It was submitted that Dr Griffiths contravened the Code of Professional Conduct for Veterinary Surgeons, and was negligent or incompetent, or acted improperly or unethically, during his assessment and treatment of a dog named Lilah between 14 and 15 January 2017. The respondent submitted that the complainant's Amended Complaint was deficient and sought to strike out various aspects of it.

Held, finding the respondent guilty of unprofessional conduct:

• The respondent's strike out application has no proper basis and is dismissed.
• The respondent engaged in unprofessional conduct in relation to the diagnosis, treatment, management, assessment and examination of Lilah, and gave incorrect, negligent, incompetent advice whilst failing to obtain informed consent.
• There is proper cause for disciplinary action under section 61 of the VPA.

Veterinary Practitioners - Veterinary Practice Act 2003 - Complaint by the Veterinary Surgeons Board - Unprofessional Conduct - Improper or unethical conduct

Veterinary Practitioners - Veterinary Practice Act 2003 - Complaint by the Veterinary Surgeons Board - Unprofessional Conduct - Incompetence or negligence

Veterinary Practitioners - Veterinary Practice Act 2003 - Complaint by the Veterinary Surgeons Board - Unprofessional Conduct - Failure to comply with a code of conduct

Veterinary Practice Act 2003 ss 3, 61, 62

South Australian Civil and Administrative Tribunal Act 2013 ss 39, 47

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953

Marin v Chiropractic Board of Australia [2019] SADC 17

Law Society of South Australia v Neville John Jordan (1998) 198 LSJS 434; [1998] SASC 6809

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Yap v Medical Board of Australia [2019] SACAT 55

Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784

Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163

Keogh v The Medical Board of South Australia [2007] SASC 342; (2007) 99 SASR 327

F v R (1983) 33 SASR 189

Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479

In re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58

Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339

Fung v Wilde (1989) 41 SASR 232

Chan v Medical Board of South Australia (1986) 41 SASR 434

Lehmann v the Registrar of the Veterinary Surgeons Board of SA [2014] SADC 201

Veterinary Surgeons' Board of Western Australia v Harris [2017] WASAT 100

Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136

R v Hart (1932) 23 Cr App R 202

1. This decision relates to a Complaint, dated 28 February 2019, brought against Dr Neil Griffiths by the Registrar of the Veterinary Surgeons Board of South Australia, pursuant to s 62 of the Veterinary Practice Act 2003 (VPA).

2. The Complaint was subsequently amended on 26 March 2020. The respondent filed an amended Response on 17 April 2020 admitting some of the allegations in the Complaint and denying others.

3. The complainant alleges under s 61 of the VPA that there is proper cause for disciplinary action against the respondent as he engaged in 'unprofessional conduct' as defined in s 3 of the VPA_,_ namely that he was negligent or incompetent, or acted improperly or unethically in the treatment provided to a dog, Lilah. It is also alleged that his conduct involved certain contraventions of the relevant code of conduct prepared or endorsed by the Board under the VPA.

4. The matter proceeded to a contested hearing over a number of days before the Tribunal with final submissions filed on 4 December 2020.

5. Dr Griffiths, the respondent, is a registered veterinary surgeon who has been working in small animal veterinary practices since 1986 (although he had a short period away from his profession after suffering a stroke in 2002). Dr Griffiths practises at the Adelaide Desexing Clinic, 64 Port Road Allenby Gardens SA where he is in sole practice in a small animal practice.

6. Whilst Dr Griffiths is not a specialist Veterinarian, he has a master's degree in pathology and is currently studying for a doctorate in microbiology.

7. As part of his studies Dr Griffiths has an interest in the incidence of bacterial diarrhoea in rabbits (and other small animals) and is currently pursuing a hypothesis regarding the link between bacterial diarrhoea in animals digesting the faeces of cockatoos near the linear park in Adelaide. Of some relevance to this matter, he has a rabbitry at his practice, which means he will often attend at his practice after hours and on weekends to attend to his rabbits. Dr Griffiths' evidence was that he would need to attend the practice after sunset to turn the lights on and off for the rabbits.

8. It is agreed that on 14 and 15 January 2017 Dr Griffiths' treated a dog at his practice (a 6-month-old American Staffordshire cross), named Lilah. Dr Griffiths was assisted during some parts of the examination and treatment of the dog on both days by an assistant, veterinary student Winnie Cheung (who is now a registered Veterinarian).

9. The dog was owned by Monique Glaser-Keating. Anni Glaser is the mother of Monique. On 14 January 2017 Anni and Monique decided to take the dog to the Adelaide Desexing Clinic for treatment due to a swelling on the dog's lip and for the investigation and treatment of diarrhoea. They were asked by the receptionist at the practice to bring a sample of the dog's stool with them. Anni took her young granddaughter with her to the consultation.

10. After the initial examination of the dog, a further examination under sedation and some preliminary treatment, the dog was placed in a cage at Dr Griffiths' Clinic to be held overnight.

11. During the evening an incident involving the dog occurred where she got injured (sometime between about 8:00 pm and 11:15 pm on 14 January 2017). No-one was present when the incident occurred. The dog had apparently attempted to escape from the cage and somehow got caught in the cage door. At approximately 11:15 - 11.30 pm on 14 January 2017 Dr Griffiths attended at the clinic and found the dog wedged in and hanging from the cage door. He immediately released the dog from the cage door, examined her (including by taking X-rays) and provided some treatment to the dog on the Saturday evening and early on the Sunday morning.

12. Dr Griffiths contacted the dog's owner at around 2 - 2.30 pm on the Sunday afternoon. Monique and her mother (with Anni's young granddaughter) attended at the clinic on the afternoon of Sunday, 15 January 2017 following which Lilah was eventually euthanised with Monique's consent.

13. Monique and her mother were distressed and somewhat angry about what had occurred to Lilah. Subsequently, at the request and with the authority of Monique, Hannah Glaser-Keating (Monique's sister) made contact with Dr Griffiths' practice and sought a copy of the treatment notes. The one-page clinical history report regarding Lilah was provided to Hannah Glaser-Keating on 16 January 2017.[1]

14. On 24 January 2017 a detailed complaint was made to the Registrar of the Veterinary Surgeons Board on behalf of Monique by Hannah Glaser-Keating. Hannah was not present on either day at Dr Griffiths' clinic.

15. The detailed written complaint sent to the Registrar on 24 January 2017 appears to have been prepared by Hannah Glaser-Keating following discussions between her, Anni Glaser-Keating and Monique Glaser Keating.[2] Annexed to the complaint were Dr Griffiths' clinical history report regarding Lilah, dated 14 January 2017 (printed on 16 January 2017 and provided to Hannah by the practice manager) various emails between H Glaser-Keating and the practice and an email from Ms Jacqui Triggs (a dog trainer), dated 18 January 2017.[3]

16. The circumstances of the treatment of the dog on the 14th and 15th of January 2017 by Dr Griffiths formed the basis of the client's complaint and the basis of the formal Complaint laid by the Registrar of the Board.

17. As part of her investigation, the Registrar of the Board asked Dr Griffiths to submit a written response to the initial complaint, which he did by email, on 28th of February 2017.[4]

18. In his response Dr Griffiths indicated that he had provided all relevant clinical notes to the Registrar. This included the clinical records, dated 14 and 15 January 2017 (p 89 book of documents), the consent to euthanasia form, the consent to anaesthesia and inpatient care form, printed radiograph images of the dog's torso and hindquarters (3 pages), photographs of Lilah (deceased) in the cage (2), photographs of the cage (2) and photographs of Lilah's abdomen. Subsequently Dr Griffiths also provided a gram stain print out of the dog's faeces and his PI insurance cover details.

19. A copy of the relevant invoice for fees rendered was subsequently obtained during the Registrar's investigation. This detailed some of the drugs administered to the dog and/or charged for.

20. In the course of proceedings, a further clinical record prepared by Dr Griffiths was produced, tendered and marked R2. This is a report regarding the neurological examination of the dog, dated 16 January 2017, and printed on 25 September (year unknown). This was not produced to the Registrar by Dr Griffiths with the initial set of clinical records; however, a condensed version of the information in this report was included in the notes sent to the Registrar (C1 p 88). We note that R 2 contains additional notes.

21. Monique and her mother (through Hannah) provided a response in writing to the Registrar regarding Dr Griffiths emailed response. It was apparent then, as it was during the course of proceedings, that there was some disagreement between the version of events provided by the dog owner and her mother and by Dr Griffiths as to what had occurred and what had been discussed about diagnosis, prognosis and treatment recommendations.

22. It was necessary for the Tribunal to reconcile this difference in the accounts of the witnesses at the hearing. We have made findings in the course of these reasons as to whose version of events we have preferred and why.

23. Subsequently, the matter was referred to the Crown Solicitor's Office (CSO) and an investigation was undertaken. Some additional documents were seized from Dr Griffiths' practice (including the detail of the staff rostered on over the two relevant days and the treatment of other animals).

Criticism of the VSBSA Registrar's investigation and about the manner in which the case was conducted

24. The respondent's counsel, Ms Kereru, is critical of the Registrar's investigation and the instructions provided to the complainant's counsel during the proceedings and invites the Tribunal to 'strike out' various aspects of the Amended Complaint for 'want of prosecution' under s 47(4) of the SACAT Act.

25. There were two main issues raised by Ms Kereru:

(a) That the Registrar did not obtain a statement from Winnie Cheung (who had been present at the clinic on both days undertaking work experience) during the course of her investigation; and

(b) That Dr Griffiths was not interviewed before the Complaint was laid - it was submitted that if this had been done the Complaint would not have been particularised in the manner that it was, and the proceedings would not have been so prolix.

26. As to the first point: we agree that it may have been of assistance for a more comprehensive investigation to have occurred. We note that only two witness statements were obtained (from Monique and her mother). No statement was obtained from Miriam Schiller, the Practice Manager, who was present throughout some of the incidents in the waiting area and who potentially could have given evidence relating to some of the conversations or incidents that occurred.

27. It was also apparent early on in the investigation (certainly after the witness statements had been obtained from Monique and her mother) that an 'Asian staff member' (Winnie Cheung) was present during the course of some of the clinical examinations. This was also apparent from the staff roster seized from the practice by the government investigator. The roster noted that Winnie Cheung was present at the practice on Saturday 14 January 2017 and Sunday the 15th of January 2017. It was, or ought to have been, evident that she was likely to be an important eyewitness to the treatment provided to the dog by Dr Griffiths and to the conversations held with the dog owner and her mother.

28. We agree that in a comprehensive investigation a witness statement from Winnie Cheung ought to have been obtained by the Registrar when statements were obtained from the dog owner and her mother in early 2018.

29. A number of statements prepared by Winnie Cheung (now Dr Cheung) were tendered to the Tribunal (R5) by the respondent. It is apparent that Winnie Cheung first prepared a typed witness statement on the 4th of February 2018. Notably this was prepared before the formal Complaint was laid on 28/02/2019.

30. A number of versions of a formal witness statement were prepared in April 2020 and May 2020 and a subsequent typed statement was prepared by Winnie Cheung in August 2020.

31. It became apparent to the CSO that Dr Cheung was to be called by the respondent as a witness during the course of a conference ordered by the Tribunal approximately 3 weeks before the hearing.

32. Subsequently, the Crown Solicitor arranged for a government investigator to interview Dr Cheung for the purpose of the proceedings. The Crown Solicitor obtained a record of interview from Dr Cheung on instructions from the Registrar, which was not produced to the respondent despite numerous requests prior to and during the course of the proceedings. The complainant's counsel claimed legal professional privilege over the statement[5] and did not produce it as requested. The Tribunal did not rule on this issue preferring to leave the question of waiver of privilege and disclosure of the statement to the Registrar (a statutory authority with model litigant obligations) and noting that procedural fairness might dictate that the statement be released to the respondent.[6]

33. The Crown Solicitor was not instructed to release the witness statement and did not rely on it. The respondent did not finally require production of the document preferring to leave this issue to submissions. We observe that this conduct by the complainant was curious and left the Tribunal members all questioning why the statement was not released, if, in fact, it contained nothing of significance.[7] We note that a claim of legal professional privilege over a statement in such circumstances can always be waived. However, we also agree that it is likely that the claim of legal professional privilege would have been upheld and it is matter for the client to determine whether that privilege should be waived. We make no adverse comments regarding the Registrar's decision to take such a position.

34. However, we consider that all of this was an unnecessary distraction from the proceedings. Further, we do not consider that the complainant's conduct in this respect should lead us to "strike out" various aspects of the complaint that were either not pressed or not proven by the complainant.

35. We do not consider that Dr Cheung's witness statements, or her evidence, would necessarily have altered the way in which the Complaint was particularised by the Registrar. In our view there was little that Dr Cheung's evidence added to the major allegations on the Complaint against Dr Griffiths (the initial assessment and treatment, the interpretation of the X-ray and initial examination post injury, the diagnosis of spinal damage, the assessment of the dog's post injury prognosis and the treatment advice given to the dog owner) as she was either not present when the majority of those events occurred or was in attendance as an unqualified assistant only.

36. In our view, the minor aspects of the Complaint that Ms Kereru argues were not seriously pressed or proven by the complainant because Dr Griffiths' version was arguably corroborated by Ms Cheung (the allegation of the lack of evidence of bloody diarrhoea on presentation, the passing of stool in the cage, the need for sedation to examine the dog's jaw, the attendance of personnel after hours, whether the dog had recovered from sedation when she was left in the cage), are subsidiary to the main allegations on the complaint.

37. Our views about those allegations are also affected by our assessment of the veracity of the evidence of the various witnesses.

38. We do not agree with Ms Kereru's submission that those minor factual matters can be characterised as "a great deal of the Complaint", or that any failure to prove those facts would require the Tribunal to strike out those aspects of the Complaint for want of prosecution.

39. A failure by the complainant to prove certain particulars following a hearing does not equate to a failure to prosecute.

40. As to the second point, (that Dr Griffiths was not interviewed as part of the Registrar's investigation) we agree with the complainant that there is no common law or statutory requirement for a person to be interviewed before a disciplinary complaint is brought against them (or indeed before a criminal charge is laid).

41. We also agree that Dr Griffiths could have relied on 'penalty privilege' to decline to answer questions (similarly, a person accused of a criminal offence can rely on the privilege against self-incrimination).[8]

42. However, we observe that it would have been beneficial to the investigation for an attempt to have been made to interview the practitioner during the course of the Registrar's investigation. We consider that it is good investigation practice for a disciplinary "prosecutor" to at least give an individual the opportunity to explain their conduct at interview before a formal disciplinary complaint is laid against them.

43. Such a practice is important as a matter of fairness to the person under investigation as it may reveal important evidence relevant to the exercise of the discretion to bring a complaint (or as to how the complaint is particularised) such that it may avoid unnecessary proceedings being brought against a professional person and/or limit the extent of those proceedings.[9]

44. However, despite the lack of a formal interview there is nothing to demonstrate any overt unfairness by the complainant in the investigation or prosecution of this matter.

45. In particular we note that the Registrar provided Dr Griffiths with an immediate opportunity to explain his conduct in writing in response to the very detailed client complaint sent to him in January 2017. Dr Griffiths provided a very detailed response via a long email, dated 28 February 2017.[10] He attached to that email "relevant documents", namely case notes, X-rays and photos of the subject cage.

46. In our view, the complainant was entitled to rely on the written response from Dr Griffiths and his records in formulating the formal Complaint and in posing questions to the professional witnesses.

47. There are a number of points that might be taken about the later differing account provided by Dr Griffiths (and corroborated to some extent by Dr Cheung); one is that his later account suggests an element of reconstruction to further his own interests on the findings of fact. Dr Cheung's evidence may be tarnished by memory lapse or some degree of reconstruction. Those are issues of credit or reliability and are matters for the Tribunal to rule on.

48. Despite the incomplete nature of the investigation the Tribunal does not accept the respondent's submission that aspects of the Complaint should be "struck out' for want of prosecution. We have found some of the particulars of the conduct proved to the required degree and others not proved. However, in our view there is no basis to 'strike out' various particulars under s 47 of the SACAT Act.

Nature of proceedings; onus of proof; standard of proof; particulars

49. The complainant must make out her case to the necessary standard of proof.

50. We note that the relevant standard of proof in disciplinary proceedings is the balance of probabilities, having regard to the observations set out in the decision of Briginshaw v Briginshaw[11] and other cases concerning the standard of proof for decisions to be made by disciplinary tribunals.[12]

51. We are conscious that the allegations and any findings that we make could have serious consequences for the practitioner. It is therefore appropriate for us to take great care in weighing the evidence and in reaching a decision, for which we must have a comfortable level of satisfaction, taking into account the seriousness of the allegations and the consequences for the practitioner.

52. Where we have made findings of fact and the ultimate finding of unprofessional conduct, those findings they have been made to that standard.

53. We remind ourselves that it is not for the respondent to disprove anything. The onus of proof is squarely on the complainant.

54. We note that the nature of disciplinary proceedings is "sui generis" because of the purpose of the proceedings, which is to protect animal health, safety and welfare in the veterinary profession,[13] to ensure public confidence in the profession and to maintain proper professional standards in the profession.[14]

55. We are also mindful that the proceedings are neither criminal nor civil and that the formal rules of evidence do not apply in the Tribunal. We may inform ourselves as we see fit.[15]

The function of the particulars of the Complaint - procedural fairness

56. Before setting out our findings it is necessary to address the manner in which the allegations of unprofessional conduct are pleaded in the Complaint and the ultimate findings of unprofessional conduct which the complainant invites us to reach.

57. We observe that the formal Amended Complaint is excessively wordy and somewhat confusing and includes a mixture of narrative facts and allegations of unprofessional conduct based on those alleged facts.

58. The respondent argues that the Tribunal cannot find that certain of the allegations of unprofessional conduct have been proved to the required standard if the relevant facts upon which those allegations are founded (as pleaded) are not also established.

59. The respondent submits that we must dismiss any allegations of unprofessional conduct if the Tribunal makes findings of fact other than the facts alleged on the Complaint to support the relevant departures from professional standards.

60. An example is that which is alleged at paragraph 20A; that all examinations of the dog post injury were performed unprofessionally because they occurred "under sedation" and "unassisted_"._ The respondent argues that if we find that one examination was performed assisted, or when the dog was not sedated, then the whole allegation falls away.

61. As to procedural issues and 'pleadings' (and especially the issue of the departure of proof from the facts as particularised in the Complaint) we are mindful of the observations made by the Full Court of the Supreme Court in Law Society of SA v Jordan[16] where, after referring to relevant cases, Doyle CJ stated (at page 465):

These decisions establish that disciplinary proceedings are proceedings sui generis. In such proceedings the Court is concerned to protect the public from misconduct on the part of practitioners. In such proceedings, issues cannot be resolved simply on the basis of considerations applicable to ordinary adversarial proceedings.

62. In Jordan the Full Court held that it had been appropriate for the Tribunal in that case to allow an amendment of the disciplinary charges against the practitioner after the practitioner had been found not guilty of the charges as laid. The Court held that there was no unfairness in this occurring in the circumstances of the case.

...it was appropriate, bearing in mind the functions of the Tribunal, for it to allow the charge to be amended, even though such an amendment might not have been allowed in ordinary adversarial proceedings.[17]

64. In Yap v MBA [2019] SACAT 55 Senior Member Stevens, when considering the introduction of new allegations of unprofessional conduct on a health practitioner disciplinary complaint after it had been referred to SACAT, stated (at paragraph 10 - 12):

The primary objective of the legislation is the protection of the public. The evidence filed before this Tribunal, if it was accepted, would raise significant issues of public risk. The Board should not be prevented from belatedly raising those issues, as long as such can occur without unfairness to the appellant.

The relevant enquiry is about unfairness in answering the allegations. Relevant unfairness is not demonstrated by the fact that the appellant will be placed at greater risk, nor by reference to costs incurred or inconvenience suffered. Those factors might be relevant to any future consideration of costs, but not to the present enquiry.

The Tribunal considers that the appellant can have a fair hearing of the expanded allegations, as long as they are particularised fairly and transparently. (Our emphasis)

65. In Williams v Medical Practitioners Board of Victoria[18] the relevant Tribunal noted that:

We note ...that particulars of allegations in notices by the Board should not be treated with the same rigour as pleadings in a court, they being primarily intended to give fair notice of the allegations against the recipient. The Board's case against Dr Williams has always been clear...we believe there has been a belated attempt to "muddy the waters" ...by now introducing fine distinctions that do not materially affect the standard of professional conduct relevant to the conduct in question. (Our emphasis)

66. These authorities all support the proposition that what is required in a disciplinary proceeding is fair and transparent particularisation of the allegations of unprofessional conduct on the Complaint at the outset, or before the complainant's case is closed, to ensure procedural fairness to the respondent. The respondent must be on notice about the case that is to be presented against him.

67. Section 62 of the Veterinary Practitioner's Act requires the Complaint to "set out matters that are alleged to constitute grounds for disciplinary action". The Complaint does not need to set out the evidence to support the allegations of unprofessional conduct.

68. Sometimes it is helpful and necessary to set out some of the brief facts in the Complaint which support the allegations of unprofessional conduct alleged against the practitioner. However, it is clear that it is the evidence adduced in the hearing and not the pleadings which dictate the findings of unprofessional conduct.

69. If the factual findings of the Tribunal involve factual departures from the Complaint, but those departures do not detract from proper notice of the allegations of unprofessional conduct, there is, in our view no unfairness to the respondent.[19]

70. However, where the factual findings are inextricably intertwined in the allegations of unprofessional conduct, we agree that any departures from the findings of fact may result in those allegations of unprofessional conduct not being made out. In this matter we find that this is so regarding the allegations pleaded at paragraphs 8, 10a i, ii, 10b, 10ba, 10c and 20A on the Complaint (in relation to leaving the dog when sedated and examining her unassisted and when sedated). This is because we consider the factual departures from those pleaded are significant in the context of the allegations of unprofessional conduct set out in those paragraphs.

71. In this matter the relevant factual departures arose in the course of the respondent's case (for example from paras 10b and 20A of the amended complaint). There was no application for amendment of the Complaint by the complainant at that late stage of the proceedings. We agree with the respondent's counsel that it is not appropriate, as a matter of fairness to the respondent, to permit the complainant to reframe its case about those allegations in its closing submissions.

72. We will return to this issue below, but suffice it to say that we are not satisfied to the requisite degree that:

(a) the dog was left in the cage unattended on 14 January 2017 'whilst she remained under anaesthetic or heavy sedation'; or that

(b) all neurological examinations of the dog after the accident had occurred were undertaken 'unassisted' and when the dog was 'under anaesthetic or heavy sedation'.

73. Other departures of proof from the facts as pleaded on the Complaint are not as significant in the context of the overall allegations (for example at paragraph 26A, which relies on the proof of matter alleged at paragraphs 19 - 21, and at 27 d "making a decision ...based on a "singly (sic) assessment") and in our view do not detract from proper notice to the respondent to any significant extent of the alleged failures said to amount to unprofessional conduct.

74. Unprofessional conduct is defined in s 3 of the VPA to include:

(a) improper or unethical conduct in relation to professional practice; and

(b) incompetence or negligence in relation to the provision of veterinary treatment; and

(c) a contravention of or a failure to comply with -

1. a provision of this Act; or
2. a code of conduct or professional standards prepared or endorsed by the Board under this Act; and

(d) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law

75. We rely on the applicable authorities and remind ourselves that the relevant issue is whether the conduct amounts to incompetence or negligence in the sense of whether the practitioner failed to take reasonable care.[20]

76. Whether conduct amounts to incompetence or negligence is not to be determined entirely by reliance on approved or recognised professional practices. It would be open to the Tribunal to find that conduct amounted to incompetence or negligence even though the conduct accorded with recognised professional standards, or with standards observed by a responsible body of opinion in the profession. That is because the Tribunal may consider those standards to be inadequate. We note that professional standards as articulated by experts are not decisive of the issue but will likely influence our assessment if we recognise those standards as adequate.

77. The test is therefore not the standard of conduct observed or approved by members of the profession of good repute and competency,[21] or dictated by what another general practitioner may or may not have done in the Respondent's position. We must examine the totality of the evidence for ourselves and form our own view as to whether or not the Respondent engaged in incompetence or negligence, that is, whether the conduct conforms with the standard of reasonable conduct required by law.[22]

78. In examining the totality of the evidence in this matter, the Tribunal, which is comprised of a specialist panel, has applied its own professional knowledge in considering whether the respondent has departed from accepted professional standards to a degree which warrants a finding of "unprofessional conduct".[23]

79. However, we have also been guided by the expert opinion evidence adduced by the complainant. In this matter the experts did not agree on all issues, or the characterisation of Dr Griffiths' conduct, or the appropriate professional standards that applied. Where we have preferred the opinion of one expert to that of another's we have set this out in our reasons and explained our reasoning for doing so.[24]

80. However, the Tribunal's conclusions as to acceptable standards have been reached taking all of the evidence into account and applying our own view as to whether the conduct meets those standards.

81. The same matters which the Registrar says establish incompetence and negligence are also said to establish a breach of the Code of Professional Conduct for Veterinary Surgeons. A breach of the Code establishes "unprofessional conduct" as defined in the VPA.

82. The relevant provisions of the Code are set out in an addendum to this decision.

Evidence before the Tribunal - assessment of witnesses

The evidence of Anni Glaser and Monique Glaser- Keating

83. We accept the evidence of Mrs Anni Glaser. We find her to be a truthful and credible witness with a good recollection of the relevant events. She made no attempt to embellish or reconstruct her evidence and she was forthright and clear when answering questions.

84. Mrs Glaser was unable to recall every aspect of the events accurately, which is understandable given the passage of time that has elapsed since the relevant incident (three and a half years). She made appropriate concessions as to her level of recall. However, when giving evidence she was assisted by referring to the detailed notes she had made shortly after the incident in question. We permitted her to refresh her memory from her notes when her memory was exhausted. We accept her evidence as the most reliable account of conversations and events where it conflicts with the accounts of other witnesses.

85. In the main, Anni Glaser's evidence relating to the events on Saturday, 14 January 2017 was not at odds with the evidence of Dr Griffiths.

86. There was some discrepancy between the evidence of Mrs Glaser and Dr Griffiths (and to a lesser extent of Winnie Cheung) as to the details of the conversation on Sunday, 15 January 2017 about the diagnosis of the dog's spinal injury, the prognosis regarding the dog's injuries and the treatment options and recommendations.

87. Where the versions of the conversation on Sunday 15 January 2017 differ, we prefer the version provided by Mrs Anni Glaser. We do not accept the version of that conversation proffered by Dr Griffiths (or by Dr Cheung); we will elaborate below.

88. Anni's account of the relevant events was also incorporated into the consolidated written complaint prepared by Hannah Glaser-Keating and sent to the Registrar shortly after the incident and the response to Dr Griffiths' account.[25] Her evidence did not depart in any significant way from that written account.

89. Monique's Glaser-Keating's recollection of events was not as clear as Anni's, but we found her to be a credible witness to the extent that her memory would allow.

90. Monique was quite distressed when giving her evidence and both examination and cross-examination of the witness was limited.

91. According to the evidence of all of the other witnesses she was clearly very upset at the time of the incident concerning her dog and her mother stated that she is 'quite an emotional person, especially when it comes to animals'.[26] This may explain her very emotional reaction at the surgery in 2017 and the degree of distress that she exhibited when giving evidence in the Tribunal. We accept that Monique may also have been nervous and anxious about the hearing process.

92. Nevertheless, we find Monique Glaser-Keating to be a witness of truth with a reasonable recollection of the relevant events. We accept her limited evidence about the relevant events and conversations which corroborate that given by her mother.

93. Monique's account of the relevant events was also incorporated into the consolidated written complaint of Hannah Glaser-Keating to the Registrar and the written response to Dr Griffiths' account. Her evidence did not depart in any significant way from those accounts. For those reasons, we also prefer Monique's evidence as to the conversation about treatment options on the Sunday where it differs to the evidence of Dr Griffiths and Winnie Cheung.

94. We note that Dr Griffiths made appropriate concessions at the outset about the significant error regarding his misinterpretation of the X-ray of the dog's spine and as to the accuracy and completeness of some of his clinical notes (for instance regarding the amount of the sedative drug administered to the dog on the Saturday afternoon).

95. We find Dr Griffiths to be a truthful witness relating to some aspects of his evidence. We accept his evidence of certain aspects of the treatment and examinations, detailed below, particularly where they are corroborated by Dr Cheung. However, we do have reservations and concerns about the accuracy and reliability of other aspects of Dr Griffiths' evidence.

96. We accept Dr Griffiths' evidence about his observation of the dog on presentation, including the presence of blood on the rectal thermometer, the examination and treatment provided to the dog on the Saturday morning and afternoon, the events of the Saturday evening and early Sunday morning, and the examination and treatment provided to the dog on the Sunday.

97. Whilst many aspects of Dr Griffiths' account of his observations and the treatment provided to the dog departs from, or is not included in, his clinical records or in the email to the Registrar of the Board (the observation of stool in the cage, the presence of blood on the rectal thermometer, the recovery of the dog prior to his initial departure from the clinic, the 8.00 pm return visit and observations made at that time, the reliance on the cleaners, the administration of antisedan prior to re-examination on the Sunday, the extent of the observations of lack of pain responses in the left leg), many of those observations were corroborated by Dr Cheung or were not sufficiently challenged as being false in cross examination for us to make adverse findings about his credit.[27]

98. However, we consider that there was an element of reconstruction in parts of Dr Griffiths' account to the Registrar (in the February email) and to the Tribunal in either a conscious or subconscious reframing of his clinical findings and conclusions, and to minimise any alleged departures from professional standards.

99. For instance, we agree with the complainant's submission that Dr Griffiths' account about the appearance of blood and mucus on the thermometer, and a later bowel movement produced by the dog resulting in stool with blood in it, during his evidence conveyed the impression of a reconstruction, after he had heard the evidence of the expert witnesses the day before.

100. We note that these observations were not noted in his clinical records or mentioned in any part of Dr Griffiths' written response to the Registrar, or in his filed Response to the Complaint dated 18 July 2019, or in the amended Response dated 17 April 2020. Further, these observations were not corroborated by Dr Cheung. Dr Griffiths was challenged in cross-examination about this observation and we were not impressed with his response.

101. Accordingly, we do not accept Dr Griffiths' evidence about the observation of mucus on the rectal thermometer to support his diagnosis of haemorrhagic diarrhoea or of a bowel movement in the cage resulting in stool with blood in it.

102. Further, we do not accept Dr Griffiths' evidence about the exact content of various conversations with Monique and her mother on the Sunday.[28]

103. We find that Dr Griffiths was genuinely distressed by the incident concerning Lilah whilst she was in his care at his veterinary clinic. It was obvious during his evidence that he cares a great deal about the welfare of animals. We find that he was shocked and distressed to find the dog trapped and hanging from the cage when he returned to his practice on the Saturday night 14 January 2017. We observed Dr Griffiths' genuine distress when he was giving evidence (although we consider that some of this emotion may also have been symptomatic of the stress of the disciplinary proceedings).

104. We also accept that Dr Griffiths sat up for many hours on the night of the 14 January 2017 attempting to treat the dog and then to research appropriate treatment options on the internet. We find he was justifiably tired and emotional on Sunday, 15 January 2017. In our view his emotional state and his level of exhaustion have affected the reliability of his memory as to the detail of the conversations held with Anni and Monique on Sunday, 15 January 2017.

105. We find that Dr Griffiths deliberately put off contacting the owners at the earliest opportunity on the Sunday morning (we consider that his church attendance ought to have been secondary to his obligation to contact his clients in the circumstances of this matter). We will expand on this below, but in our view this conduct demonstrates, and further corroborates, his level of distress and his anxiety about having to reveal Lilah's situation to Anni and Monique.

106. We find that the reliability of his memory about the content of the Sunday afternoon conversations with the dog owner and her mother was impacted by his level of distress and exhaustion following the events of the Saturday night and the early hours of the Sunday morning.

107. Further, in contrast to the dog owner and her mother, we note that Dr Griffiths did not make any detailed contemporaneous notes of the relevant conversations. We also find there to be an element of reconstruction of Dr Griffith's account of his treatment, observation and the conversations with the dog owners in the February email to the Registrar.

108. For these reasons, where Dr Griffiths' evidence as to the conversations with the dog owners on Sunday, 15 January 2017 (regarding Lilah's prognosis, the various treatment options and the recommendation of euthanasia) differs to the evidence of Anni and Monique, we prefer the evidence of the latter two witnesses.

109. We find support in Anni's and Monique's version of events given that they made comprehensive notes shortly after the events and the conversations. Anni made her own contemporaneous notes and we permitted her to refresh her memory from those notes during her evidence.

110. Anni's and Monique's version of events and conversations were also documented immediately after the event (consolidated and compiled by Hannah Glaser-Keating) and sent to the Registrar. We find that the notes made by the dog owner and her mother and compiled by Hannah are reliable as they are a contemporaneous and accurate record of what occurred when the events were fresh in the minds of the authors (as relayed to Hannah). That account was consistent with that given in evidence by the witnesses.

111. We also find support in Anni's and Monique's versions of the conversations about diagnosis and treatment recommendations due to their evidence of Dr Griffiths' heavy reliance on the X-rays during the course of his conversations with them.

112. We find that Dr Griffiths was using the X-rays to emphasise the severity of the dog's injury and her poor prognosis. We find that this supports Anni's and Monique's evidence about Dr Griffiths advice that the dog's prognosis was dire and that he recommended euthanasia. It also supports our findings about what he diagnosed from reading the X-rays.

Dr Griffiths' notes and the email response to the Registrar

113. We find further support for Anni's and Monique's versions of the conversation about treatment options in Dr Griffiths' own clinical records dated 14 January 2017 (p 11 and 88 of C1 - "given OCD nature of dog, doesn't like cages and some probable permanent crushing injuries to hind limbs recommended euthanasia" (our emphasis)). We accept that Dr Griffiths recommended euthanasia and we will expand on this when discussing this aspect of the complaint.

114. Dr Griffiths appropriately accepts that he failed to properly document all aspects of the treatment provided to Lilah in his records. He concedes that his clinical records were inadequate and, in some places, incorrect (for example regarding the quantity of sedative drug administered to Lilah).

115. We do not accept the submission put by Dr Griffiths' counsel that, because some parts of the clinical records were inaccurate and incomplete, we should reject the accuracy of the entire contents of the clinical records. We do not find that Dr Griffiths has falsified his clinical records in any way, and this has not been alleged by the Registrar. Whilst we find Dr Griffiths' recall now to be affected by the lapse of time, his emotions and elements of reconstruction, we find that the notes accurately record some parts of the dog's treatment and some of the advice proffered to the dog owner and her mother.

116. We accept that the February email response to the Registrar, written shortly after the event, sets out an account of Dr Griffiths' findings and his views as to the dog's prognosis. For example, he had reached the conclusion based on his findings of 'instability in her lower spine and no deep pain in her left hind (of) a guarded to poor prognosis'.[29]

117. However, given our findings about the evidence of the dog owners we find that there was an element of factual reconstruction in the email as to his findings (for instance that his finding about subluxation of the spine at L6 -L7 was identified from a manual examination of the dog and not from the X-ray) and the advice proffered to the dog owners.

118. Finally, we do not accept Dr Griffiths' evidence regarding the fact of, or the clinical conclusions to be drawn from, the apparent subluxation of the dog's spine during the examination on the Sunday morning. We find that he (and Dr Cheung) was mistaken in his observation in this respect and in the interpretation of, and conclusions to be drawn from, those apparent observations.

119. We find that Dr Griffiths misread the X-rays and relied upon what he (incorrectly) perceived to be an area of radiodensity at the site of the injury (which the owners described as his referring to an area of 'cloudiness') and a narrowing of the disc space at L6-L7 to support his diagnosis of spinal injury and nerve damage.

120. We accept the expert evidence that it is impossible to diagnose any nerve damage from the X-rays. We find that the X-rays to do not demonstrate subluxation at L6-L7.

121. We find that his interpretation of the physical examination of the dog's spine was affected by the respondent's misinterpretation of the X-rays and the incorrect conclusion that he had reached as to the severity of the injury as a result of seeing the dog trapped in the cage.

122. To be clear: we find that Dr Griffiths had expected to find spinal cord damage as a result of his being an eyewitness to the dog's traumatic accident. Having made that diagnostic assumption at the outset we find that Dr Griffiths fell into final diagnostic and prognostic error by misreading the X-rays and by misinterpreting his clinical observations of the dog on examination.

124. We find Dr Winnie Cheung to be a generally truthful witness, but we have concerns about the reliability of some of her testimony and we find that there are some elements of reconstruction in her account.

125. During the course of her evidence Dr Cheung had difficulty recalling the precise detail of the treatment provided to the dog.[30] This is understandable due to the passage of time and her lack of any contemporaneous notes; we would have been surprised had Dr Cheung been able to accurately recall every aspect of the incident.

126. Dr Cheung stated that she had not seen Dr Griffiths clinical records since the incident, so she had no opportunity to refresh her memory from the records. In those circumstances we accept that it would have been most unusual if she had been able to recall the exact details of the treatment and of the various conversations with the dog owners so long after the event.

127. We note that Dr Cheung first provided a written account of what had occurred over one year after the incident had occurred (on 4 February 2018).

128. The detail of her first written account suggests that she had discussed the incident with Dr Griffiths after the event (e.g., "Dr Neil checked Lilah at 6.30 pm and she was calm") an observation that must have been relayed to her after the event by Dr Griffiths.[31]

129. We consider that Dr Cheung's evidence may have been tainted by discussions with Dr Griffiths after the event. This is not a criticism of Dr Cheung (or of Dr Griffiths) given that she was residing with Dr Griffiths at the time and given his level of distress. Further, we do not find that Winnie Cheung and Dr Griffiths colluded in any way to provide a false account of the incident in question to the Tribunal. Whilst this was hinted at during some stages of the proceedings (here we refer to the issues and objections raised regarding the versions of Dr Cheung's various witness statements and a record of interview that was not produced), the Registrar's counsel did not put that proposal in cross examination to either witness or in his final submission to the Tribunal.[32]

130. In later detailed accounts prepared nearly 3 years after the event by Dr Cheung for Dr Griffiths' solicitors[33] (dated April, May and August 2020) we note that Dr Cheung expanded on the detail of the incident.

131. For instance, in one later version of her statement, she recounted that she observed blood on the rectal thermometer on the Saturday. She explained the recall of this observation in cross examination.[34] She said that she remembered more detail of the event following a conversation with Dr Griffiths' solicitor. She was not seriously challenged in cross examination on her level of recall about this issue. It was not put to her that she had colluded with Dr Griffiths about this or that she had discussed this allegation with him.

132. We find this later recall of a significant observation curious. It is possible that Winnie Cheung recalled further details of the event when it was explored with her by Dr Griffiths' solicitor three years after the event. However, we do note that in a number of her statements Winnie Cheung says that Dr Griffiths made a telephone call to the owners offering to board the dog overnight after the dog had been examined under sedation on Saturday, 14 January 2017 (paragraph 9 of the typed statements). We find that on the evidence of Anni and of Dr Griffiths that this telephone call did not occur; the discussion about boarding the dog occurred between them in person at the surgery.

133. We therefore find that there has been a degree of reconstruction in the evidence of Dr Cheung, and/or some flawed recall. We would not expect the witness to have an accurate recall of the factual minutiae when she wrote an account of what had occurred over a year after the incident had occurred (particularly without the benefit of the clinical records) or when giving evidence.[35]

134. However, the incident concerning Lilah was clearly distressing and unusual and we find that it is not improbable that Dr Cheung independently recalled the main aspects of Lilah's examinations and treatment with a reasonable amount of detail when first writing an account of the incident in March 2018.

135. We therefore accept Dr Cheung's evidence of the general events that occurred regarding the presentation of the dog, its examination, sedation and caging, Dr Griffiths' account to her of what had occurred, the examination post incident of the dog and the ultimate outcome of euthanasia.

136. We accept Dr Cheung's evidence about her observations of blood both on the rectal thermometer and in the dog's stool in the cage. This corroborates Dr Griffiths account about these observations.

137. We also accept that Dr Cheung observed Lilah to be alert and awake and not evidencing any symptoms of anxiety when she left the clinic at around 5.00 pm on the Saturday. This corroborates Dr Griffiths' evidence that the dog had recovered from sedation when he left her at around 5.00 pm on the Saturday. We accept their evidence on this issue.

138. However, we do not accept Dr Cheung's evidence as to the precise detail of all aspects of the treatment provided by Dr Griffiths to Lilah. Dr Cheung conceded in questioning from Tribunal Member Rugless that she was unsure, for example, of the precise components and amount of the sedative drugs given to the dog (T p 50 day 2).

139. Further, as to Dr Cheung's evidence about the precise detail of the conversations between Dr Griffiths and the dog owners on either day, we do not find Dr Cheung's evidence to be the most reliable account. We consider her account of the conversations to be tainted by flawed recall or reconstruction. For the reasons expressed above, we prefer the accounts provided by Anni Glaser and Monique Glaser-Keating as to the contents of the conversations with them on the Sunday.

140. Finally, we do not accept Dr Cheung's evidence regarding the fact of, or the clinical conclusions to be drawn from, the apparent subluxation of the dog's spine during the examination on the Sunday morning. This is not a criticism of her veracity as a witness. Rather we find her to be mistaken about her observations, conclusions and recall about the examination of the dog's spine. We find that she was an inexperienced veterinary student at the time and that her findings on examination were influenced by the opinion expressed by Dr Griffiths. We will expand on this below.

141. We heard from two expert witnesses called by the complainant.

142. Professor Anderson is a specialist surgeon and an experienced academic working at the University of Adelaide. Professor Anderson has not worked extensively in general practice although she has had some private practice experience in Tasmania and has worked at the Adelaide Emergency Referral Centre and the Magill Road Specialist Centre. Professor Anderson has provided extensive training to undergraduate veterinary students and takes referrals of complex surgical cases.

143. She was forthright and clear when giving evidence; no contrary opinion was adduced as to the clinical aspects of her evidence. Given her expertise we accept Professor Anderson's opinion evidence on the clinical aspects of this matter.

144. Professor Anderson had a view about acceptable professional conduct in Dr Griffiths' general veterinary practice (e.g., as to the wisdom or appropriateness of boarding the dog overnight, leaving the dog unattended for some periods once she had recovered from the GA, and the advice offered to the dog owner about euthanasia as an option) which might be described as "the gold standard". Where her opinion in regard to these issues differs to that of Dr Gould, we prefer Dr Gould's opinion for the reasons set out below.

145. Dr Andrew Gould sits on the Veterinary Board of Victoria and is an experienced general practitioner veterinary surgeon working in Victoria in a single vet practice.

146. Dr Gould acknowledged the relentless and stressful aspects of working in solo practice. We find he had a good appreciation of the pressures facing Dr Griffiths in his general veterinary practice and the need to realistically appreciate those pressures and the owner's goals, expectations and financial limitations, which may not always be in keeping with the gold standard/best outcome for the animal.

147. As indicated in the preceding paragraph, we prefer Dr Gould's expert opinion regarding some aspects of this matter as to the acceptable professional standards and conduct for a veterinary surgeon in a busy and demanding general practice.

148. The events of Saturday, 14 January 2017 leading up to and during the first appointment with Dr Griffiths are largely undisputed.

149. Regarding the events at the surgery, nothing in the account of Anni and Monique was directly contradicted by Dr Griffiths or his assistant Winnie Cheung. Based on our findings as to the veracity of the witnesses and the evidence of Anni and Monique we are satisfied to make the following findings as to the relevant facts. Where the events are clarified further by the evidence of Dr Griffiths, as set out below, we accept that account.

150. In January 2017 Anni lived with her daughter Monique and her pre-school aged granddaughter.

151. Monique owned a 6-month-old American Staffordshire Terrier (Lilah). The dog was an energetic puppy who had previously caused some damage at Anni's home (in the garden and on the back door). We accept that Anni was not happy with the damage being caused by the dog at her home. Monique had sought some assistance from a dog trainer for puppy behaviour training (Jacqui Triggs - the training is detailed in an email - exhibit R1).

152. Sometime in late 2016 Lilah had escaped from a dog pen at their home and Monique had ordered a dog run to attempt to contain her.

153. In the day or two leading up to the incident at the surgery the dog had experienced some diarrhoea. The dog also had a swelling on her jaw, but according to Anni the main reason for taking her to the vet was because of the diarrhoea. Monique said both symptoms had led to the veterinary appointment.

154. Anni and Monique took the dog to the appointment and Anni's young granddaughter accompanied them. They took a sample of the dog's stool with them, which the veterinary receptionist had requested they do at the time of booking the appointment.

155. Anni and Monique accompanied the dog into the examination room. Both witnesses recall that Dr Griffiths had a young female assistant with him (later established to be Dr Winnie Cheung).

156. Anni described Lilah as being calm and well behaved at the appointment. No-one disputed that description of the dog's behaviour during the examination. Neither lay witness recalled Dr Griffiths having any difficulty with the dog when briefly examining her mouth. Anni said she could not recall this exactly, but she stated that the swelling in the dog's jaw was obvious.

157. Dr Griffiths said that he attempted to examine the dog's jaw, but the dog became restless, was 'mouthy' and was too strong to hold even with the assistance of Dr Cheung (p96). Dr Cheung could not recall this exactly but thought there was a problem with examining the dog. We accept the evidence of Dr Griffiths in this respect.

158. Dr Griffiths analysed the dog's stool sample. He told Anni that the stool sample contained e-coli and 'clostridia bacteria'. He said this was probably due to the dog licking bird poo.

159. He stated in evidence that he diagnosed 'haemorrhagic diarrhoea'. Whilst he recorded "chronic diarrhoea" in the clinical record, we note that he mentioned the diagnosis of haemorrhagic diarrhoea in his written response to the Registrar of the Board on 28 February 2017.

160. We accept that Dr Griffiths made the diagnosis of haemorrhagic diarrhoea based on his clinical observations and the results of the gram stain.

161. In further support of this diagnosis Dr Griffiths said in evidence that there was blood and mucus on the rectal thermometer, which he used to take the dog's temperature, and that a small amount of bloody diarrhoea was observed later in the dog's cage (just prior to the sedation of the dog). The latter observation and the observation of fresh blood on the rectal thermometer were corroborated by Winnie Cheung.

162. We accept the evidence of both witnesses that there was frank blood on the rectal thermometer and bloody stool in the cage despite the fact that this was not recorded in the notes.

163. We note the submission of the complainant's counsel that the evidence about mucus on the rectal thermometer was not recorded in the clinical records, was not pleaded in the initial Response or the Amended Response and bore all the hallmarks of reconstruction of evidence after hearing the evidence of Professor Anderson (in order to support the diagnosis of haemorrhagic diarrhoea). We accept this submission by the complainant.

164. For the reasons expressed above we do not accept Dr Griffiths' evidence that there was mucus on the rectal thermometer; we find this to be a reconstruction to support his diagnosis.

165. We accept that Anni was worried about the E-coli and/or bacteria being transmitted to her young granddaughter. Anni asked Dr Griffiths whether this could occur, and he said that it could (it had zoonotic or infectious potential). He advised Anni to steam clean items in the home and to bleach the area that the dog had been in.

166. Dr Griffiths told them he would put the dog on antibiotics straight away to treat the e-coli infection.

167. Dr Griffiths told the dog owners that he suspected that an abscess caused by a foreign body or bee sting might have been the cause of the swelling in Lilah's jaw. However, he told Anni that he needed to sedate the dog to properly examine her jaw.

168. At some point Monique left to go to work. Anni signed the consent form for the sedation and the inpatient care. Anni had undertaken to pay for the Vet's bill as Monique could not afford it. She was quoted about $450.00. Dr Griffiths said that Anni told him she could not afford more than $400.

169. Anni informed Dr Griffiths before she left that she and Monique had to work that night and they would not be able to stay with Lilah or clean the area where she was being kept. Anni was concerned about the bacterial infection and the possible transmission of bacteria to her granddaughter; she was reluctant to take the dog home.

170. Anni was aware that the dog could go home with her, but Dr Griffiths offered to board the dog overnight at his clinic to help Anni out. Dr Griffiths considered Anni had her hands full with parenting responsibilities. Anni was 'not ungrateful' at this offer and saw that offer as Dr Griffiths helping her out.

171. We find that the dog was not admitted for any form of treatment; she was not kept overnight for "hospitalisation". Even though this was noted as such on the invoice[36] we accept that this fee was for boarding the dog.

172. We find that Anni understood that the dog would not be monitored overnight, and that Dr Griffiths would check on the dog at 6am the following morning. Anni stayed at the clinic with her young granddaughter (who was playing with kittens in another area of the clinic) for about an hour and half and then left for work at around 1 pm.

Findings of fact as to events and treatment provided to the dog on Saturday, 14 January 2017

173. We accept Dr Griffiths' evidence that between 12.30 pm and 1 pm on the Saturday afternoon (after he had completed the 12.00 pm consult)[37] the respondent drew up 2 ml of Valium and 2 ml of Ketamine to sedate the dog. He has admitted that this was misdescribed in the notes as .02 ml Val and .02 ml ketamine.

174. We accept the evidence of Dr Griffiths and Winne Cheung that Dr Griffiths did not administer all of that quantity of the combined drugs.

175. Dr Cheung thought that "more than half" of the combined drugs was administered to the dog, namely more than 2 ml.[38] This was an approximation.

176. Dr Griffiths was not able to specify the precise quantity of the drugs given but explained that this was a sufficient quantity to ensure that she was sedated or anaesthetised "to effect".[39] We note that the procedure he was expecting to conduct was simple (a manual and visual observation of the dog's jaw and a fine needle aspiration) and was expected to be of short duration

177. Dr Griffiths agreed that he recorded in his clinical record that she was placed "Under GA",[40] but in cross examination Dr Griffiths went on to explain that Lilah was sedated to a "twilight state", that is to the point of being co-operative and recumbent but still with a swallowing reflex and with no need to intubate her.[41]

178. Professor Anderson indicated in her evidence that a titrated dose of 1.6 mls in a dog of Lilah's size would render the dog unconscious.[42]

179. We accept on all of the evidence that Dr Griffiths administered a sufficient combined quantity of the anaesthetic to Lilah (a dog weighing approximately 15.8-16 kg) to render her sufficiently unconscious to reach the level of a heavy sedation or light general anaesthetic.

180. Whilst under the sedation/light general anaesthetic, Lilah's jaw was examined. Nothing came of that examination, there was no foreign body located or an abscess. Dr Griffiths conducted a fine needle aspirate and later concluded that the lump was likely caused by a bee sting.

181. After the procedure the dog was placed (still sedated) in a cage at the clinic. We accept that the cage was of a sufficient size and make to house her and was not damaged.

182. In evidence both the respondent and Dr Cheung said they left the clinic at around 5.00 pm and checked on the dog before they left. (We note that in his email response to the Registrar dated 28 February 2017 Dr Griffiths said he left at 6.00 pm but the discrepancy between the written record and his evidence was not challenged by the complainant's counsel).[43]

183. Assuming the procedure under anaesthetic took about 20-30 minutes we find that Dr Griffiths left the clinic at least 3.5 hours after the anaesthesia had last been administered to the dog.

184. We find that when they left the clinic the dog was no longer anaesthetised or heavily sedated.

185. In the absence of any other version of events, we accept the evidence from Dr Griffiths (corroborated by Dr Winnie Cheung) that Lilah was sitting up in her cage, was calm, happy, responding to communication from Dr Griffiths and wagging her tail. Dr Griffiths stated that he considered she had 'recovered enough' from the anaesthesia to leave her; she may have still been mildly sedated.[44] We accept that Lilah was not ambulatory at that time.

186. Dr Griffiths was challenged about the accuracy of this evidence given his note in the clinical record, but he said this was an error and it should have read "left unattended un-sedated". We find this explanation about an apparent spelling error in the notes to be curious and irrelevant. Based on his own evidence we accept that when he left the clinic the dog was still mildly sedated.

187. Professor Anderson accepted that the recovery time from the anaesthetic would have been "a couple of hours" and that the dog would have recovered from the sedation by 6.00 o'clock at night.[45]

188. We agree that there is no evidence to suggest that Lilah was ambulatory at 5.00 pm, but we are not satisfied to the necessary standard that she remained 'heavily sedated' when Dr Griffiths left the clinic.

189. We find that Dr Griffiths was aware that cleaners would attend the clinic after hours and remain until around 7.30 pm, but we accept Dr Griffiths' evidence that the fact that he mentioned that in his clinical record (and in the email response to the Registrar) did not indicate that he was leaving the dog in their care to be monitored in order to notify him if any problems arose. We accept that he wrote that in his clinical notes to 'step through the timeline in his head'.[46] This explanation was not challenged by the Registrar's counsel in cross-examination.

190. We do not find that Dr Griffiths was relying on the cleaners to notify him if any problems arose at the clinic in his absence.

191. We find that, subsequently, the respondent returned to the clinic at around 8.00 pm to check on his rabbits and on Lilah, although we note that the 8.00 pm visit to the clinic is not mentioned in Dr Griffiths' clinical records or in his email response to the Registrar.

192. Nor is there any mention of an 8.00 pm return visit in Winnie Cheung's several written statements. In the various typed statements Dr Cheung stated that she thought Dr Griffiths returned to the clinic around 6.30 pm.[47] However, in evidence she said Dr Griffiths returned to the clinic at 8.00 pm.[48] Dr Cheung was not challenged in cross examination on this point.

193. We find the omission of the 8.00 pm visit to the surgery from Dr Griffiths' notes and from his email to the Registrar and from Winnie Cheung's typed statements to be a curious and significant omission. However, the accuracy of Dr Griffiths' evidence on this point was not challenged by the complainant's counsel in cross examination, or in Mr Ambrose's written closing submission. It was not put to the defence witnesses that they had colluded to provide a false version of events to the Tribunal in this respect. In the absence of any challenge to the evidence of Dr Griffiths or Dr Cheung on this point we accept their evidence.

194. Dr Griffiths took Lilah for a walk and to urinate at 8.00 pm. Given that she was ambulatory and alert at that time, we find that she had fully recovered from the anaesthesia. Dr Griffiths returned her to the cage. He was intending to return to the clinic at around 11.00 pm.

195. We find that Dr Griffiths returned to the clinic at about 11.15-11.30 pm on Saturday night 14 January 2017. When Dr Griffiths attended at the clinic, he found Lilah wedged awkwardly in the cage door.

196. We accept that Dr Griffiths was genuinely distressed and shocked by what he saw. He was clearly distressed while giving evidence in the Tribunal when recollecting how he found Lilah. Whilst indicating that he considered the incident to be an accident, he agreed that he felt guilty about what had occurred.

197. Dr Griffiths physically demonstrated the way that Lilah was wedged in the cage door during his evidence in chief (with the assistance of a flexible folder binder). His evidence, which we accept, was that the top part of Lilah's body was slumped outside of the cage with her front paws on the ground. She had damage to the underside of the left front paw indicating she had been scraping her paw on the ground. Her back feet were on either side of the cage doors behind her, but the front part of her body was twisted to the side somewhat, probably at about 90 degrees at the pelvis, indicating that she had twisted her body when struggling to get out of the cage.[49]

198. The respondent released Lilah from the cage and lifted her up on to an examination table. Dr Griffiths says he felt instability in the dog's rear when he picked her up.

199. Dr Griffiths stated that he released the dog from the cage and examined her. She was not under sedation at this point. Dr Griffiths checked the dog's vitals. He found no obvious damage at the chest area, but he stated in evidence that he considered the "back end was obviously damaged".[50]

200. Dr Griffiths agreed in evidence that he made an assumption that "because her torso was at 90 degrees (when she was trapped in the cage) there was something drastically wrong there".[51] Before he commenced the examination, he said his first thought was "this is going to be bad".[52]

201. In our view Dr Griffiths' evidence in this respect is significant.

202. We find that it is open on the evidence for us to conclude that, because Dr Griffiths found the dog distressed and awkwardly trapped in the cage, the shock and trauma of witnessing the accident (compounded by his distress and later by exhaustion) affected his judgment and the conclusions that he reached during his subsequent clinical examinations.

203. We find on his own evidence that Dr Griffiths made an immediate assumption that the dog must have sustained significant damage or trauma to its spine. We are of the view that this affected his subsequent clinical findings and observations and led him to jump to certain incorrect clinical conclusions.[53]

204. Dr Griffiths said he then immediately conducted a brief neurological examination. We find that this examination was performed unassisted and without sedation. He used mosquito forceps and was checking for pain responses and basic reflexes.

205. Dr Griffiths said there was no withdrawal reflex of the leg on the left, an absence of pain responses which he found confounding.[54] Complete paralysis was observed with no deep pain sensation.[55] There was no urine incontinence; he found this odd.

206. In examining Lilah's spine, the respondent says he felt a 'severe instability' to indicate displacement (or subluxation) in Lilah's spinal vertebra.[56] He compared the severity of the dog's spinal instability to the injuries he had seen in dogs in the past caused by "severe truck injuries, (dogs) hit by cars".[57]

207. Despite Dr Griffiths' evidence on this point, we do not accept that Dr Griffiths was able to discern or diagnose a severe subluxation in Lilah's spine at L6-7 (a well-muscled dog). This is a significant clinical finding which is unsupported by the X-rays. We discuss this further below when addressing the expert evidence.

208. We accept that Dr Griffiths then administered acepromazine (a calmative) and medetomidine (a sedative and analgesic) to lightly sedate Lilah in order to relieve the dog's pain and distress, improve the blood flow and to avoid any further instability.[58] He stayed at the clinic and checked her every two hours.

209. We find that he got little, if any, sleep overnight. To assist in his clinical approach to the dog's situation, he read numerous journal articles on the internet about subluxation injuries, one of which was tendered.

The second examination post injury - interpretation of X-rays

210. We accept the evidence of Dr Griffiths as to the nature and extent of the examination he conducted of Lilah between approximately 6.00 am and 8.00 am on Sunday 15 January 2017, but not regarding all of his conclusions or as to the interpretation of his findings.

211. We find that on the Sunday morning Dr Griffiths examined the dog again briefly. We accept that he then re-sedated her with a low dose of medetomidine and took some X-rays of the dog's spine at around 7.00-7.30 am.

212. He took a number of X-rays of the dog in the lateral and ventrodorsal (VD) views. He stated in evidence that he did not want to demonstrate the subluxation of the spine in the X-rays - he said he could paralyse her by doing that.[59]

213. Dr Griffiths' accepts the opinion expressed in the report of Dr C Beck about what was demonstrated on the radiographs.[60]

214. We find that Dr Griffiths made various findings on examination of the X-rays and noted them in his clinical records.[61]

215. Our discussion of his findings on the X-rays and the expert opinion about those findings is set out below. In short, we find that Dr Griffiths misread the X-rays and diagnosed scoliosis, nerve damage, a fractured pubis and major trauma to the dog's spine where none was apparent on the X-rays.

216. At approximately 7.30 am on Sunday 15 January 2017, we find that the respondent administered antisedan (sedative reversal) to Lilah to reverse the effects of the medetomidine.[62]

217. He placed the dog back in the cage and left the clinic at about 8.30 am-9.00 am to go home, pick up Dr Cheung (who was boarding at his house) and attend church. When he left the dog, he said she was attentive but relaxed and mildly sedated.

218. During the period from about 8.30 am-1.00 pm it is agreed that the dog was left alone in a cage at the clinic.

219. Both the respondent and Dr Cheung returned to the clinic at or around 1.00 pm on Sunday, 15 January 2017. Dr Griffiths then conducted a further examination of the dog with the assistance of Dr Cheung.

220. We accept that, by this stage, the dog had recovered from most of the effects of the 7.30 am sedative with the assistance of the antisedan. Dr Griffiths described her as "mildly sedated" and we accept that evidence in the absence of any evidence to the contrary.[63]

221. As to the findings on the clinical examination the respondent noted the following in his VPM computer programme clinical records 15 January 2017, 6.00 am, 8.00 am and 1.00 pm[64] (although it is not clear at what time each of the observations were made or the extent to which they were repeated observations):

Mental State - Depressed Posture - Abnormal

Paralysis - left hind and paresis right hind, but unable to stand, dragging hind legs in frog leg position

Movement - Dysmetria

Proprioceptive Positioning - Left and right hind - Nil

Spinal Reflexes - Patella left Nil and right reduced to 10 to 20% Pain perception - no deep pain left hind, some pain in right Bladder - unable to express

Colon enlarged and has not defeacated (sic) in 14 hours

Grade 5 pain level at crush area at L6 (Our emphasis)

222. The dog's condition on post injury examination was further summarised by Dr Griffiths in the clinical record as follows (Dr Griffiths indicating that the last sentence was added later on the Sunday evening):[65]

Dragging with legs splayed - both knuckled with loss of sensory, but continent. Left hind unable to move or support weight at 0% and right at 10% thereabouts. Patella reflex at 25% for right and absent to Left hind.

Given OCD nature of dog, doesn't like cages and probable some permanent crushing injures to hind limbs recommended euthanasia. (our emphasis)

Factual dispute regarding findings on post injury examinations

223. There is a dispute on the facts regarding the extent of the post injury examinations and Dr Griffiths' findings on his clinical examinations of the dog.

224. Some details about the examinations are recorded in the clinical records and others in the respondent's email response to the Registrar dated 17 February 2017. But the evidence that Dr Griffiths and Dr Cheung gave in the Tribunal departs in some respects from the 2017 documented record of what occurred.

225. The complainant's counsel submits that we should resolve any divergence in the facts about the examinations, and Dr Griffiths' findings on examinations, by reference to Dr Griffiths' clinical notes (C1 p 77) and the February email (C1 p 77-80).

226. Mr Ambrose submits that if examination details and findings are missing from the notes and the email they did not occur because the notes and the email were written contemporaneously by the respondent and document a summary of events, observations and clinical conclusions made shortly after the relevant events.

227. Conversely, Ms Kereru submits, and we accept, that Dr Griffiths admits that his clinical records were incomplete and inaccurate in some respects. Ms Kereru submits that, accordingly, there should be no reliance on the clinical record as to the truth of what occurred. However, as indicated above, we do not agree with Ms Kereru's submission in this respect.

228. However, neither do we agree with the complainant's submission that the clinical records and the email response provide the complete picture of what occurred. For instance, we find that the email sent by Dr Griffiths contains additional details about the conversations with the dog owners which we find are not accurate as they are contradicted by the evidence of the dog owners.

229. Whilst we find the omission of various important facts and observations from the clinical records and the email to be concerning and somewhat curious, we do not find that all of the evidentiary deviations from the record and email are indicative of untruthful recent construction by Dr Griffiths (and by Dr Cheung).[66]

230. We accept that there is no mention in the contemporaneous notes that the respondent was able (or thought he was able) to palpate a displacement in Lilah's spine/vertebrae, that he observed an anal wink and absence of any tail reflexes, that the post injury examinations occurred under sedation or otherwise, or with the assistance of a veterinary student (Dr Cheung), and that they both observed what they considered to be subluxation or displacement of the spine at L6- L7.

231. Whilst we find some omissions from the notes to be curious, and there is a sense of reconstruction after the event, we are not satisfied that Dr Griffiths was untruthful about his observations during the post injury examinations of Lilah.

232. Further, where Dr Griffiths' evidence is corroborated by Dr Cheung, we accept it. It was not put to Dr Griffiths and Dr Cheung that they had colluded to provide a false version of events to the Tribunal or had otherwise discussed their evidence. In the absence of any direct challenge to the evidence of Dr Griffiths or Dr Cheung we accept their evidence as to the examinations on the Sunday.

233. Whilst we accept the evidence of Dr Griffiths and Dr Cheung as to the extent of the examinations conducted on the dog at 1 pm, and their observations, we do not accept the conclusions that they both reached as to the existence of spinal displacement/subluxation, or lateral movement at L6-L7. We refer to our findings on the expert evidence below.

234. We accept that, when he examined Lilah, Dr Griffiths conducted a deep pain test detecting some pain in the right leg but none in the left (his notes record paralysis in the left leg and paresis (or partial paralysis) in the right and no deep pain left hind, some pain in right). He said he conducted a patella reflex, checked the anal tone, noted no urinal incontinence, no tail tone, no ability to wag her tail.[67]

235. In the notes he also records that he observed her dragging her legs in a frog leg position which he considered to be typical of a pelvic fracture ("That's why I read too much into the X-rays").[68]

236. Dr Griffiths says he again palpated a displacement or movement in the dog's spine/vertebrae and subsequently asked Dr Cheung to feel Lilah's spine and confirm the presence of the displacement.

237. Dr Cheung was a veterinary student at the time of this incident. She had never previously undertaken a neurological examination or felt a spinal displacement in a dog. She gave evidence that she felt the presence of "a little bit" of sideways movement in the dog's spine.[69] She described the dog as not exhibiting any pain response during this examination.

238. We find that Dr Cheung was mistaken as to sideways movement in the dog's spine due to our acceptance of the expert evidence as discussed below. We find that she was inexperienced at the time (having not yet completed her veterinary studies) and was influenced by Dr Griffiths in her observation in this respect.

239. In turn, due to our acceptance of the expert opinion evidence, we find that Dr Griffiths was clearly mistaken in his findings about the subluxation or lateral movement of the dog's spine. We will expand on this finding below when discussing the expert evidence.

Conversation with the dog owners on 15 January 2017**

240. We find that at around 1:30 pm on 15 January 2017, the respondent called Mrs Anni Glaser's phone number. Monique Glaser-Keating picked up the phone. The respondent told Monique that Lilah was not doing well, and Monique became upset. The respondent asked to speak with Mrs Glaser.

241. Monique gave the phone to Mrs Glaser and the respondent told Mrs Glaser that Lilah had an accident in the cage. The respondent invited Mrs Glaser and Ms Glaser-Keating to attend the clinic at 2.00 pm that afternoon.

242. We find that at 2.00 pm on 15 January 2017, Monique, Anni Glaser and Mrs Glaser's granddaughter attended the clinic. Dr Griffiths took them to the cage and explained how Lilah became stuck.

243. For the reasons expressed above we accept the evidence of Anni and Monique as to the events and conversations that took place when they attended the clinic in preference to the account of those events and conversations provided Dr Griffiths and Dr Cheung.

244. We do not accept the evidence of Dr Griffiths as to the conversations about diagnoses, prognosis or treatment options. Neither do we accept Dr Cheung's account for the reasons set out above.

245. We find that the respondent showed Mrs Glaser and Ms Glaser-Keating the X-rays he took of Lilah - he held them up to a light or a backlit screen.[70] The respondent told Mrs Glaser and Ms Glaser-Keating that Lilah had damaged her spine at L5 and L6, that she had suffered nerve damage, and that this was supported by the x-rays which were 'cloudy'.[71]

246. We find that Dr Griffiths told Anni Glaser and Monique Glaser-Keating there were no prospects of rehabilitation for Lilah, that her left leg would always be dragging, and that she would be in severe pain.[72]

247. The respondent further told Mrs Glaser and Ms Glaser-Keating that if there was any chance of rehabilitation, Lilah would have to be confined for a prolonged period of time in a confined space, and this would "send her crazy".

248. We accept that the respondent told Mrs Glaser and Glaser-Keating that, being a 'staffy', Lilah was prone to 'mental issues'. We accept that because of this Dr Griffiths advised against rehabilitation for an extended period of confined rest as a treatment option.

249. We find that the respondent recommended that Mrs Glaser and Ms Glaser-Keating should consent to euthanising Lilah, because it was the humane thing to do.[73]

250. We find that Dr Griffiths recommended euthanasia before discussing any other treatment approach. Anni Glaser was very clear about this in examination in chief and in cross examination; we accept her evidence in preference to any other version of the conversation.[74]

251. We refer to the respondent's notes which confirm that Dr Griffiths 'recommended euthanasia'.[75] We accept that his clinical notes accurately record his advice in this respect.

252. We accept Anni Glaser's evidence (corroborated to a degree by Monique) that Dr Griffiths did not suggest that they seek a second opinion, or to move the dog to a specialist centre for scans or further X-rays, or to treat the dog with anti-inflammatories and pain relief with cage rest for 24-48 hours to see if her condition changed (i.e., a wait and see approach).[76] This is consistent with what the respondent wrote in his email to the Registrar on 8 February 2017.

253. We accept that it was Mrs Anni Glaser who then asked about alternative treatment options.[77]

254. We find that the respondent said that surgery was an option but that even if surgery took place, the dog would be in pain, there would be no guarantees in terms of recovery, her quality of life would not be good,[78] and that Lilah's leg would still be dragging.[79] He painted a poor picture for her prognosis or the "worst possible outcome".[80]

255. There is nothing in the evidence of Anni Glaser to suggest she was quoted a significant amount of money at that time. Anni Glaser did not say in evidence that she was told by Dr Griffiths in the consultation that the cost of surgery would be between $5,000 to $10,000.[81] She said she found that out at a later time.[82] This is also consistent with the statement she gave to the government investigator in March 2018.[83]

256. We find that Anni Glaser was not told by Dr Griffiths during the conversation that the cost of surgery would be between $5 000 - 10 000.

257. We note that the surgical cost is mentioned in the email response emailed by Dr Griffiths to the Registrar on 8 February 2017 and we infer that Anni later ascertained the cost from that document when it was provided to her by the Registrar.

258. In response to a theoretical question from Mr Ambrose, Anni Glaser made it clear that she would have proceeded with surgery if there was a reasonable chance of a successful outcome for the dog even if she had known the cost of the proposed surgery:

1. What about if the vet had recommended some surgery that might have cost ...let's say $5000-$10000
2. If he could've guaranteed she'd have a good life and it was pain free and without dragging a leg, I would've gone and done it.[84]

259. We refer to the February email to the Registrar dated 8 February 2017, where Dr Griffiths sets out the advice he said he gave to the owners following a complaint being made by the owners to the complainant:

Mrs Anni Glaser was able to discuss the situation and said they were unable to house Lilah for weeks to months and it would be cruel to do so. I suggested specialist intervention with the high probability of surgery, lengthy hospitalisation and rehabilitation, with a guarded to poor prognosis that she would use her left hind leg again. Due to the costs estimated, in excess of $5,000 to $10,000 they decided to euthanise Lilah.

260. Despite the evidence of Dr Griffiths and Dr Cheung (which we do not accept in this regard), and what Dr Griffiths stated in the email to the Registrar on 8 February 2017, we do not accept the proposition put by the respondent's counsel that Mrs Glaser and Monique were quoted the cost of a surgical alternative.

261. However, we find that it is open on the evidence to infer that Dr Griffith's discussion of referral to a specialist with the prospect of surgery would have implied to the owners that there would be additional costs.

262. But we do not accept that it was the potential cost factor associated with surgery or any other treatment option that led to the euthanasia decision by the owners. Both Anni and Monique were consistent about this in their evidence despite extensive cross examination on this point.[85] They denied arguing about the costs of treatment options or that the costs of treatment was a factor. We accept their evidence on this topic in preference to the version offered by the respondent and Dr Cheung.

263. Further, we find that had Mrs Glaser and Ms Glaser-Keating been told that a second opinion could have been obtained by a specialist for around $300 they would likely have obtained that second opinion. We accept that they would have likely spent more money than that had it been necessary and had there been a more favourable outcome suggested from surgery.[86]

264. We find that the dog owners did not want to euthanise the dog; it was a distressing proposition for them. We find that Mrs Glaser and Ms Glaser-Keating only agreed to euthanise Lilah because the respondent recommended euthanasia on the afternoon of 15 January 2017 and that they were told that there was (to paraphrase) no other humane or promising treatment options available.

265. The respondent subsequently wrote-off the bill for Lilah's treatment and euthanasia totalling $997.

266. The complainant proposes that we deal with the allegations of unprofessional conduct under 10 separate headings. Those headings do not add any grounds of unprofessional conduct to the amended Complaint and are mostly consistent with the alleged instances of unprofessional conduct. We find this to be a convenient approach, but we will cross reference to the Complaint as required.

267. The complainant submits that the evidence supports a finding that the respondent engaged in unprofessional conduct with respect to the treatment of Lilah on 14 and 15 January 2017.

268. We accept that findings to the necessary standard of the occurrence of the 10 allegations (as further detailed in the Complaint) either in isolation, or in any combination, are sufficient to establish unprofessional conduct.

269. We rely on our factual findings as detailed above.

The respondent gave incorrect and misleading advice to the owners of Lilah on 14 January 2017 in relation to the diagnosis and management of Lilah's diarrhoea

270. The respondent diagnosed Lilah with haemorrhagic diarrhoea as a result of e-coli and clostridia infection. He relied on his observation on the gram stains and the blood and mucus on the rectal thermometer and a bowel movement resulting in stool with blood in it. He advised the owners of its zoonotic potential.

271. As indicated, we accept the evidence of blood on the rectal thermometer and the observation of the bloody stool in the cage. We do not accept the evidence about mucus on the rectal thermometer.

272. We accept the evidence of Professor Anderson and Dr Gould about what the established facts and observations reveal. According to their evidence (which was unchallenged by any other expert opinion)[87] it is unremarkable to have fresh blood on the thermometer in a dog that has diarrhoea, as there can be irritation of the rectum or localised bleeding (which is not haemorrhagic diarrhoea).

273. Professor Anderson's evidence was that mucus and blood in the stool may be more in keeping with a gastrointestinal issue (i.e., haemorrhagic diarrhoea). However, we do not accept the observation of mucus by Dr G and there are no contemporaneous notes or treatment regime (for example fluid therapy) to suggest that Lilah had haemorrhagic diarrhoea.[88]

274. Professor Anderson opined that it was unusual to reach such a diagnosis based on a single stool sample and that other observations would also be expected to support such a diagnosis (vomiting, inappetence, body condition, clinical dehydration and gut sounds).[89] There is no evidence that those observations were made.

275. Dr Gould gave evidence that e-coli is a normal inhabitant of the human and animal gut.[90] Dr Gould gave further evidence that clostridia is often present in faecal samples in low to high numbers and that he was not aware of any concerns in relation to the transmission of e-coli and clostridia to humans. Beyond basic hygiene, he would not recommend any additional precautions be taken.[91]

276. Similarly, Professor Anderson gave evidence that e-coli and clostridia are normal bowel flora components in dogs and that normal hygiene practices are recommended when handling faeces.[92] Professor Anderson further stated that she did not consider it was possible to quantify the number of bacteria present in a faecal sample using a gram stain.[93]

277. We find that Dr Griffiths' diagnosis of haemorrhagic diarrhoea was incorrect on the basis of his clinical observations. The facts support a finding that the dog had chronic diarrhoea. We accept the evidence of the expert witnesses that there was nothing in the clinical observations, based on our findings, to indicate that the dog's stool was zoonotic (infectious).

278. We therefore find that the advice given by the respondent to Mrs Glaser that Lilah's diarrhoea could be transmitted to humans and, in particular, could be transmitted to children was incorrect and misleading.[94]

279. We accept the expert opinion as to the level of the departure of this diagnosis from acceptable standards. We find that the conduct is incompetent and falls below acceptable professional standards and amounts to a breach of s 1 of the Code of conduct as pleaded (we will deal with the notes below).

280. We accept that the allegations at paragraph 3 and 4. A. of the Complaint are made out to the necessary standard.

281. We accept that the dog potentially had chronic diarrhoea. We find on the evidence that taking the dog home would have resulted in a difficulty for Mrs Glaser given the work commitments of both herself and Monique, the lack of someone to sit with Lilah, and the need to keep the house clean for her granddaughter. This is the case irrespective of the presence of infectious bacteria in the stool.

282. We do not accept that Dr Griffiths offered to 'hospitalise' the dog. We find that Mrs Glaser was aware that it was not medically necessary for the dog to be kept overnight. Dr Griffiths was aware that there was no clinical reason to hospitalise Lilah; he offered to board the dog to help Mrs Glaser out. We make no adverse findings about Dr Griffiths' failure to explore alternative options with Mrs Glaser to partition her house off.

283. We find that Dr Griffiths was aware that he would be returning to check on the dog (and his rabbits) at least twice after the clinic closed (although he didn't convey that to Mrs Glaser - he told her he would check on the dog at 6am). We find that he did not intend to leave the dog to be checked on by the cleaners. The cage was of an appropriate size and standard to safely cage her.

284. We find that Mrs Glaser was aware that the dog would be unattended for most of the night.

285. We agree with the expert evidence that Dr Griffiths ought to have told Mrs Glaser about the risks of boarding the dog in a cage unattended for most of the night, especially if she was to be left unattended under any continued effects of sedation. However, we find that Dr Griffiths did not intend to leave her unattended whilst sedated (and did not do so)[95] nor did he intend to leave her unattended all night. He had not been told by the owners that she had previously broken out of a pen. We find his advice to Mrs Glaser about the expected risks was adequate; she signed a consent form for anaesthesia and inpatient care and was aware of the expected risks.[96]

286. We find that leaving the dog unattended in an appropriate cage under mild or no sedation carried minimal risks.[97] Dr Griffiths had assessed Lilah to be safe to leave at 5pm; we accept his evidence on this point.

287. We do not find that the respondent's offer to board the dog overnight was unreasonable or that it fell below professional standards. We accept Dr Gould's opinion in this respect.[98] If it was a departure from acceptable standards, we find it to be a trifling or harmless departure from those standards and not amounting to unprofessional conduct.[99]

288. The allegations at paragraph 5 of the complaint are not made out to our satisfaction.

The respondent's assessment of Lilah's swollen jaw was inadequate and there was no proper reason to anaesthetise Lilah on 14 January 2017

289. We accept that Dr Griffiths suspected a bee sting or an abscess in the dog's jaw on presentation.

290. We note the evidence of Dr Gould that other treatment options could have been presented to the dog owners apart from an examination under anaesthesia. Dr Gould gave evidence that ultimately it is up to the owner to decide (on the basis of proper advice) which course they wish to take, and that he would not have made the decision to sedate and examine the dog himself.

291. However, whilst we accept that other general veterinary practitioners may have taken a different approach, we do not find that the decision made by Dr Griffiths to anaesthetise the dog to examine her jaw was unreasonable or below professional standards in the circumstances of this case.

292. We accept that the dog (a young well-muscled American Staffordshire type dog)[100] was not easy to handle, and a more thorough examination could occur under anaesthetic. The Tribunal finds that it was reasonable to anaesthetise the dog to enable a thorough examination of the dog's jaw.

293. This allegations at paragraph 4D and 4E. 1 of the complaint are not made out. Paragraph 4E 2 is considered below.

The respondent left Lilah unattended for a period of approximately three hours on 14 January 2017, whilst she was under the effects of anaesthetic, or was recovering from the effects of anaesthetic

294. Our factual findings are that the dog was placed under a light general anaesthetic at around 1pm, that Dr Griffiths left the clinic at least 3.5 hours after the anaesthesia had last been administered to the dog and that the dog was then no longer anaesthetised or heavily sedated. Lilah was sitting up in her cage, was calm, happy, responding to communication from Dr Griffiths and wagging her tail; she was mildly sedated and not ambulatory at that time.

295. We find that the dog would likely have fully recovered from the general anaesthetic by about 6 pm on the evidence of Professor Anderson and was certainly alert and ambulatory at 8 pm according to Dr Griffiths.

296. We find that the cleaners attended the clinic between 5 pm and 8 pm. We do not accept the allegation that Dr Griffiths expected the cleaners to monitor the dog.

297. The allegation at paragraph 10 ba. of the complaint (relying on the cleaners to monitor the dog) is not made out.

298. We accept that Professor Anderson's opinion is that 'best practice' would be not to leave an animal unattended for 'extended periods of time, especially when not fully conscious'.[101] We accept that opinion, however, we find that the dog was only left unmonitored by the veterinary practitioner for approximately one hour whilst she was under mild sedation and two hours whilst fully recovered. We do not find this to be an 'extended period of time'.

299. Dr Gould's opinion was that the dog should not be left after an anaesthetic unless ambulatory but conceded that if Dr Griffiths had assessed the dog as being wide awake and safe to leave, he would defer to his judgment.[102]

300. We have found that Dr Griffiths stated that he considered she had 'recovered enough' from the anaesthesia to leave her, although she may have still been mildly sedated.

301. We accept the expert evidence that there are risks to a dog if it is left unattended after a general anaesthetic, even if mildly sedated. However, we find that the risks were very low in the circumstances of this case given our findings about the dog's level of sedation when left and the circumstances in which she was left (a suitable cage). We also note that the injury to the dog did not occur when she was mildly sedated but occurred later in the evening when she was fully awake.

302. We refer to the first expert report provided by Professor Anderson on this topic.[103] Professor Anderson observed in her report dated 11 June 2018 that the event involving Lilah is an unusual accident, the cage size was appropriate and the closure mechanism standard. We also agree with Professor Anderson's observation that the owners had not communicated to Dr Griffiths that the dog had a history of trying to escape from a pen.

303. We do not accept the conclusion invited by the complainant about the clinical record (C1 p77) that the dog was "left unattended sedated for approx. 3.5 hrs".

304. We are not able to reach the conclusion advanced by the complainant at paragraph 8 or paragraph 10 a. b. or c. that the dog was left unattended whilst "unconscious, or alternatively heavily sedated".

305. We find that Dr Griffiths' conduct in leaving the dog in an appropriate cage when mildly sedated (but otherwise alert and responsive) for one hour, and alert and un-sedated for two hours, was not negligent or incompetent and did not depart from professional standards or from the code of conduct. If it was a departure from acceptable standards, we find it to be a trifling or harmless departure from those standards and not amounting to unprofessional conduct.[104] For completeness, we do not find that there was any departure from professional standards by leaving the dog unattended whilst un-sedated in a suitable cage from 8 pm - 11 pm for the same reasons.

306. The allegations at paragraphs 10 (a - c) and 11 (a - d) of the complaint are not made out to the necessary standard.

The respondent's assessment of the x-rays on 15 January 2017 was negligent

307. We accept the expert evidence of Dr Cathy Beck. Her report was tendered by consent and her conclusions are not in dispute.[105]

308. We also accept the expert evidence of Professor Anderson and of Dr Gould (in evidence and in their reports) about what the X-rays revealed and about Dr Griffith's interpretation of the X-rays. All experts agreed that a general veterinary surgeon should have been able to accurately interpret the X-rays.

309. We find that Dr Griffiths interpreted the X-rays and noted in his clinical record that:

... twisted lower lumbar causing fracture of pubis and subluxation of l5-l6 with narrowing and increased radio density around area. Vebtral (sic) dorsal view - scolisis (sic) despite traction used for position.[106]

310. We find that the clinical records support a finding that Dr Griffiths had concluded at that time from the X-rays that Lilah had sustained:

• a fractured pubis
• subluxation of L5 - L6 with narrowing (in his later note to the Registrar he said this was at L6 - L7)
• increased radiodensity around the (injured) area and
• scoliosis of the spine.

We conclude that these notes were all made by reference to his interpretation of the X-rays and not by reference to his clinical examination.

311. We accept Dr Beck's opinion that the X-rays demonstrate an 'impression of soft tissue injury' around the trapped area. We also accept the expert evidence that the X-rays do not show any spinal subluxation, pubic or other fracture, scoliosis or increased radiodensity (cloudiness) around the injured area.

312. Dr Griffiths made a note of the increased radiodensity (cloudiness) around the injured area in his clinical record and in his email response to the Registrar. We find that he told both Anni and Monique in their later conversations that this cloudiness signified nerve damage; it was clearly a significant finding in his mind.

313. We accept the expert evidence that nerve damage cannot be diagnosed from an X-ray.

314. We accept the evidence from all three expert witnesses that the increased radiodensity demonstrated on the X-ray is not indicative of nerve damage but is due to the dog's pelvis being superimposed over the L6-L7 area because of the position of the dog when X-rayed. We accept the opinion of Professor Anderson that the normal radiodensity of these vertebral bodies is illustrated on the VD view.

315. The expert evidence supports a finding that the X-rays do show a slight narrowing at L6-L7 especially on the VD view. We accept Professor Anderson's evidence that the narrowing at this level implies that this disc may have been damaged. We accept her conclusion that such disc damage can cause nerve damage/compression locally, but this is implied and cannot be seen radiologically.[107]

316. The narrowing on the X-ray at this level is not indicative of any major displacement or subluxation. We accept Professor Anderson's opinion that the X-rays do not show any evidence of lateral deviation of the spine which she said would be seen on the VD view if it had been there.[108] Dr Beck said the alignment of the vertebrae on the X-ray were normal.

317. We accept the opinion of Dr Gould that the X-rays did not reveal any evidence of severe subluxation.[109]

318. Dr Griffiths stated in his filed Response and in evidence that he diagnosed subluxation or instability at L6-L7 on the clinical and neurological examinations of the dog only and not based on the X-rays.

319. In Dr Griffiths' email response to the Registrar dated 28 February 2017,[110] written a month after the incident, he states that the severe subluxation at L6 - L7 cannot be seen on the X-ray as "only traction views were performed, minimising further spinal cord damage". We note that further in the email to the Registrar he states as follows:

Lilah had suffered acute severe trauma to her lower lumbar L6 to L7 with significant narrowing and a fractured pubis. The most significant finding was severe subluxation of L6 - L7 which was not evident on X-ray, for only traction views were performed, minimising further spinal damage (Our emphasis)

At point 9 of the email response to the Registrar he states that:

The X-rays showed a narrowing of the disc space at L6 - L7 with subluxation easily palpable laterally and sideways.[111]

320. We do not accept Dr Griffiths' evidence, or what he stated a month after the incident to the Registrar, that he placed no reliance on the X-rays to diagnose nerve damage and spinal displacement. We find that he placed significant reliance on the narrowing on the radiograph at L-6-L7 and we find that his focus on the X-rays when speaking to the owners demonstrates that he relied on the X-rays to support his diagnosis of spinal injury and nerve damage.

321. We agree with the complainant's submission that it is curious that Dr Griffiths made no note in his clinical records about palpating movement in the vertebrae, nor did he otherwise detail what he actually felt, in contradistinction to his findings on the X-rays. However, as stated above, we find that he diagnosed a severe subluxation at L6-7 based on a combination of his findings on clinical examination (where we find that he is mistaken about what he thought he felt) and on the X-rays.

322. In summary, we find that Dr Griffiths diagnosed major trauma to the dog's spine and nerves from the X-rays where none was apparent. We also find that he relied on his later mistaken observation of apparent lateral movement.

323. Dr Griffiths states in the Response and in evidence that the diagnoses set out in his clinical record were provisional diagnoses only. We do not accept that the diagnoses at that time were provisional; we find they were final and were based upon his misinterpretation of the X-rays and his misinterpretation of the apparent clinical finding of subluxation of the spine (referred to below).

324. We find that these errors in diagnosis affected the advice he provided to the owners.

325. Dr Griffiths' conclusions that the X-rays revealed a pubic fracture, scoliosis, severe subluxation of L6 and L7 and increased radiodensity (cloudiness) around the injured area are all wrong. The X-rays reveal none of those injuries or findings.

326. We agree with the complainant's submission that the extent of the error should not be ignored. We agree that undergraduate tertiary students would not make the error made by the respondent in reading the X-rays, let alone use them as a basis for recommending euthanasia.

327. Clearly the X-ray findings were critical to the respondent's thinking as he showed them to both Anni and Monique. He told both of them that the increased radiodensity (or cloudiness) signified nerve damage. This was clearly incorrect.

328. We find that his misinterpretation of the X-rays influenced his conclusions on clinical examinations, his diagnosis and his advice about prognosis, and this in turn influenced the ultimate treatment decision made by the dog owners.

329. We are satisfied that the allegation at paragraph 21 a. of the Complaint is made out to the necessary standard.

330. We find that this conduct amounts to a significant departure from professional standards. The conduct is both incompetent and negligent and constitutes a breach of paragraphs 3(1)(a) and 5(a) of the code of conduct.

The respondent's neurological examination of Lilah on 15 January 2017 was negligent - post injury diagnoses

331. On our findings there were three post injury examinations; two performed unassisted and when the dog was un-sedated, and one performed with the assistance of Dr Cheung when the dog was un-sedated.

332. We accept the respondent's argument that the allegation of incompetence at paragraph 20A relies on the manner of the examination (unassisted, when the dog was sedated).

333. Accordingly, we find that the allegation at paragraph 20A of the Complaint is not made out.

334. However, we find that even if the dog was un-sedated and even though one examination was performed assisted, the respondent's neurological examinations were incompetent and incomplete, and that he reached erroneous clinical conclusions.

335. We accept the expert opinion of Professor Anderson that the clinical presentation provided by the clinical notes, X-rays and the February email sent to the Registrar suggest that Lilah had peripheral nerve injury to the obturator and femoral nerves at their peripheral pathways (not at the central area of the spinal cord). Professor Anderson was clear in her evidence that there was nothing to indicate that the dog had suffered a severe spinal cord injury.[112] We accept her opinion in that respect.

336. As explained in evidence by Professor Anderson (and in her reports), it appears that the respondent failed to understand or appreciate the significance of Lilah being continent and her frog leg presentation.[113] Dr Griffiths stated in evidence that he concluded the frog leg position was indicative of pelvic fracture; he said that was why he placed too much reliance on the X-rays[114] (which did not reveal pelvic fracture). We find that this was a significant error both clinically and in the interpretation of the X-rays.

337. Professor Anderson relied on the clinical notes and February email to opine that Dr Griffiths did not perform the type of repeated careful examination of Lilah's neurological responses to perform a proper clinical workup (lack of examination of the cranial nerve, no mention of the sphincter reflex, no mention of the tail tone, testing the skin for a panniculus reflex.)

338. However, we have found that, despite an absence of notation, Dr Griffiths did check for an anal wink and an absence of tail reflexes. We find his notes are inadequate in this respect.

339. That does not alter Professor Andersons's opinion that, based on his other (accepted) findings and the X-rays, there was no evidence of spinal displacement, rather there was likely obturator and femoral nerve damage, which would possibly have resolved over time.

340. We agree with the complainant's submission that the respondent likely placed too much emphasis on the limited deep pain response observed on the left hind limb (but we note that the respondent observed deep pain response in the right hind limb).[115] Dr Griffiths said for the first time in cross examination that this might have been indicative of ligament injuries not a severing of the spinal cord.[116]

341. We accept the expert evidence before us that the presence of some deep pain response in the right hind limb combined with no evidence of injury on the X-ray ought to have led Dr Griffiths to conclude that there was no significant spinal injury.

342. We accept Professor Anderson's opinion that around 85 per cent of dogs recover from such a trauma even if, initially, no deep pain response is observed (here, of course, some deep pain was observed). We accept the expert opinion that the dog's chances of complete recovery from the trauma could only be accurately predicted if she was given time to recover from the initial bruising, being after at least a day or more of cage rest.

343. Dr Gould opined that, as a general practitioner veterinarian, he would have taken a different approach to the examination and management of the dog's condition. He would not have placed any weight on the X-rays to reach a diagnosis, except that they did not reveal any spinal fractures or other hind limb injuries.

344. He stated in his report that Dr Griffiths could not have manually detected subluxation of the spinal processes given that there was no indication of that on the X-rays.[117] He observed that, as there was some deep pain observed in at least one of the hind limbs, the prognosis was not quite clear cut for the dog. The dog needed time to recover, anti-inflammatories and then likely referral for a second opinion.[118]

345. We find that Dr Gould's recommended approach is in marked contrast to that taken by the respondent.

346. We agree with the complainant's submission that, against the overwhelming expert opinion, the respondent says that he could palpate movement in the vertebrae and that this observation explains his conclusions and his advice to the owners. Professor Anderson and Dr Gould said it would be impossible to diagnose subluxation in a well-muscled dog such as Lilah without X-ray confirmation.[119] We accept the opinion of the experts.

347. We conclude that Dr Griffiths was mistaken as to what he felt on palpation of the dog's spine. For the reasons expressed above, we conclude that Dr Cheung was also mistaken in observing 'a little bit' of sideways movement in the dog's spine.

348. We accept the opinion evidence that it is simply not possible that the respondent felt what he says he felt given that the X-rays show no displacement of the vertebrae, or severance of the spinal cord.[120] The respondent put no proper factual basis in evidence, nor did he introduce any contrary expert opinion, to dispute Professor Anderson's (or Dr Gould's) opinions that in the absence of radiological evidence you cannot palpate either different parts of the spine (where the spine has separated following a severe accident), a spinal fracture (specifically, subluxation of L6 or 67) or instability in the spine more generally.

349. The expert evidence is unchallenged on this topic.

350. We agree with the complainant's submission that perhaps the incident is something which has taken on increasing importance in the respondent's mind over time. We also suggest that the evidence indicates that Dr Griffiths was traumatised and distressed by finding the dog wedged in the cage and was exhausted from sitting up with the dog all night. These factors may all have contributed to his misinterpretation of his findings of apparent displacement of the dog's spine on clinical examination.

351. Ultimately, we find that the respondent simply did not proceed in a manner that could be expected of a competent veterinary practitioner when faced with this clinical picture. We conclude that Dr Griffiths misread the X-rays, was not competent in the conduct of his clinical examinations and misinterpreted his clinical findings.

352. In summary, the dog did not have a pubic fracture, scoliosis or severe subluxation at L6-L7. The increased density on the X-ray was not indicative of nerve damage. The dog had some pain response in the right hind limb indicating that there was in fact no permanent nerve injury or permanent crushing injuries as Dr Griffiths had concluded in his notes.

353. The diagnoses reached by Dr Griffiths were incorrect and premature. Both expert witnesses agreed that when Dr Griffiths spoke to the owners on the Sunday it was too early post injury to sensibly diagnose the actual injury or injuries and predict an outcome. The dog's progress needed to be observed over time.

354. We find that in all the circumstances the respondent erred in reaching incorrect diagnoses as to the nature and extent of the dog's injuries and as to the prognosis for the dog and regarding the appropriate treatment options.

355. The allegations at paragraphs 21 a, b, c (excluding the concern about the examination being performed unassisted or whilst sedated)[121] and 21 d are made out.

356. We find Dr Griffiths' conduct in this respect involved a significant departure from professional standards amounting to both incompetence and negligence.

357. We do not find that Dr Griffiths acted outside of his field of expertise; a general practitioner veterinarian should have been able to interpret the X-rays and conclude from a competent clinical examination that nerve damage was a possibility, but that major spinal damage was not demonstrated. But we do agree that he should have suggested to the owners that the dog be referred for a second opinion.

358. We find that he was negligent when acting within his field of expertise, but the code breach alleged at paragraph 22 a on the Complaint (s 2(g) of the code) is not made out.

359. We accept the expert evidence before us that current standards of veterinary practice dictate that the X-rays should not have been misinterpreted as they were in this case. Further, that the respondent ought to have concluded from his clinical examinations that the dog had likely nerve damage or compression and that the dog's chances of a positive outcome were not as dire as he had predicted.

360. Accordingly, we find that the remaining code breaches alleged at 22 b and c (ss 3(1)(a) and 5(a) of the Complaint are made out.

The respondent was negligent in his failure to provide the owners with proper advice on 15 January 2017, in relation to treatment options for Lilah following the accident in the cage, particularly in relation to non-surgical treatment options such as the administration of anti-inflammatory medication

The respondent gave misleading information to the owners on 15 January 2017 in relation to the options of specialist referral of Lilah following her accident in the cage

The respondent's overall advice to the owners on 15 January 2017 in relation to the overall prognosis of Lilah's recovery was misleading, which led to the owner's consent to euthanise Lilah

361. These headings all relate to the advice given to the owners on the Sunday.

362. We refer to our findings above regarding the conversation with the owners about his diagnosis and the dog's prognosis and the treatment options offered.

363. We find that his advice about the dog's diagnoses and her prognosis was incorrect and was negligent and incompetent. His advice that there were no prospects of rehabilitation, that her leg would always be dragging and that she would be in severe pain was incorrect; this was entirely premature advice and was based on an incorrect diagnosis and a misinterpretation of the X-rays and of his clinical findings.

364. Dr Griffith's advice that the dog would have to be confined in a cage for a prolonged period of time for rehabilitation purposes was unfounded and premature. The advice that she would likely require surgery was also premature.

365. We accept the view expressed by Professor Anderson in her first report (in response to a question of whether Dr Griffiths' prognosis of Lilah's chances of recovery was accurate):

I believe that Dr Griffiths assessment was made on insufficient evidence to be certain about her prognosis. Given Lilah had only just injured herself, had been inadequately examined and had not had the benefit of appropriate treatment or time to assess if she might improve from acute swelling, the answer (to this question) is definitely no.[122]

366. We accept the expert evidence[123] that following Lilah's accident on 14 January 2017, there were three treatment options available to the dog owners which should have been recommended by the respondent:

• treat Lilah medically with anti-inflammatory medication and pain relief and review her condition over time (even just overnight) with cage rest or supervision;
• refer Lilah to a specialist for a second opinion at minimal cost; or
• suggest euthanasia as a last resort.

367. Professor Anderson expressed the view that the first two treatment options were appropriate to recommend to the owners but that it was far too early to talk about euthanasia. Professor Anderson was very clear about this during cross-examination.[124] She stated in her second report that:

Jumping quickly to discussion of euthanasia was inappropriate as (Lilah) had not had a proper assessment and diagnosis made nor any effective attempt to manage her initial pain.[125]

She also opined that the dog could have been transferred to a specialist centre for a second opinion at a low cost - in the order of $200.

368. Dr Gould gave an opinion based on his experience in general practice (recognising practicalities such as pet owner's goals, expectations, personal circumstances, time and financial constraints). We accept and prefer Dr Gould's opinion about the three treatment options, but only with euthanasia as the last of those options and with the owners being properly quoted the cost for each alternative. However, we accept his evidence that the option of euthanasia should not have been a recommendation but an option of last resort after all other options were explained and explored.

369. Dr Gould favoured the first approach; he suggested the dog could have been housed for an extra night in the same cage at Dr Griffith's clinic.[126] In his report he stated:

In this case, there were diminished pain responses, and it was unclear if euthanasia was in the animal's best interest at that stage, so on the assumption that more time was needed to weigh up options for treatment it would be justifiable to wait.[127]

370. Dr Gould considered it was reasonable to offer euthanasia as an option. But he would only actively recommend euthanasia where there was no alternative, whether on humane grounds or due to financial constraints.

371. He stated that referral and proper assessment with a contrast CT scan was 'the gold standard'. Thereafter surgery may or may not be indicated but referral for a proper assessment was the best way to find out if the prognosis was hopeless or not.

372. Dr Gould said that it was appropriate for alternative treatments to be offered with estimates of cost and the success of each alternative and that this is the only way that informed consent can be given for any procedure. We accept this opinion evidence.

373. We have found on the evidence that the first two options were not presented to the owners, and they were not presented with a cost estimate as to those alternatives.

374. We refer to our factual findings. We have found that Dr Griffith recommended euthanasia as the initial approach and mentioned as an alternative option referral to a specialist with likely surgery required (at an implied cost) with a poor prognosis (requiring months of caged or supervised rehabilitation).

375. We do not find that the owners were quoted a significant amount of money for referral to a specialist. We find that they were told about referral to a specialist centre but were led to believe that surgery would inevitably follow with a poor prognosis and a difficult rehabilitation for the dog to follow. We find that an additional cost for that option was implied but not quoted.

376. We find that the owners were not informed that a specialist referral at a low-cost for a second opinion only was an option. They were not provided with a quotation for that option.

377. We are satisfied to the appropriate standard that the allegation at paragraph 25 of the Complaint is made out.

378. We accept that the advice provided about referral to a specialist centre was misleading.

379. We find that the respondent recommended euthanasia and the owners acted on that advice. We are satisfied to the appropriate standard that the allegation at paragraph 26 of the Complaint is made out.

380. We are satisfied to the appropriate standard that the allegations at paragraphs 26A, 27 a-e and 28 of the Complaint are made out. (We note that our findings are that the diagnosis and prognosis was not based on a "single assessment" as pleaded at para 27 e but this does not alter our findings that these allegations are made out.)[128]

381. We are satisfied to the appropriate standard that the conduct constitutes unprofessional conduct within the meaning of s 61 of the VPA in that the respondent was negligent and incompetent and acted improperly in providing advice to the owners about the prognosis and treatment options for the dog.

382. We are satisfied to the appropriate standard that the respondent breached the code of conduct at s 3(1)(a) by practising as a veterinary surgeon in a manner that would likely bring the practice of veterinary surgery into disrepute and at 5(d) by failing to recommend that the dog be referred to a specialist for a second opinion.

The respondent's notes on 14 and 15 January 2017 are wholly inadequate

383. The respondent admits that his note taking is inadequate. We accept that had another veterinary surgeon taken over Lilah's care and management it would have been impossible for that veterinary surgeon to gain a complete clinical picture of Lilah's situation. The records are not sufficient to stand alone to justify treatment and procedures.

384. The respondent concedes that there were significant errors in noting the amount of sedative used on the Saturday. There was no record of the weight to drug ratio in relation to the dog's sedation, or of the monitoring of the dog in the cage after the anaesthesia. There was no record of dosages of other drugs subsequently administered.

385. We accept Dr Gould's opinion in his report (C1 page 64) that the notes ought to have set out clearly the diagnosis and prognosis and the treatment options.

386. We are satisfied to the appropriate standard that paragraphs 4 b, 4E 2, 6, 11 d and 18 c of the Complaint are all made out.

387. We find that by failing to keep adequate records the respondent contravened s 5(l) of the Code of Conduct.

The respondent failed to inform the owners of Lilah's accident between 11:30pm on 14 January 2017 to 1:30pm on 15 January 2017, and subsequently failed to obtain informed consent to the procedures he performed on Lilah on 15 January 2017, including leaving Lilah unattended for a period of 4 hours on the morning of 15 January 2017

388. We refer to our factual findings and note that the respondent did not contact the owners about the dog's accident until approximately 1:30 pm on Sunday, 15 January 2017.

389. We find that it is unacceptable that Dr Griffiths waited until that time to contact the owners. We find that Dr Griffiths should have contacted the owners at a reasonable time on the Sunday morning to advise them of the incident and to obtain consent from the owners to perform X-rays, neurological examinations, administer sedation, not to transfer her to a specialist centre and/or leave Lilah unattended between 8 am and 12pm.

390. We are satisfied to the appropriate standard that the allegations at paragraph 17 a and b of the Complaint are made out. We find that this conduct constitutes unprofessional conduct in that the respondent contravened ss 2(b) and 5(c) and of the Code of Conduct by:

• failing to communicate effectively with the dog owners
• failing to seek consent to additional invasive and costly procedures (X-rays, re-sedation).

391. On the basis of our reasons, we find that Dr Griffiths is guilty of unprofessional conduct and that there is proper cause for disciplinary action.

1. The Tribunal will now hear from the parties as to disciplinary action and ancillary orders to be imposed.

2. The matter will initially be referred to a directions hearing.

Code of Professional Conduct for Veterinary Surgeons (2015)

s 1 Persons registered with Veterinary Surgeons Board of SA are expected to abide by the following basic principles when carrying out their professional duties:

• the primary concern of the profession is for the welfare of animals;
• all work performed by veterinary surgeons is to be at a standard of competence acceptable to their peers; ...

s 2(a) Veterinary surgeons have a special duty towards animal welfare and to alleviate animal suffering.

s 2(g) Except in an emergency, where immediate relief of suffering is paramount, veterinary surgeons have a duty to operate only in fields in which they are competent to do so unless supervised by a colleague with competence in the field.

s 3.1(a) A registered person must not practise veterinary surgery in a manner that would be likely to bring the practice of veterinary surgery into disrepute.

s 3.2(a) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science.

s 3.2(b) A veterinary surgeon who has accepted responsibility for the care of an animal should ensure that the animal is not abandoned unless there is a good reason to do so and unless the welfare of the animal is safeguarded.

s 5(a) A veterinary surgeon should, at all times, diligently maintain knowledge of current standards of veterinary science.

s 5(c) 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 probably cost and any ongoing costs.

s 5(d) A veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable.

s 5(I) Veterinary surgeons must maintain adequate records of treatment carried out. 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 records should include: a description of the problem, differential diagnoses, treatment carried out, 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. Records of any case should be of such detail that any veterinary surgeon could take over management of the case at any time. Records should be sufficient to stand alone to justify treatment and procedure.

[1] Complainant's book of documents (C1) p 75.

[2] C1 p 69. Ms Hannah Glaser-Keating did not given evidence during the proceedings.

[3] This email was not included in C1 but was provided to the experts and tendered to the Tribunal by the respondent and marked R1.

[5] The record of interview having been obtained for the purpose of the legal proceedings on the instructions of a solicitor.

[6] Senior Member Rugless observed that had a witness statement been obtained from Dr Cheung in the course of the investigation then it would have been released to the respondent by the Registrar with the other statements.

[7] We note that nothing was put to Dr Cheung in cross examination suggestive of a prior inconsistent statement, collusion or any other untoward conduct.

[8] Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, [39].

[9] This lack of fairness is not the same as a denial of 'procedural fairness': procedural fairness is afforded by providing a particularised complaint and during the hearing. However, for example by contrast, we suggest that it is common practice for SAPOL to always attempt an interview of an accused person, despite the fact that an accused person can rely on the privilege against self-incrimination. A prosecuting or disciplinary authority faced with an exculpatory explanation may decline to proceed with all or some allegations if they cannot be proved to the required degree or may decline to prosecute in some circumstances in the exercise of a prosecutorial discretion. We observe that a failure to properly investigate may be relevant to a later costs application.

[11] [1938] HCA 34; (1938) 60 CLR 336 esp. per Dixon at [362]-[363].

[12] Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953; Marin v Chiropractic Board of Australia [2019] SADC 17, [458]-[459].

[13] Veterinary Practice Act 2003 s 12.

[14] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545.

[15] South Australian Civil and Administrative Tribunal Act 2013 s 39.

[16] Law Society of South Australia v Neville John Jordan (1998) 198 LSJS 434; [1998] SASC 6809, [458]-[459].

[18] [2008] VCAT 1784, [51].

[19] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163.

[20] Keogh v The Medical Board of South Australia [2007] SASC 342; (2007) 99 SASR 327; F v R (1983) 33 SASR 189; Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479, [487]-[488] and [492]-[493].

[21] As was articulated in In re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58.

[22] F v R (1983) 33 SASR 189, [194].

[23] Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339, [345]; Fung v Wilde (1989) 41 SASR 232; Chan v Medical Board of South Australia (1986) 41 SASR 434, [447]; Lehmann v the Registrar of the Veterinary Surgeons Board of SA [2014] SADC 201, [40].

[24] Veterinary Surgeons' Board of Western Australia v Harris [2017] WASAT 100, [216]; Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136, [119].

[26] Transcript of proceedings day 1 (T1) p 60-91.

[27] Browne v Dunn (1893) 6 R 67; R v Hart (1932) 23 Cr App R 202.

[28] Neither do we accept Dr Cheung's account of those conversations.

[30] Transcript of proceedings day 2 (T2) p 47 - 52.

[31] Witness statement dated 4 February 2018 (R5), [4].

[32] Transcript of proceedings day 4 (T4) p 62.

[35] It was not her role to compile, record and remember the details of the treatment provided to Lilah. She was present at the practice in a work experience role only.

[37] Transcript of proceedings day 3 (T3) p 98. Dr Griffiths was not cross examined on this point although the registrar submitted that this was closer to 2.30 pm.

[53] At T3 p 131 "How did I come to this conclusion? - except I was there, I saw the curve of the spine, except I felt the laxity..."

[62] We note that the administration of antisedan at this time was not included in the notes, but Dr Griffiths was not challenged about this in cross examination.

[64] C1 p 88. Dr Griffiths' Clinical record - in evidence he said there were only two examinations during this period of time.

[66] We have already commented on the curious omission of an 8pm visit to the clinic by Dr Griffiths to check on and walk the dog, although we have accepted that the 8pm visit occurred for the reasons expressed above.

[95] She may have been mildly sedated bus safe to leave.

[96] Prof Anderson agreed that the accident was most unusual and not expected.

[99] Keogh v Medical Board of South Australia [2007] SASC 342; [2007] 99 SASR 327 [65.5].

[100] C1 p 61. Prof. Anderson described the breed as active and boisterous especially when young.

[104] Keogh v Medical Board of South Australia [2007] SASC 342; [2007] 99 SASR 327, [65.5].

[112] Professor Anderson's expert reports; T2 p 41-44, and p 50-51.

[113] These observations supporting obturator and peripheral nerve damage but no spinal cord injury.

[121] See the discussion above about there being no unfairness to the respondent on the pleadings as there is no significant departure from the alleged unprofessional conduct.

[123] Professor Anderson did not favour the third option as a recommendation at that early stage of the dog's post injury assessment.

[128] See the discussion above about there being no unfairness to the respondent on the pleadings as there is no significant departure from the alleged unprofessional conduct.