Veterinary Surgeons Board of Queensland v BZD - [2023] QCAT 241

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Veterinary Surgeons Board of Queensland v BZD [2023] QCAT 241

PARTIES:

VETERINARY SURGEONS BOARD OF QUEENSLAND

(applicant)

v

BZD

(respondent)

APPLICATION NO/S:

OCR362-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 June 2023

HEARING DATE:

19 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver – Presiding
Member Dr Grigg
Member Dr Baxendell

ORDERS:

1. That upon the undertaking provided to the Applicant and pursuant to section 22E of the Veterinary Surgeons Act 1936 the Tribunal finds that the Respondent engaged in misconduct in a professional respect.

2. The Respondent must pay the Applicant’s costs of and incidental to this proceeding in the sum of $6,000.

3. Publication of the name of the Respondent, other than to the parties to this proceeding, is prohibited pursuant s 66 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – where the applicant mistreated and neglected his own animals – where charges brought against him in the Magistrates Court and he was fined but no conviction recorded – where conduct not related to his profession as a veterinary surgeon – where grounds of disciplinary action found – where applicant accepts he engaged in misconduct in a professional respect – whether misconduct in a professional respect extends to mistreatment of his own animals – whether sanction agreed appropriate in the circumstances.

Veterinary Surgeons Act 1936 (Qld)

Surgeons Board of Queensland v Griffin [2016] QCAT 380

APPEARANCES & REPRESENTATION:

Applicant:

Mr Andrew Forbes, solicitor of Turks Legal.

Respondent:

Self-Represented

REASONS FOR DECISION

The Respondent is a registered veterinary surgeon with the Veterinary Surgeons Board of Queensland (“the Board”). He is very experienced, and has been in practice for in excess of 30 years. He lives on an acreage property (“farm”) in the Jimboomba area south of Brisbane and practices his profession at a veterinary surgery in the region. He keeps animals on his farm which included, at the relevant time, some cattle, sheep, birds and a dog.
Between 2013 and 2017 complaints were made to the Royal Society for the Prevention of Cruelty (“RSPCA”) about a sheep that had overgrown fleece and a cow that had difficulty walking. Inspections were conducted by an RSPCA officer and the Respondent addressed these issues and no further action was taken.
A further complaint was received by the RSPCA on 28 October 2018 about a cow that was down on the farm. An Inspector attended the farm and found that the cow was deceased, saw other neglected animals, and was concerned about the state of the farm where the animas were kept. The Inspector noted in particular, a number of dead birds lying the cages, cattle and birds without water and what water there was, was coated with algae. A dog “Cullie” was locked in an enclosed verandah which was littered with faeces, bird cage waste and a dead rat. It was a scene of decay and neglect of the animals kept on the property.
The Inspector provided fresh water to the birds and cows, and noted they drank vigorously as did Cullie. The Respondent was telephoned and arrived home some hours later but would not engage with the Inspector about the condition of the animals and the property. Seizure documents were handed to the Respondent.
Subsequently, on 7 November 2018 the original Inspector and three others attended the property with a search warrant. Despite the earlier attendance, the condition of the animals and the area where they were kept had not changed. The cattle were confined in pens that resembled an old piggery, with one dead in the water soaked bog. Dead birds were removed from the enclosures and again, there as a lack of water for the animals. Cullie was taken away for treatment. He had seriously decayed teeth which were removed under a general anaesthetic. The evidence is that the decayed teeth ought to have been evident to the Respondent (a vet) for more than 12 months. Photographic evidence taken by the Inspectors confirm all of the above.
The Inspectors conducted an interview with the Respondent but his responses did not provide any meaningful explanation for the manner in which he was keeping his animals. An Animal Welfare Direction (“AWD”) was issued to the Respondent under s 159 of the Animal Care and Protection Act 2001 (“ACPA”). The RSPCA confirm that the Respondent complied with the AWD.
On the basis of the evidence obtained by the RSPCA the Respondent was charged with offences under the ACPA with one count of failure to treat (Cullie), one count of failure to provide water and one count in relation to the living conditions of the animals. The charges were by way of Compliant and Summons. The matter came on before the Magistrates Court in Southport on 10 June 2019. To the Respondent’s credit, but in the face of overwhelming evidence, he pleaded guilty to all charges. In respect of the charges, he was fined $2,000.00 and ordered to pay compensation, presumably to the RSPCA, of $5,455.38. He was also ordered to pay court costs.
Although the reasons of the learned Magistrate are not evidence, it is worth recording some of her comments when imposing the fine. She noted:
What is of grave concern is the fact that you are a veterinary surgeon. And whilst that is not aggravating, it certainly puts you in a position where you would have been well aware, on a daily basis, of the pain and suffering that she (Cullie) would have been enduring as a consequence of that condition, and, I find that deeply concerning. You - I have read the letter from your employer, where, clearly, I have no doubt, it seems, that you provide an excellent standard of care in your role as a veterinary surgeon and that, to me, makes it all the more extraordinary that you were not able to transfer that to your home in relation to the animals that were in your care. I note that you are very busy; it is not an excuse. Clearly, the conditions that I have looked at and heard about were appalling.
As a result of these convictions on 13 November 2019 the Board filed an application for referral to the Queensland Civil and Administrative Tribunal for a disciplinary proceeding in accordance with s 22C of the Veterinary Surgeons Act 1936 (“VSA”). The application sought a finding that because of the three offences the Respondent was unfit to practice veterinary science. If found, the Board sought an order that the Respondent’s name be removed from the register of veterinary surgeons.
When advised of the Boards intention to commence disciplinary proceedings the Respondent’s solicitor wrote to the Board challenging the grounds for taking disciplinary action. In correspondence of 13 June 2019 the Respondent’s solicitors contended that the case alleged against the Respondent was not one of misconduct in a professional respect because it related to the management of his own animals and not in the course of his practise as a professional veterinary surgeon. It also pointed out that he had been prosecuted, convicted and fined for his conduct and that was an adequate penalty. Reliance was placed on the reference from his employer which vouched for his professionalism as a veterinary surgeon and that he had been under stress in the workplace during this period.
In a further later to the Board’s solicitors of 21 August 2019, these points were reiterated and in particular, it was submitted:
There is no nexus between our clients conduct as reflected in the material and his profession as a veterinary surgeon. There is no suggestion of any misconduct in a professional respect nor of any of the conduct reflected in the material having occurred in his profession as a veterinary surgeon.
The letter went on to contend that this conduct was out of character and inconsistent with the reference put forward by his supervising veterinary surgeon. To assist the Board in considering the sanction sought, the Respondent provided the following undertaking to the Board that he would:
undertake on a without prejudice basis, that I will only practise as an employee in veterinary science under the supervision of another veterinary surgeon pending the decision of the board. The board is considering matters arising outside of my practises a veterinary surgeon, regarding animals on my hobby farm, of which the board is aware.
The Tribunal directed the parties to file and serve material and submissions in respect of the orders sort in the application.
On 23 April 2020 the Respondent filed an affidavit setting out his personal circumstances and providing some further information concerning the offences. In that affidavit he states that working as a veterinary surgeon is his only source of income and at 52 years of age, it is obviously very important to him that he continue to work in his profession. He has debts, including a mortgage over his property, as well as other usual day-to-day living expenses. He describes how being in his profession can be very stressful dealing with sick and injured animals and sometimes, the death of those animals. Prior to the prosecution, he states that his first priority was working in his profession and in doing so, neglected not only the health and well-being of his farm animals, but also his own mental health and well-being. He exhibits significant remorse and has sought assistance from others as to the management of the animals on his farm.
He has attached to that affidavit, a reference from his supervising veterinary surgeon in the practice where he works. The reference supports his good character and his dedication to the carrying out of his profession. The reference notes that:
This situation is out of character and I believe as a result of a combination of depression and some serious health concerns that he had at the time. Despite his health concerns, which arise from time to time, at the clinic we support him with these conditions and in return he is very hardworking and a proficient vet. At home unfortunately he lives alone and did not seek help. This is very common for men living alone with depression in my experience. I feel quite responsible that I was unaware he was in need of help after that time. As it is recognised in our profession to depression and suicide rates are very high. Depression can take many forms, sometimes it is an inability to cope with day-to-day life. I wish to point out [he] was not charged with animal cruelty, but with omission in failing to care for his pets and his hobby farm animals.
Obviously, the respondent’s supervising vet is not an expert in psychological diagnosis or treatment, but the evidence given, and the observations made carry some weight and is consistent with the medical report provided by his General practitioner. Relevantly, he reports in summary:
(a)He had been a patient of the practise for more than 10 years;
(b)[He] was first noted to be suffering from psychological distress in 2014;
(c)The distressed state was due to significant reduction in working hours associated with financial concerns;
(d)He was diagnosed as an adjustment disorder;
(e)He has been on antidepressant medication and this has stabilised his condition;
(f)He has physical issues including obesity, cellulitis, hypertension, severe osteoarthritis and a heart condition;
His treatment for the various conditions has continued. When the report was prepared on 6 May 2020, the Doctor noted that “[He] suffers from multiple medical conditions including depression. These conditions are serious in nature and significantly impact his health and well-being”
Returning then to the reference provided by the Respondent’s employer, it is evident that he is getting considerable support from the clinic where he is working. The reference goes onto state:
As a veterinarian [he] is still very important to my practise. I now have another two vets working with me, one with three years experience and another with two years experience. Some procedures [he] is the only veterinarian capable of performing due to his level of experience. I have had to refer these clients to other clinics as he has been unwell. The clinic has suffered during all of this. We have lost clients, I've been exhausted and we have all been under incredible stress. Whilst this has been a terrible period for all of us, I would not abandon [he] or patients when they are in trouble and unwell nor should any veterinarian. We have a duty of care to our patients and our profession.
It is evident that the Respondent has an enormous support network around him which would result in the repeat similar conduct very likely. He has taken appropriate steps in accepting his conduct, exhibiting remorse in his affidavit material, and sought help and assistance from those around him.
Having considered this further material, the Board filed an amended application on 3 November 2020 in which it is sought orders that the Tribunal make a finding that the Respondent engaged in misconduct in a professional respect. Further, that the Tribunal also acknowledges the undertaking provided by the Respondent to practise under supervision on an indefinite basis. The respondent is agreeable to the Tribunal making orders in those terms in addition to costs.
Despite this agreement, it still remains for this Tribunal, as constituted, to impose a sanction consistent with the conduct of the Respondent. Obviously, the fact that the parties have reached an agreement as to the appropriate sanction is a significant factor that the Tribunal should take into account.
One of the key issues that was raised at the very commencement of this process was whether the Respondent’s conduct for which he was fined was misconduct in a professional respect because it involved his own domestic animals. The Board contends that to be the case because firstly, the Respondent accepts that his conduct was in a professional respect. Secondly, as a veterinary surgeon, the Respondent would be aware of the minimum standards required for the adequate welfare of animals in his care. That is obviously correct. The care for animals cannot, particularly for a veterinary surgeon, be disregarded soon as one leaves the surgery and returns home. Thirdly, as required in the Australian Veterinary Association Code of Professional Conduct a veterinary surgeon’s standard of care is that to be expected by their peers and members of the public. The Respondent’s standard of care in these circumstances fell far short of that which would be expected from peers or members of the public.
Reference was made to the Code which refers to conduct that would be “regarded as disgraceful and dishonourable by his professional brethren of good repute and competency.[1] Comparing the Respondent’s conduct to that test, the test is clearly satisfied. There are other examples in the code in particular, where personal life can be relevant to the standards expected of veterinary surgeon.
..take personal responsibility to uphold the good reputation and integrity of the veterinary profession. Veterinarians have an obligation to maintain appropriate person, moral and ethical standards in the practise of their profession, and in other aspects of their personal life. Trying to do so may reflect adversely upon the profession.
[1]Psychology Board v Robinson 2004 QCA 405 at [24]
The Code of Conduct is there for all veterinarians too adopt and follow in the conduct of their profession so that the profession does not fall into disrepute. It follows in our view, that the standard of veterinarian under the Code continues both in professional life and in private life. For example, it cannot be the case that if a veterinarian mistreats an animal that is under treatment in the surgery, and can then be subject to disciplinary action, but if the same treatment is applied to an animal in the public domain, or in a private residence, no such action could be taken. That would be a nonsense.
Here, there has been a course of conduct from 2013 through to the matters the subject of this application which certainly warrants the taking of some disciplinary action. We find that the mistreatment of animals by the Respondent in his private capacity as alleged in the particulars constitutes misconduct in a professional respect. We also derive some comfort from what the Tribunal said in Veterinary Surgeons Board of Queensland v Griffin:[2]
without limiting the ways a veterinary surgeon may engage in ‘misconduct in a professional respect’ a veterinary surgeon is engaging in ‘misconduct in a professional respect’ if, amongst others, the veterinary surgeon is habitually drunk or is addicted to any deleterious drug; or conducts any veterinary premises or other place for the practise of veterinary science where he or she is not in fulltime attendance; who gives a certificate, notice, report or like document that is incomplete or is false or misleading in a material respect; or is convicted of an offence involving cruelty to an animal, who ‘is negligent or incompetent in the practise of his or her profession’.
[2][2016] QCAT 380
The statement above obviously is referring to conduct in the practice of a veterinarian, however, even though the Respondent here was not convicted of an offence involving cruelty to an animal, nor was in in the practice of a veterinarian, it is a reasonable extension of the statement to include mistreatment of animals as particularised in the complaint and summons to which the Respondent pleaded guilty, in a private capacity. It would be an absurd result if the contrary were to apply.
In considering the appropriate sanction, it is relevant to consider the purpose of disciplinary action:
..the purpose of imposition of disciplinary action may serve one or all of the following:
(a)Preventing practitioners who are unfit to practise from practising;
(b)Securing maintenance of professional standards;
(c)Assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct [or unprofessional conduct closed bracket will not be tolerated;
(d)bringing home to the practitioner the seriousness of their conduct;
(e)deterring the practitioners from any future departures from appropriate standards;
(f)deterring about members of the profession who might be minded to act in a similar way;
(g)Imposing restrictions on the practitioners right to practise so as to ensure that the public is protected
Naturally, the imposition of a sanction must be relevant to the seriousness of the conduct. Also relevant is any mitigating factors which include; reasonable explanation for the conduct, acceptance of the conduct by the plea of guilty to the charges brought; health issues associated with the conduct and, the likelihood of the conduct being repeated in the future.
Also importantly, the purpose of disciplinary proceedings is not to punish but to maintain standards and public confidence in the profession and to protect the public.[3]
[3]Veterinary Surgeons Board of Queensland v Griffin ibid at [44]
The Board has considered all of these matters in proposing the sanction based on the Respondent’s undertaking. This is also supported by the undertaking of supervision by his employer. The undertaking is made in good faith and although it cannot be enforced by the Tribunal, the Board can take whatever action it deems necessary if there is any breach. It is up to the Board to ensure the undertaking is complied with.
There is one further issue. The Tribunal previously made a non-publication order in respect of the content of any medical report or evidence regarding the health of the Respondent. As the health of the respondent was an important matter to take into account when considering the question of sanction, and needed to be discussed in these reasons, we propose to vary that earlier order so that instead there be a non-publication order as to the identity of the Respondent.

We have therefore come to the decision to accept the sanction proposed by the Board and agreed to by the Respondent. The orders of the Tribunal are:
1.That upon the undertaking provided to the Applicant and pursuant to section 22E of the Veterinary Surgeons Act 1936 the Tribunal finds that the Respondent engaged in misconduct in a professional respect.
2.The Respondent must pay the Applicant’s costs of and incidental to this proceeding in the sum of $6,000.
3.Publication of the name of the Respondent, other than to the parties to this proceeding, is prohibited pursuant s 66 of the Queensland Civil and Administrative Tribunal Act 2009.