 1998, about four weeks after the alleged phone conversation. Dr Hopwood stated in that letter that:

Following surgery the dog made a good recovery during the night. I had 2 subsequent telephone conversations, 1 with “Jackson” as I recall, around midnight by way of progress and post-surgical report (including informing of unforeseen ear amputation and mouth surgery) [and some possible additional fees ?]) secondly, with Mrs Anderson early Sunday morning, whereby I gave her an encouraging progress report and request to check with day vet after mid-day in regard to discharge.

84 Dr Hopwood was under the impression at that stage that Michael’s name was Jackson.

85 The circumstances which suggest that Dr Hopwood did make the call are that he had Michael’s phone number and he told him that he would ring after the operation. Dr Hopwood stated that he had called Michael both in his evidence to the Tribunal and in a letter shortly after the complaint had been made.

86 The circumstances which suggest that Dr Hopwood did not make the call are that Michael and his mother deny that it was made and there is no contemporaneous record of the call. Ms Anderson was with Michael at around the same time that Dr Hopwood said he called. Even if Dr Hopwood called after Ms Anderson left Michael, it is likely that Michael would have rung his mother, even at that late hour, to update her on Boz’ condition. In addition, although Dr Hopwood referred to a phone call to Michael at around midnight in his letter to Dr Joanne Sillince, he queried whether he had raised the issue of fees. Dr Hopwood was definite in his evidence before the Tribunal that he did not raise the issue of fees in that phone call. Dr Hopwood has no corroborating evidence that he made the call whereas Michael and Ms Anderson both deny that any such call was made. There was no reason for Michael or Ms Anderson to deny that this call had been made. On the other hand it was very much in Dr Hopwood’s interests that he be seen to be communicating effectively with the client.

87 Taking all these matters into account, we are comfortably satisfied that Dr Hopwood did not ring Michael at around midnight.

88 Record keeping. The last notes Dr Hopwood made in relation to Boz were at 1.30 am. He agreed that no records were made between 1.30 am and 1.15 pm the following day when Boz was discharged. Dr Hopwood said he would have checked Boz after 1.30 am but it is not his practice to record any observations unless there is something unusual to record because it is too time consuming to do so.

89 Dr Hopwood agreed that even a record noting "nothing abnormal" could assist another vet, but insisted that he did not have time to make a record every time an animal was improving or deteriorating. Dr Hopwood said that while it may be best practice to record every observation, it is not common practice. He admitted that on occasions he does not write down observations which are abnormal because there is no time.

90 The last recorded temperature reading of 40 degrees (an elevated temperature) was taken between 8 pm and 10 pm. Dr Hopwood could not recall from looking at his notes how long Boz was under anaesthetic. Dr Hopwood did not make any notes of the medication he prescribed for Boz post operatively. He said in evidence that the medication was Clavulox and was left by Boz' cage. He said that he did not give Boz any medication because if he had, he would have written it down. Dr Hopwood agreed that the referring vet would need to know what medication Boz was taking, but said that Dr Hughes, the vet who was on duty after he left, should have recorded that information.

91 Conversation with Ms Anderson the following morning. At about 8.15 am the following morning (13th September 1998) Ms Anderson rang the NWAEC and spoke to Dr Hopwood. Dr Hopwood told Ms Anderson that Boz was fine and that he had stitched up the cuts but had to amputate the ear because it was badly damaged. Dr Hopwood told Ms Anderson that Boz should be ready to be picked up that afternoon. Ms Anderson says that she accepted that Boz's ear had to be removed even though she was a bit surprised when Dr Hopwood told her. She said she was just relieved that Boz was OK. Dr Hopwood did not mention anything about the costs of the surgery in this conversation.

92 Dr Hopwood agrees that he did not make a record of what he told Ms Anderson on the phone. Dr Hopwood says he understood his duties as superintendent of the hospital and made sure there was a policy that consultations and procedures were recorded.

93 Discharge instructions and fees. Dr Hopwood went off duty about 9.30 am on 13 September. Before going off-duty, Dr Hopwood wrote the fees to be charged by staff in his absence on the docket. His evidence in relation to this was that he could have arrived at a satisfactory understanding on the issue of costs if Ms Anderson had queried the cost.

94 Dr Hopwood also gave evidence that he spoke to Dr Hughes, who came on duty at about 9 pm on 13 September, and let him know that Boz should be ready to be discharged at about lunch time. Dr Hopwood left the decision about when to discharge Boz to Dr Hughes.

95 According to Dr Hughes’ statement, Dr Hopwood told him to tell Ms Anderson about the severe nature of the tissue damage, the surgery he had carried out, the medication to be administered and the need to contact her own vet within 48 hours. Dr Hopwood says that while he gave Dr Hughes that information, it was up to Dr Hughes as the discharging vet, to make his own discharge notes. In Dr Hopwood's view, Dr Hughes is an experienced vet and does not need to be given instructions about what he should do on discharge.

96 Dr Hopwood admitted that he did not take any steps to ensure that a document headed "Discharge Instructions" was routinely used at NWAEC. He completed that form on some occasions but he did not want to overwhelm the owners and it was not used in this case. He said he was sorry for his own inadequacy in record keeping.

97 Picking up Boz from the NWAEC. Mr and Ms Anderson collected Boz at about 1.15 pm. Dr Hughes brought Boz to them on a lead. Ms Anderson was shocked when she saw Boz. Dr Hughes gave her some anti-biotics and told her how many to give Boz. He also told her to take Boz to her regular vet in a few days. According to Ms Anderson, Dr Hughes did not say anything about how to care for Boz's wound or any signs to watch out for.

98 Ms Anderson paid the bill for $1024.50 but says that this was more than the $700-800 she had expected to pay. Dr Hopwood said that he was entitled to charge her $1074 but if Ms Anderson had not agreed to pay that amount he would have considered reducing the charge.

99 Ms Anderson took Boz to their regular vet on the following Monday and again on 17 September 1998. On 22 September 1998, Ms Anderson found Boz dead in the front yard.

Expert evidence

100 The Tribunal had the benefit of expert evidence on behalf of the VSIC from Dr Retchford and Dr Zuber and on behalf of the applicant from Dr King and Dr Gibbons.

101 Dr Retchford is a senior Veterinarian at the Animal Emergency Centre (Vic) Pty Ltd and has a Bachelor of Veterinary Science. He is a member of the Australian College of Veterinary Scientists, by examination in Medicine of Dogs.

102 Dr Zuber is a consultant in surgery to the Department of Veterinary Clinical Sciences at the University of Sydney. This involves supervision of residents and undergraduate teaching. Dr Zuber's report was admitted. He was not available for cross examination. I gave Ms Stenmark the option of not admitting Dr Zuber's report, but she rejected that offer and preferred the report to be admitted.

103 Dr King is the clinic Director of the Small Animal Clinic and Veterinary Teaching Hospital within the School of Veterinary Science at the University of Queensland. Dr King's report was admitted over the objection of the VSIC because of its lateness. We decided to admit it and to allow Dr Retchford to be asked questions by phone if necessary in relation to matters raised in Dr King's report.

104 Dr Gibbons is an experienced veterinary surgeon and Director of the Board at NWAEC. He prepared a report dated 14 August 2000, providing a peer assessment of Dr Hopwood's conduct on the evening of 12 September and the morning of 13 September 1998.

Amputation of Boz’ ear
105 Issue

. The first issue for the Tribunal is: was the VSIC justified in being satisfied of the truth of the complaint that Dr Hopwood amputated Boz’ ear without authority? If so, did the conduct amount to misconduct in a professional respect even though it was not sufficiently serious to warrant its being referred to the Tribunal? If so, was a caution and an order for costs the correct and preferable order to make in relation to this conduct?

106 Legal position. In order to put this issue in context, we have set out the legal position before summarising the expert evidence. Rule 5(3) of the Code of Conduct states that:

Except in the case of an emergency, a veterinary surgeon should not undertake any veterinary procedure on an animal without ensuring that the owner or person in charge of the animal is made aware of the likely extent and outcome of the procedure and of its probable cost. An example of an emergency is a circumstance in which there is an immediate threat to the life of the animal concerned.

107 A veterinary surgeon will be deemed to be guilty of misconduct in a professional respect if the Tribunal finds that there has been a breach of this rule. (See s 22(c) of the Act and s 10(2) of the Regulation.)

108 In determining whether there has been a breach of Rule 5(3) there are two issues which need to be addressed: did Dr Hopwood make the person in charge of the animal (Michael or Tracey) aware of the likely extent of the procedure before the surgery? If not, was it unnecessary because this was an emergency?

109 Expert evidence. Dr Hopwood agreed that no-one gave him express authority to amputate the pinna but he understood that his authority extended to doing everything he could to save Boz. According to Dr Hopwood he did not have express authority because he did not realise until one and a half hours into the surgery that the ear needed to be amputated. Dr Hopwood noted that systematic inflammatory response syndrome (SIRS) was a risk for Boz because of his high temperature, heart rate and respiration. If left unattended, Boz would have died.

110 Dr Retchford’s view was that the consent form was insufficient either to grant consent to amputate the ear, or seek increased costs for such treatment. However, this view was based on an assumption that Dr Hopwood knew the extent of the injuries prior the surgery. We accepted Dr Hopwood’s evidence that he did not know that the ear would have to be amputated prior to the surgery.

111 Dr Rechford conceded that if Dr Hopwood did not know that the pinna had to be amputated until after he started operating, the consent obtained from Michael may have been sufficient to override the requirement to contact the owner. Once the animal is in this state, there is no particular hurry to commence the surgery straight away. In Dr Rechford’s view, if Dr Hopwood had identified the extent of the damage to the ear at that stage, he could have left Boz for 15 minutes or so to obtain permission from Boz’ owner or carer to amputate Boz' ear. This was on the condition that a nurse was present to monitor the anaesthetic. Dr Rechford agreed that a phone call could have taken longer than 15 minutes and that the primary concern of Dr Hopwood is the welfare of the animal.

112 Dr Retchford gave evidence that Boz was in a life-threatening situation and that Dr Hopwood had to perform the amputation immediately. He said that devitalised tissue is a medical emergency and needs to be repaired or removed as soon as possible. He said it was a "level 2" emergency which means that for example, there are internal injuries and that the dog needs to be treated within 1 to 4 hours. Dr Rechford differentiated between the shock and lacerations (which constituted a level 2 emergency) and the injury to the ear (devitalised primma). The injury to the ear did not constitute a Level 2 emergency, but Dr Hopwood would have been negligent if he had not amputated the ear during the surgery. Dr Rechford said that Dr Hopwood would not have known the full extent of Boz' injuries until he had anaesthetised, clipped, cleaned the wounds and was ready to operate. At that stage he would have had a very good idea of the extent of the injuries.

113 Dr Zuber stated in his report that the operation carried out was not outside the scope of the signed the consent. Dr Zuber’s view was that neither the overall condition with which Boz presented to Dr Hopwood, nor the ear injury was life-threatening, nor could it be classed as an “emergency situation” such as to be classed as an emergency. Dr Hopwood could have left the dog under his nurse’s supervision long enough to contact the owners but he does not feel that this would have been in Boz’ best interests.

114 Dr Gibbons also expressed the view that the Consent Form and the evidence of the discussions Dr Hopwood had with Michael and Tracey prior to surgery indicate that he did have permission to amputate the pinna. Dr Gibbon’s view was that Dr Hopwood was faced with a life-threatening emergency. In his view the need to deal with a life-threatening emergency overrides the need to obtain further consent during surgery. He made the comment that “To leave tissue behind which would in a very short space of time become seriously infected would create a situation which would then be immediately life threatening.”

115 Dr King expressed the view that the general authority was adequate and appropriate to authorise the treatment. He also expressed the opinion that Boz satisfied the criteria of SIRS and that this condition was a life-threatening emergency, although it was not immediately life threatening. He stated in his report that:

The fact that Boz had severe multiple bit wounds (a SIRS condition) and was in shock, constituted a life-threatening emergency. It needed prompt, immediate attention - shock therapy and wound therapy.

116 Dr King also expressed the view that “there is no doubt that this was an emergency.”

117 Parties’ submissions. Dr Hopwood submitted that amputation of the pinna was within the scope of his general authority to repair the damage to Boz. He stated that Rule 5(3) must be read in the light of, and subject to Rule 1(a) and 2(3). Boz' welfare could only be met by amputating his left ear. He had the necessary authority either expressly or implicitly to do so.

118 Ms Stenmark, acting on behalf of Dr Hopwood, submitted that leaving Boz to make a phone call to the owners to request permission to amputate the pinna, would have been a breach of Rules 1(a) and (b) and 2(1) of the Code of Conduct.

119 Ms Stenmark submitted that Dr Hopwood’s actions were in accordance with the Code of Conduct because he was working in an emergency situation. Boz satisfied the criteria of SIRS and, although his life would not have been in immediate danger had Dr Hopwood not amputated the ear, it was an emergency situation. He had a limited time in which to act in the best interests of Boz. For this reason, his actions come within the proviso in Rule 5(3). Furthermore, Dr Hopwood acted in accordance with Rules 1(a) and 2(1) of the Code of Conduct.

120 Dr Hopwood submitted that he was not indifferent to nor did he abuse his privileges as a registered veterinarian (Pillai v MessiterNo 2 (1989) 16 NSWLR 197). There is no evidence that he breached the rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence (Qidwai v Brown (1984) 1 NSWLR 100).

121 The VSIC submitted that even during surgery there was a nurse available to Dr Hopwood who could have made a call to the carers. Alternatively Dr Hopwood could have stopped for 15-30 minutes without a problem. Dr Hopwood’s evidence was not that he could not leave the animal to make the call but that he didn’t need to ring.

122 The VSIC submitted that the word “emergency” must be given its ordinary English meaning unless there is a uniformly understood specialised meaning at law or in the relevant profession. (Herbert Adams P/L v FCT (1932) 47 CLR 222 at 227; D & R Henderson (MFG) P/L v Collector of Customs (1974) 48 ALJR 132 at 134-5; Ashfield MC v Joyce (1978) AC 122 at 134.) There is no such specialised meaning in this case. The VSIC also submitted that the Tribunal should construe the legislation in accordance with an interpretation which would ‘promote the purpose or object underlying the relevant Act (or regulation).’ This ‘purposive approach’ looks for the mischief which the legislation as a whole is intended to cure. (See Kingston v Keprose P/L (1987) 1 NSWLR 404 at 423-4; R v Young (1999) 46 NSWLR 681 at 685-8.)

123 The existence of an emergency provides an exception to the general rule set out in Rule 5(3). The purpose of the exception is to provide for the situation where it is not practicable to comply with the requirements in Rule 5(3) because of the need for urgent action which could not have been foreseen. The VSIC’s submission was that in this case action was only required within 4 to 12 hours. Immediate action was not required.

124 In relation to his common law duties, the VSIC submitted that a veterinary surgeon is required to obtain consent from an owner of an animal to perform any procedure, failing which he or she will be liable to the property of the owner. (Saltoon v Lake (1978) 1 NSWLR 52; Deeps v Cook (1938) 55 WN (NSW) 115.) In order to obtain an effective consent, a practitioner must inform the owner of:

Hart v Herron

Rogers v Whitaker

125 The VSIC further submitted that there is no legal basis for any "implicit authority" for Dr Hopwood to do whatever he saw fit. Even in respect of humans the principle of emergency does not protect a doctor performing an extra procedure, on an unconscious patient believing it convenient or in the patient's best interests but not essential to avoid a second operation (Murray v McMurchy (1949) 2 DLR 442).

126 Findings. It is not in dispute that Dr Hopwood amputated Boz’ ear without express authority to perform that particular procedure. We find that this conduct does not amount to misconduct in a professional respect, nor did it warrant a complaint being made. In those circumstances the correct and preferable decision is to set aside the VSIC’s decision to caution Dr Hopwood and order that he pays the costs of the investigation in relation to this conduct. In substitution for that decision we order that the complaint in relation to this matter be dismissed. Our reasons for these conclusions are set out below.

127 The judgment of Dr Hopwood’s peers, who are practitioners of good repute and competence in the profession, is overwhelmingly that Dr Hopwood did not need to obtain the express permission of the carers to amputate Boz’ ear in the circumstances with which he was faced.

128 We are satisfied that Dr Hopwood made the carers aware of the likely extent of the procedure before the surgery in compliance with Rule 5(3). Dr Hopwood’s evidence was that he told Michael and Tracey that he would perform surgery on the wounds. In this case Dr Hopwood did not know the full extent of the necessary procedures before he operated.

129 Although the consent form that Michael signed did not contain any detailed description of the treatment to be administered, Michael gave permission for “treatment, anaesthetic and surgery to be performed on the animal described.” Dr Hopwood completed the form himself and interpreted it as restricting his authority to the limited care option. The expert evidence strongly supports the conclusion that this authority includes permission to amputate the ear in circumstances where the need for amputation was not apparent until at least one and a half hours into the surgery.

130 There was a realistic assumption on Dr Hopwood’s part that signed permission for surgery gave him authority to do perform the surgery necessary to repair the damage arising from the dog fight. The removal of the pinna promoted Boz’ welfare and was within the scope of the authority.

131 We are also satisfied that Dr Hopwood had authority to amputate the pinna because it was an emergency. Although the expert evidence is mixed on this question, we find that while Boz would not have died if the pinna was not removed at the time, we accept Ms Stenmark’s submissions about the nature of the situation and its classification as an emergency.

132 Because we are satisfied that Dr Hopwood made the carers aware of the likely extent of the procedure before the surgery and that this was an emergency, Dr Hopwood was not required to phone Michael when he realised that he would have to amputate the pinna in order to obtain his express permission to do so.

Charging in excess of the estimated fee without authority
133 Issues

. Was the VSIC justified in being satisfied that Dr Hopwood failed to communicate effectively with the owners in particular by charging in excess of the estimated fee? If so, was a complaint to that effect warranted but not sufficiently serious to warrant its being referred to the Tribunal? If so, was a caution and an order for costs the correct and preferable order to make in relation to this conduct?

134 Legal position. The legal principles relating to this aspect of the complaint are identical to those outlined above at paragraphs 106 to 107. In brief, Rule 5(3) requires that the person in charge of the animal is made aware of the probable cost of the procedure.

135 The expert evidence. Dr Zuber stated that in the situation faced by Dr Hopwood the animal’s interests are best served by continuing the job until it is done and then contacting the owner unless the quote given will be grossly different from the original figure. He added that “I would not feel that a fee that exceeded expectations by 25%, in the circumstances surrounding this event, was sufficient reason for me to abort the process or indeed delay the therapy to the patient.”

136 Dr Retchford’s view was that if, during the course of surgery, a vet discovers extra damage which will mean an increase in the estimated fee, every effort should be made to contact the owner or their agents prior to beginning the surgery. However, in cross-examination he added that the consent form was sufficient to override any requirement to contact the carers in relation to fees as long as Dr Hopwood was not aware of the necessity to amputate, and therefore incur extra fees, prior to the surgery.

137 Dr King said that he believed that a 25% increase in costs was not significant under the circumstances. He commented that “It usually comes down to negotiations and good client relations is the aim.”

138 Parties’ submissions. Dr Hopwood submitted that the estimate of fees to be charged is not a guarantee that that fee will be charged, it is merely an estimate. To have stopped the surgery and called the owner for authority to increase the fees, would have been negligent on his part. Dr Hopwood said that half way through surgery he would not even think about cost, or know what the exact cost was that had been incurred.

139 The VSIC submitted that Dr Hopwood should not have charged any more than the estimate on the quote unless he had interrupted the operation and telephoned the carers for authority to increase the fees.

140 Findings. Our findings are that the VSIC was correct when it found this complaint to be true. Dr Hopwood failed to communicate effectively with the owners by charging in excess of the estimated fee. A complaint to that effect was warranted but not sufficiently serious to warrant its being referred to the Tribunal. We have formed the view that the correct and preferable decision would have been to reprimand Dr Hopwood in relation to this conduct and to order that he pay the costs of the investigation. Consequently we set aside the VSIC’s decision to caution Dr Hopwood and substitute that order for an order reprimanding him for this conduct. We affirm the decision to order that he pay the costs of the investigation. Our reasons for these findings are set out below.

141 Dr Hopwood made the carers aware of the probable cost of the procedure during the course of his consultation with them. Consequently his conduct did not breach Rule 5(3) of the Code of Conduct. However, the “probable cost” increased during the course of the surgery. Based on all the evidence, Dr Hopwood had three options which would have been acceptable in terms of effective communication with the client: he could have interrupted the surgery to ask permission to incur the extra costs; he could have phoned the carers after completion of the surgery to seek their permission to charge the extra costs; or he could have waived the extra costs if he was unable to negotiate an agreement to the increase.

142 Two expert witnesses (Dr Zuber and Dr King) said that a 25% increase in fees, which was not predictable before surgery, was not sufficient to justify interrupting surgery. Dr Retchford’s general view was that if, during the course of surgery, a vet discovers extra damage which will mean an increase in the estimated fee, every effort should be made to contact the owner or their agents prior to beginning the surgery. This answer was qualified to some extent in cross-examination as set out above.

143 We find that it was not necessary for Dr Hopwood to interrupt the surgery to seek authority for the increase in costs, given all the circumstances. While it was not necessary for Dr Hopwood to interrupt the surgery to contact the carers, he should have contacted the carers after surgery and either obtained their authority after the event or waived the fee. Dr Hopwood admits that he did not discuss fees either in his alleged conversation with Michael at midnight, or in his telephone conversation with Ms Anderson the following morning. The first Ms Anderson knew of the increase in fees was when she came to pay the bill. She would not have expected the fees to exceed the estimate by just over $200 without consultation.

144 In addition, Dr Hopwood gave evidence that he usually assumes that restricted care (level 2) means that no extra expenses are to be incurred. If Dr Hopwood was going to charge above the estimate he should have phoned when the extent of surgery was known or charged the estimated amount even though it took longer than expected.

145 The next question is whether, apart from the Code of Conduct, Dr Hopwood is guilty of misconduct in a professional respect in the common law sense of that phrase. The VSIC submitted that charging significantly in excess of a quotation for an operation carried out contrary to the wishes of an owner would be regarded by right minded members of the profession as reprehensible and/or would clearly be likely to bring the profession into disrepute. Dr Hopwood submitted that he did not charge significantly in excess of the quotation and he did have authority from the owner to carry out that operation.

146 We agree with Dr Hopwood’s submissions and find that he has not engaged in misconduct in a professional respect in relation to this aspect of the complaint. Although Dr Hopwood’s conduct does not constitute misconduct in a professional respect, the complaint was warranted because it discloses a failure to communicate effectively with the client.

Inadequate record keeping and failure to communicate effectively on discharge
147 Issue

. The issue in relation to these matters is: was the complaint that Dr Hopwood’s record keeping was inadequate and that he lacked care/communication when discharging Boz untrue or did that conduct warrant no order from the VSIC for any other reason?

148 Legal position. Rule 5(12) of the Code of Conduct states that:

When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation.

149 A veterinary surgeon will be deemed to be guilty of misconduct in a professional respect if the Tribunal finds that there has been a breach of this rule. (See s 22(c) of the Act and Cl 10(2) of the Regulation.)

150 In relation to the responsibilities of a superintendent, Rules 20(1) and 20(2)(a) state that:

(a) ensure that a complete record is made at the time of each veterinary treatment and consultation (including any x-ray film, radiograph or ultrasound image) and that the record is retained for at least 2 years from when it is made;

. Dr Retchford said in his report that “I feel that the NWAEC clinical records lack clinical, medical and communication details that could have exonerated Dr Greg Hopwood.” This comment was made in relation to the authority to amputate the pinna.

152 Dr Gibbons evidence was that a failure to make provision for proper discharge instructions may be a serious dereliction in professional standards if information had not been passed on verbally. He said that in 1998 the hand over would have been verbal and the records may not have been fully completed. He acknowledged that any vet taking over the case after discharge would have had great difficulty learning from the records anything about the treatment at NWAEC apart from the nature of the surgery itself.

153 Dr King reported that Dr Hopwood was obliged to adequately and professionally inform the next attending veterinarian and also obliged to adequately inform the owner/agent of the complications encountered and the future care needed. He also said that any observation relevant to the patient’s health should be recorded. He agreed that the failure to record even the medication dispensed was something to be frowned upon in the profession. He agreed that for emergency care practices it was more important than normal for veterinarians to communicate effectively with each other.

154 Parties’ submissions. The evidence of Dr Hopwood and Dr Hughes was that Dr Hopwood conveyed the relevant information and instructions verbally to Dr Hughes and Dr Hughes subsequently relayed these instructions to Ms Anderson. The applicant submitted that as Dr Hughes’ evidence was not contradicted, the Tribunal should accept it.

155 Dr Hopwood submitted that any breach of Rule 5(12) would not warrant a finding of professional misconduct. According to Dr Hopwood, it cannot be the case that a veterinary surgeon can be guilty of misconduct in a professional respect if he neglects in one case to complete a record of treatment. There must be conduct as referred to in Qidwai v Brown (1984) 1 NSWLR 100 and Pillai v Messiter No 2 (1989) 16 NSWLR 197.)

156 Dr Hopwood conceded that he has certain statutory responsibilities as a superintendent, however no finding of misconduct in a professional respect could be made by the Tribunal in relation to any failure in that regard. Dr Hopwood submitted that if Tribunal finds a breach of rule 5(12) has been made out an appropriate order would be a reprimand rather than a caution.

157 The VSIC submitted that Dr Hopwood failed to record: conversations with the carers; a plan of treatment, medication administered and observations through the night; and discharge instructions and medication, despite the availability of a standard form on which to record such information.

158 The VSIC stated that a breach of Rule 5(12) is more serious in the case of NWAEC because there are numerous practitioners handing over patients consecutively without access to earlier treaters. The system was to refer the animal to the external usual veterinarian as soon as possible with only a copy of the record of treatment.

159 The VSIC submitted that as the superintendent of the hospital Dr Hopwood had the overall responsibility under Rule 20 for the care, control and management of the hospital. As well as his personal duties, he was responsible under Rule 20(2) for ensuring that “a complete record is made at the time of each veterinary treatment consultation.” Although such a failure is not deemed professional misconduct it could amount to professional misconduct in the general (common law) sense. Dr Hopwood did not accept any responsibility under Rule 20 for the lack of any record of treatment or consultations after 1.30 am or for the lack of any written instructions on discharge, claiming that it was Dr Hughes’ responsibility.

160 Findings. We find that the complaint that Dr Hopwood’s record keeping was inadequate and that he lacked care/communication when discharging Boz is true. That conduct warranted the making of a complaint and constituted misconduct in a professional respect. For these reasons we set aside the implied decision of the VSIC to dismiss this aspect of the complaint and substitute for that decision, a decision to caution Dr Hopwood in respect of this conduct and to pay the costs of the investigation. Our reasons for these findings is set out below.

161 Dr Hopwood did not make any clinical notes or other records after 1.30 am. He did not record the consultation he had with Ms Anderson. He did not ensure that adequate information was given to Ms Anderson on discharge. In particular, we accept Ms Anderson’s evidence that Dr Hughes did not say anything about how to care for Boz's wound or any signs to watch out for. Ms Anderson should have been warned about possible side effects which can occur in days to follow.

162 We are satisfied that Dr Hopwood was in breach of Rule 5(12) because he did not keep a detailed record of the treatment of Boz or the consultations he made after 1.30 am. Dr Hopwood’s phone call to Ms Anderson on the morning of 13 September constitutes a "consultation" for the purposes of the Rule 5(12) of the Code of Practice. By breaching this rule Dr Hopwood is deemed to be guilty of misconduct in a professional respect.

163 Dr Hopwood should have made more detailed notes of his observations and treatment after 1.30 am, especially in a case which he described as an emergency. For example there is nothing on the record which gives advice about pain relief, when Boz was taken off the intravenous drip, whether he was eating or drinking, and what medications were prescribed and administered. There may have been difficulties getting Boz to take medication after extensive mouth surgery. Boz’ injuries were severe and he needed aggressive and immediate surgical attention. In this situation the recording of clinical signs, treatment, possible complications and detailed discharge advice are all vitally important.

164 In relation to discharge instruction, Dr Hopwood should have made written notes as well as ensuring that the verbal hand-over was adequate. Where emergency cases are treated and then immediately discharged, this information should be forwarded to the referring vet so they can assume care of the animal.

165 Written discharge instructions should be provided for clients especially when those discharging are not those who did the work. No written instructions were given to Ms Anderson on discharge. Dr Hughes says he gave verbal instructions but no written record of what was said eg basis for discharge, medications to be administered. Dr Hopwood said that his common practice is not to fill out the discharge form. Although Dr Hopwood was not the discharging vet, it was nevertheless his responsibility to keep a detailed record of the treatment and consultations so that the owners as well as the veterinary surgeon who was next attending to an animal would have all the relevant information at their disposal.

166 As Superintendent of the NWEAC it is Dr Hopwood’s responsibility to ensure that all veterinarians within the practice, including himself and Dr Hughes, record every consultation and treatment. Dr Hopwood thought Dr Hughes should have written the records up after 9am. Dr Hopwood, as Superintendent, has the role of ensuring all veterinarians write up complete records of consultations. This is a very important role and one that Dr Hopwood still does not appear to acknowledge.

167 We are also satisfied that as superintendent of the hospital, he did not ensure that a complete record is made at the time of each veterinary treatment and consultation.

Costs

168 The VSIC submitted that Dr Hopwood should pay its costs in relation to the proceedings before the Tribunal.

169 Section 88 of the ADT Act, which allows the Tribunal to award costs only if it is satisfied that there are special circumstances warranting an award of costs, is subject to any other Act or law. Mr Burchett, counsel for the VSIC, submitted that another Act or law, in this case, is s 32(1)(f) of the Act which provides that:

(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.

170 Given our reasoning set out above, that s 32 does not apply to cases where the Tribunal is reviewing an order of the VSIC, we do not have power to make the costs order requested.

171 We do have power to make a costs order pursuant to s 88 of the ADT Act. If either party wishes to submit that we should do so, they should file written submissions to that effect within 7 days of this decision being handed down.

Proposed orders

172 We note that the Tribunal agreed at the end of the hearing to make proposed orders and to allow each party to advise the Registrar within 7 days of the date of the decision whether they wish to make submissions in relation to those proposed orders. If neither party contacts the Registrar within that time, the proposed orders will come into effect as final orders at 5 pm seven days from the date of this decision.

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Citations

Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44

Most Recent Citation

Hopwood v Veterinary Surgeons Investigating Committee (No.2) [2002] NSWADT 176

Cases Citing This Decision

4

Veterinary Surgeons Investigating Committee v Hopwood [GD] [2003] NSWADTAP 11

Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT 248

Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191

Cases Cited

15

Statutory Material Cited

2

Veterinary Surgeons Investigating Committee v Gelderman [2000] NSWADT 117

Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98

McDonald v Director-General of Social Security [1984] FCA 59

CITATION:	Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44 revised - 08/04/2002
DIVISION:	General Division
PARTIES:	APPLICANT Greg Hopwood RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	003066
HEARING DATES:	23/04/2001, 24/04/2001, 10/08/2001
SUBMISSIONS CLOSED:	12/21/2001
DATE OF DECISION:	04/04/2002
BEFORE:	Hennessy N (Deputy President); Thompson R - Member; Mayo-Ramsay R - Member
APPLICATION:	Veterinary surgeon - review of orders of Veterinary Surgeons Investigating Committee - Veterinary Surgeons Act - veterinary surgeon - review of orders of Veterinary Surgeons Investigating Committee
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Gelderman [2000] NSWADT 117 Veterinary Surgeons Investigating Committee -v- Lloyd [2000] NSWADT 98 McDonald v Director General of Social Security (1984) 1 FCR 354 Briginshaw v Briginshaw (1938) 69 CLR 336 McCaughey v Stamp Duties Commissioner (1945) 45 SR (NSW) 192 Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 Re Becker & Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 Aavelaid v NSW Dental Board, (unreported, NSWCA, 16/10/98, BC9805424) NSW Bar Association v Cummins (2001) NSWCA 284 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Hoile v Medical Board of South Australia (161) 104 CLR 157 Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee (1966) 1 QB 1 Dad v General Dental Council (2000) 1 WLR 1538 Khalil v Bray (1977) 1 NSWLR 256 Buttsworth v Walton, unreported, NSWCA, 19/12/91 Richter v Walton, unreported, NSWCA, 15/7/93 Herbert Adams P/L v FCT (1932) 47 CLR 222 D & R Henderson (MFG) P/L v Collector of Customs (1974) 48 ALJR 132 Kingston v Keprose P/L (1987) 1 NSWLR 404 R v Young (1999) 46 NSWLR 681 Saltoon v Lake (1978) 1 NSWLR 52 Deeps v Cook (1938) 55 WN (NSW) 115 Murray v McMurchy (1949) 2 DLR 442
REPRESENTATION:	APPLICANT A Stenmark, barrister RESPONDENT S Burchett, barrister
ORDERS:	Proposed orders: (1) In relation to authority to amputate the pinna, the VSIC’s order is set aside. In substitution for that order, we order that the complaint in relation to this matter be dismissed; (2) In relation to charging in excess of the estimated fee, the VSIC’s order is set aside. In substitution for that order, we order that Dr Hopwood be reprimanded for that conduct; (3) In relation to record keeping and discharge instructions, the VSIC’s order is set aside. In substitution for that order, we order that Dr Hopwood be cautioned for that conduct; (4) The decision of the VSIC to order Dr Hopwood to pay $1,417.00 being the costs of, or incidental to, investigating the complaint is affirmed.