THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER - [2011] WASAT 175

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: VETERINARY SURGEONS ACT 1960 (WA)

CITATION: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2011] WASAT 175

MEMBER: DR B DE VILLIERS (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)

HEARD: 17 AUGUST 2010, 29 SEPTEMBER 2010 AND 6 OCTOBER 2010

DELIVERED : 28 NOVEMBER 2011

FILE NO/S: VR 50 of 2009

BETWEEN: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
KURT ALEXANDER
Respondent

Catchwords:

Disciplinary proceedings for alleged unprofessional conduct by a registered veterinary surgeon Standard of conduct reasonably expected by members of the veterinary profession of good repute and competency Relevance of previous undertaking given to the Tribunal as a result of disciplinary proceedings Alleged breach of a previous undertaking given to the Tribunal not to perform certain surgical procedures outside of a registered veterinary hospital or clinic in the metropolitan area or regional cities Standard of conduct expected from veterinary surgeons providing a mobile service Did Dr Alexander's conduct when he preformed certain veterinary surgeries outside a registered premises fall substantially below the standard of professional conduct expected of a veterinary surgeon of good repute and competency

Legislation:

State Administrative Tribunal Act 2004 (WA), s 11(b), s 11(4)(c), s 11(8)
Veterinary Surgeons Act 1960 (WA), s 2, s 23(2a), s 23(4)
Veterinary Surgeons Regulations 1979 (WA), reg 28

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr G Abbott
Respondent: Mr K Bradford

Solicitors:

Applicant: Tottle Partners
Respondent: Bradford and Co

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4
Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Veterinary Surgeons' Board sought disciplinary action against Dr Kurt Alexander for allegedly engaging in conduct that fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency. The Veterinary Surgeons' Board contended that the surgical procedures undertaken by Dr Alexander outside a registered veterinary hospital or clinic were substantially below the standards of professional conduct expected of him.
The allegations of the Veterinary Surgeons' Board fell into three categories: firstly, that Dr Alexander performed surgical procedures within the Perth metropolitan area in breach of an order of the State Administrative Tribunal to the effect that Dr Alexander would not, within the Perth metropolitan area or regional cities of Western Australia, undertake surgical procedures in any premises that is not a registered veterinary clinic or a registered veterinary hospital; secondly, that even if Dr Alexander did not breach the order of the State Administrative Tribunal, the performance of the surgeries in a place within the metropolitan area outside a registered veterinary clinic or registered veterinary hospital was unprofessional; and thirdly, that Dr Alexander performed a surgical procedure at a client's home in the vicinity of Margaret River and that such conduct falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
Dr Alexander denied that he had breached a previous undertaking given to the Veterinary Surgeons' Board. Dr Alexander also denied that the surgeries he performed were of a nature that fell substantially short of the standards expected. Dr Alexander said that the previous undertaking only required him to refrain from a certain type of surgical procedure (sterilisation) in the Perth metropolitan area and regional cities, and did not cover all possible surgical procedures. Dr Alexander also said that neither the surgical procedures conducted in the Perth metropolitan area nor the procedure in the Margaret River area can be regarded as conduct that falls substantially short of what is reasonably expected of members of the veterinary profession. Dr Alexander emphasised that there were no regulations, guidelines or policies issued by the Veterinary Surgeons' Board in regard to the provision of mobile veterinary services.
The Tribunal emphasised that the obligation was on the Veterinary Surgeons' Board to prove on the balance of probabilities that the practitioner engaged in unprofessional conduct.
The Tribunal found as follows: firstly, the Veterinary Surgeons' Board failed to satisfy the Tribunal that the surgical procedures undertaken by Dr Alexander in the Perth metropolitan area fell within the scope of the previous order of the State Administrative Tribunal; secondly, the Veterinary Surgeons' Board failed to satisfy the Tribunal that the surgery Dr Alexander undertook at the home of a client in the vicinity of Margaret River was unprofessional conduct; and thirdly, the Veterinary Surgeons' Board failed to satisfy the Tribunal that the surgeries Dr Alexander undertook in the Perth metropolitan area constituted unprofessional conduct.
The application was therefore dismissed.
The Tribunal emphasised that this finding should not be understood to condone the actions of Dr Alexander. It is for the Veterinary Surgeons' Board to take proactive steps, if necessary, to provide greater detail and guidance, as has been the practice in some other states, to veterinary surgeons in regard to matters considered in these proceedings and particularly the provision of veterinary services outside registered hospitals and registered clinics.

Issues

Three issues are the subject of these proceedings, namely:
a)whether the veterinary surgeries that Dr Alexander undertook in the Perth metropolitan area on 8 January 2008, 28 January 2008, 28 February 2008, in April 2008, on 15 April 2008 and 4 July 2008, and in February 2009 constitute a breach of the undertaking he gave pursuant to orders by the State Administrative Tribunal dated 3 January 2008 in the matter Veterinary Surgeons' Board of Western Australia and Kurt Alexander (VR 187 of 2007), and if so, whether the breach constitutes unprofessional conduct within the context of the Veterinary Surgeons' Act 1960 (WA) (VS Act).
b)Whether the veterinary surgery preformed by Dr Alexander on 30 June 2008 in the vicinity of Margaret River at the home of a client constitutes unprofessional conduct within the context of the VS Act.
c)Whether the veterinary surgeries performed by Dr Alexander on 8 January 2008, 28 January 2008, 28 February 2008, in April 2008, on 15 April 2008 and 4 July 2008, and in February 2009 in the Perth metropolitan area constitute unprofessional conduct within the context of the VS Act.

Summary of facts

The facts giving rise to these proceedings 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, including some forms of veterinary surgery, are provided at places other than in registered veterinary clinics and registered veterinary hospitals.
c)Dr Alexander accepted on 20 December 2007, pursuant to the outcome of mediation in disciplinary proceedings in the State Administrative Tribunal, terms of settlement (Terms of Settlement 2007) to the effect that he was guilty of unprofessional conduct for performing veterinary surgery (sterilisation of a female dog) in premises in the Perth metropolitan area that was not registered as a veterinary hospital or a veterinary clinic (the full finding and order quoted below).
d)The Tribunal made orders by consent on 3 January 2008 (Orders 2008) to give effect to the Terms of Settlement 2007. In accordance with Orders 2008, Dr Alexander undertook to refrain from undertaking any veterinary surgery in any premises in the Perth metropolitan area or regional cities in Western Australia that is not a registered veterinary clinic or hospital as defined by the VS Act.
e)After the making of Orders 2008, Dr Alexander undertook several veterinary procedures within the Perth metropolitan area. Those procedures are described in para 5 of the amended application submitted by the applicant, namely:

Date	Client	Address where act of veterinary surgery performed	Nature of veterinary surgery performed	Animal
08 Jan 2008	Mrs Zanki	54 Hamilton Road, Hamilton Hill	Surgical removal of lump	"Sam" male canine
28 Jan 2008	Ms L Fearon	13/73 Edmund Street, Fremantle	Sutured wounds from dog attack	"Rocky" male canine
28 Feb 2008	Ms F Lazenby	8 Gardener Drive, Kardinya	Clean teeth and extract three (3) cheek teeth	"Cola" female canine Staffordshire Terrier
April 2008	Mr C Perry	47 Discovery Crescent, Port Kennedy	Extracted four teeth	"Goldie" 14 year old female canine golden retriever
15 Apr 2008	Ms J Marriott	14 Preece Court, Forrestfield,	Wound on flank, grass seed abscess. Anaesthetised.	"Meeka" 7year old male canine Siberian husky
04 July 2008	Mr J Morgan	17 Kirkland Way, Parmelia	Extracted fifteen (15) teeth	"Zak" male canine
Feb 2009	Ms J Davies	48 Woods St, White Gum Valley	Anaesthetised and extracted teeth	"Millie" 5 year old silver tabby cat

f)Dr Alexander performed on 6 June 2008 veterinary surgeries to sterilise two female tortoiseshell cats in the vicinity of Margaret River at the residence of a client. The residence was not a registered veterinary hospital or clinic.
g)The Veterinary Surgeons' Board (Board) commenced disciplinary proceedings in the State Administrative Tribunal on 6 April 2009.

Allegations and orders sought by the Board

In paras 4 12 of the amended application filed by the Board, the allegations against Dr Alexander are set out in detail.
The allegations can be summarised as follows:
a)that Dr Alexander performed various veterinary surgeries within the Perth metropolitan area in breach of Orders 2008 and that he is therefore guilty of unprofessional conduct or, in the alternative, that Dr Alexander was guilty of unprofessional conduct since he performed the veterinary surgeries at premises that were not a registered veterinary clinic or hospital; and
b)that Dr Alexander was guilty of unprofessional conduct since he performed veterinary surgeries to sterilise two cats at the house of a client.
The orders sought by the Board are that:
•for each of the offences or alternatively for the offences combined, Dr Alexander is fined $1,000;
•Dr Alexander's name is removed from the Register of Veterinary Surgeons of Western Australia; and that Dr Alexander pay the costs of the applicant.

Proceedings before the Tribunal

The first directions hearing in these proceedings took place on 19 May 2009, shortly after the application had been received. At the first directions hearing, the matter was adjourned for mediation. The mediation was unsuccessful and on 28 July 2009, programming orders were made for the matter to be heard. On 17 November 2009, leave was granted to the applicant to amend the application.
On 22 December 2009, the matter was adjourned to a compulsory conference. On 5 May 2010, the compulsory conference was discontinued and the matter adjourned to a directions hearing for final orders in preparation of a hearing. On 18 May 2010, final programming orders were made for the hearing.
The matter was heard over a period of three days. The first day of hearing was 17 August 2010; the second day of hearing was 29 September 2010; and the third day of hearing was 6 October 2010. Three expert witnesses were called to give evidence, namely:
1)Dr James Gibb McDonald (veterinary surgeon);
2)Dr Bruce Herbert Moore (veterinary surgeon); and
3)Mr Martyn Beaumont (previous employee of the RSPCA).
The Tribunal, for the purposes of the hearing, comprised Deputy President Judge J Eckert, Senior Sessional Member Dr A Vigano and Senior Sessional Member Mr G Potter.
Due to ill health, Judge Eckert had to withdraw from the proceedings after the conclusion of the third and final hearing day.
On 11 October 2011, the President, his Honour Justice J Chaney, made orders for closing submissions to be filed in writing. The last of the closing submissions were received on 3 December 2010.
The President reconstituted the Tribunal in September 2011 pursuant to s 11(8) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the matter to be finalised.
The newly constituted Tribunal comprised Presiding Member Dr B de Villiers, Senior Sessional Member Dr A Vigano pursuant to s 11(b) of the SAT Act, and Senior Sessional Member Mr G Potter pursuant to s 11(4)(c) of the SAT Act. Dr de Villiers is a legally qualified person. Dr Vigano and Mr Potter formed part of the previously constituted Tribunal.
The newly constituted Tribunal had full regard of the record of the proceedings, all documents tendered and evidence given under the previously constituted Tribunal, as well as to the closing submissions of the parties.

Previous disciplinary proceedings Terms of Settlement 2007 and Orders 2008

The Board and Dr Alexander reached agreement in a previous disciplinary proceeding before the Tribunal arising from the sterilisation of a female dog that was undertaken at the residence of Dr Alexander (the agreement reached is referred to in these reasons as Terms of Settlement 2007 and Orders 2008).
Dr Alexander accepted, in accordance with the Terms of Settlement 2007, a finding that he was guilty of unprofessional conduct for undertaking sterilisation of a female dog at premises that was not registered as a veterinary hospital or a clinic. Orders 2008 were made by the Tribunal with consent of the parties to give effect to the Terms of Settlement 2007.
The Terms of Settlement 2007 and the Orders 2008 provided are as follows:
1.That on or about 13 June 2006, Dr Alexander performed surgery to sterilize a female Shih Tzu dog, which surgery was performed by Dr Alexander on the kitchen table in Dr Alexander's residence notwithstanding that:
(a)Dr Alexander's residence was neither a registered veterinary hospital nor a registered veterinary clinic under the Veterinary Surgeons Act 1960; and
(b)suitable facilities in a registered veterinary hospital or a registered veterinary clinic were available to Dr Alexander to perform the surgery.
2.Dr Alexander's conduct[,] set out in paragraph 1 to a substantial degree, violated or fell short of, the standard of professional conduct observed, or approved of, by registered veterinary surgeons of good repute and competency because:
(a)when surgical facilities are available to a veterinary surgeon in premises registered as [a] veterinary hospital or as a registered veterinary clinic under the Veterinary Surgeons Act 1960; and
(b)there are no circumstances which make the surgery an emergency,
the veterinary surgeon should perform surgeries of the nature that Dr Alexander performed in premises that are either registered as [a] veterinary hospital or as a registered veterinary clinic under the Act.
3.In the circumstances set out in paragraphs 1 and 2 above[,] Dr Alexander thereby is guilty of unprofessional conduct as a veterinary surgeon pursuant to s.23(4) of the Veterinary Surgeons Act 1960.
AGREEMENT
After the commencement of these proceedings[,] the parties participate in the mediation conducted on the 15[th] November 2007 and 20[th] December 2007 at which the Veterinary Surgeons['] Board of Western Australia and Dr Alexander agreed the terms upon which the proceedings could be settled by a minute of proposed consent orders dated 20 December 2007.
ORDER
In order to give effect to the agreed terms of settlement of the proceeding, by consent orders that:
1.Dr Kurt Alexander is guilty of unprofessional conduct as a veterinary surgeon in that Dr Alexander's conduct in performing veterinary surgery in premises that were not registered as either a [veterinary hospital or as a registered] veterinary clinic under the Veterinary Surgeons Act 1960 when:
(a)surgical facilities were available to Dr Alexander in premises registered as a veterinary hospital or as a registered veterinary clinic under the Veterinary Surgeons Act 1960; and
(b)there were no circumstances that made the surgery an emergency, to a substantial degree, violated or fell short of, the standard of professional conduct observed, or approved of, by registered veterinary surgeons of good repute and competency.
2.Dr Kurt Alexander undertakes to the Veterinary Surgeons Board and this Tribunal that he will refrain from undertaking any veterinary surgery in any premises in the Metropolitan area or Regional Cities in Western Australia that is not a registered veterinary clinic or [a] registered veterinary hospital as defined by the Veterinary Surgeons Act 1960.
3.There be no order as to costs.

Statutory framework

The statutory framework against which the application is determined is as follows:

Unprofessional conduct

Section 23(2a) of the VS Act:

The Board may allege to the State Administrative Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon.

Section 23(4) of the VS Act:

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.

Regulation 28 of the Veterinary Surgeons Regulations 1979 (WA):

(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.
(2)A registered veterinary surgeon engages in unprofessional conduct if he or she
…
(c)otherwise falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.

Definition of veterinary surgery

Section 2 of the VS Act:

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.

Definition of veterinary clinic and hospital

Section 2 of the VS Act:

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;

The Tribunal is mindful that the VS Act and the Veterinary Surgeons Regulations 1979 (WA) (VS Regs) cannot anticipate all possible actions and activities that may give rise to a finding of unprofessional conduct. The Tribunal must therefore be guided by the statutory framework, the evidence of persons from the particular discipline, and the assessment and experience of the panel that presides over a matter, in particular the member who has extensive and specialised experience in the same vocation as Dr Alexander, to come to a decision whether Dr Alexander is guilty of unprofessional conduct.
In the matter of Legal Practitioners Complaints Committee and McCormack [2009] WASAT 4 at [97], it was emphasised that the Tribunal must assess the seriousness of misconduct to determine whether it is, in truth, conduct which falls below the required standard. The burden of proof rests on the vocational regulatory body which brings the application to prove that, on the balance of probabilities, the practitioner engaged in unprofessional conduct.
In Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115, it was held that the common law notion of unprofessional conduct is concerned with conduct that would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
In the case of Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118, it was said at [50]:
We are mindful that, in considering the allegations against the practitioner, the Tribunal must, in accordance with what is often referred to as the Briginshaw standard, feel an actual persuasion of the occurrence or the existence of a relevant fact in determining whether or not the case has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at pages 362 and 363, Dixon J said:
... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters[,] 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ...
The Tribunal will consider each of the issues the subject of the proceedings separately.

Whether Dr Alexander breached Orders 2008 and if so, whether the breach constitutes unprofessional conduct

The Board contends that the veterinary surgeries performed by Dr Alexander in the Perth metropolitan area as set out at e) in [9] above are in breach of the Terms of Settlement 2007 and Orders 2008.
The Board says the veterinary surgeries undertaken by Dr Alexander removal of a lump, suturation of a wound, extraction of teeth and removal of grass seed abscess fall within the range of 'any veterinary surgery' he undertook not to engage in within the Perth metropolitan area unless within a registered veterinary clinic or hospital.
Dr Alexander does not contest that those surgical procedures were performed by him; that the procedures can be classified as 'veterinary surgical'; that they were undertaken in circumstances that were not necessarily an emergency; and that they were performed within the Perth metropolitan area in premises that were not registered veterinary hospitals or clinics.
Dr Alexander disputes, however, that his conduct constitutes a breach of Orders 2008 or unprofessional conduct.
Dr Alexander says that the procedures fall outside the scope of Orders 2008.
Dr Alexander says Orders 2008 only deal with the sterilisation of an animal such as a female dog or a cat within the Perth metropolitan area and do not apply to all possible surgical procedures. Dr Alexander says that none of the surgical procedures he performed were in the nature of sterilisation and as a result, no breach of Orders 2008 occurred. Dr Alexander further contends that even if the Tribunal were to find that he breached Orders 2008, it was never his intent to breach Orders 2008 since he acted in accordance with his best understanding of those orders and honestly believed he was doing the right thing.
The obligation is on the Board, which is seeking a finding of unprofessional conduct, to show to the reasonable satisfaction of the Tribunal that Dr Alexander has failed to comply with Orders 2008 by performing the surgical procedures outside registered veterinary clinics or hospitals within the Perth metropolitan area.
The Tribunal will first consider if it has been shown by the Board to the standard of reasonable satisfaction that Dr Alexander has failed to comply with Orders 2008. If the Tribunal is not satisfied that Dr Alexander breached Orders 2008, the complaint should be dismissed. If, however, the Tribunal is satisfied that Dr Alexander breached Orders 2008, then the Tribunal can turn to questions of his understanding of the order; whether his conduct can be categorised as substantially below what is expected of a person in his profession; whether a breach of Orders 2008 is by itself a ground for a finding of unprofessional conduct; and any other relevant matter/s.
The Tribunal will give its finding followed by the reasons for the finding:
The Tribunal finds that the Board did not to the reasonable satisfaction of the Tribunal show that Dr Alexander breached Orders 2008 when he performed the surgeries as listed in e) of [9] above in a place other than a registered veterinary clinic or hospital within the Perth metropolitan area.
There seems to be an inconsistency between the wording of the Terms of Settlement 2007 and Orders 2008. The Board relies on Orders 2008 without taking into account the wording of the Terms of Settlement 2007.
On close reading of the Terms of Settlement 2007, it is apparent that the unprofessional conduct that Dr Alexander admitted to in those proceedings was directed at the sterilisation of a female dog at his home, which was not registered as a veterinary hospital or clinic.
There is no suggestion or mention in the Terms of Settlement 2007 that Dr Alexander was found guilty of unprofessional conduct of performing surgical procedures other than those under consideration in the disciplinary proceedings giving rise to Orders 2008. The entire disciplinary proceeding against Dr Alexander giving rise to Orders 2008 was based on the sterilisation of a female dog on 13 June 2006 at a place that was outside a registered veterinary clinic or hospital.
Important to note, therefore, are the words of the agreed misconduct on the part of Dr Alexander. It is agreed in the Terms of Settlement 2007 that veterinary surgeons of good repute and competency:
… should perform surgeries of the nature that Dr Alexander performed in premises that are either registered as [a] veterinary hospital or as a registered veterinary clinic under the Act. (Tribunal emphasis)
The Terms of Settlement 2007 refers to 'surgeries of the nature' that was performed on 13 June 2006 in other words, referring to the sterilisation of a female dog, not to all forms of veterinary surgery.
There is no suggestion in the Terms of Settlement 2007 that all forms of veterinary surgeries, as defined by s 2 of the VS Act, are intended to fall within the Terms of Settlement 2007 and Orders 2008. If the VS Act definition was in the mind of the parties, they could have referred to it, rather than to use the words 'surgeries of the nature that Dr Alexander performed' (Tribunal emphasis).
It seems to the Tribunal that the parties had a specific type of surgery in mind, namely, sterilisation of a female dog, when they agreed to the Terms of Settlement 2007 and subsequent Orders 2008.
The Terms of Settlement 2007 refers to the sterilisation of a female dog, while Orders 2008 refers to 'any veterinary surgery'. Orders 2008, which seems at first glance to cover a substantially wider field than that of sterilisation of a female dog, must, however, be read against the background of the Terms of Settlement 2007.
This assessment of the Tribunal is consistent with the evidence heard from the two experts.
In evidence before the Tribunal, the veterinary surgeon expert witnesses called by the parties, Dr McDonald and Dr Moore, agreed that a strict application of the statutory definition of 'veterinary surgery' in s 2 of the VS Act is so wide that it may exclude a wide range of veterinary services in regard to which they, as experts, have no objection to be administered outside a registered veterinary hospital or clinic.
Examples of services that may fall within a strict application of 'veterinary surgery' but to which the expert witnesses have no objection to them being rendered outside registered clinics and hospitals are examination of an animal, giving advice, administering euthanasia or prescribing medicine.
The expert witnesses are in agreement that a house call practice may engage in the above types of veterinary services without being guilty of any unprofessional conduct (joint statement of Dr McDonald and Dr Moore).
The Tribunal also heard that certain types of services, which strictly speaking fall within the ambit of the definition of s 2 of the VS Act as 'veterinary surgery', are regularly performed by veterinary practitioners outside registered hospitals or clinics. In fact, the practices of both Dr McDonald and Dr Moore have engaged, or continue to be engaged, in some form of veterinary homes service where some of their actions may fall within the very wide scope of 'veterinary surgery' as per s 2 of the VS Act.
Both veterinary expert witnesses made it clear that they do not propose a strict application of s 2 of the VS Act. In fact, the experts agreed on a modified definition of 'veterinary surgery' (discussed below).
The wording 'any veterinary surgery' used in Orders 2008 should therefore not, in the view of the Tribunal, be interpreted to refer to any veterinary surgery as per s 2 of the VS Act. The wording must be given effect by reference to the Terms of Settlement 2007, which refers to 'surgeries of the nature' performed by Dr Alexander, namely, sterilisation of a female dog.
There was no evidence before the Tribunal of the Board taking any steps to prohibit in totality any form of veterinary surgery pursuant to s 2 of the VS Act to be provided by mobile services at places other than registered veterinary clinics or hospitals. In fact, Dr McDonald and Dr Moore observed that the use of mobile veterinary practices is widespread in urban and rural areas and that it forms an integral part of veterinary services offered to the public.
The proper construction of Orders 2008 and the Terms of Settlement 2007 is that Orders 2008 dealt with the cause for the disciplinary action at the time, namely, the sterilisation of a female dog in an area outside a registered veterinary clinic or hospital within the Perth metropolitan area.
The Tribunal therefore finds that Orders 2008 are to be construed with reference to the Terms of Settlement 2007 and that as a consequence, Orders 2008 did not preclude Dr Alexander from performing all forms of 'veterinary surgery' outside registered veterinary clinics or hospitals within the Perth metropolitan area.
The Tribunal finds that the Board has failed to satisfy the Tribunal that the conduct of Dr Alexander, in regard to the procedures referred to in e) of [9] above were performed in breach of Orders 2008. The first allegation should therefore be dismissed.

Whether the surgery on 30 June 2008 at a place other than at registered premises constitutes unprofessional conduct

It is not disputed by Dr Alexander that:
•the sterilisation procedures that took place on two female cats in the vicinity of Margaret River on 30 June 2008 fell within the definition of 'veterinary surgery';
•the procedures were performed on premises other than a registered veterinary hospital or clinic;
•the circumstances in which the surgery was done cannot be classified as an 'emergency'; and
•registered veterinary hospital and clinic facilities were available in Margaret River.
The Board contends that Dr Alexander had been aware at the time when he performed the surgery in Margaret River that the Board considered performing veterinary surgery of this nature, at premises that was not a registered veterinary clinic or hospital while there were such facilities available in close proximity, as unprofessional conduct.
The Board initially contended, therefore, that Dr Alexander breached Orders 2008, but it now accepts that the Margaret River veterinary surgical procedures are not in breach of Orders 2008, since those orders were specifically limited to the Perth metropolitan area and regional cities which Margaret River is not. The Board contends, however, that Dr Alexander was guilty of unprofessional conduct under the VS Act for performing the veterinary surgical procedures at a place outside a registered clinic or hospital.
Dr Alexander contends that undertaking the surgery at the home of a client was not unprofessional since:
•there was no statutory or regulatory provision or professional standards that preclude such surgeries;
•he had applied the proper veterinary standards of care required of a registered veterinary surgeon; and
•his clients were fully informed of potential risks.
The Tribunal will give its decision, followed by the reasons for the decision.
The Tribunal finds that the Board has not to the reasonable satisfaction of the Tribunal shown that Dr Alexander performing sterilisations on the two cats at the home of his client was unprofessional conduct within the framework of the VS Act.
The reasons for this finding can be summarised under the following headings.

Confusion regarding definition of 'veterinary surgery'

There is confusion in the Board's submissions as to what the appropriate definition of 'veterinary surgery' is, and, once the definition is settled, the confusion continues as to what types of veterinary surgery, if any, may be conducted on premises other than registered veterinary clinics and hospitals.
There is no statutory prohibition, regulation, code of conduct or practice guidelines issued by the Board in Western Australia against performing veterinary surgery at premises other than a registered veterinary hospital or clinic.
There are also no statutory, professional guidelines or directives in Western Australia issued by the Board in regard to mobile veterinary services in general, or, specifically:
•the types of veterinary surgery that can be undertaken outside a registered veterinary hospital or clinic;
•the standard of care or treatment that should be applied if veterinary services are provided outside a registered veterinary clinic or hospital; or
•the type of equipment that should be available for performing surgery services outside a registered veterinary clinic or hospital.
The two veterinary expert witnesses who gave evidence agree that certain types of 'veterinary surgery' as per s 2 of the VS Act can be conducted outside a registered veterinary hospital or clinic.
The expert witnesses therefore propose a less than strict application of s 2 of the VS Act definition of 'veterinary surgery'. They explained that a strict adherence to the statutory definition of 'veterinary surgery' may bring an end to all forms of veterinary practice outside registered veterinary clinics and hospitals for example, diagnoses, home treatment for behavioural problems, general advice and medical treatment (all of which fall within the very wide scope of the s 2 of the VS Act definition of 'veterinary surgery').
In short, the evidence presented on behalf of the Board is that a strict application of the definition of 'veterinary surgery' as found in s 2 of the VS Act, may effectively bring to a halt most, if not all, home veterinary services. Such an outcome is not proposed or supported by the Board or the veterinary expert witnesses.
The Board relies on the one hand on the very general definition of 'veterinary surgery' as found in s 2 of the VS Act to support its contentions in these proceedings hence, the Board takes issue with Dr Alexander undertaking procedures to clean and extract teeth, suture a wound and remove a seed abscess. At the same time, however, the Board acknowledges that the statutory definition of 'veterinary surgery' is too wide, since procedures that are regularly performed by home service veterinarians may be caught up under a too strict application thereof. In closing submissions, the Board says that 'ignoring the definition provided in the [VS] Act, "veterinary surgery" is understood … ' (at para 15). The Board does not offer any coherent explanation as to why the statutory definition of 'veterinary surgery' should be 'ignored'.
The Board therefore does not contend that all veterinary surgery as per s 2 of the VS Act that is offered outside registered facilities automatically constitutes unprofessional conduct. The question whether the conduct of a particular surgery outside a registered premises constitutes unprofessional conduct is therefore determined by the facts of each case.
Dr McDonald accepted that certain mobile veterinary services which, at face value, fall within the definition of s 2 of the VS Act, can be rendered outside a registered veterinary hospital or clinic without the veterinarian offering such service being guilty of unprofessional conduct. Refer, for example, to prescription of medicine, diagnosis and euthanasia.
Dr McDonald says in para 19 of his witness statement that 'it is understood by the veterinary profession of good repute and competency' that 'veterinary surgery' is intended to mean 'any procedure performed on an animal that involved the use of some, usually sharp, instrument to perform a procedure that exposes otherwise unexposed blood or other body tissues or removes a body part' (Tribunal emphasis). This proposed definition of 'veterinary surgery' is supported by Dr Moore in the joint statement of the two expert witnesses.
This generally 'understood' definition of 'veterinary surgery' agreed to by Dr McDonald and Dr Moore is a far cry from the statutory wording in the definition of 'veterinary surgery' in s 2 of the VS Act.
It seems, therefore, as if a practice has developed in Western Australia, supported by the Board, whereby an informal definition of 'veterinary surgery', other than the statutory definition in s 2 of the VS Act, is used to guide veterinary surgeons as to the type of activities that may be undertaken outside registered veterinary hospitals and clinics.
The picture painted during the proceedings was therefore confusing on the one hand, the Board seems to insist on a strict application of 'veterinary surgery' as per the statutory definition in s 2 of the VS Act while, on the other hand, the expert witnesses called by the parties agreed that a less restrictive definition of 'veterinary surgery' should be used. To add to the confusion, the Board, in Orders 2008, specifically limited the scope of those orders to the Perth metropolitan area and regional cities, thereby leaving other regional towns and villages outside the ambit of the restriction.

Amidst this confusion the lack of guidelines issued by the Board and the reference in Orders 2008 to 'regional cities' Dr Alexander had to conduct his home visitation practice.
The Tribunal is not satisfied that the Board has established with sufficient clarity what a veterinary surgeon of good repute and competency understands when the term 'veterinary surgery' is used.

Lack of guidelines for mobile veterinary services

The Board accepts the practice of mobile veterinary services as a legitimate way of servicing the needs of the public.
The expert witnesses also acknowledge that mobile veterinary services have become an integral part of the profession.
Regardless of the apparent widespread use of mobile veterinary services, the Board does not have any statutory, regulatory policy or professional guidelines regarding the provision of mobile veterinary services or the standards that must be adhered to.
The Australian Veterinary Association (Association), of which Dr Alexander is not a member and whose guidelines are not binding even on members, acknowledges the existence of what it refers to as 'housecall practices' (refer to para 17.5 of the Australian Veterinary Association Policy Compendium). The Tribunal was told that the Veterinary Surgeons Boards of at least two other states Queensland and South Australia have enacted guidelines for the provision of mobile veterinary services.
The Board, in its closing submissions, says that no weight should be attached to the policy standards set by the Association and the two states of Queensland and South Australia, since those standards are not applicable to Western Australia. The question nevertheless remains why the Board has not sought to regulate the practice of mobile veterinary services so as to prevent the uncertainty that has been experienced in these proceedings.
Dr McDonald said that part of his practice is 'Vet Home Visits', which provide a house call service. Mr Beaumont, a witness with many years experience with the Royal Society for Prevention of Cruelty to Animals (RSPCA), said the provision of home veterinary services has increased in recent years and is a 'very useful and essential service' to the public. Dr Moore also remarked on the general use of mobile veterinary services in the Perth metropolitan, regional and rural areas.
The mobile veterinary services in Western Australia are therefore accepted by the Board as a practical reality, but without specific guidance as to the nature, extent, equipment, standards and places where services may be offered, the nature of services that may be offered and the standard of services that are offered.
Although some debate took place during the hearing in regard to the balance between commercial realities, demands of the public for more affordable services and adhering to proper veterinary standards, there is no need for the Tribunal to make a finding regarding the commercial rationale or motivation of Dr Alexander to offer this particular type of service. The Tribunal accepts that there are many factors that impact upon the delivery of services by the veterinary profession. Commercial consideration is one such factor. However, while there may be many ways to provide a more affordable service to the public, the Tribunal also accepts as a general proposition that there are certain minimum standards of veterinary service that cannot be compromised for the sake of commercial considerations.
Dr Alexander does not stand to be disciplined in these proceedings for failing to provide a specific standard of service when the surgery on the cats was conducted, and there is no need for the Tribunal to comment on the exchanges of the parties regarding commercial considerations.
The provision of mobile veterinary home services is, according to all the information before the Tribunal, uncontroversial and part of the practice of the veterinary vocation.
In light of:
a)the lack of clarity as to what the appropriate definition of 'veterinary surgery' is;
b)the absence of any form of statutory policy or professional guidance by the Board in regard to minimum standards for the delivery of home veterinary services; and
c)disagreement between the expert witnesses as to the nature of veterinary surgical procedures that may be undertaken in areas other than registered facilities,
the Tribunal is not satisfied that the Board has, to the reasonable satisfaction of the Tribunal, been able to demonstrate that the conduct of Dr Alexander falls substantially short of the standards of professional conduct of good repute and competency that could reasonably be expected to be observed by members of the veterinary profession.

Focus on place of veterinary surgery or standard of veterinary service

By accepting that veterinary services may be offered on a home visit basis, the obligation is on the Board to satisfy the Tribunal that Dr Alexander's conduct by undertaking a surgical procedure outside a registered veterinary facility on 30 June 2008 falls substantially below the accepted standard that a veterinary surgeon of good repute and competency would have performed.
The Board, in presenting its case, seemed to have oscillated between two approaches regarding these disciplinary proceedings.
On the one hand, it seems as if the Board was in principle opposed to certain veterinary surgical services being delivered by home visitations, regardless of the standard of care applied by the relevant practitioner. The Board therefore said that the emphasis should be on the place where the surgery was performed and that certain types of procedures may only be performed in a registered veterinary hospital or clinic, regardless of the standards that are adhered to outside a registered veterinary hospital or clinic. This seems to be the approach generally favoured by Dr McDonald.
On the other hand, it seems as if the Board was interested in the standard of care offered by Dr Alexander hence, the very extensive examination of expert witnesses and Dr Alexander regarding the treatment afforded to the cats, the type of anaesthetic used, the equipment available, postoperative treatment and record keeping. This approach seems to focus on quality of care, regardless of the place where the surgery occurs. This seems to be the approach generally favoured by Dr Moore.
The Board's amended application for disciplinary action brings the proceedings clearly within the category of the place where the surgery was performed, regardless of the level of care, competency or equipment used by Dr Alexander.
The Board alleges that:
•Dr Alexander performed the surgery in a place that was not a registered veterinary clinic or hospital (not contested by Dr Alexander);
•a registered veterinary clinic or hospital facility was available in Margaret River (not contested by Dr Alexander); and
•the surgeries were not emergency in nature (not contested by Dr Alexander).
Dr Alexander takes issue with the contention of the Board that when a registered veterinary clinic or hospital surgery is available, in a nonemergency situation, the 'veterinary surgeon should perform surgeries of the nature that the respondent performed' in such registered veterinary clinic or hospital and that failure to do so constitutes unprofessional conduct.
The contention of the Board is therefore that Dr Alexander is guilty of unprofessional conduct due to the place where the surgery occurred, regardless of the standard of care, the nature of the surgery, the equipment used or the postsurgery care.
The Tribunal accepts that if Dr Alexander chose to do so, the sterilisation surgery on the cats could have been undertaken in a registered veterinary hospital or clinic in Margaret River. The Tribunal also accepts that as a general proposition, surgery of this nature may be more likely to be safely performed in a registered veterinary clinic or hospital.
But that is not the issue before the Tribunal.
The question for the Tribunal to determine is whether Dr Alexander was guilty of unprofessional conduct to a substantial degree as observed, or approved of, by registered veterinary surgeons of good repute and competency, for the fact that he performed this type of surgery outside a registered veterinary hospital or clinic when appropriate facilities were available.
The Board did not take issue in its application with:
•the standard of care of Dr Alexander towards the cats;
•the hygiene of the premises;
•the equipment used;
•the anaesthetic applied;
•the complaints received; or
•any issues arising from post-operative care.
Ms Coole, the owner of the cats, provided a written statement to the Board in reply to its questionnaire about the surgery. The Board did not commence any disciplinary action on the basis of the replies provided by Ms Coole, the standard of treatment or postoperative issues.
The Board did not challenge the standard of services offered by Dr Alexander, but focused only on the venue where the services were offered.
This approach of the Board, to focus on place rather than standard of services, is consistent with Orders 2008, which prohibit the undertaking of surgical procedures in the Perth metropolitan area and regional cities outside registered veterinary facilities, but is silent about other regional towns, villages and rural areas. The Board contributed to a misunderstanding, if any, in regard to these proceedings by limiting Orders 2008 to specific areas of the state and thereby implying that the procedure may be conducted in those areas not mentioned.
Although Dr McDonald observed that in his experience, places outside a registered veterinary clinic are not regularly cleaned with disinfectant agents to the standard applied to registered veterinary clinics, the Board also did not take issue with the standard of cleaning or care employed by Dr Alexander when he conducted the sterilisation.
Mr Beaumont observed that in his practical experience as an RSPCA officer of many years, he had seen 'surgeries where the conditions would almost be like being at home'.
The observation of Mr Beaumont is consistent with that of Dr Moore, who says that in his practice, the Board only inspected his facilities on one occasion in 30 years and that it seems as if the quality of registered veterinary clinics and hospitals appears not to be monitored.
Dr McDonald, on the other hand, says his facility is visited every three years, but not by an inspector of the Board, since he is accredited with an independent organisation and his facility is inspected by a person from the eastern states.
The contrasting evidence by the experts again emphasises the dichotomy between the Board preferring to focus on the place where a particular veterinary surgery occurred rather than the standard of service provided by Dr Alexander.
During examination of the expert witnesses, considerable time was spent on the type of anaesthetic used by Dr Alexander, aspects of his record keeping and the equipment he uses. These matters fall outside the ambit of these proceedings since the Board is not alleging misconduct for the use of inappropriate anaesthetic or medication or of improper record keeping.
Dr Alexander also explained during evidence postsurgery issues that arose in regard to the cats. Since there are no allegations against Dr Alexander for failing to provide proper care in the postsurgery recovery, there is no need for the Tribunal to make any findings in regard to the standard of care that was offered after the surgical procedures.
The Tribunal is not satisfied that the Board has demonstrated to the reasonable satisfaction of the Tribunal that Dr Alexander's decision to perform veterinary surgery outside a registered veterinary clinic or hospital falls substantially short of the standards of professional conduct of good repute and competency that could reasonably be expected to be observed by members of the veterinary profession.

Type of veterinary services offered outside a registered facility

There is inconsistency between the Board and the expert witnesses as to the nature and scope of veterinary services and in particular, the type of veterinary surgery that may take place outside registered veterinary hospitals or clinics.
The Board seems ambivalent in its approach.
There are no Board policies or guidelines to assist or to direct veterinary surgeons in regard to the provision of home veterinary and surgical services. No person from the Board gave evidence to explain what views the Board holds in regard to the type of services that could be rendered outside a registered veterinary facility. There was no evidence of professional development courses offered by the Board, as is the practice in many other vocations, to assist and guide practitioners regarding the type of services that may be offered outside registered veterinary hospitals and clinics.
In its disciplinary proceedings against Dr Alexander, the Board contends that procedures such as:
•cleaning of teeth;
•extraction of teeth;
•removal of grass seed from skin;
•sutured wounds; and
•sterilisation of a female cat outside registered veterinary facilities,
all fall within the scope of unprofessional conduct, unless in the event of an emergency or if registered veterinary facilities are not available.
But the above submissions made on behalf of the Board are not necessarily supported by the expert evidence. The expert witnesses are divided on these questions.
It became apparent during the hearing that there are strong differences of opinion between the expert witnesses as to what type of veterinary surgery should be conducted in a registered premises and what veterinary surgery could be conducted outside a registered premises.
The Tribunal notes that the Board suggests that the expert view of Dr McDonald should be preferred to the expert view of Dr Moore for the fact that Dr Moore refers clients to Dr Alexander from time to time. The Tribunal is, however, satisfied that both expert witnesses gave evidence to the best of their ability and that both made a serious effort to assist the Tribunal. Their evidence must therefore be treated and weighed on merit.
The expert witnesses acknowledge that standards of veterinary practice and equipment available to veterinary surgeons change over time. What may not have been acceptable a few years ago may be acceptable now, and vice versa.
Dr Moore, for example, says that when he was younger, he did many surgical procedures outside registered veterinary facilities, while Dr McDonald says he always performed surgical procedures in registered veterinary facilities. Both experts acknowledge that the quality and range of equipment at the disposal of veterinary surgeons are vastly superior today than years ago, but they also say that standards expected of veterinary surgeons are also higher.
Dr McDonald says that procedures such as extraction of teeth, suturing a wound or extracting grass seeds from the skin of a dog are 'surgical' and must preferably be conducted at a registered veterinary hospital or clinic. On the other hand, Dr Moore says that, although some procedures such as extraction of teeth are 'surgical', they can be carried out by a veterinary nurse - even, if the circumstances justify, without anaesthetic and, if possible, outside a registered veterinary hospital or clinic.
Dr Moore also emphasised that, rather than to focus on the place where a particular service is given, the objective of the Board should be to ensure that if a 'procedure is carried out competently and adequate followup treatment is given (which may include antibiotic therapy), professional standards are maintained' (para 23 of Dr Moore's witness statement).
The experts agree to disagree in regard to the appropriateness of undertaking a sterilisation procedure outside a registered veterinary clinic or hospital.
They agree that although it is 'ideal' for such surgery to take place within a registered veterinary facility, they disagreed as to whether a veterinary practitioner could, within his/her judgment after weighing up all the pros and cons, including being satisfied that the standard of service would not fall short of those offered by a registered facility, conduct a sterilisation procedure in a place other than a registered veterinary facility.
While the standards of veterinary surgical services described by Dr McDonald may be ideal and may constitute the upper limit of professional standards, the Tribunal is not satisfied that they describe the general standard of professional conduct observed, or approved of, by registered veterinary surgeons of good repute and competency. Dr McDonald's veterinary facilities clearly offer a very high standard of excellence, but this cannot be imposed on all veterinary surgeons and it cannot be assumed that such a standard is observed by members of the veterinary profession of good repute and competency.
The Tribunal is not satisfied that the Board has shown that Dr McDonald's standard namely, that in his practice, all forms of veterinary surgery are conducted in a registered veterinary clinic or hospital is the accepted standard of the veterinary profession of Western Australia. As observed by Dr Moore, the facilities and standards provided by Dr McDonald's practice 'aspire to be the best', but it does not constitute the 'norm of the veterinary profession'.
The different approaches taken by the two expert witnesses are evidenced by Dr Moore's reply '[i]n the metropolitan area, no' to a question as to whether it is acceptable to operate on a kitchen table with the facilities available. But this reply by Dr Moore suggests that a different standard may apply, as far as Dr Moore is concerned, to a nonmetropolitan area. This is consistent with Orders 2008, which made no mention of prohibiting veterinary surgical procedures such as sterilisation of a female dog or cat in rural towns and villages outside registered facilities.
The Tribunal accepts the evidence of Dr Moore who says that it is the judgment of the veterinary practitioner that determines the best procedure to be administered.
The Tribunal prefers the assessment of Dr Moore, since it represents a balanced approach between place of surgery and quality of services. Dr Moore's evidence is also consistent with the practice of veterinary surgery that has developed in Western Australia, especially in light of the absence of guidelines by the Board. In some instances, the extraction of a tooth may require hospitalisation, while in other instances, a tooth may be removed at home without anesthetic. There is no hard and fast rule about it.
Dr Moore says he often refers persons to home veterinary services where 'minor surgical procedures' are required, such as problems with teeth and lumps (para 25 of Dr Moore's witness statement). Dr Moore also says in evidence that he would conduct minor surgery outside a registered veterinary premises for example, removal of loose teeth and grass seed abscesses. He does not deny that these procedures can be 'better done at the veterinary hospital', but accepts that if proper care is taken, the procedures could also be done outside a veterinary hospital or clinic.
Mr Beaumont, who gave evidence as a person with many years practical experience within the RSPCA, says that over a period of 25 years, he had witnessed mobile veterinarians do many surgical procedures such as 'stitching up' outside registered veterinary facilities. He also observed that, in his view, some veterinary procedures can be properly undertaken outside a veterinary surgery if care is taken of hygiene considerations.
Dr Alexander says the decision where to conduct surgery is a balancing exercise and in some instances a veterinary surgeon may choose to perform a procedure in a registered facility, while another veterinary surgeon may decide to perform the same procedure at the home of a client (para 10 of Dr Alexander's statement). It therefore comes down to the assessment of the practitioner.

Dr Alexander accepts that sterilisation falls into a category of 'major surgery' but he also says the sterilisation he performed was keyhole surgery and therefore not as invasive as with larger animals such as a horse. He says the sterilisation of a female cat is a 'very easy surgery' that can be done in 20 minutes or less. He also does not accept that removal of teeth is, per definition, 'major surgery', as is suggested by Dr McDonald.
Although Dr Alexander was examined about the standards recommended for home services by the Association, the Tribunal notes that:
•Dr Alexander is not a member of the Association;
•there is no requirement for him to be a member thereof;
•there is no evidence by the Board to suggest that registered veterinary surgeons are required to structure their practice in compliance with the Association's policies; and
•the policies of the Association are not binding on its members and even less so on non-members.
In fact, the Board did not submit any information to the Tribunal to show if the Board has made any attempts to enact guidelines in Western Australia to reflect the standards set by the Association. As was put by Mr Bradford to the Tribunal:
… That's correct, your Honour, especially when we're working in a vacuum in a state where there aren't any [standards regarding mobile services]. (T:101, 18.08.10)
Although the Board said in closing submissions that the standards set by the Association and states of Queensland and South Australia bear no relevance to these proceedings (para 251 of the Board's closing submissions), the absence of regulations or professional guidelines in Western Australia has left a void which could be interpreted by a practitioner such as Dr Alexander that the standards applicable in other states do not necessarily apply to veterinary surgeons in Western Australia.
In the absence of guidelines by the Board as to what types of surgical services may be conducted outside a registered veterinary hospital or clinic, the Tribunal must determine the question of Dr Alexander's conduct on the basis of the evidence before it.
The Tribunal must be satisfied that there is sufficient clarity, compliance and adherence within the veterinary profession about a required standard before a finding can be made that Dr Alexander's conduct fell substantially below that standard.
The Tribunal is, for the reasons set out above, not satisfied that the Board has demonstrated with sufficient clarity the accepted range and standard of veterinary surgical procedures that can be undertaken outside a registered facility. In light of the absence of clarity, the Tribunal finds that the Board failed to demonstrate to the reasonable satisfaction of the Tribunal that Dr Alexander's performance of veterinary surgery on the two cats falls substantially short of what is reasonably expected of practitioners of good repute and competency.
In summary, the Tribunal is not satisfied that the Board has shown that Dr Alexander's conduct to perform sterilisation on two cats on 30 June 2008 outside a registered veterinary clinic or hospital falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
The second allegation should therefore be dismissed.

Whether the surgeries performed in the Perth metropolitan area constitute unprofessional conduct within the context of the VS Act

In light of the reasons set out above in which the Tribunal has found that the Board did not provide to the reasonable satisfaction of the Tribunal:
a)a consistent definition of 'veterinary surgery';
b)a coherent explanation of what type of veterinary surgery may be undertaken at a premises other than a registered veterinary clinic or hospital; and
c)proper guidelines for the provision of home veterinary services,
the Tribunal is not satisfied that Dr Alexander's conduct when he undertook the veterinary surgical procedures fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
The third allegation should therefore be dismissed.

Summary

For the reasons set out above, the Tribunal finds that the Board has not to the reasonable satisfaction of the Tribunal shown that Dr Alexander's conduct in the matters the subject of these proceedings falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
The Tribunal therefore finds that Dr Alexander is not guilty of unprofessional conduct.
The application should be dismissed.

Whether the finding condones the actions of Dr Alexander

The Tribunal wishes to emphasise that this finding should not be understood to condone the actions of Dr Alexander. The failure of the Board to satisfy the requirements for disciplinary action cannot be construed as approval of the conduct of Dr Alexander. The reasons why the application has been unsuccessful have been explained in detail. It is for the Board to take proactive steps, if necessary, to provide greater detail and guidance to veterinary surgeons in regard to matters considered in these proceedings.

Orders

1.The application is dismissed.
2.The applicant must by not later than 9 December 2011 file and serve its submission in support of an application for costs.
3.The respondent must by not later than 23 December 2011 file and serve its reply to the application for costs.
4.Further orders will be made when Order 3 has been complied with.

I certify that this and the preceding [152] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: VETERINARY SURGEONS ACT 1960 (WA)

CITATION: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2011] WASAT 175 (S)

MEMBER: DR B DE VILLIERS (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 28 NOVEMBER 2010

SUPPLEMENTARY
DECISION :2 FEBRUARY 2012

FILE NO/S: VR 50 of 2009

BETWEEN: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
KURT ALEXANDER
Respondent

Catchwords:

Application for costs Principles applicable to awarding costs in disciplinary proceedings

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Application for costs dismissed
Each party is responsible for their own costs

Category: B

Representation:

Counsel:

Applicant: Mr G Abbott
Respondent: Mr K Bradford

Solicitors:

Applicant: Tottle Partners
Respondent: Bradford and Co

Case(s) referred to in decision(s):

Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135
Medical Board of Western Australia and Graziotti [2009] WASAT 19
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Pearce and Anor and Germain [2007] WASAT 291 (S)
The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The proceedings concern an application by Dr Kurt Alexander for the costs incurred in disciplinary proceedings. The disciplinary proceedings which were brought by the Veterinary Surgeons' Board of Western Australia, were dismissed.
Dr Alexander contended that he was entitled to have all the costs he had to incur to defend the application refunded. Dr Alexander said the Veterinary Surgeons' Board of Western Australia pursued an unmeritorious matter and that it acted unreasonably during and after mediation.
The Veterinary Surgeons' Board of Western Australia contended that each party should bear their own costs. The Veterinary Surgeons' Board of Western Australia said that it brought the proceedings in good faith; in the interest of the public; and it should not be penalised by being ordered to pay the costs of Dr Alexander.
The Tribunal concurred with the submissions of the Veterinary Surgeons' Board of Western Australia and ordered that each party should bear their own costs for the proceedings.

Issue

The issue in this proceeding is whether costs should be awarded to Dr Alexander after disciplinary proceedings against him were dismissed.

Background

On 28 November 2010 the Tribunal dismissed an application by the Veterinary Surgeons' Board of Western Australia (Board) for disciplinary proceedings to be taken against Dr Kurt Alexander (The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175).
Dr Alexander sought a cost order to be made according to which the costs incurred in defending the application should be borne by the Board. Programming orders were made for the parties to make submissions in regard to costs.
Mr Abbott, acting for the Board, made written submissions on 19 December 2011. Mr Bradford, acting for Dr Alexander, made written submissions dated 21 December 2011.
The Tribunal made its determination on the papers.

Contentions

The contentions of the Board can be summarised as follows.
The Board contends that each party should bear their own costs. This is consistent with s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and with previous decisions of the Tribunal in disciplinary proceedings initiated by vocational bodies.
The Board has acted reasonably and in good faith in seeking disciplinary action against Dr Alexander, and the fact that it has not been successful is not, by itself, a ground to award costs against it.
When the entire proceedings are considered, note must be taken of the observation by the Tribunal that the actions of Dr Alexander were not condoned by the Tribunal. The Board therefore had a proper, honest and reasonable basis for commencing disciplinary proceedings.
The contentions of Dr Alexander can be summarised as follows.
The Board should be ordered to pay the costs of Dr Alexander.
Dr Alexander contends that the Board acted unreasonably during the mediation and the hearing.
The Board recognised the need for better regulation of mobile veterinarian services by producing a draft guideline for future regulation. The Tribunal also observed the lack of regulations in Western Australia comparable to those in other states.
The nature of penalty sought by the Board was unreasonable, and made any attempt at mediation impossible.
Dr Alexander had no option but to oppose the allegations against him and he is entitled, in light of his success, for the cost incurred to be paid by the Board.
It is important for a vocational body to be aware that there are risks involved in commencing proceedings and to participate in mediation without making a serious attempt to settle a dispute.

Consideration

The point of departure for considering an application for costs is s 87(1) of the SAT Act which provided, in essence, that parties bear their own costs.
Section 87(1) of the SAT Act does not mean that a cost order is precluded. The Tribunal may award costs and has done so in many instances.
In the matter of Pearce [&] Anor and Germain [2007] WASAT 291 (S), an overview was given of the cost regime applied by the Tribunal and the criteria to be considered prior to the award of costs. In the matter of Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135 at [18] [20], the criteria were summarised as follows:
Since its inception, several decisions have been handed down by the Tribunal in regard to costs: refer, for example to the decisions of Bilek and Vata Investments Pty Ltd [2005] WASAT 153; Quah and AMP Life Limited [2005] WASAT 169; Chew and DirectorGeneral of the Department of Education and Training [2006] WASAT 248; Summerville and Department of Education and Training and Ors [2006] WASAT 368 (S) and Clifford and Shire of Busselton [2007] WASAT 89 (S).
These and other decisions were recently analysed and discussed by the Tribunal's Deputy President, Judge Chaney, in the matter of Pearce [&] Anor and Germain [2007] WASAT 291 (S) (Pearce). The decision was handed down on 9 May 2008.
In Pearce, his Honour set out the following principles for the consideration of costs applications by the Tribunal:
(i)The starting point of the Tribunal is that it is a 'no cost' jurisdiction ([8]).
(ii)The cost regime that was applicable to the previous Commercial Tribunal does not apply to the State Administrative Tribunal ([11]).
(iii)The objectives of the State Administrative Tribunal are furthered by its being essentially a 'no cost' jurisdiction ([17]).
(iv)Where there is a genuine dispute and the respective rights are unclear and parties seek a determination, the 'starting point remains that each party should expect to pay their own costs' ([24]).
(v)The Tribunal does have the power to award costs, and it is not appropriate to 'delineate the particular circumstances' in which the discretion to award costs would be exercised favourably ([22]).
(vi)Some of the factors (not an exhaustive list) that may contribute to the Tribunal making a cost order are for example
a.A party has conducted itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party.
b.A party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party.
c.Where credibility of evidence is at the heart of a matter.
d.Where the application undermine[s] the integrity of proceedings under the relevant Act.
e.The relative weakness of a case, it being incredible or implausible or 'obviously unmeritorious'.
f.If a party has to embark in proceedings to 'vindicate its clear contractual entitlements' ([22] [24]).
An assessment of the Tribunal's decisions regarding applications for costs shows that while costs may be awarded in areas where commercial interests are of concern, for example, in the fields of commercial tenancies and building disputes, it is only in exceptional instances that costs will be awarded against a vocational body in disciplinary proceedings.
In general, costs are not awarded against vocational bodies since such bodies represent the public interest and should not be discouraged to fulfil their statutory obligations. In the matter of Medical Board of Western Australia and Graziotti [2009] WASAT 19, the Tribunal found that, regardless of its general approach, it was satisfied that the conduct of the Medical Board was 'oppressive' and a cost order was justified (at [67]).
The Tribunal's approach to awards of costs in the context of vocational regulation matters is now relatively well established. That general approach was explained by the President of the Tribunal, Chaney J in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44] - [48] where he said:
Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings. In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that:
'Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.'
With those observations the Tribunal concurs.
In the Roberman case, however, the Medical Board of Western Australia was unsuccessful in relation to some of the allegations made against the medical practitioner. For that reason the Tribunal in its discretion considered it was appropriate that the practitioner only pay onethird of the costs of the Medical Board. In so doing the Tribunal implicitly recognised that a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part[s] of the proceedings which were not successfully maintained.
The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.
In these proceedings the Tribunal may have found against the Board and for Dr Alexander, but that is not to say that the proceedings were without any merit or should not have been commenced. There was a reasonable basis for the Board to have commenced the proceedings and the Tribunal recognised in its reasons for decision the complexity of the matter.
The Tribunal does not accept the contention of Dr Alexander that the Board did not act in good faith during the mediation process. The mediation is a private, confidential and without prejudice process and the Tribunal is not able to make any qualitative assessment of the conduct of a party in those proceedings.
The Tribunal therefore does not accept the contentions of Dr Alexander that a cost order should be made against the Board. On the basis of all the information before it, the Tribunal finds that each party should bear their own costs.

Orders

1.The application for a cost order against the Veterinary Surgeons' Board of Western Australia is dismissed.
2.Each party must bear their own costs of the proceedings.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER