Lloyd v Veterinary Surgeons Investigating Committee

[2005] NSWADTAP 2

Set aside by Appeal: Set Aside by Appeal on 21/12/2005 (Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456)

Appeal Panel - Internal

CITATION:	Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWADTAP 2
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	049044
HEARING DATES:	06/12/2004
SUBMISSIONS CLOSED:	12/06/2004
DATE OF DECISION:	01/10/2005
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [2004] NSWADT 208
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:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Burton v Anderson, unreported, CA 40030/92, 28 October 1994 Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 House v King (1936) 55 CLR 499 Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3 NSW Bar Association v Evatt (1986) 117 CLR 177 Rich v Australian Securities and Investments Commission [2004] HCA 42 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [2004] NSWADT 208 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
REPRESENTATION:	APPLICANT E Cohen, barrister RESPONDENT M Wade, solicitor
ORDERS:	1. The appeal is dismissed; 2. Order 1 of the Tribunal's orders made on 22 September 2004 is varied by substituting the words '1 May 2005' for '1 January 2005'; 3. The order of the Appeal Panel made on 25 October 2004, staying the operation of Orders 1 and 2 of the Tribunal made on 22 September 2004, is vacated; 4. In relation to the hearing of 25 October 2004 and the hearing of the appeal, each party has 28 days in which to file and serve an application for costs, with supporting submissions. Any submissions in response must be filed and served within a further 28 days. If no application is filed, there will be no order for costs.

The circumstances of this appeal

1 This is an appeal by Dr Ronald George Lloyd, a registered veterinary surgeon, against disciplinary orders made against him by a Veterinary Disciplinary Panel of the Tribunal 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).

2 The Tribunal’s power to make disciplinary orders is conferred by s 32 of the Veterinary Surgeons Act 1986 (‘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.

3 The principal basis for the Tribunal’s disciplinary orders against Dr Lloyd was a number of findings of misconduct in a professional respect and a single finding of unacceptable professional conduct. These findings are set out in an appendix to the Tribunal’s judgment. They were the outcome of its inquiries 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 Respondent to this appeal, the Veterinary Surgeons Investigating Committee (hereafter ‘the Committee’).

4 In addition, there was evidence before the Tribunal that, since his registration as a veterinary surgeon on 7 March 1973, Dr Lloyd has been the subject of five disciplinary orders, which in all but one case have been based on findings of misconduct in a professional respect.

5 The Committee could not provide particulars of the earliest three of these inquiries, which resulted in an order of suspension from practice for 90 days (commencing on 1 April 1974) and reprimands and fines of $50 on two occasions (December 1988 and August 1989). The Tribunal was however furnished with particulars of the two most recent inquiries. The outcomes of these were as follows.

6 On 16 December 1994, the Veterinary Surgeons Disciplinary Tribunal found Dr Lloyd guilty of misconduct in a professional respect committed on 7 April 1992 in the course of treatment of a cat, ‘Min Mae’. It reprimanded him, placed conditions on his registration (including supervision by an inspector for six months and acceptance of the advice of a mentor) and ordered him to pay costs. Further particulars of this matter are set out in the Tribunal’s judgment (Veterinary Surgeons Investigating Committee v Lloyd (Disciplinary Order: Inquiries 1 (‘Chisel’), 2 (‘Gypsy’) and 3 (‘Remus’)) [2004] NSWADT 208) at [13 – 16].

7 On 8 August 2002, the Committee, exercising its powers under s 28 of the VS Act, cautioned Dr Lloyd and ordered him to pay costs, following a finding of misconduct in a professional respect committed on 2-3 April 2001 in the course of treatment of a dog, ‘Penny’. Further particulars of this matter are set out in the Tribunal’s judgment at [17 – 21].

8 In its judgment at [26], the Tribunal introduced in the following terms a summary of all the findings on which its disciplinary orders were based:-

26 His disciplinary record organised under four themes is set out below. The themes are: professional procedures; clinical records; supply of substances, drugs and Schedule 4 poisons; and personal conduct. The year date shown refers to the time of the conduct, as distinct from the date of the finding.

9 Its summary was 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.

10 The disciplinary orders made by the Tribunal 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.

11 On 25 October 2004, the present Appeal Panel heard an application by Dr Lloyd for a stay of Orders 1 and 2 until the disposition of this appeal. We granted the stay, leaving undetermined the question of costs.

Provisions governing the conduct of the appeal

12 Section 34(1) of the VS Act provides that a registered veterinary surgeon or former registered veterinary surgeon ‘may appeal against an order made under s 32 to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997’ (the latter Act is hereafter referred to as ‘the ADT Act’).

13 Part 1 of Chapter 7 of the ADT Act includes the following provision, which is of importance in the present appeal:-

113 Right to appeal appealable decisions

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

14 In Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27, a case also involving an appeal by a registered veterinary surgeon under s 34(1) of the VS Act, the Appeal Panel, at [10], made the following observations on the effect of s 113(2) of the ADT Act:-

10. It is well established that “it is necessary for the appellant ... to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established….” Brandusoiu v Commissioner of Police [1999] NSWADTAP 8.

15 We agree with Mr Wade, who represented the Committee at the hearing, that we must abide by these principles when considering the appeal. Ms Cohen, counsel for Dr Lloyd, did not dispute their applicability. She maintained, however, that the Tribunal’s decision under appeal did in fact contain a number of errors of law and on that footing sought leave for the appeal to extend to the merits.

16 The approach to be adopted in distinguishing errors of law from errors of fact is not wholly clear (for a detailed discussion, see Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action, 3rd edn, Lawbook Co, 2004, Chapter 4). But for present purposes, it is sufficient to refer to a few well-established principles.

17 First, if there is no evidence at all on which a ‘primary finding of fact’ could be based, there is an error of law. However, as stated in the judgment of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156, the making of such a finding is not an error of law even if the reviewing court or tribunal considers that the finding

… is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it…

18 Secondly, there will be an error of law in the making of an ‘ultimate finding of fact’ if the question of fact has been defined ‘otherwise than in accordance with law’ or if ‘the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made’ (Azzopardi v Tasman UEB Industries Ltd at 156). But an alleged error will be one of fact only where a court or tribunal at first instance is ‘confronted with the task of applying [a] statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree on which different minds may take different views’ (Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 per Mason JA, cited with approval by Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 451).

19 Thirdly, the approach to be adopted when an error of law is alleged in relation to the exercise of a discretion is summarised as follows in the judgment of Dixon, Evatt and McTiernan JJ in House v King (1936) 55 CLR 499 at 505:-

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

20 In Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3 at [45 – 46], an Appeal Panel of this Tribunal held that this passage in House v King was applicable to the interpretation of s 113(2) of the ADT Act.

The errors of law alleged in the present appeal

21 The errors of law alleged by Ms Cohen related principally to the following aspects of the Tribunal’s decision: (1) its ruling that, despite a significant lapse of time and evidence suggesting that circumstances affecting Dr Lloyd’s practice had changed significantly, its findings of misconduct within the period from 1995 to 1997 provided a sufficient basis for its conclusion in September 2004 that he was currently unfit to practise as a veterinary surgeon; (2) the ‘punitive’ effect that its orders would have on him; and (3) its interpretation and application of the provisions regarding ‘public interest’ in s 32(2) of the VS Act. We shall consider these three matters in turn.

22 In relation to each of them, Mr Wade argued that, having regard to the principles distinguishing errors of law from errors of fact, no error of law was demonstrated. This was the case, he said, even though the Committee’s opinion, put forward both at the hearing at first instance and in this appeal, was that disciplinary orders falling short of suspension and the imposition of restrictions on practice were sufficient to meet the circumstances of the case.

Lapse of time and change of circumstances

23 Ms Cohen’s arguments under this heading were principally directed to the Tribunal’s statement, at [52], that there was ‘a real question as to Dr Lloyd’s present fitness to continue in practice’. At [55], the Tribunal went on to say that it was ‘not satisfied that Dr Lloyd is presently fit to continue in practice on an unrestricted basis’. Ms Cohen submitted that the Tribunal could not properly find present unfitness on the basis of his past misconduct.

24 In making this submission, she relied principally on the cumulative effect of two factors, namely (a) the significant lapse of time between Dr Lloyd’s past misconduct and the making of the disciplinary orders and (b) the evidence of significant change in the circumstances affecting his practice since the period of his past misconduct.

25 Specifically in relation to the lapse of time, Ms Cohen relied on the Court of Appeal’s decision in Burton v Anderson (unreported, CA 40030/92, 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.

26 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. The reasons for this delay of nearly three years were that, under a provision of the VS Act which no longer exists, the practitioner’s appeal automatically stayed the Tribunal’s order of suspension, and neither party had sought to expedite the appeal.

27 On the related matter of change of circumstances, Ms Cohen pointed out that the Tribunal in the present case had been supplied with evidence showing that the misconduct proved against Dr Lloyd was attributable to circumstances which prevailed during the period (1995 – 1997) when this misconduct occurred but were no longer present. None of this evidence was contradicted. The specific matters on which Ms Cohen relied in this connection can be summarised as follows.

28 First, 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.

29 By contrast, at the present day, he is not significantly afflicted by personal problems or by financial difficulties. He runs only one veterinary practice. While this is a busy practice, in which he might see as many as twenty animals in a day, he is no longer overworked.

30 Secondly, Mr 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, Mr 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’.

31 Thirdly, Dr Lloyd, in a statement tendered to the Tribunal, fully acknowledged the shortcomings in his professional performance during the period when the misconduct established in relation to Chisel, Gypsy and Remus occurred (1995 to 1997). He stated that he was determined to remedy these shortcomings in the future. He stated also that at the present time, in addition to maintaining computerised records, he fully complies with all labelling requirements, he ensures that all members of his staff are properly trained, he offers to his clients all options for treatment of their animals, he refuses to treat animals that he has not seen, he endeavours to communicate more clearly with his clients and he takes time off to attend professional training courses. He also acknowledged that his decision not to intubate Penny during his operation on her in 2001 constituted a failure to observe proper standards.

32 The principal arguments advanced by Mr Wade in relation to the case of Burton v Anderson were these. First, it dealt with the particular situation of a substantial delay between a disciplinary hearing at first instance and the hearing of an appeal, not (as in the present case) between the commission of acts of misconduct in a professional respect and the making of disciplinary orders on the basis of this misconduct. Secondly, it was a decision on its own specific facts. Thirdly, one member of the Court, Kirby P, assented with considerable reluctance to the decision reached by the majority judges. Fourthly, the case was duly taken into account by the Tribunal, which in fact drew attention (at [54]) to an important factor distinguishing it from the present case. This was that while during the three-year period of delay relied on by the Court of Appeal, Dr Burton’s record was ‘unblemished’, there were adverse findings against Dr Lloyd, arising out of his treatment of Penny, during what was claimed as the comparable period in this case.

33 Mr Wade also contended that there was no principle that a significant lapse of time between misconduct and the consequent making of a disciplinary order necessarily implied that the practitioner in question had ‘reformed’. In support of this proposition, he cited NSW Bar Association v Evatt (1986) 117 CLR 177 and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. Whether such a result ensued in a particular case was instead, he said, a matter for determination by the authority making the disciplinary order, taking all relevant considerations into account.

34 He submitted further that, in relation to both the lapse of time and the change in Dr Lloyd’s circumstances, the Tribunal had in fact taken all relevant factors into account. It had given due consideration to the lapse of time in its discussion of Burton v Anderson, and at other parts of its judgment it had referred to all the factors that according to Ms Cohen indicated a change in circumstances. It was not sufficient for her to persuade us that on the balance of the evidence a different conclusion regarding Dr Lloyd’s current fitness to practise was or might be preferable.

35 The outcome of all these considerations was, in Mr Wade’s submission, that the Tribunal had committed no error of law in its treatment of these issues.

36 In our judgment, this submission by Mr Wade must be accepted, more or less for the reasons that he advanced. We would add some further observations.

37 One of Mr Wade’s arguments was that there was no principle that a significant lapse of time between misconduct and the consequent making of a disciplinary order necessarily implied that the practitioner in question had ‘reformed’. We find significant support for this in a useful passage in the Court of Appeal’s judgment in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.

38 That case dealt with inappropriate sexual misconduct by a doctor over a period of years. A period of four and a half years elapsed between the last of the incidents and the hearing by the Medical Tribunal. At 636, the Court considered this aspect of the case:-

In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286:
“… Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional think. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man”…
Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance…

39 As we see it, the Tribunal in the present case, in accordance with this statement of principle, treated the lapse of time between Dr Lloyd’s misconduct in 1995-97 and the time of the hearing as a relevant but not determining factor in its consideration of whether he was currently fit to remain in practice. It also took fully into account other matters, such as Ms Cohen emphasised, suggesting that he might have ‘undergone a reformation of character and behaviour’ during this period. We refer in this connection to the following paragraphs in its judgment: [50], [54], [59] and [60].

40 At the same time, however, the Tribunal made appropriate reference to factors suggesting that despite these indications the requisite ‘reformation of character and behaviour’ had not occurred. In this connection, the Tribunal listed the following matters: his failure to treat Penny in 2001 in accordance with current professional standards ([54]); an observation in his statement to the Tribunal suggesting that he still did not accept that intubation was required in an operation such as that performed on Penny ([22 – 23]); an inference from the complaint regarding Penny that he still did not appreciate the importance of clear communications with his clients ([24]); the fact that implementation of modern record-keeping procedures would not of itself prevent failures to make the appropriate checks when attending a distressed animal, to enter relevant material into the records ([50]) or (referring to what the Tribunal called ‘the most significant transgressions’) to maintain competent standards and adhere to proper procedures in the course of treatment or aftercare ([51]).

41 At [57 – 65], the Tribunal also considered in some detail the evidence of Dr Driver, who, it said, had retained a close personal relationship with Dr Lloyd. In addition to giving evidence at the disciplinary hearing, Dr Driver had provided a report in 1995 to the Veterinary Board on his mentorship of Dr Lloyd pursuant to the order of the Disciplinary Tribunal in 1994 and had given evidence in 1999 at the inquiry into Dr Lloyd’s treatment of Chisel.

42 The principal matters of relevance here that the Tribunal mentioned in its discussion of Dr Driver’s evidence were conclusions by Dr Driver that Dr Lloyd had ‘poor conflict resolution skills’ and that it would not be possible through measures such as mentoring to change his ‘personality and attitude’. The Tribunal, at [63], interpreted Dr Driver’s comments as

… seeking to explain, in a diplomatic way, the way in which personal attributes can manifest themselves in the performance of professional work and, importantly, in professional outcomes.

43 In our judgment, the following results ensue when the principles set out above for identifying errors of law are applied to the Tribunal’s conclusion that Dr Lloyd is presently unfit to continue in practice on an unrestricted basis. The Tribunal, in arriving at this conclusion, has not acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistaken the facts or failed to take into account some material consideration (cf the dictum from House v King (1936) 55 CLR 499 at 505 that we have quoted above at [19]). The issue to be determined was not one on which the ‘primary facts’ necessarily dictated a different conclusion to that reached by the Tribunal (cf Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, cited above at [17 – 18]). Instead it was one on which it was ‘reasonably possible to arrive at different conclusions, the question being largely one of degree on which different minds may take different views’ (to quote once again from the judgment of Mason JA in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, referred to above at [18]).

44 For these reasons, Ms Cohen has not, in our opinion, identified any error of law in this conclusion reached by the Tribunal.

The ‘punitive’ effect of the Tribunal’s orders

45 Before considering Ms Cohen’s submissions under this heading, it is useful to set out the purposes to which disciplinary sanctions should be directed in cases of professional misconduct. We can achieve this sufficiently by quoting from Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27. This is, as we have indicated, an Appeal Panel decision dealing specifically with disciplinary orders under the VS Act.

46 At [16 –17, 22 – 27], the Appeal Panel stated as follows:-

16 It is well established that disciplinary proceedings are concerned with the protection of the public; their purpose is entirely protective, it is not punitive: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; NSW Bar Association v Evatt (1986) 117 CLR 177 at 183-184; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 440-441; Childs v Walton (Court of Appeal, 13 November 1990, unreported) at 13; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-638. The impact of any order on the practitioner, the subject of the disciplinary proceedings, is irrelevant: Clyne v NSW Bar Association at 201-202; Health Care Complaints Commission v Litchfield at 637-638.

17 In determining whether a practitioner found guilty of misconduct should be permitted to continue to practice, the Tribunal must, amongst other things, balance the public interest in allowing competent practitioners to practice, against the likelihood of a repetition of the offence. “The public interest in allowing the practitioner to continue to practice must be weighed against the public interest in protecting patients from any repetition of the conduct exhibited in the case”: Buttsworth v Walton (unreported, Court of Appeal, 19 December 1991) at 15….

22 However it is clear from the authorities that an assessment of the likelihood of a repeat of the offending behaviour is not the sole issue before the Disciplinary Panel in its determination as to whether it is the public interest to make an order to suspend (or remove) a veterinary surgeon from practice. While the purpose of orders made in disciplinary proceedings is the protection of the public, protection of the public is not confined to the protection of the public from similar defaults by the practitioner the subject of the disciplinary proceedings, but extends to the protection of the public against similar defaults by other practitioners: Law Society of NSW v Foreman at 441. “ In this sense any penalty has an element of general deterrence, publicly marking the seriousness of what the instant solicitor has done”: Law Society of NSW v Foreman per Mahoney JA at 441, referred to in Law Society of NSW v Walsh (Court of Appeal, 15 December 1997, unreported) per Beazley JA at 3.

23 Indeed, in determining appropriate orders, protection of the public against further misconduct by the offending practitioner, “is not the sole, and in some cases may not be the determining factor”: Law Society of NSW v Foreman per Mahoney JA at 440

24 In Health Care Commissioner v Litchfield at 637 the Court of Appeal referred to the relevance of disciplinary proceedings to the maintenance of professional standards:

Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.
25 It is clear from the authorities that deterrence, both general and personal, is a key principle in guiding disciplinary tribunals and courts on the appropriate sanction to impose. While it may reflect a somewhat pessimistic view of human nature, common sense and experience of the world tell us that a measure of deterrence is necessary in both the criminal and the purely protective, disciplinary spheres. That was recognised by the Court of Appeal in Foreman.

26 While this is a protective jurisdiction, if any sanctions at all are imposed upon the practitioner, they “will inescapably have a punitive consequence for the practitioner.” (Foreman per Kirby P at 413.) If, in order to secure the protection of the community, it is necessary in the public interest to impose sanctions upon a practitioner, it is an unfortunate collateral effect that the practitioner is, in effect, punished. But the person ultimately responsible for his or her misfortune is, of course, the practitioner in question.

47 The principal submission made by Ms Cohen in this context was that, because the Tribunal should not have found Dr Lloyd to be currently unfit to practise on an unrestricted basis, the only purpose that could possibly explain its orders suspending him from practice, then requiring him to practise as an employee for a specified period, was that of punishing him. Punishment of a practitioner was not, however, a legitimate aim of a disciplinary order. The orders that the Tribunal made were in no way required, she claimed, in order to serve the purposes to which such orders might legitimately be directed: namely, protecting the interests of animals, members of the public and members of the profession of veterinary surgeons.

48 Ms Cohen relied on two further matters, which we will now outline.

49 The first of these was that the orders made by the Tribunal would constitute excessively severe punishment because they would effectively cause Dr Lloyd to be deregistered. The reason for this was Dr Lloyd, being already more than 50 years old, would almost certainly be unable to obtain employment as a veterinary surgeon once his period of suspension for nine months had elapsed. Some evidence was put forward in support of this prediction. It was chiefly to the effect that in New South Wales there is a relatively small number of veterinary surgeons’ practices (less than 250) with more than one licensee.

50 Secondly, Ms Cohen relied on the fact that the Committee’s opinion, put forward both at the hearing at first instance and in this appeal, was that disciplinary orders falling short of suspension and the imposition of restrictions on practice were sufficient to meet the circumstances of the case.

51 Before the Tribunal, 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.

52 Mr Wade maintained in this context his overall submission that no error of law was discernible in the Tribunal’s reasons. He argued that the Tribunal had taken all relevant considerations into account, including the impact that in practice its orders would have on Dr Lloyd. He acknowledged that although the Committee did not propose, either at first instance or on appeal, that the sanctions of suspension from practice and subsequent restrictions on practice should be imposed, the matter was entirely one for determination by the Tribunal, which was free to reject the recommendations of the Committee.

53 In our judgment, there is again no error of law in the conclusions reached by the Tribunal or in the approach that it adopted. Our reasons, in brief, are as follows.

54 We have already held that the Tribunal’s finding that Dr Lloyd is currently not fit for practice on an unrestricted basis is not open to challenge in this appeal. It follows that we cannot accept one of the principal arguments advanced by Ms Cohen, namely, that the Tribunal’s orders must inevitably be characterised as solely punitive in effect, and unwarranted for that reason, because they cannot be justified by reference to protection of the interests of animals, members of the public or members of the profession of veterinary surgeons.

55 The passages that we have quoted at [46] from the Appeal Panel’s judgment in Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 provide two further answers to Ms Cohen’s line of argument.

56 The Appeal Panel pointed out first that protection of the public through professional disciplinary orders is to be achieved not merely by preventing future misconduct by the practitioner concerned. Such orders may also legitimately seek to prevent similar misconduct by other practitioners, through embodying an element of general deterrence and through publicly reaffirming the standards of practice that apply within the profession.

57 Secondly, the Panel in Gelderman drew attention to the well-recognised proposition that in a protective jurisdiction such as this, any sanctions imposed on a practitioner on grounds of misconduct will inescapably have a punitive effect on him or her. The presence of a punitive element cannot alone furnish grounds for maintaining that the sanctions are imposed for reasons other than protection of the public and are therefore unwarranted. In a different context, that of disqualification of company directors on grounds of misconduct, the High Court has recently criticised firmly the proposition that ‘protective’ and ‘punitive’ sanctions must be seen as wholly distinct from each other: see the judgment of Glesson CJ, Gummow, Hayne, Callinan and Heydon JJ in Rich v Australian Securities and Investments Commission [2004] HCA 42 at [30 – 35].

58 In the present case, the Tribunal showed in paragraphs [27] and [55] of its judgment that it was well aware of the different considerations underlying the imposition of sanctions against veterinary surgeons for protective purposes.

59 Paragraph [27] is as follows:-

27. The purpose of disciplinary orders is protective. In the case of veterinary surgeons the public interest is that of the protection of the welfare of animals. While there is a public interest in the skills and experience of professional practitioners being available to the community, that must be set against the higher public interest in protection from practitioners who breach fundamental professional standards or, though the breaches may not in any one instance be fundamental, show disregard for professional standards by repeatedly breaching them.

60 At [55], having recorded its conclusion that Dr Lloyd was not presently fit to continue in practice on an unrestricted basis, the Tribunal stated:-

His conduct also calls for a sanction that will operate as a deterrent and reflect the seriousness of the transgressions of which he has been found guilty.

61 We agree with Ms Cohen that the practical impact of the sanctions of suspension from practice and subsequent restrictions on practice was a matter that the Tribunal was obliged to take into account. But it is clear from the judgment that it did so. At [68], it stated:

We have had regard to the submission that the course we propose is ‘tantamount’ to deregistration. It does not go that far. While it may be difficult for a practitioner of Dr Lloyd’s age (in his 50s) to obtain employment, the community’s interest in competent practice is the interest which disciplinary orders seek to uphold. In our view it is essential that Dr Lloyd be required on resumption from suspension to work in a relevant collegiate environment, and in that way acquaint himself more closely with current standards of practice.

62 The final sentence of this extract reflects the Tribunal’s opinion, expressed earlier at [56], that Dr Lloyd’s misconduct was attributable in large measure to the fact that he had practised for many years on his own and was ‘isolated to a significant degree from interaction with practitioners of competence’.

63 In relation to this specific issue, we make the further comment that the fact that in New South Wales there is a relatively small number of veterinary surgeons’ practices with more than one licensee does not actually bear upon the question whether Dr Lloyd would be able to obtain employment after his period of suspension. The reason is that numerous practices with only one licensee engage veterinary surgeons as employees.

64 The remaining specific issue to be considered here is the fact that the Tribunal imposed more severe sanctions than those recommended by the Committee. This cannot, however, provide grounds for claiming that the Tribunal erred in law. It is well recognised (see for example Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 at [11]) that the Tribunal is not in any way bound by the views of the Committee on this issue.

65 For the foregoing reasons, we reject this part of the argument advanced for Dr Lloyd in this appeal.

The ‘public interest’ provisions in s 32(2) of the VS Act

66 At its highest, Ms Cohen’s submission under this heading was to the effect that (a) there was a significant public interest in the services of a practitioner of 30 years’ experience (such as Dr Lloyd) remaining available to the public, particularly when (as the evidence showed) he made those services available at low cost to clients of limited means in regions where other practitioners were relatively scarce; (b) that it was therefore ‘in the public interest’ that he should be allowed to continue to practise veterinary science; and (c) that by virtue of s 32(2)(c) of the VS Act this consideration alone required the Tribunal to desist from imposing an order of suspension from practice under s 32(1)(b).

67 In response to a question from the Panel, Ms Cohen conceded however that s 32(2) could not be interpreted as requiring that a ‘public interest’ such as she had outlined should in every case override the public interest in ensuring that veterinary surgeons who had been found unfit to practise should generally be suspended or removed from the register of practitioners under s 32(1)(b) or (c).

68 Correctly interpreted, s 32(2) requires that before suspending or deregistering a veterinary surgeon, the Tribunal must determine whether any public interest considerations in favour of his or her being permitted to remain in practice outweigh the evident public interest in ensuring that all those who are permitted to practise are fit to do so.

69 In our judgment, the Tribunal adopted this interpretation of s 32(2) and took due account of these competing considerations. This appears from paragraphs [27] and [68] of its decision, from which we have already quoted. We accordingly reject this line of argument put by Ms Cohen.

70 A related submission by Ms Cohen focused on the phrase ‘the circumstances in which that matter occurred’ in s 32(2)(b). The phrase ‘that matter’ in this passage refers to any complaint which has been proved against a veterinary surgeon. As indicated above at [27 – 31], Ms Cohen argued that the Tribunal had been furnished with evidence showing that the misconduct proved against Dr Lloyd was attributable to circumstances which prevailed during the period (1995 – 1997) when this misconduct occurred, but which were no longer present. She argued that the Tribunal should therefore have concluded that, by virtue of s 32(2)(b), it was in the public interest that he should be permitted to continue in practice.

71 We have already held that the changes in Dr Lloyd’s circumstances since the period of this misconduct, even when considered in conjunction with the fact that a significant number of years have elapsed since then, do not inevitably require a finding that he must be deemed presently fit to practise on an unrestricted basis. We therefore do not see how these changes could render necessary a finding that it is in the public interest that he be permitted to continue in practice.

72 Although the Tribunal did not refer specifically to s 32(2)(b) of the VS Act, we consider that in its discussion of the nature and significance of the change in Dr Lloyd’s circumstances and (at [27]) of the role to be played by public interest considerations, it sufficiently adverted to the factors to be taken into account in resolving this specific issue.

73 In these circumstances, having regard to principles outlined above at [17 – 20]) and applied to a related question at [43], we conclude that the Tribunal has not erred in law in its treatment of the issues raised by s 32(2) of the VS Act.

Conclusion

74 For the foregoing reasons, we conclude that no error of law has been demonstrated in the reasoning of the Tribunal.

75 We accordingly reject the application made on Dr Lloyd’s behalf for the appeal to extend to the merits. We dismiss the appeal.

76 In consequence, however, of the appeal having been instituted, one of the orders of the Tribunal must be varied in a minor respect. In Order 1, the Tribunal required that the suspension of Dr Lloyd from practice must take effect from a date no late than 1 January 2005. That date is a little more than three months later than the date of the Tribunal’s judgment. Bearing this in mind, we substitute 1 May 2005 as the date before which the suspension must take effect.

77 Our order of 25 October 2004 staying the operation of Orders 1 and 2 of the Tribunal is vacated.

78 No applications were made to us regarding the costs of the hearing of 25 October 2004 or of the hearing of the appeal. We will allow to each party a period of 28 days in which to file and serve an application for costs, with supporting submissions. Any submissions in response must be filed and served within a further 28 days. If no application is filed, there will be no order for costs.