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Veterinary Surgeons Board of Queensland v Canty[2022] QCAT 277

Veterinary Surgeons Board of Queensland v Canty[2022] QCAT 277

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Veterinary

Veterinary Surgeons Board of Queensland v Canty [2022] QCAT 277

PARTIES:

Veterinary surgeons Board of Queensland

(applicant)

v

Brian Joseph Canty

(respondent)

APPLICATION NO/S:

OCR205-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 July 2022

HEARING DATE:

21 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

Member Baxendell

Member Grigg

ORDERS:

  1. Brian Joseph Canty engaged in misconduct in a professional respect, pursuant to s 22F of the Veterinary Surgeons Act 1936 (Qld).
  2. Brian Joseph Canty’s name is to be removed from the Register of Veterinary Surgeons, pursuant to s22E(1)(a) of the Veterinary Surgeons Act 1936 (Qld).
  3. Brian Joseph Canty must pay the Veterinary Surgeons Board of Queensland its costs of and incidental to these proceedings to be agreed, or assessed, on the District Court scale.

CATCHWORDS:

PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – where a Veterinary Surgeon was alleged to have engaged in misconduct in a professional respect – where a failure to keep proper records was admitted – where a dog under the veterinary surgeon’s care died – where the veterinary surgeon did not treat the dog with opiate analgesia – where the veterinary surgeon failed to address and investigate adequately the reason for the right hind limb lameness and pain in the dog

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

Veterinary Surgeons Regulation 2016 (Qld), s 24

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

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

APPEARANCES &

REPRESENTATION:

Applicant:

Ms Nixon of Turks Legal

Respondent:

Mr Launchbury of Romans and Romans Solicitors

REASONS FOR DECISION

  1. [1]
    Dr Canty is a registered veterinary surgeon. He was first registered in or about 7 December 1965. He has practised as a veterinary surgeon at the Blackwater Veterinary Clinic between about July 1991 and 18 October 2017.
  2. [2]
    A complaint was made to the Veterinary Surgeons Board of Queensland (the Board) about the treatment of a 4 ½ year old Bull Arab dog named Banjo (the dog) by Dr Canty (the veterinarian) on 9 to 15 October 2017. The Board conducted an investigation and, as a result of that investigation, applied to the tribunal on 19 June 2019 to hear and decide as to misconduct in a professional respect, pursuant to section 22 of the Veterinary Surgeons Act 1936 (the Act).
  3. [3]
    The matter was heard in an oral hearing by way of submissions. The tribunal was constituted by a legally qualified member (Member Paratz) and two other QCAT members who are veterinary surgeons (Dr Baxendell and Dr Grigg) in accordance with section 15B(1) of the Act. We reserved our decision, and this is our Decision, and our Reasons, in the matter.

Grounds

  1. [4]
    The Board applied to the tribunal to conduct a proceeding to decide whether a disciplinary ground, namely misconduct in a professional respect, is established.
  2. [5]
    The grounds for the disciplinary action were set out by the Board in the application as follows:

The ground for disciplinary action is that Brian Joseph Canty has behaved in a way that constitutes misconduct in a professional respect:

  1. a)
    pursuant to section 22F of the Veterinary Surgeons Act 1936 in that he:
  1. 1)
    is negligent or incompetent in the practice of his profession; and
  1. 2)
    fails to keep such records as are prescribed by the Veterinary Surgeons Regulation 2016 or so far as are not prescribed as the Board directs.
  1. b)
    pursuant to section 24(1) of the Regulations in that he failed to keep adequate records for an animal treated by him.

History

  1. [6]
    A statement of agreed facts was filed.
  2. [7]
    It is agreed that on 9 October 2017 the dog was brought into the Blackwater Veterinary Clinic by Ms Black (for these reasons, described as the owner).
  3. [8]
    On the dog being presented to the clinic, the veterinarian noted various health concerns as to the dog including:[1]
    1. (a)
      difficulty walking;
    2. (b)
      being underweight;
    3. (c)
      the owner reported the dog had lost weight over the previous two weeks;
    4. (d)
      the muscle on the dog’s rear right leg was significantly wasting away;
    5. (e)
      reluctance to exert or place weight on his rear right leg; and
    6. (f)
      his right leg was positioned at an approximately 30° angle to his midline.
  4. [9]
    The owner said that the dog was hunting wild pigs when he was injured, and that he was a recreational pig dog used to hunt and chase wild pig dogs, was of a breed that is naturally lean, and of a condition consistent with that of a working dog.[2]
  5. [10]
    The veterinarian formed a preliminary view that the dog may have fractured his right femur and/or his pelvis, and that he would need to obtain an x-ray to confirm this diagnosis. He did not consider that the dog had suffered a spinal injury as the owner informed him that the dog had been walking on three legs at all times following the injury.[3]
  6. [11]
    The clinic did not have the required facilities to obtain an x-ray of the dog, and the veterinarian and the owner agreed for the dog to be transported to the veterinarian’s other veterinary clinic located in Emerald so that he could obtain an x-ray of the dog’s femur and/or his pelvis, and provide other veterinary care and services to the dog.[4]
  7. [12]
    The veterinarian administered 10mg of meloxicam (0.5mL of 20mg/mL) prior to transporting the dog to the Emerald clinic.[5]
  8. [13]
    The dog bit the owner when he was being loaded into a vehicle for transportation to Emerald.[6]
  9. [14]
    The dog was at the Emerald clinic from the night of 9 October 2017 until 15 October 2017 when the veterinarian found the dog dead in his cage at approximately 6:30am.

Treatment

  1. [15]
    On 10 October 2017 the veterinarian attempted to insert a catheter into the dog but was unable to do so as the dog was acting aggressively and there were concerns that he could bite him. He decided to administer lectade, an electrolyte solution, which was added to the dog’s drinking water.[7] He also administered Vitamin B, Betamox (penicillin) and Metacam as precautionary measures, and 2mg (0.1ml of 20 mg/ml) of Meloxicam.[8]
  2. [16]
    The veterinarian said that as the dog’s condition had been ongoing for two weeks, he did not assess the dog’s condition as life-threatening, and elected to wait until the meloxicam had an effect on the dog’s pain threshold before undertaking the x-ray.[9]
  3. [17]
    The clinical notes made by the veterinarian for the dog on 10 October 2018 read as follows:[10]

Cannot place catheter (very aggressive and bites)

Lectade vitB betamox 1mL

Will not move from bed voluntarily

  1. [18]
    The veterinarian agreed that his clinical notes of 10 October 2017 did not comply with section 24 of the Veterinary Surgeons Regulation 2016 (Qld) as they did not provide sufficient information regarding the veterinary care and services provided by him to the dog as they do not record:[11]
    1. (a)
      any of the dog’s vital parameters.
    2. (b)
      the dosage of any drugs or medications that were administered to the dog.
    3. (c)
      the method of administration of any drugs or medications that were administered to the dog.
    4. (d)
      any food eaten or not eaten by the dog
    5. (e)
      a reason why the veterinarian did not attempt to obtain an x-ray of the dog
  2. [19]
    On the morning of 11 October 2017, the dog was found soiled with faeces, and the veterinarian arranged for the dog to be bathed, noted that the dog was not eating much food, gave the dog Lectade, Vitamin B, Betamox and Metacam, and did not attempt to obtain an x-ray of the dog.[12]
  3. [20]
    One of the veterinarian’s staff members was bitten by the dog during the process of bathing.[13]
  4. [21]
    The veterinarian said that he did not attempt to x-ray the dog on 11 October 2017 because he did not assess the dog’s condition as life-threatening, believed the x-ray would not materially change the clinical outcome, and the dog had shown aggression, and he wanted the meloxicam to take effect on the dog’s pain threshold first. The veterinarian’s clinical judgement was that the dog should be stabilised before attempting to obtain an x-ray.[14]
  5. [22]
    The clinical notes made by the veterinarian on 11 October 2018 read as follows:[15]

Repeat mcam etc - soiled extensively from lying in bed.

Bathed ([illegible] bitten] – minimal food intake

  1. [23]
    The veterinarian agreed that his clinical notes of 11 October 2017 did not comply with section 24 of the Veterinary Surgeons Regulation 2016 (Qld) as they did not provide sufficient information regarding the veterinary care and services provided by him to the dog as they do not record:[16]
    1. (a)
      any of the dog’s vital parameters.
    2. (b)
      which drugs or medications were administered to the dog.
    3. (c)
      the dosage of any drugs or medications that were administered to the dog.
    4. (d)
      the method of administration of any drugs or medications that were administered to the dog.
    5. (e)
      any food eaten or not eaten by the dog
    6. (f)
      a reason why the veterinarian did not attempt to obtain an x-ray of the dog
  2. [24]
    On 12 October 2017 whilst the dog was at the Emerald clinic, the veterinarian noted that the dog was eating more, consumed fresh mince and cooked chicken, and gave him Lectade, Vitamin B, Betamox and Metacam, and did not attempt to obtain an x-ray of Banjo.[17]
  3. [25]
    The clinical notes made by the veterinarian on 12 October 2017 read as follows:[18]

Repeat treat – eating more – can now x-ray 13th

  1. [26]
    The veterinarian said his plan was to x-ray the dog on 13 October 2017, and that in order to do so it was necessary to administer a pre-medication, and if necessary, a short-acting general anaesthetic, but he did not want to administer these medications late in the day but preferred to allow a full day for observation and anaesthetic recovery.[19]
  2. [27]
    The veterinarian agreed that his clinical notes of 12 October 2017 did not comply with section 24 of the Veterinary Surgeons Regulation 2016 (Qld) as they did not provide sufficient information regarding the veterinary care and services provided by him to the dog as they do not record:[20]
    1. (a)
      any of the dog’s vital parameters.
    2. (b)
      which drugs or medications were administered to the dog
    3. (c)
      the dosage of any drugs or medications that were administered to the dog.
    4. (d)
      the method of administration of any drugs or medications that were administered to the dog.
    5. (e)
      any food eaten or not eaten by the dog
    6. (f)
      a reason why the veterinarian did not attempt to obtain an x-ray of the dog
  3. [28]
    On 13 October 2017 the veterinarian gave the dog Lectade, Vitamin B, Betamox and Metacam, 0.5ml of Medetomidine, and obtained an x-ray of the dog’s pelvis. The x-ray was of poor quality and:[21]
    1. (a)
      does not identify the left or right side of the dog
    2. (b)
      the ventral foramina is distorted
    3. (c)
      the upper hip joint is superimposed by other structures
    4. (d)
      the vertebral column is only partially visible
    5. (e)
      the dog was not positioned correctly for an adequate ventro–dorsal image
  4. [29]
    The veterinarian said the x-rays of poor quality because the dog was uncooperative during the process of positioning him; and the x-ray was adequate for his diagnostic purpose because it confirmed that the dog’s femur or pelvis were not the source of his problems; and that he did not try to obtain another x-ray because it would be necessary to administer general anaesthetic to do so and there was no benefit in obtaining additional exposures.[22]
  5. [30]
    The clinical notes made by the veterinarian on 13 October 2017 read as follows:

0.5ml Medetata – (bit BC when positioning)

x-ray – pelvic # right

rang owner – no contact – Repeat m.cam & b.mox

  1. [31]
    The veterinarian agreed that his clinical notes of 13 October 2017 did not comply with section 24 of the Veterinary Surgeons Regulation 2016 (Qld) as they did not provide sufficient information regarding the veterinary care and services provided by him to the dog as they do not record:[23]
    1. (a)
      any of the dog’s vital parameters.
    2. (b)
      why only one x-ray was taken of the dog
    3. (c)
      any diagnostic interpretation of the x-ray
    4. (d)
      the method of administration of any drugs or medications that were administered to the dog.
    5. (e)
      any food eaten or not eaten by the dog
  2. [32]
    On 14 October 2017 the veterinarian gave the dog Lectade, Vitamin B, Betamox and Metacam, and contacted the owner by telephone and advised her that the dog had a suspected fractured pelvis; that undertaking surgery on the dog was beyond the veterinarian’s scope of practice; and that she could request that the dog be referred to an orthopaedic veterinary surgeon at a cost of approximately $5,000, or collect the dog and allow his pelvis to heal naturally.[24]
  3. [33]
    The veterinarian says that the owner asked him about doing nothing, and he advised her that had been successful for some cases, but he recommended further examination by a specialist before electing to do nothing.[25]
  4. [34]
    He said that he did not offer or recommend euthanasia, but the owner asked about euthanasia and he responded that he would euthanise the dog if requested to do so; and that his overall recommendation to the owner was a referral to an orthopaedic veterinary surgeon; and that the owner said she would discuss the dog’s treatment plan with her partner and contact the veterinarian once they had decided on a course of action, which was the first time the owner had mentioned her partner as being a co-owner of the dog.[26]
  5. [35]
    The clinical notes made by the veterinarian on 14 October 2017 read as follows:[27]

Repeat tment – rang owner & advised would need specialist surgical attention.

(I to be advised).

  1. [36]
    The veterinarian agreed that his clinical notes of 14 October 2017 did not comply with section 24 of the Veterinary Surgeons Regulation 2016 (Qld) as they did not provide sufficient information regarding the veterinary care and services provided by him to the dog as they do not record:[28]
    1. (a)
      any of the dog’s vital parameters.
    2. (b)
      which drugs or medications were administered to the dog
    3. (c)
      the dosage of any drugs or medications that were administered to the dog.
    4. (d)
      the method of administration of any drugs or medications that were administered to the dog.
    5. (e)
      any food eaten or not eaten by the dog
  2. [37]
    At approximately 6:30am on 15 October 2017 the veterinarian found the dog dead in his cage, and observed that the dog had mutilated his own leg. The veterinarian said the dog had been observed by him licking at the right hip area prior to this, but the skin was not broken.[29]
  3. [38]
    The veterinarian said that he attempted to contact the owner on multiple occasions to inform her of the dog’s death, but was unable to get in contact with her and left a voice message, and did not have any contact details for the owner’s partner and was unable to contact him about the dog. He said that he spoke to the owner on 16 October and informed her about the dog’s death.[30]

Legislative Provisions

  1. [39]
    Section 22(3) of the Act provides for referral to the tribunal as follows:
  1. (3)
    Where the board is of the opinion that there is sufficient evidence available with which to establish a prima facie case of misconduct in a professional respect against a veterinary surgeon it may proceed pursuant to section 22A or refer the matter, as provided under the QCAT act, to the tribunal to hear and decide the matter.
  1. [40]
    Section 22E (1) of the Act provides for the orders which the Tribunal may make where a finding of misconduct in a professional respect is shown as follows:
  1. (1)
    If the tribunal decides a veterinary surgeon has engaged in misconduct in a professional respect, it may –
  1. (a)
    order that the veterinary surgeon’s name be removed from the register of veterinary surgeons; or
  1. (b)
    order that the veterinary surgeons registration as a veterinary surgeon be suspended for a specified period; or
  1. (c)
    order the veterinary surgeon pay to the board by way of penalty a specified sum of money in no case exceeding 40 penalty units; or
  1. (d)
    admonish or reprimand the veterinary surgeon
  1. [41]
    Section 22F of the Act provides for the ways a veterinary surgeon may engage in misconduct in a professional respect, without limiting them. These include:
  1. (f)
    is negligent or incompetent in the practice of his or her profession; or

…..

  1. (i)
    fails to keep such records as are prescribed or so far as are not prescribed as the board directs
  1. [42]
    The requirements for veterinary surgeons to maintain clinical records are set out in Section 24(1) of the Veterinary Surgeons Regulation 2016, which provides as follows:
  1. (1)
    A veterinary surgeon must, for each animal treated by the veterinary surgeon, keep a record including –
  1. (a)
    the animal’s identifying details; and
  1. (b)
    the following information for each consultation about the animal –
  1. (i)
    details of any condition or injury of the animal;
  1. (ii)
    any provisional or definitive diagnosis;
  1. (iii)
    full details, including the date, of any examination, procedure or test performed;
  1. (iv)
    full details of any treatment given, including details of any drugs administered or dispensed;
  1. (v)
    results of any treatment given;
  1. (vi)
    details of any instructions given when the animal is discharged.

Joint Experts Report

  1. [43]
    An experts report was obtained by the Board from Dr Chris Shirley. Dr Shirley is a general registered veterinary surgeon practising in a rural area similar to the veterinarian.
  2. [44]
    The veterinarian obtained an experts report from Dr Mitchell, who is a specialist registered veterinary surgeon.
  3. [45]
    A conclave of experts was held on 15 February 2021, and a joint experts report was filed on 23 March 2021. The experts responded to 18 specific questions put to them in the joint experts report. A summary of the questions and their responses is as follows:[31]
    1. (a)
      Delay in taking x-ray

The experts both agreed that the patient should ideally have been investigated sooner. The concerns were that this dog was unwell and ideally warranted at least a blood test and more thorough workup for being both underweight and markedly lame.

  1. (b)
    Delay in placing intravenous catheter

The experts both agreed that if the patient was eating and drinking, then i/v catheterisation was not immediately necessary

  1. (c)
    Communication with the owner

The experts agreed that all reasonable attempts were made by the veterinarian to communicate with the owners with multiple calls.

  1. (d)
    Use of Lectade prior to an x-ray

The experts agreed that if eating and drinking a normal volume and quantity and otherwise well, that Lectade should be sufficient to hydrate a dog in advance of administering pre-medication in order to take an x-ray.

  1. (e)
    Administration of vitamin B and Betamox

The consensus of the experts was that B vitamins and antibiotics were given as non-specific treatment on the health status of the patient.

  1. (f)
    Was the administration of opioid analgesics appropriate?

The Experts agreed that ideally opioids were used for severe pain, but that it was not possible from the notes to determine whether the dog was in severe pain or not.

  1. (g)
    Should a veterinary surgeon have opioid analgesics available?

The experts agree that some form of opioid analgesic is ideally necessary in practice.

  1. (h)
    Alternatively, should a veterinary surgeon have ready access to opioid analgesics?

The experts made the same response as to question 7.

  1. (i)
    Was Metacam sufficient in the absence of opioid analgesics?

The experts agreed that Metacam was probably most likely sufficient depending on the level of pain and that in the absence of opioids, a NSAID was given as analgesia.

  1. (j)
    Aggression in relation to pain

The experts agreed that aggression can change the treatment pathway and it is needed to know if and why the animal is feeling pain; that response to treatment such as opioids or NSAIDs can be used to assess if painful or not; and aggression is not necessarily an indicator of pain, and in the veterinarian’s notes the dog was eating/drinking and happy but had an underlying aggressive nature.

  1. (k)
    Is ongoing aggression a sign the Metacam was insufficient?

Experts agreed it is possible, but meloxicam is shown to be an very effective analgesic and was given as other meds such as opioids were not available, and it is also quite possible the dog was showing aggression for any number of other reasons.

  1. (l)
    Is refusing to leave its bed an indication of pain?

The experts agreed that a dog refusing to leave its bed was not necessarily an objective indication that an animal is in pain, but could be of a fearful nature.

  1. (m)
    Is a dog soiling its bedding and indication of pain?

The experts agreed a dog soiling in its bedding area was not necessarily an objective indication that the dog is in pain, as some dogs would defecate in bed, and they do not have knowledge of previous history.

  1. (n)
    Is a dog mutilating its leg and indication of pain?

The experts agreed that a dog mutilating its leg was not necessarily an objective indication that the animal is in pain, as neurological injury can cause self-trauma without pain but is not regarded as normal behaviour, this would however suggest that something is not right.

  1. (o)
    Was Metacam was not sufficiently controlling the dog’s pain levels?

The experts agreed that it was possible/probable that the above signs were suggestive that the Metacam was not sufficiently controlling the dog’s pain levels but not conclusive.

  1. (p)
    Should other investigations have been undertaken?

The experts agreed that in the circumstances of the dog’s presentation, other investigations (e.g. blood tests) should have been undertaken or the options given to undertake to the owner or the representative to more thoroughly investigate, diagnose, prognosis and/or treat an emaciated patient that was not eating on presentation, but noted that:

the owners were not contactable for two days and no more than basic (pain relief, stabilisation) treatment can be given without the owner’s express permission, and the experts did not have the full history otherwise. They were unable to determine what permissions were given from the record, but in taking a $400 deposit this included daily meds for five days, and although not mentioned, assume that some diagnostic workup was agreed to.

  1. (q)
    Were the images taken sufficient?

The experts agreed that radiographs were non-diagnostic, and maybe once sedated could/should have had i/v catheter and further sedation/GA to obtain diagnostic images.

  1. (r)
    How should an aggressive dog be managed?

The experts noted that the dog was apparently underweight, non-weight bearing and aggressive. Once settled in and retrospectively could/should have been sedated, muzzled and blood tests/x-rays/diagnostics performed. Both experts qualified however that they were not present.

Submissions of the Board

  1. [46]
    The Board filed comprehensive written submissions on 31 August 2021, and spoke to those at the hearing.
  2. [47]
    The Board submitted that it had accepted the complaint because the records of the veterinarian indicated a lack of clinical records being maintained as required, and that the veterinarians treatment of the dog did not meet the standard expected of a veterinary surgeon practising in 2017; and that the Board formed the view that the matters were sufficiently serious as to misconduct in a professional respect for it to refer them to the tribunal for determination. It noted that the matter of disposal of the dog’s body has not been referred to the tribunal.[32]
  3. [48]
    The Board submits that the consequences of inadequate record-keeping are serious and include depriving the Board of information necessary to assess a complaint, and rendering it impossible for another veterinary surgeon to assume care of the dog should that have proven necessary at any stage.[33]
  4. [49]
    The Board placed strong reliance on the opinion of Dr Chris Shirley, and drew attention to comments made by him as to the veterinarians record-keeping being ‘scant and inadequate’,[34] and that his opinion together with the veterinarian’s admissions would satisfy a finding that the veterinarians record-keeping does not meet the standard set out in section 24 of the regulation.[35]
  5. [50]
    In relation to the treatment received by the dog, the Board makes several allegations including that:[36]
    1. (a)
      the analgesic regime implemented by the veterinarian was inadequate
    2. (b)
      the frequency of the veterinarian’s clinical interactions with the dog were inadequate
    3. (c)
      the clinical treatment of the dog by the veterinarian was inadequate; and
    4. (d)
      the use of Medetate by the veterinarian was inappropriate given the dog’s emaciation and reduced food intake.
  6. [51]
    As to analgesia, the Board notes that the veterinarian did not have access to opioid analgesics, and referred to standard 28 of the checklist for surgery clinic which requires a veterinary surgeon have a range of pharmaceuticals consistent with a good standard of practice and the range of procedures undertaken.[37]
  7. [52]
    The product that the veterinarian treated the dog with was Metacam, or Meloxicam, which the experts referred to as a non-steroidal anti-inflammatory (or NSAID).[38]
  8. [53]
    The Board submitted that the tribunal could be satisfied that it is possible or probable that the Metacam administered was not sufficiently controlling the dog’s pain levels,[39] and that the analgesic regime implemented by the veterinarian for the dog was insufficient.[40]
  9. [54]
    It submitted that if the tribunal accepted the veterinarian’s evidence that he attended the dog five times per day, the frequency of attendances is insufficient because the dog was displaying behaviours consistent with being in pain, and the source of the dog’s pain remained unclear and untreated.[41]
  10. [55]
    The Board relied upon what it described as the following underlying facts to establish the allegation that the veterinarian’s clinical treatment of the dog was inadequate:[42]
    1. (a)
      the veterinarian’s failure to administer any intravenous fluids to the dog
    2. (b)
      the veterinarian’s failure to take a blood sample from the dog to assess his renal parameters
    3. (c)
      the veterinarian failed to perform any diagnostic test to assess whether the dog was emaciated, and
    4. (d)
      the veterinarian’s failure to consider any differential diagnoses aside from the suspected fractured pelvis.
  11. [56]
    It submitted that Medetate was administered to the dog for the purpose of an x-ray being taken, although that is not documented in the clinical notes, and that Medetate contains the active ingredient medetomidine which is a sedative and analgesic approved for use in the restraint of dogs for clinical examinations and procedures, minor surgery and pre-anaesthesia.[43]  However, it noted that the experts opinion was that Medetate is contraindicated for use in dogs that are severely debilitated,[44] and that there is sufficient evidence to satisfy the tribunal that in the period prior to Medetate being administered on 13 October 2017 that the dog was emaciated, inappetent and dehydrated.[45]
  12. [57]
    The Board submitted that the joint experts report is not as detailed or as clear in its conclusion as the individual report of Dr Chris Shirley, and that the tribunal may prefer the independent opinion of Dr Shirley to the opinion of Dr Mitchell.
  13. [58]
    It made this submission because it said that Dr Shirley is a general registered veterinary surgeon practising in a rural area, similar to the veterinarian, and has no prior association with the veterinarian; whereas Dr Mitchell is a specialist registered veterinary surgeon, holds qualifications training and experience that differ to the veterinarian, and is not truly independent having a prior association with the veterinarian:[46]
  14. [59]
    The Board submitted that the tribunal may be satisfied that the veterinarian had engaged in misconduct in a professional respect, including because he is negligent and/or incompetent in the practice of his profession, and referred to the comments of Chairman Cook in the matter of Jeffrey Ross Seibel that:[47]

… The respondent can only be found to be negligent if in fact the tribunal is satisfied that he did not exercise the degree of care and skill expected of an ordinary competent veterinarian in the practice of his profession.

I further ruled that for the respondent to be found guilty of incompetence, the prosecutor must prove to the (civil) standard (that is on the balance of probabilities with the proviso that the evidence must produce a reasonable state of satisfaction in one’s mind) that the respondent did not on the occasions referred to in the charges exercise the requisite skill of the veterinarian in the practice of his profession.

Sanction

  1. [60]
    The Board submits that the imposition of sanctions is founded upon the need to protect the public including through general deterrence of other practitioners from similar conduct.[48]
  2. [61]
    It submitted that the following factors are relevant to the tribunal’s consideration of the appropriate orders to make in this case,[49] that the veterinarian:
    1. (a)
      is a senior veterinary surgeon with many years experience
    2. (b)
      is in his late 70s
    3. (c)
      has a prior disciplinary history (of eight prior complaints)
    4. (d)
      practices as a sole practitioner in a rural area
    5. (e)
      has breached the regulation by failure to keep clinical records
    6. (f)
      admits his clinical record is inadequate but otherwise makes no admissions regarding his treatment of the dog
    7. (g)
      has record-keeping which the Board submits is not an isolated incident
    8. (h)
      has demonstrated some insight by taking advice from Dr Mitchell in relation to his record-keeping
    9. (i)
      has failed to meet the standards expected of a veterinary surgeon practising in 2017 (and 2021) by his failure to have opioid analgesics available.
  3. [62]
    The Board noted there were very few published decisions relating to disciplinary action against veterinary surgeons, and referred to the matter of Veterinary Surgeons Board v Michael Auld[50] as being directly comparable.
  4. [63]
    In Auld the matter related to the conduct of a senior veterinary surgeon as to his record-keeping and treatment of two dogs that died.[51] In advance of the hearing, Dr Auld provided an undertaking that he would agree to retire and sell his practice within a certain timeframe and have his practice of veterinary science supervised in the intervening period – the tribunal also imposed reporting requirements relating to the supervision of his practice.[52]
  5. [64]
    The Board submitted that this was an appropriate case for the making of a cancellation order on the following bases:[53]
    1. (a)
      a cancellation order maximises the protection of the public;
    2. (b)
      the veterinarian has previously been the subject of disciplinary action on more than one occasion ranging from paying a fine to having his registration suspended. Prior disciplinary action has not ensured veterinary practices of the standard expected of him by his peers and members of the public;
    3. (c)
      an order for the suspension of the veterinarian’s registration prevents the Board assessing his fitness to hold registration when he seeks to return to practice;
    4. (d)
      the extent to which the veterinarian’s clinical records and care departed from what is expected render this too serious a case for a reprimand, even though it acknowledged a reprimand is not a trivial order;
    5. (e)
      the subject of this proceeding is too serious for a fine to be levied. The veterinarian has also been ordered to pay fines previously;
    6. (f)
      the act also does not permit the tribunal to impose conditions on the registration of the veterinary surgeon;
    7. (g)
      as the veterinarian does not acknowledge his performance in relation to the treatment of the dog amounts to misconduct in a professional respect, the Board has not been able to reach agreement with him regarding the terms of any undertaking.
  6. [65]
    The Board seeks orders that misconduct in a professional respect is found, that the veterinarian’s name be removed from the register of veterinary surgeons, and that the veterinarian pay the Board’s costs of and incidental to these proceedings to be agreed or assessed on the District Court scale.

Submissions of the veterinarian

  1. [66]
    The veterinarian handed up submissions at the oral hearing.[54]
  2. [67]
    He noted that the dog had been brought to him two weeks after first being injured during pig hunting activity; that the incident that resulted in the injury was not witnessed; and that the dog was large and aggressive.[55]
  3. [68]
    He admitted to the fact that his records were not to the standard required; and also noted that his history contains a reprimand for his conduct including poor record-keeping from an incident in 2020 which occurred after the subject incident; and that since the 2020 reprimand he had rectified his record-keeping processes and systems so that his records are compliant.[56]
  4. [69]
    He acknowledged that he did not have opioid analgesics in his clinic at the time, but has re-introduced them. He submitted that the experts have not stated that it is reasonable to expect a surgery or clinic to have opioid analgesics for use, and stated that meloxicam is a very effective analgesic.[57]
  5. [70]
    He submitted that his clinical interactions are not shown as inadequate as there is nothing stated by either expert that five visits per day were insufficient.[58]
  6. [71]
    As to his having given inadequate clinical treatment, he referred to his submissions as noted by the Board as follows:[59]
  1. The veterinarian admits he did not administer intravenous fluids. Instead, the veterinarian administered fluids by oral consumption of lectade because he says intravenous fluids were not necessary.
  2. The veterinarian disputes it was necessary to take a blood sample from the dog saying he assessed the dog’s renal parameters by visual daily observation of the dog voiding when taken from the kennels. The Board observes there are no clinical records documenting these observations.
  3. The veterinarian disputes it was necessary to perform any diagnostic tests to assess why the dog was emaciated. In relation to the latter description of the dog’s condition, the veterinarian contests the dog was emaciated.
  4. In his response, the veterinarian says ‘the dog had a conformation very similar to a greyhound’. He further says ‘the only area of wasting was his rear right leg due to lack of use in the 2 weeks prior to presentation. The dog was lean, but not emaciated.’
  5. The veterinarian says it was not necessary to consider any diagnoses other than a fractured pelvis because of the aetiology of the injury.
  1. [72]
    As to the use of Meloxicam, he submitted that it is a sedative and analgesic approved for use in the restraint of dogs for clinical examination procedures, minor surgery and pre-anaesthesia; that the dog’s appetite and water consumption improved whilst at the clinic; and that as no opioid analgesics were available the use of Meloxicam was not inappropriate.[60]
  2. [73]
    The veterinarian notes that whilst opioid analgesia was not at the clinic, which the experts stated was ideally necessary, that whilst there were faults with his conduct, in the situation and with the tools available at the time, best practice was followed and there was no negligent behaviour.[61]

Sanction

  1. [74]
    The veterinarian submitted that a penalty of reprimand should be imposed upon his irrevocably undertaking to retire/stop practising, and to not reapply for registration at the earlier of the sale of his veterinary practice, or nine months from the date of these orders; and his undertaking not to, except under supervision, perform any veterinary science in the form of diagnosing diseases and injuries to animals, medical surgical treatment of animals, performing surgical operations on animals, or administering anaesthetics to animals; amongst other conditions.[62]
  2. [75]
    He submitted that such a penalty was appropriate considering the following matters:[63]
    1. (a)
      he was currently at retirement age and has been actively looking to sell his practice;
    2. (b)
      these disciplinary proceedings have impacted his ability to find a buyer at the market price;
    3. (c)
      he has committed close to 57 years of his life providing veterinary services in mostly rural areas;
    4. (d)
      he has admitted to the inadequate record-keeping and has rectified the same; and
    5. (e)
      has re-introduced opioid analgesics to his practice.
  3. [76]
    In proposing such a penalty, the veterinarian acknowledged the comments from the experts that ideally the dogs injury should have been considered sooner, and that his record-keeping failed to provide details of his treatment protocols and clinical interactions of the dog to allow people to assess whether his conduct was appropriate or adequate in the circumstances; and that such a penalty is analogous to the decision in Auld.[64]

Discussion

  1. [77]
    In its referral, the Board sets out the alleged facts and circumstances forming the basis of the referral. The particulars of the allegations relate to the treatment of one dog, an entire male Bull Arab dog named Banjo during the period 9 October 2017 to 15 October 2017 at which point the dog was found deceased at 6.30am in its cage.
  2. [78]
    The veterinarian does not admit to some of the particulars set out in the Boards referral, and disputes he was negligent or incompetent in his treatment of the dog, but agrees that his record keeping was insufficient.
  3. [79]
    The disputed facts are as follows:
    1. (a)
      That the dog was not given pain relief in Blackwater prior to transportation to Emerald. The veterinarian says that 10mg Meloxicam (0.5ml of 20mg/ml  Meloxicam) was administered in Blackwater, prior to putting the dog in the car.
    2. (b)
      That there was no change to the dosage used of Meloxicam. The veterinarian disputes this, all and stated that the initial dosage of Meloxicam was of 10mg, then a daily dose of 2mg (0.1ml of 20mg /ml product i.e. 0.1mg/kg) for the remaining 5 days.
    3. (c)
      That there was inadequate Hospitalisation and Clinical care of the dog. The veterinarian says that this was undertaken having regard to the aggressive nature of the dog, and that as he lives onsite, he was involved in early morning and late evening checks as well as observations (not recorded) throughout the day, which he deemed adequate.
    4. (d)
      That no other Differential Diagnosis was considered. The veterinarian disputes this, and states that other Differential Diagnosis considered by him, and included a possible traumatic injury to spine/femur/pelvis. He says that this was based on the history of the dog having been injured whilst pig hunting 2 weeks prior, and was only then presented.

He noted that the right hind leg was non weight bearing, and any movement elicited a strong pain response on presentation, and that there was now muscle wasting, but that according to the owners the dog had maintained an appetite and was toileting during the period prior to presentation.

  1. (e)
    That the use of Meditate as a sedation agent was not appropriate. The veterinarian disputes that this was a poor choice in relation to the dose given, and that it could be used as a pre-med dose if general anaesthesia was required.
  1. [80]
    In October 2020, the Board engaged an expert, Dr Shirley, who provided his opinion that the veterinarian’s management of this case was:

in relation to practice standards, …I would not accept this level of treatment for a patient in my practice. However I only have scant records to go on and do not know the true circumstances.

  1. [81]
    In December 2020, the veterinarian engaged an expert, Dr Mitchell, to review the case and to present an opinion regarding the case management. Dr Mitchell’s opinion was that he:

did not think this constitutes a negligent behaviour when reasonable alternatives were offered that in the context of both urban and rural practice are not so uncommon.

  1. [82]
    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 professional respect.
  2. [83]
    Matters of significant concern to the Tribunal include:
    1. (a)
      the use of large animal Meloxicam in a small animal practice ‘off label’ and at a dose not advised,
    2. (b)
      the absence of a range of pain relief options for injured animals,
    3. (c)
      the inability to manage large aggressive patients correctly and safely with appropriate pharmaceuticals and
    4. (d)
      the lack of instigation of timely diagnostic techniques including but not limited to radiology and basic biochemical parameters.
  3. [84]
    The Tribunal accepts the evidence of the Board’s expert with respect to Section 22 F (f), and finds that the veterinarian failed to address and investigate adequately the reason for the right hind limb lameness and pain in the dog.
  4. [85]
    We further find that the analgesia provided falls below the standard expected in a small animal practice and the regime implemented was not conducive with progressing the patient to a positive pain free outcome. We consider that five days of the same treatment is not appropriate without further progression of pharmaceutical, diagnostic procedures and corrective techniques.
  5. [86]
    The veterinarian agrees that his Clinical Notes did not comply with section 24 of the Regulations [65] as they did not provide sufficient information regarding the Veterinary care and services provided by him to the dog.
  6. [87]
    The Tribunal finds that failure to keep adequate records is a serious matter, and that members of the public would expect a Veterinary Surgeon of his experience to be familiar with the regulations. As found by both experts, records are vital because they are the only way to establish whether a treatment instigated has been effective.
  7. [88]
    Having regard to these findings, the Tribunal concludes that the veterinarian engaged in misconduct in a professional respect:
    1. (a)
      in that he was negligent or incompetent in the practice of his profession in relation to the care and treatment and ultimate death of the dog, and
    2. (b)
      by failing to keep records as prescribed by Section 22F(i) of the Act.

Sanction

  1. [89]
    In arriving at an appropriate sanction, we have taken into account the purpose of the Act and, in particular, of disciplinary proceedings. We have also had regard to other decisions of the Tribunal concerning Section 22F of the Act. 
  2. [90]
    The Board has sought the sanction of removal from the register. The Tribunal notes that the purpose of the sanction of removal from the register is not to punish the practitioner concerned, but for the protection of the public and of the reputation and standards of the Veterinary profession, and to serve as a deterrence to other practitioners from engaging in similar conduct.
  3. [91]
    The Board referred the Tribunal to two relevant decisions where Veterinarians had engaged in misconduct in a professional respect:
    1. (a)
      In Veterinary Surgeons Board of Queensland v Auld,[66] it was proved by reason of his own admissions that the veterinarian engaged in misconduct in a professional respect in that he:
      1. was negligent or incompetent in the practice of his profession in relation to two dogs which died;[67] and
      2. failed to keep such records as are prescribed or, so far as are not prescribed, as the Board directs, in relation to five dogs that attended the surgery.[68]
    2. (b)
      In Veterinary Surgeons Board of Queensland v O'Flaherty[69]  the Tribunal found that the registrant had engaged in ‘misconduct in a professional respect’ but did not take any further action, as the registrant had provided to the Board an undertaking for an immediate and permanent retirement.
  4. [92]
    The veterinary surgeon in this matter is also a very senior veterinarian, similarly to Dr. O'Flaherty, but he has not given the same undertaking as to moving into immediate and permanent retirement.
  5. [93]
    The veterinary surgeon sought that a penalty of reprimand should be imposed, and suggested a regime allowing for sale of his practice, and for him to be able to continue to practice in a limited way under supervision.
  6. [94]
    Section 15 C provides that the tribunal, in making its decision about a disciplinary proceeding alleging misconduct in a professional respect against a veterinary surgeon, must have regard to previous decisions about the veterinary surgeon made by any of the following:
    1. (a)
      the tribunal, if in the opinion of the tribunal the previous decision is relevant to the matter before it;
    2. (b)
      the board;
    3. (c)
      a committee.
  7. [95]
    The board has provided a summary of previous decisions about the veterinary surgeon.[70] In some of those matters, no action was taken by the board, or it was unable to be satisfied that there was any negligence on the part of the veterinary surgeon. In other matters, previous findings of misconduct have been made, which we consider to be relevant considerations as to whether it is appropriate for the veterinary surgeon to be removed from the register.
  8. [96]
    A summary of those relevant matters is as follows:

Date

Summary of conduct / performance

Outcome

1980s

A number of complaints received relating to acts of veterinary science performed by the respondent between approximately 1980 and 1986.

In October 1988 the applicant found the respondent guilty of misconduct in a professional respect on two charges. Relevantly, the respondent was found guilty in relation to the allegation that in about November 1984, he performed a caesarean section on a Great Dane in a manner that was negligent and/or incompetent.

He was also found guilty of conduct in about 1980 he allowed an Afghan bitch to be taken home in an unconscious state.

He was fined the maximum penalty of $500 in relation to each count.

1989

The complaint related to the respondent’s failure to read tuberculin tests on 109 steers in accordance with rules relating to the eradication of tuberculosis.

On the basis of his failure to read the test results, it was then alleged that the respondent issued misleading travel permits when he had not tested the steers.

On 3 April 1991, the tribunal found the respondent guilty of misconduct in a professional respect.

The tribunal suspended the respondent’s registration and ordered him to pay a penalty of $1,000 plus costs of the applicant.

The respondent’s registration was restored to the register in early July 1991.

July 2009

The complaint related to an allegation that the respondent failed to recognise and appropriately treat ketoacidosis in a cat and also failed to maintain records as required.

The applicant conducted a  disciplinary hearing in October 2009.

The respondent was found guilty of misconduct in a professional respect in relation to his care for the animal and his record keeping. A fine of $2,000 was levied

January 2020

The complaint related to the respondents care of a dog between 22 January and 28 January 2020.

The applicant resolved to refer to the board for consideration the respondent’s:

  • surgical technique relating to his use of catgut to close the fascial layer of the abdomen;
  • record keeping including relating to the documentation of consent and the provision of telephone advice to owners; and
  • the use of and doses of meloxicam and gabapentin during the peri-operative period.

The applicant held a hearing on 23 April 2021.

The respondent pleaded guilty to the allegations relating to his surgical technique and recordkeeping.

The applicant decided the respondent had engaged in misconduct in a professional respect.

The respondent was informed of the decision on the day of the hearing but the reasons have not yet been documented.

The applicant decided to impose a fine on the respondent and require him to provide samples of his medical records for 10 cases over 12 months.

  1. [97]
    We do not consider that a reprimand would convey the seriousness of the misconduct and is not an appropriate sanction.
  2. [98]
    We have concerns as to how practical the proposal of the veterinary surgeon as to limited supervised practice would be, given the difficulty in finding a suitably qualified supervising person in the area; and do not consider that the regime of practice proposed by the veterinary surgeon would, in any event, sufficiently protect the public.
  3. [99]
    We do not consider that it is in the interests of the public that the veterinary surgeon should be able to continue to practice, even in a limited capacity.
  4. [100]
    Having regard to the above discussion; to the previous disciplinary decisions in relation to the veterinary surgeon; and to the comparable previous decisions referred to; the Tribunal considers that the appropriate order in relation to sanction is that Dr. Brian Joseph Canty’s name be removed from the register.

COSTS

  1. [101]
    The Board has advised that it does not seek costs as to any investigations, but does seek its costs of the proceeding.
  2. [102]
    Section 15D of the Act provides that the tribunal may make any decision about costs it considers appropriate in a disciplinary proceeding before it.
  3. [103]
    The board has presented strong submissions in favour of making a disciplinary finding of misconduct in a professional respect, and as to removing the veterinary surgeons name from the register, which have generally been accepted by the tribunal.
  4. [104]
    The veterinary surgeon has contested the proceeding; has not provided satisfactory undertakings as was the situation in Auld; and has required the Board to proceed to a full disciplinary hearing before the Tribunal.
  5. [105]
    We consider that this is an appropriate matter in which to award costs to the Board, and that the appropriate scale is the District Court scale. The costs are to be as agreed, or assessed.

Footnotes

[1]  Agreed Statement of Facts [9].

[2]  Ibid [12]-[13].

[3]  Ibid [14]-[15].

[4]  Ibid [16].

[5]  Ibid [17].

[6]  Ibid [18].

[7]  Ibid [9]-[10].

[8]  Ibid [12]-[13].

[9]  Ibid [15]-[16].

[10]  Ibid [17].

[11]  Ibid [18].

[12]  Ibid [20]-[21].

[13]  Ibid [23].

[14]  Ibid [24]-[25].

[15]  Ibid [26].

[16]  Ibid [18].

[17]  Ibid [28-29].

[18]  Ibid [30].

[19]  Ibid [31-33].

[20]  Ibid [18].

[21]  Ibid [35]-[36].

[22]  Ibid [37]-[39].

[23]  Ibid [18].

[24]  Ibid [42]-[44].

[25]  Ibid [45].

[26]  Ibid [46]-[50].

[27]  Ibid [51].

[28]  Ibid [52].

[29]  Ibid [53]-[55].

[30]  Ibid [56]-[58].

[31]  Joint Experts Report filed 23 March 2021

[32]  Submission of the applicant, filed 31 August 2021 [5]-[7].

[33]  Ibid [23].

[34]  Ibid [24(a)(iv)].

[35]  Ibid [30].

[36]  Ibid [33].

[37]  Ibid [41].

[38]  Ibid [40].

[39]  Ibid [56].

[40]  Ibid [59].

[41]  Ibid [68].

[42]  Ibid [73].

[43]  Ibid [100]-[101].

[44]  Ibid [102].

[45]  Ibid [109].

[46]  Ibid [114]-[115].

[47]  Unreported decision of the Veterinary Tribunal of Queensland, 15 March 1988.

[48]  Ibid [129].

[49]  Ibid [137].

[50]  [2018] QCAT 447.

[51]  Op Cit [143].

[52]  Ibid [146].

[53]  Ibid [178].

[54]  Exh 3.

[55]  Submissions of Dr Canty, p1.

[56]  Ibid p 2.

[57]  Ibid p 3.

[58]  Ibid p 3.

[59]  Op Cit, submission of the applicant [74]-[78].

[60]  Ibid p 3.

[61]  Ibid p 5.

[62]  Ibid p 5.

[63]  Ibid p 5.

[64]  Ibid p 5.

[65]  Veterinary Surgeons Regulations 2016.

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

[67]  Under section 22F (f).

[68]  Under section 22F (i).

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

[70]  Submission of the Applicant filed 31 August 2021 [141].

Close

Editorial Notes

  • Published Case Name:

    Veterinary Surgeons Board of Queensland v Canty

  • Shortened Case Name:

    Veterinary Surgeons Board of Queensland v Canty

  • MNC:

    [2022] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM, Member Baxendell, Member Grigg

  • Date:

    20 Jul 2022

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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