McCartney v Veterinary Council of Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mícheál P. O'Higgins
• Judgment Date: 06 June 2024
• Neutral Citation: [2024] IEHC 411
• Docket Number: [Record No. 2023/62 MCA]

In the Matter of Section 80(3) of the Veterinary Practice Act 2005

and

In the Matter of An Application Brought by William McCartney, A Registered Veterinary Practitioner

Between

William McCartney

Appellant

and

The Veterinary Council of Ireland

Respondent

[2024] IEHC 411

[Record No. 2023/62 MCA]

THE HIGH COURT

Appearances:

For the appellant: James Doherty S.C. and Nathan Reilly B.L. instructed by Hayes Solicitors

For the respondent: Eileen Barrington S.C. and Caoimhe Daly B.L. instructed by Fieldfisher Solicitors

JUDGMENT of Mr. Justice Mícheál P. O'Higgins delivered on the 6 ^th day of June 2024

Introduction

1 . This is a sanction-only appeal brought by a veterinarian under s. 80 (3) of the Veterinary Practice Act 2005. The appellant was the subject of an Inquiry before the Fitness to Practice Committee (FTPC) of the Veterinary Council of Ireland (VCI) on 29 ^th and 30 ^th August 2022. The disciplinary charges arose out of the appellant's care of a golden retriever, Alfie, who had been referred to his practice. A finding of professional misconduct was made by the Committee and the matter came before the Veterinary Council to hear submissions and decide on sanction. The Council made a decision to suspend the appellant from practice for two months. The appellant has a statutory right of appeal under the 2005 Act, hence this appeal. He contends that the sanction of two months suspension is disproportionate and unduly severe. He does not appeal the finding of misconduct.

Factual background

2 . The factual background is set out in the affidavits exchanged between the parties. The facts are not in issue. By way of summary, the appellant qualified from UCD in 1987 and has been registered as a vet in this jurisdiction since then. He owns a referral practice called North Dublin Animal Hospital (“NOAH”), which employs 18 people in its associated clinics, including four vets. The appellant is very highly qualified and is a fellow of the Royal College of Veterinary Surgeons. He is one of a few recognised specialists in Ireland specialising in small animal surgery.

3 . This appeal arises out of the treatment by the appellant of Alfie on 5 ^th August 2020. Alfie was referred to the practice from another veterinary practitioner for assessment and surgical stabilisation of his right hind stifle due to right degenerative cruciate disease. The appellant was provided with the dog's clinical records from the referral practice and was also given a copy of a radiograph of the right hind stifle taken by the referring GP vet. Alfie was admitted at reception in the appellant's practice on 5 ^th August 2020 and a consent form was signed by his owner for “CCR right hind”. The consent form also provided for “the performance of such surgical procedure as may prove necessary”. The appellant assessed the dog and diagnosed bilateral cruciate disease. In other words, there was cruciate disease not just in the right stifle (for which he had been referred for surgery), but also in the left stifle. Based on his clinical assessment, he says that, in fact, Alfie's left leg was the more painful of the two, so he decided to carry out a procedure on the left leg, with a view to carrying out a further procedure on Alfie's right leg at a later date.

4 . For reasons that remain unclear, the appellant did not contact the owner of the dog to discuss his advice that surgery should be performed on the left stifle initially, with a further procedure for the right stifle at a later date. The appellant's affidavits indicate that he decided on the change of plan prior to, rather than during, the surgery. This is important because it is not part of the appellant's case that the necessity to change the management plan only arose midway during the surgery. Rather, the appellant contends that, due to the results of a number of tests that he carried out, he intended to operate on the left leg as opposed to the right leg. He understood that, whilst the right leg was the subject of the referral, he knew before operating that he was going to actually repair the left.

5 . The appellant says that he very much regrets that he did not contact Alfie's owner to discuss his advice that surgery should be performed on the left stifle initially, with a further procedure for the right stifle at some later stage. However, it was always his intention to discharge Alfie himself that evening, as is his routine following surgery of this type, at which point he says he would have discussed the change of plan and the need for further surgery later.

6 . However, when Alfie's owner arrived at the surgery that evening to collect her dog, the appellant was unfortunately not on site. He says that he had to leave the surgery earlier on that day due to a COVID-related family emergency involving his elderly mother. Unfortunately, the appellant did not contact the dog's owner to explain what had happened, prior to her arriving at the surgery to collect her dog. Nor did he make arrangements for a colleague in the practice to meet with the owner, or at least ring her to explain what happened.

7 . According to the complaint filed by Alfie's owner, she arrived at the practice with her son and daughter at 6:30pm to collect her dog. She met the receptionist and settled up the bill for the surgery. She spoke with an assistant vet in the practice who explained Alfie's post-operative care from a report. As they were leaving the practice, her daughter noticed that Alfie's left leg was bandaged, rather than his right leg which had the problem. They immediately went back into the receptionist to ask for an explanation. The receptionist called the assistant who had gone through the post-operative procedures and, according to the owner, he was at a loss to understand what happened. The owner asked to speak with the appellant, but he was not there. The owner says she and her two children were left traumatised in the reception area finding it difficult to process what had happened. The assistant vet communicated the appellant's instruction over the telephone for Alfie to stay overnight in the practice. The owner was very unhappy with the entire situation and took Alfie home. She was convinced he had operated on the wrong leg.

8 . The appellant acknowledges that it was understandable for the owner to become concerned that he had in fact operated on the wrong leg. In view of the upset caused, the appellant spoke to the owner that evening and agreed to reimburse his fee for surgery on the left leg and he offered further surgery on the right hind, without further charge. He says in his affidavit that the offer of a refund and further surgery was a goodwill gesture and an attempt to defuse the situation.

9 . The owner did not agree to this as she had lost all faith with the appellant. She later made arrangements to have the surgery carried out on Alfie's right leg by another veterinary practice. That surgery went well, and Alfie went on to have a good outcome. The owner made a complaint to the Veterinary Council. An investigation duly commenced, hence the hearing before the Fitness to Practice Committee.

10 . The appellant accepts that he made mistakes in this case, particularly as regards communication with the owner and in failing to obtain informed consent in advance of carrying out the procedure. However, he remains convinced that he made the correct clinical decision, in Alfie's best interests, to perform the particular procedure on the dog's left hind first.

Notice of Inquiry

11 . The allegations contained within the Notice of Inquiry were as follows:

“That you, being a registered veterinary practitioner, in the context of surgery you performed on a dog named ‘Alfie’ on or around 5 August 2020:

• (1) Following the referral of Alfie from [ ] veterinary clinic for surgery on Alfie's right hind leg, and in advance of performing surgery on him:

  • (a) failed to arrange in consultation with Alfie's owner [ ] for the purpose of obtaining her account of Alfie's history and condition; and/or

  • (b) failed to carry out an adequate physical examination of Alfie to include gait observation; and/or

    [the following are in the alternative allegations – i.e. allegation 2 is in the alternative to allegations 3 and 4]

• (2) Having, in error, performed surgery on Alfie's left hind leg in circumstances where Alfie was referred to you for surgery on his right hind leg, in a discussion by phone with [Alfie's owner] on the evening of 5 August 2020, did not admit the error.

  Or in the alternative to 2 above:

• (3) Failed to inform Alfie's owner [name of owner] that you had decided to carry out surgery on Alfie's left hind leg in advance of carrying out the surgery, in circumstances where Alfie was referred to you for surgery on his right hind leg, and/or where Alfie's owner [name of owner] had consented to surgery being carried out his right hind leg; and/or

• (4) Failed to obtain informed consent for the surgery of the left hind leg”.

12 . The Fitness to Practice Committee found that allegations 1(a), 3 and 4 had been proven beyond a reasonable doubt. These allegations related to the:

• (i) failure to arrange a consultation with the owner for the purpose of obtaining her account of Alfie's history and condition (allegation 1(a));

• (ii) failure to inform the owner that the appellant had decided to carry out surgery on Alfie's left hind leg in advance of carrying out the surgery, in circumstances where Alfie was referred to surgery on his right leg (allegation 3);

• (iii) failure to obtain informed consent for the surgery of the left hind leg (allegation 4).

13 . The appellant admitted the facts alleged in relation to all of the allegations in which findings were made but disputed that his conduct amounted to “professional misconduct” at law, relying on expert evidence in that regard from his veterinary expert. Professional...