1. The Veterinary Surgeons Board must file three (3) copies in the Tribunal and give to Victor Leslie Griffin one (1) copy of any written submissions as to appropriate orders to be made by the Tribunal pursuant to s 22E of the Act, by:

1. Victor Leslie Griffin must file three (3) copies in the Tribunal and give to the Veterinary Surgeons Board one (1) copy of any written submissions in response, by:

1. The proceeding OCR272-13 is listed for a half-day oral hearing on a date to be advised by the Tribunal.

1. The Veterinary Surgeons Board and Victor Leslie Griffin must file in the Tribunal an agreed list of dates of availability for the further half-day oral hearing by:

PROFESSIONS AND TRADES - VETERINARY SURGEONS - MISCONDUCT AND DISCIPLINE - referral of allegations - where registrant supplied, dispensed and/or administered drugs - where registrant treated horses - where registrant failed to keep adequate records - whether allegations substantiated - whether registrant behaved in a way that constitutes 'misconduct in a professional respect'

Health Regulation 1996 (Qld), s 153

Health (Drugs and Poisons) Regulation 1996 (Qld), s 180

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 28

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

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

Burton v Anderson [1994] NSWCA 36, cited

Cook v The Psychologists Board of Queensland [2015] QCA 250, cited

Hardcastle v Commissioner of Police (1984) 53, cited

Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149, cited

Medical Board of Queensland v Bayliss [1999] QCA 59; [2000] 1 Qd R 598, cited

Medical Board of Queensland v Cooke [1992] 2 Qd R 608, cited

Medical Board of Australia v North [2012] QCAT 546, cited

Pilllai v Messiter (No 2) (1989) 16 NSWLR 197, cited

Psychologists Board of Qld v Robinson [2004] QCA 405, cited

Veterinary Surgeons Board of Queensland represented by Mr C Wilson of Counsel instructed by Lander & Rogers Lawyers

Victor Leslie Griffin represented on 23, 24 and 25 November 2015 by Mr M Labone of Counsel instructed by WP McMillican Legal & Consulting; and on 21, 22 and 23 March 2016 and 9 May 2016 represented by Mr R Devlin QC of Counsel with Mr M Labone of Counsel instructed by WP McMillican Legal & Consulting

[1] Victor Leslie Griffin is a registered veterinary surgeon with approximately 25 years' experience practising as an equine veterinarian. He conducts a mobile veterinary practice focusing on racing and sporting horses.

[2] On various dates in 2011 and 2012, Dr Griffin visited stables, trainers and farms throughout Queensland, New South Wales and Victoria. He treated thoroughbred and standardbred horses by administering and dispensing certain 'restricted' drugs.[1] Some of those drugs are now banned from use for horses in the racing industry.

[3] The Veterinary Surgeons Board of Queensland (the Board) has referred 21 allegations to the Tribunal for determination about Dr Griffin's conduct and practice as a veterinary surgeon, and some further allegations that relate to record keeping.[2] The Board contends that Dr Griffin has engaged in 'misconduct in a professional respect' pursuant to s 22F of the Veterinary Surgeons Act 1936 (Qld) (the Act) because he was negligent or incompetent[3]; and/or otherwise practised in a manner that was of a lessor standard than that expected by his professional peers and the public.[4]

[4] The Board says that Dr Griffin is required to consider the health, welfare and respectful treatment of the animal.[5] The Board says that Dr Griffin's 'mass administration' of non-steroidal anti-inflammatories (Bute Paste) and anabolic steroids to (various horses) do not 'constitute appropriate preventative measures nor suitable management and treatment of disease conditions'.[6]

[5] Dr Griffin accepts that his record keeping was inadequate but denies the 21 allegations in relation to the conduct of his veterinary practice.[7] Dr Griffin says that in some instances he treated horses prophylactically and in others he treated horses for a therapeutic purpose, including weight gain and tissue repair, with the added benefits of appetite stimulation and red blood cell increase.[8] Dr Griffin says that he had a 'long-term, on-going relationship with the relevant farm or stable' and his treatments were supported by information from owners and trainers about the horses in conjunction with his own 'independent examination of the horses'.[9]

[6] The issue before the Tribunal now is whether the Board has proven to the required civil standard each of the 21 allegations relating to Dr Griffin's conduct in his practice as a veterinary surgeon.

[7] The Tribunal will consider in separate reasons those allegations relating to record keeping because Dr Griffin admits that by failing to keep adequate records in accordance with s 25 of the Veterinary Surgeons Regulation 2002 (Qld)[10] he has engaged in 'misconduct in a professional respect'.[11]

[8] The Act confers original jurisdiction on the Tribunal to hear and decide disciplinary proceedings involving allegations of misconduct in a professional respect.[12] The Tribunal is constituted by a legal member and two other members who are veterinary surgeons.[13]

[9] If the Tribunal determines that a veterinary surgeon has engaged in misconduct in a professional respect it may order, amongst others, that the veterinary surgeon's (the registrant) name be removed from the register of veterinary surgeons, that the registrant be suspended for a specified period, that the registrant pay to the Board a penalty or admonish or reprimand the registrant.[14]

[10] In the proceeding, the Board bears the burden of proof. The Tribunal must be satisfied to the required civil standard on the balance of probabilities, that the allegations as particularised are proven. In Briginshaw's case, commonly referred to as the 'Briginshaw principle',[15] Dixon J (as he then was) said that the allegation must be made out to the reasonable satisfaction of the tribunal and should not be 'produced by inexact proofs, indefinite testimony, or indirect inferences'. The relevant extract from Briginshaw's case is as follows:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes... it is enough that that affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences....[16]

[11] In conducting a proceeding the Tribunal is not bound by the rules of evidence,[17] but must observe the rules of natural justice and, amongst others, 'ensure, so far as is practicable, all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.'[18]

[12] In this case, Dr Griffin has responded to the allegations.[19] Dr Griffin relies on his own evidence and the expert evidence of Dr Andrew Clarke. Dr Clarke is the Chief Executive Officer (CEO) and Veterinary Director of Living Legends, 'the international home of rest for champion horses'. Prior to this Dr Clarke was the principal veterinarian at Equine Connections, a private consultancy practice.

[13] The Board relies on the expert evidence of Dr Andrew van Eps who is an equine medicine specialist and the Director of the UQ Equine Hospital at the University of Queensland Gatton Campus. Dr van Eps and Dr Clarke prepared reports and gave oral evidence at the hearing.

[14] Dr Griffin gave oral evidence at the hearing responding to the allegations (in the Referral) as they relate to particular farms or stables that he visited and where he treated horses. For example, allegations 6.2, 6.4 and 6.8 relate to or concern alleged conduct that took place at 'A. Eggelston's' farm. The Tribunal will adopt, for these reasons, a similar approach in considering all of the evidence because some of Dr Griffin's evidence about a particular farm or stable is relevant to more than one allegation. This approach will assist the Tribunal in meeting its objectives under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) to act with 'as much speed'[20] as the requirements of the QCAT Act or the Act permit.

What are the 21 allegations referred by the Board?

[15] The Board relies on the particulars in the Referral and further particulars provided to the Tribunal.[21] The allegations as they appear in the Referral are as follows:

1. On various dates, the Registrant administered, prescribed, dispensed or sold restricted drugs to various horses or clients for no legitimate therapeutic purpose.

On or about 20 December 2011 the Registrant dispensed or administered Stanazol, Drive and Boldebal H to 10, 6 and 4 horses respectively under the care of Ronald Smith (or Robert Smith or Rochelle Smith). The Registrant says he dispensed or administered restricted drugs for the purpose of tissue repair, appetite stimulation, live weight gain and virilising effects (see Document 2 of Board's Index to Material). No therapeutic purposes for dispensing or administering the drugs were recorded (see Document 3 of Board's Index to Material).

On about 28 September 2010 the Registrant supplied 2 x 1kg Bute Paste to a client, C Martin (see Document 10 of Board's Index to Material). The Registrant says the restricted drug was supplied for use on 15 to 20 horses in training and was supplied as an anti-inflammatory (see Document 11 of Board's Index to Material). The names of the animals intended to be supplied or administered Bute Paste were not recorded.

On about 11 November 2011 the Registrant supplied 2 x 1kg Nitrotain to P Healey. The Registrant says it was supplied for a certain number of horses in training for tissue repair and live weight gain (see Document 13 of Board's Index to Material). The only clinical note recorded is "horses in training" (see Document 14 of Board's Index to Material).

On 7 December 2011 the Registrant supplied 3 x 1kg Nitrotain to N Osbourne. The Registrant says the treatment was for tissue repair and live weight gain for between 100 and 200 horses on the property. The only clinical note recorded is "H.I.T" (see Document 15 of Board's Index to Material).

On about 26 June 2012 the Registrant supplied 14 x "1M Anab + Stanazol" to R Smith. The Registrant says the drug was administered for tissue repair, as an appetite stimulant and for live weight gain prior to pre-training and training. The only clinical note recorded is "spellers" (see Document 18 of Board's Index to Material).

Also on about 2 July 2012 the Registrant supplied 1 x 500g of Bute Paste to W Lawson. The Registrant says the drug was used as an anti-inflammatory for horses in training for the first 6-8 weeks of preparation to encourage mental improvement to their attitude to exercise. The only clinical note recorded is "H.I.T" (see Document 20 of Board's Index to Material).

1. On various dates, the Registrant administered, prescribed, dispensed or sold various combinations of restricted drugs for which there was no legitimate therapeutic need for the restricted drugs, or combination of restricted drugs.

On about 26 June 2012 the Registrant administered, prescribed or dispensed Testosterone, Suspension and Stanazol to 20 horses under the care of T Gollan. The Registrant says that the restricted drugs were administered, prescribed or dispensed for the purpose of an appetite stimulant and for tissue repair (see Document 27 of Board's Index to Material). The therapeutic purposes for administering, prescribing or dispensing the drugs were not recorded (see Document 28 of Board's Index to Material).

1. On various dates, the Registrant treated in circumstances where he did not or could not adequately establish a therapeutic purpose for administering or supplying the drugs or medicines.

On 19 April 2011 the Registrant administered Stanazol to 28 horses at Toomorrows Stud Farm (see Document 29 of Board's Index to Material). The Registrant says the drug was administered to improve live weight gain. The Registrant says he personally injected each horse on the property. The Registrant says in the past, a respiratory infection and cough spread through the yearlings (see Document 30 of Board's Index to Material).

On 21 May 2011 the Registrant administered Deca 50 to 27 horses under the care of A Eggleston (see Document 31 of Board's Index to Material). The Registrant says the drugs were administered to assist with appetite stimulation and muscle bulk gain prior to the horses entering training (see Document 32 of Board's Index to Material).

On 13 July 2011 the Registrant administered Stanazol to 31 horses at Allandale Stud Farm (see Document 33 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and minerals and vitamin supplementation (see Document 34 of Board's Index to Material).

On 23 July 2011 the Registrant administered Filybol to 17 horses under the care of A Eggleston (see Document 35 of Board's Index to Material). The Registrant says this was an on-going treatment (see Document 32 of Board's Index to Material).

On 10 August 2011 the Registrant administered both Stanazol and Deca 50 to 30 horses at Allandale Stud Farm (see Document 36 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

On 13 August 2011 the Registrant administered Testoprop and Stanazol to 20 horses under the care of G Gavin (see Document 37 of Board's Index to Material). The Registrant says the horses were about to go out for a spell or had just come in for exercise training. The Registrant says the drugs were administered to assist with tissue repair and to stimulate appetites (see Document 38 of Board's Index to Material).

On 16 August 2011 the Registrant administered Stanazol, Testoprop, Testosterone Suspension, Boldebal-H and Deca 50 to 22, 6, 15, 6 and 6 horses respectively, under the care of R Smith (see Document 39 of Board's Index to Material). The Registrant says although the complaint is not noted it is indicated by the treatment, which is the therapeutic purposes of tissue repair, appetite stimulation, live weight gain and virilising effects (see Document 2 of Board's Index to Material).

On 15 September 2011 the Registrant administered Stanazol to 27 horses under the care of A Eggleston (see Document 40 of Board's Index to Material). The Registrant says this was an on-going treatment (see Document 32 of Board's Index to Material).

On about 11 November 2011 the Registrant supplied 2 x 1kg Nitrotain to P Healey. The Registrant says it was supplied for a certain number of horses in training for tissue repair and live weight gain. (see Document 30 of Board's Index to Material). The only clinical note recorded is "horses in training" (see Document 14 of Board's Index to Material).

On 16 November 2011 the Registrant administered Stanazol to 53 horses at Allandale Stud Farm (see Document 41 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

On 7 December 2011 the Registrant supplied 3 x 1kg Nitrotain to N Osbourne. The Registrant says the treatment was for tissue repair and live weight gain for between 100 and 200 horses on the property. The only clinical note recorded is "H.I.T" (see Document 15 of Board's Index to Material).

On 8 February 2012 the Registrant administered Stanazol and Anadiol to 60 and 30 horses respectively, at Allandale Stud Farm (see Document 42 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

On 17 February 2012 the Registrant administered Stanazol and Deca 50 to 25 and 10 horses respectively, under the care of R Smith (see Document 43 of Board's Index to Material). The Registrant says although the complaint is not noted, it is indicated by the treatment, which is the therapeutic purposes of tissue repair, appetite stimulation, live eight gain and virilising effects ((see Document 2 of Board's Index to Material).

On 21 March 2012 the Registrant administered Stanazol and Filybol to 58 and 24 horses respectively at Allandale Stud Farm (see Document 44 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

On 13 June 2012 the Registrant administered Stanazol to 30 horses at Allandale Stud Farm (see Document 45 of Board's Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

On 26 June 2012 the Registrant administered Stanazol and Testosterone Suspension to 20 horses under the care of T Gollan (see Document 46 of Board's Index to Material). The Registrant says the drugs were prescribed as an appetite stimulant and for tissue repair (see Document 27 of Board's Index to Material).

On about 2 July 2012 the Registrant supplied 1 x 500g of Bute Paste to W Lawson. The Registrant says the drug was used as an anti-inflammatory for horses in training for the first 6-8 weeks of preparation to encourage mental improvement to their attitude to exercise. The only clinical note recorded is "H.I.T" (see Document 20 of Board's Index to Material).

On 25 July 2012 the Registrant administered Stanazol to 32 horses at Allandale Stud Farm (see Document 47 of Board's Index to Material). The Registrant says the drugs were used as a treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board's Index to Material).

What is the meaning of 'misconduct in a professional respect'?

[16] The Act relevantly provides that, without limiting the ways a veterinary surgeon may engage in 'misconduct in a professional respect', a veterinary surgeon is engaging in 'misconduct in a professional respect' if, amongst others, the veterinary surgeon is habitually drunk or is addicted to any deleterious drug; or conducts any veterinary premises or other place for the practice of veterinary science where he or she is not in full-time attendance; signs or gives a certificate, notice, report or like document that is incomplete or is false or misleading in a material respect_;_ or is convicted of an offence involving cruelty to an animal, or 'is negligent or incompetent in the practice of his or her profession'.[32]

[17] The Board submits that Dr Griffin was 'negligent or incompetent' [under s 22F(f) of the Act] in the practice of his profession; and/or otherwise practised in a manner that was of a lessor standard than that expected by his professional peers and the public.[33] It is common ground that the latter imports the common law test of misconduct in a professional respect.[34]

[18] The Tribunal must determine the common law test to be applied in this case because there are published decisions that endorse different approaches or tests for the purposes of determining whether conduct is 'misconduct in a professional respect'.

What do the cases say about 'misconduct in a professional respect'?

[19] The Tribunal has been referred to the following cases now set out in the order of date of publication:

1. 1989 - Pillai v Messiter (1989) 16 NSWLR 197

2. 1992 - Medical Board of Queensland v Cooke [1992] 2 Qd R 608 applied Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

3. 1999 - Medical Board of Queensland v Bayliss [1999] QCA 59; [2000] 1 Qd R 598 applied Pillai v Messiter (1989) 16 NSWLR 197

4. 2004 - Psychologists Board of Qld v Robinson [2004] QCA 405 discussed Medical Board of Queensland v Cooke [1992] 2 Qd R 608

5. 2015 - Cook v The Psychologists Board of Queensland [2015] QCA 250 applied Psychologists Board of Qld v Robinson [2004] QCA 405

[20] The earliest decision decided in 1989 by the New South Wales (NSW) Court of Appeal is Pillai v Messiter.[35] In Pillai's case the NSW Court of Appeal considered the statutory test of 'misconduct in a professional respect' and what is required by way of standards for a medical practitioner. Kirby P said that something more is required than professional incompetence or deficiencies in the practice of the profession, such as a deliberate departure from accepted standards or serious negligence. The relevant extract from Pillai's case is as follows:

...But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence, as although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[36]

[21] In Pillai's case, the NSW Court of Appeal said that for 'professional reprobation' it is necessary for such a finding to be established by the evidence of an appropriately qualified person or persons. The Court also said that the purpose of discipline (in a professional respect) is 'not to punish but to protect the public'.[37] The extracts from Pillai's case are as follows:

In giving meaning to the phrase "misconduct in a professional respect" in the context within which it appears, it must be kept in mind that the consequence of an affirmative finding is drastic for the practitioner. And the purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public.[38]

It is necessary, however for professional reprobation to be established by the evidence of an appropriately qualified person or persons. Here the respondent relies upon, and only upon, the evidence of Professor Bushanan; and although the source was well qualified the testimony was insufficient...[39]

[22] In Pillai's case the NSW Court of Appeal set aside the decision at first instance of the Medical Tribunal of NSW. The NSW Court of Appeal in allowing the appeal said that there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect. The relevant extracts from Pillai's case are as follows:

Accordingly, the finding of misconduct must rest upon the evidence of Professor Buchanan...But unacceptable practice does not make a case of misconduct. In my opinion there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect.

The Tribunal made findings about the appellant's conduct, which, of course, it had ample power to do. But it was not entitled to substitute its own view of the response which the appellant's professional colleagues would have made to his conduct.

However I do not think that the Tribunal made any such endeavour. Indeed, its judgment is remarkable for the omission of any reference to the principles which regulate the translation of professional negligence into professional misconduct (or misconduct in a professional respect). It seems as if the Tribunal treated the matter as if it were an action for professional negligence rather than a charge of misconduct... However it is not every departure - even if gross - from proper standards which amounts to misconduct, and in the absence of the necessary evidence no such inference can be made...[40]

[23] In 1992, the Full Court of the Supreme Court of Queensland (as it then was) decided Medical Board of Queensland v Cooke.[41] In Cooke's case, a medical specialist (Dr Cooke) faced seven charges of misconduct in a professional respect presented by the former Medical Board of Queensland. The charges related to advertising on certain large billboard advertisements, advertising by print media releases, advertisements and articles, advertising on radio and canvassing. The former Medical Assessment Tribunal after hearing evidence called by the Board and given on behalf of Dr Cooke determined that the 'prosecution failed' and dismissed the charge. The Board appealed against the Tribunal's decision to the Full Court. Thomas J, with whom McPherson ACJ and Byrne J agreed, wrote the leading judgment.

[24] Thomas J said (in Cooke's case) that the appropriate test is as stated in Adamson v Queensland Law Society Incorporated.[42] That is, 'whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency'.[43] Thomas J also said that it is appropriate for the Tribunal to take advice from medical assessors and this may include matters of professional standards and expectations. The relevant extract from Cooke's case is as follows:

In order to justify an adverse finding against Dr Cooke it was not sufficient merely to prove that he had breached one or more of the Advertising By-Laws. It was necessary to provide that his conduct amounted to 'misconduct in a professional respect'.

It was common ground that the appropriate test is that stated in [Adamson's case]:

"The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency."

In appreciating the standard of professional conduct that is to be expected in a particular matter it is appropriate for the Tribunal to take advantage of such advice as the two medical assessors can provide...and this may include matters of professional standards and expectations. Ultimately, the acceptable level of professional conduct and whether it has been transgressed are questions of fact. It is also permissible, although not always essential, to call evidence from members of the profession of good repute and competency to give evidence of their perception of the prevailing standard...[44]

[25] In 2000, the Queensland Court of Appeal decided Medical Board of Queensland v Bayliss.[45] Bayliss' case was an appeal by both parties from a decision of the former Medical Assessment Tribunal about treatment by Dr Bayliss of a patient at his clinic. The Tribunal at first instance found Dr Bayliss guilty of misconduct in a professional respect and imposed a penalty. Bayliss' case endorsed the approach taken by Kirby P in Pillai v Messiter.[46] McMurdo P and Thomas JA in joint reasons accepted the approach taken in Pillai's case and said that in determining misconduct in a professional respect it is necessary to find something more. The relevant extract from Bayliss' case is as follows:

As to the question of whether the facts as found established negligence so gross as to satisfy the standard required for a finding of misconduct in a professional respect, we are content to accept the approach stated by members of the New South Wales Court of Appeal in [Pillai's case] and in particular the views expressed by Kirby P. This acknowledges that mistakes may be made by the most conscientious professional peers, and that in determining whether there has been 'misconduct in a professional respect' it is necessary to find something more than mere negligence by the civil standard.[47]

[26] In 2004, the Queensland Court of Appeal published Psychologists Board of Qld v Robinson.[48] The Queensland Court of Appeal considered the test to be applied as described in other cases in determining whether conduct is 'unsatisfactory professional conduct' that includes (as defined) 'misconduct in a professional respect'.

[27] In Robinson's case, a psychologist was found guilty of unsatisfactory professional conduct involving acts of sexual intercourse with a former patient. The Court of Appeal discussed Cooke's case in the context of being an example of where reputable professional men and women disagree about the propriety of certain types of professional conduct. The Court of Appeal said the question of whether there has been 'infamous conduct in a professional respect' was to be decided by reference to whether the conduct 'would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency'.[49] The Court of Appeal said the question for the Tribunal (at first instance) was whether the appellant had engaged in unsatisfactory conduct, as particularised in the reference. The relevant extract from Robinson's case is as follows: [footnotes omitted]

...There can be cases where reputable professional men and women disagree about the propriety of certain types of professional conduct. _[_Cooke's case] is an example of such a case. There can be no scope for disagreement about the content of the ethical obligations of the member of a profession subject to the Act where the relevant Board has developed a code of practice in accordance with s 374. That, it seems to me, is its only function.

The answer is obvious. As long ago as 1894 it was decided in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 that the question whether a doctor had been guilty of 'infamous conduct in a professional respect' was to be decided by reference to whether the conduct 'would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency'. The same test was applied with respect to solicitors in Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507 and in Cooke at 616. In each case it was said that:

'The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.'

The same test has been applied by the Supreme Court of Victoria with respect to pharmacists...[50]

[28] In 2015, the Queensland Court of Appeal published Cook v The Psychologists Board of Queensland.[51] In Cook's case the Queensland Health Practitioners Tribunal considered at first instance whether there were grounds for disciplinary action because of Mr Cook's (a psychologist) unsatisfactory professional conduct (as alleged), including conduct that involved allegations of exploitation of the patient/therapist relationship. Under the relevant legislation 'unsatisfactory professional conduct' includes (as defined) 'misconduct in a professional respect'. The Court of Appeal said that the Tribunal at first instance found each of the alleged six particularised matters had been established. The Court of Appeal in applying Robinson's case said that the correct approach to the application of the code of ethics and expert evidence is that identified by Chesterman J (as he then was) in Robinson's case. The relevant extracts from Cook's case are as follows: [footnotes omitted]

The standard of proof applied by the Tribunal in relation to these allegations was the Briginshaw standard... As to ground 1 the Tribunal found each of the alleged six particularised matters had been established...

In being satisfied that ground 1 had been established, the Tribunal observed:

"... the [applicant's] conduct was of a lesser standard than that which might reasonably be expected of him by the public and by his professional peers. I am further satisfied that his conduct demonstrates a lack of adequate judgment in the practice of his profession. This behaviour constitutes unsatisfactory professional conduct within the meaning of the Act."

The correct approach to the application of the APS Code of Ethics, and indeed the expert evidence of Mr Dooley, is that identified by Chesterman J (as his Honour then was) in [Robinson's case]:

"The question for the Tribunal was whether the appellant had engaged in unsatisfactory professional conduct, as particularised in the reference. The answer was to be found by the test described in the cases. It is the test which the Tribunal did apply. Whether the appellant's conduct, the subject of the referral, was of a lesser standard than that to be reasonably expected by the appellant's peers, or was discreditable to her profession, or was unethical, was, obviously a question of fact to be determined on the evidence. The Tribunal had evidence before it, principally from Dr Dooley, that the appellant's conduct did satisfy that description. Both Dr Dooley, and the Tribunal, relied upon the contents of the APS code and the Position Statement. There can be no possible objection to this use of the APS code, or the Position Statement, by the Tribunal. It is to miss the point entirely to say that neither document was 'binding' on the appellant by force of law. The point is that psychologists of good repute and standing regarded the rules in question, the APS code and Position Statement concerning sexual relationships between psychologists and former patients, as setting forth standards to which they, as professionals, should adhere. They regarded those rules as 'binding' on themselves and their conduct notwithstanding that the rules had no statutory force and breach of them could not result in a prosecution. This is the very nature of an ethic. It is a voluntarily observed rule which is obeyed because obedience to it is seen to be good for the reputation of the profession and the proper performance of its members' functions." [52]

[29] In Cook's case, the Court of Appeal refused leave to appeal and the application for an extension of time was refused. The Court of Appeal said that the Tribunal at first instance was entitled to have regard to the APS Code of Ethics and Guidelines and it made no error in accepting the evidence of Mr Dooley (expert witness). The Court of Appeal said that Mr Dooley, as a longstanding and experienced psychologist, 'was able to identify professional conduct that was of a lessor standard than which might reasonably be expected of the applicant by his professional peers.'[53]

What are the competing submissions about the test to be applied in this case?

[30] In oral submissions, Mr Wilson for the Board argues that Cooke's case sets out the appropriate test and should be applied. Mr Wilson submits that the test in Pillai's case suggests a 'higher bar,' in that the conduct in question needs to be more wanting than the test in Cooke's case. Mr Wilson submits that, as stated in Cooke's case, the test is simply go to the question of what would a member of the profession of good repute or competency do. That is, what is the standard the profession expects.

[31] Mr Devlin QC for Dr Griffin submits that in assessing the allegations about negligence or incompetence the test in Bayliss' case assists the Tribunal. In assessing the allegations as to whether Dr Griffin's conduct is of a lessor standard expected of his peers and the public, the test in Cooke's case and Robinson's case (that applies Adamson's case) assists the Tribunal.

Tribunal findings - what is the common law test to be applied?

[32] The Tribunal has considered the submissions made and the nature of the allegations contained in the Referral. A finding by the Tribunal that some or all of the allegations have been substantiated will potentially have serious consequences for Dr Griffin in his practice as a veterinary surgeon because the Tribunal has the power to take certain disciplinary action.[54]

[33] The Tribunal accepts the submission advanced by Mr Wilson for the Board that Pillai's case suggests a 'higher bar,' in that the conduct in question needs to be more wanting than the test stated in Cooke's case. Given the seriousness of the allegations and the potential consequences that may flow from any adverse findings made about Dr Griffin's conduct and his practice as a veterinary surgeon, the Tribunal will apply the test that suggests a 'higher bar', being the test in Bayliss' case that endorsed the approach taken in Pillai's case.

[34] Bayliss' case said that, as to whether the facts as found establish 'negligence so gross', it is necessary for the Tribunal to 'find something more' than mere negligence by the civil standard.[55] Bayliss' case accepted the approach set out in Pillai's case. Pillai's case said that in assessing the evidence and making a finding of 'professional reprobation', there must be evidence 'established by...an appropriately qualified person or persons'.[56] Pillai's case also said that the statutory test of 'misconduct in a professional respect' is not met by 'mere professional incompetence or by deficiencies in the practice of the profession'. Pillai's case said there must be something more, such as 'a deliberate departure from accepted standards or such serious negligence, as although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner'.[57]

Is a complaint and/or proof of injury or loss necessary for there to be a finding of negligence or incompetence in this case?

[35] This argument, advanced by Mr Devlin QC in oral submissions, he says rests on the principle of negligence as stated by the House of Lords in Donoghue v Stevenson.[58] Mr Devlin QC submits a fundamental element of negligence is proof of loss suffered by a party as a result of an act or omission of the defendant. Mr Devlin QC submits that a singular feature of the Board's case is the lack of any evidentiary basis for a finding of negligence or incompetence that are in itself as stated, 'legal terms of art' not otherwise defined by the Act.

[36] Mr Devlin QC refers the Tribunal to the decision in Burton v Anderson[59] as being a relevant authority as to the 'process' to be taken in disciplinary proceedings and in assessing the evidence of what a practitioner did in order to be satisfied that the alleged conduct is incompetent. Burton's case involved an appeal against findings made by the Veterinary Surgeons Disciplinary Tribunal at first instance against Dr Burton who was a registered veterinary surgeon. The appeal proceeded before the NSW Court of Appeal.

[37] In Burton's case the Tribunal at first instance heard evidence from witnesses including expert witnesses, Dr Burton and the complainants who were the owners of the subject animal (a dog) treated by Dr Burton. The Court said that the Tribunal accepted the opinions expressed by the expert witnesses called by the nominal complainants, and their criticisms of Dr Burton's clinical management of the dog. The Tribunal at first instance accepted that the 'opinions and criticism reflect the opinion which would be generally held by competent veterinary surgeons of good repute and standing in the profession'.[60] The Court of Appeal referred to the 'prolonged suffering of the dog' and said that it (like the Tribunal) regarded this to be a 'very serious case.'[61]

[38] Mr Devlin QC submits that negligence and incompetence are of the same category because the only way to measure incompetence referring to a 'serious departure' (of standards) is to look at the process leading to the result. Mr Devlin QC submits that on the facts of this case, it is dangerous to return an adverse finding of negligence or incompetence because such findings rely upon a common law concept of negligence settled over 65 years ago. Mr Devlin QC submits that in this case Dr Griffin admits that his records are inadequate and the allegations referred by the Board require the Tribunal to draw inferences based on the evidence. Mr Devlin QC submits that this requires inferences to be made by the Tribunal about Dr Griffin's notes and a failure (by him) to determine therapeutic purpose or need in order to be satisfied that there is evidence of misconduct in a professional respect but there are no discernible outcomes adverse to the animal patients before us.

[39] Mr Wilson says in response that you cannot import tortious concepts into the statutory test because this will lead to confusion and error. Mr Wilson says that this is not a matter about private recovery.

[40] We find Robinson's case helpful in considering the issue before us because it is an example of a case where on the reported facts there was no complaint made and no primary evidence before the Tribunal at first instance of injury or loss to the patient in making a finding of unsatisfactory professional conduct that included misconduct in a professional respect.

[41] Robinson's case concerned conduct by Ms Robinson (a psychologist) in the form of a sexual relationship with a former patient. In Robinson's case the Court of Appeal set out the facts giving rise to the referral. The facts state that Ms Robinson 'has continued contact with [the patient] and intends to continue contact...into the future'. In Robinson's case, the Tribunal found at first instance that there was a power imbalance between Ms Robinson and the patient upon his (the patient's) release from prison due to his vulnerability on release. The Tribunal also accepted that there is a 'mutual attraction between [Ms Robinson] and [the patient] which continues'. The Court of Appeal said that the Tribunal at first instance accepted that the Code of Conduct and the Position Statement were 'evidence of rules of conduct' concerning sexual relationships between psychologists and former patients which 'psychologists of good standing and repute observed'.

[42] In this case, there is no evidence before us of a complaint giving rise to the Referral and no evidence of any adverse consequences including proof of injury or loss arising from Dr Griffin's treatment of an animal in his conduct or practice as a veterinary surgeon.

[43] We prefer Mr Wilson's submission that to import tortious concepts into the statutory test will lead to confusion and error. We find that the Act requires us to determine the allegations as particularised in the Referral. The Act, for the purposes of making a finding of 'misconduct in a professional respect', does not provide that there must be a complaint as there was in Burton's case and/or proof of injury or loss. The Act empowers the Board 'of its own motion' or upon 'complaint' of 'a person aggrieved' to cause an investigation to be made about the conduct of a veterinary surgeon.[62] Under s 22(3) the Board may elect to proceed to take disciplinary action as prescribed under s 22A or refer 'the matter' as provided under the QCAT Act to 'hear and decide any disciplinary proceeding'.[63]

[44] It is settled law that the purpose of disciplinary proceedings is not to punish but to maintain standards and public confidence in the profession and to protect the public.[64] The Act confers powers on the Board as provided to investigate and take certain action in relation to conduct of a veterinary surgeon. The Act does not limit the Board's power to refer a matter to the Tribunal in certain circumstances such as upon receipt of a complaint and/or where there is evidence of proof of injury or loss.

[45] In this case, Dr Griffin in responding to the allegations has given evidence as to his conduct and practice as a veterinary surgeon. Expert evidence has been given by qualified and experienced veterinary surgeons of good standing in the profession as to the conduct and practice of veterinary surgeons and the treatment of racing and sporting horses. The expert evidence is evidence of the standard expected of a veterinary surgeon by which Dr Griffin's conduct and practice in this case may be measured.

[46] In assessing the evidence, the findings we can make for the purposes of determining whether Dr Griffin has engaged in 'misconduct in a professional respect'[65] are not hampered as submitted by Mr Devlin QC, by the lack of a complaint made or proof of injury or loss before us. It is open to us to make a finding if we are satisfied the allegations are proven to the required civil standard, about Dr Griffin's conduct and practice as a veterinary surgeon. This includes making a finding that Dr Griffin was 'negligent or incompetent' or for the purposes of s 22F of the Act that provides 'without limiting the ways a veterinary surgeon may engage in misconduct in a professional respect', otherwise practised in a manner that was of a lessor standard than expected by his professional peers and the public.

What are the further particulars of the allegations?

[47] Some of the allegations contained in the Referral refer to certain drugs as being administered, prescribed, dispensed or sold (by Dr Griffin) for no 'legitimate therapeutic purpose'. One of the allegations refers to certain drugs as being administered, prescribed, dispensed or sold (by Dr Griffin) for no 'legitimate therapeutic need'.

[48] It is common ground that for the meaning of the words 'therapeutic purpose' and 'therapeutic use', the words 'purpose' and 'use' are equivalent terms.

[49] The words 'therapeutic need' and 'therapeutic purpose' are not defined in the particulars of the Referral or in the Act. We therefore must consider each of the allegations as they are particularised in the Referral and that is with reference to one instance of administering, prescribing or dispensing various restricted drugs for which there was no 'therapeutic need' and in other instances there was no 'therapeutic purpose'.

[50] The Board and Dr Griffin have filed written submissions that present different approaches to be taken by the Tribunal in determining the meaning of 'therapeutic purpose' and 'therapeutic need'. The Board has also provided further particulars of the allegations that fall outside the Referral.[66]

[51] The Board's further particulars of the allegations also referred to in written submissions are as follows:[67]

1. Dr Griffin, in each case particularised in paragraph 4 [same particulars repeated for paragraphs 5 and 6] of the referral:

   • (a) did not identify for each horse to be treated, a therapeutic purpose for the drugs administered, prescribed, dispensed, sold or supplied;

   • (b) was not and could not reasonably have been satisfied that the drugs administered, prescribed, dispensed, sold or supplied were necessary for a therapeutic purpose for each horse to be treated with the drug;

   • (c) did not adequately assess or examine each horse before administering, prescribing, dispensing, selling or supplying the drugs as alleged in each case.

[52] For the allegations in paragraph 4 (and 6) and the reference 'for no therapeutic purpose' the Board relies[68] on the common meaning of 'therapeutic' that relates to the treatment of disease.[69] In written submissions the Board refers to the dictionary meaning of 'therapeutic' that means 'pertaining to the treating or curing of disease; curative',[70] 'of, for, or contributing to the cure of disease.'[71]

[53] For allegation 5.6 the particulars refer to 'no legitimate therapeutic need'. The Board submits that for each horse to be treated a therapeutic purpose was not identified, the registrant could not have been satisfied that the drugs were necessary, and Dr Griffin did not adequately examine the horses.[72]

[54] For paragraph 6 of the allegations the Board submits Dr Griffin treated the horses in circumstances where 'he did not or could not adequately establish a therapeutic purpose' for administrating the drugs. The Board relies on particulars that Dr Griffin did not, for each horse to be treated, identify a therapeutic purpose, could not have been satisfied that the drugs were necessary, and Dr Griffin did not adequately assess or examine each horse.[73]

[55] In responding to the particulars of the allegations, Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulation 1996 (Qld) (the Health Regulation).[74]

[56] In relation to dispensing Bute Paste to be administered to various horses, Dr Griffin says that pursuant to s 180(1)(c) of the Health (Drugs and Poisons) Regulation 1996 (Qld) (the Health (D&P) Regs), as a matter of law, he was authorised to dispense Bute Paste in the instances alleged if 'reasonably satisfied that the animal he was treating needs a restricted drug [Bute Paste] for a therapeutic use'.[75] Dr Griffin also says that on the evidence his satisfaction was reasonable.[76]

[57] We accept Dr Griffin's submission that the Health (D&P) Regs and the Health Regulation are applicable in this case.[77] The allegations refer to the treatment of horses by Dr Griffin with certain 'restricted' drugs as particularised, that are defined for the purposes of the Health (D&P) Regs, as 'restricted' drugs.[78] That Act refers to 'therapeutic use' by a veterinary surgeon treating an animal with a restricted drug. Section 180 relevantly provides that a veterinary surgeon is 'authorised' to 'use' a restricted drug as part of the animal's veterinary treatment if the veterinary surgeon is 'reasonably satisfied' the drug is for a 'therapeutic use'. Section 180 of the Health (D&P) Regs relevantly provides:

To the extent necessary to practise veterinary medicine, a veterinary surgeon is authorised to -

(b) possess a restricted drug at a place occupied by the veterinary surgeon; or

(c) if the veterinary surgeon is reasonably satisfied that an animal the veterinary surgeon is treating needs a restricted drug for a therapeutic use as part of the animal's veterinary treatment -

(ii) dispense or prescribe the drug for the animal; or

(iv) sell a restricted drug to a person for the person's animal.

[58] The Health (D&P) Regs does not define the meaning of 'therapeutic use'. Under s 153 of the Health Regulation there is a definition of 'therapeutic use' in the context of treating 'a person'. Section 153 of the Health Regulation provides:

therapeutic use means a use for the purpose of or in connection with -

(a) preventing, diagnosing, curing or alleviating any disease, ailment, defect or injury in any person; or

(b) influencing, inhibiting or modifying a physiological process in any person; or

(c) testing the susceptibility of any person to a disease or ailment.

[59] In written submissions in reply the Board submits that the definition in s 153 of the Health Regulation requires that there be a 'disease, ailment, defect or injury' to be prevented.[79] The Board says the manner of treatment adopted by the registrant does not establish the threat of any condition.[80] The Board says that procedures (as to treatment) should be based on 'sound evidence-based science and practice'.[81]

[60] The Board also refers to the relevant principle 1(a) of the Australian Veterinary Association Code of Professional Conduct (AVA Code). The relevant extract from the AVA Code provides as follows:

1. Always consider the health, welfare and respectful treatment of the animal.

(a) Veterinarians should recommend appropriate preventive measures and provide suitable management and treatment for disease conditions. Although actions may be influenced by consideration of a client's commercial, financial, emotional or other circumstances, veterinarians should not condone animal suffering, nor be party to it.

3. Strive to provide the best possible veterinary services, and to improve the quality of animal health and welfare.

(b) Veterinary procedures and recommendations should be based on sound evidence-based science and practice.

[61] At the oral hearing Mr Devlin QC for Dr Griffin submits that s 180 of the Health (D&P) Regs permits Dr Griffin to use a restricted drug/s in circumstances where he was reasonably satisfied that the horse/s being treated by him needs the drug for a therapeutic use as part of the animal's treatment. Mr Devlin QC submits that if we find that Dr Griffin was reasonably satisfied as a matter of fact and law for the purposes of s 180 of the Health (D&P) Regs, then the Tribunal must apply the standards of his profession and ask the question could Dr Griffin have been so satisfied.

[62] Mr Wilson submits that in determining whether the allegations are substantiated it is not a question of what Dr Griffin thought he was trying to achieve in terms of treatment, but whether it was reasonable for him to do so having regard to all of the evidence including the expert witnesses and what is the competent standard (of the profession of veterinary surgeons).

[63] In this case, the role of the Tribunal is to hear and decide disciplinary proceedings concerning Dr Griffin and the allegations of misconduct in a professional respect as contained in the Referral.[82] We must determine whether the allegations as particularised in the Referral are substantiated having regard to all of the evidence including Dr Griffin's evidence, the expert evidence, the AVA Code and the applicable law.

[64] We find that in relation to administering or dispensing a restricted drug, a veterinary surgeon pursuant s 180 of the Health (D&P) Regs is, as a matter of law, authorised to treat an animal (with a restricted drug) if he or she is reasonably satisfied that the animal being treated needs the restricted drug for a therapeutic use (or purpose) as part of the animal's veterinary treatment.

[65] We accept the Board's submission that s 153 of the Health Regulation requires there to be a 'disease, ailment, defect or injury' to be prevented. Section 153 also means 'a use' for the purpose of or in connection with 'influencing, inhibiting or modifying a physiological process...'. We accept the Board's submission that veterinary procedures and recommendations should be as provided in the AVA Code, based on sound evidence-based science and practice.

What do the experts say about standards and practice of veterinary surgeons; and the treatment of horses?

[66] Dr van Eps and Dr Clarke gave evidence about the treatment of horses by a veterinary surgeon generally and treatment of horses with certain drugs with reference to the Referral. Although the expert witnesses agree generally that when conducting a physical examination of a horse certain steps or procedures should be undertaken, they do not agree about the circumstances in which a physical examination of a horse is required.

[67] The divergent opinions arise in the context of treating a horse individually and treating horses as a group (or herd) as part of an ongoing program. The expert opinions also differ about whether it is appropriate to treat horses in certain situations with anabolic steroids and whether the registered use for a drug with the Australian Pesticides and Veterinary Medicines Authority (the APVMA) is justification for how the drug might be used.

[68] In short compass, Dr Clarke says that an individual examination of a horse is not required when treating horses as a group (or a herd) as part of an ongoing program; and that treatment of those horses with anabolic steroids is appropriate. Dr Clarke also gave evidence about the registration of drugs with the APVMA.

[69] Dr van Eps says when treating a horse the veterinarian must establish a therapeutic purpose or use for treatment and to do this requires establishing a therapeutic need that also requires an individual examination of the horse. Dr van Eps says that anabolic steroids are not appropriate as a first line treatment and the APVMA registration is for the sole purpose of registration of the drug and not a guideline for how the drug can be used.

[70] In summary, it is Dr van Eps' evidence that a veterinarian surgeon must establish a therapeutic need for any treatment regime. This requires an examination of the animal to establish a diagnosis then the development of a therapeutic plan.

[71] In relation to conducting a 'basic clinical' examination of a horse Dr van Eps gave oral evidence at the hearing and referred to taking temperature, pulse, respiration and then examination from 'nose to tail,' stating 'in racehorses, in particular, you'd be [palpating], running your hands over limbs and...paying particular attention to the musculoskeletal system'.[83]

[72] In relation to keeping records Dr van Eps stated that 'records are vital' referring to them as being the only way to 'gauge' whether treatment instigated is effective.[84]

[73] Dr van Eps stated in his report dated 10 June 2014 that 'reasonable veterinary practice' is where a veterinarian would first examine the animal, establish a diagnosis then develop a therapeutic plan. Dr van Eps states that it is the 'duty' of the veterinarian to provide appropriate care to 'these animals' and thereby 'protect their welfare'.[85]

[74] Dr van Eps stated in his earlier report dated 9 March 2014 that the definition of 'therapeutic use' as it appears in s 153 of the Health (D&P) Regs does not 'alone' encompass the duty of a veterinarian to an animal patient. Dr van Eps stated:

Since medications can and do produce a range of harmful effects, for each individual case the veterinarian must establish a therapeutic need for any treatment regime, and there should be clinical justification and documentation of this therapeutic need in the form of records of clinical evaluation, diagnostic test results and a diagnosis. There should also be careful follow up on the outcome of treatments.[86]

[75] It is Dr van Eps evidence that all horses should be treated individually. He stated that with horses 'individual assessment is always warranted'.[87] Dr van Eps also stated that for treatment of, for example, a parasite problem it would be 'justified' to treat the horses 'as a herd for that type of preventative measure'.[88]

[76] In relation to horses in training or racing, that are being prepared for training or being spelled, Dr van Eps stated that the horses should get individual veterinary treatment. He stated that such horses have 'very different sets of problems, different requirements, often different types of injuries and require individual assessment'.[89] Dr van Eps also stated that the horses 'get individual training' (when training) and they should get 'individual veterinary assessment'.[90]

[77] In relation to horses coming into training (horses that have not trained before), Dr van Eps was questioned about whether it is (in his opinion) appropriate to treat horses with anabolic steroids to prepare them for training. Dr van Eps stated 'I don't see the need or indication for that'.[91]

[78] In relation to anabolic steroids Dr van Eps stated that the only legitimate use for the drugs is where all other avenues have been exhausted. Dr van Eps stated:

I think the only legitimate usage of them is where you've got a horse that's losing weight or having a lot of issues with poor appetite, where other avenues have been exhausted in terms of determining or diagnosing the primary problem.[92]

[79] In relation to the four conditions identified by Dr Griffin (in regards to treating the horses) that is weight gain, tissue repair, appetite stimulation and red blood cell increase, Dr van Eps was questioned about whether he would examine each horse individually for these conditions. Dr Griffin stated 'Absolutely'.[93]

[80] Dr van Eps was cross-examined about 'therapeutic purpose' and 'therapeutic need'. Dr van Eps stated that therapeutic purpose is different to therapeutic need, giving the example that you can give a random animal penicillin for the therapeutic purpose of treating infection, but if the animal does not have an infection then there is no 'need'. Dr van Eps stated 'you have to establish the need before you give anything because...the overriding rule that we're all bound by is that we don't - we do no harm. And that's medical and veterinary practitioners'.[94]

[81] Dr van Eps also stated during cross-examination, when referring to the distinction between therapeutic need and purpose, that 'purpose' or 'use' are probably the same thing' [emphasis added].[95] Dr van Eps stated 'in every case as a veterinarian, before you treat, you're establishing whether an animal, in fact, needs treatment'.[96]

[82] In relation to the APVMA, Dr van Eps stated (when questioned) that it is for the sole purpose of registration and is not a guideline for how drugs might be used.[97]

[83] Dr van Eps was questioned at the hearing about whether 'he had a problem' with horses in a group, without discrimination between them being treated with the same substance and same dose.[98] Dr Van Eps stated, 'Yes'. The relevant extract from the transcript is as follows:

Dr van Eps: Because horses in race training and horses that have come out of race training are-are-have individual and very different problems. And it would be reasonable veterinary practice to evaluate each one and-and not treat in a blanket fashion.[99]

[84] Dr van Eps was questioned at the hearing about specific allegations contained in paragraph 6 of the Referral including how likely is it that a number of horses would exhibit symptoms such as underweight, poor tissue condition, poor appetite, which required exactly the same treatment and dosage for each of those horses at the same time. Dr van Eps stated, 'I think it's unlikely'.[100] Dr van Eps' evidence remained unchanged when asked the same question (i.e. how likely it is) for other horses treated by Dr Griffin with the same dose of drug for the same symptoms.[101]

[85] Dr van Eps stated that it would be usual to dose by body weight, 'but again it would be unusual to treat without evaluation, individual examination'.[102] Dr van Eps also stated that for some of the product labels for particular medications according to the manufacturer's dosage some drugs are 'just X number of mls per horse and some of them are in a dose range'.[103] Dr van Eps stated 'I guess it is not an exact science'.[104]

[86] It is Dr Clarke's evidence that horses can be treated as part of a herd health program. This requires management of a feeding program and working closely with the trainer.

[87] In his report dated 24 December 2014 Dr Clarke refers to management and treatment of disease and injuries in racing horses but also disease and injury prevention. Dr Clarke stated:

Veterinary services provided to racing horses must focus not only on the management and treatment of disease and injuries but also on disease and injury prevention_._ In essence these veterinary services should be preventive as well treating specific problems and applied at both the individual horse and whole stable or 'herd' level.[105]

[88] Dr Clarke refers to s 153 of the Health Regs and states that the administration of pharmaceuticals to prevent disease or injury or to modify 'a physiological process' represents a 'legitimate therapeutic use of the treatment regime'.[106] Dr Clarke stated:

In the context of the present matter the administration of pharmaceuticals to prevent a disease or injury or to modify a physiological process represents a legitimate 'therapeutic use' of the treatment [regime] in the same way that the use of a pharmaceutical to treat an actual disease would be viewed as legitimate 'therapeutic use'.[107]

[89] Dr Clarke stated during cross-examination that he did not believe it is necessary to undertake a full examination of a horse in every instance of administering a restricted drug.[108] Dr Clarke's evidence was further clarified during cross-examination in that he stated a 'rider' to his comments about individual examination would be that, when treating horses as part of a program, and if familiar with those horses, a full 10-15 minute examination individually would not be necessary.[109]

[90] It is Dr Clarke's evidence that it is not necessary to conduct a full physical examination of a horse when treating a horse (as he was questioned at the hearing) to achieve a prophylactic effect.[110] Dr Clarke stated that the examination to be undertaken would be a 'quick check of the horses' in the context of having talked to the trainer and having given (as stated) the horses a 'visual check'.[111]

[91] Dr Clarke did accept during cross-examination that it is necessary to assess each horse before administering an anabolic steroid.[112] He accepted that it is necessary to keep a record of each horse that is going to be treated.[113] Dr Clarke's evidence in relation to the treatment of a group (or herd) of horses was given in the context of a herd health program.

[92] In relation to anabolic steroids, Dr Clarke stated that in his experience anabolic steroids are widely used. In giving his oral evidence Dr Clark stated that '...it is a little bit of the elephant in the room. It's certainly changed with the rule change in May 2014...'.[114]

[93] In relation to the APVMA, Dr Clarke stated during cross-examination that the APVMA is the basis for legitimate uses and claims.[115]

Tribunal's findings in relation to the expert evidence and the treatment of an animal

[94] The Tribunal prefers the evidence of Dr van Eps to Dr Clarke in relation to treating racing and sporting horses, and the APVMA. The Tribunal found Dr van Eps to be honest in giving his evidence and is satisfied that he is suitably qualified in the area of equine medicine and experienced in treating and understanding issues that may present in racing and sporting horses.

[95] Dr van Eps gave oral evidence about his experience practising as a veterinary surgeon. He spent 5 years in private practice working with racehorses.[116] He has also practised as a racetrack veterinarian.[117] During that time he would examine horses daily.[118] Dr van Eps is an associate professor of equine medicine at the University of Queensland. He is also the author of numerous publications with a particular focus on issues arising in horses.

[96] Although Dr Clarke is experienced as a veterinary surgeon he does not have the same number of years of experience in private practice (as a veterinary surgeon) with a focus on racing horses when compared to Dr van Eps. As we have said, Dr van Eps spent 5 years examining racing horses. During cross-examination Dr Clarke stated that he, about 6 years ago, treated 'a couple of horses in work' (two horses).[119] Prior to that Dr Clarke stated that he 'did some treatments' for horses but was not registered as a practising veterinarian while he was working in Canada.[120]

[97] In relation to treatment of horses as a group or herd, Dr Clarke stated during cross-examination that he has given horses a 'couple of shots' of anabolic steroids but that was not in 'a big herd'.[121] Dr Clarke stated that his experience with herd health and anabolic steroids started in 1979.[122] Dr Clarke stated that since 1979 he has injected a horse once with anabolic steroids (probably Stanazol) and has administered Bute Paste to horses at Living Legends.[123]

[98] The Tribunal in accepting Dr van Eps evidence makes the following findings about the standards and practice of veterinary surgeons in the treatment of horses that includes racing and sporting horses:

1. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment.

2. A veterinary surgeon must establish a therapeutic purpose (or use) for any treatment. This requires establishing a therapeutic need for treatment where there is clinical justification and documentation.

3. Reasonable veterinary practice requires an examination of the animal to establish a diagnosis then develop a therapeutic plan that also requires follow up of treatment.

4. An 'examination' of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from 'nose to tail', palpating and running hands over limbs, paying attention to the musculoskeletal system.

5. The APVMA is for the sole purpose of registration for the drug and is not a guideline for how the drugs might be used by a veterinarian or a guideline for how they might be indicated.

6. An anabolic steroid is not an appropriate first line treatment in a horse which may be suffering a condition.

[99] We also accept the evidence of Dr van Eps that where a number of horses have been treated by Dr Griffin for the same symptoms it is unlikely the number of horses treated would present symptoms which required exactly the same treatment and dosage of drug for each horse at the same time and that it would be unusual to treat without evaluation. We also accept the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[100] We find that Dr van Eps' evidence about treatment of an animal and in particular, his evidence about what is 'reasonable veterinary practice', is not inconsistent with what is required under the relevant sections of the AVA Code.

[101] The AVA Code of Conduct requires a veterinary surgeon to, amongst others, always consider the health, welfare and respectful treatment of the animal and provide treatment for disease conditions. In relation to providing veterinary services, the AVA Code provides that veterinary procedures and recommendations should be 'based on sound evidence-based science and practice'.[124]

[102] Section 180 of the Health (D&P) Regs requires a veterinary surgeon to be reasonably satisfied that an animal being treated 'needs a restricted drug' for a therapeutic use as part of the animal's treatment. As we have said, the Health (D&P) Regs does not contain a definition of 'therapeutic use' (or purpose). We have accepted the Board's submission that for the purposes of s 153 of the Health Regulation and the meaning of 'therapeutic use' (in the treatment of a person), s 153 requires that there be a 'disease, ailment, defect or injury' to be prevented or cured. We also accept that for the purposes of s 153 'a use' for the 'purpose of...' includes as provided under s 153(b), 'influencing, inhibiting or modifying a physiological process...'.[125]

[103] We have found based on the evidence of Dr van Eps that to establish a therapeutic purpose (or use) for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have found that reasonable veterinary practice requires an examination of the animal to be treated to establish a diagnosis then develop a therapeutic plan that also requires follow up treatment. We have also found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We find that for the purposes of s 153 of the Health Regulation, an examination and evaluation of the animal to be treated is required to establish whether the drug (to be used) is necessary for treatment of a 'disease, ailment, defect or injury...' or that the 'use' (of the drug) is to '[influence]...a physiological process...'.

[104] We have found based on the expert evidence before us an examination and evaluation is necessary is establish a diagnosis and this requires follow up treatment. We find that for the purposes of s 180 of the Health (D&P) Regs and for a veterinary surgeon to be reasonably satisfied that an animal needs a restricted drug for a therapeutic use (or purpose) an examination and evaluation of the animal to be treated is necessary.

What does Dr Griffin say about the allegations?

[105] All of the allegations save for allegations 4.6 and 4.14 concern the administration of certain drugs by Dr Griffin known as anabolic steroids. All of the anabolic steroids administered by Dr Griffin are 'injectable' drugs except for allegations 4.8 and 4.9 that involve supplying Nitrotain paste that is administered orally.[126]

[106] Dr Griffin gave evidence about the use of anabolic steroids, his treatment of horses prophylactically, his treatment of sporting and racing horses as a group or herd; and how he conducts an examination of a horse to establish whether the animal requires treatment. Dr Griffin gave evidence generally and more specifically in response to particular allegations. We have summarised Dr Griffin's evidence below that was given generally in relation to his treatment of sporting and racing horses with anabolic steroids, treating sporting and racing horses prophylactically; and treating sporting and racing horses.

Dr Griffin's evidence about anabolic steroids

[107] It is Dr Griffin's evidence that anabolic steroids have been 'widely administered' to racehorses, referring to horses 'when resting and when coming into training,' and 'with adequate withdrawal times to avoid positive testing'.[127] It is Dr Griffin's evidence that (depending on whether the horses need treatment[128]) anabolic steroids are suitable for horses coming into training, horses in training, horses recovering from training,[129] yearlings (young horses) and weanlings (horses less than one year of age).[130]

[108] Dr Griffin gave oral evidence at the hearing that since anabolic steroids were banned in 2014 he has honoured that ban, stating that the last time he could give an injection (of anabolic steroids) was December 2013.[131]

[109] Dr Griffin gave evidence generally about his administration of anabolic steroids to young horses (yearlings) on various properties. Such properties include Allandale Stud Farm,[132] Tomorrows Farm (allegation 6.1) and R. Smith's property.[133] Dr Griffin stated that the drugs are used for the 'two sides' to their effect. Dr Griffin stated:

One [side] is its anabolic effect or its tissue-growing effect, or tissue increase, myotropic effect, where the actual muscle weight and the muscle size increases, as well as [the second effect] an increase in the bone weight, and that... contributes to the live weight gain, both of those things'.[134]

[110] Dr Griffin gave evidence about his treatment of horses with a combination of anabolic steroids, such as a water based drug, plus an oil based drug and using an anabolic steroid on its own.

[111] Dr Griffin stated that when he is just using Stanazol by itself (from his notes) he is giving the horse (as stated) 'a small bump'. He stated that the horse 'doesn't need a huge help with its live weight gain'.[135] When using a combination of anabolic steroids such as water based anabolic steroids (e.g. Stanazol) and an oil based anabolic steroid, Dr Griffin stated the horse 'needs slightly more help with its live weight gain than what I've previously seen'.[136]

[112] Dr Griffin was also questioned about his treatment regime and injections (of anabolic steroids). Dr Griffin stated he would have 'at least 60 or 70 Stanazol injections made up' and stated '10 to 20 or 30 of the oil-based injections made up'.[137] Dr Griffin stated that (the injection) was dependent on what he was 'actually able' to purchase from a pharmaceutical supplier. Dr Griffin stated he would make up the injections weekly.[138]

Dr Griffin's evidence about treating horses prophylactically

[113] Dr Griffin gave evidence about his treatment of horses prophylactically. He stated that he is trying to prevent a medical problem occurring. He stated 'so there is a deficiency there [in the property], and what I'm trying to do is prevent it progressing to a medical problem'.[139]

[114] In relation to treating horses prophylactically with anabolic steroids, Dr Griffin was questioned about the medical condition he is preventing. Dr Griffin referred to 'the deficiency manifesting itself', referring to poor growth or poor live weight gain.[140]

[115] When questioned about the meaning of 'deficiency', Dr Griffin stated 'deficiency depending on what's on that property at the time,' giving the example of Allandale property[141] which was deficient in phosphorus and potassium.[142]

[116] When questioned about how Dr Griffin would see that 'manifest' in the horses (the deficiency), Dr Griffin stated that he is using a nutritional programme. He stated that when he first 'got to the farm... those horses weren't doing as well as what they should've been, compared to other farms that [he] knew and other horses'.[143]

[117] In relation to what specific symptoms Dr Griffin was looking for (when questioned), he stated 'the actual non-thriving or lack of live weight gain'.[144]

Dr Griffin's evidence about treating sporting and racing horses

[118] In relation to his monitoring of the horses, Dr Griffin accepted during cross-examination that he is not tracking the weight of the animal.[145] He stated that he is comparing the horses in the paddock and stated, 'I can see the difference between those horses about the ones that I've treated before as well as those horses that do better in the paddock so it's a comparison all the time'.[146]

[119] Dr Griffin accepted during cross-examination that in respect of treating an animal individually, each animal is going to have different weights and proportions in terms of their bodies and temperaments.[147] Dr Griffin also accepted that two horses of different weights and genders are not 'necessarily' going to respond the same way to the same dose of anabolic steroids.[148]

[120] Dr Griffin gave evidence about treatment of horses as a group or herd. He stated in his affidavit that he will examine horses 'in groupings or sub-herd levels' (for example, older horses, female horses and geldings) and stated that he will treat 'these animals as a group'.[149]

[121] Dr Griffin stated that he does not take a 'herd approach' to treatment for every medication, stating 'for example, to keep females out of season'.[150] Dr Griffin stated that he would initiate examination of horse management and feeding regimes when visiting properties for the first time and property practices where he has already visited a property. He stated 'especially when a general problem exists such as general decrease in racing performance'.[151] Dr Griffin stated that he treats a stable or farm 'wholisitically'.[152]

[122] Dr Griffin gave evidence about the 'steps' he takes to follow up on how 'the herd' is responding to the treatment he administers. Dr Griffin referred to the issue of lameness and other problems that have been identified by the client. Dr Griffin stated that if a client has a problem with an individual horse the client will 'call' him in between visits.[153] Dr Griffin stated:

...if it's a lameness issue, then we will go specifically to the horse looking for a lameness problem. I won't be performing all sorts of tests on that animal if we can actually find out what's wrong with that animal quite quickly. That information is normally derived from the client themselves, so they may present a horse that has a cough even though we know it's a respiratory problem. Then I'll be examining the horses' temperature to assess how sick it is or whether it has a temperature. I'll also be listening to its thorax or its lungs to see if I can detect a problem.[154]

[123] In relation to treating horses with the drugs phenylbutazone and nitrotain and any examination undertaken, Dr Griffin stated that he does not 'actually' administer the drugs to the horses.[155] Dr Griffin stated that he does examine the individual horse, but only dispenses the medication. Dr Griffin stated that it is 'actually up to the trainer or the trainer's representative' (to administer).[156]

[124] Dr Griffin described the 'process' he undertakes in examining an animal he is proposing or considering treating. Dr Griffin stated:

Normally I'd keep a record of anything that stands out to me rather than keep a record for each individual horse on that visit.[157]

[125] Dr Griffin gave evidence about his examination of horses where he has observed the horses at a distance and then more closely in the holding area. Dr Griffin stated that he is using a list provided by the owner or trainer, together with his anabolic steroid register. Dr Griffin stated:

...and then using that list plus my anabolic steroid register, I can then see which horses we've treated before. I can also see from my examination which horses actually need some treatment which is, as I've said, from a distance and then we get them into a smaller holding area so that we can look at them again much more closely.[158]

[126] Dr Griffin was also questioned about his treatment of horses with phenylbutazone 'on a herd basis'. Dr Griffin stated that in his view, based on his experience with racehorses in Macau, all racehorses in active training should be treated on a herd basis with anti-inflammatories in every case, to address 'cumulative damage'.[159] Dr Griffin accepted that this is not a widely held belief in the profession.[160]

[127] Dr Griffin gave evidence about his assessment of horses referred to by him as either a two-tier or three-tier system. He was also questioned about what 'basis' he used to decide whether horses were to be assessed under the tier system, being either above or below a benchmark. Dr Griffin stated that the 'basis' is the 'body condition of the horses that were in the paddock with that better condition' with reference to those horses that were 'next to those other horses'.[161] In relation to deciding the tier system to be used, Dr Griffin stated:

Depending on what presented to me as to the difference between the top - the well-doing horses and the ones at the bottom of that - that level that I could see.[162]

[128] Dr Griffin stated he would 'identify' (horses) at a distance and then 'closer up'.[163] For a two-tier system, Dr Griffin was questioned about the 'critical sign or visual point' and stated in response that it is the 'amount of condition on the neck, the backline and the rump' for the three-tier system.[164] For the two-tier system Dr Griffin stated it is, 'using the same but there'll be a significant difference in the levels between those three groups of horses'.[165]

[129] When conducting a follow-up clinical examination, Dr Griffin stated that he is looking for live weight gain 'to be achieved to the level of those better-doing horses'. Dr Griffin stated that he is using that referring to the 'better-doing' horses that are eating a larger amount of nutrition as his 'baseline' of the horses that did not have the 'deficiency'.[166]

[130] In relation to the 'benchmark' used for the extra boost for an anabolic steroid such as Decca 50, Dr Griffin stated 'those horses that I saw that hadn't performed to the level that I thought they should've with the previous injections'.[167] In relation to how 'that level' was decided, Dr Griffin referred to the body condition of the horse stating 'the condition in the neck and their rump in particular, and their backline, where it's easier to see the amount of muscle that a horse carries.'[168]

Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.6 - C. Martin's property?

[131] It is common ground that the drug Bute Paste contains the active ingredient phenylbutazone and is a non-steroidal anti-inflammatory drug also known as an 'NSAID'.

[132] Dr Griffin admits that on 28 September 2010 he supplied '2 x 1 kg' of Bute Paste for use on 15 to 20 horses in training and the drug was supplied as an anti-inflammatory.[169]

[133] Dr Griffin's evidence contained in his affidavit is that the therapeutic purpose for the use of Bute Paste is as an anti-inflammatory drug and also referred to in his oral evidence as 'treat[ing] that inflammatory process that occurs as a result of training and exercise.[170] Dr Griffin states in his affidavit that:[171]

1. Based on his experience in conducting post mortems on 'hundreds of horses' he is aware of the amount of 'cartilage damage and inflammation' that is present in racehorses that have 'been in work'. As such any anti-inflammatory drug has a therapeutic purpose in racehorses;[172]

2. He will examine all of the horses to be treated before dispensing anti-inflammatories and 'make an initial assessment and record the horses' names at this time'. He will not record the names again unless there was something significant or different 'evident on a further examination';[173]

3. He is available 'at all times' by telephone on call 'to discuss advice on various issues of diseased or injured horses and the withdrawal times for the medications [dispensed]';[174]

4. The dosage of Bute Paste dispensed by him was based on the number of horses for 'their training' over one month. The dosage dispensed for the horses was 5 ml of Bute Paste per horse (20 horses) Monday to Friday with 'weekends off for one month';[175]

5. The extract from 'Spirax notepad 36 and 13.8.2010 from Spirax notepad 40' illustrate that 'examinations of the horses in this stable were performed at previous visits'. [176]

[134] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drug was necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[177]

[135] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis.

[136] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[137] The expert witnesses also gave evidence about treating horses with Bute Paste. Both witnesses, Dr van Eps and Dr Clarke, agree that an NSAID such as phenylbutazone can be administered to treat injuries such as soreness in a horse that may develop as part of the training process.

[138] Dr van Eps states in his report dated 10 June 2014 that it is a 'reasonable therapeutic rationale' to administer non-steroidal anti-inflammatory drugs (NSAIDs) such as phenylbutazone to horses during race training to treat specific injuries or soreness that develop as part of the training process.[178]

[139] Dr Clarke states in his report dated 24 December 2014 that he 'concur[s]' with Dr Van Eps that NSAIDs are 'valuable for the relief of aches and pains of joints in horses in training'. Dr Clarke also states that intermittent use based on trainer or rider assessments of soundness can be used 'to avoid continuous long term usage'.[179]

[140] Dr van Eps gave oral evidence at the hearing about the use of Bute Paste in this particular matter. He was questioned about whether its use is warranted in every case of racehorses in the training environment. Dr van Eps stated 'No'.[180] Dr van Eps referred to the issue of 'masking', stating that '[Bute Paste] can be a double-edged sword' by making the animal feel comfortable so they will go out and train harder and put more pressure on the 'injured joints'.[181] He added that 'there is no indication from the literature that... controlling inflammation [with NSAIDs] can prevent development of arthritis.'[182]

[141] Dr van Eps gave oral evidence about the toxicity of Bute Paste and stated that some horses get toxic adverse effects after a few days of use. Dr van Eps agreed when questioned that there is a range of reactions to Bute Paste. Dr van Eps stated:

If you're keeping an animal on phenylbutazone for a long period of time and occasionally...particularly with horses with laminitis and other things, we do end up having them on phenylbutazone for weeks, sometimes months. In this cases, it is...definitely warranted to monitor those animals with blood parameters and clinical evaluation.[183]

[142] Dr van Eps was questioned about treating 15 to 20 horses with the same dose of phenylbutazone on an ongoing basis for one month and whether he would regard this as 'good practice'. Dr van Eps stated, 'No'.[184] He stated that unless the animal is examined individually to determine a need for the drug, and is being 'are regularly monitor[ed] he did not see 'that that's appropriate usage'.[185]

[143] Dr van Eps gave oral evidence at the hearing that Bute Paste would be appropriate to treat lameness but there are side effects that must be considered together with what the horse is doing. Dr van Eps stated that there is a risk that the drug can mask lameness and make the horse feel better when it has an injury. He also stated that some anti-inflammatory drugs can cause toxicity or side effects in the gastrointestinal tracts and generally this manifests as ulceration of the colon. The drugs can also cause renal or kidney failure. Dr van Eps' oral evidence is consistent with his evidence given in his report dated 9 March 2014.[186]

[144] In relation to treating sporting and racing horses with Bute Paste and what is 'good practice' for a veterinarian, we prefer the evidence of Dr van Eps to Dr Clarke. Dr van Eps' area of speciality is 'laminitis'[187] and we are satisfied that he is experienced to give evidence in relation to what is required by a veterinary surgeon in treating sporting and racing horses.

[145] Dr Clarke, in giving his evidence about the use of Bute Paste, accepted when questioned that Bute Paste should be applied to a horse that exhibits 'some need' for the drug. Dr Clarke stated, 'Yeah. Or has had some previous history of joint or lameness issues...depending on what the problem might be...'.[188] Dr Clarke accepted when questioned that there needs to be a problem present in the horse or to have been a problem present or a history.[189] When asked if he endorsed the view that it should be used 'as some sort of prophylactic', Dr Clarke said 'No.'[190]

[146] In relation to treating horses with phenylbutazone, Dr Clarke accepted when questioned that the drug is not a 'prophylactic' and is not a 'herd health driven medication'.[191] Dr Clarke also accepted when questioned that he would examine a horse before he would administer or prescribe the use of phenylbutazone.[192]

[147] We accept Dr van Eps' evidence and find that treating a number of horses with the same dose of phenylbutazone on an ongoing basis for one month is not good practice. We accept Dr van Eps' evidence that before treating a horse with phenylbutazone an examination of each horse to be treated is required. We also accept Dr van Eps' evidence that there are side effects that must be considered in relation to this drug. We also accept his evidence that an animal treated with phenylbutazone for weeks or months requires monitoring with blood parameters and clinical evaluation.

[148] Dr Griffin says that pursuant to s 180(1)(c) of the Health (D&P) Regs, as a matter of law, he was authorised to dispense Bute Paste in the instances alleged if 'reasonably satisfied that the animal he was treating needs a restricted drug [Bute Paste] for a therapeutic use'.[193] Dr Griffin says he relied on his experience of the autopsies he conducted (in Macau) and his experience as a racehorse veterinarian.[194] He also says that based on the evidence his satisfaction was reasonable and the drug was dispensed for the therapeutic purpose of preventing accumulation of damage from inflammation.[195]

[149] Dr Griffin gave oral evidence at the hearing about treating horses at the property. He stated that he would attend Craig Martin's stables every month as part of his 'normal circuit' when he stopped at Tamworth Racecourse.[196] Dr Griffin would be at the property for 'anywhere' between 30 minutes to an hour and a half.[197] Dr Griffin stated that he has had a relationship with the stables for approximately 7 or 8 years.[198]

[150] Dr Griffin stated that he would 'examine some horses there,' later referring to horses 'in the stables' and 'other horses'.[199] He stated that there are horses coming into training, older horses racing, and younger horses racing.[200] The trainer has approximately 30 horses and Dr Griffin would 'see' between 10 and 20 horses.

[151] Dr Griffin gave oral evidence about his examination of the horses 'when they came back from the track' referring to assessing them (the horses) 'for any sign of lameness'. He stated that he would go 'back into the box' when the horse is put there and examine the horse with his hands. The relevant extract from the transcript is as follows:

...And then what I would normally do is go back into the box when the horse is put there and I would be running my hands down their legs to find out if there were any swelling or any heat or any signs of any muscle soreness.[201]

[152] Dr Griffin stated that he treated horses at the property referred to as 'on the young side... so that we know that they're going to be sustaining those injuries' and older horses that do have injuries.[202] The relevant extract from the transcript is as follows:

...What we'd normally do is identify those horses that are either on the young side, so that we know that they're going to be sustaining those injuries and adapting to young new training regimes, and also the older horses that do have injuries.[203]

[153] Dr Griffin gave evidence about the 'signs of inflammation'[204] and stated that he examined the horses when he went to the stables, dispensed the Bute Paste for the treatment of inflammation and soreness and was aware of the side effects of toxicity.[205] Dr Griffin stated that 'sign[s] of inflammation in a horse... [include] heat, redness, soreness and normally limited limb movement.'[206]

[154] Dr Griffin stated that not just 'anyone' can administer the Bute Paste, rather referring to a 'dedicated person, or trainer' to administer it, and the requirements (of horseracing) to record medications administered.[207]

[155] Dr Griffin stated that the drug Bute Paste is administered by syringe 'by the trainer or the person in charge' by drawing up 5 mls of the paste from the 1 kilogram container and administering it to the horse after 'they've worked'.[208] Dr Griffin stated that there has been no instances of 'toxicity or adverse outcome for a horse' at the stables.[209]

[156] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Bute Paste for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and monitoring of each horse was limited.

[157] The evidence shows that the drug Bute Paste can have potentially adverse effects on horses. This is not disputed by Dr Griffin. During cross-examination, Dr Griffin gave evidence about the potential adverse effects of phenylbutazone referring to the stomach and kidney (as being possibly affected). In particular, Dr Griffin stated it (phenylbutazone) can cause ulceration of the stomach lining and large intestines and it can present kidney problems.[210] Dr Griffin also accepted, during cross-examination, that horses of different weights and of different gender are not going to respond the same way to the same dose of phenylbutazone.[211]

[158] Dr Griffin accepted when questioned that it is his opinion that all horses in training should be treated with anti-inflammatory (drugs).[212] Dr Griffin also accepted when questioned that phenylbutazone can mask lameness but stated it is more to do with the 'actual dosage'.[213]

[159] We have found that because there is a risk of adverse effects in using the drug Bute Paste, an examination and monitoring of each horse to be treated is necessary. We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation. We have also found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system.

[160] The evidence shows that Dr Griffin's decision to treat was based on his experience of the autopsies that he has conducted and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he had physically examined and monitored each horse where there is clinical justification and documentation.

[161] During cross-examination, Dr Griffin gave evidence about his 'view' in relation to the use of phenylbutazone for horses in training. Dr Griffin was cross-examined about whether he believed all horses should have 'butazone' because it allows horses (as reflected in Dr Griffin's response[214]) to 'reach faster speeds in their next stage of training 'free from the minor aches and pains associated with changes in grades of exercise before racing'.[215] Dr Griffin stated 'that's what I believe' and referred to his experience in Macau and his experience with horses that he says has shown to him that over a period of time (horses) 'suffer cumulative damage'.[216]

[162] Dr Griffin stated that the horses to be treated were 'in the stable at the time'.[217] Dr Griffin's initial oral evidence was that out of a stable of 20 horses, he prescribed the 2 kilos of Bute Paste for 'approximately 10' horses.[218] During cross-examination, Dr Griffin was questioned about his affidavit dated 31 October 2015, in which he stated it was prescribed for 20 horses. Dr Griffin accepted when questioned that the drug was dispensed for 20 horses.[219] The relevant extract from the transcript is as follows:

So in 2014 you thought it was for 20 horses for a month?---That's correct.

But you just said a moment ago it was for 10?---It was for 10. Yes, that's what I recall.

Well... having seen the two, which do you think it was?---It was the 20 horses, that is- - -

It was for 20?---The 20 horses that... were in the stable, yes.[220]

[163] Dr Griffin identified 5 horses that would have been treated with Bute Paste and accepted during cross-examination that he was unable to identify (from his notes) which 'other horses' were going to be treated with Bute Paste.[221] Dr Griffin stated that at each visit to the stables he examined horses 'coming in and out of the stables as well as the ones that are in the stables'.[222] Dr Griffin stated that he examined the horses every month. When questioned about the notes kept by him as to how the horses responded to the Bute Paste Dr Griffin stated that he kept other notes and had requested Queensland Health return 'a lot of documents' but there were many documents missing.[223]

[164] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and monitor each horse with blood parameters and clinical evaluation. We find that an individual examination and monitoring of each horse to be treated based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of Bute Paste is to be administered by either the trainer or owner to different horses and the drug has potential adverse effects on the horses treated.

[165] We find that in the absence of an individual examination and monitoring of each horse with blood parameters and clinical evaluation, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and monitor each horse.

[166] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 28 September 2010 Dr Griffin supplied '2 x 1 kg' of Bute Paste for use on 15 to 20 horses in training for no legitimate therapeutic purpose.

[167] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[168] We have found that it is not good practice to treat a number of horses with the same dose of phenylbutazone on an ongoing basis and that there are potential adverse effects that must be considered with this drug. In this matter, Dr Griffin supplied '2 x 1kg' of Bute Paste that contains the active ingredient phenylbutazone for use on horses in training for the same symptoms and with the same dose of drug for each horse. Dr Griffin supplied the drug to a client to be administered by the trainer or owner of the property in circumstances where he did not adequately examine and monitor with blood parameters and clinical evaluation each horse treated with the drug. We find that for allegation 4.6, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.8 - P. Healy's Property?

[169] Dr Griffin admits that on 11 November 2011 he supplied '2 x 1 kg' of Nitrotain (an anabolic steroid) for a certain number of horses in training for 'tissue repair and live weight gain'.[224] Nitrotain is an oral anabolic steroid (paste).[225]

[170] Dr Griffin states in his affidavit that for all of the anabolic steroid drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[226] Dr Griffin stated that the medication Nitrotain was administered for 'appetite stimulation and weight gain'.[227]

[171] Dr Griffin stated in his affidavit about the horses treated that he examined the horses before dispensing the drug and recorded the note 'horses in training.' [228] Dr Griffin stated that he had visited the stables 'over a number of visits' and had examined the feed, vaccination and worming status and dental care of the stable.[229]

[172] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drug was necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[230]

[173] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[174] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not to treat in a blanket fashion.

[175] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[231]

[176] Dr Griffin gave oral evidence at the hearing about his treatment of the horses summarised as follows:[232]

1. P. Healy has approximately 20 horses in work in his stables in Mornington, Victoria. Dr Griffin would visit the stables monthly for 'probably' a two year period;

2. The horses were assessed for losing their appetite while in training. Nitrotain 'seems to be quite a good drug to satisfy that requirement';

3. Nitrotain paste needs to be transformed by the liver because it becomes an active anabolic and 'it is quite easy for a trainer to administer to a horse on a daily basis and the Nitrotain is basically to maintain the horses' muscle condition, also to maintain appetite';

4. Dr Griffin assessed the 10 horses in the stable that 'required that drug and that was the reason for dispensing' the '2 x 1kg' Nitrotain tubs;

[177] When questioned about why the 10 horses' names are not 'listed out' on documentation, Dr Griffin stated:

Because upon examination of the horses, there was...no significant finding with the horses meaning that there wasn't a particular injury with any of those horses to be treating differently'.[233]

[178] Dr Griffin accepted that his records were 'in this respect' deficient.[234]

[179] Dr Griffin stated that he did not administer the drug to the horses.[235] The drug is administered in an either 4 or 5 ml or gram dose given by syringes over the tongue, 'normally... after a horse has worked'.[236] There are 250 doses (of the drug) in 1 kilo so there were a total of 500 doses (for 10 horses) for a total of 50 days (left at the property).

[180] Dr Griffin stated that he was only one of a number of three or four 'vets' who attended the stable. The trainer would only buy the drug when he could afford it. Dr Griffin stated 'so if I went back next month and tried to dispense him another one kilo, those horses would be missing their medication because he wouldn't be able to afford it'.[237]

[181] In relation to the therapeutic need identified, Dr Griffin referred to the horses in work and stated that was their loss of appetite and because of this the horses decrease their nutritional intake and that intake decreases muscle tissue. The therapeutic purpose of Nitrotain was to prevent tissue loss by promoting their appetite or stopping or preventing their appetite from being decreased.[238]

[182] Dr Griffin received information from the trainer (on his monthly visit) and stated '[t]hose horses were maintaining their appetite and that was the information the trainer would give back to me'.[239]

[183] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Nitrotain for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[184] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[185] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[186] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[240] Dr Griffin when questioned about his examination of the horses to be treated stated that the horses are under one stable roof 'so it's quite easy to walk from box to box to look at these horses'.[241] Dr Griffin stated that he did examine the horses but when questioned about his examination, he stated that to reassess the response of the horses (to the Nitrotain) 'would be quite difficult' because a few of the horses may have actually left the stable.[242]

[187] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up of treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of Nitrotain is to be administered by either the trainer or owner to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[188] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[189] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 11 November 2011 Dr Griffin supplied '2 x 1kg' of Nitrotain (paste) for no legitimate therapeutic purpose.

[190] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[191] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose drug without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin supplied '2 x 1kg' of Nitrotain for horses in training for the same symptoms and with the same dose of drug for each horse. Dr Griffin supplied the drug to be administered by the trainer or owner of the property, in circumstances where he did not adequately examine and follow up each horse treated and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 4.8, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.9 - N. Osbourne's Property?

[192] Dr Griffin admits that on 7 December 2011 he supplied '3 x 1 kg' of Nitrotain and the treatment was for 'tissue repair and live weight gain for between 100 and 200 horses on the property'.[243]

[193] Dr Griffin stated in his affidavit that for all of the anabolic steroid drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[244] Dr Griffin states that the medication Nitrotain was administered for 'appetite stimulation and weight gain'.[245]

[194] Dr Griffin stated the following in his affidavit about the horses treated:[246]

1. Of the 20 horses Dr Griffin had examined 17 (horses) on previous visits. The horses treated were horses in training;

2. On this visit Dr Griffin examined a further 3 horses and stated 'I had therefore examined all of these 20 horses before dispensing the drug';

3. The 3 kg of Nitrotain dispensed was on the basis of dosage per number of horses at 5ml per day for 20 horses for one month;

4. Dr Griffin regularly visits this 'breeding farm', which also trains racehorses. Upon each visit Dr Griffin examined the feed, vaccination and worming status and dental care of the stable;

5. The Nitrotain was dispensed for the purpose of tissue repair with the additional benefit of appetite stimulation and live weight gain.

[195] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drug was necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[247]

[196] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments

[197] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[198] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[248]

[199] Dr Griffin gave oral evidence at the hearing about his treatment of the horses.[249] Dr Griffin stated that the property (stables) is just outside Canberra. Dr Griffin stated that he spent between two to three hours at the property. He would discuss nutrition, walk into the stables, 'walk into the feed room', look at the horses that are in the stables, examine the racehorses first and then go to the 'stud side of things' and look at the yearlings and the foals and '[see] how their nutritional status is'.[250] Dr Griffin stated that he did not physically examine between 100 and 200 horses.[251]

[200] Dr Griffin stated that the horses to be treated were in training. He dispensed Nitrotain two months before that and referred to getting the horses ready for sales. Dr Griffin stated:

...these are the preparation for yearlings horses over that time is to get them ready for sales that occur from January- which is the Magic Millions time through to Easter time which is what this stud prepares their horses for.[252]

[201] Dr Griffin stated that there was a further follow-up of 1 kilogram Nitrotain two months later. Dr Griffin stated 'so after that time the three kilos of [Nitrotain] paste would have run out.'[253]

[202] Dr Griffin accepted when questioned that the note made for the 7 December 2011 visit 'was deficient as to the horses' that he expected to be treated with the Nitrotain that he dispensed.[254]

[203] In relation to the therapeutic need assessed Dr Griffin referred to the horses having increased the amount of work 'to take them to the sales then that stress that's put on them is the reason for the Nitrotain being dispensed for them [the horses]'.[255]

[204] Dr Griffin stated that he was only treating the 20 yearlings (not between 100 and 200 horses). He 'would have recommended' 4 mls (dose for the 20 horses) which is 250 doses for one kilo which is 750 doses (total) for 20 horses which is 'about thirty seven and a half days'.[256] Dr Griffin physically assessed each of the 20 horses, stating 'because the yearlings are being prepared for the sales, the owner actually gets me to look over those horses ...to ensure that any injuries or bumps are treated before they go to the sales'.[257]

[205] Dr Griffin stated that the therapeutic purpose for the Nitrotain is to 'prevent that [lack of appetite]'. In relation to how he 'arrived at' a therapeutic purpose when questioned, Dr Griffin stated:

...because they've had that change in environment, going from exercise to no exercise, it's quite common for them to lose their appetite. When you're on these properties out there, one of the things that's very, very common in Australia grains where the grain is imported from farms and fed to horses on the property and especially Nitrotain does seems to assist those horses in putting on bone mass as well as muscle mass that can be assessed in the size of a horse over a period of time.[258]

[206] Dr Griffin relies on the client to let him know what 'he has a particular problem with, whether it's a particular yearling that's not eating or a particular horse...that might require treatment'.[259]

[207] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Nitrotain for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[208] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[209] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[210] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[260] Dr Griffin stated when questioned about his treatment of the horses that he had seen them over a period of time.[261] Dr Griffin when questioned accepted that the owners of the horses want them 'best presented' for sale.[262] Dr Griffin was questioned about whether he knows when he inspects the horses that they are going to the sales. Dr Griffin stated that the property is a commercial property and referred to horses being sold and being brought home to race.

[211] During cross-examination, Dr Griffin stated that he has seen the 20 horses treated since they were foals.[263] He stated that he has treated the 20 horses prior to this with anabolic steroids. Dr Griffin stated when questioned that he would treat most of the yearlings there and sometimes they (the property owners) do not know until they go to the sales as to whether the horses are being sold or not. When questioned about whether he needs to treat all of the horses on the possibility they (the horses) will be sold, Dr Griffin stated:

Well, on the possibility. On-on the premise of they're actually undergoing that exercise regime that they've never been before.[264]

[212] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of Nitrotain is to be administered by either the trainer or owner to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[213] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[214] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 7 December 2011 Dr Griffin supplied '3 x 1kg' of Nitrotain for between 100 and 200 horses for no legitimate therapeutic purpose.

[215] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[216] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin supplied '3 x 1kg' of Nitrotain for horses in training for the same symptoms and with the same dose of drug for each horse. Dr Griffin supplied the drug to be administered by the trainer or owner of the property, in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 4.9, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.14 (same as 6.18) - W. Lawson's Property?

[217] Dr Griffin admits that on 2 July 2012 he supplied '1 x 500g' of Bute Paste to be used as an anti-inflammatory for horses in training for the first 6 to 8 weeks of preparation to 'encourage mental improvement to their attitude [in] exercise'. [265]

[218] In his affidavit Dr Griffin stated that the therapeutic purpose for the use of Bute Paste is as an anti-inflammatory drug and relies on his response given in relation to allegation 4.6.[266] Dr Griffin stated that he examined the two horses treated before dispensing the drug and the note recorded by him was 'horses in training'. Dr Griffin stated in his affidavit that 'It is my experience that treatment of inflammatory pain has a therapeutic purpose of improving behaviour in horses. The horses were 'Snitzel colt' and 'Star Fonte''.[267]

[219] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drug was necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[268]

[220] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis.

[221] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[222] We have made findings about the expert evidence in relation to allegation 4.6 and the use of phenylbutazone and Bute Paste. We have found that based on Dr van Eps' evidence, when treating horses with the same dose of phenylbutazone on an ongoing basis for one month is not good practice.

[223] In relation to allegation 4.6, we have accepted Dr van Eps' evidence that before treating a horse with phenylbutazone an examination of the horse is required. We have also accepted Dr van Eps' evidence that there are side effects that have to be considered in relation to this drug. We accepted his evidence that an animal treated with phenylbutazone for weeks or months requires monitoring with blood parameters and clinical evaluation. We adopt the findings made in allegation 4.6 in relation to Dr van Eps' evidence about the use of phenylbutazone and Bute Paste as findings made for this allegation.

[224] Dr Griffin says that pursuant to s 180(1)(c) of the Health (D&P) Regs, as a matter of law, he was authorised to dispense Bute Paste in the instances alleged if 'reasonably satisfied that the animal he was treating needs a restricted drug [Bute Paste] for a therapeutic use'.[269] Dr Griffin says he relied on his experience of the autopsies he conducted and his experience as a racehorse veterinarian.[270] He also says that based on the evidence his satisfaction was reasonable and the drug was dispensed for the therapeutic purpose of preventing accumulation of damage from inflammation.[271]

[225] Dr Griffin gave oral evidence at the hearing about his treatment of horses at the property. He stated that W. Larson is a trainer who has a property in Grafton. There are between 4 and 6 horses on that property.[272]

[226] Dr Griffin stated that he recorded certain treatment for the horses and dispensed 500 grams of Bute Paste for the horses in training and also injected 2 horses with testosterone or Testoprop and Stanazol.[273] He explained that in his notes 'Testo B is a shorthand for' testosterone and Stanazol.[274] The 2 horses on the property at the time were being trained and there were 2 horses going out and 2 horses had just come into training. For the 2 horses coming into work the horses have been spelling 'for a while you've got the change of environment' (from the paddock coming into the stables) and this is a reason why the horses will lose their appetite.[275]

[227] Dr Griffin stated that the Bute Paste 'was intended to deal with those horses [that] come into work to minimise any inflammation that occurs'.[276] In relation to how the quantity was 'arrived at', Dr Griffin stated:

...we take 5 grams of Bute Paste being recommended by me to the trainer for Monday to Friday, you will find there is 25 grams. There'd be - 10 weeks' worth was 250 grams for two horses...so all four horses would have been on the Bute Paste for that period of time. So the total amount of that Bute [paste] was dispensed for would've been close to 60 days.[277]

[228] Dr Griffin stated that he would spend approximately half an hour at the stables and would visit the stables once per month and has had a relationship with the stables for 'close to 10 years'.[278] He stated

[the property owner] would be quite reluctant to use the local vet, but in an emergency, he would be the only vet that he would use. I wouldn't be the only vet outside of Grafton that he'd seek any information from.[279]

[229] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Bute Paste for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and monitoring of each horse to be treated was limited.

[230] The evidence shows that the drug Bute Paste has potential adverse effects on horses treated with that drug. This is not disputed by Dr Griffin.

[231] During cross-examination, Dr Griffin gave evidence about the potential adverse effects of phenylbutazone referring to the stomach and kidney (as being possibly affected). In particular, Dr Griffin stated it (phenylbutazone) can cause ulceration of the stomach lining and large intestines and it can present kidney problems.[280] Dr Griffin also accepted, during cross-examination, that horses of different weights and of different gender are not going to respond the same way to the same dose of phenylbutazone.[281]

[232] Dr Griffin also accepted when questioned that it is his opinion that all horses in training should be treated with anti-inflammatory (drugs).[282] Dr Griffin also accepted when questioned that phenylbutazone can mask lameness but stated it is more to do with the 'actual dosage'.[283]

[233] We have found that because there is a risk of adverse effects in using the drug Bute Paste, an examination and monitoring of each horse to be treated is necessary. We have also found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have also found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system.

[234] The evidence shows that Dr Griffin's decision to treat was based on his experience of the autopsies that he has conducted (in Macau) and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[235] During cross-examination, Dr Griffin was questioned about whether he examined the 2 horses to be treated with Bute Paste previously. Dr Griffin stated 'Yes, I had'.[284] When questioned about the notes he had taken from that previous visit, Dr Griffin stated:

The note said that I'd examined the horse...that there was no physical problem found with that horse at the time.[285]

[236] When questioned about why the horses were getting Bute Paste Dr Griffin stated:

Knowing that these horses had come into training and were susceptible to that cumulative damage, and also the damage to muscle tissue. That inflammation is just something that I think should be relieved to relieve the inflammation from the horse and prevent that inflammation being a problem.[286]

[237] During cross-examination, Dr Griffin gave oral evidence about his 'view' in relation to the use of phenylbutazone for horses in training. Dr Griffin was cross-examined about whether he believed all horses should have 'butazone' because it allows horses (as reflected in Dr Griffin's response[287]) to 'reach faster speeds in their next stage of training 'free from the minor aches and pains associated with changes in grades of exercise before racing'.[288] Dr Griffin stated 'that's what I believe' and referred to his experience in Macau and his experience with horses that he says has shown to him that over a period of time (horses) 'suffer cumulative damage'.[289]

[238] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and monitor each horse with blood parameters and clinical evaluation. We find that an individual examination and monitoring of each horse to be treated based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of Bute Paste is to be administered by either the trainer or owner to different horses and the drug has potential adverse effects.

[239] We find that in the absence of an individual examination and monitoring of each horse with blood parameters and clinical evaluation, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse treated did in fact need treatment because he did not adequately examine and monitor each horse.

[240] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 2 July 2012 Dr Griffin supplied '1 x 500g' of Bute Paste to be used as an anti-inflammatory for horses in training for no legitimate therapeutic purpose.

[241] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[242] We have found that it is not good practice to treat a number of horses with the same dose of phenylbutazone on an ongoing basis and that there are side effects that must be considered with this drug. In this matter, Dr Griffin supplied '1 x 500g' of Bute Paste that contains the active ingredient phenylbutazone for use on horses in training for the same symptoms and with the same dose of drug for each horse. Dr Griffin supplied the drug to be administered by the trainer or owner of the property, in circumstances where he did not adequately examine and monitor with blood parameters and clinical evaluation each horse treated with the drug. We find that for allegation 4.14, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 5.6 (same as 6.17) - T. Gollan's Property?

[243] Dr Griffin admits that on 26 June 2012 he administered Testosterone Suspension and Stanazol to 20 horses. Dr Griffin states that the drugs were administered for the purpose of an 'appetite stimulant and for tissue repair'.[290]

[244] In his affidavit, Dr Griffin stated that the 20 horses treated were coming into a 'conditioning phase of their preparation'.[291] The combination of anabolic steroids was administered to these horses for the purpose of appetite stimulation to address loss of appetite 'with increasing workload and tissue damage from training'.[292]

[245] Dr Griffin stated that the trainer has over 100 horses (at work[293]) and maintains a large racing population and has many horses 'pre-trained' (meaning exercising up to race speeds) at a property near Toowoomba.[294]

[246] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, he was not and could not have been reasonably satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine each horse.[295]

[247] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[248] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[249] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[296]

[250] Dr Griffin gave oral evidence at the hearing about his treatment of the horses.[297] Dr Griffin listed the names of the 20 horses injected (by him) in his 'Spirax' (notebook). Dr Griffin stated that he would visit the stables in Toowoomba once per month and would spend 'between 1 and 2 hours' and has been going to 'Toowoomba' (stables) for 'close to 10 years'.[298]

[251] In relation to the horses treated Dr Griffin stated that the horses come into the stables and each horse has a stable number so that 'you can find that horse in the stables'.[299] Dr Griffin stated that the horses treated were coming from a spelling place which was:

...normally open-aired into an area where they're completely stabled and walled off from each other, they undergo a fair bit of stress, plus you've got the introduction into training and exercising where they can lose their appetite quite commonly, and that can be due to a lot of different environmental stressors.[300]

[252] Dr Griffin stated that the 20 horses were injected with two 10 ml syringes into each individual horse and he physically assessed each horse. Dr Griffin stated that the therapeutic need assessed was based on that change of environment and the change of exercise levels. The therapeutic purpose in dispensing both of the drugs was, as stated:

...to prevent them from losing their appetites and when horses do go into work, their bone metabolism increases quite sharply and the anabolic steroids appear to help that issue or modify that issue as well.[301]

[253] When questioned about whether his notes were deficient, Dr Griffin stated:

I've probably left off examination...or the result of the examination as no significant finding...these horses have just come out of the paddock and there were no issues involved with them.[302]

[254] Dr Griffin stated that he should have recorded (in his notes) 'there was no significant finding from my examination'.[303] Dr Griffin stated that the horses were identified (to Dr Griffin) 'from the board and from Darryl Gollan'.[304] The barn held close to 40 horses and there were other stables (with horses) nearby. Dr Griffin stated that there were 'anywhere between 40 and 60 horses on this property'.[305]

[255] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drugs for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[256] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[257] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian particularly in relation to the 'stressors' and other issues that may present with racehorses. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[258] In relation to the horses to be treated, Dr Griffin stated that the horses (being 20 horses) had just come (in the last two weeks) into the stables and were entering training. He stated that he assessed the nature of the nutrition available at the stable.

[259] Dr Griffin was questioned about what 'no significant finding' meant in relation to the horses, and he stated that it meant that the horses 'weren't sick'.[306] Dr Griffin described the stressors which were indicating factors for administering anabolic steroids in horses moving from spelling in a paddock to stables as including separation from other horses, noise levels and lower exercise.[307] Dr Griffin stated that approaching storms and associated noise also warranted administering steroids.[308]

[260] Dr Griffin was questioned about his follow-up of the 20 horses that he saw at the Gollan's property. Dr Griffin stated that the horses are in the stables for about a month before they are pre-trained. He stated that he would see the horses at the Eagle Farm racetrack regularly. He also stated that the horses had another 'vet' that looks after the stable operation.[309]

[261] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[310]

[262] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up each horse on the outcomes of treatment. We find that an individual examination and follow up treatment based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of drug is being administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[263] We find that in the absence of an individual examination and follow up of each horse, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[264] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 26 June 2012 Dr Griffin administered Testosterone Suspension and Stanazol to 20 horses in circumstances where he did not or could not adequately establish a legitimate therapeutic need for the drugs. We find that for allegation 5.6 Dr Griffin administered restricted drugs for which there was no legitimate therapeutic need for the drugs.

[265] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[266] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered Testosterone Suspension and Stanazol to 20 horses for the same symptoms, in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 5.6, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 6.1 - Tomorrows Stud Farm?

[267] Dr Griffin admits that on 19 April 2011 he administered Stanazol (an anabolic steroid) to 28 horses. He personally injected each horse on the property.[311]

[268] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine each horse.

[269] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[270] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[271] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[312]

[272] In summary, Dr Griffin's evidence is that he treated the horses to retain minerals lost in the horse's feed and to increase the horse's weight gain.[313] Dr Griffin states that his treatment was based on his knowledge of the property and his close relationship with the property that he visited monthly. Dr Griffin refers to the location of the property being on a river with high rain fall and soil tests and testing of feed in that area that show, as stated, 'leaching of the soils'.[314] Dr Griffin refers to a deficiency (in minerals) in the quality of grain contained in the horses' feed.[315]

[273] Dr Griffin's evidence about the nature of the property and its 'deficiency' is relevant to his evidence about why he administered the drugs. Tomorrows Stud Farm is located between Coffs Harbour and Grafton in New South Wales. Approximately 60 to 80 horses reside on the property. Dr Griffin stated that the drugs were administered for 'live weight gain'.[316] Dr Griffin stated in his affidavit that for all of the anabolic steroid drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[317]

[274] Dr Griffin stated in his affidavit that the 'outcomes' were improved weight gain and condition of the horses he examined. Dr Griffin stated that the property also had brood mares and stallions that were not given anabolic steroids.[318] In relation to the 'different effects of each drug', Dr Griffin stated that his written records (that he admits are 'brief') contain 'sufficient information' for him to 'know and state the therapeutic purpose for the drugs' administered and to 'know and create a record in each case with all of the information required to be recorded by law'.[319]

[275] Dr Griffin gave oral evidence that the therapeutic purpose of the Stanazol administered was to 'allow those horses to utilise their feed that they get to use the minerals that the grains [from] the ground [are] lacking'.[320] He stated that Stanazol was given to 'modify a physiological process' to retain the minerals. For the yearling horses treated, Dr Griffin stated that the therapeutic purpose assessed was to increase the nitrogen and other minerals which 'promotes muscle growth as well as bone growth and...live weight gain', which was necessitated by the 'lack of minerals that are involved in their feed'.[321]

[276] For the spelling horses treated, Dr Griffin stated at the hearing that the horses run in different paddocks and the property is lacking the same minerals. He stated that Stanazol is given to promote their physiology to be able to, as stated, 'stop nitrogen being lost because they're not in work and on a high plain of feed and also retain the minerals that are necessary for bone growth and bone development'.[322] Dr Griffin also gave evidence about the benefits of giving a dose of 10 mls as compared to a dose of 5 mls stating that 10 mls is 'more effective'.[323]

[277] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse treated by him required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and his examination and evaluation of each horse was limited.

[278] Dr Griffin identified the therapeutic purpose or use as utilising feed, retaining minerals and to promote the horse's muscle growth. It is Dr Griffin's evidence that his relationship with the property spans 10 years and he has personal knowledge of the property because he has had his own horses at the property.

[279] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[280] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[281] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[324]

[282] Dr Griffin's evidence is that he did assess the horses treated according to their place in the natural 'hierarchy'. Dr Griffin stated that he was provided with a list of the horse's names on the property; and he 'physically assessed' the horses in a 'group'. Dr Griffin gave oral evidence about his assessment of the horses (spellers) to be injected and stated:

...we're comparing the horses that are running together. These...even though they're spelling horses, they're running together- they're not separated into different paddocks - so we compare the horses with other horses that are running in the paddock to see what our baseline or our top level of the hierarchy is and then we can medicate the horses that we need to catch up to those other horses.[325]

[283] Dr Griffin stated that the horses to be injected were 'run' into a holding area 'where we catch the horses and more closely assess what needs to be done'.[326] The horses are 'already' separated into their sexes. Dr Griffin stated that he can 'see that horses at a top level are better conditioned [than] the ones that just don't get enough, or as much, feed as the others' (referred to as the 'natural hierarchy amongst horses').[327]

[284] Dr Griffin gave evidence that the yearlings were treated according to their place in the 'natural hierarchy' to enable the 'ones that are lower down...to catch up'.[328]

[285] At the hearing Dr Griffin stated that he would spend an afternoon with the horses and after treating the horses 'would be sitting on the balcony having a beer and actually watching all the horses in the paddocks and actually observing their behaviour as well as the results of any treatment that we've given'.[329] Dr Griffin stated that he wrote the anabolic register after he had injected the 28 horses with Stanazol.

[286] Dr Griffin was questioned about his examination of the horses treated. Dr Griffin stated that 'normally, [he] would... not [be] examining every single horse on the property because there's stallions there' and stated 'I examine the stallions over time when they've had a problem'.[330] He stated that he is there 'month in, month out, assessing the condition of those horses'.[331]

[287] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[288] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[289] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 19 April 2011 Dr Griffin administered Stanazol to 28 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[290] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[291] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 28 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.1, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.2, 6.4 and 6.8 - A. Eggleston's property?

[292] Dr Griffin admits that he administered various drugs by syringe into the muscle of each horse treated.[332] It is common ground that the drugs Deca 50 (for allegation 6.2), Filybol (for allegation 6.4) and Stanazol (for allegation 6.8) are anabolic steroids.

[293] For each of the allegations to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine the horses.

[294] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[295] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[296] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[333]

[297] In summary, it is Dr Griffin's evidence that he would visit the property every month as part of an on-going treatment of the horses. Dr Griffin's treatment was based on his knowledge of the property including a problem with the property due to the type of grass growing known as Kikuyu grass because the grass contains high levels of oxalates.[334] Dr Griffin treated horses identified by the owner[335] to help calcium retention.[336]

[298] Dr Griffin states in his affidavit that for all of the drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[337]

[299] In relation to the 'different effects of each drug' Dr Griffin states in his affidavit that his written records (which he admits are 'brief') contain 'sufficient information' for him to 'know and state the therapeutic purpose for the drugs' administered and to 'know and create a record in each case with all of the information required to be recorded by law'.[338]

[300] At the hearing Dr Griffin gave oral evidence about his treatment of horses at A. Eggleston's property.[339] The property is 'large' and is in the middle of the Numinbah Valley. There are yearling and growing horses as well as brood mares and one stallion on the property. There are also spelling horses, both coming out of and going into training and approximately 60 to 80 horses on the property 'all the time'.[340]

[301] Dr Griffin stated that on the property, the foals and broad mares run together. The weanlings and yearlings are in two different paddocks. The colts and fillies are separated, as are the dry mares and the spelling horses. The property has '[a] problem' because it contains Kikuyu grass that is 'very high in oxalates' and the oxalates bind up the Calcium that is in the (horse's) diet and this will form 'complexes that are not absorbable by the horse'.[341] Dr Griffin stated that the combination of 'DCP' (Dicalcium Phosphate) added to the horse's feed with anabolic steroids 'help the calcium retention' which 'is going to help out bone development and live weight gain for [the] horses'.[342]

[302] In relation to his treatment of horses on the property, Dr Griffin stated that some horses 'cope a lot better than other horses' (with the deficiency in the grass).[343]

[303] Dr Griffin gave oral evidence about his 'physical assessment' of the horses and administration of the drugs when referring to allegation 6.2. His evidence was effectively repeated for allegations 6.4 and 6.8.[344] Dr Griffin stated that he compared the horses ('the physical difference'[345]) with the other horses in the same paddock referring to the 'herd hierarchy' or the horses that 'are better doers compared to the other ones'.[346]

[304] Dr Griffin stated that the horses that are 'lower down [the hierarchy which are] not getting as much feed' (are compared) with the horses in the paddock to 'see the difference in the size between those horses and the amount of muscle that they carry'.[347] Dr Griffin stated that the anabolic steroids are 'to try to achieve better live weight gain to catch up to those...other horses'.[348]

[305] For administration of the drugs, Dr Griffin administered the drug by syringe into the muscle of each horse. Dr Griffin stated 'we [Dr Griffin or the owner] can run the horses into... a small section of the paddock to be able to catch [the horses] and inject them'[349] (and when the horses are injected 'we're [Dr Griffin and the owner are] assessing them closer'[350]).[351]

• Allegation 6.2 - Deca 50

[306] Dr Griffin admits that on 21 May 2011 he personally injected Deca 50 to 27 horses. Dr Griffin states that the drug was to assist with appetite stimulation and muscle bulk gain prior to the horses entering training.[352] In his affidavit, Dr Griffin states that the outcomes were longer training and racing times and less training problems .[353]

[307] Dr Griffin gave oral evidence about allegation 6.2, summarised as follows:[354]

1. Deca 50 is oil based so it will last longer in the system and has an anabolic effect as well as an androgenic effect;

2. The anabolic effect will be the tissue building effect in the animal and the androgenic effect is really for the secondary sexual characteristics, 'why a male would tend to have heavier musculature or heavier bone development, which is the result of the anabolic steroids';

3. Dr Griffin visually assessed the horses and stated 'we visually assessed probably close to 60 horses on the property with only these 27 horses being treated';

4. Dr Griffin stayed on the property for approximately 4 to 5 hours 'normally' on a weekend starting on either Saturday or Sunday;

5. Dr Griffin relied on the advice or opinion of the owner 'more to the questions of nutrition' rather than the actual individual horses.

[308] At the hearing, Dr Griffin identified the names of the 27 horses from his notes and agreed (when questioned) that 'a lot' of the horses were spelling and yearling horses.

[309] For yearlings, Dr Griffin stated that Deca 50 is 'efficacious' to put their 'live weight gain on' referring to tissue or muscle gain which is the result of the nitrogen retention (of the anabolic steroids).[355] Dr Griffin stated:

One is the - the tissue, or muscle gain, which is the result of the nitrogen retention that that anabolic steroid...side of things works... on the mineral side of things, it's being incorporated into the bones for bone development and growth, which contributes with that muscle development for live weight gain.[356]

[310] For spelling horses Dr Griffin stated that the horses 'need some sort of help' with their nutrition stating 'so they don't [go] off their appetite'.[357] The feed is not as good 'coming into winter' in the Numinbah Valley.[358]

[311] Dr Griffin gave oral evidence about the 'therapeutic need' for the drug and stated that 'lack of calcium or apparent lack of calcium due to oxalates binding up what's...potentially there in the feed'.[359]

[312] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Deca 50 for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[313] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[314] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[315] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[360] Dr Griffin accepted when questioned that he assessed the horses as being the 'the good doers and the bad doers'.[361] Dr Griffin stated that he would describe his examination of the horses as 'clinical' and stated that he was 'assessing the horses in their overall physical condition'. Dr Griffin stated that he was not taking their temperature or listening to their chest and stated 'we're not looking at a sick horse'.[362] Dr Griffin stated that there is a whole range of different examinations that can be classed as clinical examinations. He stated that if he detects a horse has a joint problem, a tendon problem or something that needs further investigation then he will 'refer that to another vet'.[363]

[316] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[317] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[318] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 21 May 2011 Dr Griffin administered Deca 50 to 27 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[319] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[320] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 27 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.2, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.4 - Filybol

[321] For allegation 6.4, Dr Griffin admits that on 23 July 2011 he administered Filybol to 17 horses and says this was an on-going treatment.[364] In his affidavit Dr Griffin stated the outcomes were improved training and longer racing periods and less training problems.[365]

[322] At the hearing Dr Griffin gave oral evidence about allegation 6.4 summarised as follows:[366]

1. Filybol is an anabolic steroid that has minimal androgenic effect so 'we're more after a...live weight gain more from a muscle tissue or nitrogen retention side of things, rather than...the minerals';

2. The horses were spelling (not in work) and would be leaving the property to go into work. Some of the horses were yearlings;

3. Dr Griffin observed the horses 'at a distance' to begin a selection process and observed the horses 'close up' before injection;

4. Dr Griffin selected only 17 horses from 'perhaps' 60 horses that were running on the property and injected each of those individual (17) horses;

5. Dr Griffin stayed on the property for approximately four to five hours.

[323] Dr Griffin gave evidence about why the drug was 'indicated' on that particular date. Dr Griffin stated that because there is a couple of months 'between these injections' (at each time) he did not want to 'get into a situation' where there is 'residual [anabolic steroids]'.[367] Dr Griffin stated that he did not want there to be a residual effect of using the anabolic steroids 'each time, so that once it moves out of their system [he] hasn't got to worry about that horse going into work later on...and actually coming back with a positive swab'.[368]

[324] At the hearing, Dr Griffin identified the names of the 17 horses from his notes and agreed (when questioned) that 'a lot' of the horses were spellers and yearlings.

[325] For the yearlings, Dr Griffin stated that the therapeutic purpose of the drug was for the nitrogen retention to 'modify that...physiological process...to help them gain...weight that they weren't gaining at the same rate as the other horses in that paddock'.[369]

[326] For the spellers, Dr Griffin stated that the therapeutic purpose is 'a fair bit to do with tissue injury, so we've got the tissue repair side of the anabolic steroids. And it's always been quite common to use anabolic steroids in a situation where you do have tissue injuries, as it seems to be a repair mechanism'.[370]

[327] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Filybol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[328] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[329] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[330] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[371] Dr Griffin gave evidence about his examination of the horses when questioned. He stated that the horses would have been in three different paddocks, not all running together.[372] Dr Griffin stated that he relied on the advice given to him by the trainer and stated 'he's identifying the horses for me'. Dr Griffin stated that he is looking at the group of horses, and is able to identify them properly 'as we get them into a smaller area... and have a closer look before injecting them'.[373]

[331] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[332] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[333] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 23 July 2011 Dr Griffin administered Filybol to 17 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[334] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[335] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 17 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.4, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.8 - Stanazol

[336] For allegation 6.8, Dr Griffin admits that on 15 September 2011 he administered Stanazol to 27 horses and says this was an on-going treatment.[374] In his affidavit, Dr Griffin states the outcomes were improved training and longer racing periods and less training problems.[375]

[337] At the hearing Dr Griffin gave oral evidence about allegation 6.8 summarised as follows:[376]

1. Stanazol was used for both its anabolic and androgenic effects on the horses. The anabolic effect being the nitrogen retention and increase in muscle tissue;

2. The horses treated were both spelling horses and yearlings.

[338] At the hearing, Dr Griffin stated the spelling horses were having a recovery from any injuries 'they might have sustained during their racing careers, or racing and training'.[377] For the yearlings, Dr Griffin stated the drugs were to assist with the lack of Calcium (mineral retention) due to the Kikuyu grass on the property and 'those things contributed to the lightweight gain in the young horses'.[378]

[339] Dr Griffin stated that the therapeutic need (assessed) for the young horses (yearlings) was (with their growing potential) 'that lack of calcium that's in their diet'.[379] For the spelling horses, Dr Griffin stated that it 'is more for that tissue injury, as well as trying to get them to put weight on before they go into the training situation where that in appetence [sic] and that comes into play and they may lose weight'.[380]

[340] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[341] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[342] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[343] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[381] Dr Griffin accepted when questioned that in relation to treatment of the horses he is 'looking to prevent things developing, not to address things that have developed'.[382]

[344] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[345] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[346] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 15 September 2011 Dr Griffin administered Stanazol to 27 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[347] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[348] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 27 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.8, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.3, 6.5, 6.10, 6.12, 6.14, 6.15 (same as 6.16), 6.19 (same as 6.20) - Allandale Stud Farm?

[349] Dr Griffin admits that he administered various drugs by syringe into the muscle of each horse treated.[383] It is common ground that the drugs Stanazol,[384] Deca 50,[385] Anadiol[386] and Filybol[387] are anabolic steroids.

[350] For each of the allegations to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine the horses.

[351] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[352] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not to treat in a blanket fashion.

[353] Dr van Eps also gave evidence at the hearing about Dr Griffin's treatment of horses at Allandale. Dr van Eps was questioned about whether it would be appropriate to treat horses for lack of live weight gain over the years with the same regime if you continued to see the problem each time you went there.[388] Dr van Eps stated 'No'. Dr van Eps stated that you would do some baseline evaluations referring to nutrition and routine management practices and then monitor for a follow-up. When questioned about whether it was good practice to maintain treatment, Dr van Eps stated 'No'.[389] We accept Dr van Eps' evidence about Dr Griffin's treatment of horses at this property.

[354] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[390]

[355] In summary, it is Dr Griffin's evidence that he treated horses based on his knowledge of the property and the issues identified with the soil on the property. Dr Griffin visited the property every month and the owner of the property would provide him with a computer-generated list containing names of all of the horses.

[356] Dr Griffin stated in his affidavit that for all of the drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[391]

[357] In relation to the 'different effects of each drug' Dr Griffin stated in his affidavit that his written records (which he admits are 'brief') contain 'sufficient information' for him to 'know and state the therapeutic purpose for the drugs' administered and to 'know and create a record in each case with all of the information required to be recorded by law'.[392]

[358] At the hearing Dr Griffin gave oral evidence about his treatment of horses at Allandale Stud Farm that is situated at Hobbys Yards, New South Wales about half an hour drive out of Bathurst going South towards Goulburn.[393] Dr Griffin stated that approximately 200 horses run on the farm, that it is known as a stud farm and that the owners would spell their own horses (approximately 8 to 10 spelling horses) at any one time. There is a 'combination' of horses on the property meaning, the owners 'breed and a gist' (look after them on their own property) and some of the horses (yearlings) have been bred on another property.[394]

[359] Dr Griffin gave evidence about his treatment of the horses that was based on a computer-generated list containing the names of all of the horses. The computer-generated list of names was the source of information for Dr Griffin's 'register'. Dr Griffin visited the property every month and would stay on the property (during his visit) 'anywhere from 3 to 5 hours'[395] (except in relation to allegation 6.19 and 6.20 when Dr Griffin stayed approximately two hours).[396]

[360] It is Dr Griffin's evidence that there are issues in relation to the soil on the property. Dr Griffin stated that he visited the property for 8 to 10 years and he had established 'the lack of minerals that occurs on [the] property'.[397] The horses are handfed, meaning their feed is provided in tins and the horses are fed Vet Pro NutriMax as part of the nutritional program 'year-round.'[398] The results of soil tests done over a number of years ('...last year...[and another] one [test] 3 or 4 years before that again...') were given to Dr Griffin (by the owner) who provided a mineral protein supplement 'to this farm' as well as the anabolic steroids.[399]

[361] Dr Griffin stated that the results of the soil tests show 'that they have a very low salinity...that's involving both sodium and potassium in this particular farm'.[400] The farm also has a 'high aluminium content' and low phosphorous content on the farm.[401]

[362] Dr Griffin stated that he was supplying the farm with a supplement (Vet Pro NutriMax) 'which is helping with those minerals and...protein...it's providing the nitrogen'. That then allows the anabolic steroids 'to utilise what's in that feed to incorporate into these horses as they're growing'.[402] The nitrogen retention (is) to 'get' muscle growth (referred to as the 'anabolic side'[403]) and 'the other' is to retain the minerals in the bone and 'assist with bone development and bone growth...especially with the potassium, sodium and phosphorous' (referred to as the 'androgenic side' of development[404]).

[363] In relation to his assessment of the horses to be treated, Dr Griffin stated that there are horses (on the farm) that 'do better than other horses' on the farm. The horses that do not 'perform up to that level are the ones that [Dr Griffin and the owner] select to give...those injections'.[405] Dr Griffin stated that he does not look at all of the horses 'on any particular day'.[406]

[364] Dr Griffin gave oral evidence about his 'selection process'[407] of the horses when referring to allegation 6.3 that was effectively the same evidence repeated for the other allegations.[408] Dr Griffin stated that there are horses (on the farm) that 'do better than other horses' on the farm. The horses that do not 'perform up to that level are the ones that [Dr Griffin and the owner] select to give...those injections'.[409] Dr Griffin stated that 'it's [his] decision as to which horses [he] inject[s]'.[410]

[365] Dr Griffin stated that he would have been at the property for approximately 45 minutes and was presented with a list prepared by Ms Todd.[411] It is Dr Griffin's evidence that the horses are taken out of the paddock and moved up the alley into a holding yard where he looks at them 'more closely'.[412] Dr Griffin accepted when questioned that he will stop the horses that require an injection, inject them and then the horse is released back down the alleyway to go back to the paddock.[413]

[366] Dr Griffin also gave evidence about why he would make a decision to use a certain drug or drugs on different occasions when questioned about allegation 6.19 and 6.20. Dr Griffin stated that it is wintertime in Bathurst and the horses are handfed and he only 'identified these number of horses to have an anabolic injection'.[414] Dr Griffin stated that in previous times where he has used 'different combinations' he was 'trying to achieve a better result' for some of the horse identified 'as not doing as well as the other horses'.[415]

• Allegation 6.3 - Stanazol

[367] Dr Griffin admits that on 13 July 2011 he administered Stanazol to 31 horses. Dr Griffin states that the drug was used as treatment for lack of live weight gain_._[416] Dr Griffin states that he used a combination of anabolic injections and mineral and vitamin supplementation.[417]

[368] Dr Griffin gave oral evidence about allegation 6.3 summarised as follows:[418]

1. In relation to his 'selection' of the horses there were approximately 50 and 60 other horses (yearlings) running with 'these same horses [the 31 selected] in the paddocks';

2. The therapeutic need for the horses 'is from the deficiency that was identified on this farm and because [of] the...needs of growing horses for live weight gain';

3. The injection to each horse contained 10 mls. This is (as stated) because '...10 mls will give a large burst to a horse compared to giving consistent doses of anabolic steroids'.

4. Dr Griffin did not have any concerns about the 'health' of the horse because he was not giving it 'on a month-in, month-out basis', referring to the toxic side effects of anabolic steroids 'mostly related from a study' done where a single horse was given Stanazol every month from one year of age until it was 9 years of age and when the drug was withdrawn 'that was the only time that any side effect was actually shown'.

[369] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[370] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[371] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[372] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[419]

[373] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[374] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[375] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 13 July 2011 Dr Griffin administered Stanazol to 31 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[376] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[377] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 31 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.3, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.5 - Stanazol and Deca 50

[378] Dr Griffin admits that on 10 August 2011 he administered both Stanazol and Deca 50 to 30 horses. Dr Griffin states that the drugs were used as treatment for lack of live weight gain 'which he had identified a number of years ago'. Dr Griffin stated that he used a combination of anabolic injections and mineral and vitamin supplementation.[420]

[379] Dr Griffin gave oral evidence at the hearing about allegation 6.5 summarised as follows:[421]

1. From knowledge and experience giving a dose of anabolic steroids in a more 'pulsatile scenario' (meaning Dr Griffin will give the horses a 'boost at certain times') will 'stimulate the growth spurts that occur in...young animals';

2. Dr Griffin 'examined' about 60 yearlings on the property 'of which [he has] only injected [30 horses]';

3. The 30 horses (injected) were 'selected in a group at a distance' before collecting them in a 'smaller area to have a closer look and compare the horses that weren't doing as well with the...better horses in that paddock';

4. Dr Griffin was questioned about whether he visually assessed the horses. He stated, 'Yes';

5. The horses are injected ('close-up') and when the horses are 'close-up, the operator of the stud actually identifies the horse- each individual horse for [Dr Griffin]...once [they] catch the horse they're injected in a race';

6. The horse to be injected is 'restrained' with 'just a rope around its neck because we're in a race- they're in a situation where they can't get away very easily';

7. The two injections were done one after the other;

8. In relation to using a combination of anabolic steroids, Dr Griffin stated that Stanazol 'is a water-based anabolic, and because it gets into their system a lot quicker and out of their system a lot quicker it gives...[from experience] a...kick-start from the anabolic'. The oil based anabolic steroid (Deca 50) 'takes a little bit longer to reach its peak effect so [Dr Griffin is] trying to get an effect over a period of time and just give them that extra little lick along to start with';

9. The horses injected are yearlings so Dr Griffin is not 'dealing with the swab time'. When the horses were (one month before) given a stanazol-only injection, 'they just needed a little bit of help'. When Dr Griffin saw the horses a month later '[he] could see that they needed a bit more help';

10. The therapeutic purpose of the two injections was to 'address the need for the deficiency on [the] property, as well as the...live weight gain to occur'. The 'deficiency' on the property resulted from soil tests that were conducted.

[380] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drugs Stanazol and Deca 50 for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[381] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[382] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[383] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond to the same way to the same dose of an anabolic steroid.[422] Dr Griffin accepted, when questioned, that he had injected some of the same horses previously, in particular, he accepted that he had been at the property a month earlier and injected the horses with Stanazol.[423] Dr Griffin stated that he treated the horses to prevent them 'falling further behind and developing a medical problem'.[424]

[384] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drugs.

[385] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drugs were necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[386] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 10 August 2011 Dr Griffin administered Stanazol and Deca 50 to 30 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[387] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[388] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to 30 horses for the same symptoms and with the same dose of drugs for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.5, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.10 - Stanazol

[389] Dr Griffin admits that on 16 November 2011 he administered Stanazol to 53 horses. Dr Griffin states that the drugs were for treatment for lack of live weight gain. Dr Griffin states that he used a combination of anabolic injections and mineral and vitamin supplementation.[425]

[390] Dr Griffin gave oral evidence at the hearing about allegation 6.10 summarised as follows:[426]

1. The horses treated were yearlings and there are approximately 60 to 80 yearlings on the property;

2. The 'assessment' (of horses to be injected) was made at a distance 'to start with' before getting the horses 'closer up'. The profile of horses differs 'over time' (from when first started). There are 'a few horses that have dropped off the list as well as a few horses that have been added on to the list of horses...';

3. The therapeutic need was the live weight gain that was 'necessary compared to the other horses that were doing better in the paddock';

4. There were a 'number of new horses' that received an injection on this occasion. Other horses ('very few of them') were continuing on the program;

5. Dr Griffin spent approximately five hours on the property;

6. The therapeutic purpose was to help those horses with the deficiency that had been identified on the property which contributes to live weight gain.

[391] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[392] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[393] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[394] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not to going to respond the same way to the same dose of an anabolic steroid.[427]

[395] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[396] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[397] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 16 November 2011 Dr Griffin administered Stanazol to 53 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[398] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[399] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 53 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.10, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.12 - Stanazol and Anadiol

[400] Dr Griffin admits that on 8 February 2012 he administered both Stanazol and Anadiol to 60 and 30 horses respectively. Dr Griffin states that the drugs were used as treatment for lack of live weight gain. Dr Griffin states that he used a combination of anabolic injections and mineral and vitamin supplementation.[428]

[401] Dr Griffin gave oral evidence at the hearing about allegation 6.12 summarised as follows:[429]

1. Anadiol is an oil based anabolic that has some androgenic effect, but mainly anabolic effect;

2. 60 horses were injected with Stanazol and 30 of those horses received a second injection and had a shot of Anadiol;

[402] In relation to the 60 horses injected, Dr Griffin stated that the horses were 'assessed visually on this farm'. Dr Griffin stated:

...they weren't doing as well as what they should have been doing and [Dr Griffin] identified a difference in need between the horses for the ones that just needed a shot of Stanazol compared to the ones that had a shot of Stanazol and Anadiol at the same time.[430]

[403] Dr Griffin stated that the 'difference' identified (in the horses) was the 'actual amount of musculature or how much live weight gain they'd achieved over a period of time'.[431]

[404] Dr Griffin stated that the 30 horses that received the 'dual injections' were horses 'at the bottom end of that hierarchy' and the other 30 horses were 'just under the top range and they needed a...little bit of help'.[432] In relation to the therapeutic purpose, Dr Griffin stated that it was to address live weight gain issues which were a result of the nutritional program.

[405] Dr Griffin stated that he relied on the computer-generated list of horse's names to complete his register. He stated that he and the owner would take the list down to the paddock, identify the horses from a distance. Dr Griffin stated:

[y]ou can see the horses that probably aren't doing- or definitely the worst ones that are not doing well in the paddock...once we collect [the horses] into a smaller yard, before we run them into a race, I can look at the horses and see them much closer up and assess their condition.[433]

[406] Dr Griffin stated that the owner ('when we're close up') identifies those horses for Dr Griffin who will 'write on that list the horses that we've looked at, what we need to use, and then [he will] transfer that onto [his] anabolic steroid list'.[434]

[407] Dr Griffin makes the ultimate decision to inject the drugs 'in cooperation with the owner based on that history of the deficiency on the property'.[435] He stated that 'a lot of owners want you to inject every single horse but I just don't see that [as] necessary'.[436]

[408] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drugs Stanazol and Anadiol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[409] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[410] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[411] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[437]

[412] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drugs.

[413] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[414] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 8 February 2012 Dr Griffin administered both Stanazol and Anadiol to 60 and 30 horses respectively in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drugs.

[415] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[416] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to 60 and 30 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.12, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.14 - Stanazol and Filybol

[417] Dr Griffin admits that on 21 March 2012 he administered both Stanazol and Filybol to 58 and 24 horses respectively. Dr Griffin states that the drugs were used as treatment for lack of live weight. Dr Griffin states that he used a combination of anabolic injections and mineral and vitamin supplementation.[438]

[418] Dr Griffin gave oral evidence about allegation 6.14 summarised as follows:[439]

1. Filybol as an oil based injection is slower to be absorbed and will last for a longer period of time;

2. Stanazol is water-based with a shorter action and has an androgenic affect;

3. 24 horses received a dual injection and 58 horses received Stanazol injections only;

4. The horses (to be injected) were 'assessed at a distance' and 'classified' into the 'better-doing horses compared to the other two groups' - the ones in the middle and the ones 'that are not doing as well'. The horses 'at the bottom of the hierarchy [were] injected [with] both anabolic steroids, Stanazol and Filybol';

5. The horses were assessed at a distance with the 'cooperation of the owner, and then closer up once...[in the] smaller area';

6. The therapeutic need assessed for the dual shots and single shots was the deficiency that occurs on the property that is addressed by nutrition as well as the anabolic steroids. The 'horses in the middle don't need as much help as the ones lower down';

7. Some of the 58 horses were previously injected in the month of February with Stanazol and Anadiol and there are 'some new horses entering'.

[419] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drugs Stanazol and Filybol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[420] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[421] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[422] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[440]

[423] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drugs.

[424] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[425] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 21 March 2012 Dr Griffin administered Stanazol and Filybol to 58 and 24 horses respectively in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drugs.

[426] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[427] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroids without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drugs were necessary. In this matter, Dr Griffin administered anabolic steroids to 58 and 24 horses respectively for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.14, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.15 (same as 6.16) - Stanazol

[428] Dr Griffin admits that on 13 June 2012 he administered Stanazol to 30 horses. Dr Griffin stated that the drugs were used as treatment for lack of live weight gain_._ Dr Griffin stated that he used a combination of anabolic injections and mineral and vitamin supplementation.[441]

[429] Dr Griffin gave oral evidence about allegation 6.15 and 6.16 summarised as follows:[442]

1. The horses treated were yearling horses;

2. The 30 horses treated were 'assessed at a distance' firstly 'using the computer generated list and the information from the owner' before 'we saw the horses closer up in a smaller collection area';

3. Dr Griffin personally injected the 30 horses;

4. The therapeutic need assessed by Dr Griffin for the 30 horses was 'live weight gain to help [them] compared with the other horses that were in the paddock based on the information of the deficiencies in this property';

5. The therapeutic purpose of administering the medication was 'in combination with the nutritional program, to improve the live weight gain of these horses';

6. Using 'information' from the owner of the property 'did assist' Dr Griffin 'in injecting these horses'.

[430] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[431] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[432] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[433] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[443]

[434] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[435] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[436] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 13 June 2012 Dr Griffin administered Stanazol to 30 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[437] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[438] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drugs were necessary. In this matter, Dr Griffin administered an anabolic steroid to 30 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.15, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.19 (same as 6.20) - Stanazol

[439] Dr Griffin admits that on 25 July 2012 he administered Stanazol to 32 horses. Dr Griffin states that the drugs were used as treatment for lack of live weight gain 'which he had identified a number of years ago'. Dr Griffin states that he used a combination of anabolic injections and mineral and vitamin supplementation.[444]

[440] Dr Griffin gave oral evidence about allegation 6.15 and 6.16 summarised as follows:[445]

1. Some of the horses treated were also 'given a shot' by Dr Griffin during his previous visit and some of the horses were 'new horses that entered the group as their condition wasn't up to what [he] expected';

2. Dr Griffin 'visually assessed' the horses;

3. The therapeutic need assessed by Dr Griffin was based on the live weight gain that is necessary and to assist with the nutritional program combined with the anabolic steroids;

4. The therapeutic purpose of the injection was to address 'the deficiencies and the live weight gain needs';

5. Dr Griffin received advice (for the new horses treated) from the owner;

6. Dr Griffin made the decision to inject based on his 'assessment of those horses';

7. Dr Griffin was at the property for approximately two hours.

[441] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drug Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[442] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[443] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[444] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[446]

[445] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[446] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[447] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 25 July 2012 Dr Griffin administered Stanazol to 32 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[448] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[449] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered an anabolic steroid to 32 horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drug in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.19, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegation 6.6 - G. Gavin's Property?

[450] Dr Griffin admits that he administered the drugs (anabolic steroids) Testoprop and Stanazol by syringe into the muscle of 20 horses under the care of G. Gavin on 13 August 2011.[447]

[451] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine each horse.

[452] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[453] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[454] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[448]

[455] In summary, it is Dr Griffin's evidence that he treated horses at the stable complex because the horses were coming into the stables so there was a therapeutic need for treatment due to stress and possible loss of appetite.

[456] Dr Griffin stated in his affidavit that for all of the drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[449] Dr Griffin stated that the outcomes were improved tissue repair and appetite stimulation.[450]

[457] In relation to the 'different effects of each drug' Dr Griffin stated in his affidavit that his written records (he admits are 'brief') contain 'sufficient information' for him to 'know and state the therapeutic purpose for the drugs' administered and to 'know and create a record in each case with all of the information required to be recorded by law'.[451]

[458] At the hearing Dr Griffin gave oral evidence about his treatment of horses at G. Gavin's property summarised as follows:[452]

1. The horses injected were about to go out for a spell and had just come in for exercise training;

2. Dr Griffin injected the 20 horses with two injections one of Stanazol and one of Testoprop;

3. The combination (of Stanazol and Testoprop) is 'due to the water-based effect and the quick-acting nature of the Stanazol compared to the oil-based Testoprop';

4. Dr Griffin would spend between two and three hours 'of a Saturday morning' at the property;

5. The property (of G. Gavin) was a 'stable complex' on the Gold Coast (it no longer exists) and the horses were stabled in large barns behind the racetrack;

6. Dr Griffin would visit the racetrack 'most Saturday mornings';

7. The therapeutic need determined for the injections was for the horses leaving the stable to 'require a boost to be able to put weight on while... they're spelling' and the therapeutic need for the horses coming into the stable was due to the stresses and the possible loss of appetite when they come into the stable.

[459] In relation to the assessment of the horses Dr Griffin stated at the hearing that the horses that had 'finished their campaigns were in the situation where they weren't carrying a lot of condition and needed some help'.[453] The horses that were coming in (from training) 'are coming in to a new environment and the stresses involved there, and using a combination of Stanazol and Testoprop is to try and assist with their appetite'.[454]

[460] Dr Griffin stated that he 'assessed each horse', referring to the horse's history of having a racing career or a previous race history and stated that he 'could see that they needed some assistance before [the horses] went out'.[455] For the horses coming in (from training), Dr Griffin stated that he assessed them 'because of the environment they were coming into, that they need some assistance'.[456]

[461] Dr Griffin gave evidence about whether G. Gavin is a 'regular client'. Dr Griffin stated that:

...this [the treatment] was a one-off because of an unusual situation where he had horses coming and going out at the time and he...was not...a regular client. I wasn't the only vet that serviced his stables.[457]

[462] Dr Griffin was questioned about his assessment of the horses. Dr Griffin stated that he assessed them individually, referring to a 'visual assessment'.[458] Dr Griffin stated that 'per horse' it took three to four minutes.[459] Dr Griffin was questioned about whether he puts his hands on, the horses. Dr Griffin stated that he does, 'especially over their back line'.[460] Dr Griffin accepted when questioned that he relies on the trainer to tell him which horses are having a problem and referred to 'only sometimes' trotting out horses in front of him stating that there would not be many stables that could afford to do (that).[461]

[463] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the drugs Testoprop and Stanazol for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[464] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[465] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[466] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[462]

[467] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drugs.

[468] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[469] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 13 August 2011 Dr Griffin administered Testoprop and Stanazol to 20 horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[470] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[471] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to 20 horses for the same symptoms and with the same dose of drugs for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.6, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.7, 4.2, 6.13, 4.12 - R Smith?

[472] Dr Griffin admits that he administered various drugs by syringe into the muscle of each horse treated and that the drugs are anabolic steroids.

[473] Dr Griffin stated in his affidavit that for all of the drugs administered the therapeutic purpose was a combination of weight gain, tissue repair, appetite stimulation and red blood cell increase; and to 'take advantage of the different effects of each drug'.[463]

[474] In relation to the 'different effects of each drug' Dr Griffin stated in his affidavit that his written records (which he admits are 'brief') contain 'sufficient information' for him to 'know and state the therapeutic purpose for the drugs' administered and to 'know and create a record in each case with all of the information required to be recorded by law'.[464]

[475] At the hearing Dr Griffin gave oral evidence about his treatment of horses at R. Smith's property summarised as follows:[465]

1. The property is located at Wellcamp outside Toowoomba;

2. The property is a racing stable and the owners raise foals and yearlings and spell horses on the property;

3. There were approximately 40 to 60 horses on the property;

4. Dr Griffin has had a relationship with the property for approximately 12 years;

5. There were 5 or 6 horses that received three injections because Dr Griffin was 'after a better effect, especially a better androgenic effect with these horses...so [he] used Stanazol...Testoprop and testosterone suspension';[466]

6. Stanazol is a water-based drug and is not high in androgenic activity. Testosterone suspension is water-based but short acting. Boldebal-H is oil-based and will last for a longer period of time;[467]

7. Dr Griffin would visit the property every month.[468]

[476] Dr Griffin accepted during cross-examination that each horse will have their own individual response to particular treatment. Dr Griffin stated:

They will have their own individual response, but overall, we're looking for a consistent improvement in live weight gain, which is what the overall purpose is for each individual horse.[469]

[477] Dr Griffin accepted when questioned that each horse treated by him was not weighed.[470] Dr Griffin accepted when questioned that when treating a horse for live weight gain he is 'giving them a boost'. Dr Griffin stated that he 'used the baseline of those horses that are doing better and then we're trying to get those horses to catch up in their individual groups, as in whether they're early foals or late foals'.[471]

• Allegation 6.7 - Stanazol, Testoprop, Testosterone Suspension, Boldebal-H and Deca 50

[478] Dr Griffin admits that on 16 August 2011 he administered Stanazol, Testoprop, Testosterone Suspension, Boldebal-H and Deca 50 in various combinations to various horses. Dr Griffin states that 'although the complaint is not noted, it is indicated by the treatment which is the therapeutic purpose of tissue repair, appetite stimulation, live weight gain and virilising effects'.[472] In his affidavit, Dr Griffin stated that the outcomes were 'improved condition and training level'.[473]

[479] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine each horse.[474]

[480] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[481] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[482] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[475]

[483] Dr Griffin gave oral evidence about his treatment of all of the horses and stated that he spent about three hours at the property. In relation to his 'physical assessment' of the horses treated, Dr Griffin stated that 'the ones' that were 'running in the paddock,' which were the spelling horses, he was able to look at because they had been brought into holding yards.[476] For the horses that were going out for a spell, Dr Griffin stated that those horses were 'contained within the stables'.[477] Dr Griffin stated that he made the decision to treat the horses and spent about three hours at the property.[478]

[484] Dr Griffin was questioned about whether he refers to the APVMA sheets in deciding whether to administer an anabolic steroid. Dr Griffin stated that he relies on the bottles of the injection and leaflets.[479] Dr Griffin stated:

I don't look at the APVMA sheets. I rely on the bottles of the injection. The boxes that they come in and the leaflets that are distributed by the companies.[480]

[485] Dr Griffin was questioned about his examination of the horses treated by him. Dr Griffin stated that some of the horses were in the stables and some were 'in the holding' and some had to be brought in from the paddock.[481]

[486] Dr Griffin gave oral evidence about allegation 6.7 at the hearing and the 6 horses that received an injection of Stanazol, testosterone suspension and Boldebal-H, summarised as follows:

1. Dr Griffin identified from his records the names of the 6 horses that received a 'shot of Stanazol', 'a shot of testosterone suspension' and a third shot of Boldebal-H.[482] Those horses were spelling and the combination was to 'use the advantage of a water-based injection along with an oil-based injection';[483]

2. Dr Griffin made an assessment of the 6 horses. Dr Griffin stated that the horses were contained in one paddock 'with probably four other horses' and were going to spend another six to eight weeks in the paddock before they came into work. Dr Griffin was 'looking at giving them a boost with their condition before they came into that environment where they were under stress and possibly lose their appetite and reduce their condition';

3. The therapeutic need was to be able to utilise their feed better and stop them losing their appetite or enhance their appetite for live weight gain;

4. The 6 horses 'did need that extra bit of help because of the condition that they were showing [Dr Griffin]';

5. The therapeutic need was to assist with live weight gain for preparation of coming back into work 'so they don't lose too much condition when they go out'.[484]

[487] Dr Griffin was cross-examined at the hearing about why 6 horses (identified by him from his notes) received Boldebal-H as well as two shots being Stanazol and testosterone suspension. Dr Griffin stated 'they'd lost their appetite'.[485]

[488] Dr Griffin gave oral evidence about allegation 6.7 at the hearing and the 5 horses that received an injection of Stanazol, Testoprop and testosterone suspension, summarised as follows:[486]

1. Dr Griffin identified the names of the 5 horses treated and stated that the horses had 'lost their appetite or decreased their food intake when they were in the stables';

2. The 5 horses have just gone into work;

3. The 'observations' of the horses losing their appetite are reported to Dr Griffin by the client.

[489] Dr Griffin was cross-examined about what he was 'trying to address' with the 5 horses that received Testoprop on top of Stanazol and testosterone suspension. Dr Griffin stated that the two water-based ones are short acting so he is as stated 'trying to get that androgenic effect from the testosterone suspension and then to... follow up with the oil base... so that the effect 'lasts longer'.[487]

[490] Dr Griffin stated that he injected one horse with Stanazol and Testoprop:

Q: ...so then which are the horses that received a double injection?

A: ...The horse, Rogues which was just under those ones on page 1058, [indicating Stanazol] and the horse, Rogues appears again in Testaprop on page 1059A at the bottom of those same horses we were just talking about.[488]

[491] Dr Griffin gave oral evidence about allegation 6.7 at the hearing and the 6 horses that received an injection of Deca 50 and Stanazol, summarised as follows:[489]

1. Dr Griffin identified the names of the 6 horses treated and stated that the horses had just finished work and the horses with designated 'filly' and 'gelding' were older horses (two year old horses with no names);

2. The drugs used were a combination of the water based 'being the fast acting anabolic in combination with Deca being a slower acting oil base';

3. The therapeutic need was to assist with live weight gain.

[492] Dr Griffin gave oral evidence about allegation 6.7 at the hearing and the 4 horses that received an injection of Stanazol and Testosterone Suspension, summarised as follows:

1. The four horses were yearlings and 'being in the growing phase' Dr Griffin 'assessed that they needed a shot of anabolic to assist with their live weight gain'.

[493] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the anabolic steroids for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[494] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[495] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[496] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[490]

[497] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[498] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[499] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 16 August 2011 Dr Griffin administered combinations of Stanazol, Testoprop, Testosterone Suspension, Boldehal-H and Deca 50 to various horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[500] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[501] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to various horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.7, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 4.2 - Stanazol and Drive and Boldebal-H

[502] Dr Griffin admits that on 20 December 2011 he administered Stanazol, Drive and Boldebal-H to 10, 6 and 4 horses respectively.[491] The horses treated were spelling horses. Dr Griffin states that he administered the drugs for the purpose of tissue repair, appetite stimulation, live weight gain and virilising effects.[492] In his affidavit Dr Griffin stated that the main therapeutic purpose of treatment was weight gain and tissue repair with the added benefits of appetite stimulation and red blood cell increase.[493]

[503] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[494]

[504] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[505] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[506] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[495]

[507] Dr Griffin gave oral evidence about allegation 4.2 at the hearing summarised as follows:[496]

1. Dr Griffin examined some other horses on the property as well as dispensing some vitamins and some vaccines;

2. Dr Griffin identified from his notes the names of 4 horses injected with both Stanazol and Drive. Those horses were in the stables and were preparing to head out of the stables for a spell. The therapeutic need for Stanazol and Drive was 'the live weight gain that was necessary' for the horses;

3. Dr Griffin identified from his notes the names of 4 horses injected with both Stanazol and Boldebal-H. Those horses 'needed to put some live weight gain on'. Dr Griffin relied on the client letting him know that the horses were actually going out of the stables and stated 'so I didn't have to worry about a swabbing period of time for these horses';

4. Dr Griffin made the ultimate decision to inject the horses;

5. When questioned about the difference between the decision to inject Boldebal-H as well as Stanazol as opposed to Drive and Stanazol, Dr Griffin stated, 'I don't find a large difference between Drive and Boldebal[-H] when I use them, so, essentially, these are the same treatments and on this particular time I had these syringes already made up so I used those';[497]

6. Dr Griffin spent one and half-hours on the property.

[508] During cross-examination Dr Griffin stated that he already has the syringes made up. When questioned about how he decides which horses receive a particular injection Dr Griffin stated that the syringes were 'probably already made up because of the similar effects'.[498] Dr Griffin stated that he 'wasn't discriminating between the horses at all'.[499] When questioned about whether he tracked the responses of the horses, Dr Griffin sated 'yes'.[500] Dr Griffin stated that he visits the property every month.[501]

[509] Dr Griffin was questioned about the reason why six horses also received the drug Drive. Dr Griffin stated that those horses were spelling horses and stated that he 'wasn't concerned about swab time'.[502] Dr Griffin referred to the rules of racing and swabbing time and stated 'it's how long that will last in that horse's system before it can go to the races and race drug free'.[503]

[510] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the anabolic steroids for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[511] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[512] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[513] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[504]

[514] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[515] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[516] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that 20 December 2011 Dr Griffin administered a combination of Stanazol, Drive and Boldebal-H to various horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug. For the purposes of allegation 4.2, we find that Dr Griffin supplied restricted drugs for no legitimate therapeutic purpose.

[517] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[518] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to various horses for the same symptoms and with the same dose of drugs for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 4.2, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 6.13 - Stanazol, Deca 50

[519] Dr Griffin admits that on 17 February 2012 he administered Stanazol and Deca 50 to 25 and 10 horses respectively. Dr Griffin states that 'although the complaint is not noted, it is indicated by the treatment which is the therapeutic purpose of tissue repair, appetite stimulation, live weight gain and virilising effects'.[505] In his affidavit, Dr Griffin stated that the outcomes were improved condition and training level.[506]

[520] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary; and he did not adequately assess or examine each horse.

[521] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[522] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[523] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[507]

[524] Dr Griffin gave oral evidence at the hearing about allegation 6.13 at the hearing summarised as follows:[508]

1. The 'virilising effect is the effect that's basically the difference between mares and stallions which is to have that more aggressive nature';

2. The oil-based Stanazol 'does it slightly' (achieve the virilising effect) 'but Deca 50 seems to have a better effect for that';

3. The therapeutic purpose of applying Deca 50 for its virilising effect 'goes hand in hand with their appetite'. Dr Griffin explained that this in a paddock situation 'the hierarchy' has more to do with 'how aggressive horses can be as in the amount of feed that they're getting to'.

4. Dr Griffin identified from his notes the names of 10 horses injected with both Stanazol and Deca 50. Those horses were 'caught in...the holding yard' for Dr Griffin to look at. Dr Griffin assessed the need for both injections stating 'a combination of knowing...what the horses were doing, whether they were staying in work or going out of work and what condition those horses were';

5. All of the 10 horses injected with both Stanazol and Deca 50 horses were geldings. Dr Griffin stated that geldings have very limited natural testosterone in their system because they have had their testicles removed, and 'by using a combination of Stanazol and Deca it's given them a bit of assistance with their live weight gain and their appetite';

6. The therapeutic purpose for the 10 gelding horses injected (with two shots) was to prevent their appetite loss and to help with their live weight gain;

7. For the horses that received an injection of Stanazol only, the horses were captured in a holding pen for Dr Griffin 'to look at'. Dr Griffin only injected the horses that he 'thought...needed the injection at the time';

8. When questioned about whether Dr Griffin received advice or opinion from the person in charge of the property, Dr Griffin stated 'the advice, basically, was to identify those horses and also to identify any particular problems that there may have been';

9. The therapeutic purpose assessed for the application of the Stanazol was to 'maintain their appetite and to assist with their live weight gain';

10. Dr Griffin assessed other horses in the stables and in the holding yard. Not all of the horses were injected because the horses in the stables were racing (there are 'constraints of swabbing') and the horses in the holding yard 'were doing quite well'.

11. Dr Griffin injected all of the horses;

12. Dr Griffin was on the property for between two and two and a half hours.

[525] Dr Griffin was questioned about his examination of the horses treated. Dr Griffin stated that the horses were examined both in the stables and in the paddock before they were brought to the holding yards.[509] Dr Griffin was questioned about whether his inspections were 'visual inspections'. Dr Griffin stated that the ones inside the stables were 'individual inspections' and the horses outside in the paddock were 'group ones'.[510]

[526] In relation to the 10 horses that received Stanazol and Deca 50 Dr Griffin stated that there was a combination of horses in the stables and the paddocks.[511] For the horses in the paddock, Dr Griffin was questioned about whether he based his assessment of the horses in the paddock on 'the hierarchy'. Dr Griffin stated 'only within the individual paddock'.[512] For the horses in the stables, Dr Griffin stated that he assessed the horses individually.[513]

[527] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the anabolic steroids for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[528] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[529] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[530] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[514]

[531] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and for the non-Geldings gender) may not respond the same way to the same dose of drug.

[532] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[533] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 17 February 2012 Dr Griffin administered Stanazol and a combination of Stanazol and Deca 50 to various horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug.

[534] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[535] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to various horses for the same symptoms and with the same dose of drugs for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 6.13, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

• Allegation 4.12 - Anab+ Stanazol

[536] Dr Griffin admits that on 26 June 2012 he injected 14 horses with a combination of Stanazol and either Filybol or Bolebal-H.[515] Some of the horses treated by Dr Griffin were yearlings and some of the horses were spelling.[516]

[537] Dr Griffin states that the drugs were administered for tissue repair and as an appetite stimulant for live weight gain prior to pre-training and training.[517] In his affidavit Dr Griffin stated that he examined the 14 horses and made a clinical note stating 'spellers', as well as recording the names of each of the horses, their sex and the different anabolic steroids used in each horse. The therapeutic purpose for the drugs being administered to the 14 horses was 'appetite stimulation and weight gain'.[518]

[538] For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[519]

[539] We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps' evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.

[540] We have found based on Dr van Eps' evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.

[541] Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[520]

[542] Dr Griffin gave oral evidence about allegation 4.12 at the hearing summarised as follows:[521]

1. The horses injected received either Filybol or Boldebal-H plus Stanazol;

2. The difference between Boldebal-H and Filybol is that Filybol has a less androgenic effect and that is why it is used more with fillies and colts;

3. Dr Griffin identified from his notes the names of the horses injected with Stanazol and Filybol (a capital 'F' was used to identify the drug Filybol). Those horses were going out for a break so the drugs were to assist with live weight gain;

4. The horses that received Boldebal-H (with Stanazol) were geldings that 'just needed that extra androgenic effect which is what Boldebal-H has over the Filybol injection';

5. When questioned about whether observations or opinions were received from the person in charge of the property, Dr Griffin stated 'Robert Smith identified those horses for me and informed me that they were going out for a spell so that we can inject them without being concerned about the rules of racing';

6. Dr Griffin made the ultimate decision to inject the horses;

7. Dr Griffin spent two hours (estimate) on the property and did not assess other horses at the property on that day;

8. The horses injected were in the stables and were about to go out into the paddocks.

[543] During cross-examination Dr Griffin referred to the 'deficiency' in the soils and grains and referred to the 'highly cropped' nature of the property.[522] Dr Griffin was questioned about the different reason for some of the horses receiving Filybol and some receiving Boldebal-H. Dr Griffin stated the horses that received Filybol were colts and geldings and a horse received Boldebal-H.[523] Dr Griffin stated that he saw 'a difference between giving those geldings and colts a bigger boost or a more androgenic effect than the Filybol'.[524]

[544] Dr Griffin was questioned about his examination of the horses treated by him. Dr Griffin stated that the horses were all contained in the stables. Dr Griffin was questioned about how he will 'track' how a particular horse treated by him has responded. Dr Griffin stated that 'the response will be noted as to whether there's a follow-up injection for that horse'.[525]

[545] We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the anabolic steroids for a therapeutic use or purpose as part of the animal's treatment because no existing symptoms were present and Dr Griffin's examination and evaluation of each horse was limited.

[546] We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.

[547] The evidence shows that Dr Griffin's decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin's decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.

[548] Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[526]

[549] We find that Dr Griffin's assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.

[550] We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a 'disease...', or that the 'use' (of the drug) was to '[influence]...a physiological process'. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.

[551] The Tribunal has carefully considered Dr Griffin's evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 26 June 2012 Dr Griffin supplied a combination of Stanazol and Filybol or Bolebal H to various horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug. For the purposes of allegation 4.12, we find that Dr Griffin supplied restricted drugs for no legitimate therapeutic purpose.

[552] We find that Dr Griffin's conduct was, as held in Pillai's case, 'a deliberate departure from accepted standards' or was conduct that 'although not deliberate' does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.

[553] We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to various horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 4.12, Dr Griffin's conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act 'misconduct in a professional respect.'

[554] The allegations referred by the Board relate to Dr Griffin's conduct in his practice as a veterinary surgeon. In some instances, Dr Griffin treated both racing and sporting horses based on his professional and personal knowledge of the horses, the properties and his long-standing relationships with the trainers and owners.

[555] There is no evidence before us of a complaint giving rise to the Referral or evidence of any adverse consequences including proof of injury or loss arising from Dr Griffin's treatment of the horses.

[556] We have determined the allegations as particularised in the Referral to the required civil standard after considering the expert evidence, Dr Griffin's evidence, the AVA Code and relevant legislation. Under the AVA Code, a veterinary surgeon is required to, amongst others, consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice.

[557] We found based on the expert evidence of Dr van Eps and Dr Clarke, that there are standards in the conduct and practice of a veterinary surgeon particularly in relation to treating racing and sporting horses. We preferred the evidence of Dr van Eps and made findings about what is required by a veterinary surgeon when treating an animal such as a racing or sporting horse with an anabolic steroid; and Bute Paste.

[558] In summary, we found that in every case before treatment, a veterinary surgeon must establish whether the animal needs treatment. We found that this requires an examination and evaluation where there is clinical justification and documentation; and there should be careful follow up on the outcomes of treatment. We found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system.

[559] In relation to treating a horse with an anabolic steroid, we found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition. In relation to treating a horse with Bute Paste that contains the active ingredient phenylbutazone, we found that there are potential adverse effects that must be considered. We found that an animal treated with phenylbutazone for weeks or months requires monitoring with blood parameters and clinical evaluation. We also found that horses of different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid; and phenylbutazone.

[560] We found that where a number of racing and sporting horses have been treated for the same symptoms it is unlikely that the number of horses treated would present symptoms which would require exactly the same treatment and dosage of drug for each horse at the same time; and that it would be unusual to treat without evaluation. We also found that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each individual horse and not treat in a blanket fashion.

[561] In relation to each of the allegations, we found that Dr Griffin's examination and evaluation of each horse treated was inadequate. We found Dr Griffin's conduct for each allegation was 'misconduct in a professional respect,' for the purposes of s 22F of the Act because his practice or conduct as a veterinary surgeon fell below the standard expected by his professional peers and the public.

[562] The following allegations in relation to the administration and/or dispensing of anabolic steroids that involved in some instances Dr Griffin personally injecting horses at various properties and in other instances leaving tubs of Nitrotain paste to be administered orally by the trainers or owners at the properties are proven by the Board:

• Allegation 4.8 (same as 6.9) - P. Healy's property

• Allegation 4.9 (same as 6.11) - N. Osbourne's property

• Allegation 5.6 (same as 6.17) - T. Gollan's property

• Allegation 6.1 - Tomorrows Stud Farm

• Allegations 6.2, 6.4 and 6.8 - A. Eggleston's property

• Allegations 6.3, 6.5, 6.10, 6.12, 6.14, 6.15 (same as 6.16) and 6.19 (same as 6.20) - Allandale Stud Farm

• Allegation 6.6 - G. Gavin's property

• Allegations 6.7, 4.2, 6.13 and 4.12 - R. Smith's property

[563] We found that the allegations relating to the supply of Bute Paste to be administered to various horses by the trainer or owner at the properties for the following allegations are proven:

• Allegation 4.6 - C. Martin's property

• Allegation 4.14 (same as 6.18) - W. Lawson's property

[564] In relation to each of the allegations 4.6, 4.8, 4.9, 4.14, 5.6, 6.1, 6.2, 6.4, 6.8, 6.3, 6.5, 6.10, 6.12, 6.14, 6.15, 6.19, 6.6, 6.7, 4.2, 6.13 and 4.12 contained in the Referral, we find that a ground for disciplinary action has been established against Victor Leslie Griffin in that he has behaved in a way that constitutes 'misconduct in a professional respect' pursuant to s 22F of the Act.

[565] Dr Griffin admits that by failing to keep adequate records in accordance with s 25 of the Veterinary Surgeons Regulation 2002 (Qld) he has engaged in 'misconduct in a professional respect'.

[566] If the Tribunal decides a veterinary surgeon has engaged in misconduct in a professional respect, certain action may be taken as prescribed under s 22E of the Act. The Board and Dr Griffin should be given an opportunity to address the Tribunal further in relation to the appropriateness of any action to be taken as a result of our findings and Dr Griffin's admission in relation to record keeping. We make directions accordingly.

[1] For the purposes of the Health (Drugs and Poisons) Regulation 1996 (Qld), see Appendix 9.

[2] Application or referral - disciplinary proceeding filed on 28 October 2013 (the Referral). See s 22(3) of the Veterinary Surgeons Act 1936 (Qld) (the Act) and see Exhibit 7.

[3] In the practice of his profession under s 22F(f) of the Act.

[4] Referral filed on 28 October 2013 and Exhibit 7. See Submissions for the Board dated 11 April 2016.

[5] Submissions for the Board dated 11 April 2016, [49] and see the Australian Veterinary Association (AVA) Code of Professional Conduct, principle 1(a).

[6] Submissions for the Board dated 11 April 2016, [49].

[7] See statement of agreed and disputed facts filed 24 June 2014 and schedule of admissions with respect to records dated 11 April 2016.

[8] Affidavit of Victor Leslie Griffin sworn 31 October 2014, Exhibit 1 (doc. 2.7), [16].

[9] Supplementary submissions on behalf of the registrant filed on 10 April 2016, [23].

[10] Schedule of admissions with respect to records dated 11 April 2016. See Affidavit of Victor Leslie Griffin sworn 31 October 2014, [65].

[11] For the purposes of s 22F(i) of the Act, see Schedule of admissions with respect to records dated 11 April 2016.

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 to 362.

[16] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 to 362.

[17] Section 28(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that the rules of evidence do not apply other than to the extent that the tribunal adopts them.

[19] Final written supplementary submissions of Dr Griffin received by the Tribunal on 19 April 2016, final written submissions of the Board received on 11 April 2016 and reply (written) submissions of the Board received by the Tribunal on 4 May 2016.

[21] Letter from Lander & Rogers Lawyers to QCAT dated 6 August, Exhibit 1, volume 5 p 1719. See also written submissions filed by the Board dated 27 October 2014, 28 October 2015 (as amended), 11 April 2016 and 3 May 2016; and statement of agreed and disputed facts filed 24 June 2014.