Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: 'Remus' Allegations 1(a) to (e)) (GD) [2003] NSWADTAP

[2003] NSWADTAP 45

Appeal Panel - Internal

CITATION:	Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: 'Remus' - Allegations 1(a) to (e)) (GD) [2003] NSWADTAP [2003] NSWADTAP 45
PARTIES:	APPELLANT Ronald George Lloyd RESPONDENT Veterinary Surgeons Investigating Committee
FILE NUMBER:	039004
HEARING DATES:	6/05/2003, 28/07/2003
SUBMISSIONS CLOSED:	07/28/2003
DATE OF DECISION:	10/13/2003
DECISION UNDER APPEAL:	Veterinary Surgeons Investigating Committee v Ronald George Lloyd (Inquiry 3: 'Remus' - Allegations 1(a) to (e)) [2002] NSWADT 285
BEFORE:	Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Stephens T - Member
CATCHWORDS:	bias - error as to status of evidence - effect on creditability of another witness - expert witness - objectivity of - failure of all Tribunal Members to participate in determination - professional misconduct - conduct constituting professional misconduct - professional misconduct - duplicity or repetition within the allegations - professional misconduct - fail to notify of all matters complained of - professional misconduct - insufficient investigation of complaint - professional misconduct - insufficient weight given to expert evidence - reconsitution of tribunal - failure to recall witnesses - reliance of admissions
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	40015 of 1998
DATE OF DECISION UNDER APPEAL:	12/31/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Planning Appeals Board Act 1980 (Vic) Poisons Act 1966 Poisons and Therapeutic Goods Regulation 1994 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Barnard v National Dock Labour Board [1953] 2 QB 18 Bremner v Victorian Railways Commissioner (1902) 27 VLR 729 Brennan v Brennan (1953) 89 CLR 129 Briginshaw v Briginshaw (1938) 60 CLR 336 Cotogno v Lamb (No. 2) (1985) 3 NSWLR 221 Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515 Hopwood v Veterinary Surgeons Investigating Committee [2003] NSWADT 44 Kalil v Bray [1977] 1 NSWLR 256 Lloyd, Re, Unreported, Veterinary Surgeons Disciplinary Tribunal, 16 December 1994 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19 Lovett v Chiropractors and Osteopaths Registration Board, Unreported, Supreme Court of Victoria, 7 December 1993 Orr v Holmes (1948) 76 CLR 632 Pettitt v South Australian Tattersall’s Club [1930] SASR 258 Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Qidwai v Brown [1984] 1 NSWLR 100 R v Lewis (1988) 165 CLR 12 R v Planning Appeals Board, Ex parte Shoppingtown Motor Body Repairs Pty Ltd, Unreported, Supreme Court of Victoria, 18 July 1985 Tu v University of Sydney [2003] NSWCA 170 Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: ‘Gypsy’ – Findings) [2003] NSWADT 96 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 2) [2003] NSWADT 136 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2002] NSWADT 283 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Findings) [2002] NSWADT 284 Vine v National Dock Labour Board [1957] AC 488 Wentworth v Rogers (No. 3) (1985) 6 NSWLR 642
REPRESENTATION:	APPELLANT M Tzannes, Barrister RESPONDENT L T Grey, Barrister
ORDERS:	1 Appeal allowed in part; 2 Findings of misconduct in a professional sense in relation to Allegations 1(a) (part), 1(c), 1(d) and 1(e) affirmed, with variations, as set out in paragraphs 245 – 248 inclusive of this judgment; 3 Inquiry to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Veterinary Surgeons Act 1986 with respect to these findings; 4 Findings of misconduct in a professional sense in relation to Allegations 1(a) (except as specified in clause 2 of these Orders) and 1(b) set aside

Introduction

1 This appeal is one of six that have been brought by the respondent in professional disciplinary proceedings, Dr Ronald George Lloyd (Dr Lloyd), against conclusions reached in judgments by a veterinary panel of the General Division. The judgments all related to complaints against Dr Lloyd referred to the Tribunal for inquiry by the Veterinary Surgeons Investigating Committee (the Committee) under the Veterinary Surgeons Act 1986 (the Act).

2 The judgment appealed from in this appeal is Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegations 1(a) – (e)) [2002] NSWADT 285 (hereafter ‘Remus 1’). The other five judgments against which Dr Lloyd appealed are as follows: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus’ – Findings: Allegation 2) [2003] NSWADT 136 (hereafter ‘Remus 2’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel’ – Findings) [2003] NSWADT 95 (hereafter ‘Chisel’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: ‘Gypsy’ – Findings) [2003] NSWADT 96 (hereafter ‘Gypsy’); Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2002] NSWADT 283 (hereafter ‘Total Eclipse - Jurisdiction’); and Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Findings) [2002] NSWADT 284 (hereafter ‘Total Eclipse – Findings’).

3 Dr Lloyd’s appeal in Total Eclipse – Jurisdiction was successful: see Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: ‘Total Eclipse’ – Jurisdiction) [2003] NSWADTAP 19 (hereafter the Total Eclipse Appeal). In consequence, the findings of the Tribunal in Total Eclipse - Findings have been set aside.

4 The appeals against the judgments in Remus 2, Chisel, and Gypsy have been heard. Judgments on these appeals will be delivered contemporaneously with the present judgment.

5 In Remus 1, the subject of the present appeal, the Tribunal made findings adverse to Dr Lloyd in relation to Allegations 1 (a) to (e). These Allegations asserted that Dr Lloyd was guilty of misconduct in a professional respect in the course of his treatment of a dog called Remus.

6 The Tribunal concluded that, by virtue of its adverse findings, Dr Lloyd was guilty of misconduct in a professional respect in relation to each of the matters dealt with in Allegation 1.

7 The precise circumstances giving rise to the complaint were much disputed. But the following brief outline describes events which were not contested.

8 On 25 February 1997, Mrs Suzanne Robinson consulted Dr Lloyd at his surgery regarding her dog Remus, a Weiramaner. She described various symptoms, notably that Remus was limping on his left leg. Dr Lloyd conducted an investigation of Remus, including a rectal examination, and concluded that the limp was attributable to an injury in the pelvic region. He prescribed medication and suggested that Mrs Robinson should bring Remus back for examination in two weeks. After about a week, on March 4, Mrs Robinson brought Remus back to Dr Lloyd as she was worried about his condition. Dr Lloyd suggested that he be given a stronger dose of the medication. On 7 March, as Mrs Robinson found Remus to be deteriorating, she brought him back to Dr Lloyd’s surgery. He agreed to keep Remus overnight and to take x-rays. Over the next few days, Remus’s condition got worse and he died in Dr Lloyd’s surgery early in the afternoon of 11 March. Without obtaining Mrs Robinson’ consent, Dr Lloyd then conducted an autopsy. Later that afternoon, he buried the body. Various explanations were put forward as to the cause of the death of Remus, with ultimately no clear conclusion being established.

9 On 17 March 1997, Mrs Robinson wrote a letter to the Australian Veterinary Association (the AVA) expressing dissatisfaction with Dr Lloyd’s handling of the case. After obtaining a response from Dr Lloyd, the AVA referred the matter to the Committee. After taking a number of further steps, the nature of which is outlined below, the Committee instigated the present proceedings, initially in the Veterinary Surgeons Disciplinary Tribunal, then in this Tribunal.

The complaint lodged by the Committee

10 The terms of Allegations 1(a) to (e) in the complaint referred by the Committee to the Tribunal were as follows:-

1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons' Code of Professional Conduct (`the Code') established under Section 23 of the Act and prescribed for the purposes of section 22(c) of the Act, as follows:

(a) Between 25 February 1997 and 11 March 1997 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science.

Particulars

(i) On 25 February 1997, Suzanne Robinson consulted you in relation to her dog `Remus'. She informed you that Remus had slipped on the grass chasing a ball, some time previously. The dog was presented to you with the following symptoms :

- hind leg lameness and difficulty in walking;

- history of vomiting;

- anorexia; and

- pain.

You did not
- question Suzanne Robinson to identify causes of vomiting and anorexia;

- conduct a full physical examination of the dog;

- consider the status of the dog's prostate despite your having found acute anterior pelvic pain during your rectal examination of it, and having been given a history of malaise, vomiting and pain and despite the fact that the dog was an undesexed male;

- establish any diagnosis, other than that the dog might have been suffering from Kennel Cough and provisionally, that the dog had split pelvic ligaments or tendons, yet you returned the dog to Suzanne Robinson;

- record the length of time over which the dog had been suffering;

- discuss the following options with Suzanne Robinson:-

- undertaking a urinalysis with culture and sensitivity;

- radiographing the dog;

- taking blood samples or biochemistries;

- leaving the dog in your care for further observation and tests;

You should have taken the actions described above but did not do so.

You made a tentative (unlikely and erroneous) diagnosis that

- Remus was suffering from Kennel Cough and

- (provisionally) pelvic sprain/strain

without finding any explanation for the metabolic malaise.

In spite of the fact that one of your diagnoses was that Remus was or might be suffering from Kennel Cough, an infectious disease, you treated Remus with a long acting potent cortico-steroid, (Depro Medrol) in an excessive amount.

You advised the owner to re-submit the dog in 14 days, but gave her no other instructions.

In addition, you supplied Prednisolone, to be given at a dose rate of 5 mg daily, which was inappropriate.

You did not warn the owner about possible side effects of the Prednisolone but should have done so.

You prescribed giving 1 Panadol a day, an inadequate and inappropriate pain relief in this case.

(ii) On 27 February 1998 Suzanne Robinson telephoned you and told you that Remus' condition had deteriorated.

You should have but did not:

- closely re-consider the clinical symptoms especially the anorexia at a time when the dog had already been given cortico-steroids, a side effect of which is appetite enhancement;

- advise her to bring the dog into you for re-examination;

discuss with her :
- taking radiographs;

- having any other tests conducted, such as :

- blood count and biochemistries;

- urinalysis with culture and sensitivity.

(iii) On 4 March 1997 Remus was presented to you again. You were informed by Suzanne Robinson that the dog's condition had deteriorated, in particular that it was not eating, had lost a lot of weight, was in constant pain, was continually shaking, was immobile and whimpering.

You did not :

- physically examine the dog;
offer to Suzanne Robinson
- taking a blood count and biochemistries of Remus;

- urinalysis with culture and sensitivity;

- taking radiographs

- but should have done so.

You replaced the 5mg daily Prednisolone with 25 mg Prednisolone tablets, to be taken daily at a time when the Depro Medrol should have been at peak blood level. The appropriate action was to review the case, and conduct a full clinical examination, not add more cortisone.

You did not warn the owner about possible side effects of the Prednisolone.

(iv) On 7 March 1997, Suzanne Robinson brought Remus back to your surgery. She said to you words to the effect of `My dog's dying'. You then pulled Remus out of her car. Remus was having difficulty walking, was shaking, had obviously lost weight, was in a state of shock and in a lot of pain.

You should have but did not discuss with the owner the options of taking any or all of the following tests and actions:

- referral to a specialist practitioner;

- blood count and biochemistries;

- urinalysis with culture and sensitivity;

- taking radiograph of the caudal abdomen and hindquarters +/- contrast dye studies of the urogenital system if indicated;

- euthanasia.

You did not take Remus' temperature, nor otherwise physically examine it, but should have done so.

Alternatively, if you did advise the owner of the options open to her or conduct a physical examination of the dog, you made no record of having done so.

(v) From 7 March 1997 you kept Remus under your care and management at your surgery until 11 March 1997, when the dog died.

On 8 March 1997 you observed haematuria and pyuria.

During that period, your management and treatment of the case was inadequate in that :

- you treated the dog with both non-steroidal anti-inflammatory drugs and cortico-steroids at the same time in a toxic, septicaemic patient;

- you failed to adequately investigate the urinary tract when there was evidence of urinary tract involvement;

- you failed to take adequate investigatory blood tests;

- you added a potentially nephrotoxic antibiotic (Gentamicin) without fully understanding the consequences;

- you noted a markedly elevated PCV (65) but did nothing to monitor it, nor acknowledge that your fluid therapy was inadequate to improve fluid perfusion and thus correct dehydration;

- you did not do enough for the dog's pain and suffering, for example the administration of an effective analgesic such as temgesic.

(vi) You failed to make sufficient records of your treatment of Remus to enable another veterinary surgeon to take over management of the case.

Details of deficiencies in your record keeping are set out in allegation 1(e).

(b) On 11 March 1997 you carried out an autopsy on the dog and then disposed of its carcass without the owner's permission.

(c) You did not ensure that conditions imposed by other legislation (namely, the Poisons and Therapeutic Goods Regulation 1994) relating to dispensing, handling or storing restricted or dangerous drugs were strictly complied with between 25 February 1997 and 11 March 1997.

Particulars

The drug Prednisolone was supplied by you to Suzanne Robinson between 25 February 1997 and 11 March 1997 and that drug was a restricted substance (being a substance specified in Schedule 4 of the Poisons List).

The label was required by S.27(1) to carry the following information:

(a) the name of the drug;

(b) the size of the tablets;

(c) the number of days over which to be given;

(d) the date of supply;

(e) the quantity supplied.

Except for the word `Preds.' on one label (which was not adequate as a name of the drug) none of these details were on the label on the packages of Prednisolone which you supplied.

(d) You supplied a substance included in schedule 4 to the Poisons List to an animal but did not ensure that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the particular substance.

Particulars

On 25 February 1997 you supplied the drug Prednisolone to Suzanne Robinson for her to administer to Remus. Subsequently, on 4 March 1997 you supplied to her an additional supply of Prednisolone tablets of a stronger strength than those on the 25th February 1997. The only written instructions which you gave to her were those written on labels attached to the packets within which the tablets were enclosed which were the words `One Tablet per day'.

(e) You failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made.

Particulars

Between 25 February 1997 and 11 March 1997 you were treating and caring for Remus and having consultations with its owner in relation to injuries and infection mentioned previously in this notice. The only record which you made in relation to your treatment of Remus and consultation with the owners of Remus between 25 February 1997 and 11 March 1997 were the notes which you wrote on both sides of your case record card. Particulars which were not recorded but which should have been recorded were

- your checking the dog on Saturday (8 March 1997) at 6pm and 11pm and Sunday (9 March 1997) at 1am and 6am and the condition of the dog and its symptoms which you observed on each of those occasions;

- your telephone conversation with Suzanne Robinson on 27 February 1998 , the information which she provided to you about the dog's condition in that telephone conversation and any advice or instructions which you gave to her;

- clinical re-examination on 4 March 1998 ;

- quantities of intravenous fluid and flow rates;

- whether the dog was urinating or defecating and any monitoring thereof;

- results of urinalysis.

11 The complaint lodged with the Tribunal included a further allegation, Allegation 2. For procedural reasons, it was not determined in the judgment under appeal. A separate determination was made by the Tribunal in its separate judgment in Remus 2 . As indicated earlier, Dr Lloyd appealed against this determination.

12 In the present proceedings, the specific grounds on which the Tribunal found Dr Lloyd to have been guilty of misconduct in a professional respect under each of Allegations 1(a) to 1 (e) are set out in the course of this judgment.

13 Dr Lloyd appealed against all of the Tribunal’s findings. The appeal was heard on 6 May 2003. At a later hearing, held on 28 July 2003, of appeals brought by Dr Lloyd against Tribunal findings in respect of other complaints referred by the Committee, Dr Lloyd sought leave to reopen this appeal and to make further submissions. With the Committee raising no objection, leave was granted.

The grounds of the present appeal

14 In outline, the grounds of Dr Lloyd’s appeal, each involving an alleged error of law by the Tribunal, are as follows:-

Ground (1): The Committee, having received an initial letter of complaint from Mrs Robinson, the owner of Remus, did not sufficiently investigate the complaint as required by s 27 of the Act. Notwithstanding this, the Tribunal proceeded with the inquiry.

Ground (2): When providing to Dr Lloyd, as required by s 28(3) of the Act, the opportunity to make written representations and, at a later stage, oral representations regarding the complaint, the Committee did not notify him of all the matters raised in the complaint in the form in which it was ultimately referred to the Tribunal. Notwithstanding this, the Tribunal proceeded with the inquiry.

Ground (3): In its judgment in Chisel, the Tribunal treated an account of certain observations and conduct of Mr Sam Girgenti Jnr, the son of the initial complainant, as if it were evidence given by Mr Girgenti. Its acceptance of this ‘evidence’, which was in conflict with parts of Dr Lloyd’s evidence, had adverse implications for its assessment of Dr Lloyd’s credibility in the present case.

Ground (4): The Tribunal erred in relying solely on admissions made by Dr Lloyd in a ‘Table Setting Out Agreed Facts and Other Matters’ filed in the course of proceedings in order to reach the conclusion that all the elements of Allegations 1(c) and 1(d), and part of 1(b) (relating to the conduct of the autopsy without Mrs Robinson’s consent) were made out.

Ground (5): During the course of the hearing, after Mrs Robinson had given her evidence in chief and been cross-examined, one member of the Tribunal panel was replaced by another. Over objections by counsel for Dr Lloyd, Mrs Robinson was not recalled for cross-examination. Instead, the new member read a transcript of the earlier evidence given by her. In reaching a number of its findings, the reconstituted panel preferred the evidence of Mrs Robinson to that of Dr Lloyd. This refusal to recall Mrs Robinson, in order that her credibility, which was a matter of importance, could be assessed by the new member, constituted a denial of natural justice to Dr Lloyd.

Ground (6): The Tribunal failed to have due regard to the evidence of three expert witnesses testifying to it – Dr Rawlinson, Dr Driver and Dr Dixon – and to the evidence of Dr Lloyd himself. In reaching conclusions adverse to Dr Lloyd despite the presence of this evidence, it manifested an incorrect understanding of the evidentiary requirements for proof of misconduct in a professional respect.

Ground (7): Two of the charges laid in the complaint were ‘duplicitous or repetitious’, so as to create unfairness to Dr Lloyd.

Ground (8): Dr Bradley, an expert witness called on behalf of the Committee, was permitted to remain in the hearing room after he had given evidence, in order that he might assist counsel for the Committee.

Ground (9): The Tribunal exhibited bias against Dr Lloyd.

Ground (10): The degree of factual error in the judgment was such that it might in fact be a decision, not of the whole Tribunal panel, but of a single member only.

Ground (11): The Tribunal erred in holding that Dr Lloyd’s burying of the body of Remus, which he did without notification to Mrs Robinson, fell within the practice of veterinary science and could therefore amount to misconduct in a professional respect under the statutory definition in the Act.

15 The first three of these grounds of appeal were not raised in the appeal proceedings until the reopened hearing of 28 July 2003.

16 Dr Lloyd also sought leave to extend the appeal to the merits. The grounds put forward were that the evidence of Mrs Robinson was demonstrably unreliable and that of Dr Bradley lacked impartiality. In consequence, the Tribunal’s findings were against the weight of the evidence. In the particular circumstances, we considered it appropriate to grant leave.

The position adopted by the Committee

17 An unusual feature of this appeal is that the Committee, having initially laid the complaint against Dr Lloyd, raised no significant opposition to the appeal by him. Furthermore, in its Reply to the Notice of Appeal, in a written submission and in the hearing before us, it raised additional arguments in support of the appeal.

18 We do not think that, on account of this decision by the Committee, the respondent to this appeal, to refrain from opposing the appellant’s arguments and indeed to provide positive support for some of them, we should simply allow the appeal. Previously, the Committee, in the discharge of its statutory functions, both referred the various allegations in the complaint to the Tribunal and brought forward a considerable quantity of evidence with a view to establishing that they were well founded. In our opinion, we would be failing to discharge the Tribunal’s responsibilities to protect the public interest in professional disciplinary proceedings such as these if we ignored this evidence and allowed the appeal in full simply because the Committee chose not to oppose it.

19 We therefore consider that we are obliged to reach our own independent conclusion as to whether and, if so, to what extent the appeal should succeed, as opposed to simply endorsing the arguments put forward in support of the appeal by both parties to it. In this connection, we would express our agreement, in general terms, with observations made by the Tribunal in Total Eclipse- Findings, at [156 – 173].

20 We have felt at a disadvantage in not receiving submissions opposing the appeal. In preparing this judgment, we have had to conduct our own researches of the relevant law. But we recognise that grounds on which we might affirm the judgment under appeal are to be found in the reasons for judgment themselves. We would add also that, in so far as a number of the grounds of appeal are concerned with legal procedure rather than veterinary science, it is not so important for a professional disciplinary body such as the Committee to present arguments in opposition to the appeal.

The relevant aspects of ‘misconduct in a professional respect’

21 A discussion of the concept of ‘misconduct in a professional respect’, both at common law (in its application to veterinary surgeons) and under various provisions of the Act, appears in the judgment under appeal (Remus 1, at [25 – 33]). We are in general agreement with what is said there, and will not repeat it in these reasons. Instead, we will merely outline the matters that are of particular importance in this appeal.

22 As to common law misconduct, it is enough to say that it includes conduct in the course of the practice of veterinary surgery that would incur the strong reprobation of veterinary surgeons of good repute and competence. Such conduct may take the form of failure to treat animal patients with competence and diligence. It is not constituted, however, by ‘mere’ negligence in the provision of veterinary care.

23 The Act extends the concept of misconduct in a professional respect in a number of ways. The relevant provision, for present purposes, is s 22(c). This states that misconduct in a professional respect is committed by any veterinary surgeon who –

(c) breaches any provision, prescribed for the purposes of this paragraph, of the veterinary surgeon's code of professional conduct established under section 23.
24 The Veterinary Surgeons’ Code of Professional Conduct (hereafter ‘the Code’) referred to here is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995. Each of the provisions in it that are relevant to the present appeal is prescribed for the purposes of s 22(c) of the Act. In consequence, a breach of any these provisions is deemed by s 22(c) to be misconduct in a professional respect.

25 The provisions of the Code in question are clauses 5(2), 5(12) 6(3) and 6(4). These are as follows:-

5. Professional practice

(2) Professional procedures should always be carried out in accordance with current standards of veterinary science.

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

6. Drugs, antibiotics and other chemical or biological substances

(3) A veterinary surgeon must not supply, issue or dispense to a client any substance that is included in Schedule 1, 3 or 4 to the Poisons List without ensuring that the substance is correctly labelled.

(4) A veterinary surgeon who supplies or arranges for the supply to an animal of a substance included in Schedule 1, 3 or 4 to the Poisons List must ensure that the person who dispenses the substance is provided with written instructions as to any dosage requirement, route of administration or withholding period that is relevant to the use of the substance.

Note. Section 8 of the Poisons Act 1966 deals with the Poisons List.

26 With reference to clause 6(3), it should be added that the relevant labelling requirements are set out in clause 1 of Appendix A of the Poisons and Therapeutic Goods Regulation 1994. The text of this clause and the substance of related legislation are set out in the Tribunal’s judgment at [34 – 39]. They need not be repeated here.

27 Each of the eleven grounds of appeal listed above at [14] will now be separately discussed. The approach adopted will be first to examine in each case whether any error of law has been shown. We will then set out our conclusions as to the extent, if any, to which the findings appealed against must be set aside in consequence of any errors discerned.

Ground (1): Insufficient investigation of the complaint by the Committee

28 In putting forward this ground of appeal at the reopened hearing of 28 July 2003, Ms Tzannes and Ms Green, who acted as counsel for Dr Lloyd, relied on the decision of the present Appeal Panel relating to another complaint against him. In the Total Eclipse Appeal, we ruled that an investigation as required by s 27 of the Act had not been conducted by the Committee. The only steps taken by the Committee had been to consider (a) a letter of complaint written to the AVA by a person who did not own the animal involved in the case, (b) Dr Lloyd’s written response to that letter and (c) oral representations made by him to the Committee (see the judgment at [21]).

29 The Act provides as follows in s 27:-

27 Investigation by Investigating Committee

(1) The Investigating Committee shall, except as provided by section 26 (4) and (5), cause all complaints against registered veterinary surgeons made to it in accordance with section 26 to be investigated.

(2) Where in the course of the investigation of a complaint against a registered veterinary surgeon:

(a) it appears to the Investigating Committee that, having regard to the matters arising during the investigation:

(i) another complaint could be made to it against the veterinary surgeon, whether instead of the complaint then being investigated or in addition to it, or

(ii) a complaint could be made to it against another registered veterinary surgeon, and

(b) the Investigating Committee is of the opinion that the other complaint, or the complaint against the other veterinary surgeon, is one that could be made to it in accordance with section 26,

the Investigating Committee may itself make that other complaint or the complaint against that other veterinary surgeon, which shall thereupon be deemed to be a complaint made to it in accordance with section 26.

(3) The proceedings of the Investigating Committee shall be held in the absence of the public.

(4) For the purposes of any investigation conducted by it, the Investigating Committee may conduct the investigation in such manner as it thinks fit and is not bound to observe rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.

(5) Without limiting subsection (4), the Investigating Committee may delegate its function of collecting evidence in relation to an investigation to any person that the Investigating Committee considers appropriate.

30 In the present case, evidence as to the material considered by the Committee at the investigatory stage appears in the annexures to an affidavit dated 22 October 2002 by Ms M Linkenbagh, Secretary to the Committee.

31 This material comprised at least the following items: (a) the letter of complaint dated 17 March 1997 from Mrs Robinson, the owner of Remus, to the AVA; (b) Dr Lloyd’s reply, dated 14 April 1997, to a letter from the AVA, enclosing this letter of complaint; (c) a list of points raised by the AVA in its letter forwarding the complaint to the Committee; (d) an x-ray of Remus supplied by Dr Lloyd; (e) his case-cards and an invoice relating to Remus; (e) written representations, dated 30 September 1997, made by him to the Committee and (f) oral representations made by him to the Committee on 24 November 1997.

32 It appears from the annexures to Ms Linkenbagh’s affidavit that the Committee also sought an expert opinion regarding the x-ray from Dr Dixon, a radiologist. He did not, however, reply until 5 May 1998, some months after the investigation had been completed.

33 In the light of this evidence, we do not accept Dr Lloyd’s argument that no investigation, such as s 27 requires, was conducted by the Committee. Significantly more was done in the present inquiry than in the ‘Total Eclipse’ Inquiry. It is not for us to decide whether an investigation is ‘adequate’, in some sense or another. That is a matter of professional judgment for the Committee. We could only make the ruling sought by Dr Lloyd if the measures adopted by the Committee could not reasonably be said to constitute an ‘investigation’ of any kind whatsoever.

34 We note also that this ground of appeal was not raised at first instance, nor indeed until the appeal was reopened, by leave, on 28 July.

35 Ground (1) of the appeal is accordingly rejected.

Ground (2): Failure by the Committee to notify Dr Lloyd of all the matters complained of

36 In putting forward this ground of appeal, counsel for Dr Lloyd relied particularly on one alleged discrepancy of major importance between the matters communicated to Dr Lloyd before he made representations to the Committee and the matters set out in the complaint subsequently forwarded to the Tribunal. This was that the complaint, but not the matters previously communicated, contained an allegation that Dr Lloyd failed to diagnose correctly the condition affecting Remus when Mrs Robinson first brought him to Dr Lloyd’s surgery.

37 The same can in fact be said about other matters contained in the complaint, namely the allegations that Dr Lloyd supplied restricted substances (as specified in Schedule 4 of the Poisons List) to Mrs Robinson without proper labels or sufficient instructions as to how they should be administered to Remus, and that he failed to maintain adequate records of his treatment of Remus.

38 We agree that an explicit allegation of failure to diagnose correctly was not conveyed to Dr Lloyd before he appeared before the Committee on 24 November 1997. It was, at best, implicit in Mrs Robinson’s letter of complaint that Dr Lloyd’s initial diagnosis may have been incorrect. At the hearing before the Committee on 24 November, however, it was made clear to Dr Lloyd that, in the opinion of Committee members, he had made a diagnosis which proved incorrect and had failed to consider other possible explanations for Remus’s condition. Dr Lloyd had an opportunity at that hearing to make submissions in response to this allegation.

39 In relation to this particular matter, the line of argument pressed by counsel for Dr Lloyd depends upon the proposition that all the allegations contained in a complaint ultimately referred to the Tribunal under s 28(1)(c) of the Act must be conveyed to the veterinary surgeon concerned in the course of providing to him or her the opportunity to make written representations and, subsequently, oral representations to the Committee under s 28(3).

40 The following is the text of s 28:-

28 Decision of Investigating Committee on complaint

(1) The Investigating Committee:

(a) may dismiss any complaint made to it,

(b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following:

(i) by order, caution or reprimand the veterinary surgeon,

(ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon,

(iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon’s continuing education, acquisition of skills and professional supervision, or

(c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly.

(2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct.

(3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.

41 It will be seen that s 28(3) does not specifically contain the requirement for which Dr Lloyd contends. If such a requirement were to be inferred, a consequence would be that the substantive content of a complaint could not be altered – or at least, not enlarged – following consideration by the Committee of either the written or the oral representations made to it pursuant to s 28(3). Yet the alteration of a complaint, and the addition or substitution of a new complaint in the course of an investigation is specifically provided for in s 27(2) of the Act (set out above at [29]).

42 Having regard to these considerations, we are of the opinion that there is no implicit requirement that all matters raised in a complaint referred to the Tribunal must, as a matter of law, be communicated to the veterinary surgeon concerned before the procedures set out in s 28(3) are carried out.

43 For reasons, however, that are set out in our judgment in the Total Eclipse Appeal, the requirements of natural justice must be observed. If, for instance, a wholly new and serious allegation of misconduct were made without any prior warning against a veterinary surgeon at the conclusion of the oral interview required by s 28(3), the surgeon might well be able to claim that no proper opportunity had been provided for him or her to rebut or otherwise answer the allegation. This would constitute a denial of natural justice.

44 Having perused the transcript of Dr Lloyd’s interview with the Committee on 24 November 1997, together with the prior correspondence listed at [31] above, we have however concluded that principles of natural justice were not infringed in the present case. It was implicit throughout the correspondence that Dr Lloyd’s initial diagnosis might be subject to challenge. There were several references during the interview (the first of them at an early stage) to the likelihood that, from the outset, Remus was suffering from something other than the pelvic injury that he initially diagnosed. Dr Lloyd provided ready responses when called upon to defend his diagnosis.

45 This is not a situation such as we dealt with in the Total Eclipse Appeal. In that inquiry, the Committee wholly omitted a procedural step – providing to Dr Lloyd an opportunity to make written submissions – which s 28(3) specifically requires. In the present case, the express terms of s 28(3) were complied with. The issue is whether an implicit requirement of natural justice was also complied with. Having considered the particular circumstances, our conclusion is that there was no denial of natural justice.

46 If we had reached a different conclusion on this issue, we might still have been inclined to reject this ground of appeal. The reason is that the matter was not raised at first instance, nor indeed until the appeal was reopened, by leave, on 28 July 2003.

47 Different considerations apply to the other matters that were not put to Dr Lloyd during the investigation but which formed part of the complaint referred to the Tribunal. These, as mentioned above at [37], were the allegations that he supplied restricted substances without proper labels or sufficient instructions as to how they should be administered, and that he failed to maintain adequate treatment records.

48 In contrast to the allegation of failure to diagnose correctly, these allegations do not appear to have been put to Dr Lloyd at any stage of the process of investigation. As we understand the relevant law, considerations of natural justice would prima facie lead to a ruling that it was not appropriate that they should have been included in the complaint referred to the Tribunal under s 28(1)(c).

49 A crucial aspect of this part of the complaint is however that, in a statement of ‘agreed facts’ filed in the Tribunal on 21 September 1999, and in a ‘Table Setting Out Agreed Facts and Other Matters’ (hereafter ‘Table of Agreed Facts’), filed on 3 September 2002, Dr Lloyd made significant admissions in relation to these allegations. He conceded that he did not fully comply with the requirements relating to labelling of restricted substances and that ‘his record-keeping was not full’.

50 Furthermore, as already noted, the underlying ground of appeal relating to them was not raised at first instance, nor indeed until the appeal was reopened, by leave, on 28 July 2003. Also relevant, in our view, is the fact that, when this issue was raised on that date, no specific claim was made on his behalf that he suffered a denial of natural justice by virtue of the late inclusion of these particular allegations in the charges laid against him.

51 For these reasons, our conclusion is that Dr Lloyd cannot rely on a claim of denial of natural justice to support an argument that the allegations relating to labelling and dispensation of restricted substances and keeping of records should not have been included in the present complaint.

52 Ground (2) of the present appeal is accordingly dismissed.

Ground (3): Damage to Dr Lloyd’s credit through erroneously treating, in a companion inquiry, an account of a person’s observations and conduct as the evidence of that person

53 The precise nature of this error by the Tribunal is described in our judgment in the Chisel Appeal, at [73 – 76].

54 In our opinion, this ground of appeal, standing alone, has little merit. We find it hard to believe that in a long and complex series of hearings such as occurred in these inquiries into Dr Lloyd’s conduct, this one mistake as to the nature of an account of the observations and conduct of a person (Mr Sam Girgenti Jnr) would have had any general significance for the Tribunal’s assessment of Dr Lloyd’s credibility. If the Tribunal had had other grounds for believing him to be credible, this error on its part would not have disturbed its conclusion.

55 We reject this ground of appeal. It was, we note, not raised until the reopened hearing on 28 July.

Ground (4): Reliance on admissions made by Dr Lloyd

56 The Table of Agreed Facts to which this ground of appeal relates was filed in the Tribunal on 3 September 2002, together with letters to the Tribunal from Dr Lloyd’s solicitors (dated 26 August 2002) and from the Secretary to the Committee (dated 3 September 2002). In these letters, it was explained that the parties wished to achieve a speedy resolution of the present proceedings, and of other disciplinary proceedings that had been brought by the Committee against Dr Lloyd. With this in mind, Dr Lloyd had agreed to concede certain factual matters, and the Committee had agreed that certain allegations against him should not be pressed.

57 For reasons briefly mentioned earlier in this judgment (see [17 – 19]), the Tribunal did not consider it appropriate that the allegations identified by the Committee should be withdrawn in this way. However, its findings on the allegations to which this ground of appeal relates – that is, Allegations 1(c), 1(d) and part of 1(b) – were reliant on some of the concessions of fact made by Dr Lloyd in the Table of Agreed Facts (see the Tribunal’s judgment at [47 – 50, 266 – 277]). On account of these concessions, the Tribunal stated, at [51], that there was no ‘contest’ in the inquiry as regards Allegations 1(c), 1(d) and the relevant part of 1(b).

58 Two arguments were put to us by the parties to this appeal. The first was that the Tribunal erred in treating these concessions as having been made for all purposes, rather than as being conditional on the Committee being permitted to withdraw the allegations listed in the Table of Agreed Facts. The second, as we understood it, was that it was incorrect for the Tribunal simply to note the concessions made – which were purely concessions as to factual matters – and to proceed, with little further discussion because it considered that there was no ‘contest’, to make findings of misconduct in a professional respect.

59 In our judgment, the first argument is not open to Dr Lloyd. Even if it were appropriate (which we very much doubt) for the parties to disciplinary proceedings in the Tribunal to engage in what are tantamount to settlement negotiations ‘without prejudice’ – or, to use another analogy, in plea bargaining – the Table of Agreed Facts and accompanying correspondence could not be treated as forming part of negotiations of this nature. They were filed in the Tribunal and constitute part of the record of the proceedings. The text of them does not purport to limit the use to which they might be put in the proceedings.

60 Our responses to the second line of argument are best set out in our separate discussions of the Allegations to which they relate. The relevant paragraphs below are [227 – 233], as regards Allegation 1(b), and [234 – 238], as regards Allegations 1(c) and 1(d).

Ground (5): The Tribunal’s acceptance of Mrs Robinson’s evidence, without having recalled her for cross-examination after it was reconstituted

61 In dealing with this ground of appeal, it is necessary to outline briefly the events surrounding the reconstitution of the Tribunal.

62 In the course of five days in February 2000, the Tribunal heard part of the evidence relating to the present inquiry. In March 2000, the term of office of one of the members, Ms Dubow, expired. Ms Dubow’s status was that of a non-judicial member appointed to represent the interest of users of veterinary services.

63 At a directions hearing on 22 July 2000, the President of the Tribunal, who was throughout the presiding member in the Tribunal’s first instance proceedings involving Dr Lloyd, gave directions regarding the reconstitution of the Tribunal. He directed that it should continue to include the two existing members, himself and Dr McGilvray. Dr McGilvray’s status was that of a non-judicial member who is a veterinary surgeon and a member of the Board of Veterinary Surgeons.

64 The President directed also that Ms Dubow should be replaced by Ms Clark, that Ms Clark should indicate whether she wished any of the earlier witnesses to be recalled, and that her views on this matter should then be conveyed to the parties for their oral submissions.

65 The Tribunal proceeded on this basis. In December 2000, it heard the remaining witnesses in the present inquiry.

66 Dr Lloyd had appealed against these rulings of the President. On 15 August 2001, an Appeal Panel of the Tribunal dismissed his appeal. He then appealed to the Court of Appeal. On 16 July 2002, his appeal was upheld (Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224).

67 The single ground on which he succeeded in the Court of Appeal was that it was for the Tribunal, not the President sitting alone, to determine what witnesses, if any, should be recalled. But in his judgment, Sheller JA, with whom Hodgson JA and Ipp AJA agreed, made some observations of relevance to the issue facing the present Appeal Panel.

68 Sheller JA referred to relevant statutory provisions. A provision which he described (at [9]) as ‘critical to understanding this appeal’ was s 79 of the Administrative Decisions Tribunal Act 1997. This states as follows:-

79 Reconstitution of Tribunal during hearing

(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:

(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and

(b) the parties consent.

(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.

(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.

69 Sheller JA indicated that this was a case in which, on account of the objections raised by Dr Lloyd, the proceedings were being ‘reconsidered’ by the Tribunal, pursuant to s 79(3). In these circumstances, he said (at [10]), it was clear that ‘the newly constituted Tribunal starts the hearing afresh’. By virtue of s 79(4), however, it may ‘have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings’.

70 At [23], he referred to s 73 of the Administrative Decisions Tribunal Act. He noted the ‘dictate’ in s 73(3) that the Tribunal should act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’. He noted also that, under s 73(2), the Tribunal is empowered to ‘inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’. He held that, within the limits imposed by these provisions, it was ‘entirely within the discretion of the Tribunal’, as newly constituted, to ‘have regard to the record and indeed to require a party not to call the evidence again’.

71 At [27], Sheller JA referred to the contention by Dr Lloyd that the procedure determined by the President ‘offended against the rules of natural justice and gave rise to procedural unfairness’. He held that this question did not arise because of his conclusion that the President, sitting alone, did not have the power to determine the procedure to be adopted in the course of giving directions.

72 Finally, Sheller JA indicated, at [31], that it was not for the Court of Appeal to stipulate how the Tribunal should exercise its discretion under s 79(4). But he considered it appropriate for Dr Lloyd and, if necessary, the Committee to have the opportunity to make submissions as to what evidence already given or witnesses already heard should be recalled. The Tribunal should then rule on the matter. He concluded as follows:-

Subject to that being done and, if appropriate, evidence being received accordingly, there seems to be no reason why the Tribunal should not now proceed to a decision on the basis of the evidence it has heard and the record of the proceedings before the tribunal as previously constituted.
73 The Tribunal, as reconstituted, then dealt with the contention that in the present inquiry Mrs Robinson should be recalled. In making that submission, Ms Green, representing Dr Lloyd, agreed that only charges 1(a) and (b) would be affected. She made comparable submissions in respect of witnesses in the two accompanying inquiries.

74 On 13 November 2002, the Tribunal delivered judgment, ruling against these submissions (Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233). At [24], it noted Ms Green’s argument that ‘as a matter of fairness, the Panel should only make critical findings as to credibility after directly hearing the evidence of the principal witnesses who have made allegations against [Dr Lloyd]’. It referred to her argument that Ms Clark, the new member, would be at a disadvantage, and Dr Lloyd gravely prejudiced, if Ms Clark ‘did not have the opportunity to assess the mannerisms, demeanour, tone and way in which they gave their evidence’.

75 The Tribunal indicated, at [27], that Ms Clark, having read the transcript, did not wish to recall any witnesses. She believed that, due to the lapse of time, their memories would probably be confused.

76 At [28], it noted that Dr McGilvray also did not wish any witnesses to be recalled, because the cross-examination of them had been satisfactory, the transcripts satisfactorily depicted their evidence and the public interest dictated a speedy conclusion to the inquiries.

77 At [30], the Tribunal declared itself satisfied that there was ‘no substantial prejudice’ to Dr Lloyd in ‘proceeding to determine the matters that are the subject of the request for recall on the basis of the existing material’.

78 It is clear to us that the issue which we must now determine is one mentioned, but expressly left open, by the Court of Appeal. It is whether the reconstituted Tribunal, in adopting in the present inquiry the procedure set out in its judgment of 13 November 2002, fulfilled its obligation under s 73(2) of the Administrative Decisions Tribunal Act to comply with the rules of natural justice. If it failed to do so, this would, in our opinion, be an error of law.

79 It should be noted at this point that a subsequent decision of the Court of Appeal, Tu v University of Sydney [2003] NSWCA 170, contains important rulings on the operation of s 79, but does not touch upon the issue to be resolved in this appeal.

80 In Aronson, M and Dyer, B, Judicial Review of Administrative Action, 2nd Ed, LBC Information Services, 2000, at 406, the following outline of the relevant principles is to be found (footnotes are omitted):-

The hearing function, like the power to make a decision, may be delegated to another if there is express or implied authority to do so, or may in some cases be performed through an “agent” or alter ego, or with the assistance of another. Natural justice in its strongest form does not permit the implication of authority to delegate the hearing function in this manner, as is demonstrated by the duty of judges to hear and decide in person the cases assigned to them. Any delegation of hearing functions increases the risk that evidence may be inadvertently misrepresented to the ultimate decision-maker and cuts against the adversarial emphasis on orality. Tribunals cast in the judicial model are likely to be similarly prevented from delegating. Consequently, a change in the composition of such tribunals during the course of a hearing may give rise to a breach of procedural fairness, although this does not prevent a differently constituted tribunal dealing with a discrete or severable matter (emphasis added).
81 It is beyond doubt that this Tribunal, at least in its exercises of jurisdiction in professional disciplinary proceedings, is to be classified as one ‘cast in the judicial model’. The authorities cited in this connection by the learned authors, Barnard v National Dock Labour Board [1953] 2 QB 18 and Vine v National Dock Labour Board [1957] AC 488, were specifically concerned with a tribunal exercising this type of jurisdiction.

82 The proposition, in the last sentence quoted from Aronson and Dyer, that a change in the composition of such tribunals may give rise to a breach of procedural fairness, is supported by a number of authorities to which the learned authors refer in a footnote. Four of these will now be outlined.

83 In Bremner v Victorian Railways Commissioner (1902) 27 VLR 729, the plaintiff, a railway employee, appealed against a recommendation for his dismissal to an Appeal Board. The statutory quorum was three. The Board, comprised of three members, heard the evidence and concluded he was guilty of one of the three offences with which he had been charged. Only two out of the three members were in favour of his dismissal. These two recommended accordingly to the Victorian Railways Commissioner, without consulting the third. A Full Bench of the Supreme Court of Victoria held that the Commissioner’s consequent dismissal of the plaintiff was wrongful. Williams J, delivering the Court’s judgment, said at 737 that the conduct of the two Board members in recommending the dismissal was ‘absolutely illegal’.

84 In Pettitt v South Australian Tattersall’s Club [1930] SASR 258, the plaintiff’s continued membership of a club was considered at two meetings of the club’s committee. At the first meeting, reasons for refusing his tender of a subscription were explained to him and he made a detailed statement responding to the allegations against him. After he left the meeting, the committee members resolved that the refusal should be maintained. At the second meeting, the committee included an additional member called Marshall, to whom ‘some explanation of the position’ was given by the Chairman beforehand. The plaintiff was told at this meeting that its purpose was only ‘for consideration of judgment’, not to inquire further into the facts. In the course of addressing the meeting, the plaintiff objected to the procedure being followed. But the Committee, with Marshall participating, confirmed the earlier provisional decision.

85 The plaintiff successfully challenged his dismissal from the club in the Supreme Court of South Australia. One of the grounds for Piper J’s decision was that Marshall had sat and voted at the second meeting without having heard the plaintiff at all on the questions of fact.

86 At 265, Piper J said as follows:-

In my opinion, the Committee which ultimately decides what is to be done must have heard the whole case. Not only the conclusions of fact, but the course to be taken upon them, may be affected in any Committeeman’s mind by the evidence as he hears it and by incidents of the inquiry into the facts. The plaintiff waived nothing in respect of the proceedings [at the second meeting].
87 In R v Planning Appeals Board, Ex parte Shoppingtown Motor Body Repairs Pty Ltd, Unreported, Supreme Court of Victoria, 18 July 1985, a town planning authority refused to permit the applicant company (Shoppingtown) to use land for a panel beating works. The appeal by Shoppingtown to a division of the Planning Appeals Board was held over two separate days. During the first hour of the first day, with three members of the division sitting, the proceedings were not recorded. When this was drawn to the Chairperson’s attention, she declined to recommence them, saying that she had notes of what had occurred. On the second day, one of the three members of the division was unable to attend. The Chairperson’s suggestion that the proceedings should continue before the remaining two members was rejected by Shoppingtown. After an adjournment, the Chairperson announced that the division was reconstituted with a new member and that it would have regard to the record of the proceedings already taken. Shoppingtown then sought prohibition against the Board continuing to hear the appeal.

88 Nathan J granted the order sought, relying separately on provisions of the Planning Appeals Board Act 1980 (Vic) and on principles of natural justice. Section 19 of this Act stipulated that when a member of a division ceased to be available in the course of a hearing and the parties did not agree to completion of the hearing before the remaining member or members, the appeal should be ‘re-heard by a newly-constituted division’. Nathan J held that the clear intent was that the ‘re-hearing’ of the appeal must be conducted by the new members ‘from the very start’.

89 He held also that this result followed from the application of the principles of natural justice. An express requirement to observe natural justice was imposed in s 25(b) of the Planning Appeals Board Act.

90 In relation to the second of these rulings, Nathan J suggested that while the duty to hear a case fairly may be distinct from the duty to comply with natural justice, but ‘is more probably part of it’. Referring to the Bremner and Pettitt decisions, he stated as follows: ‘Change in the composition of the tribunal or bench during the course of proceedings cannot result in the one tribunal or bench hearing all of the case, and thus fairly disposing of it’. He added that a complete transcript of the first day’s hearing was not available to pass on to the new member, and that submissions and witnesses had been heard and a view conducted. In these circumstances, he said,

It is not tenable to suggest that an incoming member could have adjudicated upon the same material as one who had been present throughout. In the absence of consent or waiver the rights of Shoppingtown to have all parts of its case heard were offended when the Board was reconstructed, and not reconstituted by different members during the course of the hearing.
91 In Gleeson v New South Wales Harness Racing Authority (1990) 21 ALD 515, the stewards of the Harness Racing Authority held an inquiry into alleged misconduct by the plaintiff. After a brief hearing, they then made an adjudication, on the basis of the material obtained in the inquiry, that she should be suspended from training and driving horses. The inquiry and adjudication occurred over four separate days.

92 The composition of the group of stewards who held these proceedings changed from time to time. Of the five stewards who took part in the adjudication, two had not been present on all the days of the inquiry. Young J, in the Supreme Court of New South Wales, held that these changes provided grounds for quashing the suspension. He expressed his reasons as follows (at 521):-

Another ground that concerns me is that the members of the tribunal changed from time to time… It is a fundamental rule of justice that when a tribunal is making an adjudication it must be on evidence which all the members of the tribunal making the adjudication have heard and that their adjudication must not be in the presence of a stranger.
93 The foregoing quotations from the Pettitt and Shoppingtown cases mention an exception to the principle that a change in the composition of a court or tribunal will render its decision voidable on grounds of natural justice if the newly constituted tribunal does not rehear the evidence. This is where the parties consent to a lesser course being adopted, such as relying on the transcript of evidence taken so far. This exception has been acknowledged, with reference to proceedings in the Supreme Court of New South Wales, in a High Court decision: see Brennan v Brennan (1953) 89 CLR 129 at 137.

94 Another exception to the principle, mentioned by Aronson and Dyer, is where the reconstituted court or tribunal deals with a discrete or severable question. This exception has been endorsed in the High Court and at Supreme Court level. Examples of such questions are the costs of completed proceedings (Orr v Holmes (1948) 76 CLR 632 at 637-638; Wentworth v Rogers (No. 3) (1985) 6 NSWLR 642) and the merits of an appeal, where the court before reconstitution merely held a directions hearing (R v Lewis (1988) 165 CLR 12 at 15-16).

95 A third exception, exemplified in Cotogno v Lamb (No. 2) (1985) 3 NSWLR 221, is where an appeal court is reconstituted. It is considered that incoming judges of appeal can, by reading the transcript of the earlier proceedings, put themselves in the same position as those whom they replace.

96 A contrasting situation was given consideration by the High Court in Brennan (at 136-137). The Court said that the reconstitution of a court during the hearing of evidence is in most cases open to ‘grave objections’, even if a full transcript of the evidence before reconstitution is available to the reconstituted bench. It added that ‘the objection becomes graver when there is, as in the present case, a serious conflict of evidence’.

97 In Lovett v Chiropractors and Osteopaths Registration Board, Unreported, Supreme Court of Victoria, 7 December 1993, Cummins J ruled that reconstitution of a registration board which was hearing a charge of unprofessional conduct against the plaintiff, a chiropractor, was permissible after it had found the charge proved and before it imposed a penalty. He held that this was not a case where the matter dealt with by the reconstituted board was wholly discrete. While acknowledging that there was a ‘clear distinction between liability and penalty’, he said also that there was an ‘interface’ between these two, which was ‘more substantial than mere ancillary argument as to costs’. In upholding the reconstitution, he took explicit account of the fact that the reconstituted board would not only have access to the full transcript of evidence but was prepared, when determining the penalty, to recall any witnesses whom the plaintiff wished to recall. He considered that these ‘remedies and ameliorations’ went ‘sufficiently far to provide natural justice and procedural fairness to the plaintiff’.

98 Cummins J stated that ‘the residual and essential principle is the requirement of justice and of fairness’. He referred at this point to a passage in the judgment of Kirby P in Wentworth v Rogers (No. 3) (1985) 6 NSWLR 642. At 649, Kirby P said that, even if a case falls outside the two exceptions mentioned above, reconstitution of a court will not necessarily lead to an order for a new trial, because ‘the guiding principle is the demands of justice in the particular case’. He went on to identify as relevant factors ‘the extent of possible prejudice’ and ‘the risk of injustice’ arising from the procedure followed and ‘the expense and delay’ that would be occasioned by an order for a new trial.

99 In the present appeal, the essence of the argument pressed by Dr Lloyd is as follows. Over objections raised on his behalf, the Tribunal, having reconstituted itself pursuant to statutory powers, did not recall a key witness, namely, Mrs Robinson. The incoming member did not see and hear Mrs Robinson being cross-examined, but merely read a transcript of her earlier cross-examination. In its judgment, the Tribunal stated that it preferred her evidence to the evidence that he gave on a number of issues where they were in conflict. It explicitly relied on her evidence relating to these issues in making a number of its findings of misconduct in a professional respect against him.

100 It is clear that none of the three exceptions outlined earlier applies in the present case. Accordingly, the foregoing authorities clearly provide the basis for a finding that the refusal to recall Mrs Robinson following the reconstitution of the Tribunal amounted to a breach of natural justice.

101 The matters of relevance in determining whether such a finding should be made include the following. This was a case involving a direct conflict of evidence on issues of importance for a number of the Tribunal’s findings. Some expense and inconvenience would have been occasioned by recalling Mrs Robinson, seeing that the taking of her evidence before the original Tribunal occupied a significant time. But the proposal put to the Tribunal was that she be recalled for only a limited period of cross-examination. It is clear also that significant prejudice was potentially caused to Dr Lloyd by the Tribunal’s acceptance of her evidence without recalling her.

102 The issue ultimately depends, as Kirby P said in Wentworth v Rogers, on ‘the demands of justice in the particular case’. Our conclusion, after weighing as best we can the competing considerations, is that the Tribunal, in not acceding to Dr Lloyd’s request for recall of Mrs Robinson, did not comply with its obligation, imposed by s 73(2) of the Administrative Decisions Tribunal Act 1997, to observe the requirements of natural justice.

103 It follows, in our opinion, that we must set aside those findings by the Tribunal that depend on acceptance of Mrs Robinson’s evidence, in circumstances where no other evidence corroborated her, in preference to that of Dr Lloyd. The implications of this conclusion are discussed below.

104 It also follows that there is no reason to grant leave to extend this appeal to a review of the merits, to the extent that Dr Lloyd’s application for such leave was based on a submission that the evidence of Mrs Robinson was demonstrably unreliable.

Ground (6): Insufficient weight given by the Tribunal to material parts of the expert evidence

105 The issue here is whether the Tribunal should have made findings of misconduct in a professional respect in relation to a number of allegations as to which one of the expert witnesses (Dr Bradley) expressed an opinion in favour of such a conclusion, but one or more others (notably, Dr Driver) opposed it.

106 The submissions on this point were chiefly made by Mr Grey, on behalf of the Committee. The starting point of his argument was the proposition that, having regard to the seriousness of a finding of professional misconduct, the Tribunal had to be ‘comfortably satisfied’ that this charge was proved. In conformity with well-known principles laid down by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363, the standard of proof was higher than that applicable in numerous other categories of civil proceedings because of the gravity of the possible consequences.

107 Mr Grey referred also to the principle that, at common law, professional misconduct involves more than ‘mere negligence’. Where negligence in professional conduct is the basis of a charge, the negligence must be such that it might be ‘reasonably regarded as disgraceful or dishonourable by veterinary surgeons of good repute and competency’ (Kalil v Bray [1977] 1 NSWLR 256 at 263) or would ‘reasonably incur the strong reprobation’ of such surgeons (Re Lloyd, Unreported, Veterinary Surgeons Disciplinary Tribunal, 16 December 1994).

108 The present Tribunal, in its judgment in this case at [23, 27 – 29], referred to these principles, and indeed to the three cases just cited.

109 The Tribunal referred also to Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, where Kirby P (at 200) said that the statutory test for professional misconduct by a medical practitioner was ‘not met by mere professional incompetence or by deficiencies in the practice of the profession’. Instead, he said, it included

a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.
110 Mr Grey proceeded from this starting point to argue that a finding of professional misconduct should not be made simply on the basis of a preference for the opinion of one expert witness over that of another. He maintained that in this situation, it could not be said that there was such evidence of professional misconduct that a court or tribunal could be ‘comfortably satisfied’. Only if no practitioner of good repute and competence could approve of the conduct in question could such a conclusion be properly reached.

111 This argument receives some support from the judgment of Hutley JA in Qidwai v Brown [1984] 1 NSWLR 100. Here the Court of Appeal overturned a finding of professional misconduct made against a medical practitioner by the Medical Disciplinary Tribunal. The relevant ground of misconduct was the performance of an appendectomy in private consulting rooms, instead of a surgery, and with the patient not staying there overnight after the operation. An expert witness, described as a ‘surgeon of distinction’ had expressed the opinion that this ‘deserved strong condemnation’, though as Hutley JA pointed out, he had been asked for his personal opinion, not for evidence of general professional opinion. One anaesthetist said that it was the prerogative of a skilled surgeon to perform an appendectomy in this way, but that he would prefer not to. Another anaesthetist said that, under certain conditions, which were fulfilled in this case, the procedure would be acceptable.

112 Having referred to this evidence, Hutley JA said, at 102:-

The evidence of expert and independent anaesthetists is, in my opinion, sufficient to establish that there is a respectable, though minority, view that such operations, in the circumstances existing in respect of this operation, are acceptable. Where this exists, it cannot be said that the one who acts on the minority view is guilty of professional misconduct.
113 Priestley JA, at 105-106, having summarised the anaesthetists’ evidence, said that the practitioner could not be said to have been ‘in breach of any generally accepted standard in the medical profession’. Samuels JA agreed with both judgments.

114 As the Appeal Panel sees it, there are two possible answers to Mr Grey’s line of argument. Each of them requires careful consideration.

115 First, the principles just outlined have been developed in cases dealing explicitly with professional misconduct at common law. But, as the Tribunal at first instance pointed out at [30], the common law meaning is ‘supplemented’ by s 22 of the Act. This section provides that breach of any of the prescribed provisions of the Veterinary Surgeon’s Code of Professional Conduct will constitute misconduct in a professional sense. Each of the findings adverse to Dr Lloyd involved a breach of one of the prescribed provisions of the Code. It might be argued that, in applying this statutory version of professional misconduct, the authorities concerning evidence and proof of professional misconduct at common law are not apposite.

116 The Panel’s conclusion on this matter is that, whether or not this approach to interpreting s 22 is correct, it is clear that the Tribunal at first instance did not adopt it. It can be seen from several passages in its judgment that it kept the common law principles in mind when making specific findings against Dr Lloyd. It indicated that it was ‘comfortably satisfied’ as to the common law requirement that the conduct charged would incur ‘reprobation’ from veterinary surgeons of good repute and competency. This can be seen, for instance, in paras [265], [268], [277] and [281].

117 Secondly, the argument could be made that the Tribunal relied appropriately on its own expertise in matters of veterinary surgery. In Kalil v Bray [1977] 1 NSWLR 256, the Court of Appeal stated that it was entirely appropriate for a professional board or tribunal whose members included experts within the relevant discipline to rely on their expertise. Relying on this case, and on other authorities to similar effect, this Tribunal has previously stated that in cases involving veterinary surgeons it may form its opinion on professional matters from its own expert knowledge: see Hopwood v Veterinary Surgeons Investigating Committee [2003] NSWADT 44 at [62].

118 It must be noted, however, that in Khalil, the Court of Appeal was speaking of the Disciplinary Tribunal of the Board of Veterinary Surgeons of New South Wales, which at the time was constituted by between three and five veterinary surgeons, with a legally qualified chairman. The range of expert veterinary opinion within it was qualitatively greater than in a panel of this Tribunal. Furthermore, as Moffitt P said in Khalil, at 265,

There are considerable dangers in an expert tribunal using expert knowledge in respect of which there is a genuine difference of opinion within the body of the profession concerned. The issue should then be dealt with by evidence.
119 Having considered these two issues, we have concluded that this ground of appeal should be upheld, more or less in accordance with the arguments advanced by Mr Grey. A finding of professional misconduct should not be made simply on the basis of a preference for the opinion of one expert witness over that of another. In this situation, a court or tribunal cannot be ‘comfortably satisfied’ that the practitioner has engaged in conduct deserving of reprobation by fellow-practitioners.

120 We would not go so far as to say, as Mr Grey submitted, that this conclusion is only justifiable if no practitioner of good repute and competence could approve of the conduct in question. But there must at least be a strong preponderance of expert opinion that the conduct is deserving of reprobation by fellow-practitioners, coupled with acceptance of this opinion by the expert member or members of the tribunal or other body dealing with the matter.

Ground (7): ‘Duplicity’ or ‘repetition’ within the allegations

121 This ground of appeal relates to one aspect of Allegation 1(a) and to Allegation 1 (e). In one of the dot-points within Particular (i) of Allegation 1 (a), and in Particular (vi), Dr Lloyd was charged with failure to maintain an adequate record of his treatment of Remus. Allegation 1(e) comprises a charge to the same effect.

122 It was argued at first instance, initially by the Committee, but then also by Dr Lloyd, that this ‘duplicity’ or ‘repetition’ within the Allegations was unfair to Dr Lloyd, on the ground that it exposed him to the possibility of double ‘punishment’ for a single ‘offence’. But in its judgment, at [283 – 301], the Tribunal rejected this argument.

123 The Tribunal pointed out that the rule against ‘duplicity’ in criminal procedure does not prohibit duplication of the same factual allegations within separate criminal charges. It is concerned with a different issue, namely the unfairness that may arise if two or more distinct charges are included within a single count of an indictment.

124 As to the claim that there was unfair ‘repetition’, the Tribunal stated that the two Allegations involved, 1(a) and 1(e), dealt with different subject matters. The former was a ‘course of conduct charge’, in which two references were made within the particulars (of which there were approximately 60) to failures in record keeping. What was in issue in a charge of this nature was the overall competence of a practitioner. On the other hand, Allegation 1(e), in focusing on critical omissions from the record of treatment, concerned one aspect only of a practitioner’s conduct. It was entirely conceivable that one of these Allegations might be found proven, but not the other.

125 In this appeal, counsel for Dr Lloyd placed primary emphasis on the second of these two arguments. They contended that, since both Allegation 1(a), in its reference to record keeping, and Allegation 1 (e) had been found proven, Dr Lloyd was put in jeopardy of double ‘punishment’ for the same item of professional misconduct. They maintained that, at one point in the first instance hearing, the President of the Tribunal had made an observation suggesting that each of the two findings was capable of attracting a separate penalty.

126 We consider, however, that the conclusions reached by the Tribunal regarding both of these alleged defects – ‘duplicity’ and ‘repetition’ – are well founded. There is no doubt in our minds that, at such time as the Tribunal is considering what ‘penalties’ or other disciplinary measures are appropriate in consequence of the findings made in this case, it will take due account of the consideration that the conduct which forms the basis of ‘repetition’ as between Allegations 1(a) and 1(e) should not be subject to any sort of double penalty.

Ground (8): Permitting Dr Bradley to remain in the hearing room and provide assistance to counsel for the Committee

127 The gist of this ground of appeal is that, on account of certain conduct by Dr Bradley, an expert witness called on behalf of the Committee, his objectivity was subject to question. Dr Bradley was permitted to remain in the hearing room after he had given evidence, in order that he might assist counsel for the Committee in relation to technical questions being put to Dr Lloyd. Counsel for Dr Lloyd did not object at the time. But it was subsequently submitted on his behalf that this conduct by Dr Bradley cast doubts on his objectivity. The Tribunal did not accept this submission at the time when it was made. In reaching a number of its findings it relied on Dr Bradley’s evidence.

176 Mrs Robinson claimed to have told him on this occasion that Remus had not been moving, eating or urinating. But this evidence must be put to one side, for the reasons already given.

177 Nevertheless, the expert evidence that we have just reviewed, coupled with Dr Lloyd’s own account of Remus’s condition, warrants a conclusion that at this second consultation he should again have offered further diagnostic tests to Mrs Robinson. There was, to put it at its lowest, nothing to encourage him in the belief that his initial diagnosis and treatment had been proved by that time to be appropriate and effective.

178 In similar vein, the Tribunal commented, at [161], that when Dr Lloyd took Remus into his care on 7 March 1997, he should have ‘discussed options’ with Mrs Robinson. From the particulars of Allegation 1(a) and from other parts of the Tribunal’s judgment, (see eg [45]), it would appear that the Tribunal had in mind such things as referral to a specialist, taking a blood count or biochemistries, and euthanasia. Dr Lloyd’s evidence was that, as well as conducting a further physical examination, he did a urinanalysis and took an x-ray.

179 The significant aspect of this matter is, however, that the Tribunal, in its formal findings relating to Allegation 1(a), made no reference to these criticisms of Dr Lloyd’s conduct on 7 March 1997.

180 Our conclusion as to the Tribunal’s findings relating to failure to offer diagnostic aids is accordingly that they should stand so far as the consultations of 25 February and 4 March 1997 are concerned.

181 There should, however, be no such finding as regards the consultation of 7 March 1997.

182 A further dimension of this issue of diagnostic techniques concerns an x-ray of Remus, taken from above by Dr Lloyd on 8 March 1997. Dr Lloyd relied on it as suggesting that periostitis was present.

183 The quality of the x-ray and the absence of a lateral view were however criticised by the Tribunal (at [247 – 258]). Its criticism was based, in part, on opinions expressed by Dr Rawlinson, a distinguished veterinarian of many years’ standing. But these opinions were not shared by an expert radiologist, Dr Dixon.

184 It is not necessary to explore in detail the precise differences of opinion between these two expert witnesses. It is sufficient to say that, in view of these differences, the Tribunal’s criticisms of the quality of the x-ray (at [254]) and of Dr Lloyd’s reliance on it (at [257]) are based on insufficient evidence to warrant a finding, at a level of ‘comfortable satisfaction’, that, on these specific issues, his handling of the case did not meet current standards of veterinary science.

185 Similarly, the broader finding of the Tribunal, stated in para [263], that Dr Lloyd ‘showed substandard knowledge of simple diagnostic aids’ in his management of Remus, is not sufficiently supported by the evidence.

186 Lack of skill in maintaining a thorough medical record. One of the concessions made by Dr Lloyd in the Table of Agreed Facts filed in the Tribunal (see [49] above) was that ‘his record-keeping was not full’.

187 The Tribunal noted in its judgment, at [42], a specific concession by Dr Lloyd. This was that neither during nor after the first consultation with Mrs Robinson, on 25 February 1997 did he make any record of the length of time over which Remus had been suffering.

188 At [278-279], in the context of discussing Allegation 1(e), the Tribunal stated as follows its findings regarding Dr Lloyd’s keeping of records:-

278 Dr Lloyd said that the only record now in existence is the card record. He asserted that hospital observations were recorded on a separate hospital sheet which has not been retained. He agreed that the following items were not recorded on the card: quantities of intravenous fluid and flow rates; whether the dog was urinating and defecating and any monitoring thereof; results of urinalysis. He said that the only record of these matters `would have been on' the hospital flow sheet. He expressed the same view as to the absence of a record of his checks on the dog on Saturday and Sunday.

279 Other than Dr Lloyd's assertion, we have no other evidence to suggest that there was any separate hospital sheet. If there was a sheet, it is not acceptable that it was not retained, once a complaint was notified. That notification occurred within a couple of weeks of the dog's death.

189 The two particulars of Allegation 1(a) which relate to record keeping are as follows:-
(i) On 25 February 1997,…You did not …
- record the length of time over which the dog had been suffering;…
(vi) You failed to make sufficient records of your treatment of Remus to enable another veterinary surgeon to take over management of the case.
190 As the facts alleged in particular (i) were specifically admitted, the Tribunal’s positive finding in relation to it is clearly justified.

191 Particular (vi) covers the whole period of treatment of Remus by Dr Lloyd. The Tribunal appears implicitly to have concluded that the evidence justified a positive finding in relation to this particular also.

192 The expert evidence on this issue was limited in scope. In his written report, Dr Bradley included in his list of ‘the lack of skills exhibited by Dr Lloyd’ the following item: ‘an inability to maintain a thorough medical record’.

193 Dr Driver did not refer to the issue in his written report. In cross-examination (Transcript, 12 December 2000, 159), he expressed the opinion that the record keeping as disclosed by the case card was ‘adequate’ and that ‘another veterinarian coming in could interpret that card and carry on with the case’.

194 When specifically asked (at 159-160) how a veterinarian coming in after 25 February 1997 would know what was being treated, he replied as follows:-

25.2.97, this is reading from the card, rectal pain, rectal palpitations, torn pelvic ligament. That is the diagnosis. So okay, other things were considered and eliminated. 4.3, return consultation, pelvic pain, difficulty, medication changed. 7.3 --
195 At this point, he was interrupted by counsel for the Committee, who said that he was asking Dr Driver how a veterinarian coming in after 25 February would know what the ‘differential diagnoses’ were on that date. Dr Driver replied as follows:-
The differential would have been more information on the basis that this is what Dr Lloyd considered. His diagnosis is there and that is what would need to be considered at the time and then the incoming vet would change that diagnosis appropriately if he or she saw fit.
196 At this point, the hearing finished for the day. Although there was re-examination, and further cross-examination, of Dr Driver the next day, this subject was not revisited.

197 This outline shows that there was a conflict of expert opinion. The principles that we have stated in considering Ground (6) of the appeal would therefore suggest that, despite the concessions made by Dr Lloyd, the Tribunal’s finding that particular (vi) had been established under Allegation 1(a) should be overturned.

198 In this particular situation, however, it is clear that Dr Driver was not asked to give consideration to all the alleged deficiencies in the record keeping. His opinions were based only on the details entered on the case card and focused chiefly on the extent to which the card recorded the findings made by Dr Lloyd on 25 February on 4 March. It is unfortunate that neither counsel used the opportunities provided by re-examination and further cross-examination to obtain his opinion as to the standard of record keeping during the period, between 7 and 11 March, when Remus was in hospital under the care of Dr Lloyd.

199 Significantly, however, the Tribunal’s own findings regarding inadequate record keeping, quoted at [188] above, did place significant emphasis on Dr Lloyd’s failure to produce a hospital sheet, covering this period, in addition to the case card. The Tribunal concluded that either (a) no hospital sheet was created, or (b) if it was created, it was not retained even though within a couple of weeks of the death of Remus Dr Lloyd had been notified of Mrs Robinson’s complaint. The Tribunal considered that each of these alternatives involved unacceptable behaviour by Dr Lloyd.

200 Accordingly, we consider it likely that the opposition raised by Dr Driver to Dr Bradley’s criticism of Dr Lloyd’s record keeping was not based on a full understanding of the alleged deficiencies. When Dr Lloyd’s concessions are also taken into account, it appears to us that, despite Dr Driver’s observations, the Tribunal could legitimately be comfortably satisfied that Dr Lloyd’s record keeping in his case did not meet current standards of veterinary science.

201 We would therefore uphold the conclusion of the Tribunal, stated in its judgment at [263], that Dr Lloyd displayed, in this case, insufficient skill in maintaining a thorough medical record to satisfy current standards of veterinary science.

202 As already indicated, the issue of record keeping dealt with here arises also under Allegation 1(e). Different particulars were furnished with this Allegation. It will be separately discussed below.

203 Failure to communicate effectively with the client. This element of the Tribunal’s outline (in para [263]) of its ‘general conclusions’ regarding Allegation 1(a) is not backed up by any specific findings of a formal nature. At [129 –131], however, the Tribunal made some general criticisms of Dr Lloyd’s response when she telephoned him on 27 February 1997.

204 In his written report, Dr Bradley expressed the opinion that Dr Lloyd’s conduct of the case exhibited ‘an inability to communicate with an owner’. He also used the phrase ‘poor communications with the owner’. He did not, however, provide particulars to support these opinions. Furthermore, in cross-examination (Transcript, 23 February 2000, 79), he conceded that, having regard to Dr Lloyd’s account of the communications between himself and Mrs Robinson, he could not adhere to his opinion. There was no other expert evidence to support this finding by the Tribunal.

205 A further significant problem with this finding by the Tribunal is that, while a number of the particulars to Allegation 1(a) could be said to exemplify a failure by Dr Lloyd to communicate adequately with Mrs Robinson, this defect in professional conduct is not specifically alleged against him.

206 In such circumstances, it is evident that the finding by the Tribunal cannot stand.

207 Inappropriate use of steroids. As is clearly illustrated by the second of two answers quoted above (at [167]) from Dr Driver’s cross-examination, the two cortico-steroid drugs (Depro-Medrol and Prednisone) administered and prescribed by Dr Lloyd on 27 February, and again on 4 March, were inappropriate if the diagnosis was that of a systemic infection or of prostatitis. To say this is, however, to criticise Dr Lloyd’s diagnosis rather than his knowledge and skill in the matter of choosing medications.

208 This perception is enough to dispose of those parts of the Tribunal’s judgment that criticised his choice of these medications on the ground that they were inappropriate for the treatment of prostatitis or of some infectious disease (see eg [243]). Although after the first consultation Dr Lloyd’s record card (as mentioned above at [157]) bore a handwritten notation ‘Kennel Cough?’, this diagnosis does not seem to have been seriously entertained. For the same reason, the comment by the Tribunal that it was unwise to administer Depro-Medrol (see [118]) similarly cannot be treated as a finding that Dr Lloyd chose an inappropriate medication having regard to his diagnosis.

209 A separate criticism of Dr Lloyd’s choice of medications was that the combination of the two similar drugs – Depro-Medrol and Prednisolone – was inappropriate (see [243]). In reaching this conclusion, the Tribunal relied on the opinion of Dr Bradley.

210 This opinion was however contested by Dr Driver. Furthermore, Dr Bradley conceded that he had rarely used Depro-Medrol in his practice. It was pointed out by counsel for Dr Lloyd that he had no particular expertise in pharmacology and indeed that no specialist pharmacological evidence had been put before the Tribunal.

211 As emphasised earlier, it is necessary in proceedings such as these to prove to a standard of ‘comfortable satisfaction’ that a step taken by the relevant practitioner would not be acceptable even to a minority of fellow-practitioners. In our view, this has not been done here.

212 A further significant problem with this finding by the Tribunal is that, while a number of the particulars to Allegation 1(a) assert a failure by Dr Lloyd to prescribe appropriate medications, the claim that it was inappropriate to combine the two medications that he chose – Depro-Medrol and Prednisolone – is not specifically made in the Allegation.

213 For the reasons outlined in the two preceding paragraphs, we consider that this particular finding regarding Dr Lloyd’s use of medications must be set aside.

214 A further finding made (at [246]) by the Tribunal against Dr Lloyd was that he had failed to warn Mrs Robinson of the possible side effects of the two medications prescribed, both individually and in combination’, and that this constituted a failure to adhere to current standards of veterinary science. The Tribunal based this conclusion on a statement by Dr Bradley that this failure was ‘a serious omission’.

215 Dr Driver did not comment on this issue. On Dr Lloyd’s behalf, Ms Green submitted that there was no evidence (a) that the combination of the two steroids, as opposed to their individual use, had any particular side effects, or (b) that Remus in fact suffered any side effects.

216 We do not consider these submissions to be relevant to the issue, which is whether Dr Lloyd’s omission to give a warning about side effects constituted a failure to adhere to current standards of veterinary science. Dr Bradley’s evidence, unopposed, provided a sufficient basis for the Tribunal’s finding that it did constitute such a failure. This finding may stand.

217 Inappropriate medications and analgesics during hospitalisation. The issues raised in the relevant sentence within para [264] of the Tribunal’s judgment (see [152] above) were not the subject of specific findings by the Tribunal. Only a brief criticism of Dr Lloyd’s use of Gentamicin and Finadyne and of his choice of analgesics appears at [176].

218 Again, there were conflicting expert opinions. Dr Bradley criticised various aspects of Dr Lloyd’s choice and administration of medications and analgesics. Dr Driver said that he believed these aspects of Dr Lloyd’s treatment of Remus to be adequate. Under cross-examination, Dr Bradley conceded that some of the criticisms in his written report might have been overstated.

219 In view of these matters and of the important consideration that no specialist pharmacological evidence was put before the Tribunal (see [210] above), our conclusion is that there was insufficient evidence to establish to a standard of ‘comfortable satisfaction’ that these aspects of Dr Lloyd’s conduct of the case would not be acceptable even to a minority of fellow-practitioners.

220 Inappropriate management of fluid balance and nutritional support in a critically ill patient. This is the last of the ‘general conclusions’ set out by the Tribunal at paras [263 – 264] of its judgment. Earlier in its judgment, it reviewed the evidence relating specifically to fluid balance (at [178 – 181]).

221 At [259], it made the specific finding that Dr Lloyd should have carried out a Packed Cell Volume (‘PCV’) test on Remus, to measure the level of hydration, within not more than 24 hours after Remus was admitted into hospital on 7 March 1997.

222 Dr Lloyd did in fact carry out such a test on 10 March. He considered that the result, 65, showed significant dehydration. Dr Bradley and Dr Driver concurred in this opinion.

223 Dr Bradley was of the opinion that a PCV test should have been carried out significantly earlier than 10 March. His opinion was relied on by the Tribunal in its finding at [259].

224 Dr Driver took a different view. In cross-examination (Transcript, 13 December 2000, 187), he said that a PCV test would ‘not necessarily’ have been part of his assessment of Remus on 8 March, the day after admission into hospital. He said that while he recognised the benefits of PCV tests, there were other means of assessing hydration levels. He added that the ‘urgency’ was making sure that there was proper urination and obtaining some diuresis, rather than conducting a PCV test. In his written report, he had stated that Dr Lloyd had maintained adequate perfusion and that ‘the diuresis was monitored by the urinary output’.

225 On account of this conflict of expert opinion, we consider, for the reasons outlined earlier, that the specific finding that Dr Lloyd should have conducted a PCV test earlier than 10 March cannot stand.

226 This completes our conclusions regarding the Tribunal’s findings under Allegation 1(a).

Allegation 1(b): Autopsy and disposal of carcass without owner’s permission

227 This Allegation, like all the others dealt with in this judgment, contends that the conduct specified constituted a breach of the Code. We have indicated above, at [137 – 141], that in our opinion the disposal of the carcass of an animal cannot amount to such a breach because it does not form part of the practice of veterinary science.

228 Allegation 1(b) must therefore be read down to include only the contention that, in conducting an autopsy on Remus without Mrs Robinson’s permission, Dr Lloyd was in breach of the Code. It is clear from the opening words of Allegation 1 (which include a reference to provisions of the Code that are prescribed under s 22(c) of the Act), and from para [268] of the Tribunal’s judgment, that the breach alleged in 1(b) is of cl 5(2) – failure to carry out professional procedures in accordance with standards of veterinary science.

229 Dr Lloyd admitted in the Table of Agreed Facts that he did indeed conduct an autopsy on Remus without obtaining Mrs Robinson’s permission. For reasons set out above in our consideration of Ground (4), we do not accept that he should have been permitted by the Tribunal to withdraw this admission.

230 It was argued on his behalf that this conduct did not breach current standards of veterinary science. This argument was, however, contrary to the tenor of expert evidence provided by Dr Bradley and Dr Driver, as summarised by the Tribunal at [267].

231 A separate submission put on Dr Lloyd’s behalf was quite simply that the Tribunal’s finding of misconduct under Allegation 1(b), which is set out at [268], was based only on the charge that we have found to fall outside the Code, namely, that he disposed of the carcass without the owner’s consent. Nowhere in [268] is the matter of the autopsy mentioned.

232 At another part of the judgment ([281]), there is a broad statement that, except where otherwise indicated, all allegations of misconduct and all particulars had been found proven. But we do not believe that this is sufficient to sustain the finding of misconduct under Allegation 1 (b) when the other ‘limb’ of the Allegation – disposal without consent – has been held unsustainable.

233 For these reasons, the finding of misconduct under Allegation 1(b) must be set aside.

Allegations 1(c) and 1(d): Failures as follows:- (c) to label a restricted substance properly; and (d) to provide written instructions regarding its use

234 Allegation 1(c) relates to the supply of a restricted substance (namely Prednisolone) to Mrs Robinson without complying with statutory requirements as to labelling. Allegation 1(d) relates to the supply of this substance to her without complying with statutory requirements to the effect that adequate written instructions regarding its use must also be provided.

235 Dr Lloyd admitted in the Table of Agreed Facts that he had not complied with the statutory requirements identified in these Allegations. As to each of them, the admission was in these terms: ‘concedes that labelling not fully compliant’.

236 We regard these admissions as providing an entirely adequate basis for findings to the following effect: (1) that Dr Lloyd breached cl 6(3) and 6(4) of the Code – these being the clauses implicitly referred to in the text of the Allegations –and (2) that he was accordingly guilty of misconduct in a professional respect by virtue of the Act’s extensions to the common law concept of misconduct.

237 The Tribunal referred, at [269], to cl 6 of the Code in its treatment of Allegations 1(c) and 1(d). Its findings of misconduct, at [277], appeared, however, to be based on breaches of cl 5(2). It referred expressly to ‘current standards of veterinary science’. For reasons set out above in our consideration of Ground (6), further consideration is required to reach a conclusion that failure to comply with the requirements of cl 6 constitutes also a failure to adhere to such standards. The Tribunal did not apparently give the matter such consideration.

238 For this reason, we affirm the findings made by the Tribunal against Dr Lloyd pursuant to Allegations 1(c) and (d), while also indicating – in order to put the matter beyond doubt – that these findings should be treated as based on breaches of cl 6(3) and 6(4) respectively of the Code.

Allegation 1(e): Failure to maintain a detailed record of treatment and consultation

239 The concessions made in this connection by Dr Lloyd and the findings of the Tribunal are outlined above at [186 – 188]. Our conclusions as to the contention, forming part of Allegation 1(a), that Dr Lloyd’s record keeping did not comply with current standards of veterinary science, are set out at [200 – 201].

240 The particulars of Allegation 1(e) are reproduced above, at [10]. In contrast to the equivalent particulars of the charge of inadequate record keeping in Allegation 1 (a), they focus primarily on deficiencies during the period from 7 March onwards.

241 In our opinion, the reasoning set out at [186 – 201] is applicable to the present context and justifies our upholding, at least in substance, the Tribunal’s conclusion. If anything, the grounds for so doing are stronger than under Allegation 1(a), because of the nature of the matters emphasised in the particulars of the present allegation. As explained above, these matters did not appear to have been taken into account by Dr Driver in forming his opinion that Dr Lloyd’s record keeping was adequate.

242 As with Allegations 1(c) and 1(d), however, the Tribunal expressed its conclusion in an inappropriate form. Allegation 1(e) states that Dr Lloyd ‘failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made’. This wording replicates almost exactly the terminology of cl 5(12) of the Code. It was the evident intention of the Committee, in formulating the allegation, to invoke this clause. The Tribunal’s conclusion at [280], however, uses the phraseology of cl 5(2) – ‘a departure from current standards of veterinary science’.

243 We do not accept the argument, put to us on Dr Lloyd’s behalf, that this of itself warrants wholly overturning the Tribunal’s conclusion. Instead, this conclusion, set out at [280], should be upheld, with an accompanying indication that the misconduct proved against Dr Lloyd took the form of infringement of cl 5(12).

Orders to be made in disposing of this appeal

244 The orders to be made on this appeal will now be set out. They are formulated with reference to the individual Allegations and accompanying particulars.

245 Allegation 1(a). In relation to this Allegation, the finding by the Tribunal that Dr Lloyd was guilty of misconduct in a professional respect should be affirmed with reference to the following particulars only:–

(i) On 25 February 1997, Suzanne Robinson consulted you in relation to her dog ‘Remus’….

You did not…

- establish any diagnosis, other than that the dog might have been suffering from Kennel Cough and provisionally, that the dog had split pelvic ligaments or tendons… ;

- record the length of time over which the dog had been suffering;

- discuss the following options with Suzanne Robinson:-

- undertaking a urinalysis with culture and sensitivity; …

- taking blood samples or biochemistries; …

You should have taken the actions described above but did not do so….

You did not warn the owner about possible side effects of the Prednisolone but should have done so….

(iii) On 4 March 1997 Remus was presented to you again…

You did not:…

offer to Suzanne Robinson

- taking a blood count and biochemistries of Remus;

- urinalysis with culture and sensitivity;

- taking radiographs

- but should have done so….

You did not warn the owner about possible side effects of the Prednisolone….

(vi) You failed to make sufficient records of your treatment of Remus to enable another veterinary surgeon to take over management of the case.

Details of deficiencies in your record keeping are set out in allegation 1(e).

246 Allegation 1(c) . In relation to this Allegation, the finding by the Tribunal that Dr Lloyd was guilty of misconduct in a professional respect should be affirmed with reference to all the accompanying particulars, with the clarification that, consistently with the terms of the Allegation, it is to be treated as based on failure to comply with cl 6(3) of the Code.

247 Allegation 1(d). In relation to this Allegation, the finding by the Tribunal that Dr Lloyd was guilty of misconduct in a professional respect should be affirmed with reference to all the accompanying particulars, with the clarification that, consistently with the terms of the Allegation, the finding is to be treated as based on failure to comply with cl 6(4) of the Code.

248 Allegation 1(e). In relation to this Allegation, the finding by the Tribunal that Dr Lloyd was guilty of misconduct in a professional respect should be affirmed with reference to all the accompanying particulars, with the clarification that, consistently with the terms of the Allegation, the finding is to be treated as based on failure to comply with cl 5(12) of the Code.

249 The case is to be remitted to the Tribunal for consideration of what orders, if any, should be made under s 32(1) of the Act with respect to the findings set out in the four preceding paragraphs ([245 – 248]). A stay order precluding this, which we granted on 12 June 2003, will cease to operate, according to its own terms, upon the delivery of this judgment.

250 All other findings by the Tribunal of misconduct in a professional respect – relating, that is, to Allegation 1(b) and to the remaining particulars of Allegation 1(a) – should be set aside.

251 It may be noted, though not as part of our formal orders, that the setting aside of Allegation 1(b) and of a number of the findings relating to Allegation 1(a) follows directly from our upholding of Grounds (5), (6) and (11) of this Appeal. The findings in question are those that assert as follows:

- that Dr Lloyd took an inadequate history from Mrs Robinson on 25 February 1997;

- that he should have offered further diagnostic aids to her on 7 March 1997;

- that he took and relied on an inadequate x-ray;

- that in general terms he showed substandard knowledge of diagnostic aids;

- that he failed to communicate adequately with his client (set aside also because not particularised);

- that he made inappropriate use of steroid medications;

- that he inappropriately prescribed Depro-Medrol and Prednisolone in combination (set aside also because not particularised);

- that he prescribed inappropriate medications and analgesics while the dog Remus was in hospital; and

- that his management of fluid balance and nutritional support was inadequate during this period.

252 In relation to any particulars to Allegation 1(a) that are not covered by the preceding paragraphs, it may be noted (though again not as part of our formal orders) that, in so far as any of them was the basis of a finding of misconduct, the reason for setting aside such a finding is that it is not sufficiently clear from the Tribunal’s judgment whether the finding was in fact made.

Concluding observations

253 The proceedings relating to this inquiry and the accompanying inquiries regarding Dr Lloyd’s professional conduct have been unnecessarily costly and protracted. A number of the difficulties could have been avoided if greater attention had been paid by the Committee to procedural requirements arising both from the Act and from the common law.

254 In any future inquiries into professional misconduct carried out under the Act, the following matters, to which insufficient attention was paid in these inquiries relating to Dr Lloyd, should be borne in mind. The list here given is not exhaustive:-

- The Committee has the responsibility, under s 28(1) of the Act, to decide whether a complaint regarding a practitioner that has been submitted to it should be (a) dismissed, (b) dealt with through a low-level sanction, such as a reprimand or the imposition of conditions on the right to practise, or (c) referred to the Tribunal. In view of this, the Committee should carry out a sufficient investigation (pursuant to s 27) to enable it to determine which of these courses of action is fair to the complainant, the practitioner and the community. This may involve more than just seeking the opinion of a few other practitioners and relying on its own professional expertise.

- By virtue of the requirement to observe natural justice, the Committee must ensure that the procedural measures stipulated by s 28(3) are implemented, and are identified to the practitioner as being implemented pursuant to this provision.

- As far as possible, the grounds of complaint that will form the basis of the decision which the Committee must make under s 28(1) should be formally conveyed to the practitioner, both when offering the opportunity to make written representations and, subsequently, when offering the opportunity to make oral representations. If in the course of these measures, the Committee forms the view that a wholly new and important ground of complaint should be added to the existing grounds, it should give consideration to whether a further opportunity to make written and/or oral representations should be offered.

- A formal resolution of the Committee, under s 28(1)(c), to refer a complaint to the Tribunal should expressly relate to the same version of the complaint (subject perhaps to minor amendments in drafting) as will actually be sent to the Tribunal. In practical terms, this may mean that two resolutions are needed: first, that legal advisers should be instructed to draft a formal complaint based on clearly specified matters, then subsequently that the complaint, when so drafted, should be referred to the Tribunal. In passing each resolution, the Committee should pay careful attention to the two requirements of s 28(1)(c), namely, that a prima facie case has been made out and that the complaint is sufficiently serious.

- The language, and indeed the numbering of paragraphs, of any complaint referred should be as simple and comprehensible as possible.

- The basis of the allegations of misconduct made in a complaint, including particularly any provision of the Code relied upon, should be clearly stated.

255 If these matters are borne in mind, the Tribunal, in dealing with complaints referred to it, will be better assured that there has been observance throughout of the requirements of natural justice, bearing in mind that its rulings may directly affect the professional standing and livelihood of the practitioner.

256 In addition, it will be easier for the Tribunal to ensure that the basis of any findings of misconduct made by it are clearly enunciated – for example, that a specified clause of the Code has been breached, or that misconduct according to the common law concept has occurred. Similarly, those particulars accompanying an allegation on which a finding is based will be more easily identified.

257 The final comment that we would make is that some of the difficulties experienced in these inquiries arise from problems in interpreting and applying the legislation.

258 One particular problem is that the relevant provisions of the Act – ss 26, 27 and 28 – take insufficient account of the fact that the terms of a complaint initially made to the Committee by a lay client will change, virtually inevitably, during the process of investigation. Up to a point, this matter is dealt with in s 27(2), but in a distinctly clumsy way.

259 Another problem, referred to in our judgment in the Total Eclipse Appeal, is that s 28(1) appears to leave no scope for the Committee, in deciding whether to refer a complaint under paragraph (c), to take account of other complaints currently being maintained against the practitioner.