Set aside by Appeal : Set aside by appeal in part on 13/10/2003 CITATION: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: Gypsy - Findings) [2003] NSWADT 96 DIVISION: General Division APPLICANT PARTIES: Veterinary Surgeons Investigating Committee RESPONDENT Ronald George Lloyd FILE NUMBER: 40005 of 1998 HEARING DATES: 23/03/1999 - 26/03/1999, 23/11/1999 - 26/11/1999, 21/02/2000, 13/12/2000, 03/10/2002, 22/10/2002, 29/11/2002 SUBMISSIONS CLOSED: 11/29/2002 DATE OF DECISION: 05/09/2003 BEFORE: O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member APPLICATION: Veterinary surgeon - misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect MATTER FOR DECISION: Principal matter Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 Medical Practitioners Act 1938 LEGISLATION CITED : Poisons Act 1966 Poisons and Therapeutic Goods Regulation 1994 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995 Veterinary Surgeons Investigating Committee -v- Ronald George Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95 Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: Total Eclipse: Findings) [2002] NSWADT 284 Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 CASES CITED: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283 Qidwai v Brown (1984) 1 NSWLR 100 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Re Lloyd (His Honour Judge Wall DCJ, Professor C Bellenger and Dr W Howey, unreported, 16 December 1994) Briginshaw v Briginshaw (1938) 60 CLR 336 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee (1966) 1 QB 1 Beaumont v Beesley [1973] 2 NSWLR 341 New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 APPLICANT S Burchett, barrister (to July 2002) REPRESENTATION: M Linkenbagh, Secretary to the Committee (since August 2002) RESPONDENT 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), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l), 1(m), 1(n) and 1(o); Allegations 2(a), 2(b) and 2(c), Allegation 3 and Allegation 4 ; 2. After determination of the other three Inquiries, this Inquiry is to be reconvened for determination of orders pursuant to section 32. 1 The Veterinary Surgeons Investigating Committee (the Committee) has referred to the Tribunal for inquiry a complaint against Dr Ronald George Lloyd (Dr Lloyd), a registered veterinary surgeon. The Committee must pursuant to s 28(1)(c) of the Veterinary Surgeons Act 1986 (the Act) make such a referral if it is satisfied that a prima facie case of misconduct in a professional respect has been made out in relation to the complaint and considers that it is sufficiently serious to warrant referral to the Tribunal. 2 The inquiry has been undertaken pursuant to Division 4 of Part 4 of the Act. (Unless otherwise noted, references in this decision to the Act are to the Act as in force at the time of the commencement of the inquiry.) 3 The original complaint was made by Ms Sharon Clee, the owner of a horse named 'Gypsy' (Gypsy) treated by Dr Lloyd. Ms Clee's complaint was made in writing on or about 9 February 1996. Her horse, 'Gypsy' had died on 12 January 1996 while under Dr Lloyd's care. The complaint related to Dr Lloyd's diagnosis, treatment and care of the horse, and his conduct subsequent to the death of the horse, in particular in the period from 12 January to 23 January 1996. The complaint referred to events that occurred between 26 December 1995 and 23 January 1996. 4 Dr Lloyd was given the opportunity to respond to the complaint in writing, which he did. The Committee then undertook a formal interview, which occurred on 19 August 1996. It decided to refer the complaint. The referral itself occurred on 8 April 1998, and the Chairperson, Veterinary Surgeons Disciplinary Tribunal issued the Notice of Inquiry. 5 The jurisdiction of the Veterinary Surgeons Disciplinary Tribunal was transferred to the Veterinary Disciplinary Panel of the Administrative Decisions Tribunal with its creation on 6 October 1998: Sched 4.3, Administrative Decisions Legislation Amendment Act 1997; Govt Gaz 143, 2 October 1998. 6 The Notice of Inquiry contains twenty allegations of misconduct in a professional respect against Dr Lloyd, each supported by detailed particulars. Allegation 1 is made up of fifteen charges, Allegation 2 is made up of 3 charges, Allegation 3 consists of one charge and Allegation 4 consists of one charge. Allegations 1, 3 and 4 refer to his conduct in his capacity as a registered veterinary surgeon. Allegation 2 refers to his capacity as a superintendent of a veterinary hospital. (The charges are described herein as Allegation 1(a), 1(b) and so on.) 7 The hearing of evidence commenced on 23 March 1999 and proceeded over several days broken by intervals, concluding on 13 December 2000. For reasons explained later, the Tribunal reconvened to conclude the inquiry in August 2002. 8 The Committee's case during 1999 and 2000 had been presented by Mr Burchett of counsel instructed by a firm of solicitors. The Secretary to the Committee at that time, Mr Michael Harcombe, a public servant, had been appointed the nominal complainant pursuant to s 29(6) of the Act. He had been excused from further involvement in the proceedings. 9 At the reconvened inquiry, the new Secretary to the Committee, Ms Maria Linkenbagh appeared and advised that she would be conducting the case henceforth. She informed the Tribunal that there had been a substantial change in the membership of the Committee as compared to its membership at the time of the investigation in 1996 and the referral in 1998. She said that only one of the members had any prior knowledge of the history of this matter. 10 Ms Linkenbagh has since made a number of submissions as to the jurisdiction and scope of the inquiry, the fairness of the charges and as to the evidence, most of which have been inconsistent with the way in which the case was previously conducted. They are dealt with in the body of these reasons. General Background 11 Four Inquiries: This is one of four complaints against Dr Lloyd that were referred to the Tribunal for inquiry during 1998. All were heard together in sequence, commencing in March 1999. The parties had agreed to this course prior to the commencement of the first inquiry, relating to the dog Chisel. The Tribunal accepted their request that all evidence in respect of the four complaints be considered before any determinations were made in respect of any of them; and any consideration was given to any further order (Transcript of Proceedings (ts) 15/3/99:3) 12 The four inquiries sat on 28 days to hear evidence (not counting time spent on other time involving hearings for directions, dealing with other motions, and further submissions and the further hearings in relation to reconstitution, final submissions and other issues late in 2002) spread initially 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 (Inquiry No 1, Matter No. 40004 of 1998). Findings have been made in relation to all allegations: Veterinary Surgeons Investigating Committee -v- Ronald George Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95 + 'Gypsy', the present matter: 23, 24, 25, 26 March 1999; 23, 24, 25, 26, 29 November 1999; 13 December 2000 (Inquiry No 2, 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 (Inquiry No 3, Matter No. 40015 of 1998). Findings have been made in relation to certain allegations: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 + 'Total Eclipse', a cat owned by Ms Kim Koroknay: 7, 8 June 2000; 13, 14, 15 November 2000 (Inquiry No 4, Matter No. 40016 of 1998). Findings have been made in relation to certain allegations: see Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: Total Eclipse: Findings) [2002] NSWADT 284 (31 December 2002). 13 Prior to the all inquiries being completed, it was necessary to reconstitute the Tribunal. The completion of the inquiry was delayed pending the determination of appeals to the Appeal Panel and the Court of Appeal against the reconstitution of the Tribunal. The outcome of the appeals is dealt with later in these reasons. 14 Complaints Procedure. The Veterinary Surgeons Board (the Board) maintains a register of veterinary surgeons. The Board also has power to license a person to conduct a veterinary hospital. A veterinary hospital must be managed by a superintendent who has been nominated in accordance with s 54 of the Act. The regulations may prescribe different classes of licences for different classes of veterinary hospitals (s 47). There are also provisions in the Act dealing with the practices in relation to animals that unregistered persons are permitted to perform (s 44).The Act confers responsibility for investigation of complaints on a separate statutory body, the Committee. 15 The Committee is (with limited exceptions) required by s 27 to investigate the complaint. When it has completed its investigation the Committee is required to make a decision as to what course of action it will adopt. As noted earlier, the course of action required by Option (c) in s 28(1) was chosen in this case. ' 28. Decision of Investigating Committee on complaint (1) The Investigating Committee: (a) may dismiss any complaint made to it, (b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following: (i) by order, caution or reprimand the veterinary surgeon, (ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon, (iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or (c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly. (2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct. (3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.' The Present Inquiry 16 This inquiry has been conducted by a Veterinary Disciplinary Panel of the General Division of the Administrative Decisions Tribunal (referred to herein as the Tribunal): Administrative Decisions Tribunal Act 1997 , Schedule 2, Part 4, Div 3, cl 7. Such a Panel must comprise a judicial member of the General Division of the Tribunal; a non-judicial member who is a veterinary surgeon and 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. 17 Reconstitution of Tribunal. The original Tribunal comprised the President; Dr Garth McGilvray, non-judicial member, a veterinary surgeon and member of the Board (currently the President); and 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 Tribunal by replacing Ms Dubow with a new member representing the interests of users of veterinary services, Ms Fiona Clark. 18 The Tribunal that included Ms Dubow heard the entirety of Inquiry 1 (Chisel) and the entirety of Inquiry 2 (the present matter). Ms Dubow's term expired when Inquiry 3 (Remus) was part heard. The new Tribunal heard the entirety of Inquiry 4 (Total Eclipse). 19 Section 79 of the Tribunal Act deals with the consequences of reconstitution. Ms Dubow's term expired when Inquiry 3 (Remus) was part heard. Dr Lloyd did not give the consent necessary for ss79(1) and (2) to be utilised. Accordingly it was necessary to deal with the future course of 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.' 20 The President gave directions as to how the reconstituted Tribunal was to proceed in relation to the three affected Inquiries, including the present one: see Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98. 21 There was an appeal against the directions on various grounds. 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). 22 The full Tribunal reconvened, and ruled (Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 (13 November 2002)) that Dr Lloyd'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. Closing submissions (which had not been presented pending the appeals) were heard on 29 November 2002. The Original Complaint 23 Ms Clee's complaint is set out below. We have retained the original spellings, type sizes, syntax and lettering: NAME: SHARON CLEE HORSE: GYPSY I AM WRITING THIS AS A WRITTEN REPORT OF TREATMENT GIVEN TO MY HORSE, THAT I AM NOT HAPPY WITH. AS A BACKGROUND TO MY HORSE - HE WAS QUIET TO HANDLE/VERY RESPONSIVE TO RIDE. HE WOULD USUALLY GALLOP UP FOR HIS FEED AND WOULD BUCK MADLY ABOUT WHEN I MOVED HIM INTO A NEW PADDOCK. HE WAS A CROSSBREED WITH A LITTLE ANDALUCIAN, HE WAS VERY HEAVILY BUILT, HAD A CREST. I WAS OFTEN STOPPED AND ASKED (EVEN BY HORSE PEOPLE, (WHEN'S THE FOAL DUE?) I HAD HIM FOR 10 YEARS AND WAS CONSTANTLY HAVING TO WATCH HIS WEIGHT EVEN WITH MINIMAL GRASSING DURING THE DROUGHT. SINCE I HAVE HAD HIM HE HAS NEVER FOUNDERED HAD COLIC OR A COLD. HE HAS HAD AN ETHMOID HAEMATOMA IN THE BACK OF HIS NOSTRAL WHICH WAS REMOVED AT SYDNEY UNI IN JUNE 1993 WHICH REACCURED IN DEC 1994 AND WAS AGAIN REMOVED - THEY SENT IT TO PATHOLOGY - I WAS TOLD IT WAS BENINE, IT WOULD NOT SPREAD, IT WOULD NOT KILL HIM, IT MAY REACCUR IN THE SAME SPOT. HE WAS NOT A VALUABLE HORSE, BUT A TOTALLY RELIABLE PLEASURE TO OWN. Since July 1995 I had Gypsy in a paddock in Prestons behind my Fiancees house. His neighbour kept his horse in the paddock beside mine, fenced off in between was a septic tank. In the first week of October we had very heavy rains, the septic tank overflowed into both paddocks, Gypsy had about an acre of which only a little was affected. I moved Gypsy to Punchbowl. The neighbours horse was in a small yard which was swamped. A view days later the neighbours horse started to get lose poo which steadily increased to diarrhoea, getting worse each week with him losing weight to a stage were the neighbour was about to put the horse down. As far as he knew the horse had picked up a bug from the septic. TUES 14TH NOVEMBER: I first noticed slight weight loss, thought it was due to lack of grass so I increased hand feeding. FRI 1ST DECEMBER: Noticed more weight loss. MON 11TH DECEMBER: Noticed losish poos. THU 14TH DECEMBER: Called a vet from Randwick Equine Centre. He inspected Gypsy - told me there was a large water content in the grass, so he was effectively eating a lot, but half of it was water. He advised me to increase hand feeding further. TUE 19TH DECEMBER: Recalled vet out - still losing weight - loser poos. Drinking a lot more (double). (Gypsy was very lively, eating and drinking eagerly). Diagnosis was he was fine - just increase feed. A week later his poos were the consistency of a runny cow pad. I thought I'd better get a second opinion. I spoke to neighbour, he put me on the Dr Ron Lloyd who was treating his horse for the same symtoms. I rang Ron Lloyd, asked him to come and see Gypsy - but as he knew the symtoms, we discussed treatment over the phone. By this time Gypsy has started to mess in his tail and down his legs. He is eating/drinking 3 times normal/but very lively/energetic. I enquired whether it could be a Gardiosis bug, that I had had previously which enabled me to eat heaps but continue to lose weight 60 > 48kg. I was told I picked it up from the horses originally, so maybe it happened in reverse. He thought this was possible and said he would have to find a similar horse medicine. I rang back later, he had found (Dimetridazole) but the book only referred to quantities for chickens he would have to work out a dose. I arranged to pick it up. He said he would try it on the neighbours horse as well. Although neighbours horse had gained some wieght and was now starting to recover. Gypsy seemed to be in 1 months delay and so in worse condition at this stage. He was thin all over EVENLY. SAT 30TH DECEMBER: I called in to collect medicine. He told me he would have to work out quantities. He poured (Dimetridazole) in another container and said to give about a quarter every second day. When I went to pay he said to give a quarter every day. ((Dimetridazole) - I've since found out is used on birds and pigs - No one (vets) have been able to provide any evidence of it being tested/or used on horses. BUT that it may UPSET matters. WED 3RD JANUARY: Gave 1st dose, stayed with him, as neighbour had told me it made his horse very groggy, and he went off is feed. I administered it as a paste to the back of the tongue. After about 10 mins he began to stagger sideways almost falling - 10 mins on and all he wanted to do was eat grass - 10 mins more - did a poo and seemed to start to recover. THU 4TH JANUARY: Gave 2nd dose. Same reaction. Poos more solid/eating/drinking less/(Normal quantity)/not lively. FRI 5TH JANUARY: Gave 3rd dose. Same reaction. Poos still more solid/eating/drinking less. No enthusiasum for food/not lively, started to lose weight more noticeably. SAT 6TH JANUARY: Did not give medicine - poos very normal drinking a lot less. He left some food! No enthusiasm for feed. Not lively. Still noticeably more weight loss. Saw Mr Lloyd at Surgery, told him how he was. He said not to give last dose. SUN 7TH JANUARY: Hardly has drunk. NOT EATING FEED. Seems hot to touch. I thought going off feed for 1 day OK as neighbours horse did the same. Dropped off a lot tucked in noticeably behind last rib, tucked up. MON 8TH JANUARY: NOT EATING FEED. Little water drunk, Very lose poos. He was laying down. Lost a lot more weight, noticeably more, than previous day, very tucked in. He is sunken in behind the last rib (the LENGTH of my hand). His top hip bones sticking up and his rump was hollow - his ribs still not excessive, his neck straight. Very distressed I rang Mr Lloyd. He sent someone out to administer injection, his temperature is 39.6. TUE 9TH JANUARY: Mr Lloyd told me to bring Gypsy to his Surgery at 15th Avenue Hoxton Park. Arranged time off work to take him out to Surgery. Mr Lloyd looked him over - touched his stomach area and said words to the effect - "How much do you want to spend - Given his age (20) and you have already spent money on him". He then looked in his mouth and found his gums were yellowish green, he said he was enemic. I asked if he had had a reaction to the medicine? He said he thought that their was something else wrong. I was very upset and enquired what he could do, I wanted him well. I asked if he could put him on a drip to try get something in him - he took his temperature 39ish but it was lower then yesterday. He told me he would drench him. WED 10TH JANUARY: Walked down and saw Gypsy in vets paddock. Found him standing on his lead rope. As far as anyone knew he was contagious, he was with other horses? There was about 5 inches of water in trough, we released him, he went straight for water. He swished his muzzle in it continuously, after about 10 mins I checked his mouth and found his gums bright red his tongue appeared to be swollen and red. Once released he started swishing his muzzle in the trough again. He had lost more weight. As we left he was still swishing. Later went back and saw Mr Lloyd. He said redness was due to twitch and drench! THUR 11TH JANUARY: Walked down to Gypsy - found him swishing musel in same amount of water. He had lost more weight was very tucked in, sunken in the rump I checked his mouth it was still red this time with little sares and cuts and ulsers. I walked back to the car to wait for the vet to arrive at this surgery. Still waiting I returned to the paddock I walked up to Gypsy, while patting him he laid down. He would never allow anyone near him while he was on the ground before. I waited some more, then later rang Mr Lloyd. He said he was OK, his mouth was due to the drench and that he had taken a drink from the waterhole outside of the paddock behind the vets surgery "but they had pulled him away quickly." FRI 12TH JANUARY: Went to see Gypsy - The vet was driving away, he stopped and informed us - Gypsy had died in his sleep that morning - he had also done an Autopsy! (Without our permission). He told us he had found tumor nodules in his stomach and his liver was gone! We wanted us to see the tumors - but also said he had kept a sample to show us. I was very distressed and said I did'nt wish to see him like that and that I would not know what I was looking at anyway. He said he would keep me the sample. He also offered to bury Gypsy. I enquired were and how (as I had smelt the dams and wondered whether it was the grave yard). He said he'd get a bob cat in and bury him in the paddock. TUE 16TH JANUARY: I rang the vet recosts - he said about $140, he also wanted to know if I wanted a horse, a thoroughbred - I could have it, he would tell me more about it later. THUR 18TH JANARY: I went to Mr Lloyd's Liverpool Surgery, re payment. I started to write a cheque out to Dr, his receptionist told me to make it out to R Lloyd. - The horse he had was a thoroughbred, he could sell it for $600, but I could have it. - ($140 - For three days board, twice daily treatment, medicine, bob cat hire, burial on sight, plus sending someone 30km out to administer treatment plus next days supply for me to give + a free horse - Bargain.) I asked for a sample it had just the other day been thrown out! I asked for the Autopsy report, (I wanted a written one?) He'd have to do one on letterhead, to whom it may concern. I asked if he'd been buried - he had. He offered to post out a rug I'd left out at Hoxton Park. I asked if the tumors were a deadly type - As I was told you can carry tumors but they may not be the cause of death. (How did he know?) (Did he have it tested?) It wasn't tested but he knew from sight - besides it would have cost another $150 for testing. (I would like to know where I stated that I didn't want to spend money on my horse!) I [was] then told me he would have the Autopsy report ready next week. MON 22ND JANUARY: 11 days later we were passing Mr Lloyd's Hoxton Park surgery, so we called in to see if the Autopsy report was ready. We waited for the vet to arrive at this Surgery. While we waited we decided to walk down and see the grave sight. We were half way down to the paddock walking between the two waterholes and I saw what I thought was a horse in the waterhole. It was on the edge, half in the water near side down, head shoulders submerged - offside hind leg tied to a tree on the bank. His leg raised exposing most of his belly/rib area. He did not seem very perised just dirty, I could make out his white markings on his neck, his very long mane - To my shock and horror it was Gypsy!!! After getting over the initial shock, I looked for signs of an autopsy opening on his stomach area! Non that I could see! Extremely angry, (to say the very least) by this stage I returned to the surgery the vet had not arrived, I asked the receptionist if he had left an Autopsy report. He had not, but she was quite frantic to ring him - we left. I tried to contact the vet all eveing. I slept about 2 hours that night. TUE 23 JANUARY: I arranged for someone to collect Gypsy/a burial sight and a day off work. With a friend and Glenn we went to see Mr Lloyd at Liverpool. I asked for the Autopsy report he said I could have it next week! I said I did'nt really care, I'd like to know what my horse is doing in the waterhole. He said we shouldn't have gone there, but that he had previously buried him but he'd washed out and was retrieved. Was due to be buried today. My friend asked again about the sample he'd said he'd just thrown it out yesterday! He told us that Gypsy was first buried in a washaway area of the embankment on a piece of flat ground by the side of the waterhole. (Why would you drag a head horse from a flat paddock were he died, - through a gate to a sight beside a waterhole?) We told Mr Lloyd we would now bury him properly, he then informed us that he had arranged for him to be buried today in his paddock (this time). We were sceptical at this so we said OK on the CONDITION that WE SEE HIM BEING BURIED. Mr Lloyd said I should just see his head it would be too gory. My friend stated that under the circumstancs we wanted to see all of him, as he was being buried. The vet reiterated that we could see the whole gory lot. These were the only circumstances unto which we would allow him to bury him. We wanted to know what time he would be buried, we would be there. Mr Lloyd said he would ring us at 2.30 to let us know what time to come out, to see him being buried, probably about 3.00. At 2.45 the Mr Lloyd rang for us to come out between now and 3.30. We arrived at Mr Lloyd's Surgery 15th Avenue Hoxton Park at 3.pm with my fiancee's parents. We waited in the Surgery for a view minutes, my fiancee, and his parents were rather annoyed as they had horses and had had a lot to do with Gypsy in the past. Mr Lloyd said Sharon is my client you can all stay here. A verbal argument followed. Mr Lloyd ushered us outside, they demanded some answers. In the commotion, Mr Lloyd said words to the effect "Why don't you take your glasses and hat off and come in side with me" - to Glenn. Glenn replied he did not wish to fight him. His mother offered to call the Police! We just wanted to see the horse being buried properly, we thought Mr Lloyd's attitude was very unproffessional. I tried to calm things down, I started to walk down to the paddock. Mr Lloyd asked his receptionist to show us down to the grave. We started walking with her, he told us we must all drive down, the receptionist said I'll just walk them down, he said no we must DRIVE down. (A whole 100 metres between the waterholes and the paddock?) When in the paddock, I couldn't believe what I saw - THE GRAVE COMPLETELY COVERED UP. My fiancees mother went right off - she asked the receptionist what was going on? - she asked was Gypsy in there? The receptionist said the vets two young sons had watched the whole thing? (Why was it OK for them?) (Not too gory?). I was ready to give up; why couldn't the vet just show us,? was it too much to ask for him to keep his word for one last thing? We DROVE back past a dirt mound were I had last seen my horse, to the Surgery. I tried to keep the vet and them apart. I asked why after all this had he been buried without us present? He explained that he had had one bobcat digging, it broke down, he called another, (next door neighbour) but they could not wait for us to turn up. He re-explained things - Took me in his office, showed me a book on diarhoea, I asked were abouts he did the autopsy, he said on the near stifle area, he did not have to go digging, he noticed the tumors and a LITTLE of the liver was damaged. He continued to explain, mentioning that ("if I had have done a postmortom …,") (Was I hearing things?) I interupted and asked was an autopsy and a post mortom the same thing, he said yes. (?) I let it go, but continued to wonder what I had just heard. He said he did not want an unhappy customer, and that I could visit the grave anytime. I left still in shock. Just the for the record, Glenn's parents went out early to the Surgery 1.15pm. They waited across the road, up a little. A bobcat came out of the neighbours yard went down the back of the vets and started work. His parents had binoculors & a mobile. (They travel a lot). When work ceased (Glenns parents rang us), the neighbour went home, Mr Lloyd went inside and phoned Glenn. A week and a half later I rang to ask if I could pick up the Autopsy report, his receptionist said he would mail it that week. I have now asked for an autopsy report 3 times, to dated 9/2/96, to no avail. I have had animals all my life, some with life threatening illnesses/injuries - my mother died of Leucemia 1½ yrs ago - I have never had any queries about any of them in all that time I'm 28. I respectfully request the board to look into this. Gypsy did not diserve this. YOURS FAITHFULLY SHARON CLEE Original Reply to Complaint 24 Dr Lloyd replied to the Board by letter dated 20 May 1996 (original spellings and syntax retained), as follows: 'To Whom It May Concern: A field Post-Mortem was performed in order to determine the cause of death of an aged (approximate 20 years old) brown and white stock horse owned by Ms Clee. The previous history being weight loss, depression and chronic diarrhoea for at least the previous three (3) months. The animal had been seen and treated by other Vets to no avail. I had, based on the owner's belief that the horse had caught Giardia from an overflowing septic, dispensed Dimetridazole at a dose rate of 50mg/Kg as suggested in the 8th Edition of Veterinary Medicine. The horse had an adverse reaction to either the drug or the method of administration, the reaction being atoxia and anaemia. The owner was advised to stop treatment. After 4-5 days with diarrhoea still present the horse was admitted to Rutledge Park Veterinary Hospital. The horse on examination exhibited: + Severe Emaciation + Diarrhoea + Anaemia + Ventral Oedema + Pale Mucous Membrances + Cardinal Signs being HR52 + RR22 and laboured; + PCV 48 with serum discolouration; + Faecal flotation exhibited strongyle eggs; and + The body temperature was 38.8 degrees. Ms Clee was given by me a very poor prognosis to the extent that if the diarrhoea could not be stopped within a few days (which I doubted and told her) then the horse would be too weak to stand and as a result would have to be put down (euthanised). On 9 January, 1996 (day of arrival) the horse was given 25cc Penstrep IM tubed and drenched with Mebendazole, piperazine, neguvon, electrolytes, Scourban and Trimethoprim powder. On 10 January, 1996, there was slight improvement in faecal thickness. The drench was repeated but without the three wormers. Also 25cc of Penstrep was administered IM as well as 20cc of Spasmolgesic IV. On 11 January 1996, the treatment was repeated. On 12 January 1996, the horse was found dead at 7.20am. A Post-Mortem was performed by myself in order to determine the probable cause of death. A large traverse incision was made on the left flank and the intestinal mass and colon was exposed. Upon incision of the Colon, large grey modules approximate 1-1.5cm in radius and 1cm in height was seen covering the intestines along their course. In between, the mucosa appeared to be leathery and inactive. On incision the growths were seen to be composed of a white cellular mass. On further examination of the abdominal cavity, the liver was seen to contain many metastatic growths surrounded by cirrotic liver mass. No further dissection was performed, except for taking of samples of the liver, and intestines to show the owner, as in my opinion the hourse had died as a result of complications resulting from cancer of the liver and intestines. I hired a Mr James Murray to bury the horse on Saturday 13 January, 1996. This was done by dragging the horse into a depression near the outflow of a dam and covering it with soil. After heavy rain the soil was dislodged and the horse was secured to a tree to prevent it being washed away as well. A bobcat was ordered and the driver dug a deep hole, well away from the water course and buried the horse. The owner, her boyfriend and Mother and Father arrived, viewed the burial site then unbeknown to me abused my staff and sons, while I was talking to the owner Ms Clee in a consulting room. She did not wish to see the Post-Mortem samples and left. On leaving the building the boyfriend, from the safety of his car, started to abuse me. I took umbrage at this show of belligerance and asked him to get out of the car and explain himself. This he declined to do. Ms Clees and the three others then exited from my property. I do not think I was negligent in my treatment of the horse and as to any misconduct by myself in bring the profession into disrepute I can only say that faced with the verbal abuse I received, some form of verbal defence was called for. Yours sincerely Ronald G. Lloyd BVSC Sydney Veterinary Surgeon' NOTICE OF INQUIRY 25 In September 1996. following investigation and the conduct of a formal interview of Dr Lloyd on 19 August 1996, the Committee resolved to refer the complaint to the Tribunal for inquiry. As noted earlier, the formal referral occurred on 8 April 1998 and the then Chairperson of the then Tribunal issued the following Notice of Inquiry: Notice of Inquiry TAKE NOTICE that the Veterinary Surgeons Disciplinary Tribunal has received a complaint referred to it by the Veterinary Surgeons Investigating Committee that you have been guilty of misconduct in a professional respect within the meaning of Section 22 of the Veterinary Surgeons Act 1986 ("the Act") in relation to your care, treatment and management of the horse "Gypsy". The specific allegations which have been made against you and the particulars of those allegations are as follows: 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) On or about 26 December 1995 after consulting with a client, you failed to ensure that a detailed record of the consultation was made. Particulars A few days before 30 December 1995, Sharon Clee consulted you by telephone about treatment required for her horse, "Gypsy". In a subsequent telephone conversation you advised using the drug Dimetridazole and arranged for her to collect a supply of it from you for her to administer to Gypsy. You made no record of those telephone consultations. (b) On or about 30 December 1995 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring 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 substance. Particulars On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee for her to administer to the horse known as "Gypsy". You did not provide her with adequate written instructions as to any dosage requirements. You did not provide her with any written instructions as to the route of administration nor any withholding period that was relevant to the use of that substance. (c) On or about 30 December 1995 you failed to ensure that conditions imposed by legislation relating to dispensing and handling restricted drugs were strictly complied with. Particulars On 30 December 1995 you supplied the drug "Dimetridazole" (a restricted substance) to Sharon Clee to administer to the horse "Gypsy" in a quantity exceeding that required for 3 days' treatment. You did not: (a) record the name, strength, quantity or the date on which it was supplied; (b) record the species of animal nor the name and address of the animal's owners nor; (c) keep the record of the supply of that substance at your hospital, surgery or office; although you were required by regulation 59 of the Poisons Regulation 1994 to make and keep such records. (d) On or about 30 December 1995, after treating an animal and consulting with a client you failed to ensure that a detailed record of the treatment and the consultation was made. Particulars On 30 December 1995 Sharon Clee attended your surgery and you dispensed to her a quantity of the drug Dimetridazole and gave her advice about administering that drug to her horse Gypsy. You made no record of that attendance nor dispensing the drug nor of the advice you gave to her. (e) On 30 December 1995 you failed to carry out professional procedures in accordance with then current standards of veterinary science. Particulars On 30 December 1995 you supplied the drug Dimetridazole to Sharon Clee for her to administer to her horse Gypsy although you had not then examined the horse and had not previously used that drug. (f) On or about 30 December 1995 you supplied a substance that was in Schedule 4 to the Poisons List to a client without ensuring that the substance was correctly labelled. Particulars On 30 December 1995 you supplied a quantity of the drug "Dimetridazole" to Sharon Clee. There was no information, warning nor other statement about: (i) the quantity of the drug; (ii) the fact that this drug was listed in Schedule 4 of the Poisons List (other than "Caution S4"); (iii) what to do in the event of anyone coming into contact with or swallowing the drug; on any label on the container in which it was supplied. (g) On or about 6 January 1996 after consulting with a client you failed to ensure that a detailed record of the consultation was made. Particulars On 6 January 1996 Sharon Clee consulted you at your surgery about the deteriorating condition of the horse Gypsy. You advised her not to give the last dose of the drug Dimetridazole to the horse. You made no record of that consultation. (h) On or about 8 January 1996 after treating an animal and consulting with a client, you failed to ensure that a detailed record of the treatment and consultation was made. Particulars On 8 January 1996, Sharon Clee rang you about the further deteriorating condition of the horse Gypsy. You sent James Murray to the location where the horse then was, to administer an injection to the horse. The injection was given. You made no record of the telephone conversation nor of the administration of the injection. (i) On 8 January 1996 you failed to carry out professional procedures in accordance with then current standards of veterinary science. Particulars On 8 January 1996 after several days during which Sharon Clee's horse Gypsy had, to your knowledge, been in a deteriorating condition such that you had advised her on 6 January 1996 not to give her horse the last dose of the drug Dimetridazole which you had previously supplied to her, you instructed a person who was not registered under the Veterinary Surgeons Act 1986 nor otherwise qualified to administer an injection of the drug Dexamethasone to that horse without you being present. At that stage you had not: o examined the horse; o taken any steps other than talking to the horse's owner to establish a diagnosis; o previously used the drug other than in the treatment of that same horse over the previous few days. The drug Dexamethasone was a Schedule 4 drug on the Poisons List. You did not in any way supervise the giving on the injection. (j) On or about 8 January 1996 you supplied or arranged for the supply to an animal of a substance included in Schedule 4 to the Poisons List without ensuring 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 substance. Particulars On 8 January 1996 you supplied a quantity of the drug "Dexamethasone" to James Murray for him to administer to the horse known as "Gypsy". You did not provide him with any written instructions as to any dosage requirements, as to the route of administration nor any withholding period that was relevant to the use of that substance. (k) Between 9 January 1996 and 12 January 1996 after treating ani (sic) animal and consulting with a client you failed to ensure that a detailed record of this treatment was made. Particulars On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded; (a) diagnosis; (b) clinical signs; (c) some treatments; (d) previous history; (e) consultation with University of Sydney, Camden; (f) work up. (l) Between 26 December 1995 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science. Particulars Between about 26 December 1995 and 12 January 1996, you were providing treatment to Sharon Clee's horse, Gypsy. Although you had many consultations with her, and were aware of the poor condition of her horse, at no time before 9 January 1996 did you suggest to her that you should examine her horse. You did not undertake any steps apart from talking to her to establish a diagnosis. You did not advise her that there could be other conditions affecting her horse than the condition which she had suggested to you (namely, that it was the effect of a giardiasis bug), you did not advise her about the possibility of tests being conducted, such as biochemistry, full blood count, and abdominocentesis nor offer her referral to a specialist. (m) Between 9 January 1996 and 12 January 1996 you failed to carry out professional procedures in accordance with current standards of veterinary science. Particulars Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection. (n) On 10 January 1996 you failed to consider the welfare of an animal when practicing veterinary science. Particulars On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to water trough and kept his muzzle in it continuously for a period of about 10 minutes. (o) On 12 January 1996 you failed to carry out professional procedures in accordance with the then current standards of veterinary science. Particulars On 12 January 1996, the horse Gypsy having died whilst in your care, you agreed with the horse's owner that you would bury the carcass in the paddock, using a bobcat. You then caused the carcass to be buried in a shallow grave which was not adequately covered as a result of which the horse's owner saw the uncovered carcass and was greatly distressed. 2. That, being the superintendent of a veterinary hospital you are guilty of misconduct in a professional respect in that in accordance with section 54 of the Veterinary Surgeons Act 1986 you were throughout January 1996 responsible for the care, control and management of the hospital and: (a) failed to ensure that a complete record was made at the time of each veterinary treatment and consultation. Particulars On 9 January 1996, you admitted the horse Gypsy to your surgery or hospital. He remained in your care until he died on 12 January 1996. The only record which you made of your consultations with Gypsy's owner, Sharon Clee and of his treatment during that period is set out on your file card. The following details have not been recorded; (a) diagnosis; (b) clinical signs; (c) some treatments' previous history; (d) consultation with University of Sydney, Camden; (e) work up. (b) failed to ensure that an animal admitted to the hospital for accommodation or treatment was examined daily or more frequently if the circumstances required. Particulars On 10 January 1996 the horse Gypsy was tethered whilst in your care and was not able to reach water. Immediately upon being released from that tether by the horse's owner, he went to a water trough and kept his muzzle in it continuously for a period of about 10 minutes. Gypsy had not been examined by you or by any other employee of your hospital for a lengthy period. (c) failed to ensure that an animal admitted to the hospital for accommodation or treatment which showed signs of an infectious or contagious disease was effectively isolated from all animals not so effected. Particulars Between 9 January 1996 and 12 January 1996, the horse Gypsy was in your care. He was tethered in a paddock in which there were other horses. At that stage, you had been treating the horse for a possibly contagious infection but had not taken any steps to establish whether or not it did have a contagious infection. 3. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that contrary to Section 22(a) of the Act, on or about 8 January 1996 you permitted or required an unregistered person employed by you to practice veterinary science. Particulars On 8 January 1996, James Murray a person employed by you but not registered under the Veterinary Surgeons Act 1986 at your direction injected a horse known as "Gypsy" with the drug "Dexamethasone". 4. 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 12 January 1996 and 23 January 1996 you did not conduct yourself 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. Particulars On 12 January 1996 you informed the owner of the horse "Gypsy" that you had conducted an autopsy on "Gypsy" that morning, that you had found tumor nodules on the horse's stomach and that "his liver was gone". You said that you had kept a sample of the tumors to show Sharon Clee and that you would keep the samples. On 18 January 1996 when Sharon Clee asked for a sample, you told her that it had been thrown out. You promised to send her one but despite many subsequent requests, did not do so. On 23 January 1996 when Sharon Clee advised you that she would arrange to bury "Gypsy" properly, you informed her that you had arranged for the horse to be buried that day in your paddock. She agreed to this on the condition that Sharon Clee was present during the burial. You promised to telephone her to let her know the time to be present during the burial. At approximately 2:45 pm on that day you telephoned her and requested that she be in attendance at 3:30 pm. Although Sharon Clee was present in your surgery from about 3:00 pm, when she was taken to the new grave by your receptionist, she discovered that the new grave was completely covered up. You subsequently offered the explanation that the bobcat which was used in burying the horse could not wait for Sharon Clee to "turn up". During that conversation with Sharon Clee, Glenn Tuinenburg and Nathalie Taimura, who were obviously distressed at the death of the horse "Gypsy" and the circumstances of the first attempt to bury the horse, you referred to the horse's carcass as "the whole gory lot". During the discussion in your surgery at about 3:00 pm at which Sharon Clee and her finance's (sic) parents were present, there was an argument during which you invited Glenn Tuinenburg to take off his glasses and hat and fight you, at which point Nathalie Taimura offered to call the police. Admissions 26 None of the Allegations were formally admitted. In his statement of agreed facts filed 22 October 1999, Dr Lloyd agreed sometimes with qualifying or elaborating comments to the principal particulars of 9 of the 20 Allegations, being 1(a), (b), (c), (d), (e), (f) (the whole without qualification), (g) and (h); and Allegation 3. In a table setting out agreed facts and other matters filed in the Tribunal on 3 September 2002, Dr Lloyd also admitted to the particulars supporting two more allegations, 1(i) and (k), leaving 9 fully in contest. Those 9 are: 1(j), 1(l), (m), (n), (o); 2 (a), (b) and (c); and 4. The Committee then entered objections to the continued consideration by the Tribunal of those 9 allegations, with one minor qualification relating to Allegation 1(l). The Present Committee's Ultimate Position in these Proceedings 27 The present Committee's ultimate position in these proceedings was that it only fully pressed 9 of the original 20 Allegations; i.e. Allegations 1(a), (b), (d), (e), (f), (g), (h), (j) and (k); and partly pressed another, 1 (l). As to Allegation 1(l) it transpired that the Committee had a narrow view of the scope of the particulars, a matter dealt with later in these reasons. 28 The Committee said that it pressed only one aspect of Allegation 4, i.e. the conduct of the autopsy without permission, a fact admitted by Dr Lloyd. However, the Notice of Inquiry does not particularise this matter. It is for that reason that it is not the subject of formal findings in this decision. 29 Of the Allegations that the Committee no longer pressed three belong to the four that the Panel saw as the most serious – 1(m), 1(n) and 1(o) (while the other major allegation, Allegation 1(l) continued to be pressed only in part). 30 It emerges from the table of agreed facts dated 3 September 2002 and submissions from the Committee dated 11 November 2002, that the Committee did not press several allegations for one or more reasons. Eight were no longer pressed due to jurisdictional objections (Allegations 1(c), 1(j), 1(m) and 1(n), 2(a), 2(b), 2(c) and 4); five allegations were no longer pressed due to a change in the Committee's view as to what conduct can amount to professional misconduct or on the basis that there was no evidence to support an allegation (Allegations 1(l) in part, 1(m), 1(n), 1(o) and 4); three allegations were no longer pressed on the basis that a veterinarian can not be charged with professional misconduct arising from failures as a superintendent (Allegations 2 (a), 2(b) and 2(c)); those which were also challenged on the basis that a criminal offence was alleged (Allegations 2 (a), 2(b) and 2(c)); and five allegations were not pressed on the basis that these duplicated other allegations in the Notice of Inquiry (Allegations 1(c), 2(a), 2(b), 2(c) and 3). In total 11 of the 20 Allegations were affected by one or more of these objections. (1) Jurisdictional Objections 31 It was submitted that certain allegations in the Notice of Inquiry were not matters that had been properly referred to the Tribunal in that the Committee had not formed the opinion that a 'prima facie case' of 'misconduct in a professional respect' as to those allegations. This was said to contravene s 28(1)(c) of the Act. As a consequence, Ms Linkenbagh submitted that the Tribunal was deprived of jurisdiction in respect of those elements of the Notice of Inquiry so affected. A similar jurisdictional issue has been dealt with in Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Jurisdiction) [2002] NSWADT 283; Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285; and Veterinary Surgeons Investigating Committee -v- Ronald George Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95. 32 The Committee's procedures in considering Ms Clee's complaint and forming the opinion to refer, were the subject of material tendered by Ms Linkenbagh: see affidavit sworn and filed 22 October 2002. See also Committee Record of Interview with Dr Lloyd dated 19 August 1996 (Ex G 10). Ms Green and Ms Linkenbagh proceeded to compare the exact text of the Committee's resolutions of 9/96 in respect of File No 534 (the Clee complaint) with the Notice of Inquiry. 33 The Minutes of 9/96 are as follows: No 534 Dr R G Lloyd, BVSc – Complaint by Ms S Clee The Committee considered the transcript of the interview with Dr Lloyd and the documentation received in this matter. The Committee resolved that Dr Lloyd was guilty of misconduct in a professional respect in that – 1. Dr Lloyd supplied the drug Dimetridazole, a Schedule 4 drug, (a) without examining the horse, (b) without having previously used the drug, and (c) requested a lay person to administer an S4 drug to the same horse and still without an examination. 2. Dr Lloyd maintained inadequate records 3. There was inadequate consultation with the owner and inadequate offers of options available to work up the case. 4. There was inadequate burial of the horse which was subsequently uncovered causing great distress to the owner. The Committee also discussed whether point 4 could also be a breach of an Act regarding water resources. The Committee resolved to refer this complaint to the Veterinary Surgeons Disciplinary Tribunal and to instruct Conway Maccallum to prepare the necessary charges. It was agree that the Secretary would forward the draft charges to the members for comment. ACTION 1. Secretary to draft charges 2. Secretary to circulated charges 3. Secretary to advise Solicitors 4. List on next agenda. 34 To reiterate, s 28(3) provides: (3)The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.' 35 Ms Green and Ms Linkenbagh do not challenge as invalid those elements of the Notice of Inquiry that they see as corresponding to the four particular matters itemised above. Their challenge is directed to those parts of the Notice of Inquiry that do not appear to correspond to the particular matters set out in the resolution. 36 Ms Linkenbagh also makes a general challenge to the adequacy of the resolution and its effect on the referral. She contends that the referral is defective because the words 'prima facie case' were not used in the text of the Committee's resolution. It is clear from the material that the Committee resolved in September 1996 that in its view Dr Lloyd was 'guilty of misconduct'. The absence of the words 'prima facie view' is not fatal. It is the substance of the intention of the Committee as conveyed by the resolution that must be discerned. The words used by the Committee clearly embrace the conclusion that they are satisfied that a prima facie case has been established in their mind. It is clear from the immediate context (the surrounding text of the minutes for that day, and the place where this record appears in the history of the Committee's handling of the matter) that the Committee is exercising its s 28(1)(c) discretion. 37 As the above record indicates, there were two major resolutions. The first resolution, properly construed, involved a provisional finding of professional misconduct. The Committee itemised the matters that it regarded as constituting misconduct in a professional respect. The second resolution is a response to the next step required of the Committee under s 28(1)(c), formation of the view that it was 'sufficiently serious' to refer to the Tribunal. 38 The question these submissions raise is whether matters not encompassed expressly by the provisional findings as to misconduct may be the subject of a Notice of Inquiry. 39 The following allegations were said to be defective: Allegations 1(c), 1(j), 1(m) 1(n), 2(a), 2(b), 2(c) and 4. We turn to consider the issues raised in relation to each of these Allegations. 40 Record Keeping: In total there were seven allegations relating to record keeping (Allegations 1(a), 1(c), 1(d), 1(g), 1(h), 1(k) and 2(a)). Only Allegation 1(c) is challenged on the present ground. The objection is that the Committee did not put Dr Lloyd on notice of specific charges in relation to breach of the record making requirements of regulation 59 of the Poisons Regulation 1994 when dispensing Dimetridazole on 30 December 1995. 41 There can, in our view, be no dispute that the Committee canvassed with Dr Lloyd at the statutory interview the general adequacy of his record keeping: see Ex G 10, pp 23-25. The Committee also referred directly to his admission that he dispensed a prescribed substance on 30 December 1995. Dr Lloyd conceded at interview that he kept no record at all of events prior to the horse's admission to Hoxton Park on 9 January 1996. The Committee's decision to proceed with charges is minuted at 9/96, p 748. At point 2 it states: 'Dr Lloyd maintained inadequate records'. 42 The Committee's decision is clearly not didactic under point 2 as to the matters to be charged. It is not, in our view, required by s 28(1)(c), that the level of particularity found in the ultimate Notice of Inquiry be reflected in the Committee's finding of a prima facie case. What must be examined is the nature of the complaint, the matters put in issue by the Committee, the way in which the Committee conducted its interview and the responses given by the veterinarian. The record of decision should be read in light of that information. 43 Having regard to the relevant material in this case (Ms Clee's complaint, the matters put in issue by the Committee, the responses by Dr Lloyd), it would, we consider, have been reasonably apparent to Dr Lloyd that the Committee's prima facie finding as to inadequate record keeping would have included the lack of an adequate record in relation to all events up to at least 9 January and covering 30 December . His supply of a Schedule 4 poison on 30 December was plainly a matter of great concern to the Committee. It is disingenuous to suggest that he was not made reasonably aware by point 2 that he was liable to be charged not only with failing to keep to a record conforming to general professional standards but also with failing to adhere to the strict statutory record keeping requirements governing the supply of poisons. 44 Written instructions: Allegation 1(j) alleges failure to carry out professional procedures in accordance with current standards of veterinary science, and refers to the inadequacy of the written instructions given to James Murray when he went out to attend the horse on 8 January 1996 to administer a Schedule 4 poison Dexamethasone. 45 The general issue of the use made of James Murray on 8 January 1996 was covered in the Committee interview (Ex G 10, pp 22-23). The adequacy of Dr Lloyd's conduct in engaging James Murray is examined. The Committee finds a prima facie case that 'he requested a lay person to administer an S4 drug to the same horse and still without an examination'. On the other hand, the record of interview does not specifically refer to the question of the inadequacy of any written instructions. 46 For similar reasons to those already given, we consider that it was made sufficiently clear to Dr Lloyd that the special requirements that attach to the administration of Schedule 4 poisons were in issue; and the opinion stated by the Committee at point 1(c) of its resolutions clearly conveyed that. This would have been understood by a reasonable veterinarian to raise the question of the need to give adequate written instructions in relation to the administration of poisons, and the use of unregistered persons for that purpose. 47 While we have considered the objections to Allegations 1(c) and 1(j) first on the narrower basis of whether they could be said to fall within the scope of the opinions expressed in points 1 to 4, we do not regard that as being the ultimate test. We do not accept the premise that the opinions expressed by the Committee in its referral resolution have the effect of removing from the scope of inquiry matters raised in the original complaint that could properly be the subject of a charge of professional misconduct at the point at which the formal referral occurs. 48 The scheme found in the Act is one where the complaint goes to the Committee, it is considered by the Committee after giving the veterinarian an opportunity to be heard, and the fundamental task then is to determine whether the complaint makes out a 'prima facie case' of professional misconduct at least in some respects. It is not necessary at that point for the Committee to engage in a process of such length and exactitude that it begins to resemble the process of inquiry that will occur at the final hearing. The focus of s 28 is the exercise of powers conferred on the Committee. It is obliged to reach a state of satisfaction in relation to the complaint as a whole that meets the standards set out in s 28(1)(c). The nominal complainant appointed under s 29(6) then prosecutes the complaint made by Ms Clee before the Tribunal. 49 The Committee will as a result of its examination and because of its special expertise often be able to see deficiencies in the practitioner's conduct which could not reasonably be discerned by a lay client. It should raise those matters with the practitioner at the interview and give him or her an opportunity to respond. In this instance the matters that the Committee identified using its expertise included such issues as record keeping and the special requirements surrounding the supply and administration of poisons. They also included the range of options for treatment offered to the owner. 50 These are matters that naturally arise for consideration in the minds of qualified veterinarians of standing. Ms Clee concentrated on what was said to her, what she was told to do, what Dr Lloyd did and the condition of her horse, as well as the events surrounding her request for an autopsy report and the burial. 51 The Committee, as we see it, in its final resolution made specific reference to issues that it had identified using its special expertise. It was not thereby seeking to dismiss the seriousness of the other matters raised by Ms Clee; or somehow limit the scope of the referred complaint. 52 This is not a situation like the one that arose in Inquiry 3: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285. There the circumstances that formed the basis of Allegation 2 in the Notice of Inquiry were unknown to the Committee at the time of the formal interview. The circumstances only became known when the complainant made a further statement in the course of drafting the Notice of Inquiry. They were not put to Dr Lloyd for a written reply and oral representations in the manner contemplated by s 28(1)(c). 53 Conditions of Care: Allegations 1(m) [risk of contagion] and 1(n) [access to water] relate to the way in which the horse was treated after it was taken into care. 54 The matter to which Allegation 1(m) relates [the risk of contagion] was clearly raised by Ms Clee in her original complaint where she stated about her visit on 10 January: 'As far as anyone knew he was contagious, he was with other horses?'. There was no reply to this comment by Dr Lloyd either in his written reply or at the Committee interview. The matter was not raised at the interview. 55 The matter to which Allegation 1(n) relates [the arrangements made by Dr Lloyd once the horse was in his care to ensure that it had reasonable access to water] was also raised by Ms Clee in her original complaint. She referred to her concerns about the horse standing on a lead rope and the steps she had to take to release the horse so that it could reach water. This issue was canvassed in the Committee interview (see Ex G 10, p 5). Dr Lloyd had failed to respond to her criticisms in his original reply. He asserted to the Committee that his arrangements had been adequate. 56 (The Committee's resolution did refer to 'water' in another context. It stated, 'There was inadequate burial of the horse which was subsequently uncovered causing great distress to the owner.' The Committee then adds: 'The Committee also discussed whether point 4 could also be a breach of an Act regarding water resources.' We accept that this is a reference to the horse's carcass being found floating in the dam, as distinct from water-access issues while the horse was in care.) 57 In our view Dr Lloyd was clearly on notice of the matters referred to in Allegations 1(m) and (n). It is not necessary that it be recited in the text of the resolution. Both matters were clearly embraced by the complaint that was the subject of the resolution. Dr Lloyd failed to respond to them in his original reply, and did not respond to them when given the further opportunity to appear before the Committee. 58 Allegations 2(a), 2(b), 2(c):The Committee also submits that Allegation 2, which relates to Dr Lloyd's alleged misconduct in his capacity as a superintendent of a veterinary hospital was expressly excluded from being charged by the Committee in the minutes of its meeting from December 1996. The relevant paragraph states: 'Charges relating to superintendent of veterinary hospital - The committee resolved that as the animal treated was a horse and not a small animal, the requirements relating to superintendent of a licensed veterinary hospital do not apply in this case. Mr Stinson is to be advised to delete all charges relating to superintendent.' The reason stated in these minutes is clearly misconceived. Dr Lloyd's status as a superintendent attaches to the hospital (in this case a Class A hospital) not to the type of animals treated there. 59 There is no further mention of the superintendent charge in the minutes, however there is reference in the 27 & 28 October 1997 record of meeting to continued consideration of the charges, that 'The Committee noted that finalisation of the charges was awaited from Conway Maccallum [the firm of solicitors representing the Committee]. It was agreed to also raise this matter with Mr Stinson at the meeting on 28 October 1997'. There is no reference to what 'this matter' was or what was discussed with Mr Stinson. Additionally, the minutes from the 28 January 1998 meeting note that 'the Tribunal charges had been received back from Conway Maccallum. It was agreed to consider the suggested changes and report at the next meeting'. The Tribunal has no other documentary evidence on the issue of the attitude of the Committee to the superintendent charges. 60 The records that have been produced showed continuing attention to the terms of the draft Notice of Inquiry brought back by their solicitor at the time, Mr Stinson. In these circumstances we are not satisfied that the record of the meeting of October 1997 represents an ultimate conclusion of the Committee to which we should attach significance. 61 Allegation 4: Ms Linkenbagh also submits that Allegation 4 alleges facts which are not part of the findings of the Committee. The facts asserted were clearly raised by Ms Clee in her original complaint. Dr Lloyd was clearly on notice of the matters referred to in Allegation 4. The verbal altercation was canvassed in the interview. It is not necessary that it be recited in the text of the resolution. 62 All of the objections under this heading are rejected, and the Tribunal will proceed to deal with the evidence presented in relation to them. (2) Conduct not Professional Misconduct and/or No Evidence to support findings of Professional Misconduct 63 On 3 September 2002 the parties filed a joint table setting out 'agreed facts and other matters'. This was intended to assist the Tribunal, and was seen as a means by which a very long inquiry might be brought to a reasonably speedy resolution. The table recorded that certain matters were no longer pressed. 64 No Evidence. The table referred to two allegations, Allegations 1(m) [risk of contagion] and 1(n) [water-access], being defective as there was 'no evidence' to support the allegation. 65 We have dealt with the jurisdictional objections to Allegations 1(m) and 1(n). The further objection was that there was 'no evidence' to support those two objections, and also Allegation 1(o). 66 As to Allegation 1(m), there was no dispute that a sick horse, Gypsy, was placed in the same paddock as healthy horses. The submission in relation to Allegation 1(m) is possibly best described as one that the evidence could not sustain any adverse finding against Dr Lloyd. The basis for this assertion is that there could be no risk to the other horses as they were owned by Dr Lloyd. This submission (embraced, we reiterate, by the Committee) appears to rest on the assumption that the consideration to be given to the welfare of animals can be lower where the veterinarian places his own animals at risk. It is not clear what point is being made here. It is immaterial to the allegation who owned the other horses in the paddock. 67 The charge is an animal welfare charge. We have observed in an earlier decision that one of the fundamental objects of professional standards in the field of veterinary practice is the welfare of animals: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284 at [35]-[37]. 68 As to Allegation 1(n) it was asserted that there was 'no evidence of tethering'. The 'no evidence' submission seems to depend on whether 'tethering' was proven. There was clear evidence before the Tribunal that the horse was standing on its lead rope and needed to be released (see various statements of Ms Clee and Mr Tuinenburg and their evidence). Their evidence was in contest and we deal with that contest later in these reasons. It can not be said that there was no evidence of the horse being inappropriately restrained. We deal with the significance of the use or otherwise of the word 'tethering' to describe this situation later in our reasons. 69 It was also said, in objection to Allegation 1(n) being dealt with any further, that there was water available. This is not a relevant objection. There is no assertion in the particulars accompanying Allegation 1(n) that there was no water at all available. The issue is whether the horse was able reasonably to reach what water there was. There was an issue raised during the case as to the adequacy of the water maintenance practices of Dr Lloyd and the amount of water available; and this is dealt with later in the reasons. 70 Not Professional Misconduct. Ms Linkenbagh said that the Committee no longer pressed Allegation 1(o) [adequacy of burial practices] and part of Allegation 4 [the behaviour towards the owner and family in connection with the burial] on the basis that even if the particulars were made out the conduct could not amount to professional misconduct. We do not agree with this view; and give our reasons later in this decision. (3) Professional Misconduct as a Superintendent 71 Allegation 2 in the Notice of Inquiry refers to the duties of a superintendent of a veterinary hospital. A superintendent is responsible for the care, control and management of the hospital. The Board may only license a registered veterinary surgeon as a superintendent. Dr Lloyd was a licensed superintendent. 72 Made pursuant to cl 17 of the Regulation, Schedule 2 sets out the minimum standards for veterinary hospitals. All veterinary hospitals, whether Class A, Class B or Class C, must conform to the minimum standards set down in Part 1 of the Schedule 2. There are additional standards for both Class A and Class B hospitals (see Part 2 of Schedule 2); and further standards again for Class A hospitals (see Part 3 of Schedule 2). The hospital relevant to this case, Hoxton Park, was a Class A hospital; so it was required to conform to the standards set out in Parts 1, 2 and 3. 73 The Regulation cl 20 sets down the duties of a superintendent of a veterinary hospital. The duties relevant to this case follow: ' 20. Duties of superintendent of veterinary hospital (1) The superintendent of a veterinary hospital who is nominated in accordance with section 54 of the Act is responsible for the care, control and management of the hospital. (2) The superintendent of a veterinary hospital must also: (a) ensure that a complete record is made at the time of each veterinary treatment and consultation (including any x-ray film, radiograph or ultrasound image) and that the record is retained for at least 2 years from when it is made, … (c) ensure that any animal admitted to the hospital for accommodation or treatment is examined daily or more frequently if the circumstances require, … (f) ensure that any animal admitted to the hospital for accommodation or treatment which shows signs of an infectious or contagious disease is effectively isolated from all animals not so affected, and (g) ensure that sufficient competent staff are present when elective surgery is being performed and when animals are being prepared for any such surgery, and (h) ensure that clauses 21--25 are complied with, … Maximum penalty: 4 penalty units. Note. Section 54 of the Act enables the licensee of a veterinary hospital to nominate the superintendent of the hospital ' 74 Ms Linkenbagh for the Committee submitted that the Notice of Inquiry was defective in that it was only open to charge Dr Lloyd with professional misconduct in his capacity as a registered veterinary surgeon not a licensed superintendent. The Committee now also contended that the allegation was bad for duplicity in that it relied in its particulars on the same facts that supported charges under Allegation 1. Ms Green for Dr Lloyd, as is to be expected, adopted these submissions. Ms Green submitted that professional misconduct can only be committed by a veterinary surgeon in that capacity pursuant to ss 22 and 26 of the Act. 75 However, the submissions overlook s 54 which provides that a person is not qualified to be nominated as the superintendent of a veterinary hospital unless the person is a registered veterinary surgeon. The effect of s 54 is to confer additional professional responsibilities on veterinary surgeons who chose to become superintendents. 76 The proposition being advanced has an absurd quality. It is being suggested that where veterinary surgeons take on, and then hold themselves out to the public, as being permitted to exercise more onerous and demanding responsibilities, they are immune from being called to account for a failure to meet those responsibilities in a disciplinary context. 77 Ms Green submits that breach of the superintendent's duties is not expressly stated as deemed misconduct in a professional respect under the code of conduct (s 22(c)). This does not conclude the discussion as to what amounts to professional misconduct. In our view a failure to adhere to the standards required of a superintendent in any serious way could fall within the common law standard as to misconduct in a professional respect. The statutory definition supplements the common law standard. The common law standard is necessarily a flexible one, the content of which may vary over time. Legislatures have deemed certain conduct to be professional misconduct so as to avoid doubt as to where it falls. It is not a comprehensive code. The provision makes that plain, beginning with the words '[w]ithout limiting the meaning of the expression 'misconduct in a professional respect'. An accepted modern common law definition, as previously noted, is found in Priestley JA's judgment in Qidwai v Brown (1984) 1 NSWLR 100. (4) Chargeable Conduct 78 Another submission was to the effect that it is not lawful to recite as particulars in support of an allegation of professional misconduct conduct that is chargeable as a criminal or regulatory offence. There is no substance in this submission. It is the case that both s 54 of the Act and cl 20 of the Regulation are penalty provisions. They also reflect required professional standards, ones of such importance that the legislature has attached penal consequences to their infraction. 79 It is well established that the same set of factual circumstances may result in civil proceedings, criminal proceedings and disciplinary proceedings: see Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630. The existence of a criminal penalty provision does not preclude the finding of professional misconduct on the same statutory responsibilities by a disciplinary body. (5) Duplication 80 The Committee suggested that a number of allegations in the Notice of Inquiry were otiose, as they were 'duplications' of other charges. The Allegations said to be affected by 'duplication' were 1(c), 2(a), 2(b) and 2(c) and 3. 81 These objections are rejected. Allegation 1(c) relates to a failure to comply with a regulatory requirement relating to the making of a dispensing record for a poison. Allegation 1(d) relates generally to Dr Lloyd's failure to make a detailed record of treatment and consultation on 30 December 1995. These allegations arise in two separate and different contexts, under two separate legislative schemes. Allegation 1(c) relates to requirements under the Poisons Regulation 1994 and Allegation 1(d) relates to requirements under the Code of Conduct found within the Veterinary Surgeons Regulation 1995. Allegation 2(a), (b) and (c) relate to allegations of misconduct in a professional respect against Dr Lloyd in his capacity as a superintendent of a veterinary hospital. Allegation 2(a) is expressed similarly to Allegation 1(k). Allegation 2(b) is similar to Allegation 1(n), but is more expansive and concentrates on the responsibilities of a superintendent. Allegation 2(c) is similar to 1(m). The Tribunal's reasons are given later under the heading 'Conduct as Superintendent of a Veterinary Hospital'.. 82 The Committee submits that Allegation 3 is a 'duplication' of Allegation 1(i). This submission is rejected. The Tribunal's reasons are given later under the heading 'The Unregistered Person Allegation'. The Applicable Law (1) Misconduct in a professional respect: at common law 83 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'. 84 The Act contains no definition of the statutory formulation 'misconduct in a professional respect'. 85 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 includes wider duties owed to other members of the profession and the wider community. 86 The Veterinary Surgeons Disciplinary Tribunal outlined the common law position as it applied to veterinary surgeons in Re Lloyd (His Honour Judge Wall DCJ, Professor C Bellenger and Dr W Howey, unreported, 16 December 1994), at 4-5: '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.' (2) Deemed misconduct in a professional respect: extension of common law by Statute 87 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: (a) permits or requires an unregistered person employed by the veterinary surgeon to practise veterinary science except where that person acts in accordance with this or any other Act, (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 - Provisions relevant to one or more of Inquiries 88 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.' 89 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. 90 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' (i.e. deemed misconduct in a professional respect). ' 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 (1) A veterinary surgeon must at all times consider the welfare of animals when practising veterinary science.[DMPR] … 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] … (9) A veterinary surgeon responsible for the professional supervision of lay staff must ensure that the staff carry out their duties effectively and in compliance with relevant legislation. [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 x-ray 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 91 Of the 20 Allegations referred to in the course of this inquiry, 6 directly relate to alleged non-observance of drugs requirements. 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 properly clients in the administration of these items. 92 In this case there are specific allegations as to failure to provide adequate written instructions in respect of administration of a restricted substance (Dimetridazole) (substantially admitted, Allegation 1(b)), failure to observe record keeping requirements in respect of dispensation of a restricted substance (substantially admitted, Allegation 1(c)), to failure to observe labelling requirements (fully admitted, Allegation 1(f)), instructing an unregistered person to administer an injection of a restricted substance, the drug Dexamethasone (Allegation 1(j), substantially admitted), permitting an unregistered person to practice veterinary science, by permitting him to administer the drug, Dexamethasone (Allegation 3). 93 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.' 94 The list in force between the dates relevant to Dr Lloyd's treatment of Gypsy (22 December 1995 to 22 March 1996) was contained in edition 10 of the Standard for the Uniform Scheduling of Drugs and Poisons (effective 22 December 1995 and amendment no. 1: see letter from Secretary, NSW Poisons Committee dated 29 April 1998 and attachments (Ex G19). The list included Dimetridazole and Dexamethasone. 95 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. 96 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'.' 97 Also relevant to this inquiry is cl 59 of the Poisons and Therapeutic Goods Regulation 1994 which provides: ' 59. Records to be kept of supply of restricted substances by medical practitioners, nurse practitioners, dentists and veterinary surgeons A medical practitioner, nurse practitioner, dentist or veterinary surgeon who supplies a restricted substance in a quantity exceeding that required for 3 days' treatment: (a) must record the name, strength and quantity of the substance supplied and the date on which it was supplied, and (b) if the substance is intended for the treatment of a person, must record the name and address of the person to be treated, and (c) if the substance is intended for the treatment of an animal, must record the species of animal and the name and address of the animal's owner, and (d) must keep the record of the supply of the substance at the hospital, surgery or office of the person supplying the substance. Maximum penalty: 15 penalty units.' 98 Clause 3.1 provides: ' 3. Warning: therapeutic substances for internal use The label on a container of a therapeutic substance specified in Appendix F to the Uniform Standard (being a therapeutic substance that is intended for internal use) must bear the warning specified in that Appendix in respect of that substance.' Burden of Proof 99 In professional discipline proceedings the burden of proving the complaint against the practitioner rests on the referring body, in this instance the Committee. The Tribunal must reach a comfortable level of satisfaction ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-3) that the behaviour alleged was misconduct in a professional respect. As the Veterinary Surgeons Disciplinary Tribunal noted in Re Lloyd , unreported, 16 December 1994 at 5 noted: '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.' Credibility of Witnesses 100 In this Inquiry, there were many significant conflicts in the evidence as between Dr Lloyd and Ms Clee, as well as between Dr Lloyd and other witnesses who were in the company of Ms Clee at relevant times. Ms Green, on behalf of Dr Lloyd, submitted that the Tribunal should adopt a cautious approach in dealing with conflicts in the evidence as between Dr Lloyd and Ms Clee and her companions. Were the witnesses seen as being of equal credibility, and if there was no other evidence or material that would assist in resolving the conflict, the approach commended by Ms Green would, we consider, be the appropriate one; and consistent with the injunction of Dixon J in Briginshaw . 101 But this is not such a case. It will become apparent that we have resolved many of the conflicts in favour of the version of events given by Ms Clee and her companions. The findings rejecting Dr Lloyd's version of events have been reached conscious of their gravity for the practitioner, and mindful of the standard laid down in Briginshaw. 102 Dr Lloyd has given different versions of critical events at different junctures of the disciplinary process. It will be seen that in relation to many matters of importance he has not maintained a consistent account. His initial response to the complaint addressed only some of the many concerns and allegations raised by Ms Clee. At the Committee interview he sought to fill in the gaps and more fully explain his conduct. There were then significant differences between his account to the Committee and various accounts that he gave to the Tribunal, starting with the written statements of evidence filed by him and extending to statements made when giving oral evidence to the Tribunal. In contrast, Ms Clee has, in our opinion, given a substantially consistent and detailed account of events at all stages. The same is true of her companions. 103 This has meant that on many matters of conflict we have preferred the testimony of Ms Clee and her companions. In particular, Ms Clee impressed the Tribunal as a truthful and credible witness. Dr Lloyd's evidence was often vague and evasive. At times it appeared to the Tribunal that Dr Lloyd chose to give situational answers to questions in cross-examination which put his conduct in the most favourable light in terms of the question asked, even though the facts recited in the answer were inconsistent with ones given previously to the Committee and at earlier points in his evidence. 104 Ms Green, on behalf of Dr Lloyd, also claimed that the Tribunal should take into account when assessing the credibility of Ms Clee and her companions the way in which they cared for the welfare of the horse, Gypsy. The Tribunal allowed Ms Green some latitude in this area initially, but eventually interceded and indicated to Ms Green that Ms Clee and her companions were not on trial as to their treatment and care of Gypsy (see ts 640). 105 The quality or otherwise of their care was substantially irrelevant to the proceedings against Dr Lloyd. The issues to which Dr Lloyd was required to reply went to the quality of his conduct as a veterinary surgeon once the horse was the subject of consultation and the provision of professional treatment and care. The Tribunal views the criticisms and derogatory comments to which Ms Clee and her companions were subjected at many points in cross-examination and then in closing submissions as inappropriate and without any merit. The course pursued by Ms Green only served to add to the delays that have surrounded this Inquiry. 106 It was also said by Ms Green that in the event of a conflict on technical or scientific matters, the evidence of Dr Lloyd, as a practitioner, should be preferred over that of a lay witness. In this case Ms Clee's evidence almost entirely went to the matter of what was said as between Dr Lloyd and her; and his actions in her presence. Where Ms Clee's observations went to conduct that had a technical dimension, Ms Clee did not seek to provide the Tribunal with any technical assessment. CHRONOLOGY OF EVENTS Prior to 26 December 1995 107 As from July 1995 Ms Clee had often kept her horse, Gypsy, in a paddock in Prestons behind her fiancee, Glenn Tuinenburg's house. Gypsy shared the paddock with another horse. There were heavy rains in October and sewerage entered the paddock. The other horse became ill. As a result a few days later she shifted the horse to another paddock at Punchbowl. The horse was then aged about 18 years; and she had owned him for about 8 years. The last time she weighed him, about a year before, the horse was 450 kgs. Prior to the onset of the illness in October, she said the horse was very fat. 108 During November she noticed that Gypsy was losing weight. On 11 December 1995 she noticed that he was suffering from diarrhoea. 109 On 14 December 1995 she contacted the Randwick Equine Centre and they sent a veterinarian out to examine the horse. According to Ms Clee, he took some blood and gave an injection. The Randwick Equine Centre's records are in evidence (Ex G32). She received written advice that the blood count only showed one variation from normal, low sodium, which could be rectified by more feeding. The advice ruled out infection. The records show that Finadyne, 50ml, was injected into the animal. The Centre also sent her a text book note about diarrhoea. 110 She said that as a result of the advice she had increased handfeeding. She called the vet out again on 19 December, and he examined the horse. She was not sure whether he gave an injection, but does recall a blood test. She felt that over this time the horse was slowly losing weight. 111 As the diarrhoea had continued, she felt she should get a second opinion. Bill Lawson, the owner of a horse kept in a neighbouring paddock to Gypsy, recommended that Ms Clee contact Dr Lloyd, as Dr Lloyd had treated his horse for what he saw as a similar condition. 112 There was extensive questioning of Ms Clee in cross-examination over her care for her horse in the period before she contacted Dr Lloyd for advice (see esp ts 501-530). These questions sought to paint Ms Clee as an owner whose conduct prior to admission into Dr Lloyd's care had somehow contributed to or caused the ultimate death of the horse. We are satisfied that Ms Clee's actions were reasonable and she responded to her horse's problems in a caring way. We have noted (above) our concerns over the relevance of this line of questioning. 26 December 1995 – First Contact with Dr Lloyd 113 On or about 26 December 1995 Ms Clee contacted Dr Lloyd by telephone. She said that she asked him to come over to examine the horse. She said that she said that her horse had similar symptoms to those that the other horse had experienced in October. She explained that she was concerned that it might have contracted the problem from that horse. She said to him that she was concerned that her horse's condition might have been caused by a septic tank that was overflowing at that property causing faecal waste to enter the paddock. She also said to Dr Lloyd that the horse might have contracted a giardia infection from her, as she personally had suffered that problem on a recent trip to Asia. 114 She said Dr Lloyd had indicated that as he was familiar with the symptoms of giardia that she had described and that he would work something out and get back to her. Dr Lloyd agrees that he proceeded to ascertain the appropriate treatment on the basis that the horse had giardia. Giardia is virtually unknown in horses, and is known by veterinarians to be a very remote possibility. Dr Lloyd agrees with this view, and said that he told Ms Clee that it was extremely unlikely that the horse would have had giardia. He asserted in cross-examination that he is sure he would have had a conversation with her about 'differential diagnoses of chronic diarrhoea' (ts 744). We are satisfied from Ms Clee's account that did not occur. 115 Dr Lloyd also asserted that these contacts did not involve a consultation, but merely an inquiry for assistance made by phone and that he was not asked to give a diagnosis. This view provides a basis for his further contention that he was not obliged to conduct a full diagnostic examination of the horse, and recommend a course of treatment based on that examination. At hearing he described what he had done as having given advice on the basis of a 'presumptive diagnosis' of giardia infection. We deal with this view of the relationship later in these reasons. 116 According to Ms Clee's statement, she again called Dr Lloyd by phone and he advised her of his proposed treatment, but said that he would have to work out a dose rate as the books only referred to dose rates for chickens with giardiasis. The lack of reference to equine giardia in the books is reflective of the fact the condition is virtually unknown in horses. 30 December 1995 117 Dr Lloyd states in his reply (20 May 1996, Ex G5) 'I had, based on the owner's belief that the horse had caught giardia from an overflowing septic, dispensed Dimetridazole at a dose rate of 50 mg/Kg as suggested in the 8th edition of Veterinary Evidence.' In his statement prepared for the Tribunal hearing dated 28 July 1998 Dr Lloyd said that he consulted a standard text, Veterinary Medicine , by Radostits and others, and that it was clear from the text that any of the nitromidazoles was appropriate for a protozoan infection. 118 Ms Clee visited his surgery on Saturday 30 December 1996 to pick up the medication. Dr Lloyd said that he had a long conversation with her, discussing the horse and explaining to her how to administer, Dimetridazole. It took the form of a powder ('Emtryl'), and needed to be administered as a paste. 119 Dr Lloyd gave an account of how he calculated the dose, estimating the weight from what Ms Clee had said, then deducting how much weight it would have lost as against an average weight. He worked it out at 50 mg per kg for a horse of about 350 kgs. He said he regarded it as an 'outpatients case'. 120 He said in evidence he actually weighed out the dose before putting it into a container. Dr Lloyd had not made that assertion at any stage of the investigation or in statements filed in the proceedings. The assertion was made for the first time in response to Ms Clee saying that she did not see him weigh it. Our conclusion is that it is more likely that Dr Lloyd estimated the amount of the drug in line with the casual approach he took to estimating the weight of the horse. We accept Ms Clee's evidence. 121 Ms Clee said that he poured the Dimetridazole into another container (Ex G20) and told her to give the horse about a quarter every second day. Ms Clee said that when she went to pay his account he said that she should give the horse the medication every day. Dr Lloyd agreed that he originally told Ms Clee to administer the drug every second day but 'after due consideration of the constant dose to eliminate protozoa', he told her it should be administered daily and to 'give it one dose every day'. 122 Diagnosis. As to the question of whether the horse was likely to have had giardia, Dr Lloyd agreed at the Committee interview that this was a very remote possibility. He acknowledged at hearing that the likelihood of a horse suffering a giardia infection was extremely remote. He accepted estimates of 1000 to 1 as conveying the probability. He said he had never actually diagnosed a case of giardiosis before, but that he had proceeded in the way that he did because 'this woman was adamant that it was [giardia].' In contrast, Ms Clee said she raised the possibility of giardia as she was 'clutching at straws to see what it would be.' (ts 531) 123 The Committee at its interview on 19 August 1996 raised with Dr Lloyd its concerns in relation to the lack of a clinical examination of Gypsy prior to 9 January 1996. His reply included the comments that he was asked to dispense something for giardia, that he thought it was a novel diagnosis on the part of Ms Clee, and that he did not believe it was giardiasis. He referred to Ms Clee as having 'persisted' in pressing her diagnosis. We do not accept Dr Lloyd's evidence that Ms Clee was adamant that giardia was the cause of Gypsy's sickness. 124 Dispensary Function. Dr Lloyd acknowledged in cross-examination (ts 747) that veterinarians usually carried drugs and dispensed directly. He was pressed as to whether he had seen Dimetridazole as a placebo, for which nonetheless he had been paid, given his statement to the Committee that there is a 1-in-a-1000 chance that the horse had giardia. He then sought to suggest that the Dimetridazole ('Emtryl') would have some beneficial effect. He claimed that Bill's horse's diarrhoea condition improved after he gave it a drench that included Dimetridazole. But then he conceded that this improvement had been reported by Bill to him as already occurring prior to him giving the drench (ts 755). 125 Side Effects. Dr Lloyd said in evidence that he checked the texts as to side effects, but did not know that antibiotics generally were not well regarded in the treatment of chronic diarrhoea. He agreed that he was aware that I.V.S. (the veterinary drug handbook produced by pharmaceutical companies) advised that metronidazoles, such as Dimetridazole gave rise to adverse side effects of vomiting and diarrhoea. He did not answer directly the question of whether he could therefore agree that there is a real risk about dispensing such a drug in these circumstances (ts 757). In his statement for the Tribunal Dr Lloyd said that he told Ms Clee that the medicine was not registered, that it was going to be used 'off-label' as 'the major text states that it's an acceptable drug in horses with 'giardiasis'.' He said that he showed her the text, underlined it and that her boyfriend (Glenn Tuinenburg) was with her during this conversation. Dr Lloyd claimed under cross-examination that he did advise her about side-effects, told her it was 'off-label' and that it was not registered for use in horses (ts 767). 126 Ms Clee denied that he told her that the medicine was off-label and denied that he had shown her a text book. She said in her statement in reply (Ex G12) that the only time Dr Lloyd showed her a text book was on 23 January 1996 when she was speaking to him about the autopsy he performed on Gypsy. We accept Ms Clee's evidence that no conversation of the kind described by Dr Lloyd took place. 127 We do not accept that Glenn Tuinenburg was present on 30 December 1995. The statements from Ms Clee and Glenn Tuinenburg were consistent in that Glenn first met Dr Lloyd on 9 January and did not attend with Ms Clee on 30 December 1995. 128 At the Committee interview Dr Lloyd conceded that the administration of this drug (Dimetridazole) was an 'indiscretion' as it 'really wasn't registered for use in horses.' But he said that there were not many drugs registered for use in horses in respect of giardiasis. He said again that he had treated the situation as an 'outpatient case'. In mitigation of his failure to ensure that the drug was administered by a registered person, he said that it was a powder, he did not expect it to work and it had not. This is a direct contradiction of his original response to the Committee. 129 In re-examination Dr Lloyd said that it was his belief that there was no withholding period in relation to Dimetridazole at that time in New South Wales (ts 943). We deal with this question later in these reasons. 130 Labelling. Dr Lloyd had no satisfactory explanation for dispensing the Dimetridazole in an old container labelled and previously used for dog tablets, and which had printed in usual form on its side detailed instructions for administration of the dog tablets. His reason for using the container was that it had a Schedule 4 marking. He pasted a new label (with 'Dimetridazole 4 Treatments' hand written on it) on the spot that had the original name. 131 Payment Record. He was unable to produce a record of the transaction of payment, simply asserting that he threw his records out every two years or so (ts 779). We conclude from the time estimate that he gave that he did have such a record at the time he received notice of the complaint, but did nothing to secure it for the investigation. 3-5 January 1996 132 Ms Clee in her original letter of complaint said that she administered the first dose on 3 January 1996 as a paste to the back of the tongue. She said that it made the horse very groggy and that it began to stagger sideways almost falling. She said in cross-examination that she was not unduly surprised, as her neighbour Bill had warned her that this was a possible initial reaction. She said she gave the second dose on 4 January 1996 with a similar reaction, and again on 5 January 1996 with a similar reaction. She said in her statement for the Tribunal (Ex G11) that he had completely stopped eating by 5 January. Dr Lloyd stated in his original reply that 'the horse had an adverse reaction to either the drug or the method of administration, the reaction being atoxia and anaemia'. We regard the reference to the 'method of administration' as seeking to suggest that the fault may lie with Ms Clee. Dr Lloyd had no basis for raising such a possibility at that time, and gave none. 6 January 1996 133 Ms Clee continued to be concerned and visited Dr Lloyd at his surgery to tell him how the horse was. Dr Lloyd disputed that she visited the surgery on this date. His recollection was that he spoke to her on the telephone. We accept that a conversation took place between Dr Lloyd and Ms Clee on this date. It is not necessary to make a finding as to where the conversation took place at Dr Lloyd's surgery or over the phone. 134 In the conversation Dr Lloyd advised her not to give the last dose. Dr Lloyd in his original reply gives no explanation as to how he reached that conclusion. Dr Lloyd in his statement to the Tribunal said she had not said to him that the horse had deteriorated. We reject that statement. We are satisfied from the account that Ms Clee gave in evidence that she indicated to Dr Lloyd that the horse had got much worse. 7 January 1996 135 In her original letter of complaint, Ms Clee described the horse's condition on 7 January 1996 in these terms - 'Hardly has drunk. Not eating feed. Seems hot to touch … Dropped off a lot tuched [tucked] in noticeably behind last rib, tucked up.' 8 January 1996 136 In the original letter she described the horse's condition on 8 January 1996 in these terms - 'Not eating feed. Little water drunk. Very loose poos. He was laying down. Lost a lot more weight, noticeably more, than previous day, very tucked in. He is sucken [sunken] in behind the last rib (the length of my hand). His top hip bones sticking up and his rump was hollow - his ribs still not excessive, his neck straight.' In cross-examination she said (ts 535): 'He was hot to touch, he stopped eating, he wasn't hardly drinking. He was extremely quiet.' 137 She said that she phoned Dr Lloyd, being very distressed over the horse's condition. She described the symptoms. She said that Dr Lloyd expressed the opinion that the horse had colic. Dr Lloyd agreed that he had expressed such an opinion. He was cross-examined (ts 785-90) as to what led him to conclude the horse merely had 'colic' given the gravity of the symptoms. Dr Lloyd was unable to give any persuasive answer. Dr Lloyd was asked again in re-examination (ts 946) why he did not investigate his provisional diagnosis of colic by performing abdominocentesis. He did not provide any explanation, instead referring to the investigatory steps that might be appropriate to chronic diarrhoea (ts 946). The answer was evasive. 138 Injections at Paddock. Dr Lloyd decided to refer James Murray out to administer injections to the horse at its paddock in Punchbowl. In his original reply Dr Lloyd did not refer to this event which involved the administration of a restricted substance (Dexamethasone) despite it having been referred to in detail in Ms Clee's letter. In Dr Lloyd's original reply James Murray is mentioned but only in relation to the burial of the animal which he says occurred on 13 January 1996 (see further below). 139 This suggests to us that at the time of complaint he did not attach any significance to having authorised an unregistered person to administer a Schedule 4 medicine. It only acquired significance for Dr Lloyd, as we see it, when the matter was raised in the course of the Committee interview. 140 In evidence Dr Lloyd said that he chose Dexamethasone because it was a corticosteroid that can be given intramuscularly, and because it was a lot safer for a layperson to administer than a non-steroidal anti-inflammatory drug such as Flunixil (ts 708). On the other hand he said to the Tribunal that Dexamethasone was an anti-inflammatory agent commonly used in the treatment of colic, the condition that he thought the horse might be suffering from, going by Ms Clee's description. We do not agree with Dr Lloyd's opinion. Dexamethasone is a powerful anti-inflammatory agent that has no indication in non-specified colic. Flunixil is indicated for pain relief in colic, can be given intramuscularly and commonly used. 141 Dr Lloyd said that the drug was administered at around 7.30-8.30 at night, when he was at the trots at Bankstown. In light of Mr Murray's evidence referred to below, we do not accept that time estimate. We are satisfied the time was much earlier than that. In reply to the criticism that an unregistered person had been permitted to administer a drug by injection to a patient that he had never seen, Dr Lloyd said, basically, that he sent someone else when he could not get there himself. 142 Dr Lloyd claimed that he gave James Murray detailed written instructions. There was no other evidence of this. He said he placed the instructions in separate plastic bags with notes in each bag as to what he has to do. He gave similar evidence to the Tribunal. We are not satisfied that there were any detailed written instructions. Dr Lloyd did not give an explanation for his failure to give such an explanation in his original reply. 143 James Murray in his statement for the Tribunal said that Dr Lloyd was operating on a dog at the time he was asked to go and attend to the horse. Dr Lloyd, he said, called out the instruction to send him to the horse. James Murray said that Dr Lloyd put the injections in bags, sealed the bags and marked each injection. One was marked 'IV', the other 'IM'. (ts 992). We are satisfied that these were the totality of any written instructions given by Dr Lloyd. James Murray said the instructions he got from Dr Lloyd were: 'Just look over the horse. Just have a look at him, make sure he has got no broken bones, anything like that. Give the injections and tell the lady to walk the horse for an hour. If she has any problems to get back to me.' (ts 994). 144 James Murray said he had previously been with Dr Lloyd on rounds when Dr Lloyd did injections. He later varied that evidence saying that there had been previous occasions when he had actually administered injections in Dr Lloyd's presence on racing stable visits. His experience in administering injections had been acquired around his father's trotting stables. He stated that this was, however, the first occasion when he had been sent out on his own to do an injection (ts 989). He said he worked full-time for his father, and the work he did for Dr Lloyd was rewarded by a 'bit of a drink and money - $20 or something.' (ts 990) 145 The Committee queried Dr Lloyd as to why he did not administer the injections himself. He gave conflicting explanations to the Committee and the Tribunal as to what prevented him from attending to the horse directly. In his interview with the Committee he said that Ms Clee called him on his pager while he was at the Bankstown trots. On the other hand, to the Tribunal he said that Ms Clee had rang him while he was operating on a dog. The latter explanation accords with the evidence of Ms Clee and James Murray. Dr Lloyd's failure to give an accurate account to the Committee is unacceptable. 146 There are differences between Dr Lloyd and Ms Clee as to Ms Clee's side of her phone call to Dr Lloyd. In his statement to the Tribunal, Dr Lloyd said that when Ms Clee called, he told her he could not come because he was operating on a critically injured dog, and that if he could not get another vet to come out then he would send his horse handler out. According to Dr Lloyd, Ms Clee replied that 'No other vet will come' to which he replied 'That's probably because most vets consult between 5 and 7. I will send my horse handler out with some treatments for the horse.' 147 Ms Clee disputed the aspects of this account which suggested that she had tried to find other vets to assist, or that Dr Lloyd had raised the possibility of him finding another vet. James Murray said that he was with Dr Lloyd when Ms Clee called. He gave the following account of what Dr Lloyd said: "I'm tied up. I can't get out of here. If you like I'll send James over with injections. He's given injections before but he isn't a vet. He's a horse handler so he knows what he's doing". 148 There is no reference here to the possibility of other veterinarians becoming involved. We accept Ms Clee's evidence that she did not raise this subject, and nor did Dr Lloyd. Ms Clee's account is consistent with James Murray's account. 149 Dr Lloyd's account of when the injection took place is also not supported by Ms Clee or James Murray. Murray placed the time of these events in the mid-afternoon. He said that when he arrived at the paddock, at about 5.00 pm, he found the horse in poor condition. He referred to the kidneys being tucked up, and that he was underweight and his eyes sunken in. He said he wiped the skin with betadine pads before doing the injections. James Murray's description closely accords with what Ms Clee said in her original complaint, again lending weight to Ms Clee's credibility. Ms Clee could only recall one injection, the Dexamethasone (ts 536). We accept Mr Murray's evidence that there were two. 150 Dr Lloyd said he went to the trots after completing the operation he was performing when Ms Clee called. In our view, a more likely motivation for Dr Lloyd was that he did not want to be further delayed in getting to the trots as a result of attending to Gypsy. Dr Lloyd said he arrived there between the second and fifth races (7.00-8.30pm). Murray said he made it to Bankstown for the first race which was either at 7.00pm or 7.30pm. He said he arrived one race before Dr Lloyd got there. This places Dr Lloyd's arrival at about 7.30 or 8 o'clock. Murray said he told Dr Lloyd about the condition of the horse and his concerns. 151 In response to questions from Dr McGilvray, Dr Lloyd conceded that he was out of contact with clients when at the Bankstown trots. He acknowledged that as Hoxton Park was an A class hospital he was obliged to have a 24 hour service (see cl 13(a) of Part 3 of Schedule 2 to the Regulation). He said he had a pager and a paging service. But he could not at that time make contact with the service without leaving the racecourse, as on-course use of phones was banned at that time. These answers also support our conclusion that Dr Lloyd's original statements that Ms Clee contacted him when he was already at the course were false. 9 January 1996 152 After the injection Ms Clee felt that initially the horse was much improved. 153 Ms Clee rang Dr Lloyd on the morning of 9 January. Dr Lloyd asked her to bring the horse down to the surgery. She and her fiancee, Glenn Tuinenburg, took the horse to the surgery at Hoxton Park. On arrival Ms Clee said that Dr Lloyd examined the horse and said to her 'How much do you want to spend given his age [20] and you have already spent money on him.' Glenn Tuinenburg said in his statement that on arrival Dr Lloyd had said words to the effect, 'How much are you prepared to spend on this horse considering you have spent so much money and he's probably got cancer.' He said Sharon burst into tears at this point. He also describes Dr Lloyd looking at the gums and saying the horse is anaemic. 154 Ms Clee said in her statement to the Tribunal that this made her cry further. She said that he then looked in his mouth, inspected the gums and said that the horse was anaemic. She said that he said he would drench him. She recalled him putting his hands on the horse's shoulder and neck. She said he took the horse's temperature and it was 39 degrees. She said that Dr Lloyd spent about 5-10 minutes looking at the horse. She recalled that Mr Murray and a nurse (Ms Mellony Johnston) were also at the surgery. 155 In his original reply Dr Lloyd said, 'the horse on examination exhibited: severe emaciation; diarrhoea; anaemia; ventral oedema; pale mucous membranes; cardinal signs being HR52; RR22 and laboured; PCV 48 with serum discolouration; faecal flotation exhibited strongyle eggs; and the body temperature was 38.8 degrees.' 156 At the Committee interview Dr Lloyd referred to the horse's arrival at his surgery on 9 January and said that 'it was in a totally different condition to the information I had been given.' On the other hand, Dr Lloyd said in evidence to the Tribunal that on Monday 8 January Ms Clee called to tell him that the horse was 'really sick and is lying down and getting up constantly'. His own evidence was that James Murray had told him that evening after he had seen the horse that it was a 'bag of bones'. 157 Dr Lloyd said that because of the condition of the horse he discussed with Ms Clee whether the horse should be put down. He said that he administered 25cc Penstrep IM; and the horse was tubed and drenched with Mebendazole, piperazine, neguvon, electrolytes, Scourban and Trimethoprim powder. 158 In the statement for the Tribunal Dr Lloyd said that he said to Ms Clee 'I don't understand why you didn't bring it in sooner to see me.' He said that he took a faecal sample and did the flotation test, and advised her that the horse had a severe infestation of worms. He said he went on to say that the most likely causes of this horse's conditions are severe parasite infestation, cirrhosis, cancer or colitis x which he said was a chronic diarrhoea that is hard to treat in horses. He said in his statement to the Tribunal that after he undertook a faecal flotation test, he came back to her and said, 'The horse has severe infestation of worms.' 159 At hearing he said that he detected the presence of a high density of strongyle eggs. He said that he considered the liver was 'a foci' of infection as there was a 'buffy coat' in the PCV. (Dr Rawlinson (one of the experts called) did not think the PCV reading recorded by Dr Lloyd was unusually high, the usual range being 38 to 46; nor was the presence of some strongyle eggs in the faecal material. This matter is discussed again later in these reasons.) 160 In that statement for the Tribunal he said that he raised with Ms Clee the possibility of taking the horse to experts at Camden (the Rural Veterinary Centre at Camden, University of Sydney). There was no reference to this matter in his original response. Dr Lloyd said in his statement that he had contacted Dr Dart; and they had a lengthy discussion about the treatment of chronic diarrhoea. He discussed other tests that he might have undertaken such as full blood chemistry, carbohydrate absorption tests and liver and intestinal biopsies. He said that Dr Dart did not suggest that he change his treatment. He said that Dr Dart had quoted a price of $1500 to have biopsy samples taken to assist in dealing with chronic diarrhoea. Dr Lloyd said that he Ms Clee had declined to have these tests done. 161 Ms Clee denied any such suggestion was made to her, and the entirety of the alleged conversation. Glenn Tuinenburg, who was present, stated that no such statements were made. 162 Dr Dart presented a report to the Tribunal. Dr Dart did not refer to any such conversation. His report had been provided to Dr Lloyd in response to a series of questions (Ex G30). Dr Dart was not called to give oral evidence at the hearing. There is no corroboration for Dr Lloyd's account, and we reject it. We accept the evidence of Ms Clee and Glenn Tuinenburg that Dr Lloyd did not refer them to a specialist. In closing submissions on 29 November 2002 Ms Green urged the Tribunal to be cautious in reaching any such conclusion. 163 This submission was made in the following circumstances. On that day Ms Linkenbagh for the Committee tendered two small pocket diaries (for 1995 and 1996) said to belong to Ms Clee. That diaries of this kind existed was known during the course of the hearing. Mr Burchett had not tendered them, and Ms Green had not made a call for them. Ms Linkenbagh said she now produced them to ensure that all relevant information was before the Tribunal (ExG48). 164 The Tribunal decided with reservations to admit the material, but noted that it was not practical at such a late point now to reopen the question of whether to recall witnesses including Ms Clee to comment on the significance or otherwise that should be attached to the contents of the diaries. (We note in this regard that the question of whether to re-open in relation to further evidence was considered and dealt with at hearings in September and October without any such submission being made.) 165 It was said by Ms Green that the entries in the diary referring to the University Rural Centre at Camden corroborated Dr Lloyd's testimony that he referred Ms Clee to the Centre. The most, we consider, that can be said is that the entries if made by Ms Clee point to her being conscious of the existence of the Rural Veterinary Centre, and having its phone number details. Her evidence, which we accept, is that she did make contact with the Centre on 17 January (see her statements and ts 648). 166 Ms Clee vigorously disputed a number of other aspects of Dr Lloyd's account of what he said to her in the conversation on 9 January. She said that Dr Lloyd had not made any reference to the horse suffering from worms. It was clear that she saw this suggestion as a slight on her care as an owner of many years' experience, as this was something that she should have been able to pick up. Miss Clee gave evidence that she had wormed the horse regularly, the last time being early December. We accept Ms Clee's evidence. 167 Ms Clee denied Dr Lloyd's assertion that he told her that he found fluid build up in the abdomen, and denied that he said, 'I don't know why you didn't bring the horse to me sooner?' We accept Ms Clee's evidence. 168 Mellony Johnston, nursing assistant, was present at these events. Her statement for the Tribunal refers to an adverse comment made by Dr Lloyd to Ms Clee when she arrived with the horse, saying 'Why did you leave it so long – this horse is in a real bad way. I can't see this horse leaving here alive'. In response to Ms Johnston's statement Mr Tuinenburg said that he did not remember Dr Lloyd making a comment about having left it so long to bring the horse in. 169 The evidence is divided on this point, and we are unable to reach a conclusion as to whether or not Dr Lloyd made the comment. Dr Lloyd already had had several communications from Ms Clee (especially on 30 December, 6 January and 8 January) which should have led him to consider visiting the horse and examining it. The question of whether the horse should have been brought in for examination was one for which Dr Lloyd had ultimate responsibility. It was not one, as the comment which he says he made might suggest an issue, that was entirely within the province of the owner. Ms Clee's evidence, which we accept, is that she raised with Dr Lloyd in her first conversation (on or about 26 December) the possibility that he might come out and examine the horse. We consider that if the comment was made by Dr Lloyd as he says, it was done to deflect attention from the responsibility he bore for not having examined the horse earlier. 170 Ms Johnston said the horse had a dull coat and was skinny. She said Dr Lloyd manually examined the horse. She said that she was not present throughout this time, as she had to return to the surgery to answer phone calls. She did hear a conversation in which Ms Clee said that she had been feeding it some watered down grass. 171 Ms Clee said that she asked on 9 January Dr Lloyd to put the horse on a drip. Dr Lloyd said that Ms Clee only brought up the subject of IV drips on a later occasion (the next day, 10 January), after the 'abrading of the horse's upper lip and mucous membranes above the teeth were noticed by her' (ts 945). Dr Lloyd said he explained to her that it wasn't practical, and that because the horse was still drinking, electrolyte addition to the fluid was required. He considered that if an IV drip was put into an ill horse, it would be necessary constantly to monitor the serum to check on the effectiveness and also the possible repercussions of that drip, such as hypokalemia if it is infused too fast (ts 945). 172 We accept Ms Clee's evidence that she raised this matter on arrival on 9 January, not a day later. It is in our view highly probable that an experienced horse owner, such as Ms Clee, would have raised that possibility at the first opportunity. We do not accept the various reasons (ts 884) that Dr Lloyd gave for not seeing a drip as a practical step in the circumstances. 173 In his statement for the Tribunal Dr Lloyd said he estimated the horse's weight at 180-200 kgs and that it had lost weight markedly as against his previous estimate (which he had made without having seen the horse) that it was about 350 kg, which in turn he had calculated by discounting significantly the weight of an average fit stock horse (which he put at 500-550 kg). (In our opinion the usual weight of a horse like Gypsy would be around 450 kg.) Dr Lloyd said he discussed euthanasia because of the state of the horse. Asked whether he was concerned about its condition, he said: 'Yes, I was, and I was upset that I'd been led astray, or deceived into thinking that the horse was in fair condition when it wasn't. It was in an incredibly poor condition.' (ts 821) 174 (Ms Clee also said in her statement to the Tribunal and at hearing that during this conversation she saw a car with a box trailer pull up and unload its contents into the dam. She saw things floating in the water. She did not know what were, but that there was a very strong foul smell in the air.) 175 Quality of Investigation on Arrival: As to his failure to examine the horse thoroughly, Dr Lloyd gave a similar account at the Committee interview to that in his reply to the complaint. He was questioned why, with a horse presented in the condition that he had described, he did not do some tests. He said he did not do tests as he was more concerned at the time to stop the diarrhoea by physical or chemical means. He was challenged (given the condition of the horse and given the chronic diarrhoea) as to why he chose simply to treat the problem as one of diarrhoea alone without looking for more insidious explanations. Dr Lloyd said that he undertook a packed cell volume (PCV) test. He said the test showed a score of 48 and saw it as indicative of anaemia. 176 The Tribunal does not consider this factor (a score of 48) as justifying a conclusion that the horse had anaemia. It is necessary to perform a total protein test. Such a test gives a guide as to the amount of dehydration. If there is significant dehydration the PCV is artificially high. In this particular case the score only suggests slight dehydration. The score does not establish anaemia. It tends to establish the contrary conclusion (the horse is not anaemic, at least in any serious way). Competent veterinarians are aware that if total protein is normal then the PCV score needs to be below 35 to form a provisional diagnosis of anaemia. (See also Dr Rawlinson's evidence to the same effect (ts 684).) 177 Dr Lloyd claims that he diagnosed anaemia and pale mucous membranes. Pale mucous membranes is a symptom which can suggest anaemia. Laboratory tests are required to confirm the suggestion. 178 Record. Dr Lloyd's record card (Ex G6) commences on 9 January 1996. It does refer to most of the matters that he said that he observed, including severe emaciation and pale mucous membranes. The contents of the entire record from 9 January - 23 January are set out below, for convenience. '[records Ms Clee's phone numbers, not necessary to publish here] Gipsy 20 yo Geld Grey 9.1.96 Hist. – Chronic Diorrhoea – Severe Emaciation, Anaemia. Vent Odema Cl. Exam. – T 38.8 Pale MM HR .52 RR22 - laboured. PCV 48 Serum Discol., Faecal Float – Strongyle Eggs * Rx Drenched. Pip. Neguvon and Mebendozol + Elect. +25cc P-S IM Scouban Trimethoprim powd 10.1 No improvement. – Elect + Antibiotics Drench +PS by. IM. Except for harder faeces 20CC Spasmolg. IV 11.1 Treatment Repeat 12.1 Horse found dead 7.20AM PM Intest Cancer and Liver Complic Samples taken A/C' 179 Dr Lloyd said to the Committee that he only started his record card on 9 January once the horse was presented to the surgery. He gave that explanation also as the reason for failing to include on the card information as to: his prior contact with Ms Clee, the advice that he had given, the medications supplied, and in particular, the lack of any record as to the administration of the injection the day before. 180 Dr Lloyd agreed that his record card did not provide any information as to the information given to him by Ms Clee that the horse had experienced adverse side effects from the Dimetridazole. He rejected the Committee's concern that the absence of information on the card was not significant were another veterinarian to take over the case because the new vet would talk to the owner or the previous vet (ts 934). He denied that the inadequacy of his records put at risk the animals that were being treated. He was reluctant to concede the existence of a number of obvious deficiencies in the contents of the card, in particular as to the nature and extent of the repeat treatments (ts 935). 181 Ms Gwen Bennett, a dog breeder, worked casually for Dr Lloyd without pay in return for his veterinary services. In 1995 she spent about 3 days a week at Hoxton Park for an hour or two attending to the books. She said that the practice was busy and she believed that he did not have time to write up the cards, but did it after hours (ts 968). 182 Dr Lloyd's evidence (leave it to the owner to inform the next veterinarian) and Ms Bennett's evidence (Dr Lloyd too busy to keep proper records) reflects poorly on Dr Lloyd's understanding of the importance of his recordkeeping responsibilities. 10 January 1996 183 The entry in the card for this date states No improvement. – Elect + Antibiotics Drench +PS by. IM. Except for harder faeces 20CC Spasmolg. IV. 184 Dr Lloyd reiterated this information in his reply to the original complaint. In that letter he also stated that the drench was repeated but without the three wormers. He said also 25cc of Penstrep was administered. This amount had not been recorded on the card. Dr Lloyd gives a different time in his statement for the Tribunal as to when these steps occurred. These events were said to have occurred on 11 January. We are guided by the card on this matter, and accept 10 January as the date. 185 On 10 January Ms Clee and Glenn Tuinenburg visited Hoxton Park to see how Gypsy was faring. The circumstances that Ms Clee and Glenn Tuinenburg said they encountered on that day gave rise to Allegation 1(n) (failure to consider welfare of animals by having the horse tethered in a way that prevented in reaching water). The charge was vigorously contested by Dr Lloyd. 186 In her original complaint to the Committee Ms Clee said that they 'found [Gypsy] standing on his lead rope' and that 'we released him' and 'he went straight for water'. In her statement Ms Clee said that on this day Gypsy had a halter and a lead rope on. She stated that: He was standing on the lead rope and could not walk to the water trough. I took the lead rope off and Gypsy went straight to the water trough. When I looked in the trough I saw that there was only about five inches of water in it. Gypsy swished his muzzle in the water for about 10 minutes. I then pulled him up and I checked his mouth. His gums were bright red and his tongue was swollen. I let him go and he went back to swishing his muzzle in the water. 187 In his statement, Glenn Tuinenburg said that 'one or two days' after the horse was admitted to Dr Lloyd's premises he and Ms Clee went there and they 'found him standing in his lead rope and unable to walk to get to the water trough'. He said that they took the lead rope off and Gypsy walked straight over to the water trough. We are satisfied that he was referring to the same events reported by Ms Clee on 10 January. He also said that there was very little drinking water in the troughs to which Gypsy had access. He went to Dr Lloyd's surgery and expressed concern to Dr Lloyd, who he reported said he would attend to the problem. He said that he had a conversation with Dr Lloyd to the following effect: I said: "Why did Gypsy have a lead rope and halter on? He said: "Oh, it makes him easier to catch." … I then said: "Why wasn't there enough water in the trough? He said: "I was just going to fill it up" 188 At hearing, Ms Clee said that she saw Gypsy standing on a rope (ts 563). She also said that there was only enough water in the troughs for 'one horse for five minutes' (ts 563). She noticed about 4 horses in the paddock. Her recollection was that the two cement double troughs were empty. 189 Glenn Tuinenburg's evidence at hearing was that Gypsy was standing five metres away from the water bowl. In reply to the question from Ms Green 'Did you look under the shelters for water?', he replied, 'He wouldn't have been able to get water because he was standing on a lead rope that he had tied to his halter'. It was put to him that this was not true and he answered 'It is true'. 190 He said that the trough only had about an inch of water in it. He said that Dr Lloyd told him that they had enough water and when he disagreed with him he thought that Dr Lloyd would get someone to fill the trough up (ts 638). When Glenn visited the next day, the situation was the same with very little water in the trough. 191 Characteristic of much of the cross-examination, seeking to advance the proposition that Ms Clee was negligent owner was this exchange (ts 564) followed by a series of similar questions (ts 564-568): Q: When you were trying to see for water, why didn't you fill up the trough? A: Because I expected to just go up there and speak to the vet about it. 192 Similar accusatory questions were put to Glenn Tuinenburg suggesting for example that if they wanted 'hospitalised treatment' the horse should have been taken to Camden Veterinary Hospital (see ts 634) and that he should have filled the water trough (ts 639). 193 Ms Clee said that she was very angry and later that day drove back with Glenn to Dr Lloyd's surgery to complain. In her letter of complaint, Ms Clee reported Dr Lloyd as saying that his redness was due to twitch and drench. Glenn Tuinenburg said that in reply to Ms Clee's questions as to the horse's gums and tongue, Dr Lloyd said the problem was probably due to the horse's medication, that he had found Gypsy drinking from the dam, and that he had pulled him away before he could drink too much water. 194 In his original reply Dr Lloyd did not refer to Ms Clee's account of these events. 195 There is only passing reference to the matter by Dr Lloyd at the Committee interview. Dr Lloyd said to the Committee that the horse was placed in a 3.5 acre paddock with other horses and had access to water and feed. In his statement to the Tribunal Dr Lloyd says that Ms Clee had contacted him several times over these days, and that she had never expressed any criticism to him in relation to the supply of water or as to the horse being tethered. 196 Dr Lloyd stated that there was never any shortage of water in the paddock, and that the paddock had two large double cement troughs which were filled each morning, checked each afternoon and the capacity of the troughs was greater than a few horses could reasonably drink in any 24 hour period (ts 830f). 197 In re-examination, Dr Lloyd described for the first time a more orderly arrangement (ts 913) involving nurses being 'required' to check and refill the water tanks, and then being 'asked' to check levels in the afternoon. He said he would often go for a walk as well to check them. This evidence is not consistent with that evidence given by his staff which had value, and is rejected. 198 The evidence given by his staff follows. We derived no assistance from the statement to the Tribunal and the subsequent evidence given by Gwen Bennett who helped with Dr Lloyd's accounts. She said generally that water tanks were filled several times a day at Hoxton Park. She was unable to shed any light on the conditions when Gypsy was being cared for. 199 There were also statements from Simone Harris, veterinary nurse, and Mellony Johnston. They described generally the holding pen arrangements at Hoxton Park in January 1996. These statements were of some value. They referred to the practice followed in replenishing the tanks. 200 At that time Ms Harris was employed as a casual usually four days a week and usually starting at 4pm and finishing at 8pm. She said while she was employed at Hoxton Park at the relevant time, she never saw Gypsy (ts 975). She said the day shift nurse looked after watering and feeding, and she would check with her (at this time, Mellony Johnston) as to whether any more needed to be done. She acknowledged that looking after the horses was a task that largely fell to James Murray, who would come and help during the afternoon (ts 977). James Murray agreed in cross-examination that it was not his job to check on the horses' food and water (ts 999). 201 As to the question of whether the horse was left in the paddock in a way that enabled him easily to reach water, Dr Lloyd in his statement for the Tribunal said: I never left a lead rope on Gypsy. It was not our practice to use a lead rope except to catch the horse to bring it up for treatment. I never found the horse in the paddock with a lead rope. I have never known my staff to leave any horse in the paddock with a lead rope. Even when a horse was left for a short period in the holding pen it was our practice to remove the leading rope and place it on the fence and reattach it to bring up the horse. 202 Ms Clee and Glenn Tuinenburg gave direct evidence of the observations. Glenn Tuinenburg's evidence is that Dr Lloyd admitted that he had left the lead rope on, because 'it made him easier to catch'. 203 James Murray accepted in cross-examination that (ts 998) that a horse could get stuck with a lead rope. He agreed with the proposition that it is quite conceivable that a horse standing on its lead rope would not have been able to get from there to the water. In his statement Mr Murray said that he helped catch the horse a day or so after it arrived at Hoxton Park. He says that 'he has never seen a horse left with a leading rope in the paddock' and he 'never left a leading rope on the horse'. 204 Mellony Johnston said in her statement that the horse 'at all times wore a halter' and 'I used a leading rope only to catch it'. She said that on one day she and James Murray had spent 45 minutes trying to catch the horse so that Dr Lloyd could examine it. She said in evidence to the Tribunal that James Murray did most of the work catching horses – he did the lassoing while she ran around chasing the horse. 205 She said that she had left a lead rope on when a horse was in the holding pen; and described the lead rope as a long, thick rope. (ts 13/12/00:204 and 214). Ms Johnson's evidence is directly contrary to Dr Lloyd's statement, quoted above, where he says, to reiterate, that 'when a horse was left for a short period in the holding pen it was our practice to remove the leading rope and place it on the fence and reattach it to bring up the horse.' We do not accept Dr Lloyd's evidence. The evidence given by the persons usually responsible for handling the horses (James Murray and Mellony Johnson) suggests a lax approach to the way in which horses were caught or allowed free movement. 206 Mellony Johnston reports that she and James Murray had considerable difficulty catching the horse on one occasion, as was also stated by Dr Lloyd. (Dr Lloyd said he could not catch it one morning and then sent Mellony and James off to do the job. This was almost certainly the morning of the 10th, given the condition in which Ms Clee found the horse on the 11th, as to which see below.) 207 This points towards the possibility that a lead rope may well have then been left on the horse to make it easier to catch it the next time. We have indicated at the beginning of our examination of the evidence that we found Ms Clee and Mr Tuinenburg to be credible witnesses. We accept their evidence of their observations, and Mr Tuinenburg's account of what Dr Lloyd said to him. Dr Lloyd's evidence is rejected. 208 We are satisfied that a lead rope had been left on the horse, at the time when Ms Clee and Glenn visited. We found Ms Johnston's answers often unsatisfactory, perhaps because of the length of time that passed before she gave evidence (evidence at ts 13/12/00:194-214). It is not necessary for us to reach a conclusion as to who left the lead rope on. We are satisfied simply that it occurred; and that it Dr Lloyd or one of his staff probably left the rope on. That may well have occurred after the difficulties reported by Ms Johnston in relation to chasing Gypsy for 45 minutes. 209 Provisional Diagnosis of Cancer. Dr Lloyd's ultimate explanation for the horse's death was that it had cancer. There was dispute in the case as to when Dr Lloyd first raised the possibility that the horse had cancer. According to Ms Clee, it was during their encounter on 10 January that Dr Lloyd first mentioned the possibility of cancer. She was unsure of what was said at that time when giving evidence (ts 554). We accept that Dr Lloyd did mention the possibility of cancer, at least to Glenn Tuinenburg, on admission the previous day. Ms Clee, we are satisfied, was unaware of the remark. 11 January 1996 210 Dr Lloyd's card states: '11.1 Treatment Repeat', thereby indicating that his treatment for 10 January was repeated. He said the same in his original reply. 211 Ms Clee visited Gypsy again on 11 January and found him to be weaker and laying on the ground. She spoke to Dr Lloyd. In her letter of complaint she reported Dr Lloyd as saying the horse was 'OK' and that his mouth problem was due to the drench. There is no response to this statement in Dr Lloyd's original reply. 212 In his statement to the Tribunal, Dr Lloyd indicated that he had a conversation with Ms Clee about the condition of the horse's gums. He stated that 'The gums were abraded because of the rubbing of the twitching rope. I said to her "The twitch rubs against the mouth as the horse tries to get away from the stomach tube". The gums were not ulcerated.' At hearing Dr Lloyd agreed that the horse had ulcers in its mouth. Dr Lloyd said that the abrasion was caused by him through use of a twitch and stomach tube (ts 843-844). 12 January 1996 213 The next entry on Dr Lloyd's card is for 12 January and states 'Horse found dead 7.20am'. This statement is also the next one in Dr Lloyd's original reply. He said in cross-examination (ts 844) that he performed an autopsy 'there and then'. 214 He said he made an incision on the left flank of about 12 to 18 inches. He lifted up the anterior flank of skin so as to reach the liver. He said he pushed the intestinal mass back to get to the liver. He took two samples, one of the liver and one of the colon. He agreed that formalin was readily available to him but said that he had not chosen to preserve the samples. 215 Notification of Death. Dr Lloyd conceded that he did not follow the accepted practice of informing Ms Clee of the death and seeking her permission to conduct an internal examination. This was because he had a round of (trotting) stable calls to make starting at 7 am (ts 845). He said that he had gone back to get his surgical tools from the surgery (about 60 yards away) to do the incision. He did not take the opportunity while at the surgery to call Ms Clee. He said that he did not think it was appropriate to call then as it was 'between 6 and 7' (ts 844-846) which, we note, is a time different to his other statements that the horse was found dead at 7.20am. 216 Ms Clee said in her original complaint that she went to the paddock that afternoon (after visiting her mother's grave) to see how Gypsy was. She was met by Dr Lloyd driving away from the property. She said he stopped to inform her that the horse had died in his sleep that morning. 217 In his original reply Dr Lloyd did not refer to the question of when he notified the owner of the death of the animal. In his interview with the Committee he gave the same version as Ms Clee, saying that the owner turned up 'that afternoon and I explained to her that the horse had died as I was going to another clinic' (interview, p6). Then in his statement for the Tribunal he said he informed Ms Clee 'that day' when she arrived at 'the surgery' (p18). Then in answer to a question from Dr McGilvray, he said that their cars crossed at 8 am as he was on the way out to his other surgery (at St Mary's), and that he intended to call Ms Clee when he got there. Dr McGilvray had asked him questions relating to when he intended to contact the owner of the horse to notify her of the death. It will be seen that Dr Lloyd's answers at different stages of this disciplinary process have been inconsistent as to time of the events, as to where he spoke to Ms Clee and as to where he is going. One of Dr Lloyd's versions is consistent with that of Ms Clee. Dr Lloyd's evidence was plainly unsatisfactory. 218 We are satisfied that Ms Clee's account is accurate. Ms Clee had visited her horse every day. She had been very distressed to hear that it might die. Yet Dr Lloyd took no prompt action to inform her of the horse's death. He gave a reply to Dr McGilvray designed, we consider, to minimise the extent of his transgression of accepted standards of practice in this regard. Had Dr Lloyd not encountered Ms Clee that afternoon, it is not clear when he intended to notify her. 219 Diagnosis of Cancer. We accept the substance of Ms Clee's account of what he said, as reported by her in her statement. 220 She said Dr Lloyd said 'I'm sorry to tell you that Gypsy has died. He died in his sleep this morning. I did an autopsy and I found tumour nodules in his stomach and his liver was riddled with cancer.' She said, 'How can you tell?' and he said, 'I've done a lot of autopsies and I could tell by just looking at it. I kept a sample to show you. Would you like to see it?' She said, 'No. I'll look at it later.' He said, 'I'll keep it for you. You can come and see Gypsy if you want.' She said, 'No. I don't want to see Gypsy like that.' 221 Dr Lloyd said he then decided to keep the samples 'for a day or so' (statement for Tribunal, p18). Ms Clee says that Dr Lloyd said, 'What will I do about burying him.' He said, 'I'll bury him for you.' She said: 'Where will you bury him and how will you do it?' He said, 'I'll get a bobcat and I'll bury him in my paddock.' Dr Lloyd denies that he made a reference to a bobcat (see agreed statement of facts). The denial is rejected. 222 It would have been more appropriate for Dr Lloyd to have raised the naturally distressing subjects of taking and keeping samples and burial at a time when Ms Clee was in a calmer and better position to respond, perhaps even a few hours later. 223 As to the question of the quick autopsy done without permission, Dr Lloyd said to the Tribunal that a 'post-mortem' was performed to determine the probable cause of death. 224 The record card contains the following 'PM [post mortem] - Intest Cancer - Liver Complic - Samples Taken.' Followed by 'A/c' [account]. In his original reply Dr Lloyd said 'A post-mortem was performed by myself in order to determine the probable cause of death. A large transverse incision was made on the left flank and the intestinal mass and colon was exposed. Upon incision of the colon, large grey nodules approximate 1-1.5cm in radius and 1cm in height were seen covering the intestines along their course. In between, the mucosa appeared leathery and inactive. On incision the growths were seen to be composed of a white cellular mas [sic]. On further examination of the abdominal cavity, the liver was seen to contain many metastatic growths surrounded by cirrotic liver mass. No further dissection was performed, except for taking of samples of the liver, and intestines to show the owner, as in my opinion the horse had died as a result of complications resulting from cancer of the liver and intestines.' 225 Dr Lloyd said based on his post mortem the cause of death was cancer. 226 Dr Lloyd told the Committee that after he found the horse dead he did an incision along the left flank and exposed the abdominal area. He gave a similar account of his findings to that contained in his original reply. He said that he took a sample of the liver and of the intestine. 227 He said he placed the sample of the intestine in the fridge. Later in his interview with the Committee he described the extent of the post mortem that he had undertaken as an 'exploratory investigation' on a dead animal. He said a 'complete' post mortem was not done. He said it had taken 15-20 minutes. He said the incision on the left flank was about two feet. He said he did not go as far as the linea alba but just cut enough to have a flap so that he could see into the higher abdominal cavity. (In his statement for the Tribunal Dr Lloyd said that 'he made an incision on the left flank of the horse by exposing the abdominal cavity.') He said to the Committee that he had put the samples in a stainless steel flask, not in formalin. He left them in the bottom of the fridge. 228 He was challenged by the Committee as to whether he had done an autopsy at all, and said that he had taken samples, and that his staff had seen them in the fridge. He said the horse had metastases in the liver and primary tumours along the internal linings of the intestines. He said the liver was cirrhotic, and that he could see cirrhosis right around the lesions. He agreed that he did not look at the mesenteric lymph nodes. 229 He said to the Committee that he had asked Ms Clee whether she would have liked to have a histopathology ('histopath') done but she had said 'well it's too late now.' There is no reference to such a conversation in Ms Clee's statements or in Dr Lloyd's original reply. Ms Clee denied that any such conversation offering to have any external tests done if she wished took place. We accept Ms Clee's evidence. 230 We consider that in a calmer frame mind she would have welcomed the possibility of tests; especially as she raised the subject of seeing the samples in her first conversation with Dr Lloyd when she encountered him leaving the property. 231 Such an attitude is also consistent with Glenn Tuinenburg's evidence in relation to a later conversation (23 January) where he said that he told Dr Lloyd that had he and Ms Clee been given the opportunity to have a test done they happily have paid for it (see Glenn Tuinenburg's first statement for the Tribunal). 13 January 1996 232 In his original reply Dr Lloyd said that he hired James Murray to bury the horse. As previously noted, this was the first reference in the original reply to James Murray. He made no mention of him in connection with other concerns of Ms Clee that belonged to earlier times, such as the administration of the injection on 8 January and his role in relation to looking after the horses and keeping up their water supply. 233 In his interview with the Committee, Dr Lloyd agreed that he left the horse's carcass out in the paddock all day on Friday the 12th, and said that he arranged for James Murray to come to bury the horse on the Saturday. As to the delay in getting the job done, he said at hearing that he did not arrange to bury the horse on 12 January, because of the heat of the day. 234 He said two men, James Murray and Laurence Briggs (a licensed horse trainer) arrived at 9am on Saturday 13 January (ts 866). James Murray said that it was the only time that he had ever been asked to bury a horse. He had only once before buried an animal for Dr Lloyd - a cat. Mr Briggs was not called to give evidence. The two men used a shovel to create the grave. The incredulity of the Committee over this method of burying a horse is reflected in the following exchange with Dr Lloyd: Committee: Who buried it Saturday morning? Dr Lloyd: James Murray Q: Where does he come from? A: Oh next street Q: He has a backhoe or frontend loader? A: No. Shovel. Q: You buried a horse with a shovel? A: Yes. Q: How long did that take? A: It was buried when I came back at 1 o'clock. Q: You covered it over and didn't dig a hole? A: No, what we had actually done was drag the horse down into a depression beside a dam and covered it with dirt. Q: Just a foot of dirt or something. Were you satisfied that it was not going to reappear? A: No. I was satisfied that it was buried. 235 Dr Lloyd said originally the idea as to how and where to bury the horse came from mutual discussion. Early in cross-examination, Dr Lloyd was questioned as to his animal burial practices. He conceded that he often buried animals at a different site on the property much further from the dam. 236 He had stopped using that more distant site - some time in 1994 and 1995 - for hygiene reasons and said that prior to the Gypsy burial he had been using a site nearer the dam. Dr Lloyd said later that he did not use his traditional burial site, which was within 25-30 yards of where Gypsy's body was interred, because James and Laurence 'objected to having to dig a six-foot deep hole' (ts 867). 237 Under further questioning, he was unable to explain why he chose not to bury the horse in the area he had usually used (see ts 870f). He made no reference to his earlier explanation that the difficulty was due to hygiene problems. We are not satisfied that he had ceased using the usual site at this time. 238 Dr Lloyd said to the Committee that he paid James Murray $50 before he buried the horse. Dr Lloyd was asked whether he checked where Mr Murray had buried the horse. He said 'No,' but he saw where it was buried later that afternoon and it 'looked okay to me then'. As to the amount of dirt covering the horse he said, 'I didn't go down and take a depth gauge and find out how much dirt he had put on but it was quite flat and looked like he had actually made an effort' (interview p 10). 239 In contrast he said to the Tribunal that he had been responsible for choosing the burial site which was in a depression alongside the laneway (see generally ts 722-738). He said the depression was 'near the outflow of a dam' and covered with soil. He agreed with Mr Burchett's description that the laneway was 'essentially a regular raised batter [a receding slope] between the two dams'. He said that the amount of soil covering the top of the grave was only a 'few inches' in depth. He said that the hip-to-hip diameter of the carcass was likely to be a 'metre'. 240 In relation to the first burial, Dr Lloyd in evidence at hearing gave a much more precise account than he had previously provided to the Committee as to what his instructions were. He claimed that he gave instructions for the horse to be buried at a location sufficiently distant from the dam, and sufficiently deep, so as to ensure that the grave would not be at risk of being disturbed. 241 He agreed that he did not make any efforts to contact the excavators with whom he had dealt in the past to effect burials (ts 867). 242 Much time was spent at hearing on evidence relating to the precise location of the first burial site. Ms Clee and Glenn Tuinenburg were cross-examined on this issue, Dr Lloyd gave evidence in chief on the issue and was also cross-examined. 243 Markings were made on a photograph of the property (a photograph taken some months after the events in issue) by Glenn Tuinenburg and Dr Lloyd as to the location of the grave. Glenn Tuinenburg showed it as closer to the dam than Dr Lloyd. We accept Glenn Tuinenburg's indication as to the likely location of the first burial site. It is consistent with the account given from the outset by Ms Clee. Dr Lloyd said nonetheless that the grave was sited at a point and dug in a manner that was highly unlikely to lead to it being disturbed by water associated with the dam. 244 He said that the method used to bury the horse was as follows. First the horse was dragged. The carcass was tied to the back of an F-100 truck (described as a one-tonne ute). He said it was transferred slowly and steadily along the laneway to the burial site (ts 871). He said that the hole for the horse was dug using a shovel. Dr Lloyd said that he was satisfied that it was buried. 245 As to whether any internal organs were disturbed and spilled during the dragging process, Dr Lloyd said that did not occur even though he had not sutured the incision. 246 In re-examination, he said that at that time he was preparing the property to be sold (ts 948), and that he was in the process of filling in the dam close to the location where the horse was subsequently found. The fill was being brought in regularly. He denied the suggestion that he dropped the horse in the dam, or the suggestion that he simply had it placed in a location where the next load of fill was to go; by which it would be effectively covered. 247 He rejected the suggestion from the Committee that it was his responsibility to oversee the disposal. He said at hearing that he wasn't sure whether he paid them $25 each or gave them each a case of beer (ts 875). 248 Mr Murray's version was as follows. James Murray said in his statement for the Tribunal that he buried the horse in a hole that was already partly there. He said it was at least half a metre deeper than the thickest part of the horse. He said he shovelled dirt over it. He said 'I thought I buried well enough though I intended to put more dirt over it when we next had a bobcat in the place.' 249 At hearing, he said that when he collected it from the paddock where it died, he could see a big cut around its intestines. He said he saw its left flank exposed. Mr Murray said that there was a cut on its lower flanks and stomach (see drawing by him (Ex G44)). He said he pushed the exposed intestines back in before they winched the horse on to the float (not dragged as asserted by Dr Lloyd). 250 At hearing, he said there were heaps of fill at the site, and they agreed that it would be enough to get the horse down near the dam, place it in a depression around the dam, and cover it up (ts 1000). He said the depression was located where there used to be a pipe about a metre from the wall or bank of the dam. 251 He said they had winched the horse down using a rope tied around the horse. He and his brother-in-law winched it onto a horse float tied behind the F-100. They carried it down in the float. They winched it out of the float with block and tackle. This was the first reference to the use of a float. It had not been mentioned in his statement for the Tribunal; nor by Dr Lloyd. Mr Murray said this was an oversight (ts 1005). He denied the suggestion that the horse may have fallen into the dam in this process. 252 He said the spot was chosen because it would be easy to cover (ts 1001). He said, it was placed in the grave with the cut side downwards. His recollection is that Dr Lloyd came to the site after the work was done, and they showed him where it was. He agreed that Dr Lloyd did not object to their failure to place the carcass in a deep hole (ts 1002). 253 At the time there were two dams with a spillway near the other dam with a pipe joining the two underneath a laneway. It was about 1.5 to 2 metres below the level of the laneway and about a metre above the level of the dam, according to Dr Lloyd (ts 738). The depth of the grave he said was 'sufficient to bury the horse and cover it with dirt'. He claimed the depth of the grave was not such as to be below the water level of the dam (ts 739). He said the grave was disturbed after rain had caused water to flow into a watercourse joining it to another dam which had a slipway. He was in the early stages of work filling in the source dam. That had caused the water to 'cone' in the watercourse with the result that it overflowed at the edges and disturbed the grave. 254 It is convenient to deal at this point with all the issues relating to the grave and its disturbance thought they involve later days in this chronology. 255 Disturbance of the Carcass: Dr Lloyd said at hearing that he had found the horse adrift from the burial site about 7 to 10 days' after the burial (ts 885). This estimate places the event as occurring between 19 and 22 January 1996, the 22nd being the date that Ms Clee made her own discovery of the fact (as to which see further below). 256 As to the question of how the carcass came to be tied to a tree, he said as soon as he noticed the horse uncovered he secured the horse; and attempted to make arrangements for its reburial. He found it he said about 20 feet from where it had been buried [other evidence including other evidence from Dr Lloyd points towards the horse having been buried much closer to the dam than 6 metres away], lying alongside the edge of the dam. He denied the suggestion that the horse had always been tied to a tree with a view to the fill burying it. 257 Dr Lloyd said to the Committee that it had rained a lot between the time the horse was buried and when Ms Clee and her boyfriend returned. Dr Lloyd claimed that heavy rain disturbed the grave, causing the horse to resurface. In his statement for the Tribunal, Dr Lloyd said that there was 'constant rain for 3 or 4 days'. In evidence, Dr Lloyd said that after heavy rain the soil was dislodged and the horse 'was secured to a tree to prevent it from being washed away as well.' He said that he had then arranged for someone to come and dig a hole and bury it away from the watercourse. He had expected to re-bury the horse without Ms Clee discovering that the horse had become uncovered. He said the person that he intended to use was a bobcat driver who lived in Fifteenth Avenue (this may have been a reference to Santo Perrone, to whose evidence we refer to later). 258 As to the rain explanation, the Bureau of Meteorology records for the 'Badgery's Creek McMaster's F.Stn' shows no rain at all from 12-20 January, and one day of significant rainfall in the period 20-23 January (21 January, 20 mm). We acknowledge that this does not necessarily prove that there was or was not rain in the immediate area of Dr Lloyd's property; and equally does not disprove his original claim that there were several days of rain affecting his property. But we note, with concern, that in relation to the amount of rain that had fallen so as to cause the disturbance of the original grave, Dr Lloyd changed his description from 'heavy' to 'continuous' to 'some rain' at different points of cross-examination. 259 We are not required to reach a conclusion on what precisely led to the carcass being disturbed. But given the state of the grave a real possibility existed that a minor change in the water level (perhaps combined with some heavy rain) would have been enough to remove the soil cover covering the carcass leaving it exposed. We are satisfied that Dr Lloyd did not take adequate steps to bury the horse properly. Our conclusion is that the grave was too shallow and was too close to the dam. 16 January 1996 260 On 16 January 1996 Ms Clee contacted Dr Lloyd to discuss costs. They both agree that Dr Lloyd advised her that he would charge $140 only and also give her a replacement horse, and that he offered her a thoroughbred. 18 January 1996 261 Ms Clee went to Dr Lloyd's Liverpool surgery to make payment. She said he said to her that she could have the thoroughbred, which he said was worth $600, for nothing. She was charged $140 for the various services treatment supplied to the horse and the burial. She noted sardonically in her letter of complaint 'Bargain'. Glenn Tuinenburg was with her on this occasion and gave similar evidence as to the discussion with Dr Lloyd. 262 Dr Lloyd rejected suggestions in cross-examination that a charge of $140 for his services in respect of Gypsy, which included four days' hospitalisation, were extremely low, and not consistent with usual charges. He rejected the suggestion that this very low charge for the services involved and medications reflected his lack of confidence in being able to explain why it died. Dr Lloyd's replies denying the lowness of charges (ts 873f) are plainly unsatisfactory. 263 He agreed that he offered Ms Clee a free horse (ts 879). He denied mentioning that he placed a value ($600) on the horse. We accept Ms Clee's evidence. 264 Furthermore, he said in evidence that $600 would be the horse's 'meat value', i.e. as 'dog meat' (ts 880). He said the horse he had in mind was totally useless as a racehorse with poor conformation and claimed that it did not even have value as a recreational riding horse. He said 'it would have been negligent of me to actually sell the horse, especially knowing … what was wrong with the horse' (ts 880). These answers raise considerable concerns as to how Dr Lloyd came to the conclusion, apparently, that it was not negligent to give such a horse away. He said later 'the horse was worth $400 to $600 if it is dead, shot through the head and used for dog meat, but I didn't want to kill the horse' (ts 882). 265 Ms Clee said that on the same occasion she asked Dr Lloyd for a sample but he said he had been thrown out a day or two before. She said in evidence that she had by that time wanted a sample, as she had been in touch with the University Rural Centre at Camden the previous day (17 January) about having tests done (ts 648). She asked for an autopsy report and he said he would do one. She said he told her that he would have the autopsy report available next week. She queried how he knew whether the tumours he saw where benign or malignant. He said 'I can tell by just looking at it.' She asked whether he had any tests done. He said no, because that would have cost another $150. 266 Dr Lloyd denied Ms Clee's account. 267 As to the samples, under cross-examination he said he did not know whether he had the samples in the fridge, and he could not recollect that (ts 882). Dr Lloyd agreed in evidence that she asked for the autopsy report on the occasion that she came to settle the account (ts 882). He agreed that he told her something like it would be ready next week. 268 We accept Ms Clee's evidence as to the conversation, including in relation to this being the first occasion on which tests were discussed. In her statement Ms Clee complained that she was never asked if she would like to have tests done, and said that she would have paid for them. 269 We are satisfied that there was a request for a sample on 18 January 1996. We refer further later in these reasons to the question of when the samples, said to be the samples from Gypsy, were discarded. 22 January 1996 270 Ms Clee said in her original complaint that she called in on Monday 22 January with Glenn at Dr Lloyd's surgery to see if the autopsy report was ready. 271 Ms Clee said that as Dr Lloyd was not at the surgery at the time they arrived (about 6.30 pm after work) they decided to go for a walk to see the grave site. As noted earlier, she said in her original letter of complaint: 'We were half down to the paddock walking between the two waterholes and I saw what I thought was a horse in the waterhole. It was on the edge, half way in the water near side down, head shoulders submerged - offside hind leg tied to a tree on the bank. His leg raised exposing most of his belly/rib area. He did seem very perised [sic, perished] just dirty, I could make out his white markings on his neck, his very long mane - To my shock and horror it was Gypsy!!! After getting over the initial shock, I looked for signs of an autopsy opening on his stomach area! Non (sic) that I could see! Extremely angry, (to say the least) by this stage I returned to the surgery the vet had not arrived, I asked the receptionist if he had left an Autopsy report. He had not, but she was quite frantic to ring him - we left. I tried to contact the vet all eveing (sic). I slept about 2 hours that night.' 272 The Committee noted that Ms Clee had not reported any internal bowels or organs being observable when she saw the horse. It was suggested to Dr Lloyd that such a disturbance should have been observable and would have been likely given that the horse had been opened for the purpose of the autopsy. Dr Lloyd said that whether she saw anything depended on the side on which the horse was laying, and that the rain and immersion in water may have caused any protruding material to have washed away. 273 In his statement Glenn Tuinenburg said that the horse was lying on its left side with its head covered by water and its right rear leg tied to a tree. He said that there was dirt and mud all over it. Ms Clee reiterated in evidence that the horse was lying on its left side in an area between the laneway and near the dam; and was partially submerged. The diagram with her original complaint is her depiction of how she found him (Ex G4). She said it was located down a steep embankment. She did not recall there being water around the area. Glenn Tuinenburg gave a similar account, saying also that it was dusk at the time. He also said he could see no sign of an autopsy cut on the body. 274 They went back to the surgery and as Dr Lloyd was still not there they decided to leave. Ms Harris said that she did notice the Clees in the back paddock on 22 January, and it was she who advised them that Dr Lloyd was away at Gill Avenue. 275 Glenn phoned his mother. She suggested they go to the Police. She said that they then went to Liverpool Police Station and started to make a statement but then decided not to proceed with a complaint to the police until they had seen Dr Lloyd. The Events of 23 January 1996 276 Dr Lloyd disputed in numerous, critical respects the account of the various events of 23 January given by Ms Clee and her family and friends. These events make up four of the five paragraphs of the particulars supporting Allegation 4. 277 The events of the day divide into: the visit by Ms Clee and her friends to Dr Lloyd's Liverpool surgery in the morning; the arrangements made by Dr Lloyd with contractors to make a grave; the contact made with Dr Lloyd with Ms Clee regarding the reburial of the horse that afternoon; the observations of Glenn's parents, Mr and Mrs Tuinenburg, as to activity at Hoxton Park involving bobcat drivers early that afternoon; the arrival of Ms Clee and Glenn Tuinenburg later in the afternoon; visits by the Clee party to the graveside and what occurred then; and the nature of the discussions that occurred between Dr Lloyd and Ms Clee and other members of the Clee party before and after the visits to the graveside. 278 (1) Visit to Liverpool Surgery. All agree that Ms Clee and Glenn Tuinenburg and their friend Nathalie Taimuri visited Dr Lloyd at his Gill Avenue, Liverpool surgery one morning shortly after the carcass was discovered tied to a tree. 279 Ms Clee said in her original letter of complaint that she arranged the day off work to go and see Dr Lloyd. She wanted to collect the autopsy result and to tell him that she was going to collect Gypsy and arrange a proper burial for him. As to the horse's body resurfacing, Ms Clee said in evidence that Dr Lloyd said to them that the grave had been disturbed by water overflowing the dam though the grave was some distance from the dam. 280 In her statement she gives a fuller account of this conversation. She reports him as saying that 'I buried Gypsy but we had heavy rain and he was washed out of the hole.' Ms Clee said that he told her that the horse was first buried in a washaway area of the embankment on a piece of flat ground by the side of the waterhole. In her letter of complaint Ms Clee asked the rhetorical question 'Why would you drag a horse from a flat paddock where he died, - through a gate beside a waterhole?'. 281 Dr Lloyd, she said, offered to re-bury the horse. Ms Clee said that she was sceptical but agreed, provided her family could be present to see it occur. She said that Dr Lloyd said that she should just see his head, as it would be 'too gory'. [There is, as we see it, a drafting problem at paragraph 4 of the Particulars of Allegation 4. The paragraph might be read as assessing that this conversation occurred at the time the Clee party visited the grave that afternoon. We deal with this point more fully later. It is clear from the evidence of Ms Clee and Dr Lloyd (who admits using the word 'gory', see below) that this conversation occurred at this time.] 282 Glenn said that he questioned him as to whether he usually buried horses in dams, and Dr Lloyd had replied that they should not have gone to see the site, and that he was going to bury the horse properly today. Ms Taimuri gave a similar account. She spoke of Dr Lloyd's manner being cruel and off-hand. 283 Glenn Tuinenburg said in his statement that he had said to Dr Lloyd, 'I want the horse buried properly and I want to be there' to which Dr Lloyd had replied, 'Alright you can come and see the whole gory lot - I'll ring you when I'm ready to bury it. It will be about three or four o'clock this afternoon.' We accept Glenn Tuinenburg's account of this conversation. 284 Dr Lloyd agreed that Ms Clee had asked for the autopsy report, and he said 'next week'. He said that at the time she had demanded to see the horse buried. He doubted that he had said to her that she could only see the head; but he agreed that he said it was a possibility (ts 918). He could recall referring in his reply to it being a 'gory mess' (ts 918). While the Tribunal accepts that Dr Lloyd believed that witnessing the burial would be upsetting, his manner and language in attempting to dissuade Ms Clee was clearly inappropriate. 285 Referring again to the question of when Ms Clee asked for an autopsy sample, Dr Lloyd said in re-examination that he had never been asked by Ms Clee for an autopsy sample until after she had seen the horse in the dam (ts 948). 286 Dr Lloyd claimed in cross-examination and in his statement prepared for the Tribunal that he had already made arrangements for the second burial the day before Ms Clee came to him to tell him of her concerns (ts 888). There was no evidence in support of Dr Lloyd's account. We reject his assertion. 287 Ms Clee said that they enquired as to what time to come back. She said that Dr Lloyd said he would ring them at 2.30 pm that afternoon to let them know what time to come out to see him being buried, probably about 3.00 pm. 288 Ms Clee enquired about the autopsy report. She said that Dr Lloyd said that the report would be ready next week. 289 (There are differences as to when this meeting occurred. While there is confusion around this matter our conclusion is that the morning of Tuesday the 23rd, i.e. the morning of the burial, is when the meeting occurred. Dr Lloyd says the 22nd as did Nathalie Taimuri in her original statement. Ms Clee said the 23rd in her original letter. At one point in evidence she thought it was a Thursday evening that she discovered the horse, which would place that event at the 18th. Ms Clee's evidence has consistently been that she went to Dr Lloyd's the day after she discovered the horse. In relation to the question of the date of the meeting we regard Ms Clee's original letter of complaint as providing the most reliable evidence. Dr Lloyd's evidence is that he acted quickly after the meeting to arrange for burial and did so on the same day as the meeting. He has always accepted that the burial itself occurred on the 23rd of January.) 290 (2) Arrangements made by Dr Lloyd. Dr Lloyd's version of events has varied between evidence given to the Committee, in his statement and in evidence to the Tribunal. 291 Two contractors were involved in Gypsy's second burial. Dr Lloyd's evidence was confused as to their identities, and as to when and what they did, the extent of his instructions and the extent of his presence. On this occasion Dr Lloyd chose, as we see it, to employ a usual method for burying a horse, the making of a hole by means of a mechanical excavator (as compared to using two men and a shovel previously). 292 In her original complaint Ms Clee expressed her dissatisfaction over Dr Lloyd's decision to bury the horse completely, in breach of his promise to her that she could witness the burial. She said that Dr Lloyd gave her the following account of what he had done that day. Dr Lloyd had told her that he had arranged one bobcat, it broke down, and he called another (which was his next door neighbour); and they could not wait for the Clee party to come. In his original reply Dr Lloyd makes no reference to this sequence of events, which he later explained did occur. In that original reply he simply said: 'A bobcat was ordered and the driver dug a deep hole, well away from the watercourse and buried the horse.' He gave no date for this event in that reply. He had before him the statement of Ms Clee. This reply gives the impression that there was a simple and orderly burial without any drama or complications. The reply was misleading, as the following account of the evidence as it ultimately emerged at hearing demonstrates. 293 Dr Lloyd told the Committee that he had arranged that morning for a contractor to come out to the property, but there was a problem with the pins that connect to the shovel of the bobcat. As a result he said that he then arranged for his next door neighbour to bury the horse. Dr Lloyd said that he and his neighbour dragged the horse from the dam area to its new burial location and buried it in a deep hole. Dr Lloyd said it was not his doing that the horse was buried before Ms Clee arrived. According to Dr Lloyd it was the wish of the neighbour because he had other jobs to do and he was doing a favour because he lived next door. Dr Lloyd did not mention the name of the original excavator or his neighbour to the Committee. 294 In his statement prepared for the Tribunal, Dr Lloyd referred to attempts at burial involving different bobcats and different drivers. In his statement he says the first driver was a 'Mr Sciberras' and that his machine broke down. It transpired that the reference to Mr Scibberas was meant to be a reference to Mr Scibberas' son-in-law, Mr Ray Frendo. Moreover it transpired that Mr Frendo was engaged to do the second job after the first driver's machine had broken down. It transpired that the person who did the first job was a Mr Santo Perrone. In the course of cross-examination Dr Lloyd referred to the possibility of there being a third attempt involving a third bobcat driver (ts 906). No further detail was given. Dr Lloyd's lack of clarity as to the identity of the two bobcat drivers in a prepared statement and his failure to amend his evidence early was unhelpful to the progress of the proceedings (see generally ts 909); as was his introduction of the possibility of a third driver. 295 First Attempt. The first attempt to prepare the site was made by Mr Santo Perrone ('Santo's Excavations'). Dr Lloyd said the first contractor was prepared to do the first job immediately (move horse, dig hole) and come back later to assist in interring the horse. Dr Lloyd said that he made one phone call to Ms Clee during the course of the morning and it was after the first driver had arrived. He had done so with the understanding that the driver was prepared to come back to complete the burial. Dr Lloyd said he called Ms Clee at this time, and then found the bobcat had broken down. 296 Dr Lloyd said in evidence at ts 908 that: 'The one thing I did get this man to do was - since he had arrived and his shovel was broken, I did get him to drag the horse up to the hole, or up to where it was going to be buried. I unlatched the horse - he didn't get out of the seat of his bobcat. I untied the horse from the tree. I attached the rope from the right leg, right hind leg to the towbar of the bobcat and then I held the rope on the horse as he dragged it and it kept on slipping and coming undone and we had to stop and start quite a few times. The hooves came off while we were dragging, it was in a severe state of decomposition. The intestines were dragging along the ground, so there was blood and guts and a piece of decomposing tissue along that track right up to where the burial spot was.' 297 Mr Perrone said in his statement for the Tribunal that he had only ever did one job for Dr Lloyd and that was on the occasion in question. He said that the work took place around lunch time. He confirmed that he was unable to continue, because the 'Bob Tach Lever' (where the shovel connects to the arms) broke. He said that he had already dragged the horse to the area where it was to be buried but could not finish the job. In evidence at hearing, Mr Perrone repeated that he started the job at about lunchtime. He explained that he had agreed to do the job, after Dr Lloyd called on him when he was at his father's place at 4 Hoxton Park Road, Hoxton Park about 10 kms from Dr Lloyd's hospital. He said Dr Lloyd knocked on the door after seeing his truck and bobcat was parked outside, and Dr Lloyd asked who owned the truck and the machine, and asked him if he could dig a hole. 298 He said in evidence he got to Dr Lloyd's place about an hour later (ts 21/2/00:3). Mr Perrone said the bobcat had a four-in-one attachment at the front end, and a back hoe attachment as well and was interchangeable. He said the horse was located on the side of a dam. But in answer to Dr McGilvray (id:7) he said that before that the horse was in the dam, and Dr Lloyd went into the dam and attached a 'pulling device' to the horse, which was either a chain or a rope (id:7-8). 299 He said he dragged the horse about 30-50 metres away from the dam, and that nothing fell out of the horse as he pulled it. To the question "The guts didn't come out?', he answered 'no' (ts id:4). He said he then used the back hoe to dig a hole but that was when the accident occurred that made it impossible to continue to use the back hoe. 300 Mr Perrone was questioned about whether Dr Lloyd asked him to dig a hole first and to go away and come back later to bury the animal. His understanding was that he was to do the complete burial straight away. He spent 30-45 minutes at the property. Fifteen minutes of this time involved moving the horse up to the new burial site. 301 Mr Perrone said Dr Lloyd was out in the paddock with him during these events. He said he charged $150. He said he had been readily available at the time as he had just started in business. 302 It will be seen that Mr Perrone's evidence was inconsistent with Dr Lloyd's evidence on several points, in particular that he had been intending to split the job and come back later to finish it; and as to whether there was any spillage of the intestines or guts of the horse in moving it. We found Mr Perrone to be a credible witness. We accept his evidence on these points, and reject Dr Lloyd's. 303 The Second Attempt Dr Lloyd said in his statement for the Tribunal that after the bobcat broke down he phoned an excavating contractor to do the job, and he arrived with a front end loader. The name of this excavating contractor is not mentioned. In evidence before the Tribunal Dr Lloyd said that the second person to come over to his property was his neighbour, and he sent over his nurse to fetch him. As noted above this person was ultimately identified as Mr Frendo. 304 According to Dr Lloyd, Mr Frendo arrived with a front end loader and proceeded to dig the grave. Dr Lloyd said that he tried to arrange for him to come back later after the horse had been placed in the hole so that the reburial could proceed as promised to Ms Clee. He said Mr Frendo replied negatively saying, 'Are you fair dinkum – No. I'm here now mate and I'm not coming back'. Dr Lloyd said that Mr Frendo then dug the hole, the body was moved by the front end loader into the grave and covered up. Dr Lloyd said that there was no time to contact Ms Clee to ask her to come down to Hoxton Park as Mr Frendo would not wait. Dr Lloyd said that he saw the horse buried in a deep hole and covered up. 305 Dr Lloyd was vague as to whether he was present or absent when the horse was buried. He said that he had been working that morning at St Marys and arrived back around 12.30 and then went out and did another call, and arrived back again at 2.00-2.30 (ts 905). He said when he got back at 12.30 the hole had already been dug. He surmised that because of its size a front-end loader must have done it. We reject this evidence. We are satisfied from Dr Lloyd's later account, which is consistent with the observations of the Tuinenburgs, that the main work of creating the hole occurred between 2 and 3 o'clock; and further, we are satisfied that Dr Lloyd was present for at least part of the process. 306 To similar effect, Dr Lloyd later said that Mr Frendo drove his bobcat over about 2.00pm. He helped him to position the horse in the hole and the hole was filled in between 2.00 and 3.00 (ts 914). Dr Lloyd was unable to give any persuasive explanation as to why he could not have left the dirt to one side (thereby preserving the opportunity for Ms Clee to see her horse before it was interred), and shovelled it in himself later (ts 915-16). 307 Mr Frendo gave a different version of events. In a short handwritten statement, Mr Frendo (whose business is Austral Bobcat and Tipper hire) said he noticed an earthmoving machine working at Dr Lloyd's property in the morning. Later that day Dr Lloyd's secretary came and told him the machine had broken down and asked him if he could finish the job. There is no evidence that Dr Lloyd spoke directly to Mr Frendo as to how long Mr Frendo had to do the job. There is no evidence from Mr Frendo as to what was said to him by Dr Lloyd. In his evidence, Mr Frendo said that when he came onto the property the horse was already in the hole and his job was simply to fill it in. He said that the horse was already in the hole, and that he had no special requests from Dr Lloyd's nurse. His evidence is that he was simply asked to finish the job (ts 21/2/00:13-14). Mr Frendo said that the only time he spoke to Dr Lloyd on this day was after he had finished and this was in Dr Lloyd's surgery. Dr Lloyd was charged $200 for the excavation and burial (bill from Austral Bobcat & Tipper Hire, from R Frendo dated 23 January 1996, Exh G9). 308 This evidence is in direct contradiction of Dr Lloyd's evidence. Neither Mr Perrone nor Mr Frendo stated that they had placed the horse in the grave. Dr Lloyd's evidence has been that he did not effect the burial. We regarded Mr Frendo and Mr Perrone as credible witnesses. There is no acceptable evidence as to how the horse came to be in the hole. 309 We also reject Dr Lloyd's evidence that he raised the possibility of Mr Frendo staying around until the Clee party had witnessed the burial. Mr Frendo's evidence was clear that he did not speak to Dr Lloyd until after he had completed the job. 310 (3) Contacts with Ms Clee. Both Dr Lloyd and Ms Clee agree that there was only the one call. Ms Clee places it at about 2.45 pm, with Dr Lloyd telling her that she could come out any time between now and 3.30pm. Dr Lloyd says the time was before he knew that the first bobcat had broken down. We are satisfied that Dr Lloyd made this call at about 2.45 pm when the second attempt to bury the horse was either completed or well advanced and that he knew at that time that the horse would be completely buried by the time she arrived. 311 Dr Lloyd's motive for not observing his undertaking. Dr Lloyd acknowledged in his statement for the Tribunal that he had told her that the horse would be buried at around 2 or 3 o'clock, and had told her this time knowing that he had arranged for the bobcat to come in the morning. 312 Dr Lloyd said to the Committee: 'I didn't believe that although Miss Clee and her boyfriend wanted to see the horse being buried, I didn't believe that was the right thing but whether I believed it or not, if they wanted they were going to see it.' (Ex G10:8) 313 In re-examination, Dr Lloyd gave the account of why he had not responded to Ms Clee's desire to witness the reburial (ts 949): 'Q. You were asked a lot of questions about their reaction to missing the burial. Is there something that you want to say about that? A. In view of Ms Clee's emotional upset, or emotional upheaval every time I had actually seen her, I was quite astonished that she wanted - that her and her boyfriend wanted to see this quite distressing scene of a decomposing animal being dragged out of the dam and dragged up to a hole and thrown in. I presumed at that time that her main objective was to make sure that her pet was buried well and truly. People that go to graves very rarely want to see what is inside. They want to see the grave itself.' 314 He had expressed a similar view in his statement for the Tribunal. He did not go that far in his statement to the Committee quoted above. He acknowledged that his duty, whatever he felt, was to honour the wishes of his client. He gave more emphasis in the Committee interview to the need to get the job done while he had equipment available (Ex G10:8). 315 In evidence Dr Lloyd said that Mr Frendo could not stay (an assertion we have rejected). As to the question of why he could not have left the horse partially buried so that Ms Clee could witness the last stage, he said, (as put to him in cross-examination), 'foxes and other animals would have come and further mutilated the horse, dug it up, et cetera, et cetera. I didn't want any of that to occur' (ts 919). This explanation is not plausible. The horse had been exposed to these hazards for some days, and we are satisfied that Dr Lloyd had discussed the possibility already of a form of burial that only left the head exposed for Ms Clee to see, as stated by Ms Clee in her original complaint. 316 Dr Lloyd's failure to inform Ms Clee that he had not acted in accordance with her wishes was a grave breach of trust; especially in circumstances where the promise had been made only two or three hours before he began to dishonour it. 317 The conclusion is inescapable that Dr Lloyd pursued a course of conduct during the morning and afternoon of 23 January that was certain to mean that Ms Clee would have no opportunity to witness the burial as she had expected. 318 (4) Mr and Mrs Tuinenburg's Observations. Ms Clee said that after she visited Dr Lloyd at Liverpool that morning with Glenn and Nathalie, Ms Clee had gone back to Glenn's place and Glenn called his parents to tell them what had happened. Ms Clee said that Glenn's parents decided to drive to Dr Lloyd's surgery early 'to keep an eye on things.' The parents' suspicion about Dr Lloyd's honesty had been aroused by his failure to produce the promised autopsy report and samples (see ts 489). 319 Mr and Mrs Tuinenburg drove out to the property early at about 1.15 pm to 1.30 pm. They parked about 100m from the surgery near the driveway facing towards the surgery, and Mr Tuinenburg said they stayed in the car til about 3.30. As they waited for their son and Ms Clee to arrive, they observed activity at the property. They saw a bobcat go on to Dr Lloyd's property and digging take place in the distance. Mr Tuinenburg said that it came from the neighbouring property. They wondered if a grave was being prepared and if the burial was already occurring. Mr Tuinenburg snr saw Dr Lloyd and his two sons walk behind the bobcat. 320 Glenn Tuinenburg said that his father had phoned him about 2.30 pm and said that they could see a bobcat in the paddock and it looked like it was digging a hole. Mrs Tuinenburg also said that there was such a conversation. He said that he received another call from his father about 3.30 pm. Mrs Tuinenburg placed this conversation at 2.50 pm. She said that Ms Clee and Glenn arrived at the surgery at 3.00 pm. On the other hand, Glenn said that Dr Lloyd rang him at about 3.40 pm to say that they could come to his place now to see the burial. 321 There are some differences as to the precise time of these events, as the Mr and Mrs Tuinenburg said that they got out of their car at Dr Lloyd's property about 3.15 when Ms Clee and their son arrived. We accept that Ms Clee and Glenn Tuinenburg arrived around 3.15, which also places Dr Lloyd's call around 2.45 as recalled by Ms Clee. 322 (5) Arrival of Clee Party at Surgery; (6)Visits to the graveside; (7)The Nature of the Discussions that occurred between Dr Lloyd and Ms Clee and other members of the Clee party before and after the visits to the graveside. 323 As noted earlier there are conflicting versions of events as to all of these matters, which are a principal focus of Allegation 4. 324 The statements and evidence given by Ms Clee and the Tuinenburgs were generally consistent as to this set of events. Dr Lloyd had given a number of different versions as to what happened when the Clee's arrived. The areas in disputes are: + Whether Ms Clee and Glenn visited the property alone and then were joined later by Glenn's parents. + Whether Dr Lloyd told the Clee party that the horse had been buried prior to their viewing of the burial site. + Whether certain words exchanged between Dr Lloyd and Glenn Tuinenburg occurred before or after the burial site was viewed. 325 The Clee Party's Version of Events. According to Ms Clee she arrived at Dr Lloyd's surgery with Glenn and met up with Mr and Mrs Tuinenburg. They all walked down to the driveway and met Dr Lloyd in the reception foyer of the hospital. It was put to Ms Clee that she visited Dr Lloyd's Hoxton Park surgery twice that afternoon, first with Glenn and then later with Glenn and Mrs and Mrs Tuinenburg. She rejected this contention (evidence ts 585). 326 Ms Clee's evidence was they were in the waiting room and when Dr Lloyd arrived he ushered them towards the door. He told them: "You can all stay here, Sharon is my client." Ms Clee said that Mrs Tuinenburg responded, "No, we're all here to see it. It was Glenn's horse as much as Sharon's." She said that everyone moved outside and a conversation ensued with everyone talking over one another. 327 Ms Clee said that Glenn Tuinenburg and Mr and Mrs Tuinenburg started 'throwing questions' at Dr Lloyd about the original burial of the horse and why Gypsy had been buried on the edge of the dam. 328 In response to these questions, Ms Clee said that Dr Lloyd said to Glenn, "Take your hat and glasses off and come out the back with me". According to Ms Clee, Glenn replied, "I'm not here to fight, I'm here to see a horse being buried." In her complaint, Ms Clee said that Dr Lloyd said words to the effect, 'Why don't you take your glasses and hat off [referring to Glenn] and come in side with me.' In her statement she said the final words were 'out the back with me.' She said that Glenn replied that he did not wish to fight him. In her statement she said that Glenn said words to the effect, 'I'm not here to fight, I'm here to see a horse buried.' 329 The evidence given by Glenn Tuinenburg and Mr and Mrs Tuinenburg was similar. According to Glenn, he questioned Dr Lloyd about whether the autopsy report had been done and why the horse had a halter and lead rope on during the time it was kept at Dr Lloyd's surgery. Glenn said that Dr Lloyd said 'in a very angry tone of voice', 'Why don't you take your hat and glasses off and come out the back and I'll introduce you to the real world.' Glenn said he replied, 'I'm here to see the horse not to fight.' 330 Glenn said that Dr Lloyd then said that he was not to go down to the (new) burial site, and that 'only Sharon can go.' Glenn said he said, 'I'm going.' 331 Mr Tuinenburg snr said that he did not hear the whole conversation, but did hear Dr Lloyd say 'you can't go down there.' He heard his son say, 'Bullshit, I'm going down', and Dr Lloyd telling him to take his hat and glasses off. Mr Tuinenburg said he heard Dr Lloyd say in a raised voice, 'Take your hat and glasses off.' 332 Mrs Tuinenburg said that she had been extremely offended by Dr Lloyd's attempt to prevent the rest of the family visiting the grave. Her version of what Dr Lloyd said to Glenn was the same as Glenn's. Mrs Tuinenburg also gave evidence that she heard Dr Lloyd's statement and had said 'If you do that I'll call the police'. 333 The statements of Ms Clee, Glenn Tuinenburg and Mr and Mrs Tuinenburg are consistent in that the verbal altercation between Dr Lloyd and Glenn occurred before they went down to the grave; and as to the substance of the words used by Dr Lloyd. 334 Visit to the Burial Site Ms Mellony Johnston, Dr Lloyd's nurse and Dr Lloyd's twin sons (then aged 9) were at the surgery on this day. (The nurse is referred to as 'Dr Lloyd's secretary' by some of the witnesses, e.g. Mr Tuinenburg snr.) Ms Clee said that the nurse volunteered to take the group down to see the horse. 335 Ms Clee said Dr Lloyd demanded that they not follow the nurse by walking down but that they drive down. As a result, the Clee party drove down to the grave. Dr Lloyd remained at the surgery. Ms Clee said in her statement that on the way down she saw a big mound on the embankment of the dam in exactly the same place in which Gypsy had lain tied to the tree. (This observation was significant for Ms Clee as she remained suspicious and unconvinced as to where the horse was relocated.) 336 When they reached the spot where the nurse was already standing they got out of the car. Ms Clee said in her original complaint, 'When in the paddock, I couldn't believe what I saw – THE GRAVE COMPLETELY COVERED UP.' (emphasis in original) 337 In her statement Ms Clee said she saw a fresh mound of clay and dirt, and that it appeared to her that Gypsy had already been buried. She was extremely upset. She said that she could not believe that she didn't get to see Gypsy being buried, even though she had spoken to Dr Lloyd about this earlier in the day. 338 She said in her original complaint that Glenn's mother, Mrs Tuinenburg, 'went right off' at this point. In her statement she said that Mrs Tuinenburg had a conversation with Mellony Johnson, asking why Dr Lloyd did not wait for them and how did they know if anything was buried in the hole. 339 Ms Clee said that the nurse said the two boys saw it buried, and 'It's in there.' In her statement she said that one of the boy's said, 'The horse's foot fell off.' 340 Mrs Tuinenburg gave similar evidence as to the events at the graveside. Mrs Tuinenburg said that there was a terrible smell and it looked like a hole had already been filled in. She was shocked because it appeared that Gypsy had already been buried. Mrs Tuinenburg said that someone asked Mellony Johnson what was going on and that they came to see the horse being buried. She said that Mellony said, "The man with the bobcat couldn't wait any longer. He had to go." Mrs Tuinenburg commented to Mellony Johnston at the site that Dr Lloyd could have called Ms Clee and Glenn earlier, but had not. 341 Glenn Tuinenburg and Mr Tuinenburg snr gave similar evidence. Glenn Tuinenburg said that when they arrived there was a mound of dirt and Ms Clee started crying as it appeared that Gypsy had been buried without her being given the opportunity to witness the burial. Mr Tuinenburg snr said that he remembered that Sharon was very upset that not only had her horse died but that she did not get to see it buried. He said that he was shocked at the way Dr Lloyd treated them when all they wanted to do was see Gyspy buried. Mr Tuinenburg snr said that Dr Lloyd's 'secretary' also said at the time that the burial had gone ahead because the bobcat driver could not wait (ts 494). Mr Tuinenburg also referred to there being a terrible smell. 342 Dr Lloyd has asserted that during these exchanges Ms Clee or Glenn said to the boys that they would 'get' their father. Ms Clee denied that either she or Glenn made any statement to the boys that he would 'get' their father. Glenn also denied saying this. We accept these denials. Glenn said he did utter some swear words, reflecting his anger at not being able to see the horse buried. Mrs Tuinenburg said that everyone was angry but that she was sure that nobody threatened Mellony Johnson or the two boys. The Tuinenburgs and Ms Clee then drove back to the surgery. 343 Back at the Surgery. Ms Clee said that once they were back at the surgery she asked Dr Lloyd why Gypsy was buried without her family being present. She said Dr Lloyd said words to the effect that 'The bobcat we organised broke down and we had to get another one. He just couldn't wait for you to come. Come and talk to me inside, Sharon.' 344 Mrs Tuinenburg said that she had challenged Dr Lloyd as to why he could not have waited as she and her husband had seen the bobcat driver leave at 2.30 pm. Mr Tuinenburg also said he heard someone challenging Dr Lloyd over why the horse had already been buried. Glenn Tuinenburg said that he went to wait in the car. 345 Ms Clee said that Dr Lloyd took her into his office sought to explain things and to reassure her. Mr Tuinenburg said Ms Clee was with Dr Lloyd for about half an hour (ts 497). Ms Clee said among other things she had asked Dr Lloyd about where he had cut the horse for the autopsy. He replied, 'Near the stifle area [the area near the joint of the hind leg]. I didn't have to go digging much. I noticed the tumours straight away and the liver was damaged.' 346 Ms Clee says that after the conversation she had left the office and they all went home. 347 Dr Lloyd's Version of Events. In his original reply Dr Lloyd does not refer to any of Ms Clee's concerns regarding the conversations on this day in relation to the reburial of the animal prior to the arrival of the Tuinenburgs at reception. 348 His original reply begins at the point where the party returned to the surgery from the site and states: 'The owner, her boyfriend and Mother and Father arrived, viewed the burial site then unbeknown to me abused my staff and sons, while I was talking to the owner Ms Clee in a consulting room. She did not wish to see the Post-Mortem samples and left. On leaving the building the boyfriend, from the safety of his car, started to abuse me. I took umbrage at this show of belligerence and asked him to get out of the car and explain himself. This he declined to do. Ms Clee and the three others exited the property. I do not think I was negligent in my treatment of the horse and as to any misconduct by myself in bringing the profession into disrepute I can only say that faced with the verbal abuse I received, some form of verbal defence was called for.' 349 Dr Lloyd's Evidence Given to the Committee. Dr Lloyd's version of events given to the Committee was that when Ms Clee, Glenn Tuinenburg and Mr and Mrs Tuinenburg first arrived at the surgery, he explained to them that the horse had already been buried and said that they could view the burial site. He said that he had other clients and could not take them down to the site. He said his nurse and his two nine years old sons, walked up with Ms Clee and the Tuinenburgs to the burial site. Dr Lloyd said that when the family came back Mr and Mrs Tuinenburg started to abuse him in front of his clients. He said that he walked outside. His nurse informed him that they had been threatening her and his sons. 350 Dr Lloyd said that he walked with Mellony Johnston to the car (presumably where Glenn Tuinenburg was) and suggested that if he had anything to say he should take off his hat and glasses and step outside the car and 'have a chat to me'. Dr Lloyd said that he did not say that he would do anything to him. 351 He said that he then took Ms Clee into his staff room and explained what had been done to the horse, the burial mishap and said that he was sorry. 352 In his statement prepared for the Tribunal, Dr Lloyd referred to two visits by Ms Clee and Glenn Tuinenburg. Dr Lloyd said that the first visit occurred when he had been away from the surgery doing veterinary work elsewhere. He said that when he returned his nurse Mellony was visibly distressed and his two sons had clearly been crying. He said that Mellony told him that Miss Clee and her boyfriend arrived and that she had taken them to the grave and that Glenn Tuinenburg was abusive. 353 Dr Lloyd said that then Ms Clee and her boyfriend came back later with Glenn's parents. According to Dr Lloyd, Mrs Tuinenburg stated that they wanted to see the grave and he told them they could drive up while he spoke to Ms Clee. He said he wanted them to drive because he didn't want them wandering around his property and frightening his nurse and his children any more. 354 Dr Lloyd said that he spoke to Ms Clee while the parents and Glenn went to visit the burial site. On this version of the events, Glenn was now being allowed to visit the grave a second time despite to his alleged previous conduct and now unescorted by any staff. 355 According to Dr Lloyd, Mellony came in to interrupt his discussion with Ms Clee because Glenn and his parents had returned from the visit and were 'starting to say bad things again'. 356 Dr Lloyd said that he finished his conversation with Miss Clee amicably and there was no argument between them. 357 Dr Lloyd said that the Clee party left in two cars, and they were in the cars when the boyfriend started saying things. Dr Lloyd said that Mellony and his sons started to get upset again. Dr Lloyd said that Glenn 'was very brave from the safety of his car' and that he didn't want to fight him. He just wanted them to go away. He said that he said, 'Why don't you take off your funny hat and your glasses and act like a man'. He said that may not have been the best way to deal with the situation but Ms Clee and Glenn then left straight away. 358 Dr Lloyd said that his boys suffered from nightmares about these events for some time and their mother (separated from Dr Lloyd) requested that Dr Lloyd seek a restraining order against the Tuinenburgs and Ms Clee to reassure them. Dr Lloyd advised that she was also seeking counselling. Dr Lloyd said that he did not seek a restraining order. 359 To similar effect, Dr Lloyd gave evidence to the Tribunal that he was not at the property when Ms Clee arrived with Glenn and Glenn's parents. He said that his nurse had accompanied them to the burial site. Dr Lloyd agreed that he said at some stage in the afternoon, 'Sharon's my client, not you' to either Glenn Tuinenburg or his parents. 360 Dr Lloyd claimed in cross-examination that he gave the family the OK to drive up and back from the burial site while he spoke to Ms Clee. He said that his sons were 'white with fear' because Glenn Tuinenburg had threatened him, his children and his nurse Mellony; and was swearing and abusive. While we accept that there had been an argumentative exchange, we reject this account as hyperbole (ts 921). We are satisfied that, if such was the case, he would not (as was put to him in cross-examination) have allowed the boys to be present at the site with the Tuinenburgs. 361 Dr Lloyd said that what he finally did was to take Ms Clee into his room and said that he was sorry for what had happened re the burial; and, she said, he talked to her about the causes of diarrhoea. He said in his statement to the Tribunal that he agreed with Ms Clee that he had used the words 'if he had done a post mortem' in this conversation, but what he had meant was a full as distinct from a partial autopsy. 362 Dr Lloyd agreed in cross-examination that he said words similar to 'Take your hat and sunglasses off and act like a man?' to Glenn Tuinenburg. Dr Lloyd denied that this conversation took place before Ms Clee or the Tuinenburgs went to the burial site. 363 Dr Lloyd said that the conversation took place after his meeting with Ms Clee and Ms Clee was sitting in the passenger seat and Glenn Tuinenburg in the driver's seat when the exchange occurred. 364 In cross-examination (ts 926), Dr Lloyd sought to give this explanation of his reference to Glenn Tuinenburg's hat and sunglasses (ts 926): 'Q. Dr Lloyd, if Glenn was in the car when you made this statement about taking his hat and glasses off and acting like a man, what was the point of referring to the hat and glasses? A. It was only my personal opinion, but I had seen him in those - he seemed to wear those - that uniform regularly and I just - oh, well, it looked ridiculous, in my opinion, and I suppose it was a - not a very strong, or cutting remark to make, but that was the best that I could come up with in view of the anger that I felt at that time, or in view of my emotive state at that time.' 365 Dr Lloyd denied that this was a threat, even though Glenn Tuinenburg had responded 'I'm not going to fight you'. Dr Lloyd told the Tribunal that If I had intended to act violently towards this man, I would have certainly put it much more forthrightly and succinctly and in easy language for him to understand. (ts 925) 366 Mellony Johnston's evidence. Ms Johnston had signed a statement on 25 January 1996 (i.e. two days after 23 January) while still in the employ of Dr Lloyd and well before any official complaint had been lodged by Ms Clee. She referred in general terms to verbal abuse being directed at Dr Lloyd and his sons. She referred to 'Mr Glee' as being very abusive, by which we understand her to be referring to Glenn Tuinenburg. She said in her statement that as they left she recalls them saying that they were going to report Dr Lloyd to the Veterinary Board. 367 Ms Johnson made a further statement (prepared for the Tribunal) dated 14 August 1998. She said that Ms Clee and Glenn Tuinenburg arrived, she was sent by Dr Lloyd to show them where the horse was buried. She said that Dr Lloyd's two young sons accompanied her. She said that she knew nothing as to the history of the horse having been uncovered and reburied. Ms Johnson said that the boys had been left with her because Dr Lloyd had gone out on house calls. She said that Glenn Tuinenburg had made various abusive statements at the graveside and indicated that Dr Lloyd knew that Ms Clee wanted to be there at the burial. Ms Johnson said that she indicated that she did not know anything about it, that they would have to talk to Dr Lloyd and she did not know when Dr Lloyd would be back. She said they then left. 368 Ms Johnson said that Ms Clee and Glenn Tuinenburg returned later that day with more family members. She said that she had told Dr Lloyd what had happened previously. She said that Dr Lloyd went over to the Clee car. Ms Clee got out and the boyfriend went to get out. She said Dr Lloyd told Glenn, 'Sharon is my client. I want to speak to her only'. She said that Dr Lloyd and Ms Clee went into the staff room for about 15-20 minutes and the parents and Glenn Tuinenburg stayed outside. 369 Mellony said that the parents started to complain about how long it was taking and asked her to tell Dr Lloyd and Ms Clee to hurry up. She said that she interrupted them and Dr Lloyd told her that they wouldn't be long. She said that Ms Clee had been crying but Ms Clee said in a friendly fashion, "Thanks Ron". 370 Ms Johnson said when Dr Lloyd and Ms Clee came out of the surgery, Ms Clee told Glenn to get in the car and that Glenn was shouting offensive things at Dr Lloyd from the car. She said that Dr Lloyd tried to talk to him. Her recollection was similar to that of the other witnesses that Dr Lloyd made a statement, the words of which she said were, 'Get out of the car, take off the funny hat and your glasses and act like a man' with Glenn Tuinenburg replying, 'I don't want to fight. I will have you reported and you're not going to get away with this' and left. 371 Ms Johnston gave oral evidence at hearing on 13 December 2000. She was no longer working with Dr Lloyd. With few exceptions, we found her level of recollection at hearing poor and her evidence generally unsatisfactory. 372 As to who authored Mellony Johnston's original statement of 26 January 1996 (3 days after the incidents on the occasion of the reburial), Dr Lloyd said under cross-examination (ts 927-928) that he said that the statement was written at his request so as to satisfy concerns that his separated wife who had custody of the boys had expressed to him in relation to continuing to provide access. Ms Johnston on the other hand said that she wrote the note independently. She said there was no request from Dr Lloyd. She did make any reference to concerns on the part of his wife. 373 Ms Johnson could not remember whether she actually typed it (ts 13/12/00:195). We are satisfied that Ms Johnston's statement of 25 January 1996 was not prepared for the reasons given by Dr Lloyd. She agreed that when she wrote it she knew that the Clee party had in mind referring the matter to the Veterinary Surgeons Board. Conclusions. 374 The version of events given by Dr Lloyd at hearing and in his prior statement describes two visits to the graveside that afternoon - the first involving only Ms Clee and Glenn (escorted by Ms Johnson and with his sons present) and the second involving Glenn and his parents (apparently unescorted, with Mellony Johnson opening the gate for them). The suggestion that there were two visits to the graveside is not corroborated by any other evidence, including that of Ms Johnson. 375 Ms Johnson in her statement dated 25 January 1996, as well as in subsequent evidence, consistently refers to one visit to the graveside. In her statement to the Tribunal and in evidence at hearing she refers to the visit she escorted as only involving Ms Clee and Glen. 376 In light of our rejection of Dr Lloyd's evidence as to a second visit, the remainder of Dr Lloyd's evidence read with Ms Johnson's evidence calls on the Tribunal to conclude that Glenn's parents did not visit the grave. Mr and Mrs Tuinenburg's evidence on this matter was firm and detailed, to the effect that they visited the grave, and that everyone so far mentioned was present except for Dr Lloyd. 377 The very first statement of Mellony Johnson, the one she prepared two days after the events, on 25 January 1996, while not precise as to who was at the graveside follows a sequence which would, we believe, that ordinarily would be understood as indicating that the Clee party (including Glenn's parents) arrived together, and then went to the grave, an argument occurred at the grave, and then the party returned to Dr Lloyd's surgery. At this point Dr Lloyd took Ms Clee aside. There was then a further altercation at the surgery which is described. This broad outline is very similar to that given by Ms Clee in her letter of 9 February 1996, though there are differences as to what was said, and who was the instigator. 378 In any event, we have no reason to doubt the evidence of Glenn's parents. They had been observing activity at the hospital for some time and joined Glenn and Ms Clee as soon as they reached the hospital. 379 Findings. The Tribunal's findings in respect of the disputed events are as follows: + The Tribunal accepts that there was only one visit by Ms Clee to Dr Lloyd's Hoxton Park surgery on 23 January. Accompanying Ms Clee on this visit was Glenn Tuinenburg and his parents. + We are satisfied, first, that an altercation with Dr Lloyd occurred before the group went to the site and was focussed on the circumstances of the original burial and not later as reported by Dr Lloyd; and that it was the first of two similar altercations. We are satisfied that the sequence of events and the substance of the words spoken by Dr Lloyd were as described by Glenn Tuinenburg and Sharon Clee. Glenn Tuinenburg said in his second statement that he was not in the car when the altercation with Dr Lloyd occurred. He places the event as occurring before they went down to the burial site and says that they were standing just outside the surgery. We accept this evidence. + The Tribunal is satisfied that Dr Lloyd did see the Clee party before they visited the burial site. The Tribunal however is not satisfied that Dr Lloyd told the Clee party that the horse had been buried prior to their viewing of the burial site. According to Dr Lloyd's interview with the Committee he did tell them. Ms Clee and her family gave evidence of their shock and anger at discovering, when they reached the burial site, that the horse had already been buried. We accept the evidence of Ms Clee and her family. Requests for Autopsy Report and Storage of Samples 380 There was also conflicting evidence on these issues. 381 Autopsy Report. Ms Clee said in her original letter that that she first asked for the autopsy report on 18 January, and her purpose for the visit the afternoon of 22 January had been to collect the autopsy report. She said she asked again for the report on 23 January. Glenn Tuinenburg in his statement also said that Ms Clee asked Dr Lloyd for the autopsy report but he said he had not done it. She said she again asked for the autopsy report a week and a half later. As at 9 February when she wrote the complaint she still had not received the report. Eventually she was sent a report. Dr Lloyd does not respond to these concerns in his original reply. 382 The handwritten note eventually sent is on plain paper as distinct from letterhead (Ex G7) and has little detail: 'A PM was performed on your horse 'Gipsy'(sic). On opening the abdominal cavity I found evidence of cancer throughout the intestines and liver as well as severe liver destruction. Complications from the cancer in my opinion led to the demise of your horse.' 383 Dr Lloyd agreed that this report was not a 'comprehensive' autopsy report (ts 891). He had no satisfactory explanation as to why a short report like this could not have been supplied promptly. 384 He denied the suggestion that in telling Ms Clee that he had done an autopsy and in finding that the horse had cancer he was seeking to create an impression that there was nothing that could ever have been done to save the horse. 385 Samples: Much of Dr Lloyd's evidence in relation to the taking and storage of the samples is similarly unsatisfactory. Dr Lloyd said at hearing that he placed two samples in the staff room fridge (ts 855) in a stainless steel flask covered by transparent plastic (Gladwrap) and did not use formalin. Ms Harris, nursing assistant, said at hearing that she saw the Gypsy samples in a silvery stainless steel dish in the fridge. She assumed that there would have been formalin in the dish (ts 979-980). 386 As to why he took samples, Dr Lloyd said at first that he took them to show the owner. Then later in cross-examination he said that he had taken the samples to show a histopathologist. 387 As noted earlier, Ms Clee said that when she visited Dr Lloyd on 18 January, as well as asking for the autopsy report, she asked Dr Lloyd for a sample. She said he said they had been thrown out a day or two before. Dr Lloyd denies that he said this to her. His position has been that the first time Ms Clee brought up samples was on 23 January. 388 Ms Clee says that her companion, Nathalie Taimuri, enquired again at the meeting on 23 January 1996 about the sample. Dr Lloyd, she said, told her again that it had been thrown away. Nathalie's evidence, which we accept, is that he said 'I'm very sorry, but I threw it out yesterday.' 389 Dr Lloyd's position at hearing was that he did say this but this was the first time he was asked. He said he had done so after discussion with staff because the sample started to smell. He said the fridge was in constant use being a small bar-type fridge. He said under cross-examination that the staff disposed of it at his direction. 390 However, in his original letter to the Committee Dr Lloyd stated regarding the events of 23 January, 'The owner, her boyfriend and Mother and Father arrived, viewed the burial site then unbeknown to me abused my staff and sons, while I was talking to the owner Ms Clee in a consulting room. She did not wish to see the Post-Mortem samples and left.' This comment tends to suggest that the post-mortem samples were still in existence when Ms Clee requested them on 23 January. 391 Dr Lloyd did not refer to any staff protests about smell in his interview with the Committee. In the course of answering questions as to whether anyone had seen samples (interview, p14) he said: 'All of my staff have seen those samples, because they were in the fridge and they were left there for quite some time until the point where they dried out, and I just threw them away.' 392 In her statement for the Tribunal Ms Harris said that 'after the horse died I was annoyed with Dr Lloyd that a container of some entrails remained in the fridge.' In her statement Ms Harris said that she couldn't remember how many days the Gypsy sample was in the fridge, but she noticed the sample on a few occasions; and she did not work every day. She said that she asked him several times if the sample could be thrown out and on the first occasion she queried why it was being kept she was told 'it's part of that dead horse' which she understood to be an allusion to Gypsy, as that was the only dead horse that they had had at Hoxton Park. 393 The account given by Dr Lloyd and Ms Harris are broadly similar in that they depict a situation where there was no pressing concern about the need to dispose of the sample. 394 Ms Harris gave evidence as to the usual practices followed at Hoxton Park in relation to the storage and labelling of samples. She said that it was the usual practice to label them with relevant details; and she assumed that the samples would have been in formalin, which we took to be a reference to her understanding of usual practice. She said that the samples said by Dr Lloyd to have come from Gypsy stored in the fridge at the relevant time were not labelled. 395 At hearing Ms Harris's recollection was somewhat more specific as to the length of time the samples were held, and as to condition of the sample. She was asked when did she first learn about the altercation with Ms Clee and her family. She said about a week later. She was asked whether the samples were still there at the time she learnt about the altercation. She said, 'I would say they were actually still there … and, as I said, 'a couple of weeks later' they were still there' (ts 986). Ms Harris' evidence does not corroborate Dr Lloyd's evidence that he had thrown out the sample by either 17 or 23 January. 396 We are satisfied that Ms Clee did raise with Dr Lloyd the question of the sample on 18 January, and that he gave the answer she has described (i.e. that it had been discarded). A veterinarian should, in our view, be responsive to any request from an owner to provide samples for independent testing; and Dr Lloyd should have so responded. We are not satisfied that Dr Lloyd had discarded the samples then or as at 23 January. ADHERENCE TO CURRENT STANDARDS OF VETERINARY SCIENCE 397 Expert Evidence: An opinion was given by Dr R J Rawlinson, now a consultant veterinarian, who has had a distinguished practice and teaching career, and recently for 5 years was Director of Clinical Services for the Rural Veterinary Centre, University of Sydney at Camden (two reports, Ex G18). He was provided by the solicitors for the Committee with a brief containing the Notice of Inquiry including the particulars alleged. 398 Dr Lloyd filed an opinion from Dr A Dart (Ex G30). Dr Dart has practised for 15 years and is presently a Senior Registrar at the same Rural Veterinary Centre at Camden. His opinion took the form of a series of answers to hypothetical questions prepared by Dr Lloyd's solicitors drawing on the circumstances of this case. He was briefed with Dr Lloyd's clinical record, Dr Lloyd's statement to the Tribunal and the prosecution brief. He did not examine the allegations seriatim but confined his comments to the questions put to him on behalf of Dr Lloyd. Dr Dart's answers were negative in relation to the adequacy of Dr Lloyd's conduct. Dr Lloyd applied to have the report from Dr Dart withdrawn from evidence during the hearing. The application was refused: see ruling ts 877-879. Allegations 399 We now proceed to make findings in relation to the particulars and the allegations, in light of the findings so far made, and in light of our findings in relation to the expert evidence (dealt with below). 400 We have grouped the numerous allegations into conceptual categories. We have divided the allegations making up Allegation 1, as follows: the general practice allegations; the animal welfare allegations; the poisons and drugs requirements allegations; and the record keeping allegations. We then deal with Allegation 2 (conduct as superintendent of veterinary hospital), Allegation 3 (use of unregistered person) and Allegation 4 (personal conduct) separately. The General Practice Allegations. 401 Of the 15 allegations made under Allegation 1, there are five allegations in this category, and they are the most significant ones in relation to the quality of Dr Lloyd's professional procedures. 402 Clause 5(2) of the Code provides that professional procedures should always be carried out in accordance with current standards of veterinary science. Breach of this standard constitutes misconduct in a professional respect (Regulation, cl 10(2)). Allegations 1(e), 1(i), 1(m), 1(l) and 1(o) each alleged breach of this standard. 403 We reiterate that we have rejected the present Committee's submission that the Allegations 1(m), 1(n) and 1(o) no longer be considered. We have not accepted its further submission that the time period covered by Allegation 1(l) be read down (reasons given below). Allegation 1(l) 404 As particularised, the allegation covers the whole period of consultation until the death of the horse (26 December 1995 to 12 January 1996). In the joint statement prepared by the parties dated 3 September 2002, the Committee indicated that it only pressed this allegation as between 26 December 1995 and 8 January 1996. It did not explain its reasons for qualifying the allegation in this way. 405 We do not think it appropriate to narrow the particulars in this way at this point. The particulars comprise four sentences of which the first is introductory and refers to the period from 26 December 1996 to 12 January 1996. It is clear from the sentences that follow that the primary focus is the period prior to 9 January 1996, when Dr Lloyd had not seen the horse. We have approached the assessment of the evidence in that light. Dr Lloyd's reply to the charge is, as we interpret him, that the diagnosis of cancer, first raised as a possibility on 9 or 10 January 1996, provided an explanation that mitigated any omissions to that time. On this thesis, it would have made no difference if a full work-up and diagnosis had been done earlier. 406 This was a horse he had never seen, a client with whom he had never previously dealt and he took no steps to examine the horse (admitted by Dr Lloyd), so as to obtain information directly on which to base a plan for treatment. He formed an opinion as to the condition of the horse (giardia), gave advice as to management of the horse, and supplied two drugs, Dimetridazole (for Ms Clee to administer) and Dexamethasone (for James Murray to administer) before he saw the horse. 407 As to his failure to undertake a proper clinical examination, Dr Lloyd sought to suggest that the required standard is lower in cases where the veterinary surgeon is responding to an enquiry from a stranger as compared to a case where the client and patient are regularly dealt with by the practitioner. We do not accept the existence of such a distinction. The ultimate professional object in each case is the welfare of the animal. Indeed, greater caution is necessary in circumstances where the veterinarian has no prior knowledge of the animal being assessed. 408 Dr Lloyd engaged in a over-the-phone discussion of the case with a person not known previously to him in relation to an animal not known previously to him, and then undertook private research and come up with a diagnosis (relying it seems on the opinion of the owner, a lay person) proceeded with it on the basis that he was treating a giardia infection, and a few days later prescribed a medicine. 409 Dr Rawlinson stated that it was a clear breach of professional standards for Dr Lloyd to diagnose and treat the animal over the phone in these circumstances. Dr Rawlinson said in his written opinion, and we agree, that 'it was incumbent upon the veterinarian to either attend the animal or have it brought into the clinic for examination.' 410 Dr Lloyd also asserted that whilst the issue of a Schedule 4 drug without physical examination of an animal may be a frowned upon by city vets it is not an uncommon practice in dealing with large animals where there are difficulties in transportation particularly in country areas. 411 As to this point and as to the issue of giving advice by telephone, the Tribunal accepts that there might be occasions in remote country areas where a veterinarian might provide a diagnosis and prescribe treatment for an animal without physically examining the animal. This would only be acceptable where an veterinary/client/patient relationship had been established previously. The narrow exceptions that apply to veterinarians in rural areas are clearly not applicable in the present case. A member of the public is entitled to the same level of service regardless of where that member of the public lives. It follows that there is no room for acceptance of any distinction along the lines of 'country standards' versus 'city standards'. 412 In any case in the present case, neither Ms Clee nor Dr Lloyd live in a remote area. Although Dr Lloyd had previously treated a horse of Ms Clee's neighbour with similar symptoms, it was not appropriate to give the same treatment to Ms Clee's horse, without first examining the animal. 413 We are satisfied (see evidence ts 758-9) that Dr Lloyd was well aware of what steps should have been taken by a veterinary surgeon properly practising his profession. He also did not do enough to familiarise himself with Ms Clee's level of knowledge of horses, and her ability to dispense medications. His directions were vaguely expressed. We are satisfied that he did not ask enough about what kind of horse Gypsy was. We are satisfied that he had wholly inadequate information on which to base his dosage assessment. 414 In evidence Dr Lloyd continually suggested that he acted as he did because he was under the direction of the owner, Ms Clee, and out of desire to assist her in a low cost way. Ms Clee had consulted Dr Lloyd because of his expertise. A veterinarian, or any other professional practitioner, should not submit to the opinion of a lay client as to diagnosis. In any case we are not satisfied that Ms Clee did any more than seek to provide Dr Lloyd with some clues as to what might be a possible explanation for her horse's condition. 415 He also sought to blame Ms Clee for the situation that befell Gypsy. This is reflected in one of the written questions put to Dr Dart where it was suggested that an owner who knew for 3 months that a horse was suffering from chronic diarrhoea was being neglectful in not referring the horse to a veterinarian. Dr Dart answered the question in the affirmative subject to the assumptions being established. These assumptions were not established, and in event the interchange was irrelevant to the allegations that Dr Lloyd has faced in these proceedings. We are firmly of the view that once an animal's case, whatever the animal's condition or whatever the adequacy of care by the owner, is presented to a veterinarian, the veterinarian is not relieved in any way of his or her professional duty by virtue of any behaviour on the part of the owner that precedes presentation. Nor do we understand Dr Dart to disagree with that proposition in any way. 416 Dr Lloyd also expressed the opinion that the interaction with Ms Clee that occurred on 26 December 1995 did not amount to a 'consultation' but merely amounted to an 'enquiry'. As we understood this submission Dr Lloyd only saw the professional obligations that lie on a veterinarian as commencing to at the point a relationship gave rise to a 'consultation' of a relatively formal kind. He also expressed the view that the situation remains one of 'enquiry' until such time as there is clarity as to whether the person has in mind paying a fee. 417 In the present case he did not start a record until the horse was presented, examined and taken into care (on 9 January 1996). It may be that this represents his understanding of a 'consultation'. 418 Dr Lloyd sought also to equate a 'consultation' with a situation in which a 'diagnosis' is being given. He said that this was not occurring on the occasion of 26 December. It is plain that Dr Lloyd did give a diagnosis at that time even if, as he says, he was simply endorsing a 'pre-determined' diagnosis made by the owner (a view of Ms Clee's communication which we do not in any case accept) (see generally ts 745-746). 419 Dr Lloyd was dealing on 26 December with a person he did not know and an animal he had not seen. He gave professional advice. The transaction constituted a 'consultation'. The question of whether the relationship is a fee-paying one is irrelevant. 420 We accept that owners will often make telephone enquiries. It is, of course, acceptable for veterinarians to give advice by telephone in relation to animals (or animal populations as in the case of production animals) where they are familiar with the animals, know the owner and confident of the owner's ability to depict the situation with reasonable accuracy. These circumstances frequently arise in rural settings where the animals are located a long way from any veterinarian. But the veterinarian must still make a judgment as to the seriousness of the case on the basis of what is reported. It may be necessary to ask for the animal to be brought in for examination, or for the veterinarian to go out to the animal(s). Any instructions given by telephone must give careful consideration to the ability of the owner to follow them. 421 In final submissions, Dr Lloyd sought also to explain his actions on the basis that he was not aware prior to 1998 that it was improper to dispense antibiotics to outpatients. He referred to a newsletter 'Board Talk' published by the Board. It was Issue 1 dated February 1998. The front page of the newsletter contains an article headed 'Prescribing Drugs' with the following opening statement: 'It has come to the Board's attention that there have been increasing numbers of incidents of inappropriate prescribing. It is the obligation of every practitioner to know the requirements and ignorance will not be considered a defence'. 422 On the next page in the same article under the heading 'The Patient – Veterinarian Relationship' it states: Veterinarians should prescribe restricted drugs only for animals in their care. This care must be real and not merely nominal. They must be given, and accept, responsibility for the health of the animal/s in question, including arrangements for emergency care. The veterinarian should be readily available to make adequate arrangements for contact in the event of adverse reaction or failure of the regimen of therapy. The veterinarian should have either seen the animal for whom the drug is prescribed, or have visited the property sufficiently often and recently enough to competently prescribe the drug in question. In remote areas, regular personal visitation may be impractical and telephone consultation may suffice. The veterinarian is obliged to ensure that the best available service is offered, that the animal's welfare is the foremost consideration and that prescribing obligations can be prescribed faithfully. 423 Dr Lloyd submits that this newsletter establishes that his prescription practices that he followed in respect of Gypsy in December 1995 and January 1996 were not unacceptable at that time. The statement of the Board is not a statement of a new practice. Rather it is a reminder of an existing practice. 424 Treatment of Chronic Diarrhoea. Dr Rawlinson referred in his statement to the proper approach to be taken in the treatment of chronic diarrhoea. He referred to Rose & Hodgson, Manual of Equine Practice (1993) at 239. We will not set this material out at length. The standard diagnostic approach described there is: complete history, thorough physical examination including rectal examination, faecal examination for parasite ova, haematology and serum or plasma biochemistry, abdominocentesis, and if indicated, the following - urinalysis, carbohydrate absorption test, rectal biopsy, liver ultrasound/biopsy. 425 Dr Rawlinson considered that a veterinarian such as Dr Lloyd should have been aware of the technique of abdominocentesis in 1995, (ts 678) and that it is not a difficult technique (ts 690). Dr Lloyd said he did not do an abdominal paracentesis (which he had done in colic cases) because he might puncture one of the intestinal contents and further exacerbate the horse's condition (ts 701). We are not satisfied by his replies under cross-examination (ts 800-813) as to why he felt it was not appropriate in the circumstances to undertake abdominal paracentesis. 426 Dr Rawlinson drew attention to the text's statement at 240 'Antibiotics have no place in the treatment of chronic diarrhoea and are likely to worsen the clinical course.' 427 In allowing the client's suggestion as to what might have caused the condition (giardia by cross-infection from a human) Dr Lloyd failed to exercise the judgment and diligence expected of a veterinary surgeon. He proceeded to prescribe a medication relevant to that condition in circumstances where the likelihood of the disease in a horse was known to him to be exceedingly rare. He should have explored more conventional possibilities as to the cause of the problem and have had clear scientific evidence for the conclusion that giardia was the source. His failure in this regard is a serious breach of professional standards. 428 He compounded the risk to the horse's health by prescribing a medication (Dimetridazole) which was contraindicated in the relevant texts as a treatment for horses with diarrhoea: see for example, I.V.S; and as well was not registered for use in horses. There can be special circumstances that might permit a medication which is generally contraindicated to be used. If a definitive diagnosis of giardia had been established in this case, then an antibiotic would have been appropriate to treat the giardia. To similar effect, Dr Rawlinson said that if he was to treat a horse that had been diagnosed with giardia, he would use the drug metronidazole, commonly used to treat giardia and similar conditions in animals and one which is registered for use in horses. 429 We agree with Dr Rawlinson. We note also that the medication which was unregistered for use in horses. Without careful attention to the dose rate it could be poisonous. There was a high risk that the medication would exacerbate the condition. We express no conclusion as to whether it did, but what is clear is that the condition of the horse further deteriorated. 430 Quality of Assessment on Admission. Dr Rawlinson stated that treatment instituted at the clinic should have been based on a proper evaluation of the animal's condition and careful discussion with the client regarding treatment options, costs and prognosis. He said that 'none of this would be possible without a proper work up of the case.' Dr Dart criticised Dr Lloyd's approach to ascertaining the weight of the horse. 431 He criticised all aspects of his process of estimation, and noted that inaccuracies are likely to be magnified where no actual weight is taken. 432 We are satisfied that no proper work up occurred in this case. As the evidence discloses, Dr Lloyd did not use the range of tests that were appropriate to treat a horse presented in a seriously unwell state. We are satisfied that Ms Clee did not in any way seek to prevent or limit Dr Lloyd's discretion in relation to the tests to be undertaken. 433 Dr Lloyd was unpersuasive in his answers to questions (see, e.g. ts 816) as to how he came to the conclusion that a severe infestation of worms had been present for three months or more when the Randwick blood test of three weeks before contained no relevant indicators and Miss Clee had wormed the horse four weeks earlier. 434 We were also unpersuaded by his evidence as to how he concluded that the liver was a focus of infection (see ts 818f). 435 As to finding strongyle eggs after the faecal float, Dr Rawlinson observed in evidence that most horses will have some strongyle eggs, and that allowance has to be made for their occurrence in the case of diarrhoea (ts 661). 436 He notes that the drench used, Piperazine, has not been used in horses for about 10 years, and that in any case it had no effect on strongyle eggs (ts 662). He agreed that electrolytes were useful as they countered dehydration. But he said that Scourban (also used by Dr Lloyd) was not effective in horses because horses have a large intestine (ts 662). He was critical of the choice of drugs. He said if there are strongyle worms, a drug must be chosen which will affect that problem and will have the least effect on a very ill animal (ts 663). Dr Lloyd also used Mebendazole in the drench, a treatment that is effective against strongyles. Drenching with Mebendazole alone would have treated any strongyles present, the addition of Neguvon and Piperazine was not indicated and may have had a detrimental effect on a very ill horse. 437 Use of Antibiotic. Dr Dart did not accede to the suggestion in the question put to him by Dr Lloyd that on viewing a haemocrit (PCV) with a pronounced buffy coat it would be within the range of reasonable treatment to include an antibiotic in the therapy regime. Dr Dart said that the buffy coat was a subjective measure. He said that a complete white blood cell count and differential would have been available to Dr Lloyd though any of the veterinary laboratories. 438 Dr Dart said further, given that the horse had a chronic disease process and the fact that antimicrobial therapy can be contraindicated in chronic diarrhoea, delaying antibiotic treatment until further information became available 'may well have been the better approach.' He also said that 'the presence of an increased white cell count does not always indicate active infection.' 439 We agree with these observations, highlighting the peremptory approach that Dr Lloyd took to the assessment of the animal when it was hospitalised. 440 PCV. We have noted elsewhere the PCV count was not unusually high, only a little above the normal range. This was put to Dr Lloyd in cross-examination (ts 826). The following exchange occurred: Q: The packed cell volume was 48, and you agreed that is not particularly high? A: Yes. Q: It doesn't suggest a severe dehydration, does it? A: It is dehydration. Q: Indeed, there are a number of horses in very good condition that would have a packed cell volume of 48. A: Well they wouldn't win many races. Q: Racehorses in particular are the types of horses that normally have a higher packed cell volume, isn't that right? A: Fit racehorses, yes. Q: And 48 would be fairly common to see among fit racehorses? A: Too high. 441 Cancer. Dr Lloyd acknowledged that he did nothing at all to determine whether his most serious possible diagnoses, cancer, was present (ts 828). 442 Discussion of Tests. Ms Clee said in her statement for the Tribunal that Dr Lloyd referred to the possibility that the horse had cancer, and that he would do 'some tests'. Ms Clee said in her statement that she asked Dr Lloyd if he had done any tests yet, and he replied that he was still drenching the horse and would get the tests 'done soon'. She confirmed the first part of her statement in cross-examination, the second aspect not being raised. 443 In his statement Dr Lloyd said that he had mentioned tests during the first discussion with Ms Clee over the telephone (on 26 December). Ms Clee denied that he mentioned tests. We consider that it is inherently unlikely that a veterinarian would raise tests without having done any examination of the horse, and forming a view as to what might be appropriate. We accept Ms Clee's evidence. 444 We are satisfied that the first occasion on which Dr Lloyd raised the possibility of tests was 9 January. We are satisfied that he did so only in general terms; and in a situation where the owner was very distressed over the condition of her horse. 445 The mere raising of the issue is not enough to dispose of the concern raised by the particulars. There is no evidence that Dr Lloyd gave his client advice of any meaningful kind about the possibility of tests being conducted, with sufficient detail (as to nature of tests, intrusiveness, time factors and cost) so as to enable the owner to give a considered response. 446 Referral. The last item in the particulars to Allegation 1(l) allege a failure on Dr Lloyd's part to refer Ms Clee to a specialist. As indicated above in the discussion under 9 January 1996, the Tribunal does not accept Dr Lloyd's evidence that he told Ms Clee to take Gypsy to the University at Camden. We are satisfied that he failed to offer referral to a specialist. 447 Ms Clee's emotional state. The Committee in its final submissions filed 25 November 2002 contended that in respect of the facts which support Allegation 1(l), 'the owner's emotional state and concern about costs, which she conveyed to Dr Lloyd, are relevant.' The Committee gave no transcript references as to Ms Clee's alleged concern about costs. There was no evidence from Ms Clee that she was concerned at any time about costs. The Committee's submission is unfairly critical of Ms Clee. She has consistently stated that she was upset, as many owners would be, when told about the gravity of her horse's condition on 9 January. We only regard her emotional state to be relevant to the extent that it may have clouded her recollection of critical occurrences. We have taken account of it to that extent. 448 Findings as to Particulars to Allegation 1(l). We are satisfied that the particulars in support of Allegation 1(l) are made out, subject only to the narrow qualification that Dr Lloyd did raise generally and for the first time the subject of tests on 9 January 1996. But he did not do that in a manner and with the level of detail that was appropriate in the circumstances. We are satisfied that his omissions (lack of examination, lack of adequate procedures to make a diagnosis, failure to provide a differential diagnosis, failure to give advice in relation to possible tests that might be available, failure to offer referral to specialist) constitute a failure to carry out professional procedures in accordance with the current standards of veterinary science at the relevant times. 449 As to the period 9 January to 12 January, he still did not do a proper work-up with a view to obtaining a proper diagnosis. His tests were limited. The treatments given to the horse both before and after 9 January were inappropriate to a condition of chronic diarrhoea, as explained by Dr Rawlinson. 450 Finding as to Particulars and as Allegation 1(l). All particulars are established. Dr Lloyd clearly failed to carry out professional procedures in accordance with current standards. The allegation is established. The misconduct identified is of great seriousness. Allegation 1(e) 451 Dr Lloyd admitted that he supplied Dimetridazole to Ms Clee on 30 December 1995 without having examined the horse. He pleaded justification (country standards of practice) in not examining the horse. We have already dealt with this explanation under Allegation 1(l) above. 452 He also denied the particular asserting that he 'had not previously used that drug'. Dr Lloyd asserted that this drug was first used to treat a horse belonging to Ms Clee's neighbour, Mr Bill Lawson. (We note that Ms Clee in her complaint letter says that Dr Lloyd said 'he would try it on the neighbour's horse as well.') In the context of the allegation, this is not a significant matter. The principal particular that he did so without examining the horse is made out. 453 In any event, the statement made by Dr Lloyd as to his prior experience (one previous prescription of the drug) must be doubted. Had that been the case, he would have been likely to have the drug in stock. But he said to the Committee that he had to order it in prior to providing it to Ms Clee (see Committee interview at p22). It is not necessary to reach a finding on this issue. It is clear even on Dr Lloyd's evidence that he had extremely limited experience in prescribing this drug; and that in itself meant that he should be extremely cautious in making a decision to prescribe the drug. 454 Finding as to Particulars and as to Allegation. The essence of the particulars (that Dr Lloyd had supplied Dimetridazole to Ms Clee on 30 December 1995 to administer to her horse even though he had not examined the horse), is established. There is a clear failure to observe professional procedures. The allegation is established. Allegation 1(i) 455 This allegation alleges a failure to carry out professional procedures in arranging for Dexamethasone to be administered without examination by him and by an unregistered person without supervision. 456 The first sentence of the particulars contains several assertions. 457 In that regard, we are satisfied that Dr Lloyd had formed the view by 6 January that the horse was not improving as a result of the administration of Dimetridazole; and that the general condition of the horse was deteriorating. He had told Ms Clee not to administer the last dose. It was clear to him, from the phone call of 8 January, that the horse had continued to deteriorate. It is also clear that he instructed an unregistered person to administer the drug Dexamethasone. He was not present. As the particulars reflect, we acknowledge that there may be circumstances where it is acceptable for an unregistered person to administer an injection. But this was not such a case. Given James Murray's lack of experience and Dr Lloyd's lack of any direct knowledge of the animal or its condition, it was incumbent on him at least to be present, as the particulars assert, when the injection was done. 458 In this kind of case Dr Lloyd should himself have administered any treatment after, as the second sentence of the particulars assert, an examination of the horse and the taking of proper steps to establish a diagnosis. (We note that there is an obvious error in the text of the third dot point in the second sentence of the particulars – the drug Dexamethasone had not been used in the treatment of the horse over the previous few days. This error makes no difference to our findings.) 459 The third sentence of the particulars asserts that Dexamethasone was a Schedule 4 drug, which Dr Lloyd admits. 460 The fourth sentence asserts that Dr Lloyd 'did not in any way supervise the giving on [i.e.,'of'] the injection'. We are satisfied that the limited instructions given to James Murray at the time of his despatch did not amount to supervision of the kind expected of a competent veterinarian. 461 Findings as to Particulars. The particulars (subject to the qualification mentioned in relation to the third dot point of sentence two) are established. 462 Findings as to the Allegation. The allegation is made out. 463 The misconduct identified is of great seriousness. In our view, it was incumbent on Dr Lloyd, clearly knowing how serious the condition of the horse was, to take a much more proactive approach to the case. Any further action by him could only responsibly be taken after a thorough examination and a thorough professional appraisal of the horse's condition. Instead at this point Dr Lloyd treated an owner's explanation of symptoms as sufficient to found a provisional diagnosis and the prescription of a powerful medicine. The horse was in deep distress, and there was an increasing risk that the horse's condition would continue to worsen if not treated properly. There was also a very real risk that any mistaken treatment could have fatal consequences. At this point Dr Lloyd needed to see the horse and exercise great care as to the administration of any course of treatment. Allegation 1(m) 464 Keeping Animal with other Animals. The essence of this charge is reflected in the third sentence of the particulars. The allegation is that he failed to adhere to current standards in that he placed Gypsy with other horses when he had been treating it for a possibly contagious infection (i.e. giardiasis) on the basis of what Dr Lloyd saw as the owner's diagnosis. He said to the Committee that when the animal was brought to him, 'I didn't believe it had giardiasis then'. He had changed his opinion but had not taken any steps to establish whether or not to eliminate the possibility on which he had first acted that it had a contagious infection. 465 The second sentence of the particulars recite that the horse was 'tethered'. We have indicated in our conclusion below in respect of Allegation 1(n) that 'tethering' in the strict sense was not established. While that assertion is significant in assessing whether Allegation 1(n) is made out, it is not a significant aspect of the particulars in support of the present Allegation. 466 Dr Lloyd denied the assertion that Gypsy had a possibly contagious disease when he placed it with the other healthy horses. Dr Lloyd was of the view that Gypsy did not have any contagious disease, even though he had not performed any tests. To the question of whether it is good practice to put sick animals with other animals without first doing a full work up, he said he would not do this with other clients' animals, but in this case the paddock only had his animals there. Dr Lloyd also acknowledged that strongyle eggs (which he said he had detected) could be ingested by other horses. But it did not see that as a serious risk (ts 835). 467 We note that in closing submissions for Dr Lloyd, Ms Green pointed to evidence given by Dr Rawlinson in re-examination (ts 680), in which Dr Rawlinson might be understood as accepting that it was less objectionable for a veterinarian to place a contagious animal with animals owned by the veterinarian than with animals belonging to clients. Dr Rawlinson also said in evidence that it was a matter of judgment for the veterinary surgeon as to whether he placed a sick horse in the same paddock as healthy animals; and that he was not able to comment specifically on this case. 468 It is never acceptable practice to place an animal which is suspected of having a contagious condition of any real seriousness (as was the possibility here) in the company of healthy animals, especially in circumstances where isolation of the sick animal could be readily achieved. The critical issue is the welfare of the other animals. The extent to which their welfare is to be protected can not be influenced by who owns them. We do not interpret Dr Rawlinson to be saying that it is acceptable to place contagious, or potentially contagious, sick animals with healthy animals, if that can be avoided. 469 Findings as to Particulars and Allegation. We are satisfied that in this case Dr Lloyd should have, and failed, to carry out tests to establish whether or not Gypsy had a contagious infection. The relevant particulars and the Allegation are established. There was a failure to carry out professional procedures in accordance with current standards of veterinary science. Allegation 1(o) 470 This allegation refers to three matters. The first matter referred to is the original agreement with Ms Clee to bury the horse. The second matter is the mode of burial. The particulars refer to the making of a shallow grave and the lack of adequate covering of the grave. The third matter is the effect of these alleged circumstances on the horse owner – that she saw the uncovered carcass and was greatly distressed. We accept, and it was not disputed, that Ms Clee came upon the uncovered carcass and was greatly distressed. It is also clear that Dr Lloyd promised to bury the horse. 471 The matter of dispute in the case was whether the original grave was an adequate grave. We have already dealt at length with the evidence on this issue, and indicated our view. 472 Findings as to Particulars. The particulars are established. 473 Current Standards: The present Committee submitted in its closing submissions in September 2003 that, even if the particulars were established, the allegation itself was not proven, as burial of an animal is not a procedure that forms part of the practice of veterinary science. Accordingly any failures on Dr Lloyd in respect of this matter, however serious, could not amount to misconduct in a professional respect. It was suggested by Ms Linkenbagh that an aggrieved client should pursue any concerns over burial issues by civil action or complaint to the police, and it was not a concern relevant to professional discipline. 474 This had never been Dr Lloyd's position in the course of the inquiry. Dr Lloyd had always contended that he had done a reasonable job in the circumstances. We have not accepted his evidence in that regard. Not surprisingly, Dr Lloyd has now adopted the Committee's opinion. 475 The Tribunal questioned the submission, which seemed far-fetched, as it is a conventional aspect of the work of veterinary surgeons to undertake the burial of animals for owners. Often they bury animals on the owner's property; sometimes they bury the animals on their own property. Sometimes they arrange for animals to be cremated. Sometimes there is no practical option but to leave the carcass in the open air, as in the situation of dead animals in the remote outback. 476 The Tribunal invited the Committee to place before it any expert opinions that might suggest that the earlier Committee had been misconceived in its view that misconduct of the kind alleged could not give rise to a breach of professional standards. The new Committee was in effect suggesting that there had been a change in professional standards, negative to the public, between 1998 and 2002; or that earlier the Committee was mistaken. 477 The earlier Committee had relied on the report of Dr Rawlinson, as providing support for its view that inadequate burial practices of the kind alleged against Dr Lloyd amounted to professional misconduct. Dr Dart, who had provided a report at Dr Lloyd's request, was of the same view, though his comments focused on the second burial (see Ex G30). 478 There was also a report obtained by Dr Lloyd from Dr Ken Hoy, an experienced general practitioner. Dr Hoy's report was initially admitted into evidence but later struck out due him not being available to give oral evidence (on 21 February 2000: ts 16). 479 However, on the final day of submissions, the Committee tendered the report of Dr Hoy without objection from Ms Green on the burial issue (see ts56, 28/11/2002 ExG49) (six statements were lodged by Ms Linkenbagh, including the report of Dr Hoy and letters of instruction). 480 Dr Hoy said that 'in mixed practice post mortem autopsy and burial of large animals is often done 'non-cosmetically', with the animal either being 'buried', 'burnt' or left to decompose in the paddock. Animals in residential areas were usually taken away to be 'buried' at the local rubbish tip. Dr Hoy said that 'from my experience as a vet for 20 years in rural NSW, the events prior to and immediately following the death of the horse concerned are not remarkable. The events which followed are most unfortunate. The misfortune, loss of faith, frustration and anger which followed is something we all strive to avoid' (emphasis added). 481 This opinion describes a variety of disposal practices. If disposal practices fall in all circumstances outside the sphere of possible professional misconduct. 482 As noted, the present Committee produced other opinions said to support its view that standards were not as perceived by the previous Committee and Dr Rawlinson. The opinions were given in answer to a question formulated by the present Committee as follows: 'Is the disposal of the carcass of an animal that has died whilst in the care of a Veterinary Surgeon, if arrangements for the disposal are made by the Veterinary Surgeon, a procedure that forms part of the practice of Veterinary Science in NSW?' This, in our view, was the wrong question, and affects the value that can be put on any of the answers. The issue is not whether it forms part of the 'practice of veterinary science in NSW'. The issue, in the present context, is whether a failure to conduct oneself properly in relation to the burial of animals might, depending on the nature of the conduct, be viewed as dishonourable or disgraceful conduct affecting the reputation of the profession. 483 The question of what conduct may amount to professional misconduct can not be reduced, as a number of submissions from the present Committee have suggested, to the issue of whether particular conduct is an 'act of veterinary science'. In any case the allegation in issue refers to a failure to follow 'professional procedures', which, in our view, embraces matters that go beyond the exercise of technical skills that are unique to the practice of veterinary science. We see the reference to 'professional' procedures as seeking to cover all procedures reasonably connected with the practice of the profession of veterinary science. These can include activities that are usually undertaken by a veterinarian even though they may be of a kind that are capable of being performed (lawfully) by non-veterinarians. 484 Dr R E Jane (a member of the Veterinary Surgeons Board) stated that: 'In the case involving Dr Lloyd, heavy rain is claimed by him to have uncovered the horse and this is quite feasible. Although unquestionably upsetting for the owner of the horse when she discovered it, it is my opinion that this event could not constitute misconduct by the veterinarian in the professional sense. An offer to the owner to arrange the burial of an animal which has died is not an act of veterinary science and a veterinarian who makes such an offer cannot be held guilty of profession (sic) misconduct if the buried animal becomes uncovered. The horse was subsequently buried by a contractor employed by the veterinarian at some cost to him which was not charged to the owner'. 485 The first sentence of this assessment is not consistent with the findings of the Tribunal. Dr Jane has chosen to advise on one of at least two possibilities as to what occurred. He does not appear to have been made aware of any evidence as to the location of the grave or its depth or extent of cover. The question of the payment arrangement (the final sentence) is not relevant to the issue. (A similar view was put in closing submissions for Dr Lloyd: '…this was not even a contract for burial in so far as no consideration was being provided by Ms Clee. It was a favour being performed by Dr Lloyd intended to lessen the burden of her loss.') 486 In similar vein, Dr Kim Martel stated that 'the act of disposal of an animal is not itself a part of the practice of veterinary science in NSW as the law allows any one the right to dispose of dead carcass.' Dr Theodora Kletsas stated that '[v]eterinary science as defined in the act is the examination, diagnosis and treatment of animals and includes the welfare of animals. Because a veterinary surgeon undertakes to dispose of a carcass for a client, this cannot be construed as the practice of veterinary science'. Dr Alan Taylor gives his answer in terms of an 'act of veterinary science'. He stated: 'If the veterinary surgeon has been competent in the treatment of the animal up until its death, disposal of the body is an agreement between the veterinary surgeon and the owner of the animal.' He continued that, 'The only time the disposal is part of the practice of veterinary science is when the animal died of a contagious disease, or if barbiturates were used to euthanase the animal.' In his opinion 'disposal of an animal that has died is an Agreement between the owner and the veterinary surgeon caring for that animal, an would only form part of the practice of Veterinary Science in NSW in situations of potential infection or drug residue.' 487 These various opinions, in so far as they may seek to suggest that they define the boundary in relation to conduct that may constitute professional misconduct, are rejected for the reasons given earlier. 488 Greater care is reflected in the comments of Dr Paul Cusack. He noted that burial arrangements is an issue which is 'primarily one of client relations. The arrangement to dispose of large animals carcasses in usually made on a case by case basis depending on the circumstances and requirements of a given client. If the veterinarian makes an effort to dispose of the carcass in a manner in keeping with the expectations of the client, and unforeseen circumstances result in the client's expectation not being met, this does not constitute professional misconduct. Rather, this is a client relations challenge for the veterinarian to address with the client.' This opinion at least acknowledges that events can occur within the client relationship that may give rise to consideration of whether professional misconduct has occurred. He refers appropriately to the importance of meeting a client's expectations. His reference to 'unforeseen circumstances' providing a complete defence probably goes too far. But this opinion is, we are please to note, addressing the situation from the viewpoint of the client, the user of veterinary services, and we also consider from the viewpoint of the community. 489 Dr Cusack, also indicated that there were circumstances in which carcass disposal could conceivably amount to professional misconduct, including where a 'veterinarian showing flagrant disregard for the client's emotion, on the grounds that this could bring the profession into disrepute'. Dr Cusack's comments come close to the issues presented by this case. 490 Dr John Alexander wrote that 'disposal of the carcass of itself is not an act of veterinary science… Even though it may be conduct that has caused undue stress to the client, even though it may be a procedure or extra service that the veterinarian offered, and which he/she did not conduct efficiently or appropriately, it does not fit a definition of 'current standards of veterinary science'. The individual may have 'failed' as an accessory, or a 'down-stream service provider', but he/she cannot be seen to be guilty of professional misconduct'. This opinion is rejected. As previously note, it is wrong in our view to equate 'acts of veterinary science' with 'current standards of veterinary science'. 'Current standards' embrace more than the mere technical practice of veterinary science. 491 Clause 9 states: '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.' 492 Clause 9 contains a general statement as to the nature of the responsibilities of veterinarians. It is in the nature of an exhortation rather than laying down a rule. In our view it is another way of stating the standard, a gross breach of which would amount to misconduct in a professional respect at common law. 493 The conduct for which a veterinarian may be held accountable to his or her peers is all conduct reasonably connected with his or her practice. That can include a range of activities that go beyond the performance of diagnosis, treatment, surgery and provision of medications. While these are the core functions (the application of special expertise acquired initially by University study and later by experience and continuing or postgraduate education), there are a range of activities carried on in connection with veterinary practice that do not have these characteristics. 494 The most obvious is the way in which a veterinarian deals at the interpersonal level with owners of animals. There may be issues ranging from failure to respond to communications and rudeness to more serious ones extending to violence or intimidatory threats if complaints are pursued. None of these forms of conduct depend in any way on the application of the special expertise taught at university or obtained later. Many of the cases that arise in the legal profession and medical profession focus involve misbehaviour of this second type. A practitioner has many interpersonal responsibilities in dealing with clients. 495 In this case we are dealing with conduct directly related to the relationship between Dr Lloyd and his client, Ms Clee. Moreover, a veterinarian can be found guilty of misconduct in a professional respect even where there is no client involved if his personal conduct is a find that might bring the profession into disrepute. While this is not such a case, we mention some case on this point to reinforce the point we have made that chargeable conduct can go well beyond mere technical acts of veterinary science. 496 In Marten v Royal College of Veterinary Surgeons' Disciplinary Committee (1966) 1 QB 1 (QBD, Lord Parker CJ, Marshall and Widgery JJ) a veterinary surgeon appealed to the High Court against a decision of the Veterinary Surgeons' Disciplinary Committee that had found him guilty of professional misconduct in connection with his private activities as a farmer. The conduct for which he was found guilty was unconnected with his practice, but involved animals. He had been convicted for offences arising from his failure to bury the carcases of 11 cattle on his farm. 497 The Court considered two arguments, firstly whether disgraceful conduct required 'moral turpitude', and whether conduct, however disgraceful, cannot be conduct disgraceful to a man in a professional respect unless at that time he is actively practising in that profession or acting in pursuit of his profession. Lord Parker CJ observed at p 9 that: '…I see no valid ground for limiting the words [infamous conduct in a professional respect] in the manner suggested. If, of course, the conduct complained of is equally reprehensible in any one, whether a professional man or not, as for example, conduct constituting some traffic offence, that conduct would not come within the expression. But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or in the present case, conduct disgraceful to him as a practising veterinary surgeon.' 498 This decision was approved by the Court of Appeal (Jacobs P, Reynolds, Hutley JJA) in Beaumont v Beesley [1973] 2 NSWLR 341 (publication and authorship of a magazine by a well known doctor that was offensive in several respects which included its gratuitous sexually suggestive content, its depiction of the medical profession as endorsing content which had no respect for human dignity or for female patients, and commercial endorsements for pharmaceutical products). 499 In the instance of the legal profession, a number of recent cases have focussed on when mismanagement of personal financial affairs, in particular failure to meet tax obligations, constitutes professional misconduct: see, e.g., New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 and cases cited there. There has been no issue in these cases of incompetence in respect of the performance of technical skills associated with the practice of law. The inquiries have focussed on whether the private conduct is of a kind that would bring the profession into disrepute. 500 As noted earlier, theses cases are to be contrasted with the present case where the conduct involved the relationship with a client in respect of a matter commonly undertaken by veterinarians (burial of animals). Dr Lloyd's conduct in this case is of a kind that brings the profession of veterinary science into disrepute. 501 Finding as to Allegation: The Tribunal agrees with Dr Rawlinson that 'proper, mutually agreeable, arrangements [should have been] made for disposal of the carcass'; and moreover they should have been performed competently. 502 This allegation is established. 503 The misunderstandings held by the new Committee and by some leading veterinarians as to what is unacceptable conduct (and may if sufficiently reprehensible to give rise to a finding of professional misconduct) revealed by these recent submission are of serious concern to this Panel. Animal Welfare Allegation - Allegation 1(n) 504 Clause 2(1) provides that a veterinary surgeon must at all times consider the welfare of animals when practising veterinary science; breach of which constitutes misconduct in a professional respect. Allegation 1(n) alleges breach of that standard. (We reiterate that we have rejected the present Committee's submission that Allegation 1(n) no longer be considered). 505 The particulars refer to the horse being found 'tethered' on 10 January 1996, and suggest as a result the horse was unable to reach water. The particulars then refer to the horse keeping his muzzle in the trough for 10 minutes. 506 We have accepted the evidence of Ms Clee and Glenn Tuinenburg as to the horse having a lead rope, and being impeded by the lead rope in getting to water. We also accept that the horse spent some time with its muzzle in the trough. 507 The lead rope, we are satisfied, was caught up in some way around the hoof of the horse sufficient for it to act as a restraint. The word 'tethered' is not the most apt way to describe this situation. 508 The word 'tether' is defined in the Macquarie Dictionary (3rd ed, 1997) as: 'a rope, chain, or the like, by which an animal is fastened, as to a stake, so that its range of movement is limited.' We understand tethered ordinarily to refer to the use of a rope or similar piece of equipment to restrain the horse so that it is confined within an area, but still has some capacity to move available to it. The object of the tether is to prevent the animal moving outside the area defined by the length of the tether. 509 We are satisfied, though this may not have been usual practice, that the horse had a lead rope attached to the halter. It is an undesirable practice to leave a horse in a paddock with a lead rope attached to the halter of sufficient length that it could limit movement in the way described by Ms Clee and Mr Tuinenburg. 510 It is impossible to assess how long the situation that Ms Clee and Mr Tuinenburg had encountered had gone on. 511 Amount of Water. As recorded earlier in these reasons, A good deal of evidence was heard on Dr Lloyd's practices in ensuring that the water troughs were kept replenished 512 We are satisfied that Dr Lloyd had no orderly and supervised arrangements in place to make sure they were attended to. He left to it to staff to attend to these matters at their convenience subject to the duties in the surgery. Such an approach clearly carries the risk that things may not get done. He was also asked about his procedures for checking horses in the paddock, and whether they had access to feed. Again his answers were lackadaisical. 513 He was unpersuasive in his replies seeking to dispute the suggestion that leaving a horse with a lead-rope on could cause it to become impeded, and therefore unable to access food and water sources. 514 We are satisfied that the circumstances proven are sufficient to warrant a conclusion that Dr Lloyd failed to consider the welfare of the animal (by leaving the lead rope on, which gave rise resulting difficulties for the horse). That it is not good practice to leave a lead rope on, because of the difficulties that may result, was, we consider recognised by several of the witnesses who gave evidence for Dr Lloyd (for example, Dr Lloyd himself, James Murray and Mellony Johnston). While they all said Dr Lloyd would never leave a lead rope on a horse placed in a paddock, we are satisfied that on this occasion this did occur. 515 As to the interpretation to be placed on the horse swishing its muzzle in the water for some time, inference that we are, we consider, invited to draw is that the horse was very thirsty. It was a hot time of year. But the swishing of a muzzle is also consistent with a horse trying to relieve soreness in the mouth or gums. It may be therefore that the horse was not as thirsty as his actions might have suggested. On the other hand it is of course one of the functions of water that it provides horses with an opportunity to relieve soreness. Water access is also important for reasons of that kind. 516 Findings as to Particulars and Allegation: The particulars are established. Accordingly misconduct in a professional respect is established, though we should indicate that we do not regard this instance as falling at the most serious end of the spectrum; primarily for the reason that it is unclear how long the situation had gone on. The Poisons and Drugs Requirements Allegations 517 For the gazettal period affecting this case, 22 December 1995 to 22 March 1996, Dimetridazole [the drug provided to Ms Clee to administer on 30 December 1995] and Dexamethasone [the drug injected on 8 January 1996] were included in Schedule 4 of the New South Wales Poisons List (Ex G19). 518 Each of the four Allegations, 1(b), 1(c), 1(f) and 1(j) relate to Dr Lloyd's action in relation to the dispensing of those two poisons. Clause 6 of the Code provides a basis for these charges. Breach of a cl 6 requirement constitutes misconduct in a professional respect (Regulation, cl 10). 519 The first three allegations refer to the provision of Dimetridazole on 30 December (failure to provide appropriate instructions in relation to administration of a Schedule 4 poison, as required by cl 6(4) of the Code; failure to comply with relevant legislative conditions (1(b)), as required by cl 6(1) of the Code (1(c)); failure to meet labelling requirements, as required by cl 6(3) of the Code)(1(f)). 520 The fourth allegation in this group, Allegation 1(j), refers to failure to provide on 8 January 1996 appropriate instructions in relation to administration of a Schedule 4 poison, as required by cl 6(4) of the Code, in this instance Dexamethasone. 521 As noted earlier, the principal particulars in respect of these allegations were admitted (with the particulars of Allegation 1(j) admitted in whole). 522 Dimetridazole (the 30 December drug). There is a short report from Dr Jill Maddison, Department of Pharmacology, University of Sydney (G21). She was asked by the Committee to provide information on the use of Dimetridazole in horses. She noted that it was difficult to find any specific information on this drug as it was not registered for use in horses. She said, 'I can only assume that it was used in a horse because it is cheaper than metronidazole.' She did note that the references she had consulted 'all seem to indicate that the mechanism of action and pharmacokinetics of dimetridazole is very similar to metronidazole which of course is widely used in horses.' 523 Dr Rawlinson states, 'an S4 drug was prescribed over the phone, with no knowledge of the animal's condition and compounded by prescribing and providing a therapeutic substance not registered for use in horses.' 524 Dr Rawlinson acknowledges Dr Lloyd's point that in the standard text a dose of 50 mg/kg is recommended, he notes that this is for agricultural animals, i.e. cattle and sheep. He notes that because chronic diarrhoea syndrome in horses has a 'complex and largely unknown aetiology' it was once 'fashionable to incriminate protozoans [such as giardia].' He said that it is 'now accepted that these organisms are normal or opportunistic inhabitants of equine gut.' He states that in any case 'an inappropriate drug was prescribed'. Further there were no written instructions as to dose rate or route of administration for an animal whose condition and weight were unknown, and no accurate dose rate appears to have been calculated. 525 In evidence he noted that Dimetridazole has a range of applications in poultry and pigs. But giardia in horses was so rare he had never seen it, and he agreed with Dr Maddison that there is no research evidence to support is use in a horse. 526 We agree with Dr Rawlinson's assessment. 527 Dexamethasone (the 8 January drug). Dr Rawlinson said that Dexamethasone is not a normal recommended treatment for colic (ts 690). (Dr Dart commented that Buscopan (which was also given on this occasion) is commonly used for treatment of abdominal pain.) 528 Dr Dart noted and we agree that Dexamethasone is a corticosteroid and antiinflammatory drug that is not commonly used in the treatment of abdominal pain in horses. He noted that the corticosteroids, more commonly prednisalone are used in the treatment of some horses with specific types of chronic diarrhoea. 529 Dr Lloyd referred in his evidence to the markings he placed on the two medications when he gave them to James Murray. Those markings did not meet the standards required, or the criticisms made by Dr Rawlinson. 530 Dr Lloyd said it was his understanding that veterinarians could use and prescribe unregistered products such as Dexamethasone in 1995. Allegation 1(b). We are satisfied that the particulars are established with one exception. One aspect of the particulars is not relevant, i.e. the particular that no instructions were given as to any withholding period. Withholding periods are relevant to, for example, racehorses or slaughter of animals for animal or human consumption: see further Code, cl 6(2), quoted earlier). Neither of these circumstances were relevant to this case at the point of the treatment. While one particular is not established, we are satisfied that the allegation is established. 531 Allegation 1(c).We are satisfied that Dr Lloyd failed to ensure that the conditions relating to the making of records in respect of the supply of restricted substances imposed by regulation 59 of the Poisons Regulation 1994 were complied with, as set out in the particulars. The allegation is established. 532 Allegation 1(f). We are satisfied that the drug was supplied without ensuring that it was correctly labelled. The container did not contain any information, warning or other statement about the quantity of the drug, an adequate statement as to its being a poison subject to Schedule 4 (the statement 'Caution S4' was insufficient) and what to do in the event that a person came into contact with it or ingested it. The allegation is established. 533 Allegation 1(j). The charge is similar to Allegation 1(f) in that it goes to the adequacy of the instructions given on 8 January to James Murray. The particulars are established. We are satisfied that there were no written instructions as to dosage requirements, as to the route of administration (the markings IV and IM were inadequate in the circumstances) and any withholding period. The allegation is established. The Record Keeping Allegations 534 The allegations of inadequate records refer to each of the consultations with Ms Clee. Allegation 1(a) relates to 26 December 1995, 1(d) to 30 December, 1(g) to 6 January 1996, 1(h) to 8 January, and 1(k) to the period of hospitalisation, 9 to 12 January. No record was maintained by Dr Lloyd until 9 January 1996. The principal particulars were admitted in relation to Allegations 1(a), (d) and (h). Those relating to 1(g) are denied. Some of the particulars were admitted in relation to Allegation 1(k)(the record in respect of 9-12 January). Most were denied in respect of 1(g). Dr Lloyd, in effect, contends that the record he made during the period of hospitalisation was adequate. He seeks to excuse himself in relation to the omissions prior to that time on various grounds, which we have already canvassed to some extent. 535 Allegation 1(a) deals with the failure to record the original telephone call. The allegation depends on the premise that what was involved was a consultation. In our view that was plainly the case. A person previously unknown to Dr Lloyd had made contact. He offered professional advice and promised to undertake research. The client received and acted on advice given at that point. The rendering of the advice involved a consultation. A client relationship had been created, whether or not it was intended to charge a fee at that point. 536 This omission was exacerbated a few days later when on 30 December 1995, Ms Clee attended the surgery to pick up the drug. This is the subject of Allegation 1(d). Again no record was made. The seriousness of this event can not be underestimated. A potent drug was placed in the hands of an owner with no satisfactory written instructions. 537 Then on 6 January 1996 Dr Lloyd advised Ms Clee to change the course of treatment, and again no record was made. This is the subject of Allegation 1(g). Dr Lloyd disputed this allegation on the ground that Ms Clee contacted him by telephone, as distinct from consulting him 'at [his] surgery'. The difference is immaterial. The contact remains, on either version, a consultation for the reasons that we have given in relation to Allegation 1(a); and should have been noted. 538 On 8 January 1996 Ms Clee called in distress over the state of her horse, and James Murray was despatched to administer two injections. It is plain on any view that by this stage a series of veterinary services had been supplied. Again no record was created. This is the subject of Allegation 1(h). 539 Findings in relation to Allegations 1(a), 1(d), 1(g) and 1(h). All of the above particulars are established. The circumstances are ones of escalating seriousness. Clause 5(12) reinforces the importance of keeping adequate records. It is required that a veterinary surgeon ensure that a detailed record be made of a consultation; and that is kept for at least 2 years. Clauses 5(4) and (5) refer to appropriate practice in relation to referral to another veterinarian. Clearly a good record is required for a range of obvious reasons: to enable the treating vet to continue to give appropriate treatment; to assist another vet taking over the case, whether within the practice or after referral; in the event of a further presentation of the animal; or in the event or later dispute or inquiry; for research, statistical and billing purposes. 540 Breach of cl 5(12) constitutes misconduct in a professional respect. These allegations are established. 541 Allegation 1(k). The creation of a record at this point, approximately two weeks after contact with Ms Clee had commenced, would appear to reflect a view on Dr Lloyd's part that it is not until he has physically sighted an animal that it is necessary to keep a record. When asked in cross-examination why he did not start a card when he supplied the Dimetridazole (on 30 December) he replied: 'Well, I hadn't seen the animal yet' (ts 781). The reply crystallises the shortcomings of Dr Lloyd's understanding of the need to keep adequate veterinary records. 542 As to the record that was created as from 9 January, Dr Rawlinson made the following criticisms of the record: no record of prior treatment recorded; no adequate history, clinical examination, investigation plan, differential diagnosis and treatment plan; no record of the alleged telephone conversation with the veterinarian at the Rural Veterinary Centre. Dr Rawlinson attached to his statement the Case Records Guidelines issued by the Board in September 1994. Dr Rawlinson was critical generally of the absence of a clinical record, and noted on the occasion of the administration by the unregistered person still no clinical record was generated. 543 He noted that there was nothing on the card for 9, 10 or 11 January indicating a suspicion of cancer (ts 681). He notes that a rectal examination was recorded for 11 January, but in his view that should have been done on admission on the 9th (ts 682). 544 Dr Dart also commented that the records kept on Gypsy were 'well below the standards expected of the veterinary profession, irrespective of the failure to record any client communications.' More specifically he noted that the description given to him by Dr Lloyd as to what occurred at the first examination was 'more comprehensive' than that noted on the card. Appropriately, in our view, this led Dr Dart to comment that this made 'it difficult to determine what exactly transpired.' His assessment of what should have been done and recorded is very similar to Dr Rawlinson's. 545 Dr Lloyd agreed that he did not include previous history, and that the conversation he said he had with the University veterinarian (Dr Dart) was not recorded. He disputed the assertions that he did not record diagnosis, clinical signs, some treatments and the work up. While there was some information on the card into the latter matters, we are not satisfied that they were at an appropriate level of precision. 546 We agree with the criticisms of both veterinarians. The particulars are made out, i.e. that diagnosis, clinical signs, some treatments, previous history, consultation with the University of Sydney and work up are not recorded. These are each important deficiencies and in combination the record is seriously defective. 547 Finding as to Allegation 1(k). The particulars are established. The allegation is established. Conduct as Superintendent of a Veterinary Hospital 548 Allegations 2(a), (b) and (c) deal with this matter. For reasons given earlier, we regard these allegations as properly before the Tribunal. As noted earlier, the principal particulars in support of these allegations were not admitted. As noted earlier, cl 20 of the Regulation imposes special duties on the superintendent of a veterinary hospital. 549 Under cl 20(a) a superintendent is required to ensure that a complete record is made at the time of each veterinary treatment and consultation. Allegation 2(a) alleges such a failure. 550 Under cl 20(c) a superintendent must ensure that any animal admitted to the hospital for treatment is examined daily or more frequently if the circumstances require. Allegation 2(b) alleges such a failure. 551 Under cl 20(f) a superintendent must ensure that any animal admitted to the hospital for treatment which shows signs of an infectious or contagious disease is effectively isolated from all animals so affected. Allegation 2(c) alleges such a failure. Proceedings may be brought against a superintendent who fails to comply with cl 20, maximum penalty as at the time of this inquiry was 4 penalty units (now 5 penalty units). 552 Allegation 2(a). This allegation itemises the same particulars as support allegation 1(k). For the reasons already given the particulars are established. A failure to maintain adequate records is clearly a more culpable breach of standards in circumstances where the veterinarian is also the approved superintendent of a veterinary hospital. Conferral of the status of superintendent carries with it a higher responsibility to ensure the maintenance of professional standards than might be seen as required of the ordinary veterinarian. Clause 20(a) of the Regulation reflects this view. 553 We acknowledge that this is a case where Dr Lloyd was both the treating veterinarian and the superintendent. He breached the general standard applicable to all veterinarians. He also breached the special standard applicable to a superintendent. While all breaches are not deemed to be professional conduct by cl 10 of the Regulation, nonetheless a serious breach of cl 20(a) could, we consider, constitute misconduct in a professional respect at common law. A minor transgression of this cl 20(a), while it might lead to the imposition of a penalty in proceedings brought to enforce the provision would probably not constitute professional misconduct. In this case, however, the breach was a serious one. We have found that 14 relevant items of information were omitted from the record. The allegation is established. 554 Allegation 2(b). The allegation refers to the standard of conduct required by cl 20(c), which provides that 'any animal admitted to the hospital for accommodation or treatment is [to be] examined daily or more frequently if the circumstances require'. 555 The question raised by the allegation is whether the animal should have been examined 'daily or more frequently'. The first two sentences of the particulars refer to the issues relating to tethering and access to water, on which we have made findings previously. 556 The third sentence alleges that 'Gypsy had not been examined by you or by any other employee of your hospital for a lengthy period.' While it is not stated precisely when the 'lengthy period' commenced and ended, this sentence read in the context of the first two sentences, refers back, we consider, to the situation in which the horse was found on 10 January. For present purposes we will treat the 'lengthy period' to which the particulars refer as the period between hospitalisation and when the horse was found impeded in the paddock; as distinct from the entire period that the horse was in care. 557 The only evidence from the record and from Dr Lloyd is that rudimentary examinations were performed by Dr Lloyd on the 9th, 10th and 11th. The horse's condition was so serious that a more frequent level of activity in relation to examinations was to be expected. Dr Lloyd relied on visual observation from the distance of his surgery as his way of keeping track of the horse's condition (statement p 15). 558 We consider that the standard of practice required of a veterinarian in these circumstances in 1996 was and remains that sick animals should be examined regularly as to their appearance (bright/alert, dull/depressed, drinking, eating, passing urine and bowel motions), their clinical signs (temperature, heart rate and respiration rate) with these observations recorded twice a day. Very sick animals would have these observations taken and recorded more frequently (every 1 to 2 hours). These observations are often taken by veterinary nurses. If there was a failure on the part of the veterinary nurses to take observations (as one of Dr Lloyd's comments in the course of the case implied), this does not exonerate the veterinarian from ultimate responsibility. 559 The allegation is established. 560 Allegation 2(c). The particulars cover the same ground as Allegation 1(m). For the same reasons as previously given, the particulars are established. A higher standard is expected of veterinarians entrusted with the right to supervise veterinary hospitals, as is reflected in cl 20(f). A minor breach would not give rise to a finding of professional misconduct. 561 But this was, in our view, a serious transgression of the standard in that no adequate steps had been taken by Dr Lloyd to exclude the possibility of the animal having a contagious disease in circumstances where he had treated the animal on that basis. The allegation is established. Dr Lloyd's response essentially was that he used his 'clinical experience' to make a judgement that the horse was not contagious. 562 We consider that a competent veterinarian would have examined a faecal sample to rule in or out the possibility of protozoans (a negative finding may not be conclusive), and he or she would have performed a full blood count which would have included a white cell count that could rule in or out an active infection. Then the practitioner would have to decide if the infection was ruled in, if that infection was contagious or not and then decide on the level of isolation required. 563 The allegation is established. The Unregistered Person Allegation 564 As noted earlier, the particulars in respect of Allegation 3 were admitted. 565 The present Committee said that it did not press Allegation 3 in its entirety as it is affected by duplicity. The allegation is clear, and is not affected by two possibly conflicting meanings: see generally the comments on what duplicity covers earlier in these reasons. 566 This allegation relies on one particular – the despatch of James Murray, an unregistered person to administer the prescribed substance – and that is the same as one of the many particulars that are recited in support of Allegation 1(i). The present Committee may be asserting that Allegation 3 is unnecessary in the sense that the matter has already been dealt with by Allegation 1(i). This is not so. 567 It is clear that Allegation 1(i) and Allegation 3 deal with different disciplinary concerns. In the case of Allegation 1(i) the charge is one of professional incompetence and a number of failures are recited including but not limited to the use of an unregistered person to administer the drug on 8 January 1996. Allegation 1(i) deals with a range of omissions, and then invites the Tribunal to determine whether there was a failure to carry out professional procedures in accordance with current standards of veterinary science. 568 Allegation 3 does not invite such a discussion. Its establishment does not require an overall assessment of the quality of the professional conduct on that day. It focuses on one element of the events, the use of the unregistered person. It is conceivable that a veterinarian might deliver a competent service viewed in totality even though an unregistered person was used. In such a case there would be no basis for a finding of the kind sought in this case by Allegation 1(i), but there would be a case for a finding of the kind sought by Allegation 3. Allegation 3 deals with a matter that is in the nature of a strict liability breach of professional standards. 569 In his statement of agreed facts Dr Lloyd admitted the particulars of Allegation 3 without qualification. Yet at hearing he sought to argue that the situation he found himself in fell within one of the narrow statutory exceptions allowing administration by an unregistered person. The Act, s 44(1)(k) provides that an unregistered person may 'where a registered veterinary surgeon is not available, attend and treat an animal in urgent need of veterinary attention or treatment.' 570 So as to avoid any doubt on this matter, we are not satisfied that Dr Lloyd's situation fell within those circumstances. He worked on the outer western edge of the metropolis of Sydney near an area given over to semi-rural activities. There were numerous veterinary practices between Hoxton Park and Casula/Punchbowl. If he was busy and unable to undertake the task himself it was open to him to enquire of other veterinarians to undertake the work. We are satisfied that he gave no consideration to that possibility. 571 The duty laid down by s 22(a) is reinforced by the Code at cl 5(9). It is obligatory that a veterinarian supervise all clinical activities undertaken by lay staff. Dr Lloyd acknowledged in cross-examination (ts 805) that only a 'competent' layperson could be left to administer intramuscular and intravenous injections. He was cross examined at some length as to the skills involved in and the implications that attach to the giving of injections. He gave no adequate answer for his decision to use James Murray to undertake the task, especially in a situation where the horse was effectively unknown to Dr Lloyd and where scheduled poisons were to be used. 572 Dr Dart was critical and noted the gravity of what occurred set in the overall context of the case in these terms: 'At this time Dr Lloyd had not examined the horse yet had been prescribing medication. The suggestion was made that this horse had adversely reacted to a medication prescribed by Dr Lloyd and that medication was used off label. Dr Lloyd then presumed the symptoms described to him over the phone related to signs of abdominal pain. He then prescribed further medication based on an estimated weight and had these administered by an unsupervised, untrained part-time employee. The situation is inappropriate irrespective of the circumstances.' 573 We fully concur with this assessment. 574 This conduct clearly amounts to misconduct in a professional respect within the meaning of s 22(a) of the Act. 575 The allegation is established. The Personal Conduct Allegation 576 Allegation 4 relates to the way Dr Lloyd dealt with Ms Clee between 12 and 23 January. It alleges that he did not conduct himself 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. The allegation reflects the standard required of veterinary surgeons by cl 9 of the Code. Breach of that standard constitutes misconduct in a professional respect (Regulation, cl 10). 577 The particulars refer to three sets of circumstances. First, the information given to Ms Clee about the autopsy; and associated undertakings. Secondly, the particulars refer to more specific undertakings given to Ms Clee in relation to the reburial of Gypsy in her presence and the allegedly hurtful way in which Dr Lloyd spoke to her. Thirdly, the particulars refer to the invitation made to Glenn Tuinenburg to settle his difference with Dr Lloyd by way of a fight. 578 We are satisfied that Dr Lloyd did during the afternoon of 12 January 1996 inform Ms Clee when she came to the property that he had performed an autopsy that morning, and had found tumour nodules, and said that his liver was gone. We are satisfied that he informed Ms Clee that he would keep the samples and show her. Dr Lloyd does not dispute these matters. What he disputes is whether his action thereafter was unacceptable. 579 He disputes that Ms Clee asked for the samples again on 18 January, and says that in any case he had discarded them by then. We are satisfied that Ms Clee did ask for the samples on 18 January and that her friend, Nathalie, asked on 23 January. As noted earlier, we are not satisfied that Dr Lloyd had discarded the sample either on 17 January or on 21 or 22 January. 580 Ms Clee's evidence was that Dr Lloyd promised on many occasions to send her the autopsy reports. 581 In summary sentences 1, 2 and 3 of the Paragraph 1 of the particulars are established. We are not satisfied that similar promises were made by Dr Lloyd in relation to the sending of a sample. Sentence 4 is not established in relation to a promise to send a sample. While the evidence was that on several occasions he promised to send an autopsy report, there was no evidence that he promised to send a sample. The only evidence that might support such a finding is that of Ms Clee in relation to 12 January where she states that Dr Lloyd said he would 'keep' a sample for her. We do not think that can be interpreted as a promise to send a sample. 582 Paragraph 2 of the particulars refers to Dr Lloyd's promises and conduct in respect of the reburial of Gypsy on 23 January. The particulars contained in this paragraph are all established. There are some variances in time estimates as between Ms Clee, Glenn and the Tuinenburgs. We are satisfied that the times given in the particulars are broadly accurate. 583 We note that Ms Clee had indicated on the morning of 23 January that she intended burying the horse herself. She was dissuaded by Dr Lloyd's promises. We accept the statements in Ms Clee's original letter that Dr Lloyd had promised to ring her at 2.30 to let her know what time Gypsy would be buried. 584 Paragraph 3, as to the explanation offered by Dr Lloyd as to why he proceeded without honouring his promise, is established. 585 The use of the words 'that conversation' at the commencement of paragraph 4 reads as a reference to the conversation mentioned in the immediately preceding paragraph. It is clearly meant to be a reference to a separate conversation which we have found occurred on the morning of 23 January. Dr Lloyd has admitted that he referred to the horse's carcass as 'the whole gory lot'. In the context of a discussion with a distressed owner who had just seen her dead horse floating in the dam, this was an unprofessional comment suggesting a dismissive attitude to the horse, albeit dead, who was still an object of great affection. This paragraph is established. 586 Paragraph 5 refers to the discussion at the surgery that was said to have involved a threat by Dr Lloyd against Glenn Tuinenburg. These particulars were vigorously contested by Dr Lloyd. We have dealt with these events at considerable length in our reasons. For the reasons given there we are satisfied that the particulars are established. 587 We note that the particulars do not purport to quote Dr Lloyd directly. They speak of Dr Lloyd inviting Glenn to 'take off his glasses and hat and fight you'. Dr Lloyd admits saying that he said to Glenn that he should 'take off your funny hat and glasses and act like a man' [statement to Tribunal, p25] or 'If he had anything to say he should take off his hat and glasses and step outside the car and have a chat to me' [interview with Committee p19]. The Tribunal has found that the conversation happened just outside the surgery before the party went to the burial site (as is particularised). 588 Dr Lloyd contended his words did not involve a threat of violence or were intimidatory. This contention is far-fetched. The words were plainly intimidatory, and would be understood by most members of the community (especially men) as signifying an intention to fight. 589 A veterinary surgeon should avoid ever using language to a client which might be interpreted as intimidatory. It is not enough that the surgeon may not ever have intended to act on the words used. The standard to which Dr Lloyd is subject is that of the reasonable expectations of the community, in particular users of veterinary services. 590 Dr Lloyd in his original reply to the Committee (20 May 1996) said that faced with the 'verbal abuse' he received some form of 'verbal defence' was called for. We accept that it may be appropriate for a practitioner to reply immediately and directly to criticism of their professional competence. That reply, as we see it, should be a constructive one; and go no further than seeking to meet the complainant's substantive points of criticism in a measured and restrained way. In many circumstances the best course may be to close the conversation, and invite the complainant to arrange a separate time to discuss the issues or advise the complainant to refer them to a complaints body. The comments made by Dr Lloyd were not along any of these lines. The remarks were not constructive and could have well have led to a melee. 591 Ms Clee and Glenn were upset over why the horse had became uncovered, and, as Dr Lloyd well knew, were very suspicious of his conduct. They asked a lot of questions. It was a tense situation. We are satisfied that at this point Dr Lloyd had not told them that the horse had been buried. 592 Dr Lloyd let his nurse Mellony Johnson escort the party to the site. Mellony knew the horse had been buried. She did not know that it was reburied. Mellony did not know about the prior promises to witness the burial. She found herself engulfed by a storm of anger and distress, with Ms Clee breaking down on discovering her horse had already been buried and Glenn swearing (possibly profusely). When queried as to whether this was definitely Gypsy's grave, there was further anger and distress when Mellony told them that Dr Lloyd's boys had seen the horse buried. They then heard one of the boys chime in and say 'the horse's foot fell off'. 593 The community would, we consider, see Dr Lloyd as having behaved contemptibly in leaving Ms Clee and her family to find out in this way that they were not going to see their horse buried. When Dr Lloyd phoned her telling her to come he had already buried the horse. The Clee party's anger at his actions was perfectly understandable. 594 His conduct on 23 January was, we consider, unacceptable, and plainly of a kind that would bring the profession into disrepute in the eyes of the community. That morning he promised the the Clee/Tuinenburg family that the reburial would be conducted in their presence. He then moved quickly to have that occur before they were called back to the property. He has given various inconsistent justifications for his actions. We have listed some of them earlier in our reasons. We will not set out at length many of the explanations that Dr Lloyd gave for his conduct in re-examination (ts 940-947) but many of them disturbed the Tribunal for their dismissive view. 595 His conduct was such as to give the impression that he had something to hide. One of his explanations was that he did not want to expose Ms Clee to more distress. The explanation is patronising. It is not consistent with the respect that must always be shown for the reasonable requests of the client, as well as the client as a person, in the modern professional relationship. 596 We note that the particulars state that Nathalie Taimuri offered to call the police. This is not correct. We are satisfied that there was an offer of a call to the police, but it was made by Mrs Tuinenburg not Ms Taimuri. 597 Findings as to Particulars and Allegations. The particulars with the qualifications noted above, are established. The allegation is established. The misconduct described is of great seriousness. Summary 598 All Allegations are found proven to our comfortable satisfaction. OTHER MATERIAL 599 A number of issues arose in the course of the evidence that were not the subject of allegations or particulars in support. These related to the standard of the autopsy; the extent of the incisions and the occurrence of spillage in the course of moving the carcass; the lack of prompt notification of death to the owner; treatment of colic; and the cause of death. We have not made findings on these matters. 600 As to cause of death, we note that Dr Lloyd has at all times submitted that he was not responsible for the death of Gypsy. The Notice of Inquiry does not require the Tribunal to make a finding on this matter. The Tribunal makes no finding as to whether Dr Lloyd was or was not responsible for the death of Gypsy. DETERMINATION 1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l), 1(m), 1(n) and 1(o); Allegations 2(a), 2(b) and 2(c), Allegation 3 and Allegation 4. 2. After determination of the other three Inquiries, this Inquiry is to be reconvened for determination of orders pursuant to section 32. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.