Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 (31 December 2002)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285

PARTIES: APPLICANT

Veterinary Surgeons Investigating Committee

RESPONDENT

Ronald George Lloyd

FILE NUMBERS: 40015 of 1998

HEARING DATES: 21/02/2000 - 25/02/2000, 11/12/2000 - 13/12/2000

SUBMISSIONS CLOSED: 29-11-2002

DECISION DATE: 31-12-2002

BEFORE: O'Connor K - DCJ (President)McGilvray G - MemberClark F - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Poisons Act 1966

Poisons and Theraputic Goods Regulation 1994

Veterinary Surgeons Act 1986

Veterinary Surgeons Regulation 1995

CASES CITED: Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98

Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26

Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224

Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: Total Eclipse: Findings) [2002] NSWADT 284

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Re Lloyd, unreported, 16 December 1994

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Marten v Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1

Burton v Anderson, unreported, NSWCA, 28 October 1994 Bar Association of New South Wales v Hamman [1999] NSWCA 404

Kalil v Bray [1977] 1 NSWLR 256

Pillai v Messiter [No 2] (1989) 16 NSWLR 197

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Walsh v Tattersall (1996) 196 CLR 77

Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242

Van Damme v Chief of Army [2002] DFDAT 1

Barwick v Law Society of New South Wales [2000] HCA 2

APPLICATION: Veterinary surgeon - misconduct or serious misconduct in a professional respect

Veterinary Surgeons Act - veterinary surgeon - misconduct or serious misconduct in a professional respect

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

S Burchett, barrister (to July 2002)

M Linkenbagh, agent (since August 2002)

RESPONDENT REPRESENTATIVE: RESPONDENT

D Inverarity, barrister (to November 2000)

B Green, solicitor

ORDERS: 1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(d) and 1(e)

2. In relation to Allegation 2 of the complaint as referred, the Tribunal's ruling is that the referral was affected by procedural error; and that Allegation 2 was not validly before the Tribunal

3. As all evidence considered to be relevant to Allegation 2 was heard prior to the submission by the Committee as to the procedural validity of the Allegation, the inquiry is to reconvene to consider the Tribunal's motion pursuant to section 30 of the Act to add a further Allegation to the complaint in the same terms as Allegation 2

4. After the determination of the findings as to any further Allegation in this Inquiry and the determination of the findings as to the Allegations in the other three Inquiries, this Inquiry is to be reconvened for the determination of orders pursuant to section 32.

Reasons for Decision:

1 The Veterinary Surgeons Investigating Committee (the Committee) has pursuant to s 28(1)(c) of the Veterinary Surgeons Act 1986 (the Act) referred to the Tribunal for inquiry under s 30 a complaint against Dr Ronald George Lloyd (Dr Lloyd), a registered veterinary surgeon. Unless otherwise noted, references to the Act in these reasons are to the Act as in force at the time of the referral of the complaint. Pursuant to s 29(6) of the Act, the Committee appointed its Secretary, Mr Michael Harcombe, a member of the Public Service, to be the nominal complainant.

2 The Secretary now is Ms Maria Linkenbagh. She has appeared in person and presented the Committee's submissions since the proceedings resumed in August 2002, following remitter from the Court of Appeal (see further below). She advised that the Committee had changed in membership since this and the other inquiries (referred to below) commenced; and that as at that time there was little knowledge of the background to the laying of the charges among present members of the Committee.

3 The original complaint relevant to the present Inquiry was made to the Australian Veterinary Association (the AVA) by Mrs Suzanne Robinson of Liverpool; and then referred by the AVA to the Committee. It related to Dr Lloyd's treatment during February and March 1997 of her family's undesexed male Wiemaraner, Remus. As at February 1997 the Robinson family had owned Remus, then 6 years old for about 4 and a half years.

4 Following referral, the Committee must undertake an investigation. When it has completed its investigation the Committee is required to make a decision as to what course of action it will adopt.

5 Section 28(1) provides for three options: (a) dismissal of the complaint, (b) imposition of specified penalties if it is satisfied as to the truth of the complaint but does not regard it as sufficiently serious to refer to the Tribunal, or (c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious, referral to the Tribunal. Option (c) has been adopted in this case. The Committee is required (s 28(3)) to give the registered veterinary surgeon concerned `an opportunity to make written representations and an opportunity to appear before it to make oral representations before exercising its power.'

6 Following the consideration of written explanations given by Dr Lloyd, the Committee undertook a formal interview of Dr Lloyd on 24 November 1997. On 5 August 1998 the Chairperson, Veterinary Surgeons Disciplinary Tribunal (the predecessor to this Tribunal) issued the notice of inquiry.

7 The complaint as referred contains six allegations of misconduct in a professional respect, as a registered veterinary surgeon. Five of these relate to his diagnosis, treatment and care of `Remus', and are found in Allegations 1(a) to (e) of the notice; and the other concerns his behaviour towards the complainant after the lodgment of her complaint (Allegation 2). For reasons explained below, these reasons for decision only deal substantively with Allegations 1(a) to (e).

Procedure

8 The parties agreed to this and three other complaints being dealt with sequentially, with all evidence in respect of the four complaints being considered before any determinations were made in respect of any of them (Transcript of Proceedings (ts) 15/3/99:3).

9 The hearing of evidence in relation to the complaints occupied 28 days (not including hearings for directions and dealing with other motions) spread over 22 months, commencing in March 1999 and ending in December 2000, as set out below:

`Chisel', a dog owned by the Girgenti family: 15, 16, 17, 18, 23 March 1999 (Matter No. 40004 of 1998).

`Gypsy', a horse owned by Ms Sharon Clee: 23, 24, 25, 26 March 1999; 23, 24, 25, 26, 29 November 1999 (Matter No. 40005 of 1998).

`Remus', a dog owned by the Robinson family: 21, 22, 23, 24, 25 February 2000; 11, 12, 13, 14, 15 December 2000 (the present matter) (Matter No. 40015 of 1998).

`Total Eclipse', a cat owned by Ms Kim Koroknay: 7, 8 June 2000; 13, 14, 15 November 2000 (Matter No. 40016 of 1998); now the subject of a decision as to guilt published 31 December 2002: Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: Total Eclipse: Findings) [2002] NSWADT 284 (31 December 2002).

The hearing of this matter was affected by issues as to the reconstitution of the Panel, with the result that the decision is now issuing two years after the completion of the evidence.

Tribunal

10 The Tribunal is required to be constituted by a Veterinary Disciplinary Panel: Administrative Decisions Tribunal Act 1997, Schedule 2, cl 7. The three members of the Panel must comprise a member of the General Division of the Tribunal who is a judicial member, a non-judicial member who is also a member of the Board and a non-judicial member who is not a veterinary surgeon and was assigned to the Division on the recommendation of the relevant Minister to represent the interests of users of veterinary services. The Tribunal's powers when a complaint is proved are set out in s 32 of the Act.

Reconstitution of Panel

11 The original Panel comprised the President; Dr Garth McGilvray, non-judicial member, a veterinary surgeon and a member of the Board; Ms Yolande Dubow, non-judicial member, representing the interests of users of veterinary services. Following the expiry of Ms Dubow's term as a member on 31 March 2000, while the overall hearing was incomplete, it was necessary to reconstitute the Panel by replacing Ms Dubow with a new member representing the interests of users of veterinary services, Ms Fiona Clark.

12 The Panel that included Ms Dubow heard the entirety of the Inquiry 1 (Chisel) and Inquiry 2 (Gypsy). As to the present Inquiry, the first part of the notice of inquiry was heard by the Panel that included Ms Dubow.

13 The Tribunal, as reconstituted, heard the latter part of the present Inquiry. The new Tribunal heard the entirety of Inquiry 4 (Total Eclipse).

14 Section 79 of the Tribunal Act deals with the consequences of reconstitution. The respondent did not give the consent necessary for ss 79(1) and (2) to be utilised. Accordingly it was necessary to deal with the future course of the proceedings pursuant to ss 79(3) and (4). Section 79 provides:

`79. Reconstitution of Tribunal during hearing

(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:

(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and

(b) the parties consent.

(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.

(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.'

15 The President gave directions as to how the reconstituted Tribunal was to proceed in relation to the first two inquiries and this inquiry (then part-heard): Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98.

16 There was an appeal against the directions on grounds of procedural fairness. The Appeal Panel dismissed the appeal on 15 August 2001: Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26. On further appeal, the Court of Appeal found that the President in sitting alone to deal with the reconstitution of the Tribunal had exceeded the jurisdiction of the Tribunal. The relevant decision was required to be made by the full Tribunal. Accordingly it set aside the previous decisions, and remitted the matter to the Tribunal for further decision: Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002).

17 The full Tribunal reconvened, and ruled (Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 (13 November 2002) that the respondent's requests for the recall of certain witnesses were not granted; and that the proceedings in respect of Inquiries 1, 2 and 3 were to be reconsidered by having regard exclusively to the record of the proceedings before the Tribunal as previously constituted, including the records of evidence taken in the proceedings. A timetable for closing submissions (which had not been presented pending the appeals) was set.

Original Complaint

18 The owner of the dog Remus, Mrs Suzanne Robinson, made her original complaint on 17 March 1997. The dog had died while in Dr Lloyd's care on 11 March 1997. The text follows, with original spellings and syntax.

Dear Sir/Madam,

I would like to lodge a complaint against Dr Lloyd. Regarding the needless death of my dog Remus on the 11.3.97 a Weimaraner who was born on the 22.3.91.

Remus was a very happy healthy dog, he was very much a part of our family my two boys adored him. He was chasing his ball and slipped on something on the grass, he yelped and started to limp on his left leg. After a few day's he became stiff and was in pain, he went off his food was vomiting so we took him to Dr Lloyd for proffesional advice.

On the 25th Febuary Dr Lloyd examined him via the rectum. We had explained all of Remus's symptons he diagnosed Remus with a split pelvis gave Remus an injection and anti-inflamatory drugs (green tablets enclosed) He said that this examination saves taking Radiographs I told him of my concern for Remus's health, he replied, "Cows have their pelvis"s broken all the time in birth "He will be alright in about a month" "give him panadol for the pain, see me in two weeks"

Remus did not improve he would not eat and lost a lot of weight, was in constant pain and kept shaking. He would not move from his blanket and was constantly wimpering I was very concerned. I called the vet two day's later and explained that Remus was getting worse he told me these things take time.

On the 4th march I came home from work he had became much worse, I called the Vet and was told to come with Remus, he would give him stronger tablets. (blue enclosed).

When we were in the waiting room Dr Lloyd came over to us did not examine Remus and told me that I shouldn't have brought Remus take these tablets, I said I was worried, he told me that I can't expect overnight results and that I was being impatient.

Remus was not eating, barely moving and constantly shaking, I knew that he was very sick he had never been like this before.

But I had my trust in Dr Lloyd because he was a Vet and I felt that he would know better than I, I consoled my children that their dog would get better, we have done the best thing, we took him to an animal Doctor and he had said that there was nothing to worry about. My boys are still crying, and so am I, he protected us and was a big part of our life, which we are deeply feeling, the loss as we were told there is nothing to worry about, we were totally unprepared for the death as we were not informed of any problems or complications at all.

When I came home from work on the 7th March 1997 Remus was unable to get up, was shaking even more, and crying.

I called Dr Lloyd, the receptionist answered I told her that my dog is dying, she said "come straight away with him".

I virtually carried him to the car, he was wimpering and shaking, when we arrived at Dr Lloyds, I went into the surgery and cried to Dr Lloyd `My dog is dying' he came to the car, and pulled Remus out by his flea collar.

Remus was staggering, disoriented and wetting himself, I started to get very upset, I said to Dr Lloyd "My dog is dying" he said "He's not that bad he's still walking, what do you expect he has a broken pelvis," You've seen the Radiographs, these things take time to heal, I replied that Remus never had Radiographs and that he had diagnosed a split pelvis, that was nothing to worry about. He told me that I was overreating [overreacting], and to give me peace he would keep Remus overnight and that he would take Radiographs, call him Saturday 8th March, I would be able to take him home, and we would discuss the Radiographs. I felt relieved that finally something was being done, to help Remus.

I called on Saturday to be told that Remus had a kidney infection, he will have to stay another night, call back Sunday 9.4.97.

I called back Sunday to be told that Remus had Toxemia, call, back on Monday 10.3.97. I called back on the Monday to be told Remus had internal bleeding from the accident, I said "What accident?" he said "Well what ever had happened to him" I told him that I couldnt understand what he was talking about, he told me to call back Tuesday 11.3.97. after lunch, which I did to be told he had died 10 minutes earlier, I asked why wasn't I informed, He said "Well he just died"

He asked what would I like to do with the body, cremation or burial, I told him that I was to upset to make a decision, I would call him back later on that day. Could I see Remus, he told that It would not be a good idea. My ex husband (Michael) went that afternoon to see Remus, as he was worried about him, to be told that Remus had died. Michael asked to see him and was told that Remus had already been buried at his property at Hoxton Park, "tell her "just buy another dog" this would have been about 4.30 pm in the afternoon, I had not told Dr Lloyd what I wanted done with Remus, he was buried and disposed of without my consent. Another dog will not replace Remus he still had many years ahead of him with us, I feel at a loss, Remus was diagnosed with a split pelvis, didnt get any better, died, Why?. I could have not done anymore to save my dog, and I still cannot understand why he died, when I was told there was nothing to worry about, that I was overreacting, I feel that this must be looked into, I didn't even have a say in his burial.

Your's faithfully

Suzanne Robinson. 17.03.97'

Original Reply to Complaint

19 Dr Lloyd replied by letter dated 14 April 1997. The text follows with original spellings and syntax.

`On the 25th February I was presented with a 6 year old male Weimaraner "Remus" owned by Mrs Robinson.

The presenting symptoms were Anorexia, Sproadic Emition, Sore Back Left Leg.

On examination:- Cardinal signs were normal, temperature being 38.9. On palpation of pelvic dorsal region - the dog exhibited pain.

I performed a rectal examination and the dog exhibited pain when pressure was applied to the pelvic symphysis.

Combing history of sudden lameness during exercise and rectal examination findings, I made a provisional diagnosis of split pelvic ligaments or tendons around the pelvic symphysis.

I prescribed rest plus administered 40mg Depomedrol and 5mg prednisolone daily.

The owner was asked to return the dog in 14 days for a check up.

On 4th March Mrs Robinson returned with the patient. The dog was atoxic and still in some pain. I increased the anti-inflammatory drug Prednisolone to a dose of 25mg daily and suggested to the owner that she also administer panadol daily.

Up to and including this time, I was still of the opinion that the dog only required rest, time and pain relief for recovery to occur.

Twenty hours later - Saturday afternoon after I had admitted the dog to hospital and x-rayed the dog, my provisions diagnosis was confirmed as shown by the periostitis along the cranial pelvic rim. But on further examination of the dog, acute pain was noted on palpation of the prostate.

On urine examination, Haematuria was seen plus many W.B.C. on examination of a sediment smear.

The dog's condition had deteriorated and I was concerned for its well being.

The animal was placed on a Hartmann IV drip. FINAYNE and GENTOMYCIN were added, 4cc of Long Acting Benacillen was given IM.

The dog was checked Saturday 6pm, 11pm, Sunday 1am and 6am then throughout the day.

FLUIDS with added therepeutics were continually administered.

Sunday - 11pm - 500cc 50% glucose was added to the Hartmanns mix via a second drip line.

On MONDAY 10/3/97 the dog was very depressed, still in pain, unable to walk or stand - a haematocrit indicated an abnormal buffy coat, PCV 65 and its body temperature was dropping then 36.7. Fluids were continued with Trimethoprim, Finadyne and Dexomethorone added.

A very poor prognosis was given to Mr. Robinson, who I presumed was part of Mrs Robinson's household.

On Tuesday 11/3/97 fluid therapy was continued along with antibiotics and analgesic covers. The dog was unresponsive and cold. Its mucous membranes were palid, dry and grey. The animal's temperature was 36.9 regardless of it being on a heat pad.

Death occurred at 2.20pm Tuesday. Mr Robinson was informed.

On examination of the dead dog, the actual cause of the systemic toxaemia was seen to be pyelonephritis and associated prostate abscessation.

I have asked Mrs Robinson to allow me to explain the animal's treatment and the cause of death but she has declined.

In my discussion with Mr Robinson he was made aware that the animal was very sick and a poor prognosis was intimated. I wrongly assumed that he was in a position to convey this to the highly emotive Mrs Robinson.

It is my belief that the course of this complaint was lack of communication re the degenerating condition of the dog and my confusion over the relationship between Mr and Mrs Robinson.

Yours faithfully,

R.G. Lloyd'

NOTICE OF INQUIRY

20 Following investigation of the original complaint, the Committee referred the following complaint to the Tribunal. The numbering used is retained, although sub-particulars which were unnumbered have been given numbers below, for ease of identification and reference.

1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons' Code of Professional Conduct (`the Code') established under Section 23 of the Act and prescribed for the purposes of section 22(c) of the Act, as follows:

(a) Between 25 February 1997 and 11 March 1997 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science.

Particulars

(i) On 25 February 1997, Suzanne Robinson consulted you in relation to her dog `Remus'. She informed you that Remus had slipped on the grass chasing a ball, some time previously. The dog was presented to you with the following symptoms :

hind leg lameness and difficulty in walking;

history of vomiting;

anorexia; and

pain.

You did not

question Suzanne Robinson to identify causes of vomiting and anorexia;

conduct a full physical examination of the dog;

consider the status of the dog's prostate despite your having found acute anterior pelvic pain during your rectal examination of it, and having been given a history of malaise, vomiting and pain and despite the fact that the dog was an undesexed male;

establish any diagnosis, other than that the dog might have been suffering from Kennel Cough and provisionally, that the dog had split pelvic ligaments or tendons, yet you returned the dog to Suzanne Robinson;

record the length of time over which the dog had been suffering;

discuss the following options with Suzanne Robinson:-

- undertaking a urinalysis with culture and sensitivity;

- radiographing the dog;

- taking blood samples or biochemistries;

- leaving the dog in your care for further observation and tests;

You should have taken the actions described above but did not do so.

You made a tentative (unlikely and erroneous) diagnosis that

Remus was suffering from Kennel Cough and

(provisionally) pelvic sprain/strain

without finding any explanation for the metabolic malaise.

In spite of the fact that one of your diagnoses was that Remus was or might be suffering from Kennel Cough, an infectious disease, you treated Remus with a long acting potent cortico-steroid, (Depro Medrol) in an excessive amount.

You advised the owner to re-submit the dog in 14 days, but gave her no other instructions.

In addition, you supplied Prednisolone, to be given at a dose rate of 5 mg daily, which was inappropriate.

You did not warn the owner about possible side effects of the Prednisolone but should have done so.

You prescribed giving 1 Panadol a day, an inadequate and inappropriate pain relief in this case.

(ii) On 27 February 1998 Suzanne Robinson telephoned you and told you that Remus' condition had deteriorated.

You should have but did not :

closely re-consider the clinical symptoms especially the anorexia at a time when the dog had already been given cortico-steroids, a side effect of which is appetite enhancement;

advise her to bring the dog into you for re-examination;

discuss with her :

taking radiographs;

having any other tests conducted, such as :

blood count and biochemistries;

urinalysis with culture and sensitivity.

(iii) On 4 March 1997 Remus was presented to you again. You were informed by Suzanne Robinson that the dog's condition had deteriorated, in particular that it was not eating, had lost a lot of weight, was in constant pain, was continually shaking, was immobile and whimpering.

You did not :

physically examine the dog;

offer to Suzanne Robinson

taking a blood count and biochemistries of Remus;

urinalysis with culture and sensitivity;

taking radiographs

but should have done so.

You replaced the 5mg daily Prednisolone with 25 mg Prednisolone tablets, to be taken daily at a time when the Depro Medrol should have been at peak blood level. The appropriate action was to review the case, and conduct a full clinical examination, not add more cortisone.

You did not warn the owner about possible side effects of the Prednisolone.

(iv) On 7 March 1997, Suzanne Robinson brought Remus back to your surgery. She said to you words to the effect of `My dog's dying'. You then pulled Remus out of her car. Remus was having difficulty walking, was shaking, had obviously lost weight, was in a state of shock and in a lot of pain.

You should have but did not discuss with the owner the options of taking any or all of the following tests and actions:

referral to a specialist practitioner;

blood count and biochemistries;

urinalysis with culture and sensitivity;

taking radiograph of the caudal abdomen and hindquarters +/- contrast dye studies of the urogenital system if indicated;

euthanasia.

You did not take Remus' temperature, nor otherwise physically examine it, but should have done so.

Alternatively, if you did advise the owner of the options open to her or conduct a physical examination of the dog, you made no record of having done so.

(v) From 7 March 1997 you kept Remus under your care and management at your surgery until 11 March 1997, when the dog died.

On 8 March 1997 you observed haematuria and pyuria.

During that period, your management and treatment of the case was inadequate in that :

you treated the dog with both non-steroidal anti-inflammatory drugs and cortico-steroids at the same time in a toxic, septicaemic patient;

you failed to adequately investigate the urinary tract when there was evidence of urinary tract involvement;

you failed to take adequate investigatory blood tests;

you added a potentially nephrotoxic antibiotic (Gentamicin) without fully understanding the consequences;

you noted a markedly elevated PCV (65) but did nothing to monitor it, nor acknowledge that your fluid therapy was inadequate to improve fluid perfusion and thus correct dehydration;

you did not do enough for the dog's pain and suffering, for example the administration of an effective analgesic such as temgesic.

(vi) You failed to make sufficient records of your treatment of Remus to enable another veterinary surgeon to take over management of the case.

Details of deficiencies in your record keeping are set out in allegation 1(e).

(b) On 11 March 1997 you carried out an autopsy on the dog and then disposed of its carcass without the owner's permission.

(c) You did not ensure that conditions imposed by other legislation (namely, the Poisons and Therapeutic Goods Regulation 1994) relating to dispensing, handling or storing restricted or dangerous drugs were strictly complied with between 25 February 1997 and 11 March 1997.

Particulars

The drug Prednisolone was supplied by you to Suzanne Robinson between 25 February 1997 and 11 March 1997 and that drug was a restricted substance (being a substance specified in Schedule 4 of the Poisons List).

The label was required by S.27(1) to carry the following information:

(a) the name of the drug;

(b) the size of the tablets;

(c) the number of days over which to be given;

(d) the date of supply;

(e) the quantity supplied.

Except for the word `Preds.' on one label (which was not adequate as a name of the drug) none of these details were on the label on the packages of Prednisolone which you supplied.

(d) You supplied a substance included in schedule 4 to the Poisons List to an animal but did not ensure that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the particular substance.

Particulars

On 25 February 1997 you supplied the drug Prednisolone to Suzanne Robinson for her to administer to Remus. Subsequently, on 4 March 1997 you supplied to her an additional supply of Prednisolone tablets of a stronger strength than those on the 25th February 1997. The only written instructions which you gave to her were those written on labels attached to the packets within which the tablets were enclosed which were the words `One Tablet per day'.

(e) You failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made.

Particulars

Between 25 February 1997 and 11 March 1997 you were treating and caring for Remus and having consultations with its owner in relation to injuries and infection mentioned previously in this notice. The only record which you made in relation to your treatment of Remus and consultation with the owners of Remus between 25 February 1997 and 11 March 1997 were the notes which you wrote on both sides of your case record card. Particulars which were not recorded but which should have been recorded were

your checking the dog on Saturday (8 March 1997) at 6pm and 11pm and Sunday (9 March 1997) at 1am and 6am and the condition of the dog and its symptoms which you observed on each of those occasions;

your telephone conversation with Suzanne Robinson on 27 February 1998 , the information which she provided to you about the dog's condition in that telephone conversation and any advice or instructions which you gave to her;

clinical re-examination on 4 March 1998 ;

quantities of intravenous fluid and flow rates;

whether the dog was urinating or defecating and any monitoring thereof;

results of urinalysis.

2. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to section 26(1)(c) of the Veterinary Surgeons Act 1986, between late March 1997 and late 1997 you did not conduct yourself in a manner in accordance with the professional standard expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general.

Particulars

After Suzanne Robinson had sent a complaint to the Australian Veterinary Association Limited, in relation to your treatment of Remus referred to previously in this notice, you were notified by the Australian Veterinary Association Limited of that complaint in late March 1997.

Between the time when the Australian Veterinary Association Limited advised you of the complaint and mid April 1997, you telephone Suzanne Robinson at her place of work and told her that you wanted her to drop the allegations regarding Remus. She refused. A few days later, you rang her again and insisted on having a meeting with her. You told her that you wanted to make some kind of deal. She informed you that she did not want to see you. Nevertheless, you rang her again and on a Sunday morning said that you wanted to see her, that day. You told her that you would come to her home and speak to her. You told her that you could be at her home in 10 minutes time but that alternatively, she could ring you and make an appointment to see you at your surgery and again offer to assist her financially. Subsequently, despite your being aware of the fact that the complaint had been passed on to the Veterinary Surgeons Investigating Committee and was being investigated, you threatened to report Suzanne Robinson to the Credit Reference Association for the non payment of your invoice relating to the treatment of Remus.

21 (Note in the remainder of the decision we have referred to two of the drugs mentioned as `Depo-Medrol' and `prednisolone'.)

22 Allegation 2: Following submissions recently made by the Committee, we find that Allegation 2 is affected by a procedural irregularity of significance; and was not validly referred. Our reasons are set out at the end of this decision.

Burden of Proof

23 The burden of proving the complaint against Dr Lloyd rests upon the applicant, the Committee. The Tribunal must reach a comfortable level of satisfaction (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 360-3) that the behaviour alleged was misconduct in a professional respect. The Veterinary Surgeons Disciplinary Tribunal (constituted by the Deputy Chairman, His Honour Judge Wall DCJ, Professor C Bellinger and Dr W Howey) in Re Lloyd, unreported, 16 December 1994 (Re Lloyd), observed at p 5:

`The standard of proof to be discharged by the nominal complainant in proof of the complaint is based on the civil standard, i.e. proof on the balance of probabilities, but qualified having regard to the seriousness and gravity of the facts as may be proved. The standard of proof requires more than a mere balancing of the scales. It requires the Tribunal to give the evidence a close and careful scrutiny; the standard requires precise and not inexact proofs of the allegations of misconduct and requires the Tribunal to come to a conclusion that it is comfortably satisfied that the conclusion is just and correct before proof of the complaint has been established.'

Alleged Duplicity in the Complaint as Referred

24 There was a submission by the new Committee that its charges were affected by duplicity in certain respects; and accordingly should not be the subject of any findings by the Tribunal. Dr Lloyd agreed with these submissions. The Tribunal is satisfied that the allegations are not so affected. So as not unduly to interrupt the narrative, the Tribunal's reasons are set out at the end of this decision.

The Applicable Law

(1) Misconduct in a professional respect: at common law

25 Section 26(1) of the Act provides that:

`A complaint may be made to the Investigating Committee that a registered veterinary surgeon -

(c) has been guilty of misconduct in a professional respect'.

The Act contains no definition of the statutory formulation `misconduct in a professional respect'.

26 At common law, the concept of `misconduct in a professional respect' embraces duties owed by a member of a profession to those that he or she serves and include wider duties owed to other members of the profession and the wider community.

27 The then Tribunal in Re Lloyd at 4-5, outlined the common law position as it applied to veterinary surgeons in this way:

`It is not possible to lay down a standard of professional conduct in other than general terms. Whether a departure from professional standards in a particular case constitutes misconduct in a professional respect is basically determined by peer judgment, i.e. the judgment of practitioners of good repute and competence and standing in the profession.

The leading case in relation to the formulation of the test as to whether the conduct in question is such a departure from proper professional standards of conduct as to be professional misconduct is the decision of the Court of Appeal in Qidwai v Brown (1984) 1 NSWLR 100. In that case the Court of Appeal re-affirmed the meaning of the concept of misconduct in a professional respect (the same formulation enacted in the Medical Practitioners Act 1938). The Court formulated the criteria of misconduct in a professional respect to be conduct 'which, being sufficiently related to be the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence.

It is a well established principle of the general law that a registered veterinary surgeon has a duty to animal patients, to his profession and to the community at large and in particular to the owners of animals who place their animals in his care to practice his profession with competence and diligence. A veterinary surgeon's failure to care for and treat his animal patients with competence and diligence may amount to misconduct in a professional respect. Further, negligent conduct i.e. failing to take reasonable care to prevent injury or harm from foreseeable risk of injury or harm, on the part of the veterinary surgeon in the course of his professional practice may be misconduct in a professional respect if it is inexcusable and is such as is regarded with strong reprobation by his fellows of good repute and competence in the profession.'

28 There are a number of other cases that contain useful statements of the applicable standard. For example, the landmark statement in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761 is cited with approval in the context of veterinary surgeons in Marten v Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1 at 8 per Lord Parker CJ. In the Australian context for recent statements, see for example Burton v Anderson, unreported, NSWCA, 28 October 1994 (veterinary surgeons); and Bar Association of New South Wales v Hamman [1999] NSWCA 404 at [21] per Mason P (legal profession).

29 Mere Negligence. It is accepted that 'mere negligence' in the provision of a professional service is not enough to constitute misconduct in a professional respect. In Kalil v Bray [1977] 1 NSWLR 256 (a veterinary case) the Court of Appeal said:

`It may be conceded that an erroneous diagnosis or an administration of wrong treatment may well, in ordinary circumstances, fall short of constituting misconduct in a professional respect. Full weight must be given to the colour attaching to the word misconduct. On the other hand, it is not without significance that, in the passage quote from Re Veron (1966) 84 W.N. (Pt 1) (NSW) 136, at p 143, the reference is to mere negligence. The wrong diagnosis or the wrong treatment must, to meet the ground charged, be attended by elements rendering the conduct such as reasonably to be regarded as disgraceful or dishonorable by veterinary surgeons of good repute and competency. A negligent professional action which might, in its inception, fall short of meeting this test could well, when compounded by subsequent conduct, be capable of being placed in the disgraceful category.'

See also Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200-202 per Kirby P.

(2) Deemed misconduct in a professional respect: extension of common law by Statute

30 The common law meaning of misconduct in a professional respect is supplemented by s 22 of the Act, which provides, as relevant to this inquiry:

`22. Misconduct in a professional respect

Without limiting the meaning of the expression `misconduct in a professional respect', a registered veterinary surgeon shall be deemed to be guilty of misconduct in a professional respect if the veterinary surgeon:

(1) .... (a) ...

(b) ...

(c) breaches any provision, prescribed for the purposes of this paragraph, of the veterinary surgeon's code of professional conduct established under section 23.'

Veterinary Surgeons Code of Professional Conduct

31 Section 23 provides:

`23. Veterinary surgeons' code of professional conduct

(1) The regulations may establish a veterinary surgeons' code of professional conduct setting out the rules of conduct which should be observed by a registered veterinary surgeon in carrying on the practice of veterinary science.

(2) The Board may make recommendations to the Minister with respect to the code.'

32 The Code of Professional Conduct is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995 (the Regulation). The Regulation provides, cl 10(2) that for the purpose of s 22(c) of the Act, breaches of the following provisions of the professional conduct code are misconduct in a professional respect: rule 2, rule 3(1), rule 4, rule 5(1)-(5) and (9)-(12), rule 6 and rule 8. The Regulation also provides in cl 20 for the duties of a superintendent of a veterinary hospital.

33 The principal rules, generally or specifically relevant to this inquiry, are set out below. A rule, breach of which gives rise to deemed misconduct in a professional respect, has following it the abbreviation `DMPR'.

`Schedule 1---Veterinary surgeons' code of professional conduct

1. Basic principles

The basic principles of professional behaviour for a veterinary surgeon are:

(a) a primary concern for the welfare of animals, and

(b) the performance of professional work to a standard of competence acceptable to the profession, and

(c) no professional activities to be undertaken to the detriment of professional colleagues.

2. Animal welfare [all DMPR]

(1) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science.

(2) A veterinary surgeon who has accepted responsibility for the care of an animal should ensure that the animal is not abandoned unless there is good reason to do so and unless the welfare of the animal is safeguarded.

(3) A veterinary surgeon who provides veterinary services directly to the public should not, without good reason, refuse to provide relief of pain or suffering of an animal. Relief may be confined to emergency treatment only or immediate referral to another veterinary surgeon.

...

5. Professional practice

(1) A veterinary surgeon should, at all times, diligently maintain knowledge of current standards of veterinary science. [DMPR]

(2) Professional procedures should always be carried out in accordance with current standards of veterinary science. [DMPR]

(3) Except in the case of an emergency, a veterinary surgeon should not undertake any veterinary procedure on an animal without ensuring that the owner or person in charge of the animal is made aware of the likely extent and outcome of the procedure and of its probable cost. An example of an emergency is a circumstance in which there is an immediate threat to the life of the animal concerned. [DMPR]

(4) A veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable. [DMPR]

...

(12) When, or as soon as practicable after treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any radiograph film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation. [DMPR]

6. Drugs, antibiotics and other chemical or biological substances [all DMPR]

(1) A veterinary surgeon must ensure that conditions imposed by other legislation (such as the Poisons Act 1966) relating to dispensing, handling or storing restricted or dangerous drugs are strictly complied with.

(2) A veterinary surgeon is responsible for ensuring that clients are aware of the need to comply with the withholding periods recommended for the administration of antibiotic and other drugs to food producing animals or to animals used in a sport that has rules about the use of chemical substances.

(3) A veterinary surgeon must not supply, issue or dispense to a client any substance that is included in Schedule 1, 3 or 4 to the Poisons List without ensuring that the substance is correctly labelled.

(4) A veterinary surgeon who supplies or arranges for the supply to an animal of a substance included in Schedule 1, 3 or 4 to the Poisons List must ensure that the person who dispenses the substance is provided with written instructions as to any dosage requirement, route of administration or withholding period that is relevant to the use of the substance.

Note. Section 8 of the Poisons Act 1966 deals with the Poisons List.

7. Legislative responsibilities

To ensure that a veterinary surgeon is able to practise veterinary science in a safe and competent manner, the surgeon must acquire and maintain a sufficient knowledge of all laws that affect the practice of veterinary science, including:

(a) laws regulating the supply, dispensing and storage of poisons and therapeutic substances, and

(b) laws regulating and controlling the use, keeping and disposal of radioactive substances and radioactive apparatus for therapeutic purposes.

...

9. Professional relationships

When practising veterinary science, a veterinary surgeon has an obligation to conduct himself or herself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general. ...'.

Drugs Requirements

34 As noted, it is a professional duty of a veterinarian to comply with the legislation relating to drugs, antibiotics and other chemical or biological substances. It is a professional duty to instruct clients properly in the administration of these items.

35 In this case there are specific allegations, which were admitted, as to non-labelling of prescribed substances and failing to give a client detailed instructions.

36 Poisons List, Schedule 4. The Poisons Act 1966, contains the Poisons Schedules, with Schedule 4 (restricted substances) covering:

`Substances which in the public interest should be supplied only upon the written prescription of a medical practitioner, nurse practitioner authorised to prescribe the substance under section 17A, dentist or veterinary surgeon.'

37 The list in force between the dates relevant to Dr Lloyd's treatment of Remus was that contained in edition 11 of the Standard for the Uniform Scheduling of Drugs and Poisons (effective 24 September 1996 and amendment no. 1, effective 21 December 1996): see letter from Secretary, NSW Poisons Committee dated 28 July 1998 and attachments (Ex R13). The list included prednisolone.

38 Clause 27 of the Poisons and Therapeutic Goods Regulation 1994 imposes responsibilities on dealers and suppliers of restricted substances in relation to the labelling of the substances. A veterinary surgeon has a limited right to supply a restricted substance if the quantity supplied `is no more than that required for 3 days' treatment' and must label the substance in accordance with the requirements of Appendix A.

39 Appendix, A cl 1 sets down the general obligation in relation to labels on restricted substances:

`1. General

(1) All details, words and other information that a label on a container of a therapeutic substance must carry must be in the English language (although it may also be in another language).

(2) All symbols, numbers and words on a label must be in durable characters.

(3) The label on a container of a therapeutic substance must contain the following details:

(a) the name and address of the dealer supplying the substance,

(b) the approved name of the substance and its proprietary name (unless it is a preparation compounded in accordance with the dealer's own formula),

(c) adequate directions for use,

(d) the words `KEEP OUT OF REACH OF CHILDREN' in red on a white background,

(e) if the substance is intended for external use only, the word `POISON', or the words `FOR EXTERNAL USE ONLY', in red on a white background,

(f) if the substance is intended for the treatment of a person, the name of the person,

(g) if the substance is intended for the treatment of an animal, the species of animal and the name of the animal's owner,

if the substance is supplied pursuant to clause 47, the words `EMERGENCY SUPPLY'.'

New Committee's Views

40 As noted in our decision in relation to Inquiry 4, we had understood there to be no debate as to the applicable law. In its final submissions in that Inquiry the new Committee expressed a view as to relevant standards at variance with the applicable law. We have dealt with those submissions in our reasons in respect of Inquiry 4, and will not repeat them here: see Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: `Total Eclipse '- Findings) [2002] NSWADT 283 (31 December 2002).

Dr Lloyd's Formal Reply to the Allegations and Particulars contained in the Notice of Inquiry

41 Allegation 1(a): The allegation was denied.

42 Particulars Admitted: Dr Lloyd admitted to a number of particulars in full or in part. These included that the dog presented with hind leg lameness; and that he did not record the length of time over which the dog had been suffering. Dr Lloyd admitted that he did not discuss the options of undertaking a urinalysis and culture with sensitivity, taking blood samples or biochemistries, or leaving the dog in his care. He agreed that he advised the owner to resubmit the dog in 14 days.

43 Dr Lloyd admitted that on 25 February 1997 he prescribed 5mg of prednisolone and that he did not warn Mrs Robinson of the side effects of an overdose.

44 Dr Lloyd admitted that Remus was presented to him again on 4 March 1997 and that he did not offer to Mrs Robinson to take a blood count and biochemistries of Remus or a urinalysis with culture and sensitivity. Dr Lloyd admitted that he prescribed prednisolone tablets on this date (although the quantity is in dispute) and that did not warn the owner of side effect if the dog overdosed.

45 Dr Lloyd admitted that Mrs Robinson brought Remus back to his surgery on 7 March 1997. Dr Lloyd agreed that he did not did not discuss referral to a specialist practitioner, taking blood count or biochemistries, taking a radiograph of the dog and euthanasia.

46 Dr Lloyd admitted that he kept the dog Remus under his care and management from 7 March 1997 to 11 March 1997 when the dog died. Dr Lloyd agreed that he treated the dog with nonsteroial anti-inflammatory drugs and corticosteroids. Dr Lloyd also admitted that he added Gentamicin, and that he noted an elevated PCV (packed cell volume), 65.

47 Allegation 1(b): Conduct of autopsy without consent of owner admitted, but Dr Lloyd denies that he disposed of the carcass without permission.

48 Allegation 1(c) (labelling requirements applying to prescribed substances): Dr Lloyd admitted that he was guilty of contravening the requirements of the Poisons Act, and by extension, the Poisons Act provisions of the Code in supplying prednisolone to Mrs Robinson between 25 February 1997 and 7 March 1997 in contravention of cl 27 of the Poisons and Therapeutic Goods Regulation 1994.

49 Allegation 1(d) (absence of instructions required for administration of a Schedule 4 prescribed substance): The allegation was admitted in full.

50 Allegation 1(e): Not admitted. As to particulars, Dr Lloyd agreed that the only record now in existence is the card record, as hospital observations were recorded on a separate hospital sheet which has not been retained.

51 Accordingly the contest in this Inquiry related to Allegations 1(a), part of (b), 1(e).

52 Variations of Original Reply. We note that in his original reply dated 14 April 1997, Dr Lloyd made the following three statements - that the dog presented with the symptom of anorexia on 4 March 1997, that he `suggested to the owner that she administer Panadol daily', and that he prescribed 25mg prednisolone tablets. In his statement of agreed facts dated 21 September 1999, Dr Lloyd stated that he did not agree that there was `evidence' or `description' of anorexia when the dog was presented on 25 February 1997; he does not agree that he prescribed Panadol; and that the prednisolone tablets were 20mg not 25mg.

Evidence Presented

53 Evidence in support of the allegations was given by the owner, Mrs Suzanne Robinson and her former husband, Michael Robinson. Evidence in reply was given by Dr Lloyd.

54 Expert evidence was given by Dr R J Rawlinson, a veterinarian who has had a distinguished practice and teaching career, Dr WA Bradley, general practitioner, Ku-Ring-Gai Veterinary Hospital (both called by the Committee) and by Dr James Driver, general practitioner, Macquarie Animal Hospital, Campbelltown (called by Dr Lloyd).

55 There was an objection on 29 November 2002 by Ms Green for Dr Lloyd to Dr Bradley having remained in the hearing room after he gave evidence to provide assistance to counsel for the Committee (Mr Burchett) in relation to questions of a technical nature put to Dr Lloyd. It was suggested that Dr Bradley's objectivity was, as a result, in issue; and should be taken into account by the Tribunal in assessing his evidence. Experienced counsel was appearing for Dr Lloyd in the hearing at the time; and no objection was taken. It is obvious that lawyers, whether appearing for the Committee or the practitioner, will often need technical assistance in cases of this kind. The Expert Witness Code of Conduct scheduled to the Rules of the Supreme Court (Sched K to Order 36.13C) was mentioned.

56 We, of course, accept the well-established precepts as to the role of the expert as set out in paras 2, 3 and 4 of the Code. We see no difficulty, in principle, with an expert witness being in the hearing room to hear how views he or she might have presented are responded to, and if necessary suggesting to counsel what further questions may be appropriate. In this way the expert is serving their `overriding duty to assist the Court impartially on matters relevant to their area of expertise' (rule 2).

Chronology of Events

57 The Fall. The Tribunal accepts Mrs Robinson's evidence that about 2 weeks prior to 25 February 1997 Remus had a fall in the Robinson's backyard. Mrs Robinson's two sons were playing with Remus at around 6:30pm. Remus was running for a ball when his right back leg slipped out underneath him. Mrs Robinson noticed that the dog yelped, walked stiffly and limped off the grass. She thought that he felt some pain.

58 Mrs Robinson said that after a few days the dog was walking more stiffly and that his condition was deteriorating. She said that he had diarrhoea and defecated more often than was normal. She said that he refused to eat some of his food but that he was eating grass. She said that this was unusual for him. She said that she noticed that after doing so he would vomit grass and yellow phlegm.

59 Mrs Robinson said that after two weeks she noticed that Remus was now eating much less than normal. She said that she thought Remus had lost a marginal amount of weight although she did not attempt to weight the dog. She said that she observed the dog was stiff from around three-quarters of the way down its back towards the tail to the base of his tail.

25 February 1997 - First Consultation

60 On Tuesday 25 February 1997, Mrs Robinson returned home from work. She discussed the health of the dog with her sons and decided that the best course of action would be to take him to a vet. Mrs Robinson discussed with her sons which vet she should go to. She decided to go to Dr Lloyd's surgery when her sons told her that Mr Robinson had taken his dog to him and because Dr Lloyd's Liverpool Surgery was close to her home in Liverpool.

61 At about 7pm, Mrs Robinson loaded her sons and Remus into her car. She drove them to Dr Lloyd's surgery at Gill Avenue Veterinary Hospital, Liverpool. While Mrs Robinson waited that evening for Dr Lloyd to attend to Remus, the receptionist asked her name, address and the dog's name for the surgery records.

62 History. Dr Lloyd ushered Mrs Robinson and Remus into his consultation room and shut the door. Mrs Robinson said that she told Dr Lloyd the history about Remus slipping on the grass chasing in the manner described above. Dr Lloyd said that he noticed that the dog appeared to suffer pain while walking.

63 Mrs Robinson said that she told Dr Lloyd that Remus was being fussy with his food and that he had sometimes vomited after eating grass, since the accident two weeks prior. In his statement of agreed facts, Dr Lloyd said that he questioned Mrs Robinson to ascertain the extent of the vomiting and whether the dog was eating.

64 There were significant variations within and between the evidence given by Mrs Robinson and Dr Lloyd on the eating habits of the dog at this time. Mrs Robinson said in her statement that over the two weeks Remus ate progressively less until, in the days before the consultation of the 25th February, he was eating `hardly anything'.

65 In written and oral evidence, Dr Lloyd confirmed that Mrs Robinson told him of her observations. He explained that the words `not eating' that appeared on Remus' record, and the word `anorexia' which he used to described Remus' condition in his letter to the AVA, amounted to a short way of writing what Mrs Robinson said to him. During cross-examination, Dr Lloyd said that his letter to the AVA was inaccurate insofar as it should have read `partial anorexia'.

66 The Tribunal is satisfied that what Mrs Robinson told Dr Lloyd was that Remus had a serious eating difficulty by the time of presentation.

67 Gait. Mrs Robinson said that she told Dr Lloyd that Remus had an abnormal walk and showed hind leg lameness. On the record card, the words `Abnormal Walk' appear. Under cross-examination, Dr Lloyd said that there was not `any lameness per se' and that he could not recall any `absolute abnormality' with the dog's walk. We accept Mrs Robinson's evidence.

68 We are satisfied that Dr Lloyd did not ask basic questions that should reasonably occur to a competent veterinarian such as whether the dog was lame all of the time, or whether the lameness varies, for example, by being worse first thing in the morning.

69 Continence. Mrs Robinson said that Dr Lloyd did not ask her for any additional information as she gave him Remus's history. Specifically in answer to questions, she said that he did not ask her any questions about urination and defecation patterns of the dog.

70 In his interview with the Committee, Dr Lloyd said that he asked whether the dog had any `other' problems but did not ask specifically about urination. He said that he did not do so because clients normally volunteer that information of their own accord. He re-iterated this in giving oral evidence.

71 We are satisfied that Dr Lloyd failed to ask questions of a kind (in particular in relation to vomiting and anorexia) that should reasonably occur to a competent veterinarian having been informed of poor appetite.

72 Record. One of Dr Lloyd's staff documented these symptoms on a record card as follows `Not eating - Sore back L/leg. Abnormal Walk/Vomiting Now and then' The card does not contain any note as to the length of time the dog had been displaying the symptoms that gave rise to Dr Lloyd's diagnosis.

73 Examination. Dr Lloyd lifted Remus onto the examination table. He examined Remus' ears, eyes and mucous membranes. He weighed the dog and recorded its weight at 28.2kg.

74 Weight of Dog. In her statement, Mrs Robinson said that she estimated the dog's weight as 45kgs at the time of the presentation. Mrs Robinson said that she noticed that the dog had lost weight since its fall two weeks prior to the consultation, although she did not weigh the dog.

75 In his statement, Dr Lloyd said that despite reporting `anorexia' in his original reply, he did not consider the dog underweight or showing any signs of recent weight loss. Having never seen or weighed the dog before this consultation, this opinion was formed purely by observing the dog and relying on his experience of Weimaraners.

76 Dr Lloyd said that he estimated the weight of the dog at 28.2kgs. This is the weight shown on the record card. Dr Lloyd's seemingly precise weight was recorded without using any scale; despite the weight being critical to the amount of various drugs to be administered.

77 The Tribunal doubts that the weight recorded is accurate. There are family photographs tendered in evidence (Ex 30) showing the dog at various stages of its life including in 1996. The photographs show a dog of normal build and development for this breed at the relevant points in time. A weight of 28.2kg is well below the typical weight range of 40-45kg. We are not satisfied that the weight recorded on the card is accurate.

78 Temperature. Dr Lloyd said that he took the dog's temperature and recorded it as 38.9C. Dr Lloyd considered the temperature within normal range given that it was a hot summer's day.

79 Manual Examination. Dr Lloyd then did a manual external examination of Remus.

80 External Palpation. He palpated the dog's abdomen and pelvis with one hand and held it with another. Both Mrs Robinson and Dr Lloyd referred to the dog becoming stiff upon pelvic palpation. Dr Lloyd said that this was an indicator of pain.

81 In his letter to the AVA he said that he palpated the pelvic dorsal region and detected pain. In his statement to the Tribunal Dr Lloyd said that he palpated the chest and abdomen. But under cross-examination he qualified this statement. He said that he did not palpate the complete abdomen; that he palpated the caudal abdomen but not the stomach, liver and kidneys.

82 Rectal Examination and Internal Palpation. Dr Lloyd then put a glove on his hand with a view to undertaking a rectal examination, the purpose being to enable him to palpate Remus's abdomen in order to identify the source of the dog's pain response.

83 In her statement, Mrs Robinson said that Dr Lloyd `inserted his whole forearm up the dog's anus and twisted his arm around'. She said the dog cried out in pain. Dr Lloyd provided a number of different descriptions of the rectal examination process in oral and written evidence.

84 Mrs Robinson's evidence as to the extent to which he had inserted his arm into the dog's rectum was challenged as involving a physical impossibility.

85 In his statement for the Tribunal, Dr Lloyd said that he inserted only his middle finger `as the rectum fissure had only sufficient elasticity to accept one finger'. In his interview with the Committee he said that he inserted his finger and placed it over the anterior rim of the pelvic canal.

86 In his examination in chief, Dr Lloyd corrected his statement and specified that he used only his index finger inside the dog, to the length of that finger. During cross-examination, he said that although it would have been possible to insert two fingers, one would have sufficed and two would have disturbed the elasticity of the anus. Under cross-examination, he went into much more detail than in previous statements.

87 In his written statement for the Tribunal, Dr Lloyd said that he inserted his finger and supported the dog with his left hand. He managed to palpate the left rim of the pelvis. He said that he palpated and applied pressure to the pelvic symphysis including the cranial prominence and closed his thumb and fingers together over the lower abdominal viscera. He said that he palpated the palm of his left hand while the finger on his right hand was in the lumen of the large colon. The Tribunal does not accept this assertion. In the Tribunal's opinion, it would not be possible to reach the lumen in a dog of this size, especially with a dog that is in pain (as to which see ts 25/2/00:68).

88 He said that he inserted his finger as far as it would extend. He said that his finger reached past the pelvic symphysis and that he touched the left rim of the pelvis. He moved his finger closer and closer to his own body, palpating the tissue from right to left. He then repeated this procedure. This detail, particularly the extent of repetitive action was first given by Dr Lloyd under cross-examination.

89 State of Prostate. In his interview with the Committee, he said that he located in the pelvic canal and palpated the top of the prostate. He said that he did not consider the prostate enlarged or abnormal.

90 He reiterated the normality of the prostate in his written statement tendered in the proceedings. The following exchange also took place at the Committee interview (p9):

`Committee: Could it be that you just didn't palpate the prostate at all because it was already abdominal and beyond your finger reach?

RL: I'm unsure of that, but I'm sure that I did.....I'm sure.....

Committee: Because the prostate a few days later on radiographs is abdominal.'

91 When Dr Lloyd was asked by counsel for the Committee to clarify whether the was unsure about the Committee's question or whether the prostate was abdominal, he said:

`I'm not sure whether I - when I said that I was unsure of his question or what I was unsure of then'.

92 In cross-examination and re-examination he affirmed his prior statements that he found the prostate `on the edge of the pelvic canal'. He said that he ran his fingertip over the anterior border of the prostate and although he did not measure it, he considered that for a dog of this breed and age, it was not enlarged. He did however, consider that there was an `extension of the prostate into the pelvic cavity'. He qualified this by saying that he could not be sure what the overhang into the canal was but that it was not on the floor of the abdomen. His ultimate version was to the effect that there was not a total extension of the prostate into the pelvic cavity.

93 Dr Lloyd did not give an explanation as to why it would be necessary to do any more than to inspect the posterior and middle area of the prostate, as such an inspection would provide a veterinarian with sufficient information as to its state to reach a conclusion as to its normality.

94 While it is physically possible to examine the surface of the anterior area as part of a rectal examination there would ordinarily be no veterinary need to do so. We are not satisfied with Dr Lloyd's explanation as to why he regarded it as necessary to probe the prostate in the way he said that he did.

95 As noted, Dr Lloyd changed his account of what occurred on several occasions. We find it impossible to reach any clear conclusion as to what precisely occurred.

96 In his account of how far he reached, he was seeking, we consider, to give credibility to his assertion that the prostate was normal; and to his alleged discovery of an alternative source of pain, near the left pelvic rim.

97 Other Aspects of Examination. Mrs Robinson did not refer to a number of other aspects of the examination, but when pressed under cross-examination agreed that several other steps were taken by Dr Lloyd apart from the rectal examination. She explained that she had focused on the rectal examination because she considered that it had been done in a harmful way.

98 Consideration of Radiograph. At the time the rectal examination was occurring, Mrs Robinson said that she asked Dr Lloyd whether Remus should have an radiograph. She said that Dr Lloyd explained by saying that his rectal examination was `as good as an x-ray'.

99 In his written statement, Dr Lloyd stated that he had told her that an radiograph would not show the soft tissue damage that he had diagnosed. In cross-examination, he said he could not recall saying that a rectal examination was `as good as' an x-ray.

100 Diagnosis. As a result of palpating the abdomen, Dr Lloyd said that he concluded that there were no abnormalities in the caudal region. Dr Lloyd said consistently that throughout his internal and external palpation of the dog, it showed pain responses to his palpation of the left pelvic region. He said that his palpation of the abdomen, rather than the rectal examination, allowed him to distinguish what might have been a fracture from for example a tendon tear.

101 Dr Lloyd diagnosed torn pelvic ligaments which he said was supported by what he felt in the rectal examination when he reached the pubis. He prescribed treatment based on that conclusion, having ruled out a fracture. In his letter to the AVA he referred to this diagnosis as `provisional'.

102 Diagnosis communicated to Owner. Mrs Robinson said that Dr Lloyd told her that Remus had a `split pelvis'. This is also consistent with the record card, which states `Rectal Palp - Torn Pelvic Ligs around Symphisis'. (`Symphysis' has an exact technical meaning and refers to the join of the two sides of the pubis.)

103 Dr Lloyd said that he informed Mrs Robinson that her dog had torn pelvic ligaments. Mrs Robinson also said that Dr Lloyd reassured her that Remus would recover and that the pelvises of cows were often split in giving birth. Dr Lloyd denied having made this comment in his interview with the Committee and in evidence before the Tribunal. We do not accept Dr Lloyd's denial.

104 We favour the view expressed by Dr Bradley that it is extremely unlikely that a lay client would invent technical information of a kind commonly known to veterinary surgeons but not likely to be known to a pet owner living in the city, and which Mrs Robinson said she did not know (that the pelvises of cows are often split at birth).

105 We note with concern that Dr Lloyd has since said that the location of the alleged problem was the pelvic rim, and on the left side as distinct from the middle or the right rim. On the card he does not record anything untoward in any part of the pelvic rim; similarly, in letter to AVA (ts 70). The record card is not consistent with his later oral evidence, but it is consistent with the report provided by Mrs Robinson as to what he said to her.

106 We consider that the explanation based on the tendon tear in the vicinity of the left pelvic rim was an invention, possibly resulting from sighting an old injury later identified in a radiograph (considered later in these reasons).

107 Moreover if there is a pain response at the symphysis, the prostate as a source of the pain can not be ruled out, as the veterinarian is likely to be touching both body parts (the prostate and the symphysis) simultaneously.

108 Uniqueness. Dr Lloyd said on several occasions that he could not recall having ever seen a case of torn (or split) pelvic ligaments prior to this. This diagnosis (as Dr Lloyd recognised) was not to be expected in light of the history presented. In these circumstances a competent veterinarian would, we consider, have regarded his diagnosis as highly unlikely and only to be preferred after ruling out other more likely possibilities.

109 Other Possible Diagnoses. Dr Lloyd rejected this criticism in so far as it might be suggested that he did not consider other reasonable hypotheses. Dr Lloyd stated that he considered and ruled out prostate problems and Kennel Cough [a contagious, acute respiratory disease of dogs] as possible explanations.

110 In his statement of `agreed' facts, he said that he considered the prostate but ruled it out because (a) it is uncommon in younger dogs; (b) there was no sign or history of constipation or incontinence; (c) in rectal examination, he found that the prostate was not enlarged, (d) there was no sign of temperature; (e) no evidence of metabolic malaise.

111 As to (a) the Tribunal observes that this was a middle aged dog; as to (b) no history was taken in relation to these matters; (c) raises a central issue in the case; as to (d) this is not a significant factor; and there was evidence re (e).

112 In that statement, Dr Lloyd also said that he considered Kennel Cough as a possibility. The record card includes a handwritten note `Kennel Cough?'. In his statement tendered to the Tribunal, he said he made a possible diagnosis of `chronic cough'. He said that he thought Kennel Cough should be investigated if the dog showed symptoms. However he also denied diagnosing or treating Kennel Cough. In our view, there were no relevant indications to justify raising this as a possibility. It is not clear to the Tribunal how Kennel Cough came to be seriously considered.

113 As to what steps could have been undertaken, apart from the manual examination, Dr Lloyd noted that he had discussed with Mrs Robinson the possibility of performing an x-ray examination. But we note that he did not discuss with Mrs Robinson the possibility of undertaking urinalysis with culture and sensitivity, taking blood samples or biochemistries, or hospitalisation.

114 Alleged Limits on Scope of Consultation. Mrs Robinson denied Dr Lloyd's statement that she had said she had only had $40 or $50 with her at the first consultation, which Dr Lloyd said had affected his decision as to what services to provide. She said that he never said anything to her about the cost of x-rays, nor did she say anything to him about how much money she had with her. Mrs Robinson said that `Cost was never an issue for me, I would have spent any money that was needed to help Remus'. Her evidence was consistent and convincing on this question (see cross-examination, ts 21/2/00:65-6).

115 We do not accept Dr Lloyd's evidence on this matter.

116 The Tribunal is satisfied that there was no conversation held between Dr Lloyd and Mrs Robinson on the matter of the cost which she might incur.

117 Consequently, nor do we accept the suggestion that Dr Lloyd sought to make that his failure to offer blood or urine analyses to be done was because she told him that she could only spend the $50.00.

118 Treatments. Dr Lloyd treated Remus' skin with an anti-flea liquid. He injected the dog with a dose of Depo-Medrol (long-acting cortisone which has an anti-inflammatory effect). Depo-Medrol tends to camouflage the pain associated with torn ligaments. It is an inappropriate drug to use if there is a risk that an infectious disease is present, such as Kennel Cough. The use of any amount of Depo-Medrol in that circumstance is inappropriate, and necessarily excessive.

119 Had it been the case that the dog was only found to have presented with torn ligaments, then the amount of the dosage mentioned by Dr Lloyd in his statement (40mgs) may not have been excessive. But the reference in his statement to 40mgs `per week' causes us concern, if that is meant to suggest that a dosage of 40mgs each and every week during the course of treatment would be appropriate. This would clearly not be appropriate and could have a highly deleterious effect on the animal.

120 Dr Lloyd did not give Mrs Robinson any information about what the injection was for. Nor did he record these events on his card.

121 Prescription. Mrs Robinson said that Dr Lloyd prescribed Panadol (anti-inflammatory and analgesic) for Remus' pain. Dr Lloyd said that he prescribed Aspirin for the pain on his second consultation, on 4 March 1997.

122 Dr Lloyd's record card shows no indication of him suggesting that Mrs Robinson administer an analgesic on the 25 February 1997. Because of the looseness of Dr Lloyd's record keeping practices it is not possible to form conclusions as to what occurred, but it seems likely that he would have recommended some form of pain relief. The word `Asprin' appears in his record of the second consultation; while he said in his original reply that he recommended Panadol.

123 On the occasion of the 4 March consultation, Dr Lloyd suggested that Remus be given half an Aspirin per day. Mrs Robinson recalled him having said it was Panadol that she prescribed. We note that in the letter to the AVA Dr Lloyd said that he suggested Panadol. In light of Dr Lloyd's lack of consistency in this matter, we must prefer the evidence of Mrs Robinson.

124 In any event, we are satisfied that on 25 February 1997 he did prescribe an off the shelf analgesic; and that this was an inadequate form of pain relief in this case.

125 After giving the injections he removed Remus from the examination table, and ushered Mrs Robinson to the counter. He then handed Mrs Robinson a plastic sealed envelope containing prednisolone tablets. [Prednisolone is a short-acting corticosteroid which has an anti-inflammatory effect; and, as noted earlier, is a restricted substance.] The envelope had a Gill Avenue sticky label on it and printed on it were the words `Preds/1 Tab Daily'. The dosage was reasonable. But the period of time for administration, and the number of tablets were not specified on the record card or on the label of the envelope.

126 We are satisfied that Dr Lloyd did not tell Mrs Robinson how many tablets should be administered or how they should be given; or provide Mrs Robinson with any additional information in relation to prednisolone or its side-effects.

127 Observation by Owner. Mrs Robinson says in her statement that Dr Lloyd did not say that she should return if she was concerned. Dr Lloyd said in his statement and in giving oral evidence that he asked Mrs Robinson to return in two weeks. This is in accordance with his consultation record which reads `check in 14 days'. We are inclined to prefer Dr Lloyd's account, in light of the record.

128 Account for Services. Mrs Robinson was handed a printed account by the receptionist. The account read `Consultation [sic] $25.00/Preds $10.00/ Depro-Medrol $15.00'. She paid the total of $50.00.

27 February 1997: phone conversation

129 In her statement, Mrs Robinson said that she phoned Dr Lloyd on 27 February 1997. She told him that Remus is getting worse, that he will not eat, that he had lost `a lot of weight' and that he was immobile and shaking and whimpering. She said that he was in pain. Mrs Robinson said that Dr Lloyd replied that `These things take time'. Dr Lloyd conceded that he did have a conversation with Mrs Robinson around the 27th February 1997 but denied some details of the conversation as recalled by Mrs Robinson.

130 The Tribunal accepts Mrs Robinson's evidence as to the conversation. Dr Lloyd's response was, we consider, careless and indifferent to the gravity of the animal's situation as reported by Mrs Robinson. Dr Lloyd did not in our view give sufficient attention to the owner's observations.

131 We find that Dr Lloyd should have but did not closely re-consider the clinical symptoms especially when the usual effect of the provision of cortico-steroids (enhancement of appetite) was absent, advise Mrs Robinson to bring the dog in for re-examination, discuss with her taking radiographs; and having other tests conducted.

4 March 1997: Second Consultation

132 When Mrs Robinson returned from work at about 5:30pm on 4 March 1997, she went to her garage and called Remus. He did not come out of the garage. To entice him to get up, she threw a ball to Remus but, again he refused to get up.

133 Mrs Robinson noticed that Remus was shaking. Ever since the first consultation, she found that Remus would only eat small amounts of food given by hand. Mrs Robinson telephoned the Hospital and spoke to Dr Lloyd. She informed him that Remus had not improved and she said that he suggested she bring the dog into the surgery so that he could give her `some stronger tablets'.

134 Mrs Robinson put Remus in the car. She drove to the Hospital, took Remus to the waiting room and waited for Dr Lloyd.

135 History Provided. When Dr Lloyd came into the waiting room, Mrs Robinson said that Remus was in a lot of pain. Mrs Robinson's recollection was that she said to Dr Lloyd that Remus was getting worse; that he was immobile and refusing to eat, and continually shaking and whimpering.

136 In his statement, Dr Lloyd said that Mrs Robinson told him that the dog was `not getting any better.' He recalled the dog being in pain and ataxic but said that he could not recall Mrs Robinson saying anything about Remus not having eaten, not urinating or not moving. Dr Lloyd stayed with Mrs Robinson in the waiting room and talked to her there rather than taking her into the consultation room.

137 Under cross-examination, he said that he could not recall a conversation about the dog shaking or being in pain. There is no evidence that Dr Lloyd took any further detailed history at this stage.

138 We accept Mrs Robinson's account of what she said to Dr Lloyd.

139 Alleged Examination. Mrs Robinson made no mention of Dr Lloyd doing an external examination of Remus on 4 March. Dr Lloyd said in cross-examination that he externally palpated the lumbo-sacral region and ventral pelvis. He said that this occurred whilst they were still in the waiting room. He located pain in the left ventral posterior abdominal region, just anterior to the pelvic rim and on the left hand side. In our opinion, such a symptom is consistent with a prostatic problem such as prostatitis.

140 Dr Lloyd said that the external examination verified his initial diagnosis of torn tendons. He said that using the examination he could distinguish between pain responses arising from palpation of different bones and tissue - pelvic symphysis from prostate, prostate from kidneys, a pelvic tendon from pelvic fracture and so on. This opinion is not accepted. We are satisfied that such precision of diagnosis is simply not possible. Dr Lloyd first referred to an external examination of this kind in cross-examination.

141 We do not accept any of his evidence on this matter. Had these steps been taken, we would have expected him to given a full and candid account of these actions at earlier stages of the disciplinary process (in his original letter, in his statements to the Committee or in his written statement for the Tribunal).

142 We regard Dr Lloyd as having contrived this explanation as a way of seeking to avoid the implications of his original diagnosis of a split pelvis.

143 Possible Tests. There is no evidence from Dr Lloyd or Mrs Robinson that he discussed other ways of assessing the condition of the dog such as by taking blood samples, urine samples, doing a urine culture of sensitivity a urinalysis or a radiograph. These are major omissions in circumstances where an animal was presented in a serious condition.

144 Response: More Prednisolone. Dr Lloyd prescribed a higher daily dosage of prednisolone. He told Mrs Robinson that the blue tablets were stronger than the green ones he had given her at the first consultation and that they should now be used instead of them. He handed her another plastic sealed envelope with the blue tablets in it. The envelope had a Gill Avenue sticky label on it and the words `1 tablet per day' handwritten in pencil. The label failed to specify the duration of treatment or the name of the drug in the package (see Ex R17).

145 In his record and his letter to the AVA, Dr Lloyd said the tablets were 25mg in dosage. In subsequent evidence Dr Lloyd corrected himself and specified that the tablets were, in fact, 20mg tablets. (This must be so, as the tablets are only available in 20mg or 5mg form.) Confusion in a matter of this kind suggests to us that Dr Lloyd has a degree of indifference to the importance of accuracy in making records of dose rates.

146 He told Mrs Robinson that they were to be administered orally each day. He did not tell her how often the tablets should be given, for how long or for how many days. Dr Lloyd did not provide Mrs Robinson with any additional information in relation to prednisolone or its side-effects. These again were serious omissions.

147 As prednisolone is a cortico-steroid, it is essential that veterinarians provide the client with information on possible side-effects, such as the likelihood that increased thirst, urination and appetite will result from an increased dose. At no point did he do so.

148 Record. Dr Lloyd's record for that consultation reads `Pelvic Pain, Difficulty in walking - Half an/ Aspirin and [increase] preds to 25mg Daily'.

149 While Dr Driver contended that this was a sufficiently specific record, we do not agree. We accept Dr Bradley's evidence that such a record was below acceptable professional standards. It was not in our view sufficiently specific to enable another veterinary surgeon to take over the case.

150 Fee. Mrs Robinson was not charged and did not pay for this consultation or medication.

4 March to 7 March 1997

151 Between 4 March and 7 March 1997, Remus' condition deteriorated. Mrs Robinson said that now the dog could not get up, drink or eat very much. In her statement, Mrs Robinson said his urine had a `strong pungent odour', smelt as if he was `rotting' and that there were signs of diarrhoea on the blanket he slept on. Over those days, Remus was kept in the garage.

7 March: Reception into Hospital

152 The dog's condition continued to deteriorate. On Friday 7 March 1997, Mrs Robinson returned from work at about 5:30pm. Mrs Robinson said Remus was unresponsive when she called him. She recalled that he was shaking and crying on that afternoon. Mrs Robinson called the Surgery and told the receptionist, `my dog is dying'. The receptionist advised her to bring the dog into the Surgery.

153 Mrs Robinson loaded Remus into her car and drove to Dr Lloyd's surgery with Remus. When she arrived, she did not take the dog out of the car immediately but went for the assistance of Dr Lloyd. She then said, `My dog is dying.' We reject Dr Lloyd's denial that she made such a remark.

154 Dr Lloyd went to the car and assisted in getting the dog out of the car. Mrs Robinson said that Dr Lloyd `dragged' Remus out of her car. Dr Lloyd concedes in his statement of agreed facts that he `may have lifted it out' but denied having `pulled' the dog out.

155 Mrs Robinson said that when Dr Lloyd removed Remus from her car, the dog was shaking, in shock and had obviously lost weight. Whilst Remus was on the grass, Dr Lloyd said that he observed that the dog was having difficulty walking, ataxic and in pain. Mrs Robinson said that Dr Lloyd suggested that the dog be radiographed and hospitalised `just to give you peace of mind.'

156 We accept Mrs Robinson's account of this conversation; and her account of the state of the dog. We are not able to reach a conclusion as to the degree of roughness of Dr Lloyd's handling.

157 Dr Lloyd's record card for that day indicates `Admitted - Severe Pelvic Pain, 2 cc Finadyne + 4cc Dex + LA Pen Inj'. Dr Lloyd did not make any record of the cardinal signs he observed, or of any diagnostic aids he used that evening. There is no record of any advice given. There is no record of what other steps were taken on reception.

158 Dr Lloyd's form of `physical examination' was simply to run his hands over the abdomen and other areas of the dog, which we understand to have involved a palpation with his finger-tips. This was not a full physical examination of the kind that would have been seen as necessary by a competent practitioner presented with a dog is such a distressed condition. Such an examination should have included at least taking of temperature, heart rate, capillary refill time, colour and appearance of the mucous membranes.

159 In his statement of agreed facts (at p10), Dr Lloyd said that Remus was not toxic or septicaemic until his `final hours'.

160 We regard this as a statement contrived by Dr Lloyd seeking to diminish the seriousness of the condition that the dog was in at the time of presentation on 7 March.

161 Dr Lloyd should have discussed options with Mrs Robinson on reception on 7 March 1997. In his statement of agreed facts he concedes that there was no such discussion. Dr Lloyd said that he did not discuss any of these options, but that he did do a urinalysis, and he did take a radiograph but contrast dye studies were not indicated.

162 He should have, and did not take Remus' temperature.

Saturday 8 and Sunday 9 March 1997

163 On the morning of Saturday 8 March 1997, Dr Lloyd said that he observed haematuria [the discharge of blood in the urine] and pyuria [pus in the urine]. At about 1pm Mrs Robinson called the surgery. According to her, she spoke with Dr Lloyd. He told her that Remus had deteriorated overnight and that there were complications. He told her that Remus had a kidney infection and that she might be able to take him home on Sunday.

164 Observation of Periostitis. Dr Lloyd's record card and his initial reply to the AVA each note that he observed periostitis along the cranial rim (periostitis is abnormal deposition of periosteal bone, the periosteum, being in this instance the surface skin of the bone along the cranial pelvic rim).

165 Such an observation without a clear finding as to when the change occurred can not provide a foundation of a diagnosis.

166 Dr Lloyd explained this diagnosis on the basis of a radiograph that he took. Under cross-examination he said that he chose to do a muscular-skeletal radiograph on that Saturday to confirm his original diagnosis, and his suspicion that the pain was no longer localised.

167 He made several varying statements about the nature and significance of his radiograph findings. In his statement to the Tribunal he also said that he observed a backup of faeces. He stated that this confirmed his `original opinion' that `the pain caused by the pelvic muscular tears had caused a back-up of the urine and faeces which had allowed a bacterial infection to develop in the uro-genital tract'.

168 In the Tribunal's opinion, it is common to find some back up of faeces, and this factor is inconclusive.

169 Urine Examination. On Saturday 8, Dr Lloyd also examined Remus' urine. He collected a urine sample from the bottom of the dog's cage.

170 In his initial reply to the AVA and written statement to the Tribunal, he said that he did a sediment smear and that he found that the dog had haematuria and white blood cells present. In his interview with the Committee he said that he saw frank blood in the dog's urine, `grossly', not microscopically (p23). He also noted pus in Remus' penile discharge.

171 The presence of pus in the urine provides a very clear indication of the desirability of examining the prostate.

172 We also note that in his letter to the AVA, Dr Lloyd refers to finding `acute pain on palpation of the prostate' but that observation is not found on the record card.

173 He was cross-examined about this. He was unsure of the details of that examination. It was not referred to in the record card. He was unable to confirm whether the examination was abdominal or rectal. Dr Lloyd took no further steps to investigate the prostate (ts 12/12/00: 104). He said he considered it as but one part of a problem surrounding the urogenital tract.

174 Dr Lloyd sought to diminish the significance of these responses. He asserted that the prostate was part of the uro-genital systems and sought to suggest that the pain was more generalised in its origins (ts 12/12/00:104). But elsewhere he said that he did palpate the prostate.

175 Hartmann's solution. From the 8 March throughout the period of hospitalisation, Dr Lloyd used Hartmann's solution (used intravenously as a fluid and electrolyte replenisher). There is no record of quantity on card. There is no record of the amount he gave.

176 Drugs. During the hospitalisation period Dr Lloyd treated Remus with both anti-inflammatory drugs (Finadyne) and cortico-steroids (Dexadresen) and three antibiotics, Gentamicin (nephrotoxic), Penicillin and Streptamycin. Gentamicin is not appropriate for any suspected kidney problem, as was possible here. Moreover Finadyne is contraindicated to cortico-steroids (Dexadresen). No step was taken to administer an analgesic to provide relief for the pain the animal would obviously have been suffering.

177 We accept that Mrs Robinson telephoned Dr Lloyd mid-morning Sunday. He told her that Remus was deteriorating and that he had toxaemia. He told her that Remus was on a drip. It would seem from the card that 1 litre was administered on the Saturday and 2 litres on the Sunday. He advised her to see him the following day.

Monday 10 March

178 Packed Cell Volume (`PCV'). On this day Dr Lloyd did a PCV. Under cross-examination, Dr Lloyd said that he did not do a PCV previously because he was administering fluids to Remus and thought that the dog was hydrating (Ts 101:12/12/00).

179 This evidence was inconsistent with the evidence he gave as to his observations on Saturday 8 March when he said that the dog's coat was dry. The Tribunal notes that there was no scientific basis for this observation. Dr Bradley (one of the experts called, to whose evidence we refer in more detail later) considered this a `crude assessment' (Ts 72:23/2/00) of the extent of a dog's level of dehydration. We agree with Dr Bradley.

180 The result of the PCV was 65. In Dr Lloyd's opinion, this indicated dehydration. Dr Bradley and Dr Driver (an expert called by Dr Lloyd) both concluded that this was an elevated and a `significant' level. We regard the reading as highly significant. Dr Bradley said that a normal PCV is between 35 to 45, although the MIMS manual gave a wider normal PCV range of 35 to 58.

181 In the Tribunal's opinion, a PCV test should have been done much earlier and no later than within the first 24 hours after reception. It is important that a PCV test be done before the administration of any fluids. Dr Lloyd was unable to point to any action on his part to monitor the PCV level and to improve fluid perfusion and reduce the risk of dehydration. Nor was there any evidence that he acted to relieve the seriousness of the dog's pain and distress by the administration of an appropriate analgesic.

182 Contact by Mrs Robinson. Mrs Robinson telephoned Dr Lloyd from work. He told her that the dog had internal bleeding. Mrs Robinson recalled she felt Dr Lloyd had Remus and another dog's case histories confused. He seemed to think that Remus had an `accident'. By this Mrs Robinson understood that he meant a car accident. Mrs Robinson recalled feeling that Dr Lloyd was very `short' with her (Statement p12).

183 Though there was no specific allegation or particulars connected with the contact between the Robinson family and Dr Lloyd at this time, they were the subject of detailed evidence in the proceedings from the Robinsons and Dr Lloyd; and they do have some relevance to the question of the adequacy of his records. Accordingly, we will deal with this evidence.

184 Contact with Mr Robinson. On the evening of 10 March 1997 Mrs Robinson expressed concern to her separated husband over the situation of the dog. She asked him to call Dr Lloyd to find out how the dog was. She said she did this because she did not feel that Dr Lloyd was taking her calls to him seriously.

185 Mr Robinson gave evidence and confirmed that his wife had asked to help for the reason that she had given. He explained that he was also very concerned about the dog, as he and his wife had bought it when they were together to be the family's dog, and he, like his wife, referred to the pleasure it had given to them and their children.

186 Further contact by Mr Robinson. Mr Robinson then immediately called Dr Lloyd at about 10pm on 10 March 1997. Dr Lloyd told him that the dog was in very poor condition and may die.

Tuesday 11 March 1997

187 Contact by Mr Robinson. Mr Robinson in his statement said the he first called Dr Lloyd's surgery at about 7.30am, and he asked `Did Remus come through the night?'. He reported Dr Lloyd as saying `There's no change. He didn't get any better. Ring me later in the day and I'll tell you how he is going.'

188 Mr Robinson then called Dr Lloyd between 11.30 and 12.30 (probably in light of Mrs Robinson's evidence about 11.50) and asked about the dog. Dr Lloyd told him it was in a critical condition and may not live much longer. Mr Robinson did not contact his wife to advise as to what he had been told because she was at work.

189 Advice of Death. As it happened, Mrs Robinson around 12 noon at the beginning of her lunch-hour called Dr Lloyd. She reports him as saying that the dog had died `about 10 minutes ago'. Mrs Robinson said that she asked Dr Lloyd why he did not ring her to inform her that the dog had died. He said that he had already told Mr Robinson. She was upset to learn that he had told her separated husband before he had told her.

190 She reported Dr Lloyd as saying that he considered it reasonable for him not to have told her in the 10 minutes between the death and her phone call. Then she reports the following exchange (statement) - `What do you want me to do, the dog's dead?' She says he also said, `What do you want me to do with the body?'. She said she replied, `Excuse me. My dog has just died, and you are asking me what I want to do with the body.' She said he said, `Do you want it cremated or you know ...'. She said she replied, `I am too upset to think about it. I was supposed to bring him home on Saturday.' She said that he `got short' with me then; and she said `I will have to ring you back, I'll have to think about what I am going to do. I might come and see Remus before I consider doing anything.' She said Dr Lloyd said: `I advise strongly against that. That wouldn't be a good idea at all.'

191 Dr Lloyd's account of the conversation with Mrs Robinson has some common elements with her account. For example he acknowledges that he said that he had already told her ex-husband, and she replied `What are you talking about, he's got nothing to do with the dog'. He denied that part of Mrs Robinson's account where she said that he should have told her what was going on, and she would have come down and seen Remus; or that he strongly advised against that.

192 After the conversation with Dr Lloyd, Mrs Robinson said she then contacted her husband. She thinks this was about 12 noon. There had been no contact with Mr Robinson on the part of Dr Lloyd after the dog's death.

193 In his statement (p 17), Dr Lloyd says that he first told Mr Robinson of the death when Mr Robinson arrived at his surgery late in the afternoon.

194 He places his first conversation with Mrs Robinson in which he told her of the death at a point after the arrival of Mr Robinson at the surgery. Ms Gwen Bennett, his secretary at the time, supports Dr Lloyd's account in several respects (statement).

195 While we did not find her to be very satisfactory in her recollection of detail at hearing, Ms Bennett in her statement recalled Mrs Robinson as having called and spoken to Dr Lloyd during the `morning'. In relation to the conversation which she places late in the day, she recalls Dr Lloyd saying, `What do you want me to do with the body'.

196 We accept the evidence of Mr Robinson, Mrs Robinson and Ms Bennett which together support the conclusion that Mrs Robinson phoned earlier in the day. We also conclude that the phone conversation between her and Dr Lloyd covered all the matters to which she referred. We do not accept Dr Lloyd's and Ms Bennett's evidence that these exchanges took place late in the day. We accept fully the evidence of the Robinsons which locates the time of death somewhere close to 12 noon.

197 As to the question of instructions in relation to the disposal of the cadaver, Dr Lloyd conceded that at no point did he have instructions from Mrs Robinson on what she wanted him to do with the patient's body.

198 We accept in full Mrs Robinson's account of the conversation. Dr Lloyd agrees that the first part of the conversation as reported by Mrs Robinson occurred. We think it is likely that there would have been a request by a grieving owner to see a family pet for the last time. We reject Dr Lloyd's evidence to the effect that Mrs Robinson's first contact was late in the afternoon.

199 Dr Lloyd's card records the time of death as 2.20pm. We do not accept that this was an accurate record.

200 That Afternoon, between 4 and 5pm. After he finished work, Mr Robinson said that he drove to Dr Lloyd's surgery with the intention of seeing the dog, and, as he put it, to pay his last respects to the family's pet. He estimated his time of arrival at 4.25pm.

201 When he got there he said that he was told by Dr Lloyd that the dog was not available for inspection, as it had already been buried under a tree at his property at Hoxton Park (the Rutledge Park Veterinary Hospital, Fifteenth Avenue, Hoxton Park).

202 In his interview with the Committee, Dr Lloyd said that he had not disposed of the dog when Mr Robinson asked to see the dog (at 35).

203 Dr Lloyd denies that Mr Robinson asked to see the dog. But he does say that he discussed burial with Mr Robinson. He said that he had a few acres at Hoxton Park and had a `nice spot for him under a tree' (statement).

204 Dr Lloyd said in his statement that he took Mr Robinson's failure to object to the proposal to be `acquiescence'. Mr Robinson said in his statement that at no stage did Dr Lloyd ask for his permission to bury Remus. Under cross-examination, Dr Lloyd asserted that Mr Robinson actually agreed with his proposal to bury Remus in Hoxton Park. (Ts 119: 12/12/00).

205 We do not accept Dr Lloyd's evidence on this matter. We are satisfied, one, that Mr Robinson asked to see the dog, and that the burial was referred to in the way Mr Robinson reports, as having already taken place. Mr Robinson was closely cross-examined on this issue, and responded consistently and credibly.

206 Mr Robinson's evidence is that he rang Mrs Robinson after the conversation with Dr Lloyd to tell her that Remus had already been buried.

Autopsy Findings

207 Dr Lloyd said, and it was not disputed by the Committee, that he did an autopsy on Remus on 11 March 1997. He said that he had been in the habit of undertaking `partial autopsies' in selected cases to determine the actual cause of death when a patient dies in his hospital. In his statement of agreed facts (September 1999) Dr Lloyd admitted that he conducted the autopsy without consent of his client. He said that it had not been his practice to that time to ask for consent to such procedures; but he now did so.

208 Dr Lloyd in his statement said that he considered with the benefit of the autopsy that any drug or treatment administered by him did not cause the death of the dog. As we see it, Dr Lloyd's position is that his treatments could not be said to have contributed to the death of the dog, even if his original diagnosis was wrong. In his evidence, he focused also on the value of the autopsy in relation to the question of the original diagnosis.

209 There was no detail in the statement as to the autopsy procedure. His first account is in oral evidence to the Committee.

210 The Tribunal had considerable difficulty in ascertaining from Dr Lloyd what occurred by way of the autopsy.

211 Dr Lloyd said in his interview with the Committee that he cut all the way from the bladder to the kidneys because he wanted to know `if it was just prostatic infection and cystitis or whether it had gone any further' (at 28). In his letter to the AVA, he wrote that the `cause of the systemic toxaemia was seen to be pyelonephritis and associated prostate abscessation' (at 2).

212 The finding of prostate abscessation supports an original diagnosis of prostatitis. In his interview with the Committee, he said that he saw pus in the ureter but not in the abdomen. He said that he observed the wall of the bladder to be inflamed, and there to be pus in the medulla and damage to the kidneys

213 He made ambiguous statements about pus oozing from another source, which may have been the prostate (at 28).

214 These statements, as we see it, seek to deflect attention from the original autopsy assessment which was negative to his fundamental claim that his original diagnosis was sound.

215 So for example he claimed there was an `insignificant prostatic enlargement' (at 16). This is inconsistent with an observation of abscessation.

216 At p 27 of the Committee interview he shifts position again and says it was `not gigantic.' Under cross-examination, Dr Lloyd's position had shifted further from the statements he made in the initial investigation. He said that the prostate was not enlarged (Ts 47:25/2/00 and Ts 113:12/12/00). He also said that he only saw pus coming from the lumen, not from the prostate.

217 Dr Lloyd wavered on whether he still considered that prostatic abscessation was the cause of death (inconsistent evidence Ts 76-77:25/2/00). In re-examination Dr Lloyd said that the prostate was not particularly or specifically enlarged, but that it was part of the whole inflamed urogenital tract. He sought to explain the cause of death he gave to the AVA as an abbreviated explanation.

218 We do not accept this account. We regard it as unsatisfactory for a veterinarian to say one thing to the AVA on such a critical matter, and another thing later.

219 Significantly, as Dr Bradley also noted, Dr Lloyd did not indicate that he took the opportunity of the autopsy to confirm or reject his original diagnosis (pelvic ligamentous strain) by checking the state of the tendons of the animal.

220 Storage of Body. There was no reference by Dr Lloyd to this issue in his statement or in his oral evidence to the Committee. Dr Lloyd said that he placed Remus' body in the freezer in the garage beside the surgery. He said that the body remained there for between 1 and 3 days before it was buried in Hoxton Park. Dr Lloyd said that it was his practice, in general, to accumulate a few bodies in the freezer before burying them. Dr Lloyd gave all of this evidence under cross-examination.

Adherence to Current Standards of Veterinary Science

221 Expert evidence. Each of the experts (Dr Rawlinson, Dr Bradley and Dr Driver) had proceeded on a set of assumptions as to what occurred which differ to varying degrees from the circumstances as found by the Tribunal.

222 In particular Dr Driver proceeded on the basis that the information given to them by Dr Lloyd was entirely accurate and that other information provided to them was wrong. As is apparent from the account given so far we do not accept many aspects of Dr Lloyd's account. The consequence is that we found Dr Driver's opinions for the most part to be of little value, and in any case, to lack cogency. On the other hand, the opinions of Dr Rawlinson and Dr Bradley were persuasive.

223 We will refer to the expert evidence in delivering findings as to each of the allegations, of which charge 1(a) is the most significant. (The particulars of each allegation are not repeated.)

Allegation 1(a): Between 25 February 1997 and 11 March 1997 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science.

Nature and Extent of Rectal Examination

224 Rectal Examination of Dog. Dr Rawlinson said that it would not be possible for a man's arm to be inserted into the rectum to the extent described.

225 He explained that the method used involved inserting the longest finger of the hand into the anus, and to press the tip of the finger against the interior. He estimated that the extent of an insertion would be about 10cm, and that it would be impossible to insert the whole hand into the rectal cavity. Dr Lloyd's evidence was to similar effect.

226 The Tribunal is satisfied that the degree to which Dr Lloyd inserted his finger and hand into the dog's anus could, as a practical matter, not have been as extreme as Ms Robinson stated. On the other hand we accept that the dog gave a strong pain reaction to the insertion and internal examination.

227 The next question is how far did Dr Lloyd's finger reach. Was it possible for him to have reached the pelvic bone and the ventral and lateral rims.

228 Dr Bradley said that in his opinion, it may be possible in a dog of this size to touch the ventral rim but said that he considered it very difficult to touch the lateral rim.

229 Dr Driver was of the opinion that it is possible to get to the pelvic symphysis and the anterior rim of the pelvic symphysis. We were not persuaded by Dr Driver. While this issue received a lot of emphasis in the proceedings, we do not regard it as so central to the making of conclusions in this case that it need be resolved.

Palpation of Prostate

230 The experts were agreed that it was possible to reach and palpate the prostate of a 28kg dog (if that was the weight) when the prostate is intra-pelvic and that could have been done in the course of a rectal examination of the type described by Dr Lloyd; and that prostate palpation would be a regular part of a standard rectal examination for a dog presenting with Remus's symptoms.

231 But opinion as to the extent to which the prostate's condition could be conclusively determined using this method alone was more divergent.

232 The Tribunal is satisfied that Dr Lloyd may have been able to reach and palpate the prostate in the way he has described.

233 Dr Lloyd said that during the prostate examination he could distinguish the pain responses he detected in Remus when he palpated the cranial left pelvic rim from the pain response when he palpated the right pelvic rim and also the prostate. As we have noted earlier, we have considerable difficulty with this account. The pain that he located could not, in our view, be effectively differentiated from the prostate. Dr Driver said in his evidence that palpation of the region of the prostate can elicit a very distinct pain response and that that pain exuding from the left pelvic rim can be distinguished from other pain.

234 We prefer the view of Dr Bradley that in the circumstances of this examination it is not likely that such a distinction could be drawn. Further and we agree with Dr Bradley that if, as Dr Lloyd said, Remus was trying to bite Dr Lloyd, he questioned the accuracy of pain localisation and prostatic examination. Under cross-examination, Dr Lloyd sought, in our view, to diminish the significance of the difficulty he faced from the dog trying to bite him during this examination.

Failure to take Samples

235 Dr Lloyd did not offer or take any samples for testing. The Tribunal agrees with Dr Bradley's opinion that a competent veterinarian in these circumstances should have offered his client some simple diagnostic procedures, namely urinalysis, micro-urine examination and radiology. Dr Lloyd agreed that all these techniques were available to him at the time.

236 In explaining why no tests were done, Dr Lloyd gave two quite distinct reasons for failing to do these tests. The first reason is that he was discouraged from doing such tests because of a conversation he claims he had with Mrs Robinson about a $50.00 limit to the consultation. We have not accepted the suggestion that Mrs Robinson had placed any price limit on his services.

237 His second reason is that tests of this nature were never a consideration for him because he felt confident in diagnosing torn pelvic tendons, and because he ruled out any consideration of infection or prostatic disease.

238 As we have indicated earlier in our account of the events in this matter, we agree with Dr Bradley that the elicitation of pain on rectal examination should have led Dr Lloyd to consider prostatic disease in an un-desexed male dog. Even if infection or prostatic disease is not otherwise indicated by the manual examination the elicitation of pain when investigating this region of the dog should give rise to concern as to the state of the prostate.

239 Dr Lloyd made several statements about the factors which he took into consideration in ruling out, as other possible diagnoses, prostate and systemic problems.

240 In his first statement tendered to the Tribunal, Dr Bradley gave evidence adopting as correct for this purpose Mrs Robinson's statement that, given the same historical information, he would have considered systemic disease. Dr Driver conceded that if presented with the same case as depicted by Mrs Robinson, he may have considered the possibility of infection.

241 We have accepted Mrs Robinson's evidence. A competent veterinarian would have considered systemic disease.

Adequacy of Prescription

242 Dr Lloyd dispensed medication that was inappropriate and contraindicated in treatment of prostatic disease.

243 It was inappropriate to administer two similar drugs, Depo-Medrol and prednisolone, simultaneously. We agree with Dr Bradley that the prescription of the short-acting prednisolone alongside the long-acting Depo-Medrol was not acceptable practice, especially given the other symptoms and differential diagnoses. (In accepting Dr Bradley's opinion we have noted that under cross-examination Dr Bradley conceded that he very rarely used Depo-Medrol in his practice. We do not regard that as affecting the general reliability of his technical opinion as to the unsatisfactoriness of the prescription in this case.)

Further Prescription of Prednisolone

244 We consider that Dr Lloyd's failure at the second consultation (4 March 1997) to use other diagnostic aids compounded the error that he made on the occasion of the first consultation. The dog had significantly deteriorated. His response was to consider the same course of treatment at a higher dose rate. In our view Dr Lloyd displayed indifference to the seriousness of the plight of the animal.

245 To increase the dose of prednisolone despite having injected the patient previously with a long acting cortico-steroid (Depo-Medrol) was to compound the error made on the first occasion, and was incompetent.

Failure to Warn Owner

246 Dr Bradley said that the failure to warn Mrs Robinson of the possible dangerous side effects of the medications, both individually and in combination, was not in keeping with the current standard of veterinary science. He said this amounted to a serious omission. We agree with him.

Relevance of Radiograph taken 8 March 1997 to the Original Diagnosis

247 The radiograph (Ex 22) as it related to the issue of the original diagnosis was the subject of oral opinion evidence from Dr Rawlinson and Dr Dixon.

248 The experts gave markedly different evidence on the appearance of the prostate in the radiograph. Dr Rawlinson said that he could not see the prostate at all. Dr Dixon said that he could. He also gave the Tribunal quite a detailed description of its whereabouts. He said that it extended forward from the pelvis about 5cms, although it was in part obscured by a mass of faecal material. We consider that this confusion flows from the quality of the radiograph. These difficulties arise also from there being no lateral view. The Tribunal's conclusion is that the prostate is partly visible, but it can only be discerned with considerable difficulty.

249 Dr Dixon had been retained by Dr Lloyd for advice and assistance on an occasional basis in relation to Dr Lloyd's radiograph work. Dr Dixon had, he said, spoken with Dr Lloyd about Remus on 28 February 1997 and saw the film about a fortnight after the dog died, on 24 March 1997. Dr Dixon said that he told Dr Lloyd that there was an enlarged prostate and directed him to consider urination and defecation difficulties and the existence of pus or blood in the patient's urine. Both experts agreed that there was a mass of faecal material that had accumulated and that this could signify obstipation.

250 The radiograph of the dog shows a view taken from above its abdomen while the dog is lying on its back. It was a ventro-dorsal view of muscular-skeletal tissue, showing the pelvic area of the dog.

251 Both experts criticised the absence of a lateral view. Dr Dixon said under cross-examination that the view taken was appropriate for problems which are thought to be muscular-skeletal in nature. Dr Rawlinson gave evidence that in order to properly see the prostate, a lateral view is necessary. He said that in any event, taking two angles is normal veterinary practice.

252 Both experts regarded the quality of the print as fair only. The print as viewed at hearing was affected by some smudging. Dr Dixon described the radiograph as `stained' in so far as there was a black line running 10cm long from the head of the femur to the proximal part of the femur. (Ts 64/24/2/00).

253 Dr Rawlinson attributed the problem to inadequate initial procedures. Dr Rawlinson said that the radiograph was of such poor quality that if he had received it from a practitioner, he would consider it `borderline diagnostic' and would have sent it back to be re-done.

254 Dr Dixon, however, felt the radiograph's current quality was due to deterioration over time. He said that when he first saw the radiograph, on a visit to Dr Lloyd's practice on 24 March 1997, it was in better condition. We have also inspected the radiograph and are satisfied that it is of poor technical quality. While we concede that its quality today is likely to have been affected to some degree by natural deterioration, we do not accept Dr Dixon's opinion that this factor provides a complete explanation as to the present quality of the radiograph.

255 Another line runs between the pelvic rim and a calcification line. Both experts offered to the Tribunal opinions on the nature and longevity of an area of calcification identified by a `mach' effect appearing on the radiograph.

256 Dr Dixon said that the calcification had probably been present for between two and three months because it was smooth and well organised. He said under cross-examination that even if an incident which led to the calcification happened three weeks prior to the radiograph being taken, the periosteal reaction would have begun but would not be as significant as shown on this radiograph. He did, however, confirm that calcification of this nature would be indicative of a torn left periosteum. Dr Rawlinson, on the other hand, said that the pelvis blocked some of the view of the calcification, and that he could only date the calcification at between 14 days and several months old.

257 We agree with the thrust of these assessments, which demonstrate, we consider, that Dr Lloyd's reliance on this feature in forming an opinion was unsound, as it was irrelevant.

258 In our opinion the periosteal reaction is most likely to have been associated with some old injury unconnected to the events which have given rise to these proceedings.

Adequacy of Tests 8-11 March 1997

259 PCV. The Tribunal agrees with Dr Bradley's opinions in this regard and considers that Dr Lloyd should have undertaken a PCV on admission of the dog to care, and that by the time he did it (10 March 1997) it was far too late.

Autopsy of Tuesday 11 March 1997

260 There was a considerable difference between the approach to the autopsy and probably cause of death, of Dr Bradley and Dr Driver. In our view it is not necessary to the resolution of this case to reach a conclusion on the cause of death.

261 Dr Bradley was of the opinion that if there was evidence of `prostatic abscessation' as Dr Lloyd wrote in his letter to the AVA and if there was pus coming from the prostate at autopsy, as Dr Lloyd suggested in his interview with the Committee, then Dr Bradley considered that it would be probable that the prostate was a primary rather than secondary cause of death. We agree with this opinion.

262 As noted earlier, we regard it as odd that Dr Lloyd did not in the course of the autopsy seek to verify his original diagnosis.

263 General Conclusions. In his management of the dog, Dr Lloyd showed substandard knowledge of simple diagnostic aids. He failed to obtain a thorough and relevant history of his patient. He consistently showed that he lacked the skill to maintain a thorough medical record, or to communicate to his client with an adequate level of regularity or detail, the state of his patient.

264 In treating Remus, Dr Lloyd administered an inappropriate long-acting cortico-steroid (Depo-Medrol) and supplemented it with an oral short-acting cortico-steroid, (prednisolone). In doing so, he showed a lack of knowledge of the indications and contra-indications of the various drugs he administered and prescribed. Whilst the dog was hospitalised, he used medications inappropriate to his diagnosis. Dr Lloyd's application of analgesics was an insufficient response to the dog's pain and suffering. Dr Lloyd showed a lack of appreciation of the significance of careful management of fluid balance (and nutritional support) in a critically ill patient.

265 Misconduct in a Professional Respect. We are satisfied to the relevant standard that the conduct of Dr Lloyd in treating Remus was of a kind that would incur the reprobation of his peers, and amounts to misconduct in a professional respect; and goes well beyond an isolated instance of `mere negligence'.

Allegation 1(b): On 11 March 1997 you carried out an autopsy on the dog and then disposed of its carcass without the owner's permission.

266 Dr Lloyd in the statement of agreed facts agreed that he carried out an autopsy without consent. He did not agree that he disposed of its carcass without the owner's permission.

267 In relation to cadavers, Dr Bradley said that he does not do autopsies without the owner's consent, nor does he dispose of a body without that consent. Dr Driver agreed in principle but said that in the absence of that consent, he might do an autopsy and does, within a reasonable time, give a dead animal patient an in-house burial. Dr Bradley said that like Dr Lloyd, he froze dead animals until there were enough to make a cadaver collection economical.

268 We are satisfied that Dr Lloyd did dispose of the carcass without permission when it was possible and reasonable for him to have consulted the owner, Mrs Robinson. In so doing, he failed to uphold current standards of veterinary science; and the matter is of sufficient seriousness in the context of this case to amount to misconduct in a professional respect.

269 Poisons Administration: Both of the following allegations were, in essence, admitted. We have set out, earlier in these reasons, the relevant clause of the Code, cl 6, and the detailed law as to administration and prescription of restricted substances.

Allegation 1(c): You did not ensure that conditions imposed by other legislation (namely, the Poisons and Therapeutic Goods Regulation 1994) relating to dispensing, handling or storing restricted or dangerous drugs were strictly complied with between 25 February 1997 and 11 March 1997.

270 It is vital that great care be shown in the dispensation of scheduled poisons, especially to lay persons. In this case Dr Lloyd was grossly derelict in supplying prednisolone to Mrs Robinson without the necessary details on the label. The provision of written information in this form serves a number of functions. It ensures that the person who undertakes the administration of the poison has a clear statement to refer to at all times as to what is required. It also ensures that if other persons are called on to administer the poison that they have a record to refer to. It also provides a warning to people who are checking stored items as to what the contents are. These are obvious points, we acknowledge, but they bear repetition in this case.

271 Two packets of prednisolone tablets were supplied to Mrs Robinson.

272 The first supply occurred on 25 February 1997, the green tablets. The printed, standard part of the label contained the following text `FOR ANIMAL USE ONLY, KEEP OUT OF THE REACH OF CHILDREN' followed by `GILL AVENUE SURGERY' and its address and telephone details. The blank part to be filled in contained the typewritten words `PREDS 1 TAB DAILY.'

273 We doubt that a person who came upon the package without having been told what `PREDS' stood for would have any idea of what the full name was; let alone any appreciation of how dangerous the pills could be.

274 The second supply occurred on 4 March 1997. The parties agree that the tablets supplied on this occasion were stronger, the blue tablets. On this occasion the package was in similar form to the previous one, with the difference that in the blank section the words written in handwriting were `1 tablet per day'. There was no reference to `preds' or any other form of description of what the tablets were.

275 The following obligations were not observed: approved name of substance; adequate directions for use, including number to be used; species of animal; name of owner.

Allegation 1(d): You supplied a substance included in schedule 4 to the Poisons List to an animal but did not ensure that the person who dispensed the substance was provided with written instructions as to any dosage requirement, route of administration or withholding period that was relevant to the use of the particular substance.

276 This allegation goes beyond the question of non-adherence to the statutory obligations and go to the specific issues that relate to the particular course of administration that is appropriate to the animal and its condition. It is equally vital that owners be given clear instructions about the dosage rate and the route of administration. There is no need to provide information in relation to withholding periods for companion animals. To that extent this allegation is not made out. We reiterate that the other matters are of fundamental importance in ensuring that no mistakes occur that might damage the health or recovery of the animal.

277 Failure to observe the standards referred to in Allegations 1(c) and 1(d) is a failure to adhere to current standards of veterinary science. In the circumstances of this case, these omissions were grossly derelict, and amounted to misconduct in a professional respect.

Allegation 1(e): You failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made.

278 Dr Lloyd said that the only record now in existence is the card record. He asserted that hospital observations were recorded on a separate hospital sheet which has not been retained. He agreed that the following items were not recorded on the card: quantities of intravenous fluid and flow rates; whether the dog was urinating and defecating and any monitoring thereof; results of urinalysis. He said that the only record of these matters `would have been on' the hospital flow sheet. He expressed the same view as to the absence of a record of his checks on the dog on Saturday and Sunday.

279 Other than Dr Lloyd's assertion, we have no other evidence to suggest that there was any separate hospital sheet. If there was a sheet, it is not acceptable that it was not retained, once a complaint was notified. That notification occurred within a couple of weeks of the dog's death.

280 The degree of inadequacy of Dr Lloyd's record-keeping involves such a departure from current standards of veterinary science as to constitute professional misconduct.

Findings as to Allegations

281 All allegations of misconduct in a professional respect are found proven to our comfortable satisfaction. All particulars are found proven, except as otherwise indicated in the course of our reasons.

282 We also note that the dosages of prednisolone were 20mg tablets, not 25mg: item (iii) of Allegation 1(a); and that our findings support the primary account of the facts put in item (iv) of Allegation 1(a); and not the alternative account.

Other Matters

(a) Alleged Duplicity in Allegation 1 of the Complaint

283 As noted earlier, the parties at the resumed hearings late in 2002 raised for the first time issues as to alleged duplicity in the way the allegations had been framed in the various notices of inquiry.

284 In this notice of inquiry (and in the other three) there is a general course-of-conduct charge, embracing all or most of the conduct of Dr Lloyd that has been placed in issue. In this instance it is Allegation 1(a). Then typically there are more specific charges going to particular aspects of the course of conduct which are seen as amounting to misconduct in a professional respect in their own right. As a result sometimes the same or a substantially similar particular is repeated in both the general course-of-conduct allegation, and the more specific allegation. Sometimes there is a degree of repetition in relation to particulars as between two specific allegations.

285 Under the heading `Committee Instructions' in the `Statement of Agreed Facts' filed 3 September 2002, the new Committee states that it considers that there are various defects in the present notice of inquiry which contravene the principle in relation to duplicity. It made no detailed submissions, either in writing or orally, to explain the examples that it gave.

286 The Tribunal considers that the parties' submissions in this case often confused the meaning of `duplicated' and `duplicitous'. A particular may be `duplicated' without the allegation to which it relates being `duplicitous'.

287 The terms `duplicity' or `duplicitous' refer to a situation where the one statement has two possible meanings or interpretations. As Archbold, Criminal Law Pleading and Practice (1995) I:75 states: `The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences...'.

288 The rule against duplicity goes to a fundamental aspect of procedural fairness towards a defendant: see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J at 489; and Walsh v Tattersall (1996) 196 CLR 77 at 84 per Dawson & Toohey JJ.

289 In the criminal law the issue is one of great importance on occasions, because the accused may be prejudiced in presenting a defence, as different defences may be available depending on the interpretation of the affected charge.

290 While it perhaps should not be applied as rigourously in non-criminal settings, the principle remains relevant to any setting in which charges are laid that have serious consequences if proven. See for example Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242 at 248-9 per Ipp AJA. In that case a charge had been laid against an eminent internationally recognised judge of all dog breeds of making claims not correct in truth and fact, and thereby engaging in conduct that was dishonest or brought her into discredit. The relevant committee found her guilty as charged. It did not deal in its findings with the question of whether the impugned claims were merely 'not correct' or were actually made `dishonestly'. The Court found the procedure defective in several respects, including that the charge was affected by duplicity.

291 No issue of alleged duplicity is raised in respect of Allegations 1(b), (c) and (d). The submissions refer to Allegation 1(a) and Allegation 1(e).

292 As noted, Allegation 1(a), is a course of conduct charge. This is a charge open to be laid in professional discipline proceedings; there is no limitation of the kind found to arise in Walsh v Tattersall under the offence provisions of the social security legislation.

293 Allegation 1(a) seeks to deal with issues of competence and conduct viewed across the entirety of the services performed. That does not prevent the referring body from charging particular items of conduct separately. As the Defence Forces Appeal Tribunal (chaired by a Federal Court judge, Heerey J) recently noted in dealing with offences charged under military law: `It is legitimate to charge in a single count one activity even though that activity may involve more than one act and notwithstanding that each act would constitute a separate offence': Van Damme v Chief of Army [2002] DFDAT 1.

294 Allegation 1(a) covers the whole period from 25 February 1997 to 11 March 1997 and particularises various aspects of the consultation, diagnosis and treatment; follow-up concerns expressed by Mrs Robinson; the further consultation; a second further consultation, leading to the dog being taken into care at his surgery; treatment while in care; and insufficient records to allow for effective referral.

295 But it is now said by the Committee (with whom Dr Lloyd agrees, not having raised any objection of this kind during the course of proceedings though legally represented) that Allegation 1(e) is affected by `duplicity' in that it deals with matters already addressed by Allegation 1(a).

296 Allegation 1(a), the course of conduct charge, makes two reference references in the particulars (of which there approximately 60) to matters of record keeping. One particular is that Dr Lloyd failed to record the length of time over which the dog had been suffering; and the other is that he failed to make sufficient records sufficient to enable another surgeon to take the case over.

297 On the other hand Allegation 1(e) charges that Dr Lloyd failed to ensure that a detailed record of the treatment or consultation was made. There follow detailed particulars setting out what the Committee of that time considered to be critical omissions from the record that meant that in its own right Dr Lloyd's standard of record keeping in relation to this case constituted misconduct in a professional misconduct.

298 We do not see any difficulty. Allegation 1(a) and Allegation 1(e) clearly deal with different subjects. The first is about the practitioner's overall competence; and whether viewed in its totality it amounts to professional misconduct. Two failures of record-keeping are referred to.

299 Allegation 1(e) focuses on critical omissions from the record.

300 It is conceivable that a course-of-conduct allegation might not be found proven; but an allegation related only to the critical omissions in a record might be found proven. While both may amount to misconduct, the former is clearly more serious than the latter. There is no lack of clarity or ambiguity, of the kind to which the principle against duplicity is directed, in the formulation of either Allegation 1(a) or 1(e).

301 The submissions confuse the distinction between duplication of some particulars as between different charges (which charges themselves go to different subjects); and the difficulty of meeting the one charge because it is affected by duplicity.

302 There was no detailed explanation of the assertions with which we have dealt above, and the same is true of another assertion made in respect of particular (iv) of Allegation 1(a). There is some strength to the claim here. The particulars use the words `any or all'.

303 This may invite confusion as to what standard is being said to apply. There is as we see it no fundamental problem. The words `any or all' are to be interpreted as we see it as saying that one at least of these alternative options should have been canvassed. The subject matter of this area of the particulars is the alternative approaches that, it is said, a competent practitioner should have considered on the occasion of the second consultation when the dog was taken into care. In any case if there is a problem with this aspect of the particulars it does not impugn the allegation as a whole.

(b) Issues in relation to Allegation 2 of the Complaint

304 Procedural Fairness. In a letter filed 11 November 2002 the Secretary on behalf of the Committee noted `that the issues raised by charge 2 were not included in the original complaint and were not before the former Committee when it made its finding as to a prima facie case.'

305 We note that no objection of this kind had been made at any stage of the proceedings by Dr Lloyd, who has been legally represented throughout. The matter has been the subject of evidence from both Dr Lloyd and Mrs Robinson, and both have been cross-examined.

306 The record available to the Tribunal shows the following: the post complaint conduct charged formed part of the original notice of inquiry as issued by the District Court on 5 August 1998. The first written reference to these matters appears in the statement of Mrs Robinson dated 28 August 1998; and is the subject of Dr Lloyd's statement dated 21 September 1999. Dr Lloyd's interview with the Committee on 24 November 1997 did not address post complaint conduct issues.

307 The difficulty, therefore, in terms of the statutory scheme is that Dr Lloyd has never had the opportunity to have this element of the case against him considered by reference to s 28 of the Act. It may be that the Committee might not have referred this issue, or might have sought to deal with it by imposition of one of the orders available to it under s 28(1)(a).

308 We have dealt at length in our decision in relation to Inquiry 4 with the law affecting jurisdictional objections of this kind: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: Total Eclipse - Findings) [2002] NSWADT 284. In our view this is an instance to use the words of Gleeson CJ, Gaudron and McHugh JJ in Barwick v Law Society of New South Wales [2000] HCA 2 at [63] where the procedure required of the Committee by the Act was `substantially bypassed'. In these circumstances our conclusion is that Allegation 2 has not properly been referred. Accordingly it is not further considered in this decision.

309 On the other hand the situation we now face is one where all the relevant evidence was heard before the making of the objection. Section 30(6) as in force at the time this inquiry, and the provisions now in force (ss 30(1) and (2)) deal with the situation where in the course of proceedings the Tribunal forms the view that another complaint could have been made, either in place of or in addition to the complaint as referred. The Tribunal is empowered to lay such a complaint of its own motion. The current provisions, ss 30(1) and (2) provide:

`30. Inquiries by Tribunal

(1) If in the course of an inquiry into a complaint against a registered veterinary surgeon:

(a) it appears to the Tribunal that, having regard to the matters arising during the inquiry, another complaint could have been made against the veterinary surgeon, whether instead of the complaint then being inquired into or in addition to it, and

(b) the Tribunal is satisfied that the Investigating Committee has not, under section 28 (1) (a) or (b), dealt with that other complaint or a complaint that was substantially the same as that other complaint, and

(c) the Tribunal is of the opinion that the other complaint is one that could have been made to the Investigating Committee in accordance with section 26,

the Tribunal may itself make that other complaint and it is to be taken to have been referred to the Tribunal in accordance with section 28 (1) (c).

(2) If in the course of any inquiry into a complaint against a registered veterinary surgeon the Tribunal makes another complaint against the veterinary surgeon under subsection (1), the other complaint may be dealt with at that inquiry after such adjournment (if any) as is just and equitable in the circumstances.'

310 The Tribunal will proceed to consider amending the complaint to make a further allegation precisely in terms of the original Allegation 2. The Tribunal will consider any submissions at the next hearing as to its proposed action.

DETERMINATION

1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(d) and 1(e).

2. In relation to Allegation 2 of the complaint as referred, the Tribunal's ruling is that the referral was affected by procedural error; and that Allegation 2 was not validly before the Tribunal.

3. As all evidence considered to be relevant to Allegation 2 was heard prior to the submission by the Committee as to the procedural validity of the Allegation, the inquiry is to reconvene to consider the Tribunal's motion pursuant to section 30 of the Act to add a further Allegation to the complaint in the same terms as Allegation 2.

4. After the determination of the findings as to any further Allegation in this Inquiry and the determination of the findings as to the Allegations in the other three Inquiries, this Inquiry is to be reconvened for the determination of orders pursuant to section 32.