Appeal of agency determination of veterinarian malpractice for failure to detect ring worms in a cat. Long case with full discussion of process of administrative hearing and the standards by which to decide if an action is malpractice.
1 The Veterinary Surgeons Investigating Committee (the Committee) has pursuant to s 28(1)(c) of the Veterinary Surgeons Act 1986 (the Act) referred to the Tribunal for inquiry a complaint against Dr Ronald George Lloyd (Dr Lloyd), a registered veterinary surgeon. Unless otherwise noted, references to the Act in these reasons are to the Act as in force at the time of the referral of the complaint.
2 The complaint as referred made two particularised allegations. By leave of the Tribunal (separate ruling, 13 November 2000), the complaint was amended to include a third particularised allegation.
3 There has been an objection to the jurisdiction of the Tribunal. It has been dismissed, and is the subject of separate reasons published as Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: "Total Eclipse"- Jurisdiction) [2002] NSWADT 283 (31 December 2002) .
4 The delivery of this decision has been delayed since the receipt of evidence was completed on 15 November 2000 due to appeals, which resulted in a remitter in July 2002 from the Court of Appeal, explained further below.
5 The conduct in issues relates to Dr Lloyd's treatment of a cat, "Total Eclipse", owned by Ms Kim Koroknay, which he treated at his Gill Avenue, Liverpool practice in February 1997.
6 Pursuant to s 29(6) of the Act, the Committee appointed its then Secretary, Mr Michael Harcombe, to be the nominal complainant. The Committee was represented at the substantive hearing by counsel, Mr S J Burchett, instructed by a firm of solicitors.
7 In August 2002 the new Secretary to the Committee (Ms M Linkenbagh) advised that she would be taking over the conduct of the Committee's case. She subsequently informed the Tribunal that there had been a substantial change in the membership of the Committee, and only one of the members had any prior knowledge of the history of this matter. She put a number of views to the Tribunal as to how this Inquiry might be concluded, dealt with later in these reasons.
8 This is one of four complaints against Dr Lloyd that were referred for inquiry during 1998. All were heard together in sequence, commencing in March 1999. The parties had agreed to this course prior to the commencement of the first inquiry. The Tribunal accepted their request that all evidence in respect of the four complaints be considered before any determinations were made in respect of any of them; and any consideration was given to any further order (Transcript of Proceedings (ts) 15/3/99:3).
9 The complaints were heard over 28 days of hearing (not including other time involving hearings for directions, dealing with other motions, and further submissions and the further hearings in relation to reconstitution, final submissions and other issues late in 2002) spread initially over 22 months, commencing in March 1999 and ending in December 2000, as set out below:.
Inquiry 1: "Chisel", a dog owned by the Girgenti family: 15,16, 17, 18, 23 March 1999 (Matter No. 40004 of 1998).
Inquiry 2: "Gypsy", a horse owned by Ms Sharon Clee: 23, 24, 25, 26 March 1999; 23, 24, 25, 26, 29 November 1999; 13 December 2000 (Matter No. 40005 of 1998).
Inquiry 3: "Remus", a dog owned by the Robinson family: 21, 22, 23, 24, 25 February 2000; 11, 12, 13, 14, 15 December 2000 (Matter No. 40015 of 1998).
Inquiry 4: "Total Eclipse", a cat owned by Ms Kim Koroknay: 7, 8 June 2000; 13, 14, 15 November 2000 (the present case) (Matter No. 40016 of 1998).
10 This inquiry has been conducted by the Veterinary Disciplinary Panel of the General Division (the Tribunal): Administrative Decisions Tribunal Act 1997, Schedule 2, Part 4, Div 3, cl 7. The Panel comprises a judicial member of the General Division of the Tribunal, a veterinary surgeon who is a member of the Veterinary Surgeons Board and a lay person who represents the users of veterinary services.
11 The original Tribunal comprised the President; Dr Garth McGilvray, a non-judicial member and member of the Board and veterinary surgeon and Ms Yolande Dubow, a non-judicial member representing the interests of users of veterinary services.
12 Following the expiry of Ms Dubow's term as a member on 31 March 2000, after the hearing of evidence in Inquiries 1 and 2 was virtually complete, and with Inquiry 3 part-heard, it was necessary to reconstitute the Tribunal by replacing Ms Dubow with a new member. The new member is Ms Fiona Clark.
13 The new Panel heard the entirety of the present Inquiry, Inquiry 4 (Total Eclipse). As this matter was not affected by the need to reconstitute the Panel, the history of the rulings in that regard, and the subsequent appeal will not be set out here: see Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98 ; dismissing the appeal: Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26 (15 August 2001); upholding the appeal: Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002) .
14 The complaint as referred originated in a letter of complaint from Ms Robyn Koroknay (Ms Koroknay snr), of Liverpool, the mother of the affected animal owner, Ms Kim Koroknay (Ms Koroknay jnr). It related to Dr Lloyd's treatment of her daughter's cat, Total Eclipse, in February 1997, at his Gill Avenue, Liverpool practice. The Committee undertook a formal interview of Dr Lloyd on 24 November 1997. Ms Koroknay's letter of complaint follows:
"12.4.97
Australian Veterinary Assoc, To whom it may concern, I would like to lodge a complaint about a veterinary practice run by Mr Lloyd in Gill Ave, Liverpool. My daughter's Chinchilla cat had 4 kittens, she had been mated with another pedigree Chinchilla. Three weeks before the kittens were to be sold she was given another black persian cat 16 weeks old. She sold one kitten privately and a pet shop in Liverpool was going to buy the three other kittens. When the woman from the pet shop came to check the kittens she felt the black persian had ringworms and she would have to have her cleared by a vet. My daughter took the cat to Mr Lloyd (on the 25/2) and he cleared it stating it did not have any fungicidal infestation. So the kittens were sold 10/3. My daughter and her son both had ring worms. My daughter then took the black persian to another vet. The cat was checked with the Wood lamp which showed she did have ringworms, Mr Lloyd had not used the Wood lamp. So consequently all the cat's have had to be treated with Grisovin.
Mr Lloyd's management has caused undue worry, anxiety and expense. Mr Lloyd's handling of the animals was very ruff (sic) and his attitude very abrupt. I also have to question Mr Lloyd's hygiene in his practice. I have enclosed photocopies of all veterinary consultations. Mr Lloyd's original price for removing the tumour was $160.00. He charged me $80.00, as I am a nurse and I have been able to supply him suturing material that has been opened but not using in theatre.
Yours Sincerely
R. Koroknay"
15 Dr Lloyd's first letter in reply to the complaint given to the AVA dated 9 June 1997 gave the following explanation for his conduct:
"The dermatitis seen on Mrs Koroknay's (Daughter) cat was unlike any ringworm lesions I have seen in 22 years of vet practice. Normal fungal infection in cats, as you are well aware, exhibit
a) areas of irradiating hair loss with low grade inflammatory lesions along the circumference
b) pigmentary changes of skin and/or hairs
c) broken hairs
d) miliary eczema-like
e) seborrhea - sicca-like
f) folliculitis-furunculosis.
In the Koroknay cat, the lesions were many inflamed spots of .25cm grade in diameter with white prominent nuclei.
I did not use a Wood's lamp to eliminate the possibility of ring-worm in this cat because of the following reasons
1. It was being repaired
2. I did not believe the cat had ring worm
Although Mrs Koroknay (Junior) [sic] was adamant in her complaint that a Wood's lamp is the only method of fungal diagnosis, a negative result using this method does not eliminate the possibility of fungal infections being present, indeed 50% fluoesce - mostly microsporum-canis.
Misdiagnosis is not a final sentence and clients are always advised to return if treatment is not effective or successful as was Ms Kim Koroknay advised on 25.2.97.
I regret the inconvenience and further costs incurred by Ms Koroknay and prolonged pain caused by my misdiagnosis but a diagnosis based upon observation and history is but an educated opinion - and this is what Ms Kim Koroknay requested on 25.2.97 Further clinical pathological examination such as KOH preps, cultures, biopsy was restrticted (sic) at that time by 'economic restraints' due to stated 'limited funds' of the client. However, she was advised to return in 14 days for further investigation of this dermalogical problem if prescribed treatment was unsuccessful.
6. [sic] I have no intention of criticising Mrs Koroknay, senior or junior, re lapses of memory or its selectivity but, I do note with interest, that the complaint arisen [sic] since I declined to continue business dealings with them."
16 In its original form the notice of inquiry contained particularised Allegations numbered 1(a) and 1(b). Leave to amend the notice to include a further set of particulars, 1(c) was sought by the Committee and granted during the hearing: separate ruling, 13 November 2000.
17 The text of the notice of inquiry, as amended, follows.
"TAKE NOTICE that [the Tribunal] has received a complaint referred to it by the [Committee] that you have been guilty of misconduct in a professional respect within the meaning of s 22(c) of the Veterinary Surgeons Act 1986 ('the Act') in relation to your care, treatment and management of the cat 'Total Eclipse'.
The specific allegations which have been made against you and the particulars of those allegations are as follows:
1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons' Code of Professional Conduct ('the Code') established under s 23 of the Act and prescribed for the purposes of the s 22(c) of the Act, as follows:
(a) On 25 February 1997 you failed to carry out professional procedures in accordance with current standards of veterinary science.
(i) On Tuesday 25 February 1997, Ms Kim Koroknay consulted you to obtain your written professional opinion as to whether her cat named 'Total Eclipse' had ringworm, for the purpose of reassuring a prospective buyer of her cats. During previous consultations with you Ms Koroknay had advised you that she was in the business of breeding cats in shows, and selling cats for profit.
(ii) Despite being aware of the importance of obtaining your professional opinion as to whether Total Eclipse was afflicted with ringworm, you failed to adequately examine the cat by using a Wood's lamp or other available procedures which are standard methods or aids in diagnosing ringworm, the result being that you misdiagnosed the cat as not being afflicted with ringworm.
(iii) Furthermore, you failed to advise Ms Koroknay that she should return with the cat when you had a working Wood's lamp.
(b) On Tuesday 25 February 1997 you failed to refer Mr Koroknay to an appropriately qualified veterinary surgeon when a second opinion or referral was desirable.
(i) In circumstances where an accurate diagnosis was required immediately and you did not have the equipment to properly examine 'Total Eclipse', you failed to refer Ms Koroknay to another veterinary surgeon for the purpose of conducting a thorough investigation.
(c) On Tuesday, 25 February 1997 you signed a certificate relating to the performance of a veterinary service, which was not adequately completed to the best of your knowledge in breach of clause 5(11) of the Code.
(i) The certificate related to the performance of the veterinary service of diagnosis of the condition suffered by the cat 'Total Eclipse'.
(ii) The certificate was in handwriting on the account given to Ms Kim Koroknay by you and certified, that no fungal infection of the cat had been detected by you.
(iii) The certificate implied, that you had used all means reasonably available to a veterinary surgeon of ordinary competence in order to detect any fungal infection.
(iv) That implication was inaccurate to your knowledge, in that you had not used a Wood lamp or other available standard procedures, methods or aids to diagnose ringworm."
18 In professional discipline proceedings the burden of proving the complaint against the practitioner rests on the referring body, in this instance the Committee. The Tribunal must reach a comfortable level of satisfaction ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-3) that the behaviour alleged was misconduct in a professional respect. As the Veterinary Surgeons Disciplinary Tribunal (constituted by the Deputy Chairman, His Honour Judge Wall DCJ, Professor C Bellinger and Dr W Howey) in Re Lloyd, unreported, 16 December 1994 at 5 noted:
"The standard of proof to be discharged by the nominal complainant in proof of the complaint is based on the civil standard, i.e. proof on the balance of probabilities, but qualified having regard to the seriousness and gravity of the facts as may be proved. The standard of proof requires more than a mere balancing of the scales. It requires the Tribunal to give the evidence a close and careful scrutiny; the standard requires precise and not inexact proofs of the allegations of misconduct and requires the Tribunal to come to a conclusion that it is comfortably satisfied that the conclusion is just and correct before proof of the complaint has been established."
The Committee's "No Case" Submission
19 On 3 September 2002 the parties filed a joint table setting out "agreed facts and other matters". In relation to the present inquiry, the Committee, in contradistinction to the way the case had been run when last before the Tribunal, submitted:
"The 'charges' in respect of the cat are not pressed."
20 As to the case heard by the Tribunal, it said the Committee:
"had failed to adduce any professional evidence that the case was infested with ringworm on 25/02/97 or at any time thereafter, or that Dr Lloyd's diagnosis was not correct or possible."
21 In the same table, the statement appears under the name of Dr Lloyd: "Dr Lloyd agrees that the case cannot be made without proof of definitive diagnosis of ringworm."
22 The Tribunal informed the parties that it did not accept these submissions, at hearing on 22 October 2002 (ts 65-72). We will deal more fully with these submissions later in these reasons. In the course of that hearing the Secretary said that, based on an "assessment of the transcript", the Committee had formed the view that the "case hasn't been made out" (ts 66:22/10/02). Ms Linkenbagh did not provide any specific reasons for this global assessment, and did not differentiate between the three allegations.
23 Ms Linkenbagh was directed to provide specific reasons for these submissions. On 25 November 2002 she filed submissions prepared by Mr Leo Grey of counsel. These submissions do not possess any detail to an appropriate level as to why the case, so vigorously pressed previously, was now seen to be so defective. Those submissions turned entirely on an interpretation of the meaning of one particular; and the proposition that a failure to prove one particular must necessarily be fatal to all allegations. These matters are considered further later in these reasons.
(1) Misconduct in a professional respect: at common law
24 Section 26(1) of the Act provides that:
"A complaint may be made to the Investigating Committee that a registered veterinary surgeon -
(c) has been guilty of misconduct in a professional respect."
25 The Act contains no definition of "misconduct in a professional respect". At common law, the concept of "misconduct in a professional respect" embraces duties owed by a member of a profession to those that he or she serves and include wider duties owed to other members of the profession and the wider community.
26 The Veterinary Surgeons Disciplinary Tribunal in Re Lloyd, unreported, 16 December 1994 at 4-5, outlined the common law position as it applied to veterinary surgeons in this way:
"It is not possible to lay down a standard of professional conduct in other than general terms. Whether a departure from professional standards in a particular case constitutes misconduct in a professional respect is basically determined by peer judgment, i.e. the judgment of practitioners of good repute and competence and standing in the profession.
The leading case in relation to the formulation of the test as to whether the conduct in question is such a departure from proper professional standards of conduct as to be professional misconduct is the decision of the Court of Appeal in Qidwai v Brown [1984] 1 NSWLR 100. In that case the Court of Appeal re-affirmed the meaning of the concept of misconduct in a professional respect (the same formulation enacted in the Medical Practitioners Act 1938). The Court formulated the criteria of misconduct in a professional respect to be conduct 'which, being sufficiently related to be the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence.'
It is a well established principle of the general law that a registered veterinary surgeon has a duty to animal patients, to his profession and to the community at large and in particular to the owners of animals who place their animals in his care to practise his profession with competence and diligence. A veterinary surgeon's failure to care for and treat his animal patients with competence and diligence may amount to misconduct in a professional respect. Further, negligent conduct i.e. failing to take reasonable care to prevent injury or harm from foreseeable risk of injury or harm, on the part of the veterinary surgeon in the course of his professional practice may be misconduct in a professional respect if it is inexcusable and is such as is regarded with strong reprobation by his fellows of good repute and competence in the profession."
27 There are a number of other cases that contain useful statements of the applicable standard. For example, the landmark statement in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761 is cited with approval in the context of veterinary surgeons in Marten v Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1 at 8 per Lord Parker CJ. In the Australian context for recent statements, see for example Burton v Anderson, unreported, NSWCA, 28 October 1994 (veterinary surgeons); and Bar Association v New South Wales v Hamman [1999] NSWCA 404 at [21] per Mason P (legal profession).
(2) Deemed misconduct in a professional respect: extension of common law by Statute
28 The common law meaning of misconduct in a professional respect is supplemented by s 22 of the Act, which provides as relevant to these notices of inquiry:
"22. Misconduct in a professional respect
Without limiting the meaning of the expression 'misconduct in a professional respect', a registered veterinary surgeon shall be deemed to be guilty of misconduct in a professional respect if the veterinary surgeon:
(1) ...
(a) ...
(b) ...
(c) breaches any provision, prescribed for the purposes of this paragraph, of the veterinary surgeon's code of professional conduct established under section 23."
Veterinary Surgeons Code of Professional Conduct
29 Section 23 provides:
"23. Veterinary surgeons' code of professional conduct
(1) The regulations may establish a veterinary surgeons' code of professional conduct setting out the rules of conduct which should be observed by a registered veterinary surgeon in carrying on the practice of veterinary science.
(2) The Board may make recommendations to the Minister with respect to the code."
30 The Code of Professional Conduct is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995 (the Regulation).
31 The provisions of the code relevant generally or specifically to this complaint are set out below. Where breach of the rule gives rise to deemed misconduct in a professional respect, has following it the abbreviation "DMPR".
"Schedule 1---Veterinary surgeons' code of professional conduct
1. Basic principles
The basic principles of professional behaviour for a veterinary surgeon are:
(a) a primary concern for the welfare of animals, and
(b) the performance of professional work to a standard of competence acceptable to the profession, and
(c) no professional activities to be undertaken to the detriment of professional colleagues.
2. Animal welfare [all DMPR]
(1) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science.
...
5. Professional practice
(1) A veterinary surgeon should, at all times, diligently maintain knowledge of current standards of veterinary science. [DMPR]
(2) Professional procedures should always be carried out in accordance with current standards of veterinary science. [DMPR]
(3) Except in the case of an emergency, a veterinary surgeon should not undertake any veterinary procedure on an animal without ensuring that the owner or person in charge of the animal is made aware of the likely extent and outcome of the procedure and of its probable cost. An example of an emergency is a circumstance in which there is an immediate threat to the life of the animal concerned. [DMPR]
(4) A veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable. [DMPR]
(5) A veterinary surgeon should not refuse a request by a client for a referral or second opinion. [DMPR] ...
(11) A veterinary surgeon should not sign a certificate relating to the performance of a veterinary service unless:
(a) the certificate is accurately completed to the best of the veterinary surgeon's knowledge, and
(b) the surgeon has personally performed or supervised the performance of the service. [all DMPR]
(12) When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation. [DMPR] ..."
32 We had understood during the course of this inquiry and the related inquiries that the above analysis of the law relating to misconduct in a professional respect in the provision of veterinary services was not a matter of dispute between the parties. For example, Mr Inverarity, counsel for Dr Lloyd at hearing, did not make an issue of the applicable law. His submissions were directed, appropriately, to the question of whether the Tribunal could be satisfied on the evidence to the relevant standard in relation to the allegations and the particulars in support.
33 However the new Secretary, Ms Linkenbagh, submitted to the Tribunal by letter dated 3 September 2002 that:
"The members understand that these are disciplinary proceedings and that the role of the Veterinary Surgeons Investigating Committee is to assist the Tribunal in ensuring that all relevant evidence is made available to the Tribunal. They also understand that the proceedings are protective proceedings and that the purpose of disciplinary action is not to punish, but to rehabilitate educate and redirect the veterinarian, at the same time balancing the interests of the veterinarian and consumers and the public in the maintenance of appropriate professional standards."
34 This statement misconceives the purpose of disciplinary proceedings of the present kind where misconduct in a professional respect is alleged.
35 The fundamental object of all disciplinary proceedings is the protection of the public. In the veterinary context, there is a further object of great importance, the welfare of animals. There is no reference at all to this objective in the above statement from the Committee.
36 As Kirby P said in Burton v Anderson (unreported, Court of Appeal, 28 October 1994):
"The public in this regard includes not only the human owners of animals, but other veterinarians and the like who must be relied upon, in the nature of things, to initiate and prosecute complaints against veterinary surgeons. It also includes the animals themselves. One of the ultimate purposes of ensuring and maintaining high standards of professional care on the part of the veterinary surgeons is to prevent cruelty and pain to animals. Such cruelty and pain is not simply wrong because humans feel it to be so. It is wrong because the animals cared for by veterinary surgeons are sentient creatures, sharing with human beings a capacity to suffer pain by both action and neglect."
37 Professional misconduct inquiries do not have as their primary object, as the Committee's statement would seem to suggest, to "rehabilitate educate and redirect" professional practitioners. The key purpose always is protection of the public and the welfare of animals. The "rehabilitation" objective is of significance, we accept, when dealing with less serious complaints that are proven. The role of the Committee does not extend to seeking to prevent the practitioner continuing to practice. The orders open to the Committee in respect of less serious complaints under s 28(1)(b)(iii) bear, we recognise, directly on the goal of reeducation and redirection. However, in the case of more serious complaints where there is proven, prima facie, misconduct in a professional respect, the range of sanctions open to be exercised by the Tribunal (and not available to the Committee) extends to powers to order removal from practice and deregistration. At this point, the protection of the public and the welfare of animals become even more important primary objects of the process of inquiry.
38 Nor is it the purpose of profession discipline proceedings that make allegations of professional misconduct (as here) to seek to achieve outcomes which have as their aim "balancing the interests of the veterinarians and consumers and the public in the maintenance of appropriate professional standards". The common law test for professional misconduct, as set down by Priestley JA in Qidwai v Brown [1984] 1 NSWLR 100 has two limbs. The first limb relates to the adequacy of the conduct of the practitioner under notice and whether that conduct is such a departure from proper professional standards as to amount to misconduct in a professional respect. The second limb is to determine whether it is conduct that would reasonably incur the strong reprobation of veterinarians of good repute and competence. When determining guilt, the Tribunal is not involved in an interests-balancing exercise.
39 In assessing guilt and the gravity of any departure from proper professional standards, there remains always the need to ensure that veterinarians of appropriate expertise give evidence. The veterinary member of the Tribunal has a special role to play in evaluating that evidence, as well as the explanations given by the practitioner for the conduct under notice: Kalil v Bray [1977] 1 NSWLR 256 .
40 After the finding of guilt a balancing exercise is required in relation to the issue of the appropriate order. Not in every instance of professional misconduct will it transpire that removal from practice is warranted. As Her Honour Judge Latham, Deputy President, in Gelderman v VSIC [2001] NSWADTAP 27 noted at [17]:
"In determining whether a practitioner found guilty of misconduct should be permitted to continue to practise, the Tribunal must, amongst other things, balance the public interest in allowing competent practitioners to practise, against the likelihood of a repetition of the offence. 'The public interest in allowing the practitioner to continue to practice must be weighed against the public interest in protecting patients from any repetition of the conduct exhibited in the case': Buttsworth v Walton (unreported, Court of Appeal, 19 December 1991) at 15."
Dr Lloyd's Formal Reply to the Allegations and Particulars contained in the Notice of Inquiry
41 The following matters of fact were admitted by Dr Lloyd: there was a consultation on 25 February 1997; and that a Wood's lamp was not used. It was also said that ringworm was not diagnosed. There was no particular to the effect that the cat definitely had ringworm on presentation. So this "admission" needs to be seen in that light.
42 Allegations 1(a), (b) and (c) were denied.
43 Evidence in support of the allegations was given by Ms Kim Koroknay and the original complainant, Ms Robyn Koroknay. They each filed statements and gave oral evidence. (We note that there was a difference between mother and daughter over when the daughter first saw the complaint. The mother believes it was before the complaint was sent to the AVA; the daughter afterwards. We do not regard this as a significant matter.) Dr Lloyd gave oral evidence to the inquiry and was cross-examined.
44 The Tribunal had before it the explanation from Dr Lloyd given in response to the original complaint dated 9 June 1997 (set out above); the transcript of the interview between Dr Lloyd and the committee conducted on 24 November 1997; and a consultation history record from another practitioner, Dr Meek, who examined the cat on 10 March 1997 and diagnosed ringworm.
45 Expert evidence was given by three experienced practitioners in general practice. The Committee called Dr William Ashe Bradley, Ku-Ring-Gai Veterinary Hospital, while Dr Lloyd relied on the expertise of Dr T Theakstone, Ryde Veterinary Clinic, and Dr James Driver, Macquarie Animal Hospital. Each had filed written reports and gave oral evidence.
46 Ms Koroknay jnr along with her mother had a long-standing interest in cats, and was familiar with the great risk of cross-infection that skin conditions, in particular ringworm, presented.
47 Dr Lloyd has submitted, especially in closing submissions on 29 November 2002, that Ms Koroknay snr initiated this complaint against him because she had fallen out with him over a deal he had given her in relation to his services.
48 Ms Koroknay snr said that she first took a pet (her son's dog Ben) to Dr Lloyd in early 1996. During that first consultation, she revealed to Dr Lloyd that she was a nurse. He asked her whether she could get suturing material for him. Mr Koroknay said she could (nurses could take unwrapped but otherwise unused and otherwise sterile suturing material, and this was acceptable for use by veterinarians). She said he said you will "have a vet for life" if she could. She agreed to do so. Ms Koroknay snr started intermittently delivering to the surgery suture material and other sterile items (drains and oxygen tubing) from the hospital at which she worked. She did this until early 1997. Although there was no formal exchange, Dr Lloyd gave her partial discounts on some medications and fees for services.
49 Dr Lloyd saw this arrangement as lying at the heart of the Koroknays' disaffection with him giving rise to the complaint. In his original reply to the complaint he alleged that it stemmed from dissatisfaction on the part of the Koroknays since he "declined to continue business dealings with them." In his statement of 25 November 1998, he said that he refused to continue to provide "free" services in exchange for the suturing material.
50 Dr Lloyd's statements do not give an account of the circumstances under which he declined to continue these dealings. Cross-examination on behalf of Dr Lloyd proceeded on the basis that Ms Koroknay snr received "cheap" services. It was never put to her that she received "free" services. No details were put to Ms Koroknay as to when and why the relationship ended, other than the assertion that it had occurred well before any complaint was made, which was denied. While Ms Koroknay did not think the term "cheap" was the appropriate description, she was consistent in her evidence that she got discounts as a result of providing the surgical items (ts 68-9:7/6/00). We accept Ms Koroknay snr's evidence that she ceased providing material to Dr Lloyd after she became dissatisfied over the treatment of Total Eclipse, and not because of any consideration to do with the cost of Dr Lloyd's services. We reject Dr Lloyd's statements in his original reply and the statement seeking to impugn Ms Koroknay snr's motives in lodging the complaint.
51 Ms Koroknay jnr said that she had visited Dr Lloyd twice prior to the events giving rise to this inquiry. On the first occasion, in mid-September 1996, she took her adult cat, a Chinchilla named Sophie, to be cleared as free of feline leukaemia, to enable her placement in a cattery for breeding. She said that on the occasion of that business she explained that she was taking up breeding (statement, 21 January 1999; ts 36). She said she could not find the certificate, nor could the breeder who she had contacted prior to giving evidence.
52 Sophie later had four kittens. In the week beginning 17 February 1997 Ms Koroknay took the kittens to Dr Lloyd to be vaccinated.
53 There is no evidence from Dr Lloyd on whether or not he had any contact with Ms Koroknay jnr prior to the consultation in issue.
54 He does deny that he ever knew Ms Koroknay jnr was involved in breeding cats, including after the consultation giving rise to these proceedings. We accept Ms Koroknay's evidence that she had in the first of her consultations (for the feline leukaemia certificate) informed him of her interest in breeding.
55 Early in February Ms Koroknay jnr had purchased another adult cat, a Persian named Total Eclipse, who at the time was 16 months old. She was interested in taking up cat breeding on a small scale.
56 She had arranged to sell one kitten privately. She had approached a pet shop to sell the other three. The pet shop owner visited her home soon after the vaccination to inspect the kittens. In the course of the inspection the pet shop owner noticed Total Eclipse and expressed concern based on its appearance that it might have ringworm.
57 Consequently she took Total Eclipse to Dr Lloyd at his Gill Avenue, Liverpool practice on 25 February 1997.
58 Consultation. Ms Koroknay jnr said that after a short wait at reception, she entered the consultation room. She said that Dr Lloyd saw that Ms Koroknay had a child with her and was aware the child was her son.
59 She said she told Dr Lloyd that her cat had "lumps". She said that the cat had dry white sores on its skin. There were patches of missing fur in the same areas as the sores. She said that Dr Lloyd looked at the cat's skin. She said that he rubbed the skin with his fingers but did not part the hairs.
60 She said that she explained that the pet shop owner had visited Ms Koroknay's home, to see the kittens which were with their mother, Sophie. The pet shop owner was happy with the condition of the kittens but she noticed the presence in the vicinity of Ms Koroknay's other cat, Total Eclipse. She looked at him and thought he might have ringworm. Ms Koroknay said she only had had Total Eclipse for three weeks. The pet shop owner said she needed a clearance for ringworm before buying the kittens. She said she told this to Dr Lloyd, and he replied to the effect - "You should have locked Total Eclipse in another room, so she [the pet shop owner] couldn't see her." Ms Koroknay gave a slightly different version of the conversation at hearing referring to a "wardrobe" and then later again to "room". Otherwise her account was consistent, including under cross-examination. Dr Lloyd denied the conversation. We accept Ms Koroknay's account.
61 Diagnosis. During the consultation, Ms Koroknay said that she asked Dr Lloyd whether her cat had ringworm. Dr Lloyd told her that it did not. He told her it had bacterial dermatitis. He also said that the cat's nasal discharge may indicate upper respiratory tract infection. He prescribed medication for these conditions.
62 We are satisfied that in making his diagnosis he relied entirely on his observations of the condition of the animal and on manual inspection of its coat and the damage to the scalp.
63 Injection. She said that Dr Lloyd then injected the cat with 2mg of Dexamethasone (an anti-inflammatory cortico-steroid). He explained that it would bring down the inflammation of the skin.
64 Prescription. The medication was a course of tablets which he identified to her as Amoxil antibiotics. He prescribed 50mgs of Amoxil to be taken twice daily for seven days. He said that this would treat the nasal discharge. Dr Lloyd also suggested to Ms Koroknay that she should apply Sebolyse shampoo to the cat's sores. Ms Koroknay could not recall under cross-examination (ts 7/6/00:40) whether Dr Lloyd had given her this shampoo. She said she may have had some shampoo at home at the time. But she specifically recalls receiving this advice, and bathing the cat.
65 Request for Statement. Ms Koroknay said she then asked Dr Lloyd if he would give her a written statement that the cat did not have ringworm. Dr Lloyd agreed. At the end of the 5-10 minute consultation, Ms Koroknay walked back to the waiting room. She watched as one of Dr Lloyd's employees typed her computer generated account. In the proceedings, the account is referred to as an "invoice" by Ms Koroknay and as a "receipt" by Dr Lloyd. The account reads "Bacterial Dirmititis [sic] - $25.00/Dex Injection $5.00/Amoxil $10.00".
66 On the front of the account, Dr Lloyd handwrote the words: "No fungal infection detected. RGL".
67 Clinical Record. Dr Lloyd's clinical record contains in his handwriting the following: "Diag. Bact. Dermatitis. Rx 2mg Dex Inj & Amoxil 50 mg BID [twice daily] Recheck in 14 days if not OK." The amounts 25, 10, 5 for total of 40 are written at the side. These were references to the cost of the items and services.
68 Advice of Return Consultation. Ms Koroknay said that Dr Lloyd gave her no advice as to whether or when to return for another consultation. On this matter, in light of Dr Lloyd's record card, we think that it is likely that he would have advised her to come back in 14 days if there was a problem.
69 Visit to Mother. Sometime later on 25 February 1997 after the consultation, Ms Koroknay visited her mother. Ms Koroknay snr confirmed that her daughter told her that she had taken Total Eclipse to Dr Lloyd's surgery that day. Ms Koroknay jnr showed her mother the account with the handwritten statement on it.
70 Treatment by Ms Koroknay. In the two weeks following her consultations, Ms Koroknay says that she administered the course of Amoxil orally, as directed by Dr Lloyd. She also bathed the cat in Sebolyse 2-3 times a week. However, she saw no improvement in the cat. About one week after 25 February 1997, Ms Koroknay phoned Dr Lloyd's surgery. Dr Lloyd did not speak to Ms Koroknay but he said that he did try to return her call.
71 Ringworm affecting Owner and Son. About 2 weeks later Ms Koroknay jnr and her son, aged six, had developed sores. Ms Koroknay was deeply concerned that they may have had ringworm and that after speaking to her mother she decided to take the cat to another veterinarian (Dr Meek) who she had consulted in the past.
72 She said, and we accept, that the cat had lesions in the same areas as had been the case two weeks previously and still had discharge coming from its ears and nose.
73 Consultation with Dr Meek. Dr Meek took a history from Ms Koroknay and held a Wood's lamp to the lesions. She recorded that broken hairs fluoresced under the lamp. Dr Meek diagnosed ringworm. She prescribed Grisovin and the use of Sebolyse shampoo. She also diagnosed the cat as having an upper respiratory tract infection, for which she prescribed Clavolux and Tricin Eye Ointment.
74 Sale of Kittens. Earlier that day Ms Koroknay jnr had sold the three kittens to the pet shop owner relying on the note given to her by Dr Lloyd, hand-written on the fee invoice. Some days later she contacted the pet shop owner, and was told by her that she had had to treat all 3 cats for ringworm.
75 Visit to Casula Veterinary Hospital. About a week later, Ms Koroknay returned to Casula Veterinary Hospital with Total Eclipse and there was still some fluorescence.
76 Health Effects on Owner and Son. In her statement (Ex T6) Ms Koroknay described the personal dislocation for her and the emotional trauma caused to her son by the ringworm. She also referred to the effect of these events on her reputation as a dealer. Ms Koroknay's son was afflicted with ringworm for the following 6 months and required specialist treatment. Ms Koroknay stated that her boy had to undergo prolonged treatment and the use of medicinal creams before overcoming the infection. She said he suffered taunts and ostracism at school. She had to engage in repeated cleaning of her home in an attempt to eradicate sources of continued infection. Ms Koroknay said she had about 5 ringworm patches on her arms and chest for about 6 months.
77 Complaint, 12 April 1997. Ms Koroknay snr's written complaint dated 12 April 1997 was triggered by concern at these developments.
78 In his statement to the Tribunal, dated 25 November 1998, Dr Lloyd said that Ms Koroknay said to him, "My cat's got some strange lumps on it, will you have a look?". He said that the skin lesions were situated on the right and left flank areas. On the other hand, he said in evidence (ts 127) the lesions were very obvious as they were along the lateral lumbar area of back.
79 In the statement, he said that he observed many separate non-circular lesions which were elevated red areas with white calcified plaques at the centre. He said that they were solid and hard to touch. He said that the animal did not experience any pain on palpation of these areas, nor were there any broken or fragmented hairs around the lesions.
80 He said that the absence of broken or fragmented hairs around the lesions was not indicative of ringworm. He advised Ms Koroknay that in his opinion the cat had "dermatitis of bacterial origin." He said that it was not necessary to part the hair of the cat to observe the lesions.
81 He said in explanation of his decision not to part the hairs that the hair was very short. He said he found no broken hairs. He said in his original letter of reply (9 June 1997) that he observed "many inflamed spots of .25cm grade in diameter with white prominent nuclei."
82 In his statement for the Tribunal (25 November 1998) he said that they were skin lesions, with elevated areas that were non-circular. He also said in his statement that during the examination Ms Koroknay jnr did not mention anything about herself or her children having lesions, nor did she mention that she was selling kittens or the cat was being examined at the suggestion of any pet shop lady. Dr Lloyd said that she did not tell him that she was breeding cats for sale.
83 He stated that he proceeded to treat the cat by applying antiseptic to the lesions, Ivone. This is not recorded on his card. He said he then administered 2mgs of Dexamethasone by injection subcutaneously and prescribed Amoxil antibiotics at dose rate of 50mgs twice daily for a period of 7 days and advised her to bring the cat back within 14 days if there was no improvement.
84 He said that at the front desk while paying for the consultation she said to him, "Will you write on the receipt that there is no ringworm." He said that he wrote on the receipt, "No fungal infection detected." He said that before she left he said to her "try washing the cat in a bath of colourless iodine or Ivone solution. That will prevent the spread of any more dermatitis."
85 The Tribunal accepts Ms Koroknay jnr's account on the following matters that were disputed by Dr Lloyd. We are satisfied that Ms Koroknay jnr:
(i) told Dr Lloyd previously that she was a breeder and on the present occasion did so again, and told him she was trying to sell her kittens;
(ii) was told by Dr Lloyd that she should keep Total Eclipse in another room while the pet shop owner inspected the kittens;
(iii) told Dr Lloyd that there were broken hairs around the sores;
(iv) described what she had observed in a number of ways, repeating the words "lumps" and "crusty".
86 We do not accept the statement made in Dr Lloyd's initial response to the AVA that "The dermatitis seen on Mrs Koroknay's (Daughter) cat was unlike any ringworm lesions I have seen in 22 years of vet practice." The descriptions given by Ms Koroknay jnr both in her written statements and at hearing were within the range of the typical features found in cats presenting with ringworm. We were satisfied that Ms Koroknay jnr's evidence of her observations was honestly given.
87 Dr Lloyd's observation of lesions should have been sufficient in its own right to raise in the mind of any veterinarian the possibility that the cat might have ringworm.
88 While Ms Koroknay was uncertain as to whether Dr Lloyd gave her Sebolyse or she used her own, we are satisfied that he did suggest to her that she use Sebolyse (a generally available cat shampoo).
89 Dr Lloyd sought in his evidence consistently to play down the significance of the note that he included on Ms Koroknay's invoice. Much time was given over to the question of whether Ms Koroknay referred to the possibility of ringworm in the course of the consultation and asked at that time for a note from Dr Lloyd as to his diagnosis. We are satisfied that she did. But even if, as Dr Lloyd claimed, she had not asked for a note during the consultation, it would not in our view have made any difference in relation to the professional standards required to be observed by Dr Lloyd.
90 We are satisfied that Ms Koroknay came to the consultation specifically concerned about the possibility of ringworm. She was in the course of selling the kittens of Sophie. There was a need for her to give a guarantee to the pet shop owner that Total Eclipse was clear. In these circumstances, we think it is highly probable that Ms Koroknay would have taken an early opportunity to ask Dr Lloyd for a statement.
91 As to other matters in dispute about the circumstances of the consultation, we are satisfied that Ms Koroknay's son was with her at the time of the consultation. We are also satisfied that Dr Lloyd did not ask her about whether she had any other cats. We do not see this as a major matter, as we are also satisfied that Dr Lloyd was aware that Ms Koroknay jnr had other cats from the fact of the consultation a few days' before when he had vaccinated them.
92 Costs. In his original letter Dr Lloyd refers briefly to this as a factor in his approach (see original letter) and then says (in his main statement) that his dispute with the Koroknay family arises from "my refusal at that time to continue to provide free veterinary services to Ms Koroknay's mother in return for the provision of suture material from the hospital at which her mother works." It will be seen that this explanation is not one related to any alleged lack of means on the part of the Koroknays but rather concerns the alleged breakdown of the barter agreement.
93 Ms Koroknay said that at no time did she say anything to Dr Lloyd about costs. In particular, we reject Dr Lloyd's statement that Ms Koroknay jnr said to him she wanted the cheapest treatments possible. We accept Ms Koroknay's evidence in that regard.
94 We are also satisfied that the Koroknays were not motivated by any ill will in bringing this complaint because of the non-continuation of the arrangement with Ms Koroknay snr that she provide Dr Lloyd with unwanted suture material.
Adherence to Current Standards of Veterinary Science
Allegation 1(a): On 25 February 1997 you failed to carry out professional procedures in accordance with current standards of veterinary science.
95 As noted earlier in these reasons the new Committee through its new Secretary joined in Dr Lloyd's submission that the entire case against him must fail if it was not proven that Total Eclipse definitely had ringworm when it was presented for examination. No detailed basis for this opinion was provided, and as a result the Tribunal asked for written submissions in support from the Committee.
96 Written submissions were filed 25 November 2002. The written submissions were signed by the Secretary. We were informed that most of the text (the paragraphs were identified) was prepared by Mr Leo Grey of counsel. These submissions sought to develop a case as to why the Committee's prosecution was unsound.
97 It is apparent from Mr Grey's advice that he did not have the transcript of the submissions made at the close of evidence by opposing counsel (Mr Burchett for the Committee and Mr Inverarity for Dr Lloyd) on 14 November 2000.
98 Mr Grey's and the Secretary's fundamental contention is that the case against Dr Lloyd must fail if the last words of Particular (ii) of Allegation 1(a), is not established i.e. "the result being that you misdiagnosed the cat as not being afflicted with ringworm." A similar point was made by Ms Linkenbagh on 22 October 2002 when discussing issues to do with the certificate charge (Allegation 1(c)). She said (ts 67) that the statement on the certificate that there was no sign of fungal infection was only false if the cat had ringworm on the day. This repeats the same misunderstanding. We refer to Dr McGilvray's comment in reply at this point of the proceedings: "It's implied that some investigation was carried out to eliminate the possibility."
99 There are a number of other misunderstandings connected with this submission.
100 First, the failure to prove one aspect of a set of particulars supporting an allegation will not of itself deprive the allegation of force. An allegation can be made out to the relevant standard, without all particulars being proved. The question always is whether the particulars that have been proved are sufficient to establish the charge or allegation to the relevant standard.
101 Equally, where the allegation is found proven, the failure to prove some of the particulars (for example a heinous one) may bear on the question of what is an appropriate sanction. In our view Dr Lloyd's counsel at the main hearing, Mr Inverarity, dealt with this matter appropriately. He drew attention to the opinion provided by Dr Bradley that a diagnosis could be made on the available evidence that the cat definitely had ringworm on the date of the consultation. He did not submit that this opinion meant that the entire case of the Committee must fail. While that may have been Dr Bradley's opinion, that is not the basis upon which the allegation is made.
102 This point links to the second misunderstanding. It is self-evident, we consider, that the case brought by the Committee was one, fundamentally, of failure to use appropriate diagnostic techniques in relation to a presentation which should have signalled to a competent practitioner that ringworm needed to be definitively excluded as a diagnosis. Particular (ii) read as a whole conveys adequately that that was the case to be met. The last words, on which the present submissions depend, have been misinterpreted. The words are: "the result being that you misdiagnosed the cat as not being afflicted with ringworm". These words are not asserting that the cat had ringworm at the time.
103 In any event, even if the words had the connotation for which Dr Lloyd (and now the Committee contends), there would still be a case of possible misconduct in a professional respect to address if either of the first two elements of Particular (ii) are found established, i.e. awareness of the importance to the owner of ascertaining whether the cat was so afflicted, and failure in those circumstances to use standard methods or aids in diagnosing ringworm such as a Wood's lamp.
104 We are satisfied that the state of the cat's skin and coat was as described by Ms Koroknay. Dr Lloyd has a case to answer on the basis of such a presentation; regardless of what an owner without special training or expertise might have thought the problem was.
105 Finally, we refer to a submission made by the new Secretary at para 4.1 of the submissions filed 25 November 2002. She said it was "open to the Tribunal to conclude that the evidence is that after the $25 consultation which the client requested, Dr Lloyd formed a reasonable opinion as to the cause of the lesions he observed on the cat and prescribed a treatment which was suitable, and which covers the possibility of ringworm in any event."
106 The reference to cost carries the connotation that the client got what she bargained for by way of a professional service. We have dealt with issues as to costs elsewhere in these reasons.
107 The case as particularised by the old Committee is much wider than depicted in the above statement by the new Secretary. It went to such matters as the question of the adequacy of the diagnostic techniques used in the circumstances, the inappropriateness of making an exclusive, definitive diagnosis when a differential diagnosis should have been maintained, the need to consider referral and the issuance of a certificate. It can sometimes happen that an incompetent diagnosis leads to a prescription for the perceived condition which happens to work for the actual condition that was not perceived. We fail to see how that can be an extenuating factor in relation to the original incompetence. We are not called on to, and do not make any findings of the kind now said by the new Committee to be open to us to be made.
108 We now turn to the substance of the allegations. The references to the Committee which follow are to the Committee as represented at the substantive hearing.
109 Adequacy of Diagnosis. The notice of inquiry alleges that Dr Lloyd failed to uphold proper standards of veterinary practice in that the presenting signs were such as to require him to do more than merely rely on observations and manual inspection. In particular he should have used a diagnostic aid, and as a minimum in that regard a standard piece of equipment, the Wood's Lamp. Dr Lloyd said in his letter of explanation following Ms Koroknay snr's complaint to the AVA that at the time he did not have his Wood's Lamp available to him as it was away being repaired. In any case he asserted that his diagnosis was a reasonable one based on the presenting signs and he did not consider using a Wood's Lamp.
110 Statement as to Condition of Cat. The Committee alleges that Dr Lloyd failed to uphold proper standards in issuing the certificate to Ms Koroknay jnr. The Committee asserted that it constituted a veterinary certificate, and was not of a standard or form that met the requirements governing such certificates. Dr Lloyd disputed that the note amounted to a certificate, and did not consider that it contained any statement to which adverse professional consequences should attach.
111 Expert Evidence. As noted earlier, expert evidence was given by Dr W A Bradley, Dr T Theakstone and Dr James Driver as to acceptable current practice. One of the difficulties that has arisen in this and the other cases (perhaps unavoidable) is that the experts called by either party tended to base their opinions on one version of events that were in dispute. The Tribunal will proceed to consider the expert evidence to the extent that it is based on the version of events preferred by the Tribunal.
112 For the most part the value of Dr Bradley's opinions is not adversely affected by our findings of fact. On the other hand we are of the view that most of the opinions expressed by Dr Driver can not be given great weight as they are based entirely on Dr Lloyd's version of critical events, much of which we have rejected. The matters on which we have preferred the evidence of Ms Koroknay jnr includes the presence of split hairs in the coat of Total Eclipse at the time of initial presentation, the location of lesions and Ms Koroknay's request for a written statement. In the case of Dr Theakstone some of his opinions have been disregarded for the same reason.
113 On the whole, the Tribunal accepts the criticism made by Dr Bradley of Dr Lloyd's care, management and treatment of Total Eclipse. We do not propose to recite his evidence at length here (see Ex T19 and ts 7/6/00:70 - 8/6/00:32). A summary of our conclusions follows.
114 General Conclusions. We note that Dr Lloyd had at that time and continues to have a substantial practice in relation to domestic cats and in particular in relation to pure bred cats presented at shows.
115 We consider that a veterinarian, faced with the physical manifestations found on the skin and coat of this cat, would have considered ringworm to be a real possibility as part of a differential diagnosis. A veterinarian should take great care before conclusively ruling out ringworm in circumstances of the kind that were present in this case. The potential consequences of ringworm for both other cats and humans are well known (and ultimately occurred in this case). Care must be taken in attributing a diagnosis to any skin condition, given the relatively limited range of manifestations.
116 Differential Diagnosis. Ringworm is a dermatitis which has many manifestations. In our view, the evidence of Ms Koroknay and the observations made by Dr Meek combine to support the conclusion that there was nothing so unusual about Total Eclipse's condition as to support Dr Lloyd's suggestion that it was a highly unusual presentation, falling outside the normal range of potential ringworm cases. But even if an unusual skin problem is presented to a practitioner, the current standard in veterinary science still requires that bacterial and fungal dermatitis are minimum considerations in a list of differential diagnoses which should occur to a practitioner.
117 Moreover, there is nothing in the clinical record to support Dr Lloyd's view that this was an unusual case. He did not note any features that took the case outside the usual. A competent practitioner would have made such a note. He made no detailed note of one of the medications used, Ivone; or the treatment regime in respect of the Amoxil. A competent practitioner would, we consider, have made quite detailed notes on all of these matters if the case was the most unusual he had seen in over 20 years. The absence of any information of this kind supports the inference that was a routine or standard presentation.
118 In cases of this kind a practitioner should avoid firmly adopting a definitive diagnosis without considering all likely possibilities. He should assess the possible diagnoses with the assistance of history and appropriate diagnostic testing. If fungal dermatitis has not been definitively excluded as a possible diagnosis, the practitioner should warn the client that the skin condition has zoonotic potential [animal disease that is transmissible to humans]. The practitioner should also inquire as to whether the client has other animals or family members in proximity to the affected pet. The practitioner may advise the client on effective ways to reduce the zoonotic potential of a possible fungal condition.
119 Diagnostic Aids. Consequently, apart from visual observation and manual examination of the affected region and of the coat of the animal, a check should be undertaken using an appropriate diagnostic instrument. The most basic diagnostic aid for distinguishing fungal from bacterial dermatitis is a Wood's lamp. It is open to veterinarians to use higher order diagnostic aids than the Wood's lamp.
120 We do not regard as acceptable Dr Lloyd's explanation for not having available to him in his surgery a Wood's lamp. If a lamp must be put in for repair it is incumbent for any veterinarian with a practice that involves assessment and treatment of cats to ensure that a working replacement lamp is available or alternative higher level diagnostic tests are available for use.
121 Nor do we accept Dr Lloyd's or Dr Driver's opinion that there is no value in using a Wood's lamp and there is significant likelihood of false positives. We accept Dr Bradley's opinion that a Wood's lamp would rarely produce false positives when used by an experienced veterinarian. The luminescence of fungal and non-fungal material is very distinctive.
122 Verification of Initial Result. We accept Dr Bradley's evidence that in the event of a negative result, the result should be verified by doing a fungal culture or biopsy. Both procedures should be undertaken by a veterinarian who purports to carry out an examination to exclude a zoonotic disease and sign a certificate.
123 If a practitioner does not have access to a Wood's lamp or lacks confidence in the accuracy of its results, as Dr Lloyd has now said after the event, then the practitioner ought to begin by doing a fungal culture or biopsy.
124 (In Dr Lloyd's statement filed 25 November 1998, he indicated that in October 1998 (about 18 months' after inspecting Total Eclipse) he performed about 180 veterinary inspections at a cat show. He inspected all of these cats with a Wood's lamp. He said that 12 out of the 180 pure bred cats tested positive for Wood's lamp fluorescence without any other indications of ringworm being present. It is not clear from Dr Lloyd's statement whether this was a new practice on his part, or one that he had routinely followed over the many years that he has worked with cat breeders and cat shows.)
125 We are satisfied that Dr Lloyd, a surgeon of experience, failed to observe current standards of veterinary science as they apply to the care and treatment of small domestic animals in a normal B class veterinary hospital.
126 Cost as a Factor in the Provision of Diagnoses. Dr Lloyd has contended that as he practised in what he saw as a low socio-economic zone of the city (the western suburbs near Liverpool), he could only practically give a limited service, as to do otherwise be too costly for the people in the area. Therefore he proceeds on the basis of making "the most likely diagnosis only invoking tests if that procedure does not work" (statement filed 25 November 1998).
127 It is clear that the Parliament has required that the services rendered to consumers in New South Wales must always be those that adhere to contemporary standards, in relation to a variety of matters, in particular the making of diagnoses and, in particular in cases of unusual presentation (as Dr Lloyd asserts was the case here) keeping under consideration a range of possible explanations.
128 We acknowledge that for all owners issues of cost will play a part in the making of choices as to services. It is vital that the veterinarian give the owner practical information about these matters, including the range of appropriate treatments and their costs, as well as explaining any implications that the treatments have for the comfort of the animal. It is not acceptable for a veterinarian to withhold basic information of this kind. It is not acceptable for stereotypical assumptions to be made about clients, and in that way limit the nature of the professional service rendered.
129 Mere Negligence. It is accepted that "mere negligence" in the provision of a professional service is not enough to constitute misconduct in a professional respect. In Kalil v Bray [1977] 1 NSWLR 256 (a veterinary case):
"It may be conceded that an erroneous diagnosis or an administration of wrong treatment may well, in ordinary circumstances, fall short of constituting misconduct in a professional respect. Full weight must be given to the colour attaching to the word misconduct. On the other hand, it is not without significance that, in the passage quote from Re Veron (1966) 84 W.N. (Pt 1) (NSW) 136, at p 143, the reference is to mere negligence. The wrong diagnosis or the wrong treatment must, to meet the ground charged, be attended by elements rendering the conduct such as reasonably to be regarded as disgraceful or dishonorable by veterinary surgeons of good repute and competency. A negligent professional action which might, in its inception, fall short of meeting this test could well, when compounded by subsequent conduct, be capable of being placed in the disgraceful category."
See also Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200-202 per Kirby P.
130 We are satisfied that the present case goes beyond "mere negligence" and that the allegation of misconduct in a professional respect is established to the relevant standard. The initial error (failure to test for an obvious possibility) was compounded by subsequent conduct, such as inadequate provision of information to the owner, failure to use basic diagnostic aids, issuance of a certificate of assurance that an obvious possible condition was not present.
Allegation 1(b): On Tuesday 25 February 1997 you failed to refer Ms Koroknay to an appropriately qualified veterinary surgeon when a second opinion or referral was desirable.
131 Non-Referral. Ideally in the absence of a Wood's lamp, Dr Lloyd should have employed other diagnostic aids. It was not satisfactory for the reasons that we have given that he relied entirely on visual and manual examination.
132 In these circumstances Allegation 1(b) is established. We are satisfied that Dr Lloyd should have, and failed, to refer the cat to another veterinarian for examination.
133 For three reasons, Dr Lloyd should have dealt with the issue immediately. One, the cat was kept with other cats. There was a risk of cross-infection. Two, it is well understood that ringworm is highly contagious and is an inter-species condition. Accordingly there was a risk to humans in the vicinity of the cat. Three, Ms Koroknay jnr had an immediate commercial need, as the ringworm clearance was needed to meet as essential requirement of a prospective buyer.
134 Misconduct. In many situations, an omission to refer a case to another practitioner would clearly not be sufficient to constitute misconduct in a professional respect. In this case, however, we are satisfied that the presentation which Dr Lloyd encountered was one that any competent veterinarian would have seen as appropriate for the use of a Wood's lamp (a standard item of equipment) or some other form of diagnostic aid. In these circumstances it was incumbent on the veterinarian to adopt an approach which was more protective of the health of the animal and took account of the risk of inter-species transfer. Because of his lack of adequate equipment, he should have taken action to refer the animal to another veterinarian with a Wood's lamp or other diagnostic aids. We note that the standard under the Code, cl 5(4) is a broad one. A referral should occur wherever that is "desirable". This was clearly such a case. We are satisfied that the allegation of misconduct in a professional respect is established to the relevant standard.
Allegation 1(c): On Tuesday, 25 February 1997 you signed a certificate relating to the performance of a veterinary service, which was not adequately completed to the best of your knowledge in breach of clause 5(11) of the Code.
135 Certificate. A veterinary surgeon who is asked for a written verification and record of their professional opinion should adhere strictly to the provisions of the Code. A practitioner must only sign a document relating to his or her provision of a veterinary service, if he or she has personally performed or supervised the service and if the certificate accurately reflects the knowledge ascertained by conducting that service.
136 There were submissions put in this case, initially by Dr Lloyd (and recently by the new Committee) that the handwritten note on the invoice was not a "certificate". A signed document does not escape the Code provisions for a "certificate" merely because it does not comply with the usual form of Veterinary Certificates (for example, if it is not on letterhead or in a pro forma document). A document signed by a veterinary practitioner which expresses an opinion, formed within the scope of normal practice, is a professional opinion. The public relies and ought to be able to rely on such an expression of opinion. It is irrelevant whether a practitioner has actual knowledge of the possible readers of a signed document. A professional opinion remains a professional opinion whatever the documentary form. Any document signed by a practitioner which does not comply with the Code undermines the value of all practitioners' opinions and the integrity of the profession.
137 We are satisfied in this case that the implications asserted in particulars (iii) and (iv) of the Allegation 1(c) are made out. A recipient of the certificate (such as a pet shop owner) would reasonably have understood that it implied that appropriate professional procedures were followed. They were not. In giving the certificate Dr Lloyd knew that not to be the case.
138 In our view the issuance of the certificate was done irresponsibly, and clearly infringed cl 5(4). In our view the conduct was so disreputable that it would have constituted misconduct at common law regardless of the Code.
139 We regard the issuance of the certificate as the most grave item of misconduct in this case. It carried an implication that the procedures necessary to exclude the possibility of ringworm had been undertaken. This had not occurred. A certificate necessarily involves a communication of a professional opinion to the world at large. It is an instrument which by its nature is intended to be relied upon by others. Great care must be shown before a certificate is issued. Veterinarians must be conscientious and careful when making any statement as to the health of an animal, and more so in circumstances where a certificate is being issued.
140 New Committee's Views. The new Secretary addressed Allegation 1(c) in the submissions that were filed on 25 November 2002. She first stated that if Ms Koroknay jnr asked for a professional opinion as to "whether the cat had ringworm" then "that is not what she received". She then went on to state that: "She [Ms Koroknay] accepted the scribbled note on her account, and she did not challenge the words at the time. It is therefore for the reader of the words to interpret them or to seek clarification if the meaning is unclear and the words are to be relied upon for a particular purpose at a later date." This submission appears to cast responsibility for the adequacy of professional statements of opinion on the consumer.
141 The following submission is then made: "The Committee submits that a document requires some form of clear words indicating the purpose and exactly what fact is being certified, before the document can be described as a Certificate and attract sanctions."
142 It is clear that the statement put on the invoice by Dr Lloyd was intended by him to be a statement of a professional opinion. It was given after a consultation. It was given in circumstances where an owner presented an animal with signs consistent with a fungal infection, and where the owner herself had expressed concern over ringworm and the context in which she needed a clearance.
143 Dr Lloyd used words which would, in these circumstances, reasonably be interpreted as offering a clearance in relation to fungal conditions such as ringworm, and were likely to be so interpreted by the pet shop owner with whom Ms Koroknay was dealing.
144 The new Committee's submissions cause us considerable concern, as they seem to suggest that the client should be left to bear the risk of an inexact, vague or ambiguous statement of expert opinion rendered by a practitioner, especially if an informal type of document is used.
145 In that regard we regard the following matters as involving significant departures from contemporary standards of veterinary science:
the making of a definitive diagnosis excluding ringworm without the use of appropriate diagnostic aids or other available diagnostic procedures;
failure to encourage her to return when he had adequate equipment (i.e. the Wood's lamp) available;
his failure in circumstances where he did not have the relevant diagnostic aids to refer Ms Koroknay to a second, properly equipped, practitioner for a second opinion;
his decision to provide a written professional opinion, aware that there was a likelihood that it would be supplied to others, without having followed procedures sufficient to justify the giving of such an opinion, in particular failing to undertake appropriate tests;
the use of language in the document which had the potential to (and did) mislead a lay person as to the adequacy of the professional service that he had undertaken Koroknay;
his failure to communicate to Ms Koroknay the different diagnoses and available diagnostic tests.
146 As noted above, all allegations are found proven to our comfortable satisfaction. All particulars have been found proven with the following qualifications.
147 We do not make any finding on the matter of whether Ms Koroknay jnr advised Dr Lloyd that she intended to present cats in shows (see particulars, para 1 to Allegation 1(a)). We are satisfied that she advised him that she was interested in breeding and selling cats.
148 As to the particulars at para 2 to Allegation 1(b), we repeat our view that it is unnecessary to the case for any conclusion to be reached as to whether the cat had ringworm at the time of presentation. The general allegation is a failure to carry out professional procedures in accordance with current standards of veterinary science, and as relevant to this point, is particularised as "you misdiagnosed the cat as not being afflicted with ringworm". We reiterate that we are comfortably satisfied that a misdiagnosis is established. The procedures that were followed were not in keeping with current diagnostic standards. The diagnosis was not competent. The procedures followed were manifestly insufficient to found a definitive diagnosis which positively excluded ringworm. In our view the evidence of Ms Koroknay jnr as to the state of the cat's coat and skin (which we have accepted), the lack of any note in Dr Lloyd's record that he saw this as an unusual case, the incubation period for ringworm and the later observations by Dr Meek all point towards the likelihood that the cat did have ringworm; but this is a matter on which we need not, and do not, enter any finding.
149 As to the particulars at para 4 of Allegation 1(a), we are satisfied that Dr Lloyd suggested that Ms Koroknay jnr return with the cat in 14 days. But that is not the issue raised by this particular. The particular goes to a matter of omission. A veterinarian who does not have a basic diagnostic aid in circumstances in which that would be reasonable to expect should take action to ensure that the animal is assessed by reference to such an aid at the earliest opportunity. As he did not chose to refer the cat to another practice with the aid available, it was incumbent on him to ensure that the cat was tested as soon as he got his Wood's lamp back. He clearly failed to advise Ms Koroknay to come back as soon as the lamp was repaired. This particular is made out.
150 Barter. While there is no allegation or particular going to this matter, and accordingly we make no finding on the matter, we are concerned that a practitioner should see it as appropriate to enter a barter agreement with a client in exchange for the provision of services (the arrangement with Mrs Koroknay snr for surgical materials in exchange for a fee reduction). We consider that barter agreements are rarely, if ever, acceptable as a basis of remuneration for professional services.
151 Barter arrangements have an obvious capacity to allow underreporting of income for taxation practices; which may in turn give rise to action which may bring the professional into disrepute.
152 They have the tendency to compromise both the client and the practitioner. An ongoing barter arrangement has the potential to place both parties in a relationship of dependency. It is in the nature of an ongoing business relationship. It is critical that a veterinarian maintain professional detachment, and similarly that the client feel uninhibited in their ability to go to another practitioner, or, if desirable, lodge complaints.
153 Records. While there is no allegation or particular going to this matter, we consider it to be desirable that a veterinarian on presentation of a cat with lesions etc take and record a history that addresses the following matters: length of time animal has had presenting condition; accurate description of shape, colour, texture and location of lesions; other symptoms. Dr Lloyd's card only referred to his diagnosis and his proposed treatment. We are concerned that such a record may not be a sufficient one to enable another veterinarian to take over the case, if need be, and be adequately informed of the cat's condition.
154 Other Matters. There were a number of aspects of the evidence that caused us concern. While we make no findings, there is evidence to suggest that there was an absence of appropriate warnings as to the risks of ringworm, the failure to give any information as to the range of aids available in circumstances where the most usual aid was not available, and the failure to elicit a history from the owner.
155 It is not appropriate, we recognise, for the Tribunal to take these additional observations into account on the question of the appropriate sanction in relation to the findings. They are included as matters that the Board and the Committee may wish to address in education programs and in examination of other complaints in the future.
156 When the Tribunal resumed to deal with the three Inquiries affected by the Court of Appeal decision, the parties, in particular the new Committee, also took the opportunity to make various submissions in relation to this Inquiry. Some of these have already been dealt with in the course of these reasons.
157 In the submissions filed 25 November 2002, there is a survey of the powers of the Administrative Decisions Tribunal, including its mediation and alternative dispute resolution proceedings. It was not made entirely clear what the point of such a survey was in the present context; but we have taken it as seeking to justify an approach to professional misconduct inquiries which provides for non-public resolution by the use of the Tribunal's alternative dispute resolution facilities.
158 We doubt whether the use of these facilities would ever be an appropriate course in the context of a referral of disciplinary allegations of a serious nature.
159 The parties and the Tribunal should, of course, try to have the inquiry proceed as efficiently as possible, and to that end there is a place for agreed statements of fact to be provided by the practitioner in relation to what is alleged against him or her; and for the use of hearing techniques that minimise the need for the hearing of extensive oral evidence, such as the use of written submissions from experts and experts' conclaves. (The present Inquiry and the associated three Inquiries were beset by long delays in 1999 and 2000, because of the difficulty of finding common dates for hearing as between the legal representatives in particular, as well as the various witnesses and the Tribunal members; and in 2001 and 2002, due to the long delays that have affected the appeals, first in the Appeal Panel and then at the Court of Appeal.)
160 An inquiry into a referred complaint of professional misconduct should, as we see it, be conducted transparently and in public, and proceed to a publicly-known conclusion. See generally, Spigelman, "Seen to be done: The Principle of Open Justice - Part I" (2000) 74 ALJ 290; "Seen to be Done: The Principle of Open Justice - Part II" (2000) 74 ALJ 378. (As to the issue of openness, we note that in the early period of operation of the Administrative Decisions Tribunal all proceedings in the Tribunal were subject to restraints on publicity, by virtue of Tribunal Act, s 126 as originally enacted: see generally Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA ---; and [1999] NSWADTAP 3. The width of s 126 clearly reflected a policy error. The provision was clearly traceable to an earlier provision governing proceedings before the Community Services Appeals Tribunal (a jurisdiction which was transferred to the Community Services Division of the new Tribunal). The problem was rectified by amendment restricting the scope of the provision to the Community Services Division by the Administrative Decisions Tribunal Legislation Amendment Act 2000 inserting a new s 126(1A).)
161 Findings as to guilt must be made, as we see it, in a public way so as to serve the following ends at least - the protection of the public; the education of practitioners as to standards of competence; and to deter practitioners from engaging in misconduct in a professional respect.
162 Professional discipline proceedings are not to be likened to private civil disputes where it is always appropriate for attempts to be made to resolve the dispute in alternative ways; or some categories of review of administrative decisions (such as disputes over access to, and the content of, personal records).
163 Mr Grey submitted that the Committee is there "to assist" the Tribunal and "not to advocate any concluded view as to how the inquiry will end (having reached only a prima facie view)." Ms Linkenbagh maintained this view when questioned by the Tribunal on 29 November 2002.
164 As we understand it, the new Committee sees itself as having no role on such questions as whether the evidence is sufficient to support a finding of guilt, or in the event of such a finding, what the order should be. These matters are to be left entirely to the Tribunal.
165 In our view, it is essential for the achievement of the fundamental object of protection of the public that the statutory body charged by the community through Parliament with the investigation and referral of complaints against veterinary surgeons does more than "assist" the Tribunal in the way that is entailed by these submissions.
166 The Committee has a statutory duty to investigate and a duty to refer cases to the Tribunal where there is a prima facie case of misconduct in a professional respect. The legislation, it is true, does not spell out a role for the Committee beyond that stage.
167 It is conventional in New South Wales for the referring body to participate actively in disciplinary proceedings. That means organising and presenting evidence in support of the prima facie view, complying with the directions of the Tribunal, testing the case of the respondent practitioner to the extent that the evidence suggests that he or she has engaged in conduct that falls below relevant professional standards. The statutory body needs, of course, to avoid excessive prosecutorial zeal, but equally it should not be indifferent to the outcome. It has special expertise to bring to the process of inquiry.
168 The statutory body (here the Committee), as we see it, has a duty to present to the Tribunal the best case in favour of protection of the public and the welfare of animals. In assessing evidence it should proceed in a objective and detached but professionally exacting way. Accordingly, any assessment of the evidence presented should be a considered one drawing attention to the strengths and weaknesses of the evidence presented by the Committee and the evidence presented in reply by the practitioner.
169 We are concerned that since July 2002 the Tribunal has not had placed before it a comprehensive view of the evidence in the submissions that have been presented by the Committee. The Committee has pursued a course of drawing attention to alleged weaknesses in its own case (both on the part of the lay witnesses and its expert witnesses) and alleged strengths in Dr Lloyd's case. There have been a number of joint submissions denying the strength and soundness of the Committee's case as presented at the substantive hearings.
170 It is open, of course, to parties to disciplinary inquiries to make joint submissions, but equally any "agreed position" put by the Committee and the respondent is to be assessed by the Tribunal always having regard to its inherent persuasiveness and the public interest. In the case of the present Inquiry, we did not have our attention drawn, as we consider would have been appropriate, to the apparent strengths of the Committee's case as presented; and equally the apparent weakness of aspects of Dr Lloyd's case in reply. The new Committee's approach has been, as we see it, a distortion of the proper role of the statutory body.
171 There have also been submissions - again contrary to the complaint as referred and the way the case was previously conducted - that certain allegations even if proven can not amount to "misconduct in a professional respect". We have dealt with these submissions at the relevant points of the various inquiries, including this one.
172 Though this stage is yet to be reached in these proceedings, it is vital, as we see it, that the statutory body indicate to the Tribunal what it sees as the appropriate order or penalty having regard to the gravity of the conduct and any factors relevant to the practitioner, such as extenuating explanations for conduct, likelihood of recurrence and testimonials.
173 The Tribunal should not in professional disciplinary proceedings, be placed in a situation were it is left entirely to its own lights to assess the evidence, and make orders. In our view the Parliament clearly intends that matters of alleged misconduct in a professional respect be presented to the Tribunal and advocated in an appropriate way by the statutory body responsible for referrals.
1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b) and 1(c).
2. After determination of the findings as to the Allegations in the other three Inquiries, this Inquiry is to be reconvened for the determination of orders pursuant to section 32.
1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b) and 1(c)
2. After determination of the findings as to the Allegations in the other three Inquiries, this Inquiry is to be reconvened for the determination of orders pursuant to section 32.