VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER
[2014] WASAT 105 (S)
•19 DECEMBER 2014
VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2014] WASAT 105 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 105 (S) | |
| VETERINARY SURGEONS ACT 1960 (WA) | |||
| Case No: | VR:188/2013 | 1 OCTOBER 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS L EDDY (MEMBER) DR A VIGANO (SENIOR SESSIONAL MEMBER) | 19/12/14 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Respondent guilty of unprofessional conduct as a veterinary surgeon and Tribunal orders for the removal of his name from the Register Respondent pay to the applicant its costs in the amount of $20,000 | ||
| B | |||
| PDF Version |
| Parties: | VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA KURT ALEXANDER ALEXANDER |
Catchwords: | Veterinary surgeon Unprofessional conduct Costs Fit and proper person to remain a veterinary surgeon Removal of name from Register |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 87(1) Veterinary Surgeons Act 1960 (WA), s 23(2aa), s 23(4) |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v The Medical Board of South Australia [2001] SASC 169 Law Society (NSW) v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S) Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v Segler [2014] WASC 159 Legal Profession v O'Halloran [2013] WASC 430 LPCC v Pepe [2009] WASC 39 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 NSW Bar Association v Hamman [1999] NSWCA 404 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re H (a Barrister) [1981] 1 WLR 1257 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stirling v Legal Services Commissioner [2013] VSCA 374 Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105 Veterinary Surgeons Investigating Committee v Gelderman [2000] NSWADT 117 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186 |
Orders | On the application heard before President, Justice Curthoys on 19 December 2014, it is ordered that:,1. Pursuant to s23(2aa)(e) of the Veterinary Surgeons Act 1960 (WA), the Tribunal finds Dr Kurt Alexander Alexander, guilty of unprofessional conduct as a veterinary surgeon and orders the removal of his name from the Register.,2. Pursuant to s87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $20,000 by 16 January 2015. |
Summary | In Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105, Dr Kurt Alexander Alexander was found, pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA), to have engaged in unprofessional conduct as a veterinarian.,In VR 188 of 2013 and VR 189 of 2013, the Tribunal found that Dr Alexander engaged in unprofessional conduct. VR 188 of 2013 concerned the administration of a drug known as 'Convenia' to a guinea pig. VR 189 of 2013 concerned the castration of three guinea pigs by Dr Alexander at the home of the owner, rather than in a registered veterinary clinic or hospital.,The Tribunal was satisfied that there was a need to protect those members of the public who own animals and to protect the reputation and standards of the veterinary profession.,The Tribunal determined that Dr Alexander is not a fit and proper person to remain a veterinary surgeon and that his unprofessional conduct was so serious that he be permanently or indefinitely unfit to practise.,Pursuant to s 23(2aa)(e) of the Veterinary Surgeons Act, the Tribunal found Dr Alexander guilty of unprofessional conduct as a veterinary surgeon and ordered the removal of his name from the Register.,Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), Dr Alexander was ordered to pay the applicant its costs of the proceedings in terms of disbursements in the amount of $20,000 by 16 January 2015. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : VETERINARY SURGEONS ACT 1960 (WA) CITATION : VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2014] WASAT 105 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS L EDDY (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)
- VR 189 of 2013
- Applicant
AND
KURT ALEXANDER ALEXANDER
Respondent
Catchwords:
Veterinary surgeon - Unprofessional conduct - Costs - Fit and proper person to remain a veterinary surgeon - Removal of name from Register
Legislation:
State Administrative Tribunal Act 2004 (WA), s 87(1)
Veterinary Surgeons Act 1960 (WA), s 23(2aa), s 23(4)
Result:
Respondent guilty of unprofessional conduct as a veterinary surgeon and Tribunal orders for the removal of his name from the Register
Respondent pay to the applicant its costs in the amount of $20,000
Summary of Tribunal's decision:
In Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105, Dr Kurt Alexander Alexander was found, pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA), to have engaged in unprofessional conduct as a veterinarian.
In VR 188 of 2013 and VR 189 of 2013, the Tribunal found that Dr Alexander engaged in unprofessional conduct. VR 188 of 2013 concerned the administration of a drug known as 'Convenia' to a guinea pig. VR 189 of 2013 concerned the castration of three guinea pigs by Dr Alexander at the home of the owner, rather than in a registered veterinary clinic or hospital.
The Tribunal was satisfied that there was a need to protect those members of the public who own animals and to protect the reputation and standards of the veterinary profession.
The Tribunal determined that Dr Alexander is not a fit and proper person to remain a veterinary surgeon and that his unprofessional conduct was so serious that he be permanently or indefinitely unfit to practise.
Pursuant to s 23(2aa)(e) of the Veterinary Surgeons Act, the Tribunal found Dr Alexander guilty of unprofessional conduct as a veterinary surgeon and ordered the removal of his name from the Register.
Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), Dr Alexander was ordered to pay the applicant its costs of the proceedings in terms of disbursements in the amount of $20,000 by 16 January 2015.
Category: B
Representation:
Counsel:
Applicant : Mr GM Abbott
Respondent : In Person
Solicitors:
Applicant : Tottle Partners
Respondent : N/A
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v The Medical Board of South Australia [2001] SASC 169
Law Society (NSW) v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S)
Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v Segler [2014] WASC 159
Legal Profession v O'Halloran [2013] WASC 430
LPCC v Pepe [2009] WASC 39
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
NSW Bar Association v Hamman [1999] NSWCA 404
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re H (a Barrister) [1981] 1 WLR 1257
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105
Veterinary Surgeons Investigating Committee v Gelderman [2000] NSWADT 117
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186
Introduction
1 In Veterinary Surgeons' Board of Western Australia and Alexander[2014] WASAT 105 (Alexander), Dr Alexander was found, (pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA) (VS Act)), to have engaged in unprofessional conduct as a veterinarian.
2 In VR 188 of 2013 and VR 189 of 2013, the Tribunal found that Dr Alexander engaged in unprofessional conduct. VR 188 of 2013 concerned the administration of a drug known as 'Convenia' to a guinea pig. VR 189 of 2013 concerned the castration of three guinea pigs by Dr Alexander at the home of the owner, rather than in a registered veterinary clinic or hospital.
3 In VR 188 of 2013, the allegations of the Veterinary Surgeons Board of Western Australia (the Board) were that:
…
2. On or about 5 April 2013, the respondent treated a female guinea pig named 'Nibbles' (Nibbles), which was owned by Ms Renae Austin (Ms Austin) by administering the [drug] known as 'Convenia' … to Nibbles.
…
6. The respondent's conduct set out in administering Convenia … to Nibbles 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 because members of the veterinary profession of good repute and competency:
(a) should or ought to know that Convenia … [is] contraindicated in guinea pigs and that the administration of [that drug] is detrimental to the health of and [is] potentially lethal to guinea pigs; and
(b) would not administer … Convenia … to guinea pigs because [it is] contraindicated [that] in guinea pigs and that the administration of those drugs is detrimental to the health of and [is] potentially lethal to guinea pigs.
7. In the circumstances set out above, the respondent is guilty of unprofessional conduct as a veterinary surgeon pursuant to regulation 28(2)(c) of the Veterinary Surgeons Regulations 1979 and section 23(4)(e) of the Act.
…
4 In VR 189 of 2013, the allegations of the Board were that:
…
3. On or about 11 December 2012, the respondent attended at Ms Gorta's Residence and surgically castrated each of Ms Gorta's Male Guinea Pigs (Surgeries).
…
5. Each of the Surgeries was performed:
…
(3) in Ms Gorta's Residence, which was neither a registered veterinary hospital nor a registered veterinary clinic.
6. The last of the Surgeries was completed at about 6 pm on 11 December 2012.
7. Surgical facilities in a registered veterinary hospital or a registered veterinary clinic were available to Ms Gorta but the respondent did not refer any of Ms Gorta's Male Guinea Pigs to one of those practices.
8. On or about 11 December 2012, and after he had performed the Surgeries, the respondent discharged all of Ms Gorta's Male Guinea Pigs into Ms Gorta's care.
9. The respondent:
…
(c) discharged each of Ms Gorta's Male Guinea Pigs into Ms Gorta's care whilst each of Ms Gorta's Male Guinea Pigs was unconscious.
…
16. Further, and in any event, the respondent's conduct set out in paragraphs 3, 4, 5(2), 5(3), 6 and 7 above 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 because:
(a) when surgical facilities are available in premises registered as a veterinary hospital or a veterinary clinic under the Act, the veterinary surgeon should refer surgeries of the nature of the Surgeries to those premises, and in the event that a veterinary surgeon does not have access to those facilities he should not, perform that type of surgery;
…
17. In the circumstances set out in paragraph 16 above, the respondent is guilty of unprofessional conduct as a veterinary surgeon pursuant to regulation 28(2)(c) of the Regulations and section 23(4)(e) of the Act.
18. Further, or alternatively to paragraph 16 and 17 above, the respondent's conduct set out in paragraphs 3, 4, 5(2), 5(3), 6 and 7 above, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons and in those circumstances the State Administrative Tribunal of Western Australia should, for the purposes of section 23(2aa) of the Act, be satisfied that the respondent is guilty of unprofessional conduct as a veterinary surgeon.
19. Further, and in any event, the respondent's conduct set out in paragraphs 8 and 9 above 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 because:
(1) a veterinary surgeon who has performed any procedure on an animal at the residence of the owner of that animal must remain at the premises until the animal has recovered to at least sternal recumbency.
(2) before any patient is discharged a veterinary surgeon should:
(a) stabilise, or adequately stabilise, the patient; and
(b) give to the person who will be responsible for the patient immediately upon discharge any instructions or advice on the post-operative care and management of the patient, and
(3) a veterinary surgeon should not discharge a patient that is unconscious.
20. In the circumstances set out in paragraph 19 above, the respondent is guilty of unprofessional conduct as a veterinary surgeon pursuant to regulation 28(2)(c) of the Regulations and section 23(4)(e) of the Act.
21. Further, or alternatively to paragraphs 19 and 20 above, the respondent's conduct set out in paragraphs 8 and 9 above, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons and in those circumstances the State Administrative Tribunal of Western Australia should, for the purposes of section 23(2aa) of the Act, be satisfied that the respondent is guilty of unprofessional conduct as a veterinary surgeon.
5 The Tribunal finds the allegations set out above proved
Range of disciplinary sanctions
6 Section 23(2aa)(a) (f) of the VS Act provides for a range of disciplinary sanctions. Where:
… a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon, the Tribunal may -
(a) reprimand the veterinary surgeon;
(b) require the veterinary surgeon to give an undertaking to refrain from such conduct as may be specified by the Board;
(c) fine the veterinary surgeon an amount not exceeding $1 000;
(d) order the suspension of the registration of that veterinary surgeon for such period not exceeding 12 months, as the Tribunal thinks fit;
(e) order the removal of the name of that veterinary surgeon from the Register;
(f) order the imposition of conditions as to the registration of that veterinary surgeon or restrictions on the practice of veterinary surgery by that person.
Disciplinary sanctions - general principles
7 The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 (Howe (No 2)); Re Maraj (a LegalPractitioner) (1995) 15 WAR 12 (Maraj) at 25 ; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G 441A B ; Legal Profession Complaints Committee and in de Braekt[2013] WASAT 124at [24] [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
8 The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Howe (No 2) at [25]; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
9 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 268 and 271 272; A Solicitor [2004] NSW).
Twelve matters for consideration
10 In determining an appropriate sanction twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1) any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foremanat 440C; Hamman at [77]);
2) the need to protect the public through general deterrence of other practitioners from similar conduct (Johnson at [103]; Hamman at [77]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and at [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication if its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64];
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G);
5) whether the practitioner has breached any:
(a) Act;
(b) Regulations;
(c) Guidelines or Code of Conduct, issued by the relevant professional body; and
(d) whether the practitioner has done so knowingly;
6) whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the practitioner's disciplinary history (Legal Profession v O'Halloran [2013] WASC 430 at [93]);
9) whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211(Lashansky)at [31] [52] and (second) at [35]; Amsden(S) at [8]; Foreman at 444E; Love at [9]);
10) the desirability of making available to the public any special skills possessed by the practitioner;
11) the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of veterinary practice (Love at [59]); and
12) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
11 Although many of the authorities relate to other professionals, the same principles apply equally to veterinary practitioners (Johnson at [105])
12 In the case of veterinary surgeons, an additional matter of particular importance is the welfare of animals. 'In determining the proper order to be made against a veterinary practitioner, the welfare of animals is the primary concern' (Johnsonat [110]).
13 It is not necessary to establish that actual harm or damage was suffered by an animal as a result of a veterinarian's conduct (Howe (No 2) at [32]).
General matters relating to sanctions
14 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
15 The dominant purpose of the disciplinary regulation of the veterinary profession is the protection of the public by the maintenance of proper standards within the profession. Therefore, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
16 There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings, namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner(S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] [75]).
Removal from the Register
17 Removal from the Register is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the veterinary profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
18 Where an order for removal from the Register is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a veterinary surgeon: A Solicitor [2004] NSW at [15].
19 A practitioner is not a fit and proper person to be a registered veterinary surgeon and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] [18]; A Legal Practitioner(S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] [28]).
Suspension
20 Suspension is a less serious result and differs from removal from the Register because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; LPCC v Pepe [2009] WASC 39 at [12])
21 The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner(S) at [26]; Re A Practitioner(1984) 36 SASR 590, at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
1. Is there a need to protect the public against further misconduct by Dr Alexander?
22 In both VR 188 of 2013 and VR 189 of 2013, the matters the subject of Dr Alexander's conduct arose out of the treatment of animals.
23 In VR 188 of 2013, Dr Alexander administered Convenia in the circumstances set out in the reasons for decision in Alexander.
24 Dr Alexander's cursory inquiries before he administered Convenia are set out in Alexander at [18] [23]. The website that Dr Alexander searched, albeit that it was the United States site, rather than the Australian site, should have alerted Dr Alexander to the risks of Convenia to guinea pigs (Alexander at [29]).
25 Dr Alexander overlooked the warning as to Convenia and proceeded to administer it despite the fact that he did not have any significant experience treating guinea pigs (Alexander at [14]).
26 There was no definitive evidence that Convenia killed the guinea pig, but the evidence clearly established that Convenia has a risk of being fatal to guinea pigs.
27 Dr Alexander's administration of Convenia was not simply an error or mistake of a professional nature. It demonstrated significant incompetence.
28 The circumstances in which Dr Alexander was found to have administered Convenia establish that he is a risk to animals and that members of the public utilising his services would place their animals at risk.
29 In VR 189 of 2013, Dr Alexander performed surgery on three guinea pigs at the owner's house in the circumstances set out in Alexander at [36] [49].
30 Despite the existence of the Guidelines For Mobile Veterinary Clinics and Veterinary House Call Services For Small Or Companion Animals In Western Australia (Guidelines)published by the Board, and the proximity of registered veterinary hospitals and clinics, Dr Alexander proceeded with the surgery.
31 Further, despite being aware of the Guidelines, Dr Alexander left the owner's house before the guinea pigs had recovered to at least sternal recumbency.
32 Two of the three guinea pigs died.
33 There was no definitive evidence that the surgery killed the two guinea pigs, but the evidence clearly established that the carrying out of the surgery in the owner's house and the decision to ignore the Guidelines, in particular, leaving the house before the guinea pigs had achieved sternal recumbency, caused substantial risk to the success of the surgery on the guinea pigs.
34 Regardless of the events that led to the publication of the Guidelines, they were in place when Dr Alexander carried out the surgery and he wilfully ignored them. In any event, even despite the Guidelines, the expert opinion established that he did not conform to the accepted standards of veterinary surgeons.
35 Dr Alexander's conduct is such that there is a need to protect the public against further misconduct by Dr Alexander.
2. Is there a need to protect the public through general deterrence of other practitioners?
36 Other practitioners need to be deterred from similar conduct to that of Dr Alexander. Other practitioners need to be aware of the requirement to carefully read the information related to drugs they are administering.
37 Other practitioners also need to be aware of the importance of compliance with guidelines and the risks of conducting surgery except in registered veterinary hospitals and the need to remain until small animals achieve sternal recumbency.
38 There is a need to protect the public by preventing other practitioners engaging in conduct similar to Dr Alexander's.
3. Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
39 In Veterinary Surgeons Investigating Committee v Gelderman [2000] NSWADT 117 (Gelderman) at [39], the Tribunal stated:
In both cases he admitted that he had failed to undertake usual checks in relation to the problem presented which would have given rise to information relevant to his decision as to the appropriate form of treatment. In both cases had those steps been taken a prudent practitioner would have received information warning him not to embark on the course of treatment that Dr Gelderman chose. In both cases he prescribed amounts and combinations of drugs which were inappropriate.
40 The correct administration of drugs is obviously one of the important duties of a veterinary surgeon.
41 Similarly, the carrying out of surgery and the recovery of animals is one of the important duties of a veterinary suregeon.
42 The penalty imposed on Dr Alexander should be such as to protect the public by reinforcing high professional standards and deterring transgressions.
4. Dishonesty?
43 No issue of dishonesty arises.
5. Breach of an Act, Regulations, Guidelines or Code of Conduct
44 Dr Alexander's conduct in VR 189 relates to a matter that is covered by the Guidelines issued by the Board. The Board is the appropriate statutory body to set professional standards (Alexander at [46]). If a veterinary surgeon does not comply with the Guidelines then the basic protections provided in them will be circumvented
45 Dr Alexander's conduct in VR 189 involved a deliberate and conscious decision to engage in that conduct despite knowing that to do so would breach the Guidelines.
46 Notwithstanding that:
(a) the Board is a statutory board and 'is well placed to form a reasonable and appropriate view about the standards of professional conduct that can be reasonably expected from veterinary surgeons. Given its obligation in relation to the regulation of the profession, it is important that it in fact do so, and make all reasonable efforts to ensure the profession as a whole is aware of those standards' (Alexander at [46]);
(b) the Board issued the Guidelines (as part of its duties under the VS Act and the veterinary profession was alerted of the existence of the Guidelines by way of an announcement in the Board's newsletter issued in December 2005) (Alexander at [44]); and
(c) Dr Alexander was well aware of the contents of the Guidelines before he performed the castration surgeries (Alexander at [48] [49] and Alexander at [71]),
Dr Alexander:
(i) 'consciously chose not to follow the Guidelines' (Alexander at [48] [49] and Alexander at [71]);
(ii) does not accept the Guidelines are appropriate because, 'They were not done in consultation with any mobile vet', and 'they turned out to be the most restrictive in Australia' (Alexander at [48] [49]); and
4) 'The reasons [Dr Alexander] advanced for not following the Guidelines were unsatisfactory and provide no reasonable excuse for not following them'. (Alexander at [71]).
47 It is remarkable that Dr Alexander should have thought so little of the Guidelines that he could simply choose to ignore them because he did not agree with them.
48 The question arises as to what other guidelines Dr Alexander might choose to ignore while carrying out his veterinary practice. If he feels he can choose to ignore guidelines, he may also feel he can choose to ignore Regulations or Acts pertaining to the veterinary profession by which he is bound. The public could therefore have no confidence in a profession whose members followed only those guidelines they chose to follow.
6. Incompetence
49 Dr Alexander demonstrated a lack of professional skill and care. The administration of Convenia and the circumstances in which the castration surgery were carried out, demonstrates a lack of the basic knowledge expected of a veterinary surgeon (Johnson at [110] and [123]); See also Lashansky at [36]).
50 VR 188 relates to the administration of Convenia contrary to the information regarding its proper administration. Incorrect application of scheduled drugs always has the potential to cause harm to animals and people. Obtaining, prescribing and administering scheduled drugs is carefully regulated by the Regulations that the parliament has obviously considered to be an appropriate regime for the management of drugs of this specific class (Johnson at [110]; Howe(No 2) at [37]; andVeterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186 (Temmingh) at [20].
7. Was the incident isolated?
51 The inappropriate administration of Convenia detailed in VR 188, was an isolated incident.
52 The failure to comply with the Guidelines detailed in VR 189 was an isolated incident in terms of the complaint. However, Dr Alexander's overall conduct needs to be assessed in the light of his disciplinary history.
8. Dr Alexander's disciplinary history
53 Dr Alexander’s disciplinary history is set out in the Board's submissions, which I have largely repeated.
54 Dr Alexander was previously known as Kurt Alexander Rogers.
55 Before qualifying as a veterinary surgeon, Mr Rogers obtained a university degree in Psychology.
56 Kurt Alexander Rogers graduated from the Murdoch University in 1996 with a Bachelor of Veterinary Medicine & Surgery and was registered as a veterinary surgeon in Western Australia on 29 November 1996. Dr Alexander was a mature age graduate.
57 On 22 September 1998, Dr Rogers' name was removed from the Register upon his request pursuant to s 23(1) of the VS Act. Dr Rogers' request was based on a personal drug problem and his participation in a drug rehabilitation programme.
58 On 4 February 1999, Dr Rogers applied to have his name restored to the Register and on 8 March 1999, the Board offered Dr Rogers re-registration subject to Dr Rogers submitting to regular urine testing and the results of those tests demonstrating a drug free status and with a review after 6 months and subject to Dr Rogers making a formal application for re-registration.
59 On 8 March 1999, Dr Rogers accepted the Board's conditions and made a formal application for re-registration, but before that application could be considered, Dr Rogers was charged with causing grievous bodily harm to a patron at a kebab shop.
60 Dr Rogers was convicted of grievous bodily harm and spent several months in jail. Dr Rogers unsuccessfully appealed against his conviction.
61 Dr Rogers sought to be re-registered in February 2000 and during 2000 2002, the Board arranged for work placements for Dr Rogers, which were subject to strict conditions, while he continued seeing psychiatrists (with funding arranged by the Board, CRS Australia and the Australian Veterinary Association), undergoing regular reviews before the Board, undergoing drug tests and while Dr Rogers was restricted in his access to scheduled poisons.
62 In January 2002, Dr Rogers was found 'sucking' from a bottle of Nitrous Oxide whilst he was on work placement at the Baldivis Veterinary Hospital.
63 The Board held a hearing in June 2002 to consider allowing Dr Rogers to restore his name to the Register but after some personal issues, Dr Rogers’ name was not restored to the Register until 11 March 2004. The reregistration was subject to a number of conditions including those relating to access to scheduled poisons and supervision by an employer veterinary surgeon and review by the Board.
64 In December 2004, Dr Rogers requested that the conditions on his registration be removed and the Board agreed to remove all conditions except for the restriction on the Board only issuing any letter to good standing to another registration authority if Dr Rogers' history were set out in it in full.
65 In about late 2005, or during 2006, Dr Alexander commenced full time practice as a mobile veterinary surgeon.
66 In October 2006, the Board received a complaint that Dr Alexander was conducting surgeries in private residences. The Board referred the complaint to the Tribunal (VR 187 of 2007).
67 The Registrar wrote to Dr Alexander asking him to desist from conducting surgeries in private residences involving general anaesthetics.
68 A mediated outcome in Tribunal proceedings VR 187 of 2007 resulted in Dr Alexander giving an undertaking to the Board in December 2007 which stated:
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.
69 There was a further complaint in August 2008 about Dr Alexander conducting surgeries in private residences involving general anaesthetics and a complaint in October 2008, following an investigation (independently of any Board issues) by the Health Department Pharmaceutical Branch. However, since those complaints have not been finally resolved, the Tribunal has not taken these into account in assessing penalty.
70 Dr Alexander's disciplinary history is extensive and covers both serious personal issues relating to drugs and a conviction for a serious matter - grevious bodily harm.
71 In relation to his treatment of animals, he agreed to give the undertaking set out above. That undertaking and the events leading to it, should have made very clear to Dr Alexander, the problems of conducting surgery in private residences especially where anaesthesia is involved.
72 The range of disciplinary breaches by Dr Alexander over a long period of time, and particularly, the fact that issues of surgery in a private residence have occurred again, can give the Tribunal no confidence that he has learnt from previous penalties.
9. Whether or not Dr Alexander understands the error of his ways, including an assessment of the any remorse and insight (or a lack thereof) shown by Dr Alexander
73 The practitioner's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted. (A Legal Practitioner(S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
74 In A Solicitor NSW, the New South Wales Court of Appeal stated at [80]:
4. In New South Wales Bar Association v Maddocks [1998] NSWCA 102 Court of Appeal, 23 August 1988, a case concerning a barrister’s alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said:
'This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.'
76 Dr Alexander had the right to have the allegations made against him tested fully at a hearing about whether the conduct was unprofessional conduct as a legal practitioner.
77 If the defence advanced was scandalous, or without merit, there will be an aggravating factor to which more weight can be attached in determining the sanction to be applied; Re H (a Barrister) [1981] 1 WLR 1257 at 1260 - 1261.
78 There are cost consequences of Dr Alexander requiring the Board to prove that his conduct was unprofessional, but they are separate from any sanction and cannot be used to reduce any appropriate sanction; Detata at [41]).
79 A practitioner's failure to understand the impropriety of his or her conduct may be a factor of importance in determining the appropriate disciplinary sanction, including whether they should be permitted to stay on the Register (A Legal Practitioner(S) at [32] - [34]; Segler; Love at [62]; Lashanskyat [35] - [44]; Johnson at [104]).
80 On the other hand concessions made by the practitioner that reduce the length or costs of the proceedings are to be weighed in their favour (Williamson(No 2)) at [83]; Gelderman at [57].
81 Practitioners who seek to blame others or denigrate the statutory authority which regulates their profession or deny that authority’s right to investigate their conduct, demonstrate a lack of insight and a failure to accept responsibility for their actions (Segler at [27] [28]; Johnson at [120]; Thompson at [50] - [55]).
82 Similarly, if the practitioner does not recognise or accept that his conduct was below the required professional standards (Lashanskyat [35] - [44]).
83 Dr Alexander exhibited a worrying attitude to the Board. He appeared to believe that he was above the Guidelines.
84 Dr Alexander asserted that the Board had acted 'dishonestly, unprofessionally and unethically' (Dr Alexander's Request of Further and Better Particulars dated 25 November 2013 at [9] - [11], [13] - [16]; and also see Dr Alexander's Response to the Board's statement of facts and contentions (VR 189 of 2013) dated 14 March 2014 at foot of page 4; and see the 'rusty razor blade' and '[Dr Alexander] use his own teeth to extract the testes' on page 8); and that the Board had had 'fabricated' the allegations against him (See Dr Alexander's Request of Further and Better Particulars (VR 188 - 191 of 2013) dated 25 November 2013 at [5] - [8] A Legal Practitioner(S) at [33]; Segler at [28]).
85 The fact that previous complaints made against Dr Alexander were dismissed is not a basis for Dr Alexander asserting that he has been treated unfairly, let alone that the Board has acted 'dishonestly, unprofessionally and unethically'.
86 Dr Alexander did not make any concessions that reduced the length or costs of the proceedings (Gelderman at [57]). Although Dr Alexander conceded in cross-examination that the professional standard required him to stay with Ms Gorta's guinea pigs until they were ambulatory and that he breached that standard (Alexander at [69]), Dr Alexander's concession came after he had put the applicant to the proof of the unprofessional conduct and the breach and after the applicant had incurred the expense of the hearing. Dr Alexander did not concede that his conduct in administering the contraindicated drug was unprofessional
87 Dr Alexander's asserted that Ms Gorta should have telephoned him if the condition of her guinea pigs had not improved and that, by implication, Ms Gorta was somehow responsible for or contributed to the death of the guinea pigs because she failed to do so.
88 Dr Alexander's unsatisfactory assertion that he had to leave Ms Gorta's guinea pigs before they had recovered to sternal recumbency so he could attend to euthanising a dog of another client, was rejected by the Tribunal (Alexander at [53] [57]). Dr Alexander ultimately conceded in effect that he could have waited for Ms Gorta’s guinea pigs to achieve sternal recumbency and euthanised the dog on the following day (Alexander at [55]).
89 Rather than seeking to deflect some of the blame to Ms Gorta, Dr Alexander should have frankly acknowledged his own failings. The fact that he failed to do so, leads to the inference that he remains a risk to the public.
10. Are there any special skills possessed by Dr Alexander?
90 Dr Alexander does not possess any special skills
11. The practitioner's personal circumstances
91 Dr Alexander's submissions on sanctions and costs did not refer to his present circumstances. In the course of the substantive hearing, Dr Alexander referred to he and his wife's combined earnings and the effect that his inability to work as a veterinary surgeon would have on their financial position. The Tribunal accepts that an order preventing Dr Alexander working will have an impact on him and his wife's financial position. However, our task is to protect the public and the need to do that outweighs any impact on Dr Alexander's present circumstances.
12. Are there any other matters related to Dr Alexander's fitness to practise?
92 Dr Alexander's unprofessional conduct relates to the administration of Schedule 4 poisons, which in each case involved particular risks that Dr Alexander knew or should have known but did not manage (and in respect of which Dr Alexander’s records were 'scant' or unreliable (Alexander at [15] and at [33])
93 Dr Alexander failed to record the precise quantities of the drugs that he used to anaesthetise Ms Gorta’s guinea pigs (Alexander at [33]). This was consistent with his usual practice because 'he does not generally record the dosage of drugs that he administers to animals in the records he keeps in his mobile phone' (Alexander at [33]). The Tribunal was unable to 'reliably determine what dosage of each of the anaesthetic drugs used was administered to Ms Gorta’s guinea pigs'.
Costs
94 Costs are a consequence of the practitioner putting the disciplinary authority to the proof of the unprofessional conduct and do not form a component of the sanction (Detataat [41] and [66]).
95 The general position in relation to costs in the Tribunal is that, normally, each party bears its own costs of a proceeding: s 87(1) of the SAT Act. However, the Tribunal has a discretion to award costs to a party and that discretion is usually exercised in favour of professional disciplinary boards if the practitioner is found to have acted unprofessionally (Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S) at [25]; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30]; A Legal Practitioner(S) at [115]).
96 The applicant has been successful in the allegations of unprofessional conduct which it has brought in this proceeding, and seeks an order that Dr Alexander pays the Board’s reasonable costs of the proceeding.
97 Although the applicant sought the amount of $40,000 on the basis of the costs as set out in Annexure 2 to its submissions, we have determined that costs nevertheless be allowed at $20,000 bearing in mind that Dr Alexander will lose his profession as a result of the orders and the financial hardship to not only him but to his family is likely to be significant.
Conclusion
98 We do not accept Dr Alexander's submission that no major restrictive penalty is called for.
99 It is always a difficult decision to remove a person's name from the Register because the impact on his or her professional and personal life is inevitably severe.
100 However, having regard to the matters referred to above, we are satisfied that there is a need to protect those members of the public who own animals and to protect the reputation and standards of the veterinary profession.
101 Dr Alexander is not a fit and proper person to remain a veterinary surgeon. His unprofessional conduct is so serious in each of VR 188 of 2013 and VR 189 of 2013 that he is permanently or indefinitely unfit to practise.
102 Suspension is not an alternative. The Tribunal is not satisfied that upon completion of a period of suspension, Dr Alexander will be fit to practise again.
Orders
1. Pursuant to s 23(2aa)(e) of the Veterinary Surgeons Act 1960 (WA), the Tribunal finds Dr Kurt Alexander Alexander, guilty of unprofessional conduct as a veterinary surgeon and orders the removal of his name from the Register.
2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $20,000 by 16 January 2015.
I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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