The Veterinary Surgeons' Board Of Western Australia and Lucas
[2009] WASAT 214
•30 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: VETERINARY SURGEONS ACT 1960 (WA)
CITATION: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and LUCAS [2009] WASAT 214
MEMBER: MS J HAWKINS (MEMBER)
MR J JORDAN (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)
HEARD: 23 JUNE 2009 AND 7 SEPTEMBER 2009
DELIVERED : 30 OCTOBER 2009
FILE NO/S: VR 21 of 2009
BETWEEN: THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
RICHARD JAMES LUCAS
Respondent
Catchwords:
Allegation of unprofessional conduct against principal of veterinary clinic where instructions to euthanise a dog not carried out Principal not scheduled to carry out euthanasia Questions by staff to principal concerning possible rehoming Principal's instructions not carried out Whether principal remained ultimately responsible for failure to euthanise Turns on facts
Legislation:
Legal Practice Act 2003 (WA), s 3
Veterinary Surgeons Act 1960 (WA), s 23(2a), s 23(4)(e)
Veterinary Surgeons Regulations 1979 (WA), reg 28
Result:
Dismissed
Category: B
Representation:
Counsel:
Applicant: Mr Geoff Abbott
Respondent: Mr Gary Massey
Solicitors:
Applicant: Tottle Partners
Respondent: Holborn Lenhoff Massey
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213
Royal College of Veterinary Surgeons v Wilson (unreported decision of the United Kingdom Disciplinary Committee of the Royal College of Veterinary Surgeons)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Dr Lucas, a veterinary surgeon, was the sole principal of a veterinary clinic. The case concerns a dog, Abbey, that was brought to Dr Lucas' clinic to be euthanised.
Dr Lucas was not the veterinary surgeon scheduled to see Abbey. His only involvement with Abbey was to answer a question, whilst scrubbing for surgery, as to whether Abbey could be rehomed rather than euthanised. He advised his staff that rehoming could only occur after Abbey's owner agreed, and if those instructions were not obtained, Abbey was to be euthanised the next day. Dr Lucas had no further involvement with Abbey and was away from the clinic the next day. Contrary to Dr Lucas' advice, and whilst he was away from the clinic, his staff did not euthanise Abbey. Due to a bizarre combination of errors, and without further contact from Abbey's owner, Dr Lucas' staff caused Abbey to be rehomed without her owner's consent. At the time of hearing, the Tribunal understood Abbey was alive and well.
The Veterinary Surgeons' Board of Western Australia alleges that Dr Lucas was guilty of unprofessional conduct in respect to the failure to euthanise Abbey or to ensure that his staff obtained further instructions from Abbey's owner in respect to re-homing.
The case concerned Dr Lucas' responsibility in respect to the instructions to euthanise Abbey. The Tribunal considered despite the case concerning euthanasia, due to Dr Lucas' limited involvement, he was not guilty of unprofessional conduct. The Tribunal considered that Dr Lucas fulfilled his limited responsibility in properly instructing his staff that Abbey was to be euthanised unless instructions to rehome were obtained from Abbey's owner. Thereafter, he was entitled to assume that the normal practice of creating a clinical record for Abbey had been followed and that his instructions would be noted upon that record and carried out by his staff, which included experienced veterinarians.
The case turns on its facts. The Tribunal did not consider that Dr Lucas had acted unprofessionally. The application was therefore dismissed.
Issue and allegations of unprofessional conduct
The issue for determination is whether, pursuant to s 23(4)(e) of the Veterinary Surgeons Act 1960 (WA) (VS Act), Richard James Lucas (Dr Lucas/respondent) was guilty of unprofessional conduct as a veterinary surgeon, as sole principal of the practice known as 'Busselton Veterinary Hospital' (Clinic). The Veterinary Surgeons' Board (Board) alleges the unprofessional conduct occurred in respect to a dog (Abbey) that was left at the Clinic with instructions by its owner (Abbey's owner) for it to be euthanised.
In particular, the Board's Amended Notice of Allegations states as follows:
4.The respondent did not euthanise Abbey and failed to ensure that the Clinic staff obtained [Abbey's owner]'s:
(1)further instructions and consent before deciding that Abbey would not be euthanised; and
(2)written or, alternatively, verbal consent before taking steps to cause Abbey to be sold to (or, alternatively, 'rehomed' with) another person.
The penalty the Board seeks against Dr Lucas is a reprimand and a fine of $500.
Unprofessional conduct
The application currently before this Tribunal was made pursuant to s 23(2a) of the VS Act, which provides as follows:
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)(e) of the VS Act seeks to define the meaning of the expression 'unprofessional conduct as a veterinary surgeon' as follows:
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; …
Regulation 28 of the Veterinary Surgeons Regulations 1979 (WA) provides as follows:
(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.
The Board bears the burden of proving its case. In accordance with the Briginshawstandard, this Tribunal must 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.
Statement of agreed facts
The parties filed a statement of agreed facts. For privacy reasons, reference to Abbey's owner's name has been changed in these reasons to refer to her as 'Abbey's owner'. The statement of agreed facts states:
1.The respondent is a registered veterinary surgeon who is a principal of the practice known as the 'Busselton Veterinary Hospital' (Clinic).
2.The Clinic employs registered veterinary surgeons and veterinary nurses.
3.[Abbey's owner] made an appointment with the Clinic for her and her Kelpie/Blue Heeler crossbred dog, 'Abbey', to see a veterinary surgeon from the Clinic.
4.The Clinic scheduled for [Abbey's owner] and 'Abbey' to attend the Clinic on 26 May 2008 [to] see a veterinary surgeon who was not the respondent.
5.The purpose of the appointment was to have 'Abbey' euthanased [sic].
6.This was the first time that [Abbey's owner] had attended the Clinic and accordingly, the Clinic did not hold a record of her details or details of 'Abbey'.
7.[Abbey's owner] attended at the Clinic on 26 May 2008.
8.[Abbey's owner] was very upset at the thought of Abbey being euthanased [sic] but had made that decision on the basis that Abbey may have bitten [Abbey's owner's] child and [her] attempts to rehome Abbey had been unsuccessful.
9.On attending the Clinic with 'Abbey' on 26 May 2008, [Abbey's owner] declined the appointment to see a veterinary surgeon.
10.[Abbey's owner] signed a consent form for Abbey to be euthanased [sic] but the form erroneously contained incorrect client details, including the wrong name and telephone number.
11.[Abbey's owner] left the Clinic without seeing any veterinary surgeon but left 'Abbey' at the Clinic with instructions that Abbey be euthanased [sic].
11A.On 26 May 2008 and before leaving 'Abbey' at the Clinic, [Abbey's owner] paid a fee for 'Abbey' to be euthanased [sic].
12.The Clinic's veterinary nurses, upon examining 'Abbey' following [Abbey's owner's] departure from the Clinic, considered that 'Abbey' was a suitable dog to be re-homed rather than euthanased [sic] and asked the respondent if that could be arranged.
13.The respondent expressly instructed the veterinary nurses at the Clinic not to re-home 'Abbey' without first contacting [Abbey's owner] and obtaining her verbal instructions for that to occur.
14.The respondent also instructed the veterinary nurses at the Clinic that if [Abbey's owner's] consent was not obtained 'Abbey' was to be euthanased [sic] as instructed, the following day 27 May 2008.
15.The respondent instructed the veterinary nurses at the Clinic that it was permissible to keep 'Abbey' at the Clinic overnight whilst they attempted to obtain further instructions from [Abbey's owner].
16.On 26 May 2008 the Clinic's veterinary nurses contacted a local organisation (known as 'Save Animals from Euthanasia' (SAFE)) that assists people to re-home pets rather than have them euthanased [sic] and were told that SAFE could place Abbey with a foster carer in the evening of 27 May 2008.
17.The respondent's only personal involvement with the events of 26 to 27 May 2008 was to answer the question posed by the veterinary nurses in the manner set out above.
18.The respondent did not speak to any veterinarian employed by the Clinic regarding the euthanasia or other disposal of Abbey prior to the respondent departing the Clinic for the day and knowing he would be absent from the Clinic the following day.
19.The respondent travelled to Perth on the evening of 26 May 2008 and returned to his home late on the night of the 27 May 2008 without returning to the Clinic.
19A.Two veterinary surgeons employed by the respondent were present at the Clinic on 27 May 2008.
20.The respondent did not have any contact with anyone from the Clinic about Abbey on 27 May 2008.
21.The Clinic's veterinary nurses failed to follow the respondent's express instructions.
22.The failure to contact [Abbey's owner] to seek further instructions was partly due to a failure to have a record of [Abbeys owner's] contact details.
23.The Clinic's veterinary nurses attempted to make contact with [Abbey's owner] but did not contact her.
24.Notwithstanding that the respondent had expressly instructed the Clinic's veterinary nurses not to re-home 'Abbey' without first contacting [Abbey's owner] and obtaining her instructions for that to occur, and despite the absence of further instructions from [Abbey's owner], the Clinic's veterinary nurses proceeded to make arrangements for 'Abbey' to be re-homed.
25.The Clinic's veterinary nurses left a message for [Abbey's owner] on another person's answering service (which the Clinic staff mistakenly believed to be [the correct] telephone number) stating that 'Abbey' would be rehomed unless [Abbey's owner] contacted the Clinic to confirm that she wanted the scheduled euthanasia to proceed.
26.The Clinic's veterinary nurses did not receive any communication from [Abbey's owner] and, without any further contact with [Abbey's owner] or the respondent, proceeded to re-home 'Abbey'.
27.Representatives of SAFE collected Abbey from the Clinic in the afternoon of 27 May 2008.
28.The failure to euthanase [sic] 'Abbey' and the action to instead rehome 'Abbey' was not a malicious act by the respondent or the Clinic's veterinary nurses.
29.The new 'owner' of 'Abbey' has had no problems with 'Abbey', and 'Abbey' is healthy and well-loved.
30.Until 21 July 2008, the respondent did not know that 'Abbey' had been re-homed rather than euthanased [sic] and did not know that [Abbey's owner] had not consented to that occurring.
31.The respondent did not take any steps between 26 May 2008 and 21 July 2008 to determine whether Abbey had been euthanased [sic] or whether [Abbey's owner] had changed her instructions.
32.Some 6 weeks or so after 26 May 2008, [Abbey's owner] became aware that 'Abbey' had not been euthanased [sic].
33.[Abbey's owner] became aware of that fact when she saw in the local Busselton newspaper that a dog fitting the description of 'Abbey' was being advertised for sale by 'SAFE'.
34.The matter was the subject of a letter written by [Abbey's owner] to the local newspaper and published as a letter to the editor. The newspaper also published a response from 'SAFE' the following week, also as a letter to the editor which [Abbey's owner] considered personally offensive.
35.Neither the Clinic nor the respondent had any prior knowledge of either letter to the local newspaper.
36.After the respondent became aware that 'Abbey' had not been euthanased [sic], he made verbal contact with [Abbey's owner] and has promptly addressed [Abbey's owner's] concerns and questions both in writing and verbally and refunded … the fee that she had paid for the euthanasia.
Other evidence
In addition to the agreed facts, evidence was given by Dr Lucas and two other veterinarians called by the parties. A summary of that evidence follows.
Dr Lucas
Dr Lucas explained that on 26 May 2008, he was in the Clinic. He had not been scheduled to see Abbey and confirmed that Abbey was scheduled to see another veterinary surgeon. It was in the afternoon and he was preparing to undertake a surgical procedure on another animal. At that time, he was asked by one of the Clinic's nurses, as they were passing him, whether it may be possible to re-home Abbey.
Dr Lucas explained that he had been told by his staff that, when Abbey's owner had first telephoned the Clinic to make the appointment, she indicated that she did not want to euthanise Abbey. He understood from his staff that when the owner had attended, she was very upset in respect to euthanising Abbey. It was because of this that his staff raised whether it would be possible to re-home Abbey.
On questioning by his staff whether Abbey could be re-homed, Dr Lucas instructed the veterinary nurses at the Clinic that if Abbey's owner's consent was not obtained, Abbey was to be euthanised the following day.
Dr Lucas did nothing further in respect to Abbey. He maintains that at no time did Abbey become his patient. He suggested that, in answering the question from the nursing staff, he was answering a procedural question, not assuming the responsibility for Abbey.
Dr Lucas explained that Abbey's owner was not a previous client of the Clinic.
Dr Lucas gave evidence that, due to Abbey's owner being upset when attending, the normal procedure of collecting the client's information was not followed and her details were incorrectly collected via a counter sale. Dr Lucas explained that such a record is usually created when someone comes into the Clinic to purchase products, such as flea treatment. He was not, however, aware of any of this at the time of answering the question concerning the rehoming of Abbey.
It is useful to reiterate at this point that, although the consent to euthanise form was signed by Abbey's owner, due to an error it did not have the correct name and telephone number upon it.
Dr Lucas explained the Clinic's procedure in relation to outstanding cases carried over from the previous day. He stated that when an animal is admitted, there is some sort of paper record with a client's signature, whether it be for treatment or for euthanasia, and suggested that this constitutes the clinical record for the animal. He explained that it was standard practice for these records to be updated during the day in respect to the treatment plan for the animal (T:50, 230609).
Dr Lucas told the Tribunal that, at the end of a day, a veterinarian was always on call to take on the responsibility of the care of the animals left in the hospital overnight. That responsibility is then taken over by the veterinarians that come to work the next day. Any animals kept overnight are examined by the veterinary nurses and discussed by the veterinarians to work out the ongoing care and treatment of those animals. He confirmed that when he left the Clinic on 26 May 2008, there was a veterinary surgeon on call. That veterinarian takes on the responsibility of the care of any animals left in the Clinic overnight and for any calls that occur during closing hours. He told the Tribunal that the veterinary surgeon on call on the evening of 26 May 2008 was the same veterinary surgeon who had been scheduled that day to see Abbey.
Dr Lucas advised that, on the nights of 26 May 2008 and 27 May 2008, he was not the veterinarian on call for the Clinic as he had left to attend a conference in Perth on the evening of 26 May 2008. The statement of agreed facts at [21] confirms that on 27 May 2008, two veterinary surgeons were present at the Clinic.
Dr Lucas confirmed that, by the time of his return to the Clinic on 28 May 2009, Abbey had been re-homed. He did not become aware of this fact until much later, nor that Abbey's owner's consent to rehome had not specifically been obtained.
Dr Lucas explained that he was greatly upset by the unfolding of these events of this case. Once he learnt of them, he took immediate steps to contact Abbey's owner and address her concerns. He also advised the Tribunal that as a result of this case, he has taken steps to further train his staff to ensure there is no repetition of the events that led to Abbey being re-homed without the consent of her owner.
Expert evidence
Both parties also called upon evidence from two experienced veterinary surgeons Dr Edgar (for the Board) and Dr Vale (for Dr Lucas) - who were well qualified to address the matters in issue. They were called to express their opinions as to the responsibilities of veterinarians in the circumstances described in the statement of agreed facts. They were also present when Dr Lucas gave his oral testimony.
Dr Edgar is a veterinary surgeon registered in 1990. He is the President of the Western Australian division of the Australian Veterinary Association and has held that position since March 2009. His experience includes being the principal of a small animal veterinary hospital in suburban Perth for 14 years. Currently, he employs two veterinary surgeons.
Dr Vale graduated from Murdoch University in 1989. He is currently a partner in a mixed veterinary practice. He has held many Equestrian Board positions. His involvement in equine practice has included being appointed at the Sydney Olympic Games and the Beijing Olympic Games as the Equestrian Mediation Control Program Supervisor. Currently, Dr Vale is in partnership with six other partners and runs one of the largest mixed practices in Western Australia, employing 11 veterinary surgeons.
The expert witnesses provided their written opinions. They had the opportunity, prior to giving oral evidence, to confer with each other, after which they gave their evidence concurrently in accordance with the Tribunal's standard practice.
Both experts accepted that when an animal is presented to a veterinary clinic for euthanasia, those instructions must be carried out unless the client gives instructions not to do so. In Dr Edgar's written statement, he stated that the euthanasia should occur within a few hours of a dog being presented. Both Dr Edgar and Dr Vale accepted that such instructions did not need to be in writing and could be obtained orally from the client. Both experts agreed that euthanasia is a difficult area of practice.
They also explained that a veterinary practice that allows rehoming, following instructions to euthanise, is subject to risks. The risks include such things as not properly obtaining a client's instruction or overcoming a staff culture of re-homing rather than carrying out the instruction to euthanise. Each expert had different methods of managing such risks. Dr Vale explained that, although he previously allowed rehoming, he now does not. Dr Edgar explained that he did allow rehoming but advised that he considered he had an adequate system in place to manage any risks associated with rehoming.
Dr Edgar and Dr Vale agreed that once Dr Lucas answered the question in respect to the rehoming of Abbey, he assumed some level of responsibility in respect to the animal. There was some divergence between the experts as to the extent of that responsibility from that point onwards. Both, however, accepted that this responsibility could be transferred to an incoming veterinarian, either by a formal handover or as a result of a clinical record being created for the animal.
Indeed, Dr Edgar accepted that such responsibility might even be in the hands of a veterinarian who had an inadequate clinical record (T:100, 230609).
The real difference in the views of Dr Vale and Dr Edgar is that Dr Edgar considered that, irrespective of the circumstances in this case, Dr Lucas should have checked whether his instructions in respect to Abbey were carried out, whereas Dr Vale considered that, once Dr Lucas left for the day on 26 May 2006, he was entitled to assume that his instructions would be carried out by his staff, which included experienced veterinary nurses and veterinary surgeons.
Despite that difference, Dr Edgar testified that he would not necessarily expect one of his veterinary surgeons to telephone him about euthanising a dog. Likewise, Dr Vale told the Tribunal that he would not expect to be told about such matters.
The Board's case
The Board submits that a determination of this matter requires ascertaining the level of responsibility Dr Lucas had for Abbey.
The Board argues that, as Dr Lucas was the sole principal of his practice, he, via his staff, personally contracted to euthanise Abbey.
The Board contends that, once instructions had been received for Abbey to be euthanized, or, at the latest, after he instructed his veterinary nurses to obtain alternative instructions from Abbey's owner in respect to rehoming, Dr Lucas could not simply leave it to his staff to see that those instructions were carried out. The Board maintains that this is particularly so in the context of euthanasia of an animal.
The Board argues that at no time prior to Dr Lucas being asked by the veterinary nurse whether Abbey could be rehomed, had Abbey been seen by another veterinarian. Further, the Board points out that subsequent to answering the question concerning rehoming Abbey, and before departing the Clinic on 26 May 2008, Dr Lucas did not speak to any of his employed veterinarians regarding Abbey. The Board contends that, as Dr Lucas was the only veterinary surgeon who gave instructions to his staff about what to do with Abbey after the client had provided instructions to euthanise Abbey, he was personally responsible to ensure those instructions were carried out. As such, the Board insists that Dr Lucas was personally responsible for:
•the management of Abbey;
•the carrying out of the instructions to euthanise Abbey. In that regard, the Board referred to evidence given by Dr Edgar that ideally when an animal is presented for euthanasia, it should be carried out within a few hours of the animal being delivered to the veterinary surgeon's clinic. As such, the Board considers it was possible and appropriate for Dr Lucas to carry out the euthanasia personally; and
•the supervision of the tasks delegated to his staff.
The Board maintains that Dr Lucas did not absolve himself of that responsibility merely by instructing his veterinary nurse to obtain further instructions from the client in respect to the rehoming of Abbey.
The Board argues that, by answering the question in respect to the rehoming of Abbey, Dr Lucas set a management course in motion without taking steps to manage the process or checking to see that his instructions had been followed.
The Board submits that an instruction to euthanise is not something that can be partially completed. The Board contends that the appropriate standard is that, if there is an instruction to euthanise, the instruction must be followed unless the instruction is expressly altered. Therefore, if the instructions are not followed and the instructions are not altered, there is a substantial breach of the standard.
The Board relied on the decision of Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (Benari) and suggested it was factually similar to this case.
In essence, the Board maintains that Dr Lucas acted unprofessionally because:
•He was the sole principal of the Clinic;
•Abbey was never seen or treated by another veterinary surgeon in the Clinic;
•He answered a question as to the possible rehoming of Abbey; and
•Following the answering of that question, he did nothing further to ensure that the client's instructions were carried out.
As a result, the Board maintains that Dr Lucas is guilty of unprofessional conduct as defined under the VS Act.
Dr Lucas' case
Dr Lucas reminds the Tribunal that the central issue for determination is whether his conduct was unprofessional.
He maintains that he only had limited involvement in the management of Abbey. Although he accepts that he was the sole principal of the Clinic, Abbey was brought in to see a different veterinary surgeon.
His only involvement with Abbey was that he was approached by the veterinary nurses in the afternoon of the 26 May 2008, whilst scrubbing for surgery, and asked a question about the possibility of rehoming the dog. He maintains he gave express instructions not to rehome Abbey without first contacting Abbey's owner and obtaining her instructions for that to occur. He also instructed the veterinary nurses that if the consent was not obtained, Abbey was to be euthanised the next day.
Dr Lucas contends that, when he left for Perth at the end of the day on 26 May 2008, he left the Clinic in the overnight care of another veterinary surgeon who was employed by the Clinic and had been the same veterinarian originally booked to see Abbey. Whilst he was away on 27 May 2008, there were two veterinary surgeons on duty. Dr Lucas argues that if Abbey's owner's consent to re-home had not been obtained, the veterinary surgeons on duty the next day would have been responsible to euthanise Abbey.
Dr Lucas argues that it is fundamental to appreciate that, by the time he returned from Perth, Abbey had been re-homed in his absence, without his knowledge.
Dr Lucas maintains that, although he had a duty to give an accurate answer to his veterinary nurses when they posed the question to him concerning the rehoming of Abbey, thereafter, the responsibility for the care of Abbey passed to the other veterinarians on duty in the Clinic.
Dr Lucas submits, therefore, that Abbey was not his patient.
He argues that, at the time he answered the veterinary nurses' question, he had no knowledge that the euthanasia had been treated as a counter sale. The effect of this error meant that the counter sale did not generate a clinical record, which would have been available for the veterinarian on duty that evening, and the next day, to ascertain the relevant instructions.
Dr Lucas contends that he was entitled to assume that, in respect to the instructions to euthanise, a clinical record had been prepared in accordance with the usual practice of the Clinic. He maintains that if a clinical record had been prepared, this would have been available to the veterinary surgeon who came on duty in the evening, and the matter would have been dealt with, either by Abbey being euthanised or by rehoming, with the consent of Abbey's owner. He argues that he was entitled to assume that his instructions would be followed and that sufficient records had been generated by his staff to properly inform the incoming veterinary surgeon. Accordingly, he says that he was entitled to assume that the usual practice of his Clinic had applied, namely, that the clinical record had been generated, the nurses had acted in accordance with his instructions, and that, if there had been a difficulty in doing so, then the veterinary surgeon on duty either that evening or the following day would have dealt with it.
Dr Lucas argued that the expert evidence in this matter suggested that if there was a clinical record created when Abbey first came to the clinic, there is no need for a formal handover. It was contended that the evidence of both experts supports the view that, either at a formal handover or on the creation of a clinical record, responsibility for Abbey would pass to the veterinarian left on duty at the end of the day.
It is submitted that, in the circumstances of this case, as Abbey was not his patient or his responsibility, he was not obliged to follow up in respect to the outcome, and that his not doing so did not amount to unprofessional conduct.
Dr Lucas accepts that one of the questions for determination by the Tribunal is the degree to which he was responsible for the actions of his staff. He concedes that the practice as a whole should have adopted better methods when dealing with Abbey. He maintains that he should not be found personally guilty of unprofessional conduct in the circumstances of this case, as a result of the unusual string of failures of his staff.
In respect to the decision of Benari cited by the Board, it was argued that the finding of neglect in that case was greatly different from the consideration of unprofessional conduct in this case.
In essence, Dr Lucas argued that there is a clear distinction between what amounts to good practice and what constitutes unprofessional conduct, and maintains that, in this matter, he was not guilty of unprofessional conduct.
Consideration
The Board's allegations of unprofessional conduct are set out at [4] of the Amended Notice of Allegations and state:
4.The respondent did not euthanise Abbey and failed to ensure that the Clinic staff obtained the client's:
(1)further instructions and consent before deciding that Abbey would not be euthanised; and
(2)written or alternatively verbal consent before taking steps to cause Abbey to be sold to (or, alternatively, 're-homed' with another person.
The Tribunal must therefore determine whether, on the evidence before it, Dr Lucas is guilty of unprofessional conduct. This requires an analysis of the evidence and consideration of whether Dr Lucas ever became responsible for Abbey and, if so, whether, and to what extent, that responsibility continued. Although expert evidence was led, the decision as to whether Dr Lucas acted unprofessionally is solely a matter for the Tribunal.
In this case, Abbey was never examined by Dr Lucas. Rather, Abbey was scheduled to be seen by another veterinarian who was on duty at the same time as Dr Lucas. There was no evidence as to when that appointment was due to take place and when Abbey was presented to the Clinic. However, unbeknownst to Dr Lucas, Abbey was never seen by that veterinarian, because Abbey's owner had refused to attend upon that veterinarian, because she was too upset to do so.
Dr Lucas' only personal involvement in respect to Abbey was when he answered a question from his nursing staff in the afternoon when he was getting ready for surgery. In answering whether Abbey could be rehomed, rather than euthanised, Dr Lucas gave clear instructions that this could only occur if Abbey's owner was first contacted and her verbal instructions were obtained. Dr Lucas made clear to his veterinary nurses that, if Abbey's owner's consent was not obtained, Abbey was to be euthanised the following day on 27 May 2008. Neither Dr Edgar nor Dr Vale considered the owner's instructions had to be obtained in writing. Nor did they consider at that point, that Dr Lucas was in breach of any professional standard. There was some suggestion by Dr Edgar that as euthanasia should occur within a few hours of a dog being presented, there was an opportunity for Dr Lucas to carry out the euthanasia. There was no evidence, however, of when Abbey was presented to the Clinic on 26 May 2008.
At the time of considering the question concerning re-homing, Dr Lucas was not aware of the errors made by his staff in entering the euthanasia as a counter sale and not following the usual practice of creating a clinical record for Abbey.
In addition, when Dr Lucas left the Clinic on 26 May 2008, the same veterinarian who had been scheduled to see Abbey was the veterinarian on duty in the Clinic. Further, whilst Dr Lucas was absent from the Clinic on 27 May 2008, there were two experienced veterinarians on duty. Prior to departing the Clinic on 26 May 2008, Dr Lucas did not give any further instruction concerning Abbey to either the veterinary nurses or the other veterinarians he employed. Dr Lucas explained that he did not consider it necessary to do so. In effect, he suggested that he relied on his staff to carry out the usual practice of creating a clinical record of Abbey's admission into the Clinic. Dr Edgar and Dr Vale agreed that such a record would be sufficient for any incoming veterinarian to ascertain the client's instructions. In this case, where there was an inaccurate clinical record, Dr Edgar accepted that, even with an inaccurate clinical record, an incoming veterinarian would become responsible for the care of an animal at that point. Dr Vale considered that it would be the responsibility of the incoming veterinarian, regardless of whether a clinical record existed or not, to ascertain the treatment plan for an animal.
Notwithstanding Dr Lucas' clear instructions, Abbey was re-homed without express instructions having been obtained from Abbey's owner. There had been an attempt to contact Abbey's owner, but that was to no avail due to an incorrect telephone number having been recorded. Therefore, a message was left on another person's telephone answering machine. The message that was left suggested that, if the Clinic did not hear back from Abbey's owner, Abbey would be re-homed. As a result, representatives of a re-homing organisation collected Abbey on 27 May 2008.
Finally, by the time Dr Lucas returned on 28 May 2008, Abbey had been re-homed.
Dr Lucas had no reason to expect his staff not to carry out his explicit instructions. On that issue, Dr Edgar accepted that he would not expect his veterinary surgeons to inform him of whether they had carried out instructions to euthanise. Likewise, Dr Vale said that he would not have expected to be informed about whether an animal had been euthanised.
The Tribunal does not consider that the matter of Benari is relevant. The case involved three related complaints of 'unsatisfactory conduct' against a legal practitioner, which alleged in summary:
1)neglect in the course of the practice of law;
2)unprofessional conduct as a result of gross overcharging; and
3)unprofessional conduct by constructively misrepresenting that a clerk was a lawyer.
The complaints fell under s 3 of the Legal Practice Act 2003 (WA), pursuant to which the expression 'unsatisfactory conduct' includes a range of conduct such as unprofessional conduct or neglect.
The Board relied on the findings made by the Tribunal in Benari in respect to the complaint of neglect. Although they were findings which dealt with the level of supervision required of unqualified staff, they were not findings which examined whether the conduct of the practitioner fell substantially short of the standard of professional conduct observed, or approved of, by members of the profession of good repute and competency. It was not a case, therefore, dealing with the same professional standard as we are required to consider in this matter. What may amount to a failure to maintain a desirable standard of practice, and may amount to a practitioner being guilty of neglect, will not necessarily amount to a finding of unprofessional conduct.
The Board also referred the Tribunal to several cases in other jurisdictions concerning the euthanasia of animals, namely, Royal College of Veterinary Surgeons v Wilson (unreported decision of the United Kingdom Disciplinary Committee of the Royal College of Veterinary Surgeons) and an unnamed and unreported case before the Veterinary Surgeons Board of Queensland. Those cases again, however, were of little relevance, as they were cases where the veterinarians concerned deliberately ignored a client's instruction to euthanise and were, in fact, instrumental in arranging for the animal to be re-homed.
The Tribunal accepts that an instruction to euthanise an animal should be carried out unless expressly altered. We do not accept, however, that the failure to euthanise Abbey, in the circumstances of this case, supports a finding of unprofessional conduct against Dr Lucas. Although, as principal of the Clinic, Dr Lucas contractually bears the ultimate responsibility to clients of the Clinic to carry out their instructions, it does not follow that in a failure to carry out those instructions, such as this, it will amount to a finding of unprofessional conduct.
In summary, for the reasons previously expressed, Dr Lucas was not initially responsible for Abbey. However, upon answering the question concerning rehoming, he bore some responsibility. The Tribunal considered that responsibility was fulfilled in answering his staff correctly and advising them that Abbey was to be euthanised the following day unless instructions to re-home were obtained from Abbey's owner. There was no evidence as to when Abbey had been delivered to the Clinic. He answered the question in the afternoon whilst scrubbing for surgery. His suggestion to allow time for the consent of Abbeys' owner to be obtained was not the subject of any criticism by the experts called by the parties. Following the answering of that question, Dr Lucas was entitled to assume that the normal practice of creating a clinical record for Abbey had been followed and that his instructions would be noted upon such a record. Further, he was entitled to assume that the incoming veterinarians would have regard to that clinical record and follow the instructions given in respect to Abbey and, if there was no clinical record, to ascertain what was expected in respect to the animal.
Although perhaps desirable practice, it was not necessary to check that his staff, including the veterinary surgeons, had not followed normal practice, as he was entitled to expect they would do so. Dr Lucas did have a system in place and ordinarily that system, if adhered to, would have avoided the unfortunate circumstance of Abbey being rehomed without her owner's express knowledge and consent. However, as a result of the bizarre combination of events outlined in the reasons above, that system was shown to have deficiencies. Perhaps the combination of errors that occurred could have been avoided if staff had been instructed that before rehoming takes place, a veterinary surgeon must provide a sign off that this can occur. Clearly, Dr Lucas has appreciated the combination of bizarre events that led to Abbey being rehomed without her owner's knowledge and has taken steps to ensure there is no repetition.
Therefore, we do not consider that, in this case, Dr Lucas' conduct substantially fell 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.
Despite finding that Dr Lucas is not guilty of unprofessional conduct, the Tribunal acknowledges that this is a case which highlights the difficulties associated with euthanasia of animals. It is therefore an important reminder to all in the veterinary profession to take great care when dealing with such instructions.
Orders
1.The application be dismissed.
2.Within 21 days the parties shall advise the Tribunal in writing as to whether they wish to make submissions in respect to costs.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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