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Queensland Judgments
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  • Unreported Judgment

Veterinary Surgeons Board of Queensland v Brown

 

[2016] QCAT 234

CITATION:

Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234

PARTIES:

Veterinary Surgeons Board of Queensland

(Applicant)

 

v

 

Owen Brown

(Respondent)

APPLICATION NUMBER:

OCR058-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

19 May 2016

HEARD AT:

Brisbane

DECISION OF:

Member Deane

Member Dr Grigg

Member Dr King

DELIVERED ON:

12 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Pursuant to section 22F of the Veterinary Surgeons Act 1936 (Qld) the Tribunal finds that Dr Owen Brown engaged in misconduct in a professional respect in that he:
    1. was negligent or incompetent in the practice of his profession; and
    2. failed to keep such records as are prescribed or so far as not prescribed as the board directs.
  2. The Tribunal makes no other orders under section 22E of the Veterinary Surgeons Act 1936 (Qld).
  3. By consent, Dr Owen Brown is to pay the Veterinary Surgeons Board of Queensland’s costs of and incidental to these proceedings in an amount to be agreed or, failing agreement, to be assessed on the District Court Scale and fixed by this Tribunal.

CATCHWORDS:

OCCUPATIONAL REGULATION – VETERINARY SURGEONS – where misconduct in a professional respect admitted – whether no order under section 22E appropriate where undertaking to complete further education provided to Board

Veterinary Surgeons Act 1936 (Qld), s15D, s22E, s22F

Medical Board of Australia v Gallery [2013] QCAT 224

Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395

Psychology Board of Australia v GA [2014] QCAT 409

Veterinary Surgeons Board of Queensland v O’Flaherty [2016] QCAT 8

Medical Board of Australia v Martin [2013] QCAT 376

Pharmacy Board of Australia v Jattan [2015] QCAT 294

Ooi v Medical Board of Queensland [1997] 2 Qd R 176

APPEARANCES:

APPLICANT:

Veterinary Surgeons Board of Queensland

RESPONDENT:

Dr Owen Brown

REPRESENTATIVES:

APPLICANT:

represented by Mr A Forbes, Solicitor, Lander & Rogers Lawyers

RESPONDENT:

represented by Mr A Luchich of Counsel instructed by Meridian Lawyers

REASONS FOR DECISION

  1. [1]
    Owen Brown is a registered veterinary surgeon.  The Veterinary Surgeons Board of Queensland (‘the Board’) referred disciplinary proceedings to the Tribunal.  It alleges that Dr Brown engaged in ‘misconduct in a professional respect’.[1]  Section 22F of the Act sets out in a nonexhaustive manner conduct which amounts to ‘misconduct in a professional respect’.
  1. [2]
    The Board alleges that Dr Brown:
    1. was negligent or incompetent in the practice of his profession;[2]
    2. failed to keep the premises on which the veterinary surgeon practices his profession or equipment contained therein in a clean and sanitary condition;[3]
    3. failed to keep such records as are prescribed or so far as are not prescribed as the board directs.[4]
  2. [3]
    The particulars of the allegations relate to the treatment of one cat during the period 17 to 23 December 2013.  Following treatment by Dr Brown the cat was euthanised by another practitioner on 25 December 2013. 
  3. [4]
    Dr Brown initially denied or did not admit most of the particulars set out in the Board’s referral. The initial referral included 28 allegations of unsatisfactory professional conduct. 
  4. [5]
    In May 2014, the Board engaged an expert, who provided her opinion, that Dr Brown’s management of this case was below the standard expected by general practitioners and expressed views about the inadequacies in his record keeping in this specific case.
  5. [6]
    In the Amended Response filed 15 February 2016, Dr Brown admitted 18 of the 28 allegations of unsatisfactory professional conduct. 
  6. [7]
    Dr Brown admitted that he engaged in misconduct in a professional respect in that he:
    1. was negligent or incompetent in the practice of his profession;
    2. failed to keep such records as are prescribed or so far as are not prescribed as the board directs.
  7. [8]
    Dr Brown denied the third misconduct allegation.  There remained significant factual disputes between the registrant’s evidence and that of the owners’ of the cat.  The Board did not seek for the Tribunal to determine this remaining allegation nor for the Tribunal to make findings in respect of the remaining disputed facts.
  8. [9]
    Having regard to the undisputed facts, the expert evidence and Dr Brown’s admissions the Tribunal is satisfied that Dr Brown engaged in misconduct in a professional respect to the extent admitted.
  9. [10]
    Upon a finding that a veterinary surgeon has engaged in misconduct in a professional respect the tribunal is empowered by section 22E of the Act to make orders including removing the veterinary surgeon’s name from the register, suspending registration for a specified period, requiring the payment to the Board of a monetary penalty and admonishing or reprimanding the veterinary surgeon.
  10. [11]
    In view of Dr Brown’s admissions, the hearing largely proceeded by way of joint submission on appropriate sanction.
  11. [12]
    The Board contends that this is an appropriate case to make no order under section 22E of the Act but rather to rely upon an undertaking given by Dr Brown to the Board on 30 March 2016.  The undertaking provided is to complete within two years, two specified courses of further education and training in emergency medicine and internal medicine at his own expense and to provide written evidence of completion within three months of completing each course.[5] 
  12. [13]
    During the course of the hearing Dr Brown’s Counsel informed the Tribunal that Dr Brown:
    1. has commenced the internal medicine course;
    2. had applied to enrol in the emergency medicine course but it was fully subscribed at the time;
    3. proposes to undertake the emergency medicine course next year.
  13. [14]
    We accept that the giving of the undertaking is a relevant consideration in determining an appropriate penalty.  The Tribunal has previously accepted that considering practitioner’s undertakings is relevant to exercising the discretion to determine relevant sanctions[6] and has previously recognised such an undertaking rather than making an order under section 22E.[7]
  14. [15]
    Dr Brown contends that the agreed proposal is well within the permissible range of penalties for the conduct.  The Tribunal has previously accepted that given the purpose of disciplinary proceedings is protective rather than punitive it ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct.[8]
  15. [16]
    We accept that a penalty at the lower end of the range of permissible penalties would be appropriate having regard to:
    1. the nature and extent of the allegations made against Dr Brown, being in respect of the treatment and care of one animal over a matter of a few days;
    2. the insight demonstrated by Dr Brown in making admissions prior to the hearing; and
    3. the expense involved in completing the courses the subject of the undertaking. 
  16. [17]
    We have considered the nature of the courses proposed as part of the undertaking.  We find that recognising the undertaking rather than making an order under section 22E of the Act is an appropriate sanction to achieve the purpose of protecting the public and maintaining the integrity of the profession.[9] 
  17. [18]
    Having been the subject of these proceedings we trust Dr Brown will reconsider his practices with the benefit of the insights he has gained through this process and the further training he is to complete as part of the undertaking.  Matters of significant concern to the Tribunal include inappropriately discharging the animal[10], inappropriate choice of fluid therapy[11], administering an inappropriate dose of medication[12] and inappropriate methodology of potential diagnosis.[13]
  18. [19]
    The Board also seeks its costs of this proceeding to be agreed or assessed, on the District Court scale.  Section 15D of the Act empowers the Tribunal to make costs orders.  Dr Brown accepts that given his admissions in the Amended Response he should be ordered to pay these costs.

Footnotes

[1] Veterinary Surgeons Act 1936 (Qld) (‘the Act’), s22F.

[2]  Ibid, s22F(f).

[3]  Ibid, s22F(h).

[4]  Ibid, s22F(i); see also Veterinary Surgeons Regulations 2002 (Qld), Regulation 25.

[5]  A copy of the undertaking dated 22 March 2016 forms part of exhibit EJF2 to the affidavit of Emily Jane Fitton filed 6 April 2016.

[6] Medical Board of Australia v Gallery [2013] QCAT 224; Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395; Psychology Board of Australia v GA [2014] QCAT 409.

[7] Veterinary Surgeons Board of Queensland v O’Flaherty [2016] QCAT 8.

[8] Medical Board of Australia v Martin[2013] QCAT 376 at [90] – [93]; Pharmacy Board of Australia v Jattan [2015] QCAT 294.

[9] Ooi v Medical Board of Queensland [1997] 2 Qd R 176.

[10]  Paragraph 26(z) of the Referral.

[11]  Paragraph 26(j) and (k) of the Referral.

[12]  Paragraph 26(v) of the Referral.

[13]  Paragraph 26 (c), (l), (m), (n), (o) and (p) of the Referral.

Close

Editorial Notes

  • Published Case Name:

    Veterinary Surgeons Board of Queensland v Brown

  • Shortened Case Name:

    Veterinary Surgeons Board of Queensland v Brown

  • MNC:

    [2016] QCAT 234

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    12 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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