Casey v Complaints Assessment Committee of the Veterinary Council of New Zealand
[2012] NZHC 2578
•5 October 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2011-485-1060 [2012] NZHC 2578
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review of the decision of the Complaints Assessment Committee of the Veterinary Council of New Zealand made under sections 39 and
43 of the Veterinarians Act 2005
BETWEEN DR PATRICK JOSEPH CASEY Plaintiff
ANDTHE COMPLAINTS ASSESSMENT COMMITTEE OF THE VETERINARY COUNCIL OF NEW ZEALAND
First Defendant
ANDTHE JUDICIAL COMMITTEE OF THE VETERINARY COUNCIL OF NEW ZEALAND
Second Defendant
ANDVETERINARY COUNCIL OF NEW ZEALAND
Third Defendant
Hearing: 3 October 2012
Counsel: G P Muller for Plaintiff
M F McClelland and P D Tancock for First Defendants
Other defendants abide
Judgment: 5 October 2012
JUDGMENT OF SIMON FRANCE J
DR PATRICK JOSEPH CASEY V THE COMPLAINTS ASSESSMENT COMMITTEE OF THE VETERINARY COUNCIL OF NEW ZEALAND HC WN CIV 2011-485-1060 [5 October 2012]
Introduction
[1] These judicial review proceedings involve a limited point. Dr Casey is a registered veterinarian. In January 2009 he provided services to a racehorse trainer. Amongst other things, this involved administering a drug, Ketoprofen, to a horse which was shortly due to race.
[2] It is permissible to use Ketoprofen on racehorses. However, the drug must have cleared the horse’s system by the time it races. This requires the veterinarian to calculate the maximum dose permissible, having regard to the date on which the horse is due to run. On this occasion the horse won, and a routine urine sample was taken. Ketoprofen was identified in the sample. Consequently the horse was disqualified, and the trainer fined.
[3] The relevant racing authority referred Dr Casey’s role in the matter to the Veterinary Council. Pursuant to s 39 of the Veterinarians Act 2005, the Council referred the matter to a complaints assessment committee.
[4] Complaints assessment committees are provided for in s 82 of the Act. They are to consist of two veterinarians, and one lay person. The committee is obligated to promptly investigate referrals made to it under s 39. Accordingly, an inquiry into Dr Casey’s actions commenced.
[5] When referring this matter to the committee, the Council had noted there appeared to be an issue as to whether Dr Casey had complied with cl 4.6 of the Code of Professional Conduct for Veterinarians.[1] It provides:
[1] The clause was applicable at the time. A revised Code of Professional Conduct for Veterinarians was issued in August 2011.
4.6 Use of animal remedies in performance animals
When treating or prescribing for any animal before a race, show or other event, veterinarians should ensure that the relevant rules of the Racing or Harness Racing Conferences, Greyhound Association or similar bodies are followed. Veterinarians regularly attending competition animals must be familiar with the relevant requirements of these organisations.
Veterinarians are warned that attempting to unfairly influence the performance of an animal in any way by the administration of any animal remedy is not condoned. Such action may also be a criminal offence.
[6] The complaints assessment committee has a range of options available to it. It can decide no further action is needed. It can recommend assessment of the veterinarian’s medical fitness, or competency. It can achieve resolution by agreement, and it can impose conditions on a licence. It can also conclude that a disciplinary hearing is required, in which case its role is to lay charges. That is what happened here. The committee has laid five charges which are in reality variants on the proposition that in administering the quantity of Ketoprofen that he did, Dr Casey acted negligently to an extent that amounts to professional misconduct.
[7] Dr Casey brings these judicial review proceedings in an effort to have the decision to lay charges quashed. The statement of claim alleged various errors, but none were maintained at the oral hearing before me. Counsel for Dr Casey properly accepted the force of the submissions filed by the respondent. The pleaded claims reflect an incorrect characterisation of the role of the complaints assessment committee. They appeared premised on a view that the committee had some determinative function as regards the matters at issue between the parties.
[8] The ground of challenge that was advanced at the oral hearing was not pleaded. However, Mr McClelland was able to address it and I consider it is preferable to deal with it so that the hearing of the charges can proceed without further delay.
[9] Mr Muller’s submission takes as its focal point the terms of cl 4.6 of the Veterinarians Code of Conduct. It was this provision to which the Veterinary Council had referred when sending the matter to the assessment committee. The relevant parts of the clause provide:
... veterinarians should ensure that the relevant rules of the Racing
Conference ... are followed.
[10] Mr Muller submits that the reasons provided by the assessment committee for its decision to charge Dr Casey do not identify the particular rule of racing that has allegedly been breached. It is submitted that if, as appears, the committee has not
identified and analysed the rule, then it could not be in a position to decide if charges should be laid. Without knowing which rule has been breached, and what the component parts of the rule are, how could the committee be satisfied Dr Casey had failed to ensure compliance with the rule? I may have misunderstood, but Mr Muller appeared to also suggest the committee should itself decide if there had been a breach of the rule once it has been identified.
[11] These propositions cannot succeed. First, the centrality placed on cl 4.6 is not valid. Whilst the Council referred to this provision when it sent the complaint for assessment, the assessment committee takes as its framework the incident in issue, not a particular section of the Code. Obviously cl 4.6 is of relevance because it expressly deals with the rules of racing, and so may be a provision that is engaged by the impugned conduct. But as the charges show, the committee is not limited to that. As it happens, cl 4.6 is a component in only one of the five charges ultimately laid.
[12] Second, from the assessment committee’s viewpoint, it was entitled to place significant weight on the fact that the relevant racing authority had found there to be a breach of the rules of racing, apparently connected to Dr Casey’s actions. Dr Casey accepted he had administered Ketoprofen leading up to the race. The horse, according to racing authority testing, tested positive on race day to the drug Ketoprofen. Ketoprofen is a prohibited substance in that a horse may not present on race day with that drug in its system. A breach of the rules was accordingly found, the horse was disqualified, and the trainer fined for that breach. If Dr Casey wants to dispute the test result, he can; but the committee was entitled to rely on the racing authority’s conclusions when assessing whether to lay charges.
[13] Third, the particular racing rule in issue is in fact known to the parties. Indeed, Mr McClelland pointed me to expert evidence filed on Dr Casey’s behalf where the expert gives an opinion on the proper interpretation of the rule. I acknowledge that the plaintiff’s point is not so much that Dr Casey does not know the rule but that the committee did not begin its analysis with the rule and whether it had been breached. However, it is important to note for the record that there is no doubt about which rule is being considered. There can be no suggestion Dr Casey
has been prejudiced. The committee proceeded on the basis a breach had been found to have occurred, and in the circumstances it was entitled to place weight on that.
Conclusion
[14] The claim in my view has been misconceived from the outset. It was premised on a view that the strength of the plaintiff’s expert evidence should have been decisive in preventing charges being laid. This argument could not succeed given there was competing expert evidence, and against a background where presence of the same drug that Dr Casey had administered had been discovered in the horse’s system on race day. It may well be that Dr Casey will show that he is not culpable in that regard, and that it was legitimate to administer 1800 mg of the drug at the time he did. But that is a different issue from whether it was open to the complaints assessment committee to decide a disciplinary hearing was required.
[15] The particular matter advanced for the first time at the hearing reflects the same incorrect characterisation of the assessment committee’s function. It is premised on a view that the committee needed to go behind what appear incontrovertible facts concerning whether there was a breach of the rules of racing.
[16] It is also premised on an incorrect view of the processes the complaints assessment committee must follow. The fact that the Council made mention of cl 4.6 does not mean the committee must structure its inquiry and assessment through the specific wording of that provision. It is only beginning its investigation, and cannot know exactly what might emerge. It can be noted that the statutory obligation resting on the committee at this point to inform the veterinarian is broadly worded. Section 40(3) of the Act provides that the committee must advise of “the general nature of the complaint or referral”. The wording of this obligation reflects that matters are only at a preliminary stage.
[17] The application is dismissed. The first defendant is entitled to costs.
Memoranda may be filed if agreement cannot be reached.
Simon France J
Solicitors:
G P Muller, Smith & Partners, Auckland, email: [email protected]
M F McClelland, Barrister, Wellington, email: [email protected]
P D Tancock, Barrister, Wellington, email: [email protected]
0
0
0