Part 7Complaints, investigations and proceedings

Part 7—Complaints, investigations and proceedings Division 1—Preliminary 65—Interpretation In this Part, a reference to veterinarian includes a reference to a person who is not but who was, at the relevant time, a veterinarian under this Act or a veterinary surgeon or veterinary practitioner under a repealed Act. 66—Proper cause for disciplinary action There is proper cause for disciplinary action against a veterinarian— (a) if the veterinarian's primary registration was improperly obtained; or (b) if a waiver or modification under this Act relating to the veterinarian's registration was improperly obtained; or (c) if the veterinarian is for any reason no longer a fit and proper person to have primary registration or deemed registration; or (d) if the veterinarian is guilty of unprofessional conduct; or (e) if the veterinarian contravenes an undertaking made by the veterinarian and accepted by the Board under section 74(6)(a); or (f) if the veterinarian contravenes an order of the Board under section 74(6); or (g) in any other circumstances prescribed by the regulations. Division 2—Complaints 67—Board to establish processes for complaints (1) The Board must establish administrative processes for receiving and dealing with complaints received about the conduct of veterinarians. (2) The administrative processes must— (a) set out how complaints may be made; and (b) ensure that complaints are dealt with in a timely and efficient manner; and (c) set out the time frames within which complaints are expected to be dealt with; and (d) contain provisions relating to notifying veterinarians and complainants of receipt of complaints, the steps taken by the Board in response to complaints and the outcome of complaints (including provisions setting out when such notifications need not be given). (3) The Board must publish the processes on a website determined by the Board. 68—Making complaint about veterinarian etc (1) An aggrieved person may make a complaint about the conduct of a veterinarian in accordance with the administrative processes established by the Board under section 67. (2) The Board may initiate a complaint about the conduct of a veterinarian (and, for the purposes of this Part, such a complaint will be taken to be a complaint made in accordance with this Division). (3) Despite subsection (1), the Board may, in its discretion, receive a complaint about the conduct of a veterinarian in any other manner the Board thinks fit (and, for the purposes of this Part, such a complaint will be taken to be a complaint made in accordance with this Division). 69—Assessment of complaints (1) The Board must cause each complaint made in accordance with this Division to be assessed to determine— (a) whether the alleged conduct to which the complaint relates would, if proven, amount to a proper cause for disciplinary action; and (b) whether the complaint should be dealt with by way of Board resolution under Division 3; and (c) whether the complaint is to be dealt with under Division 5; and (d) whether the complaint raises some other issue that should be referred to SA Police or another agency. (2) Subsection (1) does not apply to a particular complaint if— (a) the conduct that is the subject of the complaint is being, or has previously been, dealt with under this or a repealed Act; or (b) the matter raised in the complaint is, in the opinion of the Board, trivial, frivolous or vexatious or otherwise not made in good faith; or (c) the alleged conduct to which the complaint relates occurred more than 7 years prior to the making of the complaint; or (d) having regard to all the circumstances of the matter, further investigation of the complaint is unnecessary or unjustifiable; or (e) the Board determines to take no further action in relation to the complaint. (3) In making a determination for the purposes of subsection (1)(a), the Board may have regard to any evidence of the veterinarian's conduct that the Board considers relevant. (4) Subject to this Act, an assessment under this section may be conducted in such manner as the Board thinks fit. 70—Dismissal of certain complaints (1) The Board must dismiss a complaint if— (a) the conduct that is the subject of the complaint is being, or has previously been, dealt with under this or a repealed Act; or (b) the matter raised in the complaint is, in the opinion of the Board, trivial, frivolous or vexatious or otherwise not made in good faith; or (c) the alleged conduct to which the complaint relates occurred more than 7 years prior to the making of the complaint. (2) Without limiting subsection (1), the Board may dismiss a complaint if— (a) the alleged conduct to which the complaint relates occurred more than 3 years, but less than 7 years, prior to the making of the complaint; or (b) the Board is of the opinion that it is not in the public interest or the interests of justice to deal with the complaint; or (c) having regard to all the circumstances of the matter, further investigation of the complaint is unnecessary or unjustifiable; or (d) the complaint is not made in accordance with this Division. (3) If the Board dismisses a complaint under this section, the Board must, in accordance with the administrative processes established by the Board under section 67, notify— (a) if the veterinarian concerned was notified of the complaint—the veterinarian; and (b) in any case—the complainant, of the dismissal. 71—Decision to take no further action Despite another provision of this Division, but subject to the administrative processes established by the Board under section 67, the Board may, if it thinks it appropriate in the circumstances, take no further action in relation to a complaint. Division 3—Certain complaints may be resolved by Board 72—Application etc of Division (1) This Division applies to a complaint, or complaints of a class, determined by the Board after consultation with the Minister to be complaints that may be dealt with under this Division. (2) The Board must cause notice of each determination, and each variation of a determination, to be published on a website determined by the Board. (3) The Board must, in respect of the operation of this Division, have regard to, and seek to give effect to, the following principles: (a) the purpose of a Board resolution under this Division is to avoid formal disciplinary proceedings by dealing with a complaint as a question of educating, and improving the future conduct of, the veterinarian concerned; (b) Board resolution of matters under this Division is to be conducted as expeditiously as possible and without undue formality. 73—Complaints that may be dealt with under Division The Governor may, by regulation— (a) specify the kinds of complaints and conduct that may, or may not, be the subject of a determination under section 72; and (b) set out procedures for dealing with matters under this Division (including, to avoid doubt, making provision for the conciliation of complaints); and (c) make further provisions relating to the operation of this Division. 74—Dealing with matters by way of Board resolution (1) A matter to which this Division applies is to be dealt with by the Board causing the matter to be referred to the Executive Officer for resolution in accordance with this Division. (2) Despite subsection (1), the Board may determine that a matter is to be dealt with under Division 5 rather than this Division for any reason it thinks fit. (3) Without limiting subsection (1), the Executive Officer must ensure that— (a) the veterinarian concerned is informed of the complaint made against them; and (b) the veterinarian is given the opportunity to admit or deny the allegations contained in the complaint in accordance with any requirements set out in the regulations; and (c) the veterinarian is given the opportunity to inform the Executive Officer of any information the veterinarian thinks relevant in respect of the matter; and (d) the complainant is contacted and the Executive Officer— (i) explains to the complainant that the matter is to be resolved under this Division (including an explanation of the processes involved and possible outcomes); and (ii) gives the complainant the opportunity to inform the Executive Officer of any further information the complainant thinks relevant in respect of the matter. (4) If an allegation contained in a complaint is not admitted in accordance with the requirements set out in the regulations, the complaint is to be dealt with under Division 5 (and in that case the Executive Officer must remit the complaint to the Board to be dealt with under that Division). (5) If— (a) the Executive Officer is of the opinion that there would be a benefit in undertaking conciliation between the complainant and the veterinarian; and (b) the complainant and veterinarian each agree to undertake conciliation, the Executive Officer must attempt to resolve the matter by way of conciliation. (6) In the course of a Board resolution under this Division, the Board may, after consultation with the Executive Officer, take action, or order the taking of action, of 1 or more of the following kinds in respect of the veterinarian: (a) accept an undertaking made by the veterinarian; (b) issue the veterinarian with a reprimand; (c) provide the veterinarian with counselling; (d) require the veterinarian to undertake specified remedial education or training; (e) impose conditions on the veterinarian's registration under this Act restricting their right to provide veterinary services or revoke or vary a waiver or modification that applies in respect of the veterinarian's registration; (f) any other action prescribed by the regulations. (7) However, the Board may only take action of the kind referred to in subsection (6)(e) if the Board is satisfied that— (a) the action is necessary or appropriate to— (i) provide an opportunity for the veterinarian to undertake remedial education or training; or (ii) establish that the veterinarian is competent and capable of carrying out particular duties; and (b) it is appropriate in all of the circumstances to take the action, having considered— (i) the potential impact of the action on the veterinarian concerned; and (ii) the risks to the community of not taking such action. (8) If the Board takes action of the kind referred to in subsection (6)(e), the Board must advise the veterinarian of the remedial education or training to be undertaken, and the competencies (if any) required to be demonstrated before the relevant action will be revoked. (9) The Board must revoke any action taken under subsection (6)(e) if the veterinarian successfully completes the required remedial education or training and has demonstrated to the Board that the veterinarian is competent and capable of carrying out the duties to which the action relates. (10) On completion of a Board resolution under this Division, the Executive Officer must inform the veterinarian concerned and the complainant of the outcome of the Board resolution. 75—Duty of Executive Officer with respect to conflict of interest (1) If the Executive Officer has a pecuniary or other personal interest that conflicts or may conflict with the Executive Officer's duties under section 74, the Executive Officer must disclose in writing to the Board the nature of the interest and the conflict or potential conflict. (2) The Executive Officer must comply with any written directions given by the Board to resolve a conflict between the Executive Officer's duties and a pecuniary or other personal interest. (3) Subsection (1) does not apply in relation to a conflict or potential conflict between the Executive Officer's duties and a pecuniary or other personal interest while the Executive Officer remains unaware of the conflict or potential conflict. 76—Monitoring of Board resolutions The Board must cause complaints dealt with under this Division to be monitored and reviewed with a view to maintaining proper and consistent practices. Division 4—Investigations 77—Investigation of complaints (1) Without limiting any other action that may be taken by the Board, the Board must, in relation to each complaint that is to be dealt with under Division 5— (a) cause an investigation into the complaint to be undertaken; or (b) if the Board is satisfied that such an investigation is unnecessary, lodge a complaint in relation to the matter with the Tribunal under section 78. (2) An investigation under this Act may, but need not, be undertaken by an inspector. (3) Without limiting any other provision of this Act, the Board may, following an investigation into the complaint— (a) lodge a complaint in relation to the matter with the Tribunal under section 78; or (b) cause the matter to be referred to the Executive Officer for resolution in accordance with Division 3 (and in that case the complaint will be taken to be a complaint that may be dealt with under that Division); or (c) dismiss the complaint under section 70; or (d) if the Board thinks it appropriate in the circumstances, take no further action in relation to the complaint. Division 5—Disciplinary action before Tribunal 78—Hearing by Tribunal as to matters constituting grounds for disciplinary action (1) A complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person may be lodged with the Tribunal by— (a) the Board; or (b) the Minister. (2) On the hearing of a complaint, the Tribunal may, if it is satisfied that there is proper cause for taking disciplinary action against the veterinarian to whom the complaint relates, by order do 1 or more of the following: (a) reprimand the veterinarian; (b) impose a fine not exceeding $10 000 on the veterinarian; (c) if the veterinarian is registered under this Act—impose conditions on the veterinarian's registration under this Act restricting their right to provide veterinary services or revoke or vary a waiver or modification that applies in respect of the veterinarian's registration; (d) if the veterinarian has general registration but not specialist registration— (i) suspend the veterinarian's general registration for a period not exceeding 1 year; or (ii) cancel the veterinarian's general registration; (e) if the veterinarian has specialist registration under this Act— (i) suspend the veterinarian's specialist registration or registration in a particular specialty, or the veterinarian's general and specialist registration, for a period not exceeding 1 year; or (ii) cancel the veterinarian's specialist registration or registration in a particular specialty, or the veterinarian's general and specialist registration; (f) disqualify the person from general registration, specialist registration or registration in a particular specialty, or both general and specialist registration. (3) The Tribunal may— (a) stipulate that a disqualification under subsection (2) is to apply— (i) permanently; or (ii) for a specified period; or (iii) until the fulfilment of specified conditions; or (iv) until further order; or (b) stipulate that an order relating to a veterinarian is to have effect at a specified future time and impose conditions as to the conduct of the veterinarian or the veterinarian's business until that time. (4) The Tribunal may, on application by a party to the proceedings, vary or revoke a condition imposed by the Tribunal under this section in relation to a veterinarian's registration under this Act. (5) An application under subsection (4) may not be made— (a) within 1 month of the imposition of the condition to which the application relates by the Tribunal; or (b) within 12 months of any previous application under subsection (4) by the party to vary or revoke a condition, unless leave is granted by the Tribunal. (6) A fine imposed by the Tribunal under subsection (2) is payable to the Board (and is recoverable by the Board as a debt). (7) If— (a) a veterinarian has been found guilty of an offence; and (b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint, the veterinarian is not liable to a fine under this section in respect of conduct giving rise to the offence. (8) If a veterinarian fails to pay a fine imposed under this section, the Board may— (a) in the case of a veterinarian with primary registration—without further notice, remove the veterinarian from the registers on which they are registered; or (b) in the case of a veterinarian with deemed registration—by written notice to the veterinarian, disqualify the veterinarian from registration under this Act until the fine is paid. (9) The Tribunal may order that the registration of a veterinarian be suspended pending the outcome of disciplinary proceedings against the veterinarian under this Division. (10) However— (a) the Tribunal may only act under subsection (9) if it thinks that it is necessary to do so because there is a serious risk that the health and safety of the public or the health and welfare of animals will be endangered; and (b) if the Tribunal acts under subsection (9), it must immediately notify the veterinarian of the suspension and the reasons for the suspension. 79—Constitution of Tribunal (1) For the purposes of section 22 of the South Australian Civil and Administrative Tribunal Act 2013, there will be— (a) a panel of assessors consisting of— (i) veterinarians with primary registration or deemed registration; and (ii) veterinarians (however described) registered under a corresponding law but who do not provide veterinary services or engage in other conduct as a veterinarian in this State; and (b) a panel of assessors consisting of persons who have expertise that would be of value to the Tribunal in proceedings under this Act (being persons who are not veterinarians and who do not work in an area relating to, or have a material interest in, veterinary services). (2) Subject to this Act, in exercising its powers for the purposes of this Act, the Tribunal will, unless the President of the Tribunal determines that the Tribunal is to be constituted by fewer than 3 members, be constituted by 3 members of whom— (a) 2 will be selected from the panel of assessors referred to in subsection (1)(a); or (b) — (i) 1 will be selected from the panel of assessors referred to in subsection (1)(a); and (ii) 1 will be selected from the panel of assessors referred to in subsection (1)(b). (3) The Tribunal constituted of the presiding member sitting alone may, for the purposes of proceedings under this Act— (a) deal with— (i) preliminary, interlocutory or procedural matters; or (ii) questions of costs; or (iii) questions of law; or (b) enter consent orders; or (c) perform any other function or exercise any other power of a prescribed kind, and may, for that purpose or as a consequence, make any determination or order (including a final order) that the presiding member considers appropriate. 80—Punishment of conduct that constitutes offence If conduct constitutes an offence and also proper cause for disciplinary action, the taking of disciplinary action under this Division is not a bar to conviction and punishment for the offence, nor is conviction and punishment for the offence a bar to disciplinary action under this Division. 81—No internal review by Tribunal of decision under Division etc (1) A decision of the Tribunal under this Division cannot be the subject of an application for internal review under section 70 of the South Australian Civil and Administrative Tribunal Act 2013. (2) Section 71(2), (2a) and (3a) of the South Australian Civil and Administrative Tribunal Act 2013 do not apply in relation to an appeal against a decision of the Tribunal under this Division.