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Veterinary Surgeons Board of Queensland v Auld[2018] QCAT 447

Veterinary Surgeons Board of Queensland v Auld[2018] QCAT 447

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Veterinary Surgeons Board of Queensland v Auld [2018] QCAT 447

PARTIES:

VETERINARY SURGEONS BOARD OF QUEENSLAND 

(applicant)

 

v

 

MICHAEL AULD

(respondent)

APPLICATION NO/S:

OCR055-15

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 December 2018

HEARING DATE:

1 August 2017 (oral hearing) and 22 November 2018 (in chambers)

HEARD AT:

Brisbane

DECISION OF:

Member Gordon (presiding), Dr Grigg, Member and Dr King, Member

ORDERS:

UPON the undertakings given by Michael Auld to the Veterinary Surgeons Board of Queensland on 26 May 2018:

  1. The Veterinary Surgeons Board of Queensland (the Board) having referred the conduct of Michael Auld to the tribunal under section 22(3) of the Veterinary Surgeons Act 1936 (Qld) (the Act), it is the finding of the tribunal that he has engaged in misconduct in a professional respect.
  2. Michael Auld is reprimanded.
  3. It is a condition of this order that for any time Michael Auld acts as a veterinary surgeon he shall provide to the Board at least every 6 months a report of his supervision signed by the approved supervisor or supervisors. 
  4. Under section 15D of the Act Michael Auld must pay to the Board costs fixed in the sum of $40,000 immediately.

CATCHWORDS:

PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – where registrant was alleged to have engaged in misconduct in a professional respect – where some of the allegations were admitted – where undertakings were given by the registrant about his future practice – where the appropriate penalty was agreed on the basis of the undertakings – whether this is the appropriate penalty

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 114

Veterinary Surgeons Act 1936 (Qld), s 15A, s 15B, s 15C, s 15D, s 22E, s 22F

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

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

Medical Board of Australia v Martin [2013] QCAT 376

APPEARANCES &

REPRESENTATION:

 

Applicant:

Michael Williams (counsel) instructed by Lander & Rogers solicitors.

Respondent:

Self-represented at original hearing but subsequently represented by Richard Trotter (counsel).

REASONS FOR DECISION

  1. [1]
    Michael Auld is a registered veterinary surgeon who for many years owned and operated a suburban veterinary practice at premises in Brisbane.  He held registration as a veterinary surgeon with the Veterinary Surgeons Board of Queensland (the Board) with approval to use the premises as veterinary premises.
  2. [2]
    The Veterinary Act 1936 (Qld) (the Act), confers jurisdiction on the tribunal to hear and decide disciplinary proceedings involving allegations of misconduct in a professional respect.[1]  The tribunal is constituted by a legal member and two other members who are veterinary surgeons.[2]
  3. [3]
    On 20 April 2015 the Board referred a number of allegations about Dr Auld and his practice to the tribunal.  On 11 May 2016 the tribunal received a detailed Statement of Agreed and Disputed Facts.  This referred to each allegation and stated the position of Dr Auld on each of them.  Documents, evidence and submissions were filed in the tribunal.  On 1 August 2017 there was a hearing before us.  This was adjourned part-heard. 
  4. [4]
    On 9 February 2018 joint submissions (signed on behalf of the Board and Dr Auld) were received by the tribunal.  On 14 September 2018 an order was applied for by consent for the purpose of disposing of the proceedings.  On 22 November 2018 we considered the additional material submitted, and made a final determination of this matter.
  5. [5]
    In proceedings of this sort, the Board bears the burden of proof.  It must show on the balance of probabilities to the required civil standard, that there was misconduct in a profession respect.
  6. [6]
    Dr Auld gave undertakings to the Board dated 28 May 2018.  In those undertakings he admits that he engaged in misconduct in a professional respect.  The extent of his admission appears in the Statement of Agreed and Disputed Facts received by the tribunal on 11 May 2016 where he admits allegations in respect of two dogs treated in the surgery which died, and where he admits allegations about record keeping in respect of five dogs. 
  7. [7]
    By reason of Dr Auld’s admissions, it is proved that he engaged in misconduct in a professional respect in that he:
    1. (a)
      was negligent or incompetent in the practice of his profession in relation to the 2 dogs which died;[3]
    2. (b)
      failed to keep such records as are prescribed or, so far as are not prescribed as the board directs, in relation to five dogs which attended the surgery.[4]
  8. [8]
    With respect to (a), Dr Auld saw a dog in June 2012.  He failed to address and investigate the reason for the onset of anorexia and vomiting in the dog, and failed to recognise that the condition of diabetic ketoacidosis was a medical emergency.
  9. [9]
    The other dog was in October 2012 where Dr Auld failed to perform an ultrasound or radiograph to determine whether the dog was ready to whelp.
  10. [10]
    With respect to (b), the allegations about the records arise from section 25 of the Veterinary Surgeons Regulation 2002 (Qld).  This section requires a veterinary surgeon to keep a record for each animal treated.  The record must show the animal’s identifying details, and information for each consultation about the animal including its condition or injury, diagnosis, examination procedures and tests, treatment given, the result of such treatment, and instructions on discharge.
  11. [11]
    Dr Auld admits that he or his staff at the surgery had failed to comply with these requirements with respect to the five dogs. 
  12. [12]
    One dog attended the surgery on four occasions in February 2012 but its temperature was only recorded once, and the records showing weight, heart rate, respiration rate and the dog’s condition and treatment were inadequate.
  13. [13]
    A dog attended the surgery in January and February 2012.  It was kept in the surgery for two days and then for a further two days and then presented on three further occasions.  Over that time, the record of the dog’s treatment on one occasion and of its weight, heart rate, and respiration rate on a number of occasions were inadequate.
  14. [14]
    A dog attended the surgery on a number of occasions in July and August 2012.  Over that time the dog’s weight and temperature was not recorded on two occasions and there was no anaesthetic record for surgery performed on one occasion.
  15. [15]
    A dog attended the surgery on two occasions in October 2012 and on one of these visits the dog’s weight was not recorded.
  16. [16]
    A dog attended the surgery on a number of occasions up to 2012 but the records of weight, temperature, body score, heart rate and respiration rate were inadequate.
  17. [17]
    The tribunal, as invited to do so in joint submissions received on 9 February 2018, take into account the documents, evidence and submissions filed on behalf of the Board.  We have also considered the submissions of Dr Auld filed on 6 March 2017.

The appropriate penalty

  1. [18]
    Upon a determination that a veterinary surgeon has engaged in misconduct in a professional respect the tribunal may order, amongst other things, that his name be removed from the register of veterinary surgeons, that he be suspended for a specified period, that he pay a penalty to the Board, or the tribunal can admonish or reprimand him.[5]
  2. [19]
    In making our decision about the appropriate penalty we are required to have regard to previous decisions about the veterinary surgeon made by the tribunal or by the Board or committee.[6]  In this respect we note that there is a history of contraventions of the regulations concerning storage and recording of controlled drugs in 2002 and the use of expired veterinary chemical products in 2006.  These contraventions resulted in findings of misconduct in a professional respect.
  3. [20]
    The Board inspected Dr Auld’s veterinary premises from time to time and found that they fell below the standards required.  The result of one of these inspections forms part of the original allegations of misconduct in these proceedings.  On the evidence that we have seen, we have concerns about Dr Auld’s apparent failure to deal with some of the findings on inspection in an efficient and wholehearted manner.
  4. [21]
    We have regard to the undertakings given to the Board by Dr Auld on 28 May 2018.  The undertakings are declared to remain in force indefinitely and Dr Auld undertakes never to apply to be relieved of them. Therefore they are irrevocable.  They have the effect that Dr Auld will sell or close his veterinary practice.  The Board will receive regular reports of progress in the sale and of important steps towards the sale. 
  5. [22]
    An important part of the undertakings is that Dr Auld will only work as an employee and under the supervision of a registered veterinary surgeon approved by the Board.  This supervision must be on site and in respect of patient selection, diagnoses, recommendations and treatment provided, surgery, and post-operative care.  It is also important that the undertakings require that Dr Auld provide the supervisor with a copy of the undertakings: this means the supervisor will understand the supervision requirement.
  6. [23]
    We accept that the undertakings are relevant when considering penalty.[7]
  7. [24]
    The Board and Dr Auld have jointly applied to the tribunal for an order as agreed between them, subject to the tribunal.  On the basis of the undertakings, it was agreed that there should be no order against Dr Auld apart from a costs order.[8] 
  8. [25]
    The approach we take to this is that since the purpose of disciplinary proceedings is protective rather than punitive, such an agreement ought not to be departed from unless it falls outside of the permissible range of penalty for the conduct.[9]  Despite this, we have come to the view that on the findings that we have made, and having regard to the previous findings of misconduct in a professional respect in 2002 and 2006, it is inappropriate to make no further order.  In the circumstances, we reprimand Dr Auld.
  9. [26]
    We also think it is necessary for the Board to receive regular reports of the supervision so that any difficulties which might arise can be discovered as quickly as is reasonably possible.  For this reason we have included a condition for reporting of the supervision in our order.  This is something we can do under section 114 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  10. [27]
    It is agreed between the Board and Dr Auld that he should pay the Board’s costs under section 15D of the Act, at a fixed sum.  We are satisfied that these costs have been reasonably incurred and that this is the correct order to make.

Footnotes

[1]  Section 15A.

[2]  Section 15B.

[3]  Under section 22F(f).

[4]  Under section 22F(i).

[5]  Section 22E.

[6]  Section 15C.

[7]  This has been the approach in a number of cases, for example, Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234.

[8]  Which was the tribunal’s approach in Veterinary Surgeons Board of Queensland v O'Flaherty [2016] QCAT 8.

[9]  Medical Board of Australia v Martin [2013] QCAT 376, [90] – [93].

Close

Editorial Notes

  • Published Case Name:

    Veterinary Surgeons Board of Queensland v Michael Auld

  • Shortened Case Name:

    Veterinary Surgeons Board of Queensland v Auld

  • MNC:

    [2018] QCAT 447

  • Court:

    QCAT

  • Judge(s):

    Member Gordon, Member Grigg, Member King

  • Date:

    04 Dec 2018

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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