OCCUPATIONAL REGULATION - VETERINARY SURGEONS - where vet kept inadequate records - where vet operated from premises not approved - where vet conducted house calls without approval - where vet concedes conduct and gave undertaking to the Board - whether any further orders necessary

Veterinary Surgeons Act 1936 (Qld), s 22F, s 22E, s 29A

Veterinary Surgeons Regulation 2002 (Qld), reg 25

Psychology Board of Australia v GA [2014] QCAT 409

Ms Louise Nixon, Solicitor of Lander & Rogers Lawyers.

[1] Joseph O'Flaherty has been registered as a veterinary surgeon at various times since 1964. The Veterinary Surgeons Board of Queensland ('the Board') has referred disciplinary proceedings to the Tribunal in which it alleges that Dr O'Flaherty has engaged in 'misconduct in a professional respect' within the meaning of s 22F of the Veterinary Surgeons Act 1936 (Qld) ('the Act').

[2] Pursuant to s 22F of the Act a vet is taken to have engaged in misconduct in a professional sense if the vet engages in any of the conduct set out in paragraphs 22F(a)-(n).

[3] In this case the Board in the referral alleged that Dr O'Flaherty engaged in misconduct in a professional sense in that he:

1. Was negligent or incompetent in the practice of his profession;[1]

2. Practiced veterinary science from a premises that was not approved by the Board;[2]

3. Conducted a veterinary house call practice without the approval of the Board;[3]

4. Failed to keep such records as prescribed or directed by the Board.[4]

[4] Dr O'Flaherty did not file a response to the referral. He has however, engaged with and responded to the Board. He also attended the oral hearing of this referral held on 2 December 2015.

[5] In its referral the Board sets out the alleged facts and circumstances forming the basis of the referral as follows:-

• At the relevant times between July 2009 and March 2015 Dr O'Flaherty was registered with the Board.
• He practiced as a vet from his property at 258 Tallagandra Road, Holmview QLD ('the premises').
• In September 2011, Dr O'Flaherty had sought approval from the Board to practice at the premises.
• On 6 December 2011, the Board wrote to Dr O'Flaherty advising that it had decided to refuse the approval because the premises did not meet the minimum standards prescribed by the Board under the provisions of s 29A of the Act.[5]
• In the same letter, the Board noted that Dr O'Flaherty did not have approval to conduct a house call practice. They advised him that a house call practice is required to have access to Board approved premises for referral of general anaesthetic and intensive care cases.
• Dr O'Flaherty did not subsequently apply to the Board for approval to conduct a house call practice.
• Between 27 September 2014 and 28 September 2014 Dr O'Flaherty treated a 12 week old male Staffordshire Bull Terrier ('Buffer') at the premises.
• On 27 April, he went to Buffer's owner's house at the request of Buffer's owners and treated Buffer including vaccinating him.
• Dr O'Flaherty returned the same day as Buffer was still unwell. He then took Buffer to the premises where Buffer stayed overnight.
• The owner collected Buffer the next day, at which time Dr O'Flaherty gave the owners anti-biotics to give Buffer.
• The anti-biotics had expired.
• Dr O'Flaherty's clinical notes in relation to his treatment of Buffer did not record an adequate health history of Buffer, did not record the nature and extent of the physical examination performed, did not list differential diagnosis, did not record Dr O'Flaherty's clinical reasoning, did not record advice to Buffer's owners about the risks associated with vaccinating Buffer when he had a temperature and did not record whether the owner's consented to the vaccination.

[6] Dr O'Flaherty did not file a response to the referral. He did however correspond on 27 July with the Board upon receipt of the referral and the bundle of relevant documents. He said:[6]

This letter is in response to legal proceedings instituted by yourself against me. I thank you for being so tolerant of my marginal behaviour as a house call vet so far.

I would have to plead guilty to at least 3 of the four charges, the first one being arguable as I have done much study. There were extenuating circumstances for my behaviour but as I have no inclination to go through a legal process to defend what I am no longer involved with (and unlikely to be so in the future) I would like to cancel my veterinary registration.

[7] Upon receipt of this correspondence the Board wrote to Dr O'Flaherty seeking to clarify with him the extent of his admissions.[7]

[8] In that letter the Board noted that it appeared that Dr O'Flaherty conceded three of the allegations, namely inadequate records, practicing from premises that were not approved by the Board and conducting a veterinary house call practice without the Board's approval. The Board asked him to confirm whether he did admit those allegations and whether he considered that he had engaged in misconduct in a professional respect.

[9] They also asked him to consider in view of his stated intention not to practice again, whether he was prepared to provide the Board with an undertaking not to seek re-registration. A draft undertaking to that effect was provided to Dr O'Flaherty.

[10] In response Dr O'Flaherty provided the Board with the signed undertaking on 28 August 2015, in terms whereby he would:

• Immediately and permanently retire from veterinary practice;

• Not seek re-registration as a vet surgeon with the Board; and

• Never apply to be relieved of the undertaking.

[11] He also acknowledged:

• The Board was entitled to inform other registration boards about the undertaking;
• The undertaking remained in force indefinitely;
• If the Board reasonably believed he failed to comply with the undertaking it could take whatever action was appropriate under the Act.

Did Dr O'Flaherty engage in misconduct in a professional respect?

The Board alleges Dr O'Flaherty (i) failed to keep records prescribed

[12] The Board provided copies of the records kept in relation to Buffer.[8]

[13] They are scant. They do not comply with requirements of regulation 25 of the Veterinary Surgeons Regulation 2002 (Qld) which provides the record must include details of any concern or injury of the animal; the details of the examination; details of treatment and results; and details of instructions to the owner.

[14] The Board also relied on an expert report from Dr Squires[9] who said:

Dr O'Flaherty's medical records for 27th September are extremely brief and provide insufficient detail about the history and physical examination findings... No list of differential diagnoses is provided... The medical record is not informative about Dr O'Flaherty's line of clinical reasoning and is therefore, in my opinion, grossly inadequate.

[15] In his written submissions provided to the Tribunal on 17 November 2015, Dr O'Flaherty conceded that his clinical records were inadequate:

I admit to shortcomings in record keeping of clinical notes. Unfortunately this was one of the consequences of doing everything myself... Sometimes I get tired and make a mistake or don't fully record every detail.

[16] At the hearing Dr O'Flaherty again conceded his record keeping was inadequate.

[17] By failing to keep the records prescribed by regulation 25 Dr O'Flaherty engaged in misconduct in the professional respect.[10]

ii) Dr O'Flaherty practiced veterinary science from a not approved veterinary premises

[18] The Board produced an evidentiary certificate issued by the Registrar (Valerie Mustafay). The certificate certified that Dr O'Flaherty had never held approval to use the premises as veterinary premises.

[19] That is consistent with the letter referred to earlier in these reasons where Dr O'Flaherty's application to have the premises approved[11] was refused.

[20] Dr O'Flaherty in his written submissions commented on the allegation:

Minding Buffer over night at my place for the owner allowed me to closer monitor and treat him. Perhaps illegal but in the best interests of the dog and the owner.

[21] Dr O'Flaherty conceded at the oral hearing that he had practiced at premises that were not approved.

[22] We find that that Dr O'Flaherty has by this conduct engaged in misconduct in a professional respect.[12]

iii) Conducting a veterinary house call practice without Board approval

[23] On 16 September 2011, Dr O'Flaherty in his covering letter seeking approval to use the premises as veterinary premises wrote 'I have been carrying out a small veterinary practice doing house calls only for some time now'. [13]

[24] In responding to this and refusing the application the Board in its letter to Dr O'Flaherty on 6 December[14] also noted 'You do not hold an approval from the Board to conduct your house call practice'. The letter went on to advise Dr O'Flaherty what he could to obtain approval.

[25] In his written submissions Dr O'Flaherty said under the heading 'House call practice not approved' that:

It is a requirement for approval that one has affiliation with another veterinary practice, a requirement that I found difficult as my fees are of necessity somewhat lower to provide a service to the less affluent clientele that I serve.

[26] At the oral hearing Dr O'Flaherty conceded that he did not have Board approval to conduct a house call practice. He also conceded that he treated Buffer at the owner's residence on 27 September 2014.[15]

[27] We accept that in conducting a house call practice without approval that Dr O'Flaherty has engaged in misconduct in a professional respect.[16]

[28] In its referral, the Board had raised another ground namely that Dr O'Flaherty in his treatment of Buffer was negligent and / or incompetent.

[29] Dr O'Flaherty, whilst conceding the facts supporting the allegation (e.g using out of date antibiotics), he did not concede he was negligent or incompetent.

[30] The Board chose not to pursue that ground, submitting that the Tribunal could find that Dr O'Flaherty engaged in misconduct in a professional respect as the other three grounds supporting the referral had been made out.

[31] On the basis that we have found that Dr O'Flaherty practiced veterinary science from a premises not approved by the Board, that he conducted a veterinary house call practice without Board approval and that he failed to keep adequate records, Dr O'Flaherty has engaged in misconduct in a professional respect.

[32] The Tribunal is empowered under s 22E of the Act to make the orders set out in that section if a finding of misconduct in professional respect is made. These orders include removing the surgeons name from the Register, suspending registration, a pecuniary penalty and reprimanding the vet. The Board in this case does not seek the imposition of any of these sanctions. It says this is an appropriate course given the undertakings already provided to the Board by Dr O'Flaherty.

[33] Dr O'Flaherty said in his written submission to the Tribunal on the issue of penalty:

As indicated in my previous correspondence with the Board I do not wish to contest the allegations. I have broken the regulations in not being registered and I must pay the penalty. I have previously offered and accepted cancellation of my registration and would rather not incur a financial penalty as well. I accept one or the other is inevitable but I would prefer not to have both.

[34] The Board says the undertaking given is sufficient and it is not necessary for the Tribunal to make any further orders.

[35] The Board points out:

1. Dr O'Flaherty has indicated he no longer wishes to practice as a vet and intends to retire;

2. He is at an age where it would not be unusual for a vet to retire;

3. The undertaking does not impose an unfair restriction on Dr O'Flaherty given his age;

4. Dr O'Flaherty has made admissions to the majority of the matters described in the referral;

5. By making admissions, Dr O'Flaherty has saved the Board and the Tribunal the cost and time involved in a contested hearing;

6. By making admissions, Dr O'Flaherty has saved Buffer's owners from giving evidence and being cross-examined;

7. The undertaking fulfils the objects of the Board in regulating the profession.

[36] The Board referred the Tribunal to one previous unreported decision of the former Veterinary Tribunal, where the Tribunal in imposing sanctions took into account the undertakings given by the Registrant to the Board.

[37] The Board also referred to a number of health disciplinary matters in QCAT where the Tribunal had taken into account undertakings in deciding sanction.

[38] In one matter Psychology Board of Australia v GA[17] the Tribunal commented:

The order proposed by the parties also seeks the Tribunal's approval of an 'undertaking'... However, in view of the fact that the respondent has already given this specific undertaking to act in the prescribed manner there is nothing the Tribunal can do to relieve her of those burdens during the prescribed 12 month period.

[39] In this matter the conduct which Dr O'Flaherty concedes occurred may not have warranted a sanction that removed him from the Register. However, he has given the undertaking to the Board and that is not something the Tribunal can interfere with. Having given it however, in the circumstances outline in paragraph 35 above, it is in our view appropriate not to take further action pursuant to s 22E against Dr O'Flaherty and to make no order as to costs.

[40] We order accordingly.

[1] Veterinary Surgeons Act 1936 (Qld) ('the Act'), s 22F(f).

[2] Ibid, s 22F(m).

[3] Ibid, s 22F(m).

[4] Ibid, s 22F(i).

[5] Affidavit of Valerie Mustafay, sworn 6 November 2015 Brisbane - Exhibit "VM-27".

[6] Affidavit of Louise Marie Nixon, sworn 25 September 2015 - Exhibit "LMN-2".

[7] Affidavit of Louise Marie Nixon, sworn 25 September 2015 - Exhibit "LMN-3".

[8] Affidavit of Valerie Mustafay, sworn 6 November 2015 Brisbane - Exhibit 'VM-13".

[9] Affidavit of Valerie Mustafay, sworn 6 November 2015 Brisbane - Exhibit "VM-21".

[11] Affidavit of Valerie Mustafay, sworn 6 November 2015 Brisbane, Exhibit "VM-27".

[13] Affidavit of Valerie Mustafay, sworn 6 November 2015 Brisbane - Exhibit "VM-22".

[17] [2014] QCATA 409.