Polglaze v Veterinary Practitioners Board of NSW

[2008] NSWADT 228

CITATION:	Polglaze v Veterinary Practitioners Board of NSW [2008] NSWADT 228 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Dr K Polglaze RESPONDENT Veterinary Practitioners Board of NSW
FILE NUMBER:	083157
HEARING DATES:	21 July 2008
SUBMISSIONS CLOSED:	21 July 2008
DATE OF DECISION:	15 August 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Carter TL - Non Judicial Member; Clark F - Non Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Veterinary Practice Regulation 2006 Veterinary Practice Act 2003
CASES CITED:	McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354
REPRESENTATION:	APPLICANT A Bowen, barrister RESPONDENT B McIntyre, solicitor
ORDERS:	1. The decision of the Veterinary Practitioners Board that Dr Polglaze is guilty of unsatisfactory professional conduct is set aside in relation to the allegation that he did not, prior to 12 September 2007, provide Miss Burn with an estimate of costs 2. The decision of the Veterinary Practitioners Board that Dr Polglaze is guilty of unsatisfactory professional conduct is affirmed in relation to the allegation that he did not advise Miss Burn during the course of the procedure on 12 September 2007 that he would be charging an additional amount 3. Dr Polglaze is cautioned 4. Dr Polglaze is fined the sum of $200 5. Dr Polglaze is ordered to pay the costs of the Veterinary Practitioners Board investigation in the sum of $400 6. Dr Polglaze is ordered to pay the costs of the Veterinary Practitioners Board of these proceedings.

Introduction

1 Miss Burn complained to the Veterinary Practitioners Board (the Board) about the way Dr Polglaze had handled the euthanasia of her dog, Gretal, an eight year old Rottweiller. Although the complaint contained several allegations, the Board made only one finding of unsatisfactory professional conduct, that is that Dr Polglaze:

. . .failed to provide a realistic estimate for the services provided. The final cost was a 97% increase of the estimate.

2 The Board's decision was that Dr Polglaze be cautioned, fined the sum of $300 and required to meet the costs of the hearing of the complaint in the sum of $400. Dr Polglaze has applied to the Tribunal for a review of that decision. The Tribunal’s role is to determine whether the Board made the correct and preferable decision: Administrative Decisions Tribunal Act 1997, s 63. No oral evidence was given at the hearing. We have relied solely on the written material and the submissions from Ms McIntyre representing the Board and Mr Bowen representing Dr Polglaze.

Jurisdiction

3 Section 48 of the Veterinary Practice Act 2003 allows a person such as Dr Polglaze, in respect of whom the Board has made a disciplinary finding, to apply to the Tribunal for a review of that finding and any disciplinary action taken by the Board pursuant to that finding.

Background

4 Miss Burn’s dog Gretal was diagnosed with an aggressive tumour and she was advised to have him put down. When her local veterinary surgeon could not do so, he gave Miss Burn Dr Polglaze’s name. After talking to Dr Polglaze on the phone, Miss Burn agreed to him euthanasing Gretal. Miss Burn says that Dr Polglaze gave her a firm price of $155 for the procedure. Dr Polglaze says that he gave her an estimate of $155 plus GST but told her that it could be more depending on the circumstances. Dr Polglaze came to Miss Burn’s home, administered a sedative and then planned to give Gretal an overdose of general anaesthetic. When Gretal did not respond to the sedative after 10 or 15 minutes, Dr Polglaze gave Gretal a second dose of sedative but that did not have the desired effect either. As Dr Polglaze was at his car getting a third dose, Gretal finally went to sleep. Dr Polglaze then administered the anaesthetic and Gretal passed away. The whole process took approximately 50-55 minutes whereas Dr Polglaze had anticipated that it would take 15-20 minutes. At the end of the procedure, Dr Polglaze told Miss Burn that because he had given Gretal extra sedative which took more time, the cost was now $305. Miss Burn said that she thought the price was $155 but paid the full amount in cash. Later she complained to the Board.

Definition of unsatisfactory professional conduct

5 Unsatisfactory professional conduct is defined to include a failure to comply with the Veterinary Practitioners Code of Professional Conduct (the Code) in relation to fees: Veterinary Practice Act 2003, s 35; Veterinary Practice Regulation 2006, cl 12 and Schedule 2. The relevant provision of the Code, cl 16, states that:

A veterinary practitioner must, where it is practicable to do so and before providing veterinary services in relation to an animal, inform the person responsible for the care of the animal of:

(a) the likely extent and outcome of the veterinary services, and

(b) the estimated cost of those services.

6 According to the Board, Dr Polglaze failed to comply with this provision in two respects. He did not give a “realistic” estimate for the services when he spoke to Miss Burn on the phone and he did not tell her, before he administered the second dose of sedative, that the cost would be more than he originally quoted.

Issues

7 The first issue is whether, either in the phone call to Miss Burn or during the course of the home visit, Dr Polglaze failed to comply with cl 16 of the Code and is consequently guilty of unsatisfactory professional conduct. If so, the second issue is what penalty, if any, should be imposed: Veterinary Practice Act 2003, s 47(3).

Onus and standard of proof

8 Because the Tribunal is conducting a merits review of the disciplinary finding of the Board and the disciplinary action taken by the Board, neither party bears an onus of proof. The Tribunal makes a decision in place of the Board’s decision and "there is no presumption that the decision of the administrator is correct": McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357. The standard of proof by which the Tribunal must be satisfied is the civil standard, that is, proof based on the balance of probabilities.

Providing an estimate during the phone call

9 Miss Burn phoned Dr Polglaze prior to booking the appointment and spoke to him about Gretal. She asked Dr Polglaze about the cost of the procedure. Dr Polglaze said he would work it out and ring her back the next day. There is a dispute about what Dr Polglaze said to Miss Burn when he phoned her the next day. Miss Burn said that Dr Polglaze told her that the cost of the procedure would be $155 and that there was no mention that this was a quote or an estimate, or that extra costs may be incurred. She says she remembered distinctly that it was a firm price and she wrote it down. The Board made no finding about what was said in the phone call but told the Tribunal that it preferred Miss Burn’s version.

10 Dr Polglaze says that he told her that “the visit and the procedure usually worked out at $155 plus GST, if all goes smoothly, more if it takes longer, or involves more drugs.” He denies giving Miss Burn a fixed quote. He produced a file note which contains the following notation: “Est $150+GST 15 = TTT.” “TTT” was said to mean time taken and treatment. Dr Polglaze agreed in his written submission to the Board that he had quoted $155, but his file note of the phone conversation records the amount as $150. We note that there is no reference in the file note to any advice that the cost could be higher if it took longer or involved more drugs. Later Dr Polglaze wrote to the Board saying that, “Had I been given all relevant information, I would have been able to emphasise more the possibility/probability of variances.”

11 Dr Polglaze did not provide the Board with a copy of his undated file note of the conversation when it was investigating the complaint. The Board received the file note from Dr Polglaze’s solicitor about three weeks prior to the hearing. That is despite the fact that the Board asked Dr Polglaze to provide all relevant documentation to the Board. Dr Polglaze’s counsel, Mr Bowen, said that the reason Dr Polglaze gave him for not providing the file note during the investigation was that it was undated. Because we have not had the opportunity to hear from Dr Polglaze as to the reason he did not provide the file note sooner, we have not drawn any adverse inference from the fact that the file note was not provided sooner.

12 We do not accept the submission from the Board that another file note which Dr Polglaze did provide to the Board relates both to the phone conversation and the attendance at Miss Burn’s home. The Board pointed out that that file note was completed by two different people because the handwriting is different. The date on the note is 10 September 2007 and refers to Gretal requiring euthanasia. In our view this file note is consistent with Miss Burn’s complaint which states that after speaking to Dr Polglaze she accepted the price and told him that she would call him when she was ready. She says she subsequently booked the appointment for 12 September 2007. The second file note appears to be a record of that telephone conversation, taken by someone other than Dr Polglaze, together with Dr Polglaze’s notes.

13 Shortly after Dr Polglaze arrived at Miss Burn’s home she attempted to give him an envelope containing $155. She wanted him to take the money before the procedure as she thought she would be too upset to pay afterwards. She said she had to insist three times before he accepted the envelope. Dr Polglaze does not dispute that version of events.

Findings re phone call

14 There is a direct conflict between Miss Burn’s and Dr Polglaze’s version of what was said in the phone call. Miss Burn says that she has a distinct memory that the amount of $155 was a definite price and she wrote it down. Dr Polglaze has a file note which indicates that the price was an estimate and says that he never gives a firm price. We had no opportunity to test these conflicting versions. To make a finding adverse to Dr Polglaze, we must be satisfied ‘on the balance of probabilities’ that Miss Burn’s version is correct. We are not satisfied that an experienced practitioner would tell a client in advance of performing a procedure on an animal that he did not know, that the price would be a set amount. On balance, given Dr Polglaze’s evidence about his usual practice and the file note of the conversation, we accept that he said that the amount was an estimate. We are not suggesting that Miss Burn was not telling the truth. She obviously had the impression that the amount mentioned was a fixed price. We are not satisfied that Dr Polglaze added that the cost could vary if it takes longer, or involves more drugs. If that is what he had said, Ms Burn would not have understood the amount to be a fixed price. Furthermore, Dr Polglaze admitted that, had he been given all relevant information, he would had been able to emphasise more the possibility of a variation in the amount. In our view, Dr Polglaze did not emphasise the possibility of variation, he merely said that that the amount was an estimate.

Finding re unsatisfactory professional conduct

15 It follows from this finding that Dr Polglaze did not fail to comply with cl 16 of the Code in relation to what was said in the phone call. He gave Miss Burn an estimate of the cost of his services. Contrary to the Board’s characterisation of this provision, there is no obligation on a veterinary surgeon to provide a “realistic” estimate or to elaborate on the meaning of an estimate.

Providing a further estimate of fees during the procedure

16 The second alleged breach of the Code in relation to fees was said to be that Dr Polglaze did not tell Miss Burn before he administered the second dose of sedative, that the cost would be more than he originally estimated. Miss Burn said that Dr Polglaze had ample opportunity to tell her of any additional costs during the time he was at her home, but chose to tell her when she was at her most vulnerable, that is after Gretal had passed away. Dr Polglaze agreed that he did not mention price again until after the procedure was over but said that it was not practicable for him to do so because it was a stressful situation for Miss Burn and it was not appropriate to raise the issue of costs in those circumstances.

Findings re unsatisfactory professional conduct

17 In our view cl 16 relates both to estimating the cost before any veterinary service is provided and estimating the cost of any additional service that may be needed. We are satisfied that Dr Polglaze’s failure to advise Miss Burn before administering the second sedative that the original cost estimate would increase constitutes a breach of cl 16 of the Code. Dr Polglaze had plenty of time to tell Miss Burn that the cost would increase and she was not so distressed that it was impracticable for him to do so.

Action

18 When a finding is made that a veterinary practitioner is guilty of unsatisfactory professional conduct the Board may take the following action pursuant to s 47(3):

(a) reprimand or caution the veterinary practitioner,

(b) impose a fine on the veterinary practitioner of an amount not exceeding $5,000,

(c) impose conditions on the veterinary practitioner’s registration with respect to the practice of veterinary science,

(d) require the veterinary practitioner to complete specified educational courses,

(e) require the veterinary practitioner to report on his or her veterinary practice at specified times, in a specified manner and to specified persons,

(f) require the veterinary practitioner to seek and take advice, in relation to the management of his or her veterinary practice, from a specified person or persons,

(g) require the veterinary practitioner to pay specified costs relating to the hearing.

The Board imposes a caution (the lowest level of penalty), fined Dr Polglaze $300 and ordered him to pay the Board’s costs of $400. We have found Dr Polglaze guilty of only one count of unsatisfactory professional conduct. The failure to provide an estimate of the extra cost that would be involved is a relatively minor breach of cl 16. Dr Polglaze provided an initial estimate but failed to revise the estimate before incurring further expense. In all the circumstances we consider that a caution and a lesser fine of $200 together with the Board’s costs of $400 is appropriate.

19 Section 48(3) of the Veterinary Practice Act 2003 states that the Tribunal must award costs against a veterinary practitioner if the Tribunal confirms or makes a disciplinary finding against the practitioner. A disciplinary finding includes a finding of unsatisfactory professional conduct: Veterinary Practice Act 2003, s 35. As we have made such a finding in this case, Dr Polglaze is ordered to pay the Board’s costs.

Orders

1. The decision of the Veterinary Practitioners Board that Dr Polglaze is guilty of unsatisfactory professional conduct is set aside in relation to the allegation that he did not, prior to 12 September 2007, provide Miss Burn with an estimate of costs.

2. The decision of the Veterinary Practitioners Board that Dr Polglaze is guilty of unsatisfactory professional conduct is affirmed in relation to the allegation that he did not advise Miss Burn during the course of the procedure on 12 September 2007 that he would be charging an additional amount.

3. Dr Polglaze is cautioned.

4. Dr Polglaze is fined the sum of $200.

5. Dr Polglaze is ordered to pay the costs of the Veterinary Practitioners Board investigation in the sum of $400.

6. Dr Polglaze is ordered to pay the costs of the Veterinary Practitioners Board of these proceedings.

15/08/2008 - Correct formating on coversheet - Paragraph(s) coversheet