Veterinary Practitioners Board of New South Wales v Gallagher; Veterinary Practitioners Board of New South Wales v Gallagher

Supreme Court of NSW|2015-06-19|Before: Adams J

Solicitors: HWL Ebsworth Lawyers (plaintiff) McMahon Broadhurst Glynn (defendant)

2014/00364771 Counsel: A Naylor/ J Lawrence (plaintiff)

Solicitors: HWL Ebsworth Lawyers (plaintiff) McMahon Broadhurst Glynn (first defendant) Crown Solicitor's Office (second defendant) File Number(s): 2014/00364795; 2014/00364771

Professional misconduct

Professional misconduct is defined in the Act as follows - "professional misconduct means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner's registration, or (b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act."
The Veterinary Practice Regulation 2006 (NSW) provides, for the purposes of paragraph (b) of the definition, that a breach of clauses 2 to 20 (except clauses 15, 16 and 19) of the Code is declared to be professional misconduct for the purposes of the Act. Clause 8 of the Code provides as follows - "Availability to care for animal A veterinary practitioner must, when accepting an animal for diagnosis or treatment: (a) ensure that he or she is available for the ongoing care for the animal or (b) if he or she will not be so available, make arrangements for another veterinary practitioner to take over the care of the animal."
The language of this clause is somewhat awkward, seemingly directing attention to the position when the animal is accepted for diagnosis or treatment rather than to that which arises after acceptance, so that paragraph (a) should be understood as reading that the veterinarian must "ensure that he or she will be available for the ongoing care for the animal". If the veterinarian, at that time, is not able to ensure adequate availability, then arrangements for another veterinarian to take care of it must be made. Once accepted, the care of the animal is adequately covered by other clauses of the Code: clause 1 (the obligation to maintain and apply appropriate professional standards); clause 2 (the welfare of animals must at all times be considered); clause 3 (pain relief must not be refused); and clause 5 (utilisation of the skills of colleagues by consultation or referral when appropriate). However, both the Board and Tribunal, as it seems to me, construed the clause as continuing to apply after acceptance by examining the extent to which Dr Gallagher was actually "available for the ongoing care of the animal" in question. I have assumed, for present purposes, that this was an available interpretation. It is also worth observing, I think, that the clause necessarily involves matters of judgment, of fact and degree. It cannot be absolute. Thus, "available" must mean reasonably available; "arrangements" must mean reasonable arrangements; and "reasonable" itself must mean as generally thought to be appropriate by competent veterinarians in good standing. "Available" and "arrangements" are inherently uncertain terms. The clause does not require a veterinarian, as it were, to insure against all eventualities. The "ongoing care" must also depend on the circumstances and reflect the relevant professional standards. These considerations and the wide range of possible circumstances make it obvious that minds might well reasonably differ about how the clause applies in a particular case.

Factual background

The animal in question was a dog which had been brought to the practice where the practitioner was employed early on the morning of a Sunday of a long weekend. The dog had been having problems with urination since the previous Thursday. Dr Gallagher was assisted by a nurse. A second nurse was to commence work at 1pm but called in the morning to say she was ill and unable to come in. The carers telephoned during the day several times but, becoming dissatisfied with its treatment, removed the animal at about 8pm although they did not take it to another veterinarian practice for another 15 hours. It was then found that the dog had a ruptured bladder, which had almost certainly occurred at least 48 hours earlier. According to the Tribunal, this "would have been evident had a proper diagnosis been made during the time that the dog was under the applicant's care". As agreed with the carers (and, as I understand it, the Tribunal accepted was appropriate), the applicant attempted to take x-rays. However, the equipment malfunctioned. Although Dr Gallagher had performed a non-specific test (neither diagnostic nor exclusive to any one cause), she could (and should) have used other tests which would almost certainly have shown the abnormalities which were detected on the following day. These tests would have taken less than five minutes to do.
The Tribunal characterised the essence of the Board's concerns as being a failure to make an appropriate diagnosis, given the dog's presenting clinical signs and history, which should have given rise "to a high index of concern… that there may have been some serious underlying pathology". Dr Gallagher had diagnosed progressive gastric distension but the submission of the Board to the Tribunal was that this diagnosis was less likely because, by the early afternoon, there was no further evidence of any distension. The Tribunal stated - "It is the applicant's failure to take appropriate steps to investigate other possible causes of the dog's clinical signs and her failure to provide supportive therapy such as IV fluids, which is of greatest concern to the Board."
Dr Gallagher acknowledged that, in hindsight, the proposed test would have been prudent but, as the Tribunal understood her evidence, she did not administer it because the practice was unusually busy on that day and the nurse scheduled to commence work at 1pm was unable to come with no replacement being found and it was not until 5.30pm, when the evening shift veterinarian arrived, that assistance was obtained.

The Tribunal's decision

The Tribunal rejected the Board's criticism that Dr Gallagher had failed to keep an eye on the dog throughout the day, accepting the evidence of Dr Gallagher to the contrary. The Tribunal noted that the practice's principals gave unchallenged evidence that Dr Gallagher, in their opinion, had acted appropriately. Whether the proposed tests or other treatment would have led to a different result was doubted but - "… we are satisfied that there was an unacceptable delay in diagnosis and treatment of the dog. He appears to have been held in a holding pattern, primarily due a lack of staffing and equipment and also a lack of procedures for dealing with situations of this kind [to obtain alternative or additional assistance]. These are essentially matters for the owners of practices … That is, procedures should have been in place for arrangements that can be made by the on duty veterinary to call in assistance or refer an animal for diagnosis and treatment to another practice. No such arrangements appear to have been in place in this case." The Tribunal found that, having accepted the dog, Dr Gallagher failed "to ensure that she made a proper diagnosis and treatment (if necessary) within a reasonable time… not because of any intention to do so, but due to the circumstances of the day". It therefore concluded - "In our opinion the gravamen of the applicant's conduct is her failure, given the circumstances of the day, to make … alternative arrangements [for another veterinary practitioner to diagnose and treat the dog]. As we have noted, that failure was not intentional. Nevertheless, it was a prima facie breach of clause 8 of the Code of Conduct. We do not otherwise find that the applicant has breached clauses 2, 4 or 5 of the Code of Conduct as alleged." [Emphasis added].
Having noted that the Board found that Dr Gallagher breached clauses 4, 5 and 8 of the Code (despite finding Dr Gallagher guilty only of unsatisfactory professional conduct though such breaches amounted to professional misconduct within the definition in s 35 of the Act) and submitted she had also breached clause 2, the Tribunal stated - "[63] We have found that the material before the Tribunal establishes a prima facie breach of clause 8 alone. [64] As noted … breaches of this clause … are prescribed as amounting to professional misconduct and not unsatisfactory professional conduct. That is, breaches of these clauses are regarded to be more serious than those prescribed in clause 12 for the purpose of unsatisfactory professional conduct. [65] Accordingly, on the basis of our finding that prima facie the applicant breached clause 8, the appropriate disciplinary finding would be professional misconduct. As this was not a finding the applicant understood she was required to meet and given the circumstances of the day together with our finding that the applicant did not act intentionally in breach of her obligation under clause 8, in our opinion, it is not appropriate to make a disciplinary finding of professional misconduct. [66] However, we share the concerns of the Board that conduct of this kind might arguably also amount to the less serious disciplinary finding of unsatisfactory professional conduct and recommend consideration be given as to whether the regulation should be amended. [67] On the basis of our findings the decision of the Board is not the correct and preferred decision. Accordingly the appropriate order is to set aside the decision of the Board."
I have mentioned that the Board, though finding Dr Gallagher had breached, inter alia, clause 8 of the Code, found her guilty of unsatisfactory professional conduct rather than professional misconduct. In its submissions to the Tribunal the Board's legal representative brought to the Tribunal's attention the provisions of clause 11 of the regulation declaring the breaches of the Code found by the Board to be professional misconduct for the purposes of the Act and submitted - "Accordingly, it is open to the Tribunal to make a finding of professional misconduct against the Applicant. Arguably, the Tribunal is required to make such a finding by reason of the operation of clause 11 should it determine that the Applicant has breached these provisions of the Code. However, in the Respondent's submission, the breach by the Applicant in this case, while serious, is not so serious as to warrant a finding of professional misconduct, particularly having regard to the difficulties the Applicant faced as a result of the staffing levels at the … [practice] on that day. The Respondent submits that a finding of unsatisfactory professional conduct would be appropriate. Such a finding could be made by reference to subparagraphs 35(c)(1) and (k) of the definition of unsatisfactory professional conduct under the Act." The provisions referred to were as follows - "unsatisfactory professional conduct means any of the following: (c) engaging in conduct in the veterinary practitioner's professional capacity that, if repeated or continued, is likely to do any of the following: (i) cause unnecessary suffering to an animal, … (k) any other conduct of a veterinary practitioner that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of veterinary science…" The Tribunal's view as to the case Dr Gallagher thought she had to meet (implicitly, that it would be unfair, as it were, to move the goal posts on its own initiative) was entirely justified by the Board's submission to the effect that a finding of professional misconduct, though open, was inappropriate.

Discussion

The Tribunal expressly refrained from finding that Dr Gallagher was in breach of clause 8 of the Code. Quite what it meant by its "prima facie" finding is not clear, though it appears to have considered that, apart from the qualifying matters of procedural fairness, the circumstances of the day in question and the lack of any intention to breach the Code, Dr Gallagher's conduct would have constituted a breach of the Code and, thus, professional misconduct. As it seems to me, the statement that (only) a prima facie breach required a finding of professional misconduct, is plainly wrong but, I think, merely exhibits an awkwardness of language. It is only if a breach had been actually committed, not prima facie committed, that such a result followed. I consider that the Tribunal merely meant to convey that, were it not for the qualifying matters, it would have found that Dr Gallagher had breached clause 8 of the Code.
I have already mentioned that clause 8 involves questions of fact and degree. These are very much matters of specialist professional judgment. Thus, whether the veterinarian's availability or the nature of ongoing care is inappropriate must depend on the application of standards accepted in the profession. Given the fact that a breach of the Code is professional misconduct, and the relevance of professional standards to the question, whether (dealing only with clause 8) they have not been met, both the fact and the degree of departure from those standards must be relevant to the question whether the Code has been breached. The departure must, plainly enough, be significant. If it amounted only to unsatisfactory professional conduct, the incoherent result would be that, by definition, such unsatisfactory professional conduct would be professional misconduct. The oddity of this result is emphasized when it is borne in mind that breaches of certain clauses of the Code by definition amount only to professional misconduct. If something less than unsatisfactory professional conduct could be a breach of clause 8, the disparity between the realities of professional practice and the legislative definition would be even greater. Accordingly, it is only if the impugned conduct amounts to such a departure from professional standards as to constitute professional misconduct that the clause will have been breached. If this be correct, to conflate a breach of the Code and professional misconduct would not be an error. Section 47 of the Act appears to reflect a spectrum of professional misconduct in which that warranting suspension or cancellation of registration is in the most serious category. Thus, the Board may take a number of steps itself when it finds professional misconduct has been committed but, if that misconduct is such as to warrant suspension or cancellation of registration, it must refer the veterinarian in question to the Tribunal. The distinction between this degree of misconduct and breaches of the Code appears to be reflected in the definition of professional misconduct in s 35 in paras (a) and (b). That is not to say that a breach of the Code cannot amount to misconduct justifying suspension or cancellation. Plainly it might. Against this construction is the argument that the reference to the Code in the definition would be rendered unnecessary because in all cases the question of breach would be tested by whether the conduct of the practitioner amounted anyway to professional misconduct. However, the Code, taken as a whole, appears to cover every aspect of professional practice, so that it is difficult to think of misconduct which would not fall within it, one way or another. It serves the undoubtedly useful purpose of specifying particular practices or areas of conduct relevant to the questions of professional standards and those, perhaps, which might not otherwise be regarded as professional misconduct, such as refusing to supply a case history (clause 10) or to return records (clause 11).
The starting point for the submission that the Tribunal was bound to conclude that Dr Gallagher was guilty of professional misconduct was that it had found that she had been in breach of clause 8 of the Code. However, as I have pointed out, the Tribunal expressly declined to do so. As well as the issue of procedural fairness, the Tribunal referred both to the circumstances of the day and Dr Gallagher's intention as justifying this outcome. The circumstances were the subject of extensive discussion by the Tribunal, which brought its specialised experience to bear. As to standards, the Tribunal pertinently noted that the practice's principals - of course, competent veterinarians in good standing - had expressed the unchallenged opinion that Dr Gallagher had acted appropriately. Furthermore, the charges which, in substance, alleged a failure to adequately care for the animal (clause 2, requiring the animal's welfare to be considered at all times and clause 4, requiring professional procedures to be carried out in accordance with current standards) were rejected. In the end, all that was left was Dr Gallagher's (unreasonable) delay in diagnosing and treating the dog's condition because she was too busy, which resulted from her unintentional failure to make alternative arrangements for additional care, which was primarily the responsibility of her employers. There was no suggestion by the Tribunal that this resulted in adverse consequences for the dog.
The Board submitted in this Court, in effect, that the only reason for it not having concluded that Dr Gallagher was guilty of professional misconduct was that the Tribunal found she had not intended to breach clause 8. I do not accept the accuracy or, indeed, fairness of this characterisation. It seems to me that the Tribunal accepted that Dr Gallagher had acted in accordance with what she believed were her professional obligations and had administered such treatment as she thought at the time was necessary and desirable, though in hindsight she accepted it would have been prudent to administer another test, which (as it happened) she did not consider because she was too busy; of course, the malfunction of the X-ray machine did not justify any criticism. It must follow from the rejection of the alleged breach of clauses 2 and 4 that omitting to perform the specified blood test was not a failure to act in accordance with current professional standards.
In my view, the Tribunal based its conclusion that there had been a prima facie breach of clause 8 on two considerations: first that Dr Gallagher had been too busy (on her own account) to consider whether the additional test should have been administered but that otherwise she was relevantly available; and, second, that she had not herself ensured that alternative arrangements were in place for additional assistance if a nurse became ill or another practice was prepared to take over care of the animal too much. As to the first, a careful reading of the decision reveals that, had Dr Gallagher thought of administering this test but decided that it was unnecessary, this matter would have been inconsequential. As to the second, the Tribunal thought that such arrangements were primarily the responsibility of the owners of the practice. How these factors actually came to apply and their significance on the question of whether clause 8 had been breached plainly depended, in the Tribunal's view, on Dr Gallagher's professional attitude (or intention) and the "the circumstances of the day" and the applicable standards accepted by the profession, known to and applied by the Tribunal.
Accepting that the issue of intention was part of the Tribunal's reasoning, there is no error unless intention is irrelevant. As to this, the Board submitted to this Court (but not to the Tribunal), intention and honest and reasonable mistake were irrelevant as "it is more likely than not that a breach of the Code of Conduct is an absolute liability disciplinary offence". At the outset, there is nothing in the language of the Code that suggests the possibility of absolute liability. Since, as I have explained, clause 8 necessarily requires the application of reasonable, as distinct from some absolute, standards about which reasonable minds might differ, it necessarily follows that if, objectively speaking, the requirements of the clause were reasonably satisfied, there can have been no breach of the clause. In some circumstances it is obvious that an honest and reasonable mistake, say that an extra nurse was understood to be coming at a particular time but, unbeknown to the veterinarian, could not attend when the circumstances did not permit alternative help to be arranged - and examples could be multiplied - might well mean that the clause had not been breached. There can be no rule that an honest and reasonable mistake is irrelevant. I see nothing that suggests a different approach should be taken in cases of the present kind from anything said in Harper v Racing Penalties Appeal Tribunal of Western Australia (1995) 12 WAR 337; 78 A Crim R 433 and Day v Harness Racing New South Wales [2014] NSWSC 1402, to which I was referred in this respect but deal with fundamentally different rules in a very different context. As to the intention of Dr Gallagher to which the Tribunal directed its attention, this was really (as I have explained) directed to her understanding of what was required in the circumstances. It was a relevant factor and justified being given some significance; the extent of that significance was a matter for the Tribunal.

Conclusion

There was ample material justifying the Tribunal's decision, in effect, that although there were shortcomings in the arrangements for the care of the dog in question, the circumstances did not justify a finding that Dr Gallagher had breached clause 8, since she had not sufficiently fallen short of the applicable professional standards. However, that did not mean that it could not determine whether such shortcomings otherwise constituted unsatisfactory professional conduct.
The Tribunal ultimately concluded - "[67] On the basis of our findings the decision of the Board [that Dr Gallagher was guilty of unsatisfactory professional conduct] is not the correct and preferred decision. Accordingly, the appropriate order is to set aside the decision of the Board." As I understand this decision, the reason that the Board's decision was not the "correct and preferred decision" was that, having positively found a breach of clause 8, it was bound to make a finding of professional misconduct and could not merely find Dr Gallagher was guilty of unsatisfactory professional conduct. Furthermore, the Tribunal, in effect, found that Dr Gallagher had not breached clause 8, so that, to the extent that the Board relied on its mistaken conclusion that she had, it erred and its decision could not stand. However, as I have already stated, if Dr Gallagher had acted inappropriately or inadequately to some degree in respect of the requirement to which clause 8 pointed, the question whether this amounted to unsatisfactory professional practice was not foreclosed and remained to be considered. Contrary to the apparent view of the Tribunal, there is no lacunae in the regulation needing correction.
In setting aside the decision of the Board, the Tribunal had not fulfilled its jurisdictional task. Section 51 of the Act, which makes provision for the Tribunal's powers when a complaint is proved, only operates where an application had been made under Division 1 of the Act for a disciplinary finding against a veterinary practitioner. Such an application may be made by the Board under s 50 of the Act, although s 47(2), as I have pointed out makes such an application an alternative to the Board itself taking one or more of the actions specified in subparagraph (b) of that subsection. An application made by a practitioner in respect of whom the Board has made a disciplinary finding for a review is made pursuant to s 48 of the Act. The relevant review is conducted by the NSW Civil and Administrative Tribunal in accordance with the provisions of the Administrative Decisions Review Act 1997 (NSW) (the Review Act). Section 63 of that Act provides as follows - "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
It follows from s 63(1) of the Review Act that the Tribunal must independently "decide what the correct and preferable decision is". It is insufficient simply to conclude that the decision under review was wrong. It must then go on to take one or more of the alternative courses specified in s 63(3). It did not do so.

Outcome

The powers of the Court on an appeal of this kind are set out in Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) - "29(8) Non-lawyer appeals (8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court."
The Board, in this Court, contended that the Tribunal erred "when it found it had a discretion not to find… [Dr Gallagher] guilty of professional misconduct", there being no such discretion available. As I have said, the Tribunal did not proceed on the basis of any discretion but made a substantive finding that Dr Gallagher had not breached clause 8 of the Code. This was a matter of judgment, not discretion. Whether this conclusion is right or wrong is a question of fact (which is not appealable) unless there is no evidence capable of justifying such a finding or the Tribunal took account of an irrelevant consideration. As I have said, the Tribunal's conclusion was plainly open on the evidence and the question of intention was not irrelevant. Secondly, the Board contended that the Tribunal, having found that Dr Gallagher had not breached clause 8 of the Code, failed to consider (as sought by the Board) whether, in the circumstances, she had been guilty of unsatisfactory professional conduct. For the reasons already given, this submission should be accepted: the Tribunal has failed to exercise the jurisdiction reposed in it by s 63 of the Review Act.
However, the events in question occurred on 30 September 2012, almost three years ago. The penalty imposed by the Board in response to its finding of unsatisfactory professional conduct, the major adverse aspects justifying which were rejected by the Tribunal, shows that the extent of any remaining justifiable criticism of Dr Gallagher's conduct is slight. Dr Gallagher has had this matter hanging over her head for long enough.

Orders 1. The summons in matter 2014/364795 is dismissed. 2. The summons in matter 2014/364771 is dismissed. 3. The plaintiff is to pay the costs of Juliana Gallagher in each proceeding.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2015

Veterinary Practice Regulation 2006(NSW)

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Judgment (12 paragraphs)

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