VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER
[2014] WASAT 105
•27 AUGUST 2014
VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2014] WASAT 105
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 105 | |
| VETERINARY SURGEONS ACT 1960 (WA) | |||
| Case No: | VR:188/2013 | 23 AND 24 JULY 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS L EDDY (MEMBER) DR A VIGANO (SENIOR SESSIONAL MEMBER) | 27/08/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner guilty of unprofessional conduct | ||
| B | |||
| PDF Version |
| Parties: | VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA KURT ALEXANDER ALEXANDER |
Catchwords: | Veterinary surgeon Use of contraindicated drug Operation outside registered clinic or hospital Conduct falling substantially short of standards Unprofessional conduct |
Legislation: | Veterinary Surgeons Act 1960 (WA), s 23(2)(a), s 23(4) Veterinary Surgeons Regulations 1979 (WA), s 28(4)(c), s 65(3)(h) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352 Medical Board of Western Australia and Bham [2006] WASAT 190 Medical Board of Western Australia and Wright [2010] WASAT 48 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 |
Orders | On the application heard before The President, Justice Curthoys, Member Lisa Eddy and Senior Sessional Member Dr Anthony Vigano on 23 and 24 July 2014, it is on 27 August 2014 ordered that:,1. The Veterinary Surgeons' Board of Western Australia is to file and serve written submissions on the Tribunal and Dr Alexander as to the orders and penalty by 12 September 2014.,2. Dr Alexander is to file and serve written submissions as to orders and penalty by 26 September 2014.,3. The matter is listed for hearing at 9 am on 1 October 2014. |
Summary | VR 188 of 2013,Dr Alexander administered a drug Covenia to a guinea pig. Covenia is a cephalosporin. The use of cephalosporins is contraindicated for guinea pigs. Dr Alexander should have been aware of this. The Tribunal found that he had engaged in professional misconduct.,VR 189 of 2013,Dr Alexander performed castration surgery on three guinea pigs at the home of their owner. He did this despite knowing that his actions were contrary to the guidelines published by the Veterinary Surgeons' Board which required that the surgery be undertaken in a registered veterinary hospital or clinic. The Tribunal found that he had engaged in professional misconduct. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : VETERINARY SURGEONS ACT 1960 (WA) CITATION : VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2014] WASAT 105 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 Use of contraindicated drug Operation outside registered clinic or hospital Conduct falling substantially short of standards Unprofessional conduct
Legislation:
Veterinary Surgeons Act 1960 (WA), s 23(2)(a), s 23(4)
Veterinary Surgeons Regulations 1979 (WA), s 28(4)(c), s 65(3)(h)
Result:
Practitioner guilty of unprofessional conduct
Summary of Tribunal's decision:
VR 188 of 2013
Dr Alexander administered a drug Covenia to a guinea pig. Covenia is a cephalosporin. The use of cephalosporins is contraindicated for guinea pigs. Dr Alexander should have been aware of this. The Tribunal found that he had engaged in professional misconduct.
VR 189 of 2013
Dr Alexander performed castration surgery on three guinea pigs at the home of their owner. He did this despite knowing that his actions were contrary to the guidelines published by the Veterinary Surgeons' Board which required that the surgery be undertaken in a registered veterinary hospital or clinic. The Tribunal found that he had engaged in professional misconduct.
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):
Briginshaw v Briginshaw (1938) 60 CLR 336
Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352
Medical Board of Western Australia and Bham [2006] WASAT 190
Medical Board of Western Australia and Wright [2010] WASAT 48
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
Introduction
1 These reasons for decision concern two applications under s 23(2)(a) of the Veterinary Surgeons Act(1960) (WA) (VS Act), by the Veterinary Surgeons' Board of Western Australia (the Board). The respondent is Dr Kurt Alexander Alexander (Dr Alexander).
2 This matter involves two applications before the Tribunal: VR 188 of 2013 and VR 189 of 2013.
3 VR 188 of 2013 concerns the administration of a drug known as 'Convenia' to a guinea pig.
4 VR 189 of 2013 concerns the castration of three guinea pigs by Dr Alexander at the home of the owner, rather than in a registered veterinary clinic or hospital.
5 At all material times, Dr Alexander was a registered veterinary surgeon under the VS Act.
The Board's allegations VR 188 of 2013
6 Relevantly, the Board's allegations in VR 188 of 2013 were:
…
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.
…
The Board's allegations VR 189 of 2013
7 Relevantly, the Board's allegations in VR 189 of 2013 were:
…
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 postoperative 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.
Unprofessional conduct
8 Section 23(4) of the VS Act provides that a registered veterinary surgeon is guilty of unprofessional conduct if that person does not observe the standards of professional conduct as prescribed. Regulation 28(4)(c) of the Veterinary Surgeons Regulations 1979 (WA) (the Regulations) provides that a registered veterinary surgeon engages in unprofessional conduct if he or she 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 section reflects one of the limbs of the common law test for unprofessional conduct in the legal profession, as usefully summarised in Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, at [61].
9 In order to determine whether the conduct of a veterinary surgeon falls substantially short of the standard of professional conduct for the purposes of s 23(2a) of the VS Act, the Tribunal must first establish what the standard is: Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136, at [119]. The legislation does not define the term 'substantial'. It is a word that can have a range of meanings. As was said by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union(1979) 42 FLR 331, at 348:
It [the word substantial] can mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size.
10 The meaning of a term of such potentially varied meanings must be ascertained by having regard to the context within which it is used. We consider that, in the context of its use in reg 28 of the Regulations, which is in turn incorporated into s 23 of the VS Act, 'substantial' is a relative concept. What is 'substantially short' of the standard reasonably expected will depend on the nature and scope of the standard in question.
Onus and standard
11 The Board bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw(1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
12 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
VR 188 of 2013
13 On 5 April 2013, Dr Alexander treated a guinea pig owned by Ms Renae Austin.
14 It was not in dispute, and we find that, Dr Alexander's treatment was to inject the guinea pig with the drug Convenia. Convenia is the brand name for a form of cephalosporin. Dr Alexander had not been expecting to treat a guinea pig on that day and had not, at that time, any significant experience in treating guinea pigs (T 55, T:85).
15 Dr Alexander submitted that he gave a dose of 0.04 millimetres of Convenia mixed with 0.4 millimetres of Depomedrol. Dr Alexander's rather scant veterinary records indicate a dose of 0.4 millilitres (Exhibit 1, pages 3 and 4). The invoice that Dr Alexander gave to Ms Austin after treating the guinea pig and before leaving her premises (Exhibit 1, page 3) is a contemporaneous note or record of the treatment he provided and as such we find that it is more likely to be accurate than his later recollection of the events of that day. However, it is not necessary to make a finding as to whether the dose was 0.04 or 0.4 millilitres. Any amount is contraindicated.
The risks of cephalosporin
16 The reason why cephalosporins should not be administered to guinea pigs is explained in the expert evidence of Dr James Haberfield (Exhibit 3, paragraphs 32 36):
32. Guinea pigs are small herbivores and small herbivores are at risk of developing dysbiosis if administered inappropriate drugs that have the potential to kill their normal gastrointestinal flora as previously explained.
33. Cephalosporins are a class of drugs that are known to effectively kill the bacteria that are considered part of a guinea pigs natural flora.
34. It is therefore inappropriate to give cephalosporins to small herbivores, including guinea pigs.
35. In my experience it is widely known by reasonably competent veterinary surgeons not to give cephalosporins to guinea pigs. In my undergraduate veterinary course it was one of the 'cardinal' pharmacological rules taught during the pharmacological lectures. I would expect that other pharmacological courses would also cover this material. In my experience and from discussions I have had with vets who do not practice regularly with guinea pigs, this rule is well known by vets generally.
36. Convenia (cefovecin) is a cephalosporin.
The packaging of Convenia
17 The packaging of Convenia available in Australia contains a pamphlet which makes it clear that it is contraindicated for use in guinea pigs (Exhibit 1, page 9). Further, the label on the vial states, in bold, that it is not to be used for guinea pigs (Exhibit 1, page 7).
Dr Alexander's inquiries as to whether Convenia was contraindicated
18 Dr Alexander gave evidence that due to condensation in the fridge in which the Convenia was stored in his vehicle, the label of the vial here had fallen off (T:63). He was unable to find the pamphlet that came with the packaging (T:64). Therefore, Dr Alexander did not have the necessary information from the packaging with him to determine if Convenia was contraindicated for guinea pigs. Conversely, he did not know if it was safe. It is disturbing that Dr Alexander was willing to use a drug that did not have any label and for which he did not have a copy of the manufacturer's pamphlet on a class of animal that he had never used the drug on before.
19 Dr Alexander says that in order to determine whether or not Convenia was contraindicated for guinea pigs, he conducted an online search for pharmacological notes for the use of Convenia using his mobile phone. His search directed him to a United States website. A printout of the pharmacological information Dr Alexander says he obtained on his iPhone from the search is Exhibit 5 (T:65).
20 Exhibit 5 deals with the administration of Convenia to dogs and cats. It does not specifically state that the use of Convenia for guinea pigs is contraindicated. However, Exhibit 5 does state that Convenia is a cephalosporin:
CONVENIA is a cephalosporin antibiotic. Like other β-lactam antimicrobials, CONVENIA exerts its inhibitory effect by interfering with bacterial cell wall synthesis. This interference is primarily due to is covalent binding to the penicillinbinding proteins (PBBs) (ie. transpeptidase and carboxypeptidase), which are essential for synthesis of the bacterial cell wall. …
21 Dr Alexander did not do any other research before administering the Convenia to Ms Austin's guinea pig.
22 Dr Haberfield gave evidence that the information on the United States information sheet (Exhibit 5) identified Convenia as a cephalosporin. Dr Haberfield said that this should have alerted Dr Alexander to the risks of giving Convenia to guinea pigs.
23 Dr Alexander produced some of his university notes which, he argued, suggested that the use of cephalosporin might be appropriate for guinea pigs (Exhibit 4, pages 8 26). Those notes were 17 years old. We find that the notes clearly alert the student to the issue of the potential danger of giving penicillin or 'any of the antibiotics effective against gram positive bacteria' to guinea pigs. The notes indicate that one specific cephalosporin drug 'is safe' but that drug was not Convenia. In any event, Dr Alexander did not consult those notes before giving Convenia and he did not rely on them.
Was Dr Alexander's conduct as alleged in 188 of 2013 unprofessional conduct?
24 In assessing whether the conduct of administering an amount of Convenia to Ms Austin's guinea pig amounts to unprofessional conduct, it is necessary to determine the relevant standard of conduct.
25 Dr Haberfield gave evidence that:
77. In my opinion, based on the allegations in the matter that is presently before the State Administrative Tribunal (as contained in the SOFIC for VR 188 of 2013), a registered veterinary surgeon of good repute and competency should not have administered convenia (cefovecin) as it is contraindicated in guinea pigs. …
78. In my opinion and experience, vets of competence and repute would not administer cefovecin or methylprednisoione to a guinea pig and that to do so is considered sub-standard practice.
79. In my opinion Dr Alexander acted unprofessionally when he administered these drugs.
26 We accept Dr Haberfield's qualifications as an expert. In both his written statement, and in his oral evidence, Dr Haberfield provided clear reasoning for the opinions he expressed. We found that his reasoning was logical and based on experience and appropriate published material utilised by members of the veterinary profession. His oral evidence was given directly. When he was unsure of an answer he made that clear. We have no hesitation in accepting his evidence, both in 188 and 189. Where the evidence of Dr Haberfield and that of Dr Alexander conflict, we prefer the evidence of Dr Haberfield.
27 In the course of the hearing, Dr Alexander accepted that Convenia is contraindicated for use for guinea pigs.
And do you accept that had you known at the time ?---I wouldn't have given it.
And do you accept that it would be unprofessional for a vet to do that? Yes, if I know if I knew, and I did make the so I it would be inadvertent that I made that mistake. But if it was known then it would be and I understand the principle that ignorance is no excuse for the law, but I made the appropriate search to see if it would be applicable. And because it did not have a contraindication in guinea pigs as it does on the Australian pharmacological one, which is the only difference between the two of them, I worked on an offlabel principle because I had no other antibiotic that I could give to that guinea pig that I wanted to have an action that was longer lasting. (T:113)
28 We find that the use of Convenia is contradicted for guinea pigs and that, as at 5 April 2013, the standard of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency is that they would not administer Convenia to a guinea pig.
29 Dr Alexander should have known that Convenia, a cephalosporin, was contraindicated for guinea pigs. He should have known that Convenia was detrimental to and potentially lethal to guinea pigs. He should not have administered Convenia to the guinea pig. He should have appreciated the risk of Convenia from Exhibit 5. To administer the drug, from a vial that did not have an intact label and without reference to the pamphlet provided with the packaging, in circumstances where he did not having any expertise in relation to guinea pigs or the use of Convenia in guinea pigs, and where his only research before deciding to administer the drug was to conduct a cursory search on his mobile phone, fell substantially short of the standard of professional conduct that could reasonably be expected.
30 We find that the Board has proven that Dr Alexander engaged in unprofessional conduct.
VR 189 of 2013
31 Ms Rebecca Gorta owned an adult male guinea pig and two juvenile male guinea pigs.
32 On 11 December 2012, Dr Alexander attended at Ms Gorta's residence at 25 Brockman Road, Cowaramup and surgically castrated each of those guinea pigs. The surgery commenced at about 4 pm and was completed about 6 pm. The guinea pigs were anaesthetised prior to surgery by the administration, via injection, of the drugs Dormitor, Ketamine and Torbugesic.
33 Dr Alexander's record of the surgeries he performed was made shortly after the surgeries were completed by inputting text into the calendar of his mobile phone. When he was later asked to provide a copy of his record of these surgeries by the Board's investigators, he produced the document copied at page 13 of Exhibit 2. This request was several months after Dr Alexander performed the surgeries on Ms Gorta’s guinea pigs. Under crossexamination, Dr Alexander said that he recorded in the calendar on his mobile phone the drugs he had given but not the quantities (T:90). When he was asked for his records, he expanded from this record to provide the limited information contained at page 13 of Exhibit 2. Dr Alexander admitted that he does not generally record the dosage of drugs that he administers to animals in the records he keeps in his mobile phone. We find that Dr Alexander’s evidence at the hearing in relation to how much of each drug he administered to each guinea pig was based on his assumption that he administered what would be the correct dosage of each drug to each guinea pig based on his recollection of his estimation of their weight. Given the lack of any contemporaneous note, and Dr Alexander’s inability to actually remember this detail, we find that we cannot reliably determine what dosage of each of the anaesthetic drugs used was administered to Ms Gorta’s guinea pigs.
34 It was not in dispute that Dr Alexander performed the surgeries without gaseous anaesthesia, any warming equipment, or the assistance of an approved veterinary nurse or another veterinary surgeon.
35 It was also not in dispute that one of the guinea pigs did not regain consciousness after the surgery and died within 24 hours, another regained consciousness but died within approximately 36 hours of the surgery, and the third guinea pig remained immobile for more than 12 hours after the surgery.
The risks of castration surgery on guinea pigs
36 Dr Haberfield explained why guinea pigs are more prone to anaesthetic complications than many other species:
51. In my experience guinea pigs are also more prone to anaesthetic complications than many other species. The main reasons for this are as follows:
(1) They are a 'prey' species and can become stressed very easily. This inturn can contribute to changes in blood pressure, heart rate and respiratory rate which can complicate the anaesthetic.
(2) Due to their anatomy (long smallvolume oral cavity with a small central opening at the back of their mouth called the palatal ostium) they are difficult to intubate (place a breathing tube into their trachea). This means that it is not always possible to have direct control over their breathing while they are under anaesthesia.
(3) Due to their small size and high surface area to body weight ratio they are prone at becoming hypothermic (low body temperature) while under anaesthesia. Hypothermia can increase the time that it takes for the body to metabolise (break down) drugs and can also impact on blood pressure and perfusion (blood circulation).
(4) The anaesthetic drugs commonly used to induce and maintain guinea pig anaesthesia can lead to respiratory depression. This in turn can lead to hypoxia (low oxygen concentration). The body's cells are dependent on oxygen to survive and if the hypoxia continues the cells will die.
(5) The use of some anaesthetic drugs (examples include medetomidine, isoflurane) can cause blood pressure to be lowered. Low blood pressure (hypotension) can result in decreased perfusion to the vital organs and body.
(6) To my knowledge there are no anaesthetic drugs that have been specifically designed by drug companies exclusively for use in guinea pigs (there are some drugs specifically designed for dogs and cats).
(Exhibit 3)
37 Dr Haberfield explained various ways in which the risk can be minimised and why castration surgery should be carried out in a veterinary hospital or clinic (Exhibit 3, paragraphs 51, 56, 69 72):
73. As guinea pigs are generally easily transportable it is my opinion that castration surgery should be performed in a veterinary hospital or clinic. If the surgery is to be performed outside of this arrangement then the same facilities that are provided in the clinic should be available. In my opinion failure to refer a guinea pig castration to a veterinary clinic or hospital or to perform the surgery without the ability to provide the appropriate supportive care to minimise their anaesthetic risk and manage potential complications is unprofessional. In my opinion and experience veterinarians of good repute and competency would also agree with this statement.
74. I would not perform castration surgery on a guinea pig in the home of its owner, unless there were no veterinary hospitals or clinics that I could refer to. If I was in this situation (where no referral option was available) I would ensure that at a minimum fluid therapy, oxygen, warmth and basic monitoring were provided to attempt to minimise the risks of anaesthetic complications. In my opinion and experience veterinarians of good repute and competency would also agree with this statement.
38 Dr Haberfield said:
64. In my experience the appropriate and commonly used post operative regime for guinea pigs is to allow the guinea pig to recover until it is conscious. In my experience a typical recovery from an anaesthetised patient to sternal recumbency (sitting/standing and conscious) takes from several minutes to half an hour.
65. In my experience guinea pigs are not discharged from veterinary clinics after surgery until they are ambulating (walking) normally and that vets of repute and competency would not discharge a guinea pig before that time unless there were mitigating and unusual circumstances.
66. At this point in their recovery a veterinary surgeon is able to tell that the guinea pig has recovered enough to be discharged from the hospital.
67. In my experience prolonged recovery time generally indicates an anaesthetic or surgical complication has occurred.
68. In my opinion there is no reasonable justification after castration surgery for discharging a guinea pig into the care of its owner before they are ambulating (walking) normally unless there were mitigating and unusual circumstances.
The Guidelines
39 The Veterinary Surgeons' Board has issued Guidelines For Mobile Veterinary Clinics and Veterinary House Call Services For Small Or Companion Animals In WesternAustralia (the Guidelines) (Exhibit 2, pages 5 6). The Guidelines were in force on 11 December 2012.
40 'Small or companion animals' include guinea pigs. The Guidelines define a 'veterinary house call service' as 'a limited range of veterinary services provided by a veterinary surgeon at an animal owner's premises'.
41 The Guidelines state:
Mobile veterinary clinics and veterinary house call services should operate from a registered veterinary hospital or veterinary clinic. The onus is on the veterinary surgeon to justify any acts of veterinary surgery they perform at a place other than at a registered veterinary hospital or veterinary clinic.
42 It is common ground that the services provided by Dr Alexander were veterinary house call services and that he did not conduct a mobile veterinary clinic.
43 The Guidelines further state that:
…
4. Except in the case when a registered veterinary hospital or veterinary clinic is not reasonably available, a veterinary surgeon must not perform surgery on a companion or small animal if that surgery requires general or dissociative anaesthesia, or the administration of any drug or combination of drugs to render an animal unconscious.
5. Neither financial considerations, nor the prohibition of access of an individual veterinary surgeon to the facilities of a reasonably available registered veterinary hospital or veterinary clinic, are justification for a veterinary surgeon to perform surgery that requires general or dissociative anaesthesia, or the administration of any drug or combination of drugs to render an animal unconscious.
6 If an animal requires surgery that necessitates general or dissociative anaesthesia, or the administration of any drug or combination of drugs to render an animal unconscious, and the veterinary surgeon attending that animal does not have access to a reasonably available registered veterinary hospital or veterinary clinic, it is incumbent on the veterinary surgeon to refer the client to a reasonably available veterinary hospital or veterinary clinic.
…
8. After performing a procedure on an animal, a veterinary surgeon must remain at the premises until the animal has recovered to at least sternal recumbency.
9. Clinical records should be made at the time a veterinary service is performed, or as soon as possible after a service is performed, by a veterinary surgeon conducting a mobile veterinary clinic or a veterinary house call service.
…
The status of the Guidelines
44 The Guidelines were issued by the Board 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 2010.
45 The applicant submitted that guidelines issued by the regulatory body of a profession must be taken into account in determining the standard to be reasonably expected of those professionals. In Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352 at [86] the Tribunal said:
Moreover, appropriate standards of professional conduct are reflected in the Professional Conduct Rules, such that if these are breached in a material respect, as here, it will likely follow that the practitioner is guilty of unprofessional conduct.
46 The Board is a statutory board made up of five members, including the person holding the office of Chief of Division, Animal Health Division, Department of Agriculture, two registered veterinary surgeons elected by other registered veterinary surgeons, and one person nominated by the Western Australian division of the Australian Veterinary Association, who is also a registered veterinary surgeon. The Board 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 obligations 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.
47 The Guidelines are a relevant factor for the Tribunal to take into account in determining the relevant standard of conduct of veterinary surgeons. The Guidelines have, at least, the same status as The Law Society Professional Conduct Rules. If the Guidelines are breached in a material respect it will likely follow that a practitioner has fallen short of the standards reasonably expected. It would then be necessary to determine on the facts of the specific case whether the conduct fell substantially short of the standards reasonably expected.
Dr Alexander's knowledge of the Guidelines
48 Dr Alexander conceded that he was aware of the contents of the Guidelines before he performed the castrations at Ms Gorta's house, that is, other than at a registered veterinary hospital or veterinary clinic (T:116).
49 Dr Alexander consciously chose not to follow the Guidelines:
[ABBOTT, MR]: So in this instance with the guinea pigs castrations, they are surgeries that the guidelines would tell you to do in a clinic. Do you agree? Yes.
…
So you chose to do those surgeries outside of a registered premises? Yes.
And you did that even though you knew of the guidelines? I knew of the guidelines in a rough form, yes. Yes. I don't go back to it and refer to it all the time. (T:118)
[ABBOTT, MR]: Okay. Now, do you accept that the standard the professional standards of veterinary surgeons are not to be measured against the amount of money that the procedure itself will cost the client? No, I don't accept that. (T:120)
Dr Alexander's objections to the Guidelines
50 Dr Alexander does not accept that the Guidelines are appropriate because 'they weren't done in consultation with any mobile vet' and 'they turned out to be the most restrictive in Australia' (T:116). He further stated:
[ABBOTT, MR]: That's why I say that you reject the content in the terms, don't you? Yes.
And you say that they are not so by rejecting them in their terms you don't consider that you should be bound by them? No, I don't because they haven't stood the test of democracy.
Failure to comply with the Guidelines
51 It was not in issue that:
a) registered veterinary premises were within 50 kilometres of Ms Gorta's house (Exhibit 2, page 4) (Guideline 4);
b) the guinea pigs were administered a drug or combination of drugs which rendered them unconscious (Guideline 4);
c) after performing the castration on the guinea pigs, Dr Alexander did not remain at Ms Gorta's house until the guinea pigs had recovered to at least sternal recumbency (Guideline 8).
52 Dr Alexander clearly breached the Guidelines.
Dr Alexander's early departure
53 Dr Alexander accepted that animals recovering from anaesthesia are at risk (T:124).
54 Dr Alexander's left the Gorta's residence before the guinea pigs had achieved sternal recumbency, contrary to the Guidelines. His explanation was that he had to euthanise a dog that evening in Busselton, about 40 kilometres away.
55 Dr Alexander said it was necessary to euthanise the dog that evening because its owners had packed up the house and were moving to Perth (T:67, 122-123). In fact, it was not necessary to do this. Dr Alexander ultimately conceded, in effect, that he could have waited for the guinea pigs to achieve sternal recumbency and euthanised the dog the following day. He left because he expected the guinea pigs to recover (T:123124).
56 It is plain that Dr Alexander could have contacted the owners of the dog and informed them that he had to remain at Ms Gorta's until the guinea pigs had regained consciousness.
57 Dr Alexander did not give any satisfactory explanation as to why he could not have remained until the guinea pigs had achieved sternal recumbency.
Leaving the unconscious guinea pigs under Ms Gorta's supervision
58 Dr Alexander sought to further justify his failure to remain until the guinea pigs achieved sternal recumbency on the basis that he had told the owner of the guinea pigs, Ms Gorta, to ring him if they had not recovered by 9 pm. His evidence was:
And I saw if I didn't think that Rebecca [Gorta] wasn't capable of making ascertaining that the animals weren't in a good way, then I wouldn’t have left them with her. So, and in view of the fact that it was a fair distance and it was I had done it on a basis of quite a cheap amount, especially for the amount of time I spent there, I did leave them there, and she said she would contact me if they didn't wake up.
59 Section 65(3)(h) of the Regulations provides that '[t]he following duties and veterinary services may be performed by a veterinary nurse under the personal supervision of a registered veterinary surgeon - monitoring the recovery of animals from anaesthesia'.
60 By implication, the fact that the Regulations specifically provide that these duties may be performed by a veterinary nurse under the personal supervision of a registered surgeon means that, if there is not a veterinary nurse available, then those duties should be performed by the veterinary surgeon. In addition, even a person qualified as a veterinary nurse must be under the personal supervision of a veterinary surgeon when carrying out this task. Mr Gorta was not a qualified veterinary nurse and was not under Dr Alexander's personal supervision.
61 In this case, it is clear, on the basis of the Guidelines, the Regulations and Dr Haberfield's evidence, that Dr Alexander should have stayed to personally supervise the recovery of the guinea pigs from the anaesthesia.
The price of the castration surgery
62 Dr Alexander at times appeared to justify his failure to stay until the guinea pigs achieved sternal recumbency on the basis of the price (T:170).
63 Dr Alexander also gave evidence that if he had known how long it was going to take he would not have done it, and certainly not for the price (T:124).
64 At other times, his evidence was that professional standards did not depend on the price (T:74, 126).
65 Once Dr Alexander commenced the procedure he was bound to complete it according to proper professional standards.
Was Dr Alexander's conduct, or alleged conduct, in 189 of 2013 unprofessional conduct?
66 Dr Haberfield's opinion was:
In my opinion and experience, vets of competence and repute would not:
(1) Perform guinea pig castration surgery outside a veterinary clinic or hospital without taking measures to minimise their anaesthetic risk and also have the ability to manage complications.
(2) Leave or discharge a guinea pig after castration surgery until that animal was ambulatory because until that point the vet cannot be assured that the guinea pig had recovered form the surgery and anaesthetic.
In my opinion, Dr Alexander acted unprofessionally when he castrated the guinea pigs at their owner's home without taking measures to minimise their anaesthetic risk or having the ability to manage potential complications. I also feel that he acted unprofessionally when he left the premises without ensuring that the guinea pigs were fully recovered.
67 Dr Haberfield postulates a higher standard, namely that the guinea pigs should be walking before they are discharged to the care of an owner, unless there were mitigating and unusual circumstances.
68 There is nothing in the evidence of Dr Alexander that would amount to mitigating or unusual circumstances.
69 Dr Alexander made the following concessions:
I'm not satisfied with the ultimate result of what happened. Ideally, I should have stayed there and monitored those animals to to come full fully back.
ABBOTT, MR: But do you accept it was unprofessional of you to have not stayed? Yes, in terms of my my standards, yes, I do, and
And do you accept, too, that the standard that Dr Haberfield says is the standard of veterinary surgeons of competence and repute, is that that they ? Yes, that's right, and
stay ? - - -Yes
until on his view of it ?- - -Yes.
until the guinea pig would be walking? Yes.
Ambulatory? That would be the that would be the ideal situation.
But do you agree that that is the standard? Yes, but it is not a practical standard, is it?
Do you say it's the professional standard? It's it's I understand that it is the professional standard, yes.
(T:132)
70 We find that Dr Alexander's conduct above fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession because:
a) surgical facilities were available in premises registered as a veterinary hospital or a veterinary clinic under the Act and Dr Alexander should have referred the castration surgery to proper facilities; and
b) Dr Alexander, who had performed the castration surgery procedure on the guinea pigs at Ms Gorta's, did not remain at the premises until the animal had recovered to at least sternal recumbency.
71 The Guidelines are very clear as to a veterinary surgeon's obligations. In addition, the expert evidence before the Tribunal conveyed those same, or in one aspect an even greater, obligation. Dr Alexander was well aware of the Guidelines and yet he made a very conscious decision not to follow them. The reasons he advanced for not following the Guidelines were unsatisfactory and provided no reasonable excuse for not following them. It is trite to say that the conduct of surgery and the administration of anaesthesia (particularly of a type that renders an animal unconscious) are potentially dangerous matters. Given the degree of risk posed by anaesthesia to guinea pigs and the difficulty of the castration surgery that Dr Alexander proposed to perform, we are satisfied that Dr Alexander's conduct fell substantially short of the standard reasonably expected in the circumstances.
72 We find that the Board has proven that Dr Alexander engaged in unprofessional conduct in:
a) conducting the surgery at Ms Gorta's home; and
b) leaving before the guinea pigs had recovered to at least sternal recumbency.
Orders
1. The Veterinary Surgeons' Board of Western Australia is to file and serve written submissions on the Tribunal and Dr Alexander as to the orders and penalty by 12 September 2014.
2. Dr Alexander is to file and serve written submissions as to orders and penalty by 26 September 2014.
3. The matter is listed for hearing at 9 am on 1 October 2014.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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