Veterinary Surgeons Board of Queensland v MacIntosh
[2010] QCAT 601
•17 November 2010
| CITATION: | Veterinary Surgeons Board of Queensland v MacIntosh [2010] QCAT 601 |
| PARTIES: | Veterinary Surgeons Board of Queensland |
| v | |
| Alison Mary Hay MacIntosh |
| APPLICATION NUMBER: | VTD001-09 |
| MATTER TYPE: | Occupational Regulation |
| HEARING DATE: | 25, 26 and 27 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Dr Ian Wells, Member Dr Russell Duigan, Member |
| DELIVERED ON: | 17 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Professions and trades; Veterinary surgeons – complaints and discipline; whether the respondent’s conduct in using power tools in equine dentistry constituted misconduct in a professional respect; section 22F(f) and (k) of the Veterinary Surgeons Act 1936 (Qld) considered; failure to properly supervise assistant’s work; consideration of “filing or rasping” of teeth within the meaning of section 3(1)(8) of the Veterinary Surgeons Regulation 2008 involved the medical or surgical treatment of horses within the meaning of section 2A(2)(c) of the Veterinary Surgeons Act; sanction imposed reprimand and 3 months suspension of registration. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Vetrinary Surgeons Board of Queensland represented by Ms K. McMillan S.C. of counsel instructed by DLA Phillips Fox |
| RESPONDENT: | Alison Mary Hay MacIntosh represented by Mr G. Long S.C. of counsel and Mr F. Lippett of counsel instructed by Carvosso & Winship |
REASONS FOR DECISION
Dr MacIntosh is a registered veterinary surgeon who graduated from the University of Queensland in 1988. She was registered in Queensland as a veterinary surgeon in 1994 and had been in practice since that time.
Between February 2001 and June 2007 the respondent provided corrective dental treatment to a number of horses. That dental treatment was undertaken by the respondent, on occasions together with her husband Michael Lancaster, who is not a registered veterinary surgeon, working under the respondent’s supervision. Full particulars of the dental treatment undertaken are set out in an agreed statement of facts submitted by the parties[1].
[1] Exhibit 23
In summary the dental treatment administered and the consequences of that treatment are as follows:
a)Zander owned by Ms Grantham: dental treatment between 14 February 2001 and 4 February 2007. The treatment involved the use of a power operated float and the use of a power operated cut off wheel to realign Zander’s incisor teeth. As a consequence of this treatment Zander suffered iatragenic dental trauma and pulp necrosis on teeth 101, 201, 202, 306 and 406. The dental treatment provided and/or supervised and/or allowed by the respondent resulted in pulp exposure and/or thermal pulp necrosis, due to inappropriate use of power tools. Zander was euthanased on 13 May 2009.
b)Silver Smith owned by Mr and Mrs Smith: the respondent undertook incisor realignment of Silver’s upper and lower incisors with power tools including a cut off wheel. Inappropriate use of these power tools resulted in iatragenic dental trauma to teeth 101, 201, 306 and 406, causing pulp exposure and/or thermal pulp necrosis.
c)King owned by Ms Anderson: between January 2003 and June 2007 the respondent undertook a number of treatments which included both the respondent and Mr Lancaster floating King’s teeth with power tools and manual tools, realignment of his incisor teeth with power tools and reduction of a crown from the incisor occlusal surface. As a consequence of inappropriate use of these power tools in this treatment, King suffered iatrogenic dental trauma to teeth 201, 202, 301, 302, 401, 402 and 403. This produced pulp exposure and/or thermal pulp necrosis of these teeth and led to discharging sinus tracts exiting above teeth 201 and 202 due to subsequent infection of the necrotic pulps.
d)Cyrus owned by Ms Muir-Clark – Between 8 September 2004 and 19 October 2008 the respondent in conjunction with Mr Lancaster, provided several corrective dental treatments to Cyrus. These involved the use of power tools including a cutting wheel, a burr and a float. The work done included incisor realignment, (partial or total), molar floating with correction of abnormalities such as sharp edges, hooks, ramps and others, and the removal of a wolf tooth. As a consequence of this work, Cyrus suffered iatrogenic dental trauma and in April 2009 4 of Cyrus’ front teeth were dead and were extracted. The dental treatment undertaken by the respondent with the assistance of Mr Lancaster resulted in pulp exposure and/or thermal pulp necrosis leading to the death of the 4 extracted teeth.
The respondent has accepted that Mr Lancaster:-
- Was permitted to perform grinding, cutting or reducing teeth with power tools in horses under her care.
- Was connected with the assessment/diagnosis that the horse required grinding or cutting of teeth with power tools; and/or
- Was connected with or part of a continuum of treatment provided by the respondent which required the use of sedation.
The respondent also agreed that the dental treatment included the use of a powered diamond cutting wheel for incisor reduction or incisor realignment and that a wolf tooth was extracted from Cyrus. She accepts that this was not “filing or rasping” of teeth within the meaning of section 3(1)(8) of the Veterinary Surgeons Regulation 2008 and involved the medical or surgical treatment of horses within the meaning of section 2A(2)(c) of the Veterinary Surgeons Act.
The respondent also accepts that she was present and aware of the conduct of Mr Lancaster in respect of the use of all the power tools and we find, either failed to adequately supervise the use of this equipment by Mr Lancaster as to the avoidance of the risk of thermal or other damage to teeth or approved of his treatment. As a consequence of the above admissions the respondent accepts and acknowledges that the conduct amounted to misconduct in a professional respect pursuant to section 22F(f) and (k) of the Veterinary Surgeons Act 1936 (Qld).
The Tribunal accepts that the conduct of the respondent as particularised in the statement[2] and summarised here does fall within the provisions of section 22F(f) and (k) which provides as follows:
22F Misconduct in a professional respect
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 the veterinary surgeon—
(f) is negligent or incompetent in the practice of his or her profession; or
(k) directs or allows a person who is not a veterinary surgeon to practise veterinary science in relation to an animal under the veterinary surgeon’s care
[2] Exhibit 23
Submissions on penalty were made by senior counsel both for the Board and for the respondent.
It is the Board’s contention that the conduct is of such a serious nature that a suspension is called for. Of importance in the Board’s submission is the fact that this Tribunal has heard compelling evidence from two experts in equine dentistry, Dr Oliver Liyou and Professor Bruce Wilson as to the inappropriate use of power tools for equine dental treatment.
10. Dr Liyou is a principal of the Equine Veterinary and Dental Services Practice at South Grafton. He has produced two reports to the Tribunal and has undertaken many equine dentistry workshops for veterinarians and students since 2002. These workshops have taken on a significance with the introduction of power tools for use in equine dentistry as opposed to conventional hand tools such as a rasp or a hand operated float to reduce sharp points to give better occlusion. We were impressed with Dr Liyou’s evidence and his learning in the area of equine dentistry.
11. In his second report of 18 October 2010, he not only addresses methods of dentistry but produced a photograph in which he was demonstrating the use of a power float to veterinarians at a workshop conducted by him in November 2002. The respondent attended the workshop and is shown in the photograph. In his report. He states:-
“At each and every one of the courses that I have co-ordinated, we have stressed heavily to the attending vets to practise the theory of “in equine dentistry we must first do no harm – especially when using power tools”.
We have repeatedly stressed the need to, “when using a PowerFloat, grind for less than 15 – 20 seconds, flush with water to cool the tooth (and avoid the risk of thermal necrosis of the tooth – see attached papers by Baker and Allen, and Wilson and Walsh), and then examine the tooth and check that the pulp has not been exposed or nearly exposed. If pulp exposure has occurred, then a pulp capping procedure needs to be done – to minimise pain to the horse through minimizing the risk of killing that tooth.
At each course, we have stressed that there is a misinformed group of lay dentists and some associated vets, who insist that horses who are stable fed require an incisor bite reduction to accommodate their lack of wearing away of the incisor through not grazing as nature would intend. This was apparently having a negative impact on the Temporo-Mandibular Joint of the horses and so they insisted on performing the “incisor bite reduction” to owners – even if the incisors appeared normal.”
12. Both Dr Liyou and Professor Wilson were of the firm opinion, backed with other research, that the need for incisor reduction is rare, and that if performed, it should only be done once in a horse’s lifetime. They estimated that no more than 1% of horses may require this treatment.
13. Professor Wilson’s evidence was also impressive. Professor Wilson has many years experience in equine dentistry and is attached to the University of Queensland’s School of Veterinary Science. He shared similar views to Dr Liyou and gave a logical explanation as to why the incisor teeth should only be reduced with caution. They have softer crowns than molars and hence it is easier to cause pulp exposure and they are easier to over-heat, increasing the danger of thermal necrosis. The risk of both these harmful consequences is greatly enhanced using power tools.
14. The importance of this evidence, in terms of sanction, is two fold. Firstly it is clear that the Respondent was aware of the dangers of using power tools and the risks associated with incisor reduction as well as views expressed by Dr Liyou and Dr Wilson that there is generally no need for incisor reduction. Secondly, armed with this knowledge, the respondent used, or caused to be used, power tools on both the molars and the incisors resulting in the damage referred to above.
15. We accept that the respondent did not intend the consequences of her dental treatment nor did she disregard the welfare of the animals she treated. Those horse owners who were called to give evidence reinforced this view. However, we do find that she was somewhat misguided in her approach to the techniques used and with proper education we are confident she will not fall into the same error in the future.
16. We have been pressed to impose a lengthy suspension on the respondent having regard to the admitted facts and the consequences to the horses under her care. The suspension would also reflect the seriousness of her misconduct, and serve as a deterrent to those who choose to engage in similar practises.
17. It was submitted that the respondent did lack insight into her conduct. She has conducted a strident defence to the allegations made against her but it seems that the conduct of this hearing, and perhaps the evidence of Dr Liyou and Dr Wilson caused her come to the realisation that her techniques were inappropriate. It is commendable that she has come to this realisation and, that is a matter to be taken into account. We are satisfied that she does now express true remorse and has insight into her conduct.
18. This is also reflected in the undertakings that she had given to the Tribunal to undergo further specialist training in equine dentistry.
19. Any suspension will have serious consequences on the respondent. She is a mother of two small children with another due early next year. She and her husband live on a small farming property near Toowoomba which they are slowly improving but cash flow is minimal. They are not financially stressed but have significant expenses. Mr Lancaster works fulltime and although the respondent does not carry on a practice at a clinic, she has a mobile practice which generates an income of about $35,000 before tax.
20. Although there were some issues as to what constituted “filing and rasping” in so far as it related to Mr Lancaster’s involvement. Irrespective of this, it seems from the agreed statement of facts he did undertake dental work on the subject horses and whether it was his work, or the respondent’s work, the horses suffered injury. In his performing this dental work, it is apparent that the supervision by the respondent was lacking. Also, she either participated in or endorsed the use of the cutting wheel for the incisor reduction work was undertaken by Mr Lancaster.
21. The evidence led by the experts, Dr Liyou and Dr Wilson satisfies the Tribunal that the cutting of the incisors is not of any routine benefit to the Temporo-Mandibular Joint and that it has the potential of unnecessarily aging the animal’s dentition. It also increases the risk of pulp exposure and/or thermal necrosis. Quite obviously there are cases where this must be done but again, they are very few and should be undertaken by an expert in the field and most certainly a registered veterinarian. The Tribunal considers that the arguments against the use of cutting wheels in equine dentistry put forward by Professor Wilson are overwhelmingly convincing. In so far as we can, we recommend that the Board take steps to inform its members of these views in its information bulletins to registrants. Such action will, it is hoped, prevent or reduce the incidence of misuse of power tools in equine dentistry in the future.
22. Also we observe that with the introduction of power tools in equine dentistry, regulation 3(1)(f) may need to be revisited because it is clear from what the Tribunal has heard during the course of this hearing, and what is set out in the various expert reports, that the use of a power rasp/file in the hands of an individual not properly trained with these instruments can cause irreversible harm to animals putting their welfare at significant risk.
23. The respondent has provided an undertaking to the Board that she will undertake certain training which includes both theoretical and practical training in respect of equine dentistry. This training will be provided by the Board and the terms of the undertaking are set out in exhibit 22.
24. On the basis of the respondent’s undertaking that she undergo appropriate education in equine dentistry approved by the Board, the Tribunal has come to the decision that an appropriate sanction to impose on the respondent is:-
- That the Respondent be reprimanded.
- That the respondent’s registration as a veterinary surgeon is suspended for a period of 3 months from 28 October 2010 save for those periods necessary to undertake the various training and courses the subject of the respondent’s undertaking to the Tribunal.
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