LLoyd v Veterinary Surgeons Investigating Committe (No 3) (GD)

[2006] NSWADTAP 21

Appeal Panel - Internal

CITATION:	LLoyd v Veterinary Surgeons Investigating Committe (No 3) (GD) [2006] NSWADTAP 21 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	059082
HEARING DATES:	4/04/2006
SUBMISSIONS CLOSED:	04/04/2006
DATE OF DECISION:	05/16/2006
BEFORE:	Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Carter T - Non Judicial Member
CATCHWORDS:	penalty
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	40004, 40005 and 40015 of 1998
DATE OF DECISION UNDER APPEAL:	09/22/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Burton v Anderson, Unreported, Court of Appeal, NSW, CA 40030/92, 28 October 1994 Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Lloyd v Veterinary Surgeons Investigating Committee (GD) [2005] NSWADTAP 2 Lloyd v Veterinary Surgeons Investigating Committee (No 2) (GD) [2005] NSWADTAP 15 Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208
REPRESENTATION:	APPELLANT B Green, solicitor RESPONDENT M Wade, solicitor
ORDERS:	1. The appeal is allowed; 2. Orders 1 and 2 of the Tribunal made on 22 September 2004 are set aside; 3. No order as to the costs of the rehearing of the appeal or, subject to paragraph [89] of these reasons, as to the costs of the first hearing; 4. The parties are to comply with the directions contained in paragraphs [84], [85] and [89] of these reasons

The background to this decision

1 This is the second hearing by this Appeal Panel of an appeal by Dr Ronald George Lloyd, a registered veterinary surgeon, against disciplinary orders made against him under s 32 of the Veterinary Surgeons Act 1986 (‘the VS Act’) by a Veterinary Disciplinary Panel of the Tribunal. These orders were made in a decision dated 22 September 2004 (Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208 – hereafter ‘the penalty decision’).

2 Following the first hearing of Dr Lloyd’s appeal, which took place on 6 December 2004, we dismissed the appeal. We did so in a decision dated 10 January 2005 (Lloyd v Veterinary Surgeons Investigating Committee (GD) [2005] NSWADTAP 2 – hereafter ‘the penalty appeal decision’).

3 Our reasons for so doing stemmed from two propositions, neither of which was contested at the hearing. These were (1) that Dr Lloyd’s appeal, while instituted under s 34(1) of the VS Act in the form that it then took, was subject to the provisions of ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’); and (2) that under s 113(2), as interpreted in a series of Appeal Panel decisions, an appellant had first to establish an error of law in the judgment under appeal before being permitted to seek leave for the appeal to extend to the merits. We held that Dr Lloyd had failed to establish an error of law in the penalty decision and that his appeal must therefore fail.

4 In a second decision, delivered on 20 April 2005 ((Lloyd v Veterinary Surgeons Investigating Committee (No 2) (GD) [2005] NSWADTAP 15), we held that Dr Lloyd should pay the costs of the Veterinary Surgeons Investigating Committee (‘the Committee’) in the appeal.

5 Dr Lloyd appealed successfully to the Court of Appeal against the penalty appeal decision. In separate judgments handed down on 21 December 2005 (Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456), the Court, constituted by Spigelman CJ, Handley and Tobias JJA allowed the appeal and set aside this decision.

6 In the opinion of Spigelman CJ (at [2] – [13]) and Handley JA (at [19] – [22]), the first of the two propositions on which we based the penalty appeal decision was incorrect. The true position was instead that the appeal was governed by s 34(1) of the VS Act, independently of ss 112 and 113 of the ADT Act. In the opinion of Tobias JA (at [65] – [70]), the first proposition was correct, but at [37] – [64] he held, with the concurrence of Spigelman CJ (at [14]), that the second proposition was incorrect.

7 The net effect of these rulings is that, contrary to what we had believed to represent the law, Dr Lloyd had and still has a ‘general’ right of appeal under s 34(1) of the VS Act (see Spigelman CJ at [2]; Handley JA at [20]), free of any requirement under s 113(2) of the ADT Act to obtain leave for the appeal to extend to the merits. It is ‘an unrestricted right of appeal, including on the merits’ (see Spigelman CJ at [8]).

8 Section 34 of the VS Act was repealed as from 1 January 2004. Appeals now lie direct to the Supreme Court from orders of the Tribunal under s 32 of the VS Act. But since the present appeal continues to be governed by the terms of s 34(1), in a version enacted in 1997, it is appropriate to quote its terms:-

Any of the following persons may appeal against an order made under section 32 to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 :-

(a) the registered veterinary surgeon or former registered veterinary surgeon against whom the order was made,

(b) the person who made the original complaint, but only:

(i) on a point of law; or

(ii) with respect to any penalty imposed.

9 Neither Spigelman CJ nor Handley JA stated explicitly whether s 34(1) provided scope for Dr Lloyd to seek to bring fresh evidence before the Appeal Panel. But the Chief Justice (with whom Handley JA expressed his agreement at [19]) indicated, at [5] and [8], that Parliament’s intention in enacting the relevant version of s 34 in 1997 was to transfer to an Appeal Panel of this Tribunal the same appellate jurisdiction as had previously resided in the Supreme Court. In appeals by veterinary surgeons under the previous version of s 34(1)(a) (which provided for appeals from decisions of the Veterinary Disciplinary Tribunal to the Supreme Court), the Court could take account of fresh evidence if it was ‘satisfied that there were good reasons for the evidence not having been given on the hearing before the Disciplinary Tribunal’.

10 The orders of the majority in the Court of Appeal (Spigelman CJ and Handley JA) were set out in the judgment of Handley JA at [24]. For present purposes, Orders (1), (2), (3) and (5) are relevant. They are as follows:-

(1) Appeal allowed.

(2) Set aside the decision of the Appeal Panel of 10 January 2005.

(3) In lieu thereof, remit the proceedings in ADT Appeal Panel No 049044 of 2004 for rehearing in conformity with decision of this Court.

(5) Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings.

11 The present judgment sets out our decision on Dr Lloyd’s appeal, following its rehearing as ordered by the Court of Appeal. This took place on 4 April 2006.

The penalty decision

12 The Tribunal’s power to make disciplinary orders is conferred by s 32 of the VS Act, which provides:

32 Tribunal’s powers when complaint proved

(1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:

(a) an order reprimanding or cautioning the veterinary surgeon,

(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,

(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,

(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,

(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,

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

(2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1) (b) or (c) if the Tribunal is of the opinion that:

(a) because the matter of the complaint is of a trivial nature, or

(b) because of the circumstances in which that matter occurred, or

(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.

(3) If the Tribunal considers that the matter of a complaint against a registered veterinary surgeon has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary surgeon was sufficiently unacceptable to warrant the making of the complaint, the Tribunal may make an order against the veterinary surgeon under subsection (1) (a) or (f), or both.

(4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person’s name to the register.

(5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon.

(6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.

13 The principal basis for the Tribunal’s disciplinary orders against Dr Lloyd comprised several findings of misconduct in a professional respect and a single finding of unacceptable professional conduct. These findings are summarised in the penalty decision at [7] and described more fully in an appendix to that decision. They were the outcome of the Tribunal’s inquiries, held between 1999 and 2003, into Dr Lloyd’s handling of cases involving three animals – ‘Chisel’ (a dog), ‘Gypsy’ (a horse) and ‘Remus’ (a dog) – that had been entrusted to him for veterinary care and treatment at different times during the years 1995 to 1997. These inquiries were instituted pursuant to complaints filed by the Committee. Initially the Tribunal had made a number of further findings of misconduct by Dr Lloyd, but these were set aside in decisions given by this Appeal Panel in October 2003.

14 In addition, there was evidence before the Tribunal that, since his registration as a veterinary surgeon on 7 March 1973, Dr Lloyd had been the subject of five disciplinary orders by the Veterinary Surgeons Board (hereafter ‘the Board’), which in all but one case were based on findings of misconduct in a professional respect. The Tribunal outlined various aspects of these orders in the penalty decision at [11 – 21]. The first incident, which gave rise to an order suspending Dr Lloyd for 90 days, occurred in 1974. The remaining four incidents occurred in December 1988, January 1989, April 1992 and April 2001. With reference to each of them, the Board administered a reprimand or a caution and ordered that he pay an amount by way of costs. With reference to the third of them, it ordered also that he undergo supervision for six months by an inspector, receive advice from a mentor and attend a series of lectures. No details of the first three incidents were available to the Tribunal. Some particulars of the last two, involving respectively Dr Lloyd’s treatment of a cat named ‘Min Mae’ and a dog named ‘Penny’, appear below.

15 The penalty decision contains at [26] an outline of all the findings on which the Tribunal’s disciplinary orders were based. In this outline, Dr Lloyd’s disciplinary record was ‘organised’ under the following four ‘themes’: professional procedures; clinical records; supply of substances, drugs and Schedule 4 poisons; and personal conduct. The outline is as follows:-

Professional Procedures

Failure to provide any or any proper supportive management to the cat whilst it was debilitated and with a subnormal body temperature post washing with Malathion: Min Mae 1992, Finding (i)

Left cat unattended almost four hours in a five hour period at the surgery while it was still damp: Min Mae 1992, Finding (ii)

Discharged the cat from care while it was in a critical condition: Min Mae 1992, Finding (iii)

That he did prescribe and/or administer to the cat two organo-phosphates being Malathion and Tiguvon within a 24 hour period on the same date: Min Mae 1992, Finding (vi)

[Incompetent clinical management: Rocky, 1992 (This matter noted in the Min Mae decision). As this matter was not included in the disciplinary history tendered by the Committee, we have not given it any weight.]

Failure to carry out professional procedures:

supply of drug without examination and without having previously used drug: Gypsy 1995-6, Finding 1(e)
Failure to carry out professional procedures:
instructing unqualified person to administer drug without examining horse, taking any steps other than talking to the horse’s owner to establish a diagnosis, without having previously used the drug other than in connection with this horse, not in any way supervising the injection of a Schedule 4 restricted drug: Gypsy 1995-6, Finding 1(i)
Failure to deal with possibilities other than giardia in initial consultations: Gypsy 1995-6, Finding 1(l)

Failure to carry out professional procedures as follows: Remus 1997, Finding 1(a)

1. failure to establish diagnosis

2. not record length of time of suffering

3. failure to discuss options

4. failure to take actions

5. failure to warn

6. failure to offer options

7. failure to make sufficient records

Early release of dog from hospital care after surgery: Chisel 1996, Finding 1(a)

Failure to intubate female dog undergoing desexing procedure: Penny 2001

Failure to adequately recognise the possibility of aspiration pneumonia before discharging dog into the care of the owner and failure to take radiographs after the vomiting was observed: Penny 2001

Failure to fully inform owner of possibility of complications and to offer owner the option of leaving dog in hospital overnight: Penny 2001

Failure to be mindful of the possibility that the owner might need to contact him overnight (mobile phone switched off): Penny 2001

Clinical Records

Failure to keep proper and adequate records in relation to his clinical management of patients (noted in 1994 decision in Min Mae case as findings in two earlier matters that had given rise to reprimands)

Omission of 13 particulars from the clinical record: Chisel 1996, Finding 1(e)

Failure to record initial telephone consultation: Gypsy 1995-6, Finding 1(a)

Failure to make detailed record of consultation on 30 December: Gypsy 1995-6, Finding 1(d)

Failure to keep detailed record on 6 January: Gypsy 1995-6, Finding 1(g)

Failure to keep detailed record on 8 January: Gypsy 1995-6, Finding 1(h)

Failure to ensure detailed record of 9 January to 12 January: Gypsy 1995-6, Finding 1(k)

Failure to make sufficient notes: Remus 1997, Finding 1(b) and 1(a) point 7

Supply of Substances, Drugs and Schedule 4 Poisons

Administered an inappropriate veterinary chemical, Tiguvon, to the cat which chemical was not registered for use on a cat under the Stock Medicines Act 1989: Min Mae 1992, Finding (iv)

Dispensed the veterinary chemical Tiguvon on the cat from an unlabelled container in breach of the Stock Medicines Act 1989: Min Mae 1992, Finding (v)

Supply of Schedule 4 poison without instructions: Gypsy 1995-6, Finding 1(b)

Failure to observe legislation relating to handling restricted drugs: Gypsy 1995-6, Finding 1(c)

Supply of substance not correctly labelled, 30 December: Gypsy 1995-6, Finding 1(f)

Personal Conduct

Failure to conduct yourself in accordance with professional standards

threat to refer unpaid account of complainant to the Credit Reference Bureau: Remus 1997, Finding 2.

16 At the penalty hearing, the Committee proposed (with Dr Lloyd’s agreement) that he should be reprimanded and that a regime ‘of an educative and inspectorial kind’ (to quote the Tribunal at [29]) should be imposed. The Tribunal described this regime as follows, at [30]:-

30. One condition proposed was that Dr Lloyd be required to submit to audits of his veterinary practice to be conducted by another independent registered veterinary surgeon. Another was that he be required to submit to Dr David Evans, or if he is unavailable another Board member nominated by the Board, an essay about the professional obligations of veterinary surgeons in relation to drugs and stock medicines.

17 The Tribunal, however, rejected this proposal as being insufficient for a senior practitioner whose behaviour over a number of years had displayed ‘a general indifference to standards with which he does not agree’ (see [47]).

18 The Tribunal took account of a conclusion reached by an inspector, Dr Glenn Lynch, following an inspection of Dr Lloyd’s veterinary hospital on 5 March 2004. This was to the effect that Dr Lloyd had installed computerised systems that would, if properly used, improve his record keeping. But the Tribunal observed that his principal transgressions had been in the context of clinical and related matters (see [50 – 51]). Having noted that these transgressions spanned a significant period of time (some nine years) and that the most recent of them, relating to the dog ‘Penny’, occurred as late as 2001, it made the determination, at [55], that he was not presently fit to continue in practice on an unrestricted basis. It expressed the view, at [56], that a ‘fundamental contributor’ to his continued misconduct was the fact that he practised alone and had done so for a number of years.

19 The Tribunal’s conclusion, at [68], was that ‘a significant period of suspension’ should be imposed on Dr Lloyd and that ‘strict controls should be placed on his re-entry to practice’, having the effect that he should not be permitted to practise alone ‘for some time to come’. It stated that while it might be difficult for a veterinary surgeon of his age (in his 50’s) to obtain re-employment, such a restriction would not, in its opinion, be ‘tantamount to deregistration’.

20 The disciplinary orders made by the Tribunal in the penalty decision were in the following terms:-

The Veterinary Disciplinary Panel orders pursuant to s 32 of the Veterinary Surgeons Act 1986 that:

- As to the findings of guilt of professional misconduct:

1. Dr Ronald George Lloyd be suspended from practice for 9 months commencing on a date specified by the Veterinary Surgeons Board, being a date not later than 1 January 2005.

2. The following conditions to be imposed on Dr Lloyd’s registration as a veterinary surgeon:

(i) That he only be permitted to practise as an employee of a veterinary surgeon approved by the Board in a practice where there is at least two veterinary surgeons (other than Dr Lloyd) practising on a full-time basis. (The employer if full-time may be counted for this purpose.) This condition is to remain in force for not less than 15 months after his return to practice.

(ii) That he only be permitted to return to practice as a sole practitioner if the Veterinary Surgeons Board so approves after having had regard to such matters as it thinks fit, including a report from the approved employing veterinary surgeon.

(iii) That he be required to undertake continuing professional education in programs designated by the Board of ten days per annum over the period of his suspension and the period of supervised employment.

- As to the finding of guilt of unacceptable professional conduct:

3. Dr Lloyd be reprimanded.

- and further orders that:

4. Dr Lloyd pay the costs of the Veterinary Surgeons Investigating Committee as agreed.

As required by the Act, the Registrar of the Tribunal is to advise the Registrar of the Board of these orders within 21 days of the date of their publication.

21 Dr Lloyd’s appeal, in the form in which we are now dealing with it, is confined to Orders 1 and 2. They have been the subject of stay orders since they were made.

The penalty appeal decision

22 As indicated above at [3], a proposition underlying our conclusions in the penalty appeal decision was that the penalty decision could not be disturbed unless one or more errors of law in it could be established.

23 In the penalty appeal decision, we rejected submissions on Dr Lloyd’s behalf to the effect that the Tribunal had erred in law in three respects. These were (a) in its treatment of the significance of the lapse of time, and of the change in his circumstances, between the period of his relevant misconduct (1995 to 1997) and the penalty hearing (2004) (see [23 – 44]); (b) in making disciplinary orders that were punitive, not protective of the public interest (see [47 – 65); and (c) in misinterpreting s 32(2) of the VS Act (see [66 – 73]).

24 In consequence of our rejection of the first of these submissions, we held, at [43 – 44] and [54], that the Tribunal’s conclusion that Dr Lloyd was not fit for unrestricted practice at the time of the penalty hearing was not open to challenge in the appeal. We agreed with a submission, made on behalf of the Committee (see [34]), that it was not sufficient for Dr Lloyd ‘to persuade us that on the balance of evidence a different conclusion regarding [his] current fitness for practice was or might be preferable’. That issue was not, in our view, a relevant matter for determination.

25 Since no other errors of law were alleged, or were discernible on our own view of the penalty decision, we dismissed Dr Lloyd’s appeal and upheld, with one minor variation, the disciplinary orders made by the Tribunal.

The matters raised in the rehearing of the appeal

26 The disciplinary orders proposed by the parties. At the rehearing of the appeal, as indeed at the penalty hearing, there was a measure of agreement between the Committee and Dr Lloyd as to what disciplinary orders were appropriate.

27 In the written and oral submissions advanced by Ms Green on behalf of Dr Lloyd, it was argued that Dr Lloyd’s fitness to practise should be assessed as at the present day, not at the time when the Tribunal made the adverse disciplinary findings to which these proceedings relate.

28 She argued further that, whatever might have been the position in 2004, when the penalty hearing took place, it was now evident that Dr Lloyd was fit to engage in practice as a veterinary surgeon without being placed under any form of supervision.

29 It followed from these two propositions, she said, that Orders 1 and 2 of the Tribunal’s disciplinary orders, based as they were on a finding of lack of fitness to practise on an unrestricted basis, should be set aside.

30 Mr Wade, appearing for the Committee, did not oppose these arguments. Furthermore, in his written submission, he put forward a proposed disciplinary order in substitution for Orders 1 and 2 of the Tribunal. Ms Green indicated that Dr Lloyd would not object to such an order being made.

31 The proposed disciplinary order, as amended in one minor respect at the hearing, was in the following terms:-

Dr Lloyd undertake at his own expense courses or other activities of continuing professional education designated by the Board in consultation with Dr Lloyd, which may include attending practical clinical sessions at the University of Sydney Veterinary Hospital and a communication course. Such courses or other activities to be a minimum of an average of 2 days per month for a period of 12 months. At least 14 days’ notice is to be given to Dr Lloyd of such course or other activity.

32 Ms Green and Mr Wade also advised us that the parties had agreed that there should be no costs order in these appeal proceedings.

33 The chief basis for what was effectively a joint proposal for a disciplinary order of much less severity than Orders 1 and 2 of the Tribunal was a significant quantity of evidence in writing suggesting that Dr Lloyd presently maintained, and had for some time maintained, entirely satisfactory standards of veterinary practice. A topic also addressed in the evidence was the difficulty that Dr Lloyd would most probably encounter in obtaining employment if, in accordance with the Tribunal’s disciplinary orders, he were suspended from practice for nine months, then only permitted to return to it if he was employed for at least fifteen months by a practice in which there were at least two other veterinary surgeons practising on a full-time basis. In addition, the evidence referred to the adverse consequences that these orders were likely to have for staff employed by Dr Lloyd.

34 This evidence included some of the material that been put before the Tribunal at the penalty hearing. It also included material that had been put before the Court of Appeal and further material that post-dated the Court of Appeal hearing. It was tendered by Ms Green, without objection by Mr Wade. None of the makers of the statements and affidavits comprising it was required for cross-examination.

35 Dr Lloyd’s disciplinary record. Before outlining this evidence, it is useful to deal with some broad submissions put to us regarding the overall pattern of Dr Lloyd’s disciplinary record (summarised above at [13 – 15]) since he was admitted in 1973.

36 Ms Green pointed out that after the 90-day suspension imposed on him in 1974, he practised for a further 14 years without any disciplinary problems. There were then two minor incidents in 1988 and 1989. The more serious matters of Min Mae (1992), Gypsy (1995-96), Chisel (1996) and Remus (1997) all occurred, she said, during a period when he was under very great pressure.

37 The factors giving rise to this pressure were explained to us during the first hearing of this appeal. In the penalty appeal decision at [28], we outlined them as follows:-

… during the 1990s, Dr Lloyd’s professional capacities were seriously impaired by personal problems (notably, a break-up of his marriage) and financial problems. The financial problems were chiefly attributable to an ill-advised substantial investment in a hotel, the high interest rates of the early 1990s and to financial claims made by his wife. He ran three practices at the time, which caused him to work unduly long hours and to suffer considerable stress.

38 A further consequence of Dr Lloyd’s financial difficulties at this time, not noted in this summary, was that he was compelled to sell the family home.

39 Ms Green observed that none of these factors had been present in Dr Lloyd’s professional life since the late 1990s. The issues arising between him and his then wife had been resolved, he was no longer in financial difficulties and he now only had one veterinary practice.

40 With regard to the incident involving Penny in 2001, Ms Green argued that the principal issue raised was whether intubation was necessary when desexing a dog. Dr Lloyd believed that it a matter of choice for the surgeon, but the Board held otherwise. Dr Lloyd had then acknowledged, she said, that his former belief was erroneous.

41 While not agreeing with all aspects of Ms Green’s submissions on these matters, Mr Wade raised no objection to her claim that the most important failures by Dr Lloyd to abide by proper professional standards occurred during a period when he was subject to serious personal pressures that no longer affect him.

42 Reports by inspectors on Dr Lloyd’s veterinary hospital. An important component of the evidence relied upon by Ms Green to show that the standard of Dr Lloyd’s professional practices had improved very greatly since the incidents of 1995-97 was a series of six reports relating to his hospital at Gill Avenue, Liverpool, and to his own conduct as a practitioner. These reports were prepared by qualified inspectors whom the Board had appointed and who in each case carried out an inspection of the hospital.

43 The first of these six inspections was conducted on 4 March 2004 by Dr R James Driver. Dr Driver was the mentor appointed by the Board following its investigation of the ‘Min Mae’ incident (see [14] above). He also testified on Dr Lloyd’s behalf in the Tribunal proceedings against Dr Lloyd. Having declared himself to be well placed to comment on the changes instituted by Dr Lloyd over some 12 years, Dr Driver stated as follows in his report:-

Professional criticism resulting from this litigation by [the Committee] has led Dr Lloyd to continue to re-evaluate his attitude, his personal procedures and his hospital’s performance.

Consequently this hospital inspection showed some areas of over compensation, such as record keeping and the establishment of hospital protocols for his employees. While generally the hospital is of a standard with those of his peers in general Veterinary practice.

44 The second inspection, conducted on 5 March 2004, was the basis of the report by Dr Glenn Lynch to which we have already referred. In the penalty appeal decision at [30], we outlined Dr Lynch’s conclusions as follows:-

Dr Glenn Lynch, an inspector appointed by the Committee, visited Dr Lloyd’s surgery in March 2004 and in his report graded it as ‘Very Good’ (there being only one higher grade available) in the areas of facilities, equipment, hygiene and records management. In particular, Dr Lynch reported that in relation to record-keeping, which was computerised, Dr Lloyd had ‘obviously initiated many new procedures over the last few years’, that this was due to the lessons that he had learned through the disciplinary proceedings against him and that he was ‘now committed to these recording processes’.

45 The remaining four inspections were conducted by Dr Ian Nielsen. They occurred on 8 November 2005, 16 December 2005, 8 February 2006 and 15 March 2006.

46 Dr Nielsen’s report on his inspection of 8 November 2005 contained observations under the following headings: clinical overview, facilities, equipment, record keeping, storage, communication, continuing professional development/education, staff training, and ‘postop care and communication’. The report contained no negative comment under any of these headings. Most of the audit was done through an examination of the premises and questioning of Dr Lloyd and his staff. Dr Nielsen indicated that at the next audit he would examine more thoroughly ‘the stock take and drug register regarding s 8 drugs, the log entries for surgery etc’ and the ‘ease’ with which Dr Lloyd used his computer records and two software programs (‘Vetstream’ and ‘Ezevet’) providing an ‘academic text source’. The report concluded as follows:-

As a first observation, I was impressed by the quality, standard and professionalism of the Gill Ave Veterinary Clinic and of the nursing and lay staff. This hospital appears to be offering its clients an excellent local service.

47 During the inspection on 16 December 2005, Dr Nielsen paid particular attention to ‘the current registries and the tally with the book numbers and the drug levels’, to Dr Lloyd’s ability to navigate ‘Vetstream’ and to the maintenance of various licences and logs for equipment. He discussed referral policy with Dr Lloyd and inspected the case notes for a recent referral. With regard to all these matters, he stated in his report that there were ‘no negative observations’. He also commented that ‘the staff appeared efficient and the premises were tidy, odourless and well appointed’.

48 On 8 February 2006, as stated in his report, Dr Nielsen conducted ‘another walk through examination of the full facilities’. He discussed the management of patients in clinic and of referrals, and he rechecked logs and drug registers, which he found to be ‘in order’. He also reviewed a ‘difficult fracture repair’. He was again ‘impressed with the standard of care and of the state of the premises’.

49 At his fourth and final inspection, on 15 March 2006, Dr Nielsen, by prior arrangement, sat in on an ovaro-hysterectomy conducted on a small dog. Unusually, a ‘stormy anaesthetic’ was encountered, which had the advantage that he could observe Dr Lloyd’s response to a surgical complication. He said in his report that between Dr Lloyd and the surgical nurse there was ‘a smooth confidence’ and that ‘what could have been difficult, was completed with little fuss and impressive professional skill’. Dr Nielsen added that once more he discussed referrals with Dr Lloyd and he found the premises to be well managed. He indicated that Dr Lloyd had been ‘most cooperative with the audit procedure’ and summed up his findings as follows:-

I would strongly endorse Dr Lloyd being a fully registered principal of a veterinary practice offering the community a professional service of high calibre.

50 Statements regarding Dr Lloyd’s hospital by practitioners working in it as locums. The evidence tendered by Ms Green included statements by two veterinary surgeons who at different times had worked as locums at Dr Lloyd’s hospital.

51 Dr Neil Cooper, a registered veterinary surgeon of over 30 years’ standing, said in a statement dated 29 March 2004 that, based on his experience as an occasional weekend locum, he considered that the record keeping at Dr Lloyd’s hospital was ‘now of a high standard and exceeds that found in many other places’. He added that Dr Lloyd had ‘made considerable investment’ not only in purchasing his computerised system, ‘but also in training his staff to utilise the system, which will benefit both patients, owners and clinic staff’.

52 Dr Donna Schofield, a registered veterinary surgeon of about 22 years’ standing, said in a statement dated 31 March 2006 that ‘over the years’ she had worked at many veterinary clinics and that she was currently a lecturer in veterinary nursing at a TAFE college and the owner of a part-time veterinary business. During the preceding 18 months, she had worked as a locum intermittently at Dr Lloyd’s hospital. She described it as ‘on a par or better than most of the clinics’ in which she had worked and said that she would be ‘happy to continue to work as his locum for the foreseeable future’. She had observed that it adhered to ‘recognised standards’ in such matters as recording of anaesthetics and dangerous drugs, discarding of drugs, maintaining of a separate isolation area and labelling x-rays. She described its record keeping as ‘excellent’. She stated also that staff facilities were good, there was good air conditioning and there were ‘large runs for exercising the dogs’. She considered that the nursing staff were of good quality and well managed, that the hospital ran efficiently and that the animal patients were well cared for.

53 Professional education courses in which Dr Lloyd had enrolled. In Dr Lynch’s report following his inspection on 5 March 2004 and in an affidavit sworn by Dr Lloyd on 23 November 2005, details were given of a significant number of courses and seminars on veterinary practice which Dr Lloyd had attended at his own expense, or for which he had obtained the course notes, since February 2003. Most of these were held at the Postgraduate Foundation in Veterinary Science at the University of Sydney. In a statement dated 7 March 2006, Dr Lloyd identified four further courses that he proposed to attend during 2006.

54 Training of Dr Lloyd’s support staff. In his affidavit of 23 November 2005 and his statement of 7 March 2006, Dr Lloyd said that he had paid for all his support staff to undertake TAFE training courses in veterinary nursing. In a statement dated 31 March 2006, Ms Lisa Wright said that she was the veterinary nurse manager in Dr Lloyd’s hospital, that she had two more subjects to do in order to complete her TAFE training and that he had permitted her to live in an apartment above the hospital. Dr Schofield referred in her statement to the fact that ‘a nurse lived upstairs’ who could ‘attend to the patients appropriately’. She said also that the nursing staff was well managed by Ms Wright.

55 Maintenance of contact with other veterinary surgeons. In the penalty decision at [56 – 59], the Tribunal expressed the opinion that one of the factors contributing to Dr Lloyd’s misconduct was that due to having practised on his own for many years he had been isolated to a significant degree from competent practitioners. This opinion relied in part on comments made by Dr Driver to the Board in 1995, based on his experience as Dr Lloyd’s mentor. It was one of the matters underlying the Tribunal’s insistence that, for a period of at least fifteen months following the nine-month period of suspension provided for in its disciplinary orders, Dr Lloyd should only be permitted to work as a veterinary surgeon in a practice where there were at least two principals practising full-time (see [20] above). The Tribunal, in the penalty decision at [68], stressed the importance of his working ‘in a relevant collegiate environment’, where he could ‘acquaint himself more closely with current standards of practice’.

56 This matter was briefly addressed in Dr Schofield’s statement. She said that in her experience veterinary surgeons use computer programs, educational course work and conferences to keep in touch with each other, as they were relatively isolated in practice. She added that Dr Lloyd could ring her when he had a query about an animal that she had treated or when he wished to have her opinion on a veterinary matter. In his own statement dated 7 March 2006, Dr Lloyd said that he was fortunate to be able to liaise with her at all reasonable times in order to discuss any case that caused him concern, and that he found her input into his practice ‘very useful’.

57 Difficulties that Dr Lloyd would face in obtaining re-employment after suspension. As indicated above at [19], the Tribunal considered that the difficulties that Dr Lloyd, who was then 57 years old, might encounter in obtaining employment for at least fifteen months in a practice where there were at least two principals practising full-time were not so severe that an order of suspension should be regarded as ‘tantamount to deregistration’. In the penalty appeal decision, we held, at [61], that the Tribunal had sufficiently taken account of this consideration. In the Court of Appeal, however, Tobias JA (with the agreement of Spigelman CJ at [1]) held at [71 – 87] that the Tribunal had not sufficiently forewarned Dr Lloyd that it contemplated ordering that the practice to which he returned after suspension would have to have at least two full-time practitioners as principals (i.e. in addition to Dr Lloyd). Tobias JA held that this constituted a denial of procedural fairness to Dr Lloyd, adding (at [88]) that a submission to this effect had not been made to us at the first hearing of the appeal.

58 The evidence now put to us on this issue included a statement by Dr Schofield that she doubted whether there were many veterinary hospitals in Sydney employing three veterinary surgeons on a full-time basis. In addition, in an affidavit dated 23 November 2005, Dr Geoffrey Gibbons, who is a senior veterinary surgeon of many years’ standing, expressed the opinion that, having regard to Dr Lloyd’s age, the Tribunal’s orders ‘would just about eliminate him from a selection list of potential candidates’ for employment in a practice of the type required. Since practices of this type would prefer junior veterinary surgeons who were ‘3 to 10 years graduated’, Dr Lloyd would, in Dr Gibbons’ estimation, be ‘virtually unemployable’. In an affidavit sworn on the same day, Ms Green testified that, having examined the results of a survey of NSW veterinary practices conducted by the Board, she could identify only 27 practices with three or more surgeons in Sydney and its suburbs and 48 such practices in country areas.

59 Impact of suspension of Dr Lloyd on members of his staff. Ms Wright said in her statement dated 31 March 2006 that, if Dr Lloyd’s practice were closed down on account of an order suspending him, this would cause considerable hardship to her, and to the two other TAFE qualifying nurses who were also employed in the practice.

60 Testimonials from clients. The evidence tendered by Ms Green also included a number of statements by clients or former clients of Dr Lloyd in which they declared themselves to be consistently satisfied with the quality of the service provided by him and his staff.

61 Submissions on behalf of Dr Lloyd. Relying on all this evidence, Ms Green argued, as we have said, that whatever might have been the position in 2004, when the penalty hearing took place, it was now evident that Dr Lloyd was fit to engage in practice as a veterinary surgeon without being placed under any form of supervision.

62 It followed, she said, that an order suspending him from practice was clearly not warranted on account of the primary consideration that should underlie disciplinary orders – namely, protection of the public. Such an order would instead be contrary to the public interest. It would deprive the community of a veterinary practice that had been found by Board-appointed inspectors, and by well-qualified veterinary surgeons working as locums, to provide services of high quality. It would also be detrimental to the interests of staff employed in the practice. For these reasons, it would in fact contravene s 32(2)(c) of the VS Act, which provides (see [12] above) that an order of deregistration or suspension from practice must not be made against a veterinary surgeon if for any reason it is ‘in the public interest’ that he or she ‘should be allowed to continue to practise veterinary science’.

63 Ms Green acknowledged that another purpose to be served by disciplinary orders was deterrence, both specific and general. But she pointed out that none of the instances of misconduct with which these proceedings are concerned involved moral turpitude on Dr Lloyd’s part. He had not engaged in fraud or other deliberate wrongdoing, or in cruelty to animals. If any deterrent element was needed within the treatment meted out to Dr Lloyd in these proceedings, it was sufficient, she said, that he had been compelled to face legal proceedings over a period of more than seven years.

64 Out of a number of cases to which Ms Green referred, it is sufficient here to mention only Burton v Anderson, which is an unreported decision of the Court of Appeal, given on 28 October 1994. Here the Court set aside an order of the Veterinary Surgeons Disciplinary Tribunal, made on 19 December 1991, imposing a three-month suspension from practice on a veterinary surgeon found guilty of misconduct. The ground of the Court’s decision was that nearly three years had elapsed between the suspension and the hearing of the appeal, during which time the practitioner had continued in practice without complaint. The circumstances that the Court had to consider were therefore substantially different from those which had confronted the Disciplinary Tribunal.

65 Ms Green argued that because in the present proceedings some 18 months had elapsed since the penalty hearing, during which time the professional standards maintained by Dr Lloyd had been found to be entirely satisfactory, this Court of Appeal case clearly authorised us to make disciplinary orders that differed markedly from those contained in the penalty decision.

66 Submissions on behalf of the Committee. Mr Wade endorsed the general line of reasoning put forward by Ms Green, though he differed from some of her specific propositions. It is not necessary here to explore these points of disagreement.

67 He pointed out that since 2004 the Committee had maintained a consistent approach to the question of what disciplinary action should be taken against Dr Lloyd. The Committee, he said, had not wanted to expel Dr Lloyd from the profession of veterinary science. Instead, it had proposed at the penalty hearing a regime of audit and professional education, which would encourage him to remedy the defects in his professional practices through his own actions and would also protect the public by ensuring that improvement actually did occur. Since these defects had arisen on account of his isolation from other practitioners, an important aim of the proposed regime was to ‘bring him back into the profession’. Although this proposed regime had not been imposed in the orders made by the Tribunal, Dr Lloyd had, in effect, subjected himself voluntarily to a similar regime, with clearly positive results.

68 Mr Wade indicated that the Committee did not in any way question the findings by Dr Nielsen. It therefore accepted that Dr Lloyd was now fit to practise on an unrestricted basis.

69 In Mr Wade’s submission, all that was needed to complete the process of bringing Dr Lloyd back into the profession was a further program of educational activities of the type described in the order now proposed (see [31] above). He pointed out that this program did not simply involve attendance at courses and seminars. Dr Lloyd would be required also to undertake a relatively intensive program of practical clinical sessions at a leading veterinary hospital. Since failure to communicate satisfactorily with clients was an aspect of the misconduct that had been established against him in these proceedings, he would in addition be required to attend a communication course.

70 Mr Wade acknowledged that deterrence was an important aim to be pursued in making disciplinary orders. But he argued that in this case any deterrent element should be carefully limited, since it was important to encourage practitioners who had been found guilty of misconduct to participate actively in the process of remedying the relevant defects. Dr Lloyd, he said, had proved very keen to take the steps required to improve his own standards of practice.

Our conclusions

71 It was acknowledged by both parties that we were not in any way bound to accept their joint proposal for a single disciplinary order replacing the two relevant orders (Orders 1 and 2) made by the Tribunal in the penalty decision.

72 We can understand why the Tribunal in 2004 was not satisfied that the degree of change in Dr Lloyd’s personal circumstances since the period of his relevant misconduct (1995-97) and the improvement in standards that he had achieved by then (as reflected chiefly in Dr Lynch’s findings) sufficiently showed him to be fit for practice on an unrestricted basis.

73 The evidence of improvement since 2004, however, is all one way. It is now undisputed, to quote Dr Nielsen’s final report, that Dr Lloyd is qualified to be ‘a fully registered principal of a veterinary practice offering the community a professional service of high calibre’. The different aspects of practice that Dr Nielsen and Dr Schofield, in particular, have discussed in their distinctly favourable reports include all those in which Dr Lloyd was found wanting in the period between 1995 and 1997, with the possible exception of communication with clients. This particular matter is one specifically addressed in the disciplinary order now proposed to us.

74 Our conclusion that Dr Lloyd is now fit for practice on an unrestricted basis, coupled with the considerations of public interest on which Ms Green relied (see [62] above), require us to hold, as she contended, that any order by us suspending Dr Lloyd from practice would contravene s 32(2)(c) of the VS Act. For this reason alone, Order 1 in the penalty decision must be set aside.

75 Irrespective of whether Order 2 in the penalty decision, imposing restrictions on Dr Lloyd’s terms of practice following his suspension, would or would not have been ‘tantamount to deregistration’, it is clearly not warranted now in the light of our conclusion that he is fit for practice on an unrestricted basis.

76 We have given some thought to whether the need to further the aim of deterrence (general and/or specific) in framing disciplinary orders requires us to go further than simply making an order along the lines proposed to us. In passages from Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 at [16 – 17, 22 – 27], quoted by us in the penalty appeal decision at [46], the reasons why deterrence may contribute to the primary purpose of protecting the public interest are usefully summarised.

77 Under s 32(1)(d) of the VS Act, the Tribunal may impose a fine not exceeding $10,000 in any case of proven misconduct. Although, as Ms Green submitted, the misconduct proved against Dr Lloyd fell short of moral turpitude, it nonetheless involved some serious failures to abide by professional standards. Furthermore his disciplinary record, both beforehand and subsequently, was not without blemish. The significant personal stresses that appear to have contributed to his failures to uphold proper standards were, as we have held, relevant to our determination whether, in the absence of such pressures, he might be expected to maintain such standards. But they do not constitute an excuse for these failures.

78 In our judgment, only the fact that Dr Lloyd has been subjected to excessively lengthy and arduous litigation in this matter provides a reason for not imposing a fine upon him under s 32(1)(d), in addition to an order of the type proposed to us. This litigation commenced in the Tribunal in 1998. The proceedings since then have included two successful appeals by Dr Lloyd to the Court of Appeal (decided in 2002 and 2005) and a further set of appeals, proving wholly or partly successful, to this Appeal Panel (decided in 2003). Although Dr Lloyd has had some benefit from costs orders, he has nonetheless expended considerable amounts of money and effort in having determinations against him corrected on appeal.

79 For this reason, we refrain from imposing a fine or making any other order by way of deterrence.

80 At this rehearing of this appeal, we asked Mr Wade and Ms Green whether the ‘courses or other activities of continuing professional education’ required by the proposed order were of a type and scale that would in any event be required of registered veterinary surgeons in New South Wales. We were informed that, while mandatory continuing education is currently under consideration by the Board, there is no such requirement at present.

81 We also asked whether it would in practice be possible for Dr Lloyd to attend practical clinical sessions at the University of Sydney Veterinary Hospital. A related question was whether sessions of this nature, combined with other courses or similar activities of continuing professional education, would be available with sufficient frequency to enable Dr Lloyd to satisfy the proposed requirement of 24 days over a period of twelve months. The answers that we received suggested that the practicability of these aspects of the proposed order had not yet been fully explored. They also suggested that, rather than imposing a strict requirement that Dr Lloyd attend courses or other activities occupying 24 days over a period of one year, it would be preferable to stipulate a time frame – for example, 12 to 18 months – during which he would have to fulfil this requirement.

82 A further question that we asked related to the likely cost of attending practical clinical sessions. Neither Mr Wade nor Ms Green was able to assist us on this. Mr Wade suggested at one point that, if necessary, the Board might be prepared to pay any fees charged by the University of Sydney. In our judgment, this would not be appropriate, even if the Board were willing to pay them.

83 In view of these uncertainties surrounding the proposal advanced by the parties, we will not in this judgment set out the precise terms of the disciplinary order to be made. After giving the matter careful consideration, we are satisfied that an order of the type proposed is sufficient and appropriate for the unusual circumstances of this case. But further information is required before a final order can be made.

84 We direct that, within 21 days of the date of this decision, the Committee should file and serve an affidavit by an appropriate person dealing with the following matters:-

(a) The practicability of securing Dr Lloyd’s attendance at a sufficient number of practical clinical sessions at the University of Sydney or some other appropriate institution.

(b) The approximate likely cost of such attendance.

(c) The question whether appropriate courses or other activities of continuing professional education, including practical clinical sessions, are likely to be available with sufficient frequency to enable Dr Lloyd to comply over a period of 18 months with the proposed requirement of 24 days.

(d) Any other related information that in the Committee’s opinion would be of use to us in settling the terms of a disciplinary order along the lines that it has proposed.

85 We further direct that, if Dr Lloyd wishes to file and serve an affidavit containing materially different information on any of these matters, he should do so within a further 14 days.

86 There remains the matter of costs. As indicated above, in a decision delivered on 20 April 2005 ((Lloyd v Veterinary Surgeons Investigating Committee (No 2) (GD) [2005] NSWADTAP 15), we held that Dr Lloyd should pay the Committee’s costs of the first hearing of the appeal. In the Court of Appeal’s orders (see above at [10]), this decision was not mentioned. But its Order (5) was in these terms: ‘Costs of the earlier proceedings in the Appeal Panel to abide the order of the Appeal Panel hearing the remitted proceedings.’ It would appear to us that this Order implicitly vacated our costs order.

87 As mentioned above at [32], the parties notified us at the rehearing that they had agreed that there should be no order as to the costs of ‘these proceedings’. This agreement clearly relates to the rehearing of the appeal, as to which there will be no order as to costs.

88 We assume that this agreement also covers the first hearing of the appeal. But in case we have misunderstood what was said to us, we now give appropriate directions.

89 These are to the following effect. Any party who wishes to reopen the matter of the costs of the first hearing before us must file and serve an appropriate application, with supporting submissions, within 21 days of the date of this decision. The opposing party will have a further 14 days to file and serve submissions in reply. If no application is filed, there will be no order as to costs.

90 These outstanding matters, relating to the terms of the disciplinary order to be made and, possibly, to the costs of the first hearing of the appeal, will be determined by us ‘on the papers’, under s 76 of the ADT Act, unless reasons are advanced for a further hearing.

91 On 12 July 2006 the Appeal Panel made the following orders:

Pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 , the following orders are made following consideration of documents lodged with the Tribunal: -

1. The Appellant is to undertake at his own expense courses or other activities of continuing professional education designated by the Respondent in consultation with the Appellant, which may include: (a) courses, workshops, symposia and other like activities conducted by or on behalf of the Postgraduate Foundation of the University of Sydney Veterinary Hospital and (b) a communication course. Such courses or other activities are to occupy, at a minimum, an average of 1.5 days per month over a period of 18 months. At least 14 days’ notice is to be given to the Appellant of such course or other activity.

2. If, as a consequence of some unavoidable circumstance such as illness or accident, the Appellant is unable to attend any of the agreed courses or activities of continuing professional education, the Respondent in consultation with the Appellant is to designate a substitute course or activity.

3. There will be no order as to the costs of the hearing of this appeal conducted on 6 December 2004.

21/09/2006 - To insert paragraph 91 to show orders made on 12 July 2006 - Paragraph(s) 91