Veterinary Surgeons Investigating Committe v Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [2004] NSWADT 208 (22 September 2004)

Last Updated: 23 September 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Veterinary Surgeons Investigating Committe -v- Lloyd (Disciplinary Order: Inquiries 1 ('Chisel'), 2 ('Gypsy') and 3 ('Remus')) [2004] NSWADT 208


PARTIES: APPLICANT
Veterinary Surgeons Investigating Committe
RESPONDENT
Ronald George Lloyd



FILE NUMBERS: 40004 of 1998
40005 of 1998
40015 of 1998

HEARING DATES: 01/06/2004

SUBMISSIONS CLOSED: 23/06/2004



DECISION DATE: 22/09/2004

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





LEGISLATION CITED: Veterinary Surgeons Act 1986

CASES CITED: Burton v Anderson (NSWCA, CA 40030/92, 28 October 1994)

APPLICATION: Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect

MATTER FOR DECISION: Disciplinary Order


APPLICANT REPRESENTATIVE: APPLICANT
M Wade, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
G Stanton, barrister

ORDERS: The Veterinary Disciplinary Panel orders pursuant to s 32 of the Veterinary Surgeons Act 1986 that: - As to the findings of guilt of professional misconduct: 1. Dr Ronald George Lloyd be suspended from practice for 9 months commencing on a date specified by the Veterinary Surgeons Board, being a date not later than 1 January 2005
2. The following conditions to be imposed on Dr Lloyd’s registration as a veterinary surgeon: (i) That he only be permitted to practise as an employee of a veterinary surgeon approved by the Board in a practice where there is at least two veterinary surgeons (other than Dr Lloyd) practising on a full-time basis. (The employer if full-time may be counted for this purpose.) This condition is to remain in force for not less than 15 months after his return to practice. (ii) That he only be permitted to return to practice as a sole practitioner if the Veterinary Surgeons Board so approves after having had regard to such matters as it thinks fit, including a report from the approved employing veterinary surgeon. (iii) That he be required to undertake continuing professional education in programs designated by the Board of ten days per annum over the period of his suspension and the period of supervised employment
- As to the finding of guilt of unacceptable professional conduct: 3. Dr Lloyd be reprimanded
- and further orders that: 4. Dr Lloyd pay the costs of the Veterinary Surgeons Investigating Committee as agreed. As required by the Act, the Registrar of the Tribunal is to advise the Registrar of the Board of these orders within 21 days of the date of their publication.


Reasons for Decision:

1 The Panel has completed, pursuant to the Veterinary Surgeons Act 1986 (the Act), inquiries into three complaints referred by the Veterinary Surgeons Investigating Committee (the Committee) into the professional conduct of Dr Ronald George Lloyd, a registered veterinary surgeon.

2 The Panel made numerous adverse findings. Many of the findings were set aside by the Appeal Panel mainly for procedural and evidentiary reasons. See, respectively, Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 1: 'Chisel' - Findings) [2003] NSWADTAP 47; Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 2: 'Gypsy' - Findings) [2003] NSWADTAP 48; Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: 'Remus' - Allegations 1(a) to (e)) [2003] NSWADTAP 45; and Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: ‘Remus’ - Allegation 2) [2003] NSWADTAP 49.

3 The balance of the original findings has been remitted to the Panel for the making of disciplinary orders.

4 This decision deals with the question of what, if any, disciplinary order should be made against Dr Lloyd.

5 The power to make disciplinary orders is conferred by s 32 of the Act, which provides:

‘32 Tribunal’s powers when complaint proved

(1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:

(a) an order reprimanding or cautioning the veterinary surgeon,

(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,

(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,

(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,

(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,

(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.

(2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1) (b) or (c) if the Tribunal is of the opinion that:

(a) because the matter of the complaint is of a trivial nature, or

(b) because of the circumstances in which that matter occurred, or

(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.

(3) If the Tribunal considers that the matter of a complaint against a registered veterinary surgeon has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary surgeon was sufficiently unacceptable to warrant the making of the complaint, the Tribunal may make an order against the veterinary surgeon under subsection (1) (a) or (f), or both.

(4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person’s name to the register.

(5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon.

(6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.’

6 These proceedings have been unusually protracted. The Committee made the original referrals pursuant to s 28(3) of the Act during 1998, and the professional conduct the subject of the referrals belongs to the period 1995-1997. The hearing of the first of four inquiries commenced in March 1999. During the course of the third inquiry the office of one of the members expired, leading to the need to reconstitute the Panel. The procedure adopted to effect the reconstitution was found by the Court of Appeal to be invalid. The Panel’s ultimate findings and the procedures adopted following reconstitution were, as already noted, also challenged. (The fourth inquiry, the one not affected by the reconstitution issue, was subsequently found to be without jurisdiction because the Committee’s referral was invalid: Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2003] NSWADTAP 19.)

7 In summary, the findings that remain before the Panel for consideration in respect of an appropriate disciplinary order are as follows:

Findings of Professional Misconduct

Inquiry 1: (‘Chisel’) – Conduct: Feb-Mar 1996

Allegation 1(a) – early release of dog from hospital care after surgery

Allegation 1(e) – omission of 13 particulars from the clinical record

Inquiry 2: (‘Gypsy’) – Conduct: Dec 1995-Jan 1996

Allegation 1(a) – failure to record initial telephone consultation – 26 December

Allegation 1(b) – supply of Schedule 4 poison without instructions

Allegation 1(c) – failure to observe legislation relating to handling restricted drugs

Allegation 1(d) – failure to make detailed record of consultation on 30 December

Allegation 1(e) – failure to carry out professional procedures:

· supply of drug without examination and without having previously used drug

Allegation 1(f) – supply of substance not correctly labelled, 30 December

Allegation 1(g) – failure to keep detailed record on 6 January

Allegation 1(h) – failure to keep detailed record on 8 January

Allegation 1(i) – failure to carry out professional procedures:

· instructing unqualified person to administer drug without examining horse, taking any steps other than talking to the horse’s owner to establish a diagnosis, without having previously used the drug other than in connection with this horse, not in any way supervising the injection of a Schedule 4 restricted drug

Allegation 1(k) – failure to ensure detailed record of 9 January to 12 January

Allegation 1(l) – as varied by Appeal Panel – failure to deal with possibilities other than giardia in initial consultations

Inquiry 3: (‘Remus’) – Conduct: Feb-Mar 1997

Allegation 1(a) – failure to carry out professional procedures:

· failure to establish diagnosis

· not record length of time of suffering

· failure to discuss options

· failure to take actions

· failure to warn

· failure to offer options

· failure to make sufficient records

Allegation 1(b) – failure to make sufficient notes

Finding of Unacceptable Professional Conduct

Inquiry 3: (‘Remus’) – Conduct: Oct-Nov 1997

Allegation 2 – failure to conduct yourself in accordance with professional standards:

· threat to refer unpaid account of complainant to the Credit Reference Bureau

8 A fuller account of the findings is found in the Appendix.

The Hearing

9 Following the giving of directions in February 2003 and the filing of submissions and relevant evidence by the Committee and Dr Lloyd, the hearing was held on 1 June 2004. Directions were given to the Committee and Dr Lloyd for the filing of additional material, and that was completed by 23 June 2004.

10 As a consequence, the parties have placed before the Panel the following body of material:

(a) A statement of the Findings as Remitted prepared by the Panel, a 14 page document, together with reply from Hermann & Green, solicitors for the practitioner, dated 25 March 2004, which qualifies the statement as to one matter, which qualification is accepted by the Panel (i.e. the finding on Allegation 2 in the Remus inquiry was reduced by the Appeal Panel to one of unacceptable professional conduct). The Appendix is that document, incorporating the change noted.

(b) Material filed on behalf of the practitioner:

· Statement of Dr R G Lloyd, the practitioner, dated 5 May 2004 (Exhibit C)

· Statement of Dr R J Driver, a veterinary surgeon and former mentor of Dr Lloyd pursuant to an earlier disciplinary order, dated 15 March 2004 (Exhibit D)

· Statement of Neil A Cooper, a veterinary surgeon, dated 29 March 2004 (Exhibit E)

· Statement of Eric Chan, animal exporter

· Statement of Lisa Wright, client

· Submissions as to matters raised at hearing, especially in respect of comments made at hearing on 1 June 2004 by Dr Driver, filed 22 June 2004 following a direction of the Panel

· Curriculum vitae of Dr Lloyd filed 23 June 2004, following a direction of the Panel

(c) Material filed on behalf of the Committee:

· Affidavit of the Secretary, Ms M Linkenbagh, filed 10 March 2004, setting out the disciplinary history of Dr Lloyd (Exhibit A)

· Further Affidavit filed 12 May 2004 containing details of two matters the subject of adverse disciplinary findings and orders (Exhibit B)

· Outline of Submissions as to Disciplinary Orders (Exhibit F).

Disciplinary History

11 The information provided to the Panel by the Committee in its affidavit filed in March 2004 revealed the following.

12 Dr Lloyd was registered as a veterinary surgeon on 7 March 1973. He has since been the subject of at least five disciplinary orders, all including findings of misconduct in a professional respect:

1. Dr Lloyd’s registration was suspended for 90 days commencing on 1 April 1974 following a finding that he was guilty of misconduct in a professional respect. No particulars provided by Committee.

2. On 17 December 1988 Dr Lloyd was reprimanded and ordered to pay $50 costs following a finding by the Veterinary Surgeons Board that he was guilty of misconduct in a professional respect and unsatisfactory conduct committed on 17 December 1988. No particulars provided by Committee.

3. On 29 August 1989 Dr Lloyd was reprimanded and ordered to pay $50 costs following a finding by the Board that he was guilty of unsatisfactory conduct committed on 6 and 7 January 1989. No particulars provided by Committee.

4. On 16 December 1994 the Veterinary Surgeons Disciplinary Tribunal found Dr Lloyd guilty of misconduct in a professional respect committed on 7 April 1992 and the Tribunal reprimanded him and placed conditions on his registration. The conditions required supervision by an inspector for six months, acceptance of the advice of a mentor, attending the 1995 lecture series at the Sydney University Post Graduate Foundation, and payment of $15,000 costs. Reasons for determination provided by the Committee following request by Panel (Ex B).

5. On 8 August 2002 the Committee exercising its powers under s 28 of the Act cautioned Dr Lloyd and ordered him to pay $1800 costs following a finding that he was guilty of misconduct in a professional respect committed on 2-3 April 2001. Particulars of this determination provided following request by Panel (Ex B).

13 The 1994 Inquiry: This inquiry related to Dr Lloyd’s treatment of a cat, ‘Min Mae’. The following is a summary of the allegations made, Dr Lloyd’s response, and the Tribunal’s findings:

(i) That he failed to provide any or any proper supportive management to the cat whilst it was debilitated and with a subnormal body temperature post washing with Malathion.

Denied, Found proven. Found misconduct in a professional respect.

(ii) That he left the cat unattended almost four hours in a five hour period at the surgery while it was still damp.

Denied, Found proven. Found misconduct in a professional respect.

(iii) That he discharged the cat from care while it was in a critical condition.

Denied, Found proven. Found misconduct in a professional respect.

(iv) That he administered an inappropriate veterinary chemical, Tiguvon, to the cat which chemical was not registered for use on a cat under the Stock Medicines Act 1989.

Facts not disputed, professional misconduct denied, Found proven. Found misconduct in a professional respect.

(v) That he dispensed the veterinary chemical Tiguvon on the cat from an unlabelled container in breach of the Stock Medicines Act 1989.

Facts not disputed, professional misconduct denied, Found proven. Found misconduct in a professional respect.

(vi) That he failed to complete any, or proper record at the time of and in respect of each veterinary treatment and consultation in relation to the treatment of the cat.

Particulars found proven in light of practitioner’s admissions. His explanation that the records had been lost in a theft accepted. Misconduct in a professional respect found not proven.

(vii) That he did prescribe and/or administer to the cat two organo-phosphates being Malathion and Tiguvon within a 24 hour period on the same date. Found misconduct in a professional respect.

14 In its reasons the Tribunal (Judge B Wall QC, Professor C Bellenger, Dr W Howey) referred to the circumstances of the earlier reprimands. It stated that on two occasions in the past he had been reprimanded by the Committee for failing to keep proper and adequate records in relation to his clinical management of patients and that on another occasion the Investigating Committee had found proven a complaint of misconduct in relation to his incompetent clinical management in 1992 of a dog known as Rocky (this matter is not recorded in the disciplinary history provided by the Committee).

15 The Tribunal continued:

‘These antecedents require the Tribunal to consider whether an appropriate protection order should be suspension or de-registration. The proved misconduct demonstrates that the practitioner failed in a number of serious respects to act in accordance with the standards of clinical practice required of veterinary surgeons. This failure was the result of the practitioner lacking a proper understanding and recognition of his professional responsibilities. In his favour the Tribunal accepts that the practitioner was not guilty of any deliberate act to cause harm and injury to his patient. It accepts that a period of suspension would cause serious financial problems for the practitioner. However, every order for removal or suspension of a professional person necessarily involves a serious financial consequence. The Tribunal has also taken into account comments made in written statements made by senior veterinarians willing to assist the practitioner in a counselling and mentor role. It is clear from this material that the practitioner now has an understanding and insight in relation to his proved misconduct and is prepared to accept counselling and supervision of his clinical practice to ensure that his future clinical practice will be in accordance with the high standards expected of veterinary surgeons.’

16 The Tribunal issued a reprimand; and imposed the following conditions on Dr Lloyd’s registration:

1. Supervision of the practitioner’s clinical practice by an inspector appointed by the Board for the period 1 January to 30 June 1995. Various further conditions as to inspection of professional records of the practice including clinical records.

2. A mentor to be appointed to counsel and advise the practitioner in his clinical practice. Procedure for identifying mentor set out.

3. The approved mentor to perform role for 6 months commencing not later than 15 March 1995. Further conditions as to frequency and nature of interaction between practitioner and mentor.

4. The approved mentor to report to the Board monthly, including as to any problems or concerns that might arise.

5. Practitioner required to attend a 1995 lecture series of two to five days conducted by the University of Sydney veterinary post-graduate program. Board to nominate the series.

6. Practitioner to be notified of the findings of the Tribunal and its orders, and to acknowledge that he read and understands his obligations thereunder.

7. Approved mentor to be supplied with these findings and orders.

17 The 2002 Inquiry: The 2002 report of the Committee found proven several particulars of a complaint from an owner made after the death of their dog, ‘Penny’. Dr Lloyd discharged the dog after a desexing operation. She showed breathing difficulties that night. The owners returned her to the hospital the next morning. She died at the hospital on 3 April 2001 (28 hours later).

18 The Committee stated that it could not find evidence that an intubation procedure was used during the surgery. The Committee stated:

‘Anaesthesia was induced using a short acting barbiturate anaesthesia ... The Committee is of the opinion that intubation reduces the chances of aspiration and increases the opportunity to notice vomitus when the tube is removed, although inhalation remains a possibility. The Committee is of the opinion that failure to intubate is below current standards of veterinary science and is satisfied of the truth of the complaint in that regard.’

19 The Committee then referred to Dr Lloyd’s post mortem report. One of his conclusions was that there was evidence of a previous traumatic event which had ruptured the gall bladder.

20 The Committee stated that:

‘[I]t cannot be satisfied that there is evidence of rupture of the gall bladder. There is on the other hand evidence that Penny vomited post-operatively and the Committee is of the opinion that the likely cause of death was aspiration pneumonia. The Committee is also of the opinion that Dr Lloyd failed to adequately recognise that possibility on 2 April 2001 before he discharged Penny into the care of the owner and it notes that no radiographs were taken after the vomiting was observed. The Committee is satisfied of the truth of the complaint in that regard.

The Committee prefers the evidence of Mrs Stone that she was not offered the option of leaving Penny in hospital overnight and that she would have done so had Dr Lloyd fully informed her of the possibility of complications occurring. Her inability to contact Dr Lloyd overnight because his mobile telephone was switched off is a further indicator that he was not mindful of the possibility of her needing to contact him.’

21 The decision of the Committee was that a ‘s 28(3) letter’ be sent to Dr Lloyd, i.e. a letter requiring him to show cause why the matter should not be referred to the Tribunal or otherwise dealt with by the Committee. On 13 August 2002 the Committee advised that it had decided to confirm the findings, and ordered that he be cautioned. There was also an order that he pay the costs of the investigation.

22 Dr Lloyd continues to question the conclusion of the Committee. In his statement filed in these proceedings he states:

‘Whilst I have accepted the directive and invariably intubate a female canine for desexing since that decision, I regard the issue as unclear.’

23 We agree with the submission of Mr Wade, who appeared for the Committee at the hearing, that the Tribunal should have some concern as to whether Dr Lloyd accepts that intubation is the current acceptable professional standard in cases of this kind.

24 We also agree with Mr Wade’s submission that there was an issue in that complaint regarding the clarity of Dr Lloyd’s professional communication with his client; and that problem is also reflected in the findings (as remitted) in the Gypsy and Remus cases. We agree with Mr Wade that there must be concern over whether Dr Lloyd’s professional communication with his clients is of an adequate standard.

25 More generally, it is apparent from Dr Lloyd’s disciplinary history that he has repeatedly been found guilty of failures to adhere to appropriate standards in relation to professional procedures, appropriate standards in relation to the keeping of clinical records and appropriate standards in relation to the supply of substances, drugs and Schedule 4 poisons.

26 His disciplinary record organised under four themes is set out below. The themes are: professional procedures; clinical records; supply of substances, drugs and Schedule 4 poisons; and personal conduct. The year date shown refers to the time of the conduct, as distinct from the date of the finding.

Professional Procedures

Failure to provide any or any proper supportive management to the cat whilst it was debilitated and with a subnormal body temperature post washing with Malathion: Min Mae 1992, Finding (i)

Left cat unattended almost four hours in a five hour period at the surgery while it was still damp: Min Mae 1992, Finding (ii)

Discharged the cat from care while it was in a critical condition:

Min Mae 1992, Finding (iii)

That he did prescribe and/or administer to the cat two organo-phosphates being Malathion and Tiguvon within a 24 hour period on the same date: Min Mae 1992, Finding (vi)

[Incompetent clinical management: Rocky, 1992 (This matter noted in the Min Mae decision). As this matter was not included in the disciplinary history tendered by the Committee, we have not given it any weight.]

Failure to carry out professional procedures:

· supply of drug without examination and without having previously used drug: Gypsy 1995-6, Finding 1(e)

Failure to carry out professional procedures:

· instructing unqualified person to administer drug without examining horse, taking any steps other than talking to the horse’s owner to establish a diagnosis, without having previously used the drug other than in connection with this horse, not in any way supervising the injection of a Schedule 4 restricted drug: Gypsy 1995-6, Finding 1(i)

Failure to deal with possibilities other than giardia in initial consultations: Gypsy 1995-6, Finding 1(l)

Failure to carry out professional procedures as follows: Remus 1997, Finding 1(a)

1. failure to establish diagnosis

2. not record length of time of suffering

3. failure to discuss options

4. failure to take actions

5. failure to warn

6. failure to offer options

7. failure to make sufficient records

Early release of dog from hospital care after surgery: Chisel 1996, Finding 1(a)

Failure to intubate female dog undergoing desexing procedure: Penny 2001

Failure to adequately recognise the possibility of aspiration pneumonia before discharging dog into the care of the owner and failure to take radiographs after the vomiting was observed: Penny 2001

Failure to fully inform owner of possibility of complications and to offer owner the option of leaving dog in hospital overnight: Penny 2001

Failure to be mindful of the possibility that the owner might need to contact him overnight (mobile phone switched off): Penny 2001

Clinical Records

Failure to keep proper and adequate records in relation to his clinical management of patients (noted in 1994 decision in Min Mae case as findings in two earlier matters that had given rise to reprimands)

Omission of 13 particulars from the clinical record: Chisel 1996, Finding 1(e)

Failure to record initial telephone consultation: Gypsy 1995-6, Finding 1(a)

Failure to make detailed record of consultation on 30 December: Gypsy 1995-6, Finding 1(d)

Failure to keep detailed record on 6 January: Gypsy 1995-6, Finding 1(g)

Failure to keep detailed record on 8 January: Gypsy 1995-6, Finding 1(h)

Failure to ensure detailed record of 9 January to 12 January: Gypsy 1995-6, Finding 1(k)

Failure to make sufficient notes: Remus 1997, Finding 1(b) and 1(a) point 7

Supply of Substances, Drugs and Schedule 4 Poisons

Administered an inappropriate veterinary chemical, Tiguvon, to the cat which chemical was not registered for use on a cat under the Stock Medicines Act 1989: Min Mae 1992, Finding (iv)

Dispensed the veterinary chemical Tiguvon on the cat from an unlabelled container in breach of the Stock Medicines Act 1989: Min Mae 1992, Finding (v)

Supply of Schedule 4 poison without instructions: Gypsy 1995-6, Finding 1(b)

Failure to observe legislation relating to handling restricted drugs: Gypsy 1995-6, Finding 1(c)

Supply of substance not correctly labelled, 30 December: Gypsy 1995-6, Finding 1(f)

Personal Conduct

Failure to conduct yourself in accordance with professional standards

· threat to refer unpaid account of complainant to the Credit Reference Bureau: Remus 1997, Finding 2.

27 The purpose of disciplinary orders is protective. In the case of veterinary surgeons the public interest is that of the protection of the welfare of animals. While there is a public interest in the skills and experience of professional practitioners being available to the community, that must be set against the higher public interest in protection from practitioners who breach fundamental professional standards or, though the breaches may not in any one instance be fundamental, show disregard for professional standards by repeatedly breaching them.

28 On any view Dr Lloyd’s disciplinary history is lamentable. Many of the breaches of professional standards revealed by his history are ones of great seriousness.

29 Committee’s Submissions: In response to the findings in this case and Dr Lloyd’s wider disciplinary history, the Committee, through Mr Wade, recommended that there be a reprimand administered with no incursion on Dr Lloyd’s right to continue in practice. Instead it proposed that a regime should be imposed on Dr Lloyd of an educative and inspectorial kind.

30 One condition proposed was that Dr Lloyd be required to submit to audits of his veterinary practice to be conducted by another independent registered veterinary surgeon. Another was that he be required to submit to Dr David Evans, or if he is unavailable another Board member nominated by the Board, an essay about the professional obligations of veterinary surgeons in relation to drugs and stock medicines.

31 These conditions represent minor variations on the approach adopted in 1994; and are less arduous.

32 The Panel indicated in the course of submissions that it was not comfortable with the course proposed by the Committee (and to which Dr Lloyd had indicated his agreement).

33 For the Committee, Mr Wade stated that if Dr Lloyd were to come back before this Tribunal again and show that he is incapable of reformation sufficient to avoid similar findings, ‘the question might be quite different then’, i.e. suspension or disqualification. In our view that was the point that the distinguished Tribunal of 1994 had reached. It clearly gave Dr Lloyd one last chance. In our view Dr Lloyd not only wasted that chance, but a little over a year after that disciplinary order was handed down and only weeks after the mentoring program had concluded he engaged in further serious misconduct (the findings in the Gypsy case). 34 The Panel gave Dr Lloyd the opportunity to make further written submissions on the question of the appropriate order, including the possibilities of deregistration, suspension and restrictions on his registration which might require him to work as an employee veterinarian.

35 Dr Lloyd’s solicitor filed the submissions on 23 June 2004.

36 First of all, it was submitted that the following matters should be taken into account.

37 Dr Lloyd, it was submitted, had an ‘unblemished’ period of practice after the suspension in 1974, for a period of 13 years until 1987. The adverse findings made in 1988 (misconduct in a professional respect) and 1989 (unsatisfactory conduct) should be seen as at the less serious end of the scale, for the reason that the first was a matter dealt with at Committee level and the second was not a finding of professional misconduct.

38 As to the present findings it is submitted that most of the findings ‘relate to failure of administrative matters which are capable of administrative resolution’. It is said that ‘the findings do not involve any aspect of fraud or common law misconduct’.

39 The submission referred to the enormous expense that Dr Lloyd has been put to by these proceedings. The unusual and protracted nature of these proceedings, it was submitted, is a matter that should be taken into account, and be seen as having served a deterrent function.

40 The submission stated that this was not a case of the most serious kind warranting an order of deregistration. As to the possibility of suspension, the submission was that any such order should only operate for a short time, if at all, while new procedures are put in place and training courses attended. The submission questioned any restriction on Dr Lloyd’s right to practise which might require him to work with another practitioner. It was submitted that many employers would be reluctant to take on a person who was certain to be the subject of regular audits and inspections. It was submitted that an order of this nature would be tantamount in practice to striking his name from the roll. Alternatively, it was submitted that:

‘In the event that the Tribunal considers it necessary that he work closely with another vet, it is submitted the better order is that Dr Lloyd be required for a short time to employ on a part time basis the services of another vet wherein the employed vet gets the benefit of Dr Lloyd’s 30 years of experience and Dr Lloyd receives the advantages of another veterinary surgeon’s input into his practice.’

Assessment

41 By the time of the 1994 orders Dr Lloyd had been in practice for over 20 years, and had already been the subject of one suspension and two reprimands.

42 As the passages already cited reveal, the 1994 Tribunal decided nonetheless not to deregister Dr Lloyd or suspend him, and expressed hope that the course it proposed would result in an improvement of his standards. Dr Lloyd, however, continued to misconduct himself during late 1995 and early in 1996 (in the Gypsy and Chisel cases) and in early 1997 and, to a lesser degree, in late 1997 (in the Remus case). He again misconducted himself in 2001 while this Panel’s proceedings were part-heard.

43 The orders of 1994 proved not to be effective in preventing a recurrence of misconduct.

44 In the case of a practitioner of Dr Lloyd’s experience and years in the profession, we do not see the public’s interest in competent and attentive veterinary practice being served by requiring Dr Lloyd to submit to such minor constraints as those proposed by the Committee (regular audits and the writing of an essay on stock medicines). This might be an appropriate course for dealing with the first transgressions of a practitioner (provided they were not fundamental), especially a new practitioner.

45 It is plain, we consider, that a stricter order than that jointly proposed by the Committee and Dr Lloyd is now needed.

46 Dr Lloyd’s record is one that suggests an indifference to standards that he sees as merely regulatory in nature, such as those governing the keeping of clinical records and the provision of substances, drugs and medicines. The record also suggests an indifference to the need for effective communication with owners. We are not convinced that the procedures and protocols that he now has in place reflect a reversal of that underlying attitude.

47 His repeated breach of standards over so many years suggests a general indifference to standards with which he does not agree.

48 Dr Lloyd’s conduct can, we consider, only properly be dealt with by an order that removes him from practice. The only question that has troubled us is whether he should be deregistered or, instead, suspended for a substantial period, and if suspended what constraints should be placed on him for the future.

49 The transgressions reflected in the findings of our inquiries, and those the subject of adverse findings by the 1994 Tribunal and 2002 Committee inquiry go to the most basic aspects of practice.

50 We accept the evidence provided by the inspector’s report filed in these proceedings that Dr Lloyd now has computerised recordkeeping arrangements that have enabled him to be more careful and methodical in the keeping of clinical records. But this will not necessarily provide a solution to many of the problems he has been found to have with recordkeeping. In a number of instances, the problems flow from failures of professional judgment as to what needs to be checked when attending upon a distressed animal, and what then needs to be recorded. We have noted those in the above table under the heading of ‘failures in professional procedures’. Clearly omissions deriving from incompetence of that kind can not be cured by the implementation of modern recordkeeping systems.

51 The most significant transgressions are those relating to clinical matters and related matters. These are not addressed in any detail by Dr Lloyd’s submissions. A review of the findings in cases that belong to the 1992-2001 period – Min Mae, Chisel, Gypsy, Remus and Penny – show patterns in Dr Lloyd’s incompetence, for instance:

Failures related to diagnosis:

· Failure to deal with possibilities other than giardia in initial consultations: Gypsy, Finding 1(l)

· Failure to establish diagnosis: Remus 1997

· Failure to adequately recognise the possibility of aspiration pneumonia before discharging dog into the care of the owner and failure to take radiographs after the vomiting was observed: Penny 2001

Clinical failures:

· Failure to provide any or any proper supportive management to the cat whilst it was debilitated and with a subnormal body temperature post washing with Malathion: Min Mae 1992, Finding (i)

· Failure to intubate female dog undergoing desexing procedure: Penny 2001

Premature discharge of animal after surgery or from hospital:

· Min Mae 1992, Finding (iii)

· Early release of dog from hospital care after surgery: Chisel 1996, Finding 1(a)

Incompetent medication:

· Prescribing and/or administer to the cat two organo-phosphates being Malathion and Tiguvon within a 24 hour period on the same date: Min Mae 1992, Finding (vi)

· Supply of drug without examination and without having previously used drug: Gypsy 1995-6, Finding 1(e)

· Instructing unqualified person to administer drug without examining horse, taking any steps other than talking to the horse’s owner to establish a diagnosis, without having previously used the drug other than in connection with this horse, not in any way supervising the injection of a Schedule 4 restricted drug: Gypsy 1995-6, Finding 1(i)

Advice to Owners:

· Failure to warn, failure to offer options: Remus 1997

· Failure to fully inform owner of possibility of complications and to offer owner the option of leaving dog in hospital overnight: Penny 2001

Unavailability:

· non attendance on animal post surgery: Min Mae 1992, Finding (ii)

· non availability for telephone contact by owner to whom animal had been discharged: Penny 2001

52 There is in our view a real question as to Dr Lloyd’s present fitness to continue in practice.

53 Had the disciplinary proceedings been disposed of in the time originally estimated by both parties (ten hearing days), the Panel would probably have been in the course of making any disciplinary order in late 1999 or early 2000. If the disciplinary order had been in terms of the findings as they now stand, there would, we consider, have been a very real likelihood that Dr Lloyd would have been the subject of an order for deregistration. It is now many years later than that.

54 In considering present fitness to continue in practice regard must be had to Dr Lloyd’s record since the date of the adverse findings, and weight given to an unblemished record in that time: see Burton v Anderson (NSWCA, CA 40030/92, 28 October 1994). Had there been no adverse findings in relation to his conduct since 1997 that factor would have stood in his favour. But there is now the Penny case in which the matters that were the subject of adverse findings involved, as our summary above indicates, the repetition of previously-identified forms of misconduct.

55 We are not satisfied that Dr Lloyd is presently fit to continue in practice on an unrestricted basis. His conduct also calls for a sanction that will operate as a deterrent and reflect the seriousness of the transgressions of which he has been found guilty.

56 In our view a fundamental contributor to Dr Lloyd’s continued misconduct is the fact that he practises on his own and has done so for many years. In our view he is isolated to a significant degree from interaction with practitioners of competence.

57 The evidence given at hearing by Dr Driver, who has retained a close personal and professional connection with Dr Lloyd over the years, was, the Panel considers, helpful.

58 Back in 1995 Dr Driver expressed the view after mentoring Dr Lloyd pursuant to the 1994 order that there was a likelihood that Dr Lloyd would be the subject of further complaint. This opinion is recorded in the Minutes of the Board for 6 November 1995 which state:

‘The Board wished to seek Dr Driver’s comments on the mentor program. Dr Driver stated that Dr Lloyd was a willing co-operative in the program and the program had achieved the objective to help Dr Lloyd in the professional sphere but would not achieve a change in his behaviour, which could led to situations of further complaints. Dr Driver felt that Dr Lloyd’s behaviour was dictated by personal and business problems which are beyond the scope of the mentor program and would require professional counselling.’

59 At hearing on 1 June 2004, Dr Driver painted a picture of a practitioner who worked in isolation and away from professional influences that might have guarded against inadequate conduct. He also painted a picture of a practitioner who, at least during the 1990’s, was beset by personal problems (marriage break-up) and consequent financial problems (leading to the need to dispose of several practices that he then owned) which had contributed to poor professional performance.

60 In his statement filed 5 May 2004, Dr Lloyd refers to having been under severe financial pressure in the years 1988 to 1997. He referred to a substantial investment in a hotel, the high interest rates of the early 1990s and having got heavily into debt. He blames these factors for the breakdown of his first marriage (there were three children). He referred in some detail to financial claims made by his wife. He said that he been running three practices at the time (Hoxton Park, St Marys and Gill Avenue). His only practice now is Gill Avenue. He expressed regret for the inadequacy of his recordkeeping at the time of the matters the subject of these inquiries (1995 to 1997). He states that he now fully complies with all labelling requirements, that he has fully computerised his practice and properly trained his staff. He says he now gives his clients all options for treatment of their animals ‘including the most expensive’. He states that he now refuses to treat animals that he has not seen.

61 At paras [23-25] of his statement he refers to the Penny case. We agree with Mr Wade, as previously noted, that Dr Lloyd still does not accept fully the outcome of that inquiry.

62 At hearing Dr Driver was questioned about the distinction that he had drawn when reporting back to the Board in 1995 as between Dr Lloyd’s professional and personal behaviour. Dr Driver said as to Dr Lloyd’s personal behaviour: ‘It is his personal behaviour in his approach to various aspects of his professional life, which I can’t change’ (ts 81: 47-49). He said that Dr Lloyd had ‘poor conflict resolution skills’ (ts 82:32). He said that this manifests itself in ‘the type of staff that he hires; how they dress; what they call him; how they refer to him; how they answer the phone. With clients: changing attitudes to how he speaks to them; how he refers to giving them quotes; how he should refer to the animal as the animal’s name, and not just ‘the dog’, or ‘the cat’.’ (ts 83). Dr Driver went on to say that Dr Lloyd is ‘not a team player, but he’s more aware [now] that he has to communicate within the profession’ (ts 89: 34-35). Dr Driver suggested that it might be possible to change Dr Lloyd’s professional behaviour but not his ‘personality and attitude’ (ts 96:19). Dr Driver said Dr Lloyd’s interpersonal style can be ‘an initiating cause of bad behaviour or bad decisions’ (ts 96: 44-46). He continued: "I’m saying he has a personality which no matter what mentor – whatever a colleague can do as a mentor should not be responsible for that part of his character" (ts 96-97: 51-52).

63 Dr Lloyd was given an opportunity to respond to these comments by Dr Driver. He did so by way of the statement filed 23 June 2004. The submission was that Dr Driver’s comments should be seen as no more than ones going to what in a doctor might be called his or her ‘bedside manner’. We do not think that this is all that is being suggested by Dr Driver. As we interpreted Dr Driver’s comments, he was seeking to explain, in a diplomatic way, the way in which personal attributes can manifest themselves in the performance of professional work and, importantly, in professional outcomes.

64 His solicitor’s submissions drew attention to comments made by Dr Driver in the course of giving evidence in the Chisel case on 24 March 1999. On that occasion Dr Driver gave evidence in regard to his role as mentor under the orders made in 1994 (ts 467 ff). We have reviewed that evidence.

65 Dr Driver said that Dr Lloyd did work at prices less than other veterinarians would charge. He acknowledged that did not mean that the service offered could therefore fall below accepted standards of competence. Dr Lloyd’s solicitor drew attention to Dr Driver’s observations to support the view that there was a value to society in retaining the services of a low-cost veterinarian. In support of the view that Dr Lloyd had dealt with the problems identified by the findings, the submission also noted Dr Driver’s evidence then that Dr Lloyd was at that time in the course of upgrading his record system, to make it fully computerised. In further questioning from the Panel on that occasion Dr Driver said of Dr Lloyd: ‘I don’t think he is very good at conflict resolution’, a view consistent with remarks Dr Driver made in these proceedings.

66 One of the themes of Dr Lloyd’s defence in all of the inquiries was that he was a veterinarian working in a lower income socio-economic area, and that affected the treatment options that he offered. We have in the course of the various decisions already delivered indicated our dissatisfaction with this as a basis for justifying treatment that is not based on adequate examination or the consideration of alternative diagnoses. We have also expressed our concerns that such a blanket view of owners’ means may impact on the offering of a range of possible diagnoses or a range of treatment options.

Conclusions

67 We consider that a severe order is required for the protection of the public. While the findings in this case might not, in isolation, justify consideration of deregistration, when put in the context of his entire disciplinary record they do. We have decided not to go that far.

68 However we do consider that a significant period of suspension should be imposed and strict controls should be placed on his re-entry to practice. We do not think that Dr Lloyd should be permitted to practise alone for some time to come. We have had regard to the submission that the course we propose is ‘tantamount’ to deregistration. It does not go that far. While it may be difficult for a practitioner of Dr Lloyd’s age (in his 50s) to obtain employment, the community’s interest in competent practice is the interest which disciplinary orders seek to uphold. In our view it is essential that Dr Lloyd be required on resumption from suspension to work in a relevant collegiate environment, and in that way acquaint himself more closely with current standards of practice.

As to the Findings of Professional Misconduct

69 In our view the appropriate course is to order that Dr Lloyd be suspended from practice for 9 months commencing on a date specified by the Veterinary Surgeons Board, being not later than 1 January 2005.

70 After serving the period of suspension, Dr Lloyd is not to be permitted to return to practice as a sole practitioner until he has spent a significant period working as an employed veterinary surgeon. At the end of that period the Board is to make a decision as to whether this condition on his registration should be lifted. Dr Lloyd should be required to work for at least 15 months in a practice where there is at least two other practitioners, and the Board should then decide whether it is appropriate for him to resume sole practice, if that is his wish. He should also be required to undertake continuing professional education in programs designated by the Board of ten days per annum over the period of his suspension and the period of supervised employment.

71 In our view the minimum length of the period of supervised employment should be 15 months.

72 He should be permitted to return to practise as a sole practitioner after that time if the Veterinary Surgeons Board so approves after having had regard to such matters as it thinks fit, including a report from the approved employing veterinary surgeon.

As to the Finding of Unacceptable Professional Conduct

73 This is a separate matter, and relates to Dr Lloyd’s action in threatening to report a complainant, who had not paid his fee, as a defaulter with a credit reference bureau. As to this matter a reprimand is a sufficient sanction.

Costs of the Proceedings

74 The parties in their submissions indicated that there was agreement as to the costs to be paid by Dr Lloyd. The Tribunal’s order will be to that effect.

ORDERS

The Veterinary Disciplinary Panel orders pursuant to s 32 of the Veterinary Surgeons Act 1986 that:

- As to the findings of guilt of professional misconduct:

1. Dr Ronald George Lloyd be suspended from practice for 9 months commencing on a date specified by the Veterinary Surgeons Board, being a date not later than 1 January 2005.

2. The following conditions to be imposed on Dr Lloyd’s registration as a veterinary surgeon:

(i) That he only be permitted to practise as an employee of a veterinary surgeon approved by the Board in a practice where there is at least two veterinary surgeons (other than Dr Lloyd) practising on a full-time basis. (The employer if full-time may be counted for this purpose.) This condition is to remain in force for not less than 15 months after his return to practice.

(ii) That he only be permitted to return to practice as a sole practitioner if the Veterinary Surgeons Board so approves after having had regard to such matters as it thinks fit, including a report from the approved employing veterinary surgeon.

(iii) That he be required to undertake continuing professional education in programs designated by the Board of ten days per annum over the period of his suspension and the period of supervised employment.

- As to the finding of guilt of unacceptable professional conduct:

3. Dr Lloyd be reprimanded.

- and further orders that:

4. Dr Lloyd pay the costs of the Veterinary Surgeons Investigating Committee as agreed.

As required by the Act, the Registrar of the Tribunal is to advise the Registrar of the Board of these orders within 21 days of the date of their publication.