| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : VETERINARY SURGEONS ACT 1960 (WA) CITATION : THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2013] WASAT 148 MEMBER : DR B DE VILLIERS (MEMBER) DR A VIGANO (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 SEPTEMBER 2013 FILE NO/S : VR 50 of 2009 BETWEEN : THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA Applicant
AND
KURT ALEXANDER
Respondent
Catchwords: Conduct substantially short of standard expected of members of veterinary profession Legislation: Veterinary Surgeons Act 1960 (WA), s 2, s 23(2a), s 23(4)
Veterinary Surgeons Regulations 1979 (WA), reg 28, reg 28(2)(c)
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Result: Application dismissed
Summary of Tribunal's decision: The applicant alleges that the respondent is guilty of conduct that falls substantially short of the standard of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency. The respondent performed sterilisation procedures on two cats in the kitchen at the house of his client in the vicinity of Margaret River. There was a registered veterinary clinic or hospital available in Margaret River and the procedures were not as a result of an emergency.
The respondent accepts that the conduct was unprofessional, but says that, in the absence of regulations, policies, education material or guidelines to regulate the provision of mobile veterinary services, there are insufficient grounds for a finding that the conduct was 'substantially' short of a standard that could reasonably be expected.
The Tribunal found that although the two expert witnesses agreed that they would not perform a sterilisation on two cats in the location and although the conduct of the respondent was unprofessional, there is insufficient evidence to justify a finding that the conduct fell substantially short of the standard reasonably expected in the veterinary profession.
The application was therefore dismissed.
Category: B
Representation: Counsel:
Applicant : Mr G Abbott
Respondent : Mr K Bradford
Solicitors:
Applicant : Tottle Partners
Respondent : Bradford and Co
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Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Pasler v Grinling (1948) AC 291
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263
The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175
Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & Ors [1979] FCA 132
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
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REASONS FOR DECISION OF THE TRIBUNAL:
Issue 1 Is the respondent guilty of unprofessional conduct pursuant to s 23(2a) of the Veterinary Surgeon Act 1960 (WA) (VS Act) and reg 28(2)(c) of the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations) for having performed on 6 June 2008 veterinary surgery to sterilise two female tortoiseshell cats in the vicinity of Margaret River in the kitchen of the residence of a client while the residence was not a registered veterinary hospital or clinic; there was no emergency; and a clinic or hospital was available in Margaret River?
Background 2 This matter, together with other disciplinary proceedings against the respondent, has had a long run in the Tribunal. The original application for disciplinary action against the respondent was lodged on 6 April 2009. Various incidents of alleged unprofessional conduct were the subject of the original application. The Tribunal handed down its reasons for decision on 28 November 2011 in which it dismissed the application in its entirety (The Veterinary Surgeons' Board of Western Australia and Alexander[2011] WASAT 175). 3 The decision of the Tribunal was appealed to the Supreme Court of Western Australia. Her Honour Prichard J dismissed all but one of the grounds of appeal (Veterinary Surgeons Board of Western Australia v Alexander[2013] WASC 136). 4 Her Honour Pritchard J found that when the Tribunal addressed the question whether the sterilisation of cats on 6 June 2008 at the residence of a client in the vicinity of Margaret River constituted unprofessional conduct, the Tribunal had erred in law by failing to take into account a relevant consideration - namely, the evidence of experts - or, if the Tribunal had taken into account the evidence of experts, it failed to give adequate reasons for its finding. 5 The matter was therefore remitted to the Tribunal to reconsider in accordance with the Appeal Reasons. Her Honour directed that the same members who handed down the decision that was appealed should constitute the Tribunal for purposes of the reconsideration. 6 Upon the matter being returned to the Tribunal, His Honour Sharp J referred the dispute for mediation. The mediation was not successful. (Page 5)
The matter was subsequently set down on 30 July 2013 for a decision on the documents.
Summary of facts 7 The facts, as already set out in the decision The Veterinary Surgeons' Board of Western Australia and Alexander[2011] WASAT 175, can be summarised as follows: a) Dr Alexander obtained a Bachelor of Veterinary Medicine and Surgery from Murdoch University in 1996. He is a registered veterinary surgeon in Western Australia. b) Dr Alexander offers mobile home veterinary services whereby, in essence, certain veterinary services are provided at places other than in registered veterinary clinics and registered veterinary hospitals. c) Dr Alexander performed veterinary surgery procedures on 6 June 2008 to sterilise two female tortoiseshell cats in the vicinity of Margaret River at the residence of a client. The surgery took place in the kitchen. The residence was not a registered veterinary hospital or clinic. A registered veterinary clinic or hospital facility was available in Margaret River. The surgery procedures were not emergencies. d) Two expert witnesses, Dr Moore and Dr McDonald, agree that the surgery on the two cats constituted unprofessional conduct.
Remittal to the Tribunal 8 In her reasons for remitting the matter to the Tribunal, her Honour Pritchard J said the following (references not included): 115 This aspect of the experts' evidence was clarified in cross-examination. Dr Macdonald's view was that it would fall below the professional standards that could reasonably be expected of members of the veterinary profession of good repute and standing if any surgical procedure (other than an emergency) were to be conducted outside a registered veterinary hospital or clinic. Dr Moore's position about surgical procedures in general was more equivocal. However, Dr Moore's position in relation to the cat sterilisation surgeries that were performed in this case (Page 6)
was specifically clarified in cross-examination. Dr Moore's evidence was: ABBOTT, MR: It's agreed that Dr Alexander performed surgeries to sterilise two female tortoiseshell cats. MOORE, DR: Mm'hm. ABBOTT, MR: Is that something that you would regard as minor surgery? MOORE, DR: No. ABBOTT, MR: So in your view that's a surgery that ought to be done in a registered clinic? MOORE, DR: Yes, but having said that, I'm aware of situations where vets have in the past gone to remote country towns and undertaken spay - they advertise prior to them turning up, say next Wednesday, Thursday, that Joe Bloggs, veterinarian, is going to be in the town of XYZ in the country where there is no veterinarian - - - ABBOTT, MR: Sorry to interrupt you, but if it is also agreed in this instance that those surgeries could have been performed in a suitable clinic in Margaret River, that eliminates that commentary, doesn't it? MOORE, DR: Well, yes. I think Dr Alexander spoke to me and said he couldn't do any surgeries in the metropolitan area. I don't know if he was aware that that included Margaret River. But they are surgeries - I'm not doubting that. ABBOTT, MR: Those ones are not minor surgeries in your view? MOORE, DR: No, they're major surgeries. 116 Counsel for Dr Alexander submitted that Dr Moore's evidence was that cat sterilisation surgeries were not always conducted in a registered clinic and a veterinary practitioner would need to exercise their judgment. I am unable to agree. Dr Moore's evidence confirmed that his view was that the sterilisation of a female cat was major surgery and that when a veterinary clinic was available (as it was here) that was surgery that should be performed in a veterinary clinic. 117 That evidence, viewed against the statements in the Joint Statement of Experts, confirmed that Dr Moore accepted that the performance of the cat sterilisation surgeries (which involved ovariohysterectomies) in the circumstances of this case fell short of the standard of professional conduct. (Page 7)
118 In its discussion of the expert evidence in relation to the cat sterilisation surgeries, the Tribunal did not make any reference to that part of Dr Moore's evidence to which I have referred above. However, this part of the expert evidence was highly significant. Dr Moore's evidence in cross-examination meant that it was open to the Tribunal to conclude that the expert witnesses agreed that the performance of an ovariohysterectomy on a female cat, other than in a registered veterinary hospital or clinic, in the circumstances of this case, would fall short of the standards of professional conduct. Accordingly, this was not (as counsel for Dr Alexander submitted) a situation in which Dr Alexander's conduct in performing the cat sterilisation surgeries could be said to have been consistent with a respectable, though minority, view as to the standards of professional conduct. 119 The next question is whether the VS Act required that the Tribunal take into account the evidence of the expert witnesses. The VS Act does not expressly set out the matters the Tribunal must take into account. However, in determining whether the conduct of the veterinary surgeon falls substantially short of the standard of professional conduct for the purposes of s 23(2a), the Tribunal must first establish what that standard is. One of the key ways by which that may be done is by expert evidence on the practices actually observed by members of the profession of good repute and competence. If there is disagreement between the expert witnesses as to the practices observed, then it is a matter for the Tribunal to accept or reject that evidence and to attribute such weight as it considers appropriate to the evidence of each witness. Where, however, the expert witnesses agree, the Tribunal is, in my view, bound to take that evidence into account, although it remains for the Tribunal to attribute to that evidence such weight as it considers appropriate, having regard to the other evidence before it. 120 The Tribunal's conclusion that 'the experts agree to disagree in regard to the appropriateness of undertaking a sterilisation procedure outside a registered veterinary clinic or hospital' indicates that the Tribunal either misunderstood the evidence, or overlooked the evidence given by Dr Moore in cross-examination, and thus that the Tribunal failed to take into account the evidence on which the experts were in fact agreed. 121 Alternatively, if the Tribunal did in fact take this evidence into account, it did not provide any reasons at all as to why it did not give any weight to this evidence. 122 On either view, in my respectful opinion, the Tribunal erred in law, and that part of its decision which pertained to the cat sterilisation surgeries must be set aside. (Page 8)
123 Counsel for Dr Alexander submitted that the Tribunal correctly concluded that Dr Alexander's conduct did not fall substantially short of the standard of professional conduct and that ground 2 of the appeal should be dismissed. It is not necessary or appropriate for this Court to deal with that contention. It was a matter for the Tribunal to determine what weight should be given to the expert evidence, having regard to all of the other evidence before it. The Tribunal having erred in failing to take into consideration the agreed expert evidence in relation to the cat sterilisation surgeries, or in failing to explain why it gave no weight to that evidence, the appropriate course appears to be to remit this aspect of the matter to the Tribunal for further consideration. … 166 The appropriate course appears to be to set aside the decision of the Tribunal insofar as it relates to that part of the Board's application which pertained to the cat sterilisation surgeries, and to remit that part of the matter back to the Tribunal for determination in accordance with these reasons.
Statutory framework: unprofessional conduct 9 Section 23(2a) of the VS Act relevantly provides: The Board may allege to the State Administrative Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon. 10 Section 23(4) of the VS Act relevantly provides: Without limiting the meaning of the expression, unprofessional conduct as a veterinary surgeon, a registered veterinary surgeon is guilty of such unprofessional conduct if that person … (e) does not observe the standards of professional conduct as prescribed; or (f) contravenes any condition or restriction imposed on or in relation to the registration of that person as a veterinary surgeon. 11 Regulation 28 of the VS Regulations relevantly provides: (1) For the purposes of section 23(4) of the Act, this regulation sets out the standards of professional conduct to be observed by registered veterinary surgeons. (Page 9)
(2) A registered veterinary surgeon engages in unprofessional conduct if he or she 12 Section 2 of the VS Act relevantly provides: … veterinary surgery means the art and science of veterinary surgery and veterinary medicine, and, without limiting the generality of the foregoing, includes (a) the examination of any animal for the purpose of the diagnosis of disease in, or injury to, that animal, or the conduct of tests, whether physiological or pathological, on any animal for diagnostic purposes; and (b) the provision of advice based upon diagnosis of disease of, or injury to, any animal; and (c) the surgical or medical treatment of any animal; and (d) the giving of any anaesthetic to, or the performance of surgical operations on, any animal; and (e) the doing or performing of any act, matter, procedure, or thing that is prescribed pursuant to section 31 as forming part of the practice of veterinary surgery. … 13 Section 2 of the VS Act also relevantly provides: … veterinary clinic means any premises at which veterinary surgery is practised, but at which animals are not retained overnight; veterinary hospital means any premises at which veterinary surgery is practised at which animals receive treatment, nursing care, and other services required for the reception, treatment and care of animals suffering from disease or injury or in need of surgical or medical treatment or assistance[.] (Page 10)
Contentions of the parties
Applicant 14 The applicant contends that the Tribunal must first establish what the standard of professional conduct is, and secondly, whether the conduct of the respondent falls substantially short of the standard of professional conduct. 15 The applicant says that as far as this proceeding is concerned, the agreed position of the experts, Dr Moore and Dr McDonald, should constitute a firm basis for the Tribunal to make a finding about the standard of professional conduct. This is consistent with the findings of her Honour Prichard J. The applicant contends that the experts agree that the performance of sterilisation on a cat is a major surgery; that such major surgery should be performed in a veterinary clinic when such a clinic is available; and that the performance of the sterilisation in the circumstances of this case fell short of the standard of professional conduct. 16 The Tribunal should therefore conclude that the conduct of the respondent fell substantially short of the professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency, and as a consequence the respondent is guilty of unprofessional conduct.
Respondent 17 The respondent does not take issue that the conduct the subject of this proceeding was unprofessional. The question according to the respondent is whether the conduct was 'substantially' below the expected standard. 18 The respondent contends that neither the VS Act nor the VS Regulations define what is meant by conduct that falls 'substantially' short of the standard of professional conduct that could be reasonable expected to be observed by members of the veterinary profession of good repute and competency. Although Dr Moore accepted that the conduct of the respondent fell short of the standard of professional conduct that is expected, Dr Moore did not engage in an assessment as to whether the conduct fell 'substantially' short of the expected standard. 19 According to the respondent, the conduct did not fall 'substantially' short since the respondent operated a mobile veterinary service in an environment where the applicant, as the profession's regulatory body, (Page 11)
failed to provide any guidelines, policies or regulations in regard to the services that could be provided. The respondent says the applicant also failed to take proactive steps as had happened in some other States, to provide to veterinary surgeons guidelines about the services that could be rendered outside registered veterinary hospitals and clinics. Given the environment in which the respondent performed his services, his conduct ought not to be classified as falling 'substantially' short of the standard expected in the profession.
Consideration 20 In her reasons for decision for remitting the matter to the Tribunal, her Honour Prichard J observed that the Tribunal erred in law because the Tribunal either failed to take into account the evidence given by Dr Moore during cross-examination or, if it took the evidence into account, it did not provide adequate reasons as to why it did not give any weight to the evidence. 21 The Tribunal acknowledges the criticism expressed by her Honour Pritchard J, and wishes to confirm that it had given consideration to the totality of evidence by Dr Moore, including the evidence given during cross-examination, but that it had failed to provide adequate reasons for it conclusion. The Tribunal will now address the shortcoming in its original decision. 22 As a general principle, the burden of proving a fact that is in dispute rests with the party asserting it. That party bears the onus of satisfying the Tribunal that the fact should be accepted. 23 The two experts, Dr McDonald and Dr Moore, are in agreement that the conduct of a sterilisation procedure in the circumstances the subject of this proceeding constituted unprofessional conduct. Their evidence is that the surgery was major surgery and that, in the absence of an emergency, it should have been performed in a registered veterinary clinic or hospital. Mr Beaumont, who is not a veterinarian but a person with many years' experience within the RSPCA, says that he had witnessed veterinarians rendering mobile services that include surgical procedures such as 'stitching up' of wounds. 24 The question for the Tribunal to settle is whether the conduct of the respondent falls 'substantially short of the standards of professional conduct that could reasonable be expected to be observed by members of the veterinary profession of good repute and competency' (reg 28(2)(c) of the VS Regulations). The statutory framework within which veterinarians (Page 12)
conduct their profession does not require that any conduct that fails to comply with the expected standards would attract disciplinary action. The VR Regulations therefore uses the word 'substantial' as a guide as to when disciplinary action is justified. 25 Although the civil standard of proof of a 'balance of probabilities' applies to Tribunal proceedings, in vocational disciplinary proceedings in which there is an allegation of misconduct or incompetence, and in any proceedings in which there is an allegation of fraud, criminal conduct or other serious misconduct, clear, cogent and strong evidence is required in order to establish the allegation (Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 (Gandini) at [62] - [65]). This principle is known as the Briginshaw approach (after the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336). 26 In cases in which the Briginshaw standard applies, the Tribunal must feel 'an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation against a person has been made out' (Gandini at [65]). Because of the potential consequences of vocational disciplinary proceedings in relation to the capacity of a practitioner to lawfully earn a living in their vocation, a high degree of scrutiny is applied generally in relation to such proceedings (Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263). 27 The applicant must therefore satisfy the Tribunal that the conduct of the respondent fell substantially short of the standard expected within the veterinary profession. 28 The Tribunal is not satisfied that the applicant has demonstrated that the conduct of the respondent fell substantially short of the standard of professional conduct that could reasonable be expected to be observed by members of the veterinary profession of good repute and competency. 29 The reasons for this finding are as follows: 30 Although it has been established that the conduct of the respondent was unprofessional and that the sterilisation procedures should have been performed in a clinic or hospital, the applicant failed to satisfy the Tribunal that the conduct fell 'substantially' short of the conduct that can be expected to be observed by members of the veterinary profession. In its submission, the applicant highlights the factual circumstances that gave rise to this application, and the applicant successfully argues that the experts in their evidence have agreed that the conduct was unprofessional. (Page 13)
The agreement between the experts that the conduct was unprofessional is, however, not in itself sufficient to conclude that the conduct fell 'substantially' short from what can be reasonably expected. Neither the VS Act nor the VS Regulations define what is meant by 'substantial' and the applicant in its submission does not offer any guide other than to say that the 'only' conclusion that can be drawn from the expert evidence is that the conduct of the respondent is not only unsatisfactory, but that it falls 'substantially short' of the standard that could be reasonably expected. The respondent refers to the matter of Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & Ors[1979] FCA 132 in which Deane J referred to the matter of Palser v Grinling(1948) AC 291 at [5] where 'substantial' refers to something that is 'considerable, solid or big …'. 31 In the case of a disciplinary proceeding, an allegation that conduct is 'substantially' short of the conduct that could be expected implies more than a mere breach of a professional standard. The conduct must be considerably or significantly short of the required conduct – hence, the use of the word 'substantial' – and the Tribunal must feel an actual persuasion that the conduct requires disciplinary sanction. It is the obligation of the applicant to demonstrate to the satisfaction of the Tribunal that the conduct falls substantially short or the expected standard. 32 Although the two experts agreed that the conduct was unprofessional, the experts did not engage in any detail as to whether the conduct was substantially below the standard that could be expected. It is left to the Tribunal to assess, with the benefit of all the evidence before it to determine whether the conduct was substantially below the expected standard. 33 In its reasons for decision (at [70], [81] and [83] - 89]), the Tribunal commented on the absence of guidelines, policies, training material, regulations or any form of educational information to registered veterinarians about the provision of mobile veterinarian services; the type of services that could be rendered; the standards to be adhered to; and matters related to mobile services. Mr Beaumont spoke about the 'very useful and essential service' that is provided by home visitation veterinarians and how these type of services are a common occurrence in Western Australia. The respondent was performing his functions as provision of mobile veterinary service in this environment. While it is agreed by the experts that the performance of the surgery constituted unprofessional conduct, the Tribunal is not satisfied, in light of the absence of some form of regulatory or educational material or guidelines (Page 14)
to mobile veterinarians, that the conduct can be described as falling substantially short of the conduct expected. 34 The applicant, through its conduct in previous disciplinary proceedings against the respondent, failed to establish clearly the standard that is applicable to these types of services. The applicant, in its previous disciplinary proceedings against the respondent about the conduct of surgical procedures outside the ambit of a registered veterinary clinic or hospital (Veterinary Surgeons' Board of Western Australia and Kurt Alexander – VR 187 of 2007), did not include in the Consent Orders dated 3 January 2008 a requirement for the respondent not to undertake any veterinary surgery outside a registered veterinary clinic or hospital anywhere in Western Australia. The consent orders were only made in regard to the metropolitan area or regional cities in Western Australia - thereby leaving open the possibility of veterinary surgery procedures being undertaken in rural areas or towns outside of a hospital or clinic. No definition was provided as to what is meant by 'regional cities' and whether Margaret River qualifies as a regional city. 35 Dr Moore observes in his evidence (T:121; 18.08.10) that there may have been confusion in the mind of the respondent about where what type of services may be rendered. Dr Moore says: I think Dr Alexander spoke to me and said he couldn't do any surgeries in the metropolitan area. I don't know if he was aware that that included Margaret River'. 36 Dr Moore also says that, although he does not regard sterilisation as a minor surgery, and although in his view such surgery should be done in a registered clinic, he is aware of situations 'where vets have in the past gone to remote country towns and undertaken spay …'. 37 The evidence of Dr Moore highlights the lack of clear guidelines or policies in regard to the performance of such a procedure outside of a registered clinic or hospital. Mr Beaumont's evidence is also that mobile veterinary services have been offered on a wide basis for many years. 38 The unsatisfactory conduct of the respondent and the question whether it was substantially short of the expected standard must be assessed against this background. 39 After having considered all the evidence before it, the Tribunal is not satisfied that the applicant has shown that the conduct of the respondent was substantially short of the professional conduct that could reasonably (Page 15)
be expected to be observed by members of the veterinary profession of good repute and competency, and as a consequence the respondent is guilty of unprofessional conduct. 40 The application should therefore be dismissed.
Order 1. The application is dismissed. |