//
[2017] WASAT 100
General information, not legal advice.
State Administrative Tribunal (WA)
2017-12-21
Original judgment source is linked above.
I certify that this and the preceding [316] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
ACT : VETERINARY SURGEONS ACT 1960 (WA)
CITATION : VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and HARRIS [2017] WASAT 100 (S)
BETWEEN : VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Veterinary surgeon - Unprofessional conduct - Fit and proper person to remain a veterinary surgeon - Suspension of the registration of a veterinary surgeon - Undertaking to refrain from conduct - Costs
Poisons Act 1964 (WA), Sch 8, Appendix A
Poisons Regulations 1965 (WA), reg 44(3), reg 44(4), reg 47(5)
Sentencing Act 1995 (WA), s 39(2), s 45
Veterinary Surgeons Regulations 1979 (WA), reg 28(2), reg 30(1), reg 30(2)
Respondent fined, suspended for 2 months and required to give an undertaking to the applicant. Costs awarded against the respondent.
In Veterinary Surgeons Board of Western Australia and Harris [2017] WASAT 100, the respondent (practitioner) was found pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA) to have engaged in unprofessional conduct as a veterinary surgeon.
The Tribunal found that between 2008 and 2013, the practitioner supplied or prescribed codeine to patients of the Greenfields Vet Hospital, Greenfields but in so doing he contravened reg 47(5) of the Poisons Regulations 1965 (WA) (Poisons Regulations) by making entries in the Greenfields Vet Hospital Codeine Register which were false or untrue. The Tribunal also found that the practitioner contravened reg 44(4) of the Poisons Regulations by failing to maintain the Greenfields Codeine Register in such a way that at any time the amount of codeine used or supplied or kept by the practitioner was clearly apparent.
The other allegations of unprofessional conduct made by the Board against the practitioner were dismissed.
The Tribunal considered the appropriate penalty to be imposed on the practitioner, taking into account the considerations outlined in Veterinary Surgeons Board of Western Australia and Alexander [2014] WASAT 105 (S).
The Tribunal concluded even though the practitioner's misconduct was serious, it had not been established that the practitioner was not a fit and proper person to be a veterinary surgeon so as to justify an order that his name be permanently removed from the roll of practitioners.
The Tribunal determined that the practitioner's registration should be suspended for a period of two months and the maximum possible fine of $1,000 ought to be imposed. The Tribunal also ordered that the practitioner provide an undertaking to the Board not to administer or prescribe codeine to his patients in the future.
The Tribunal also ordered the practitioner to pay a contribution towards the applicant's costs of $35,000.
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S)
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
The Owners of Strata Plan 4 1133 and Lend Lease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S)
Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
Veterinary Surgeons Board of Western Australia and Alexander [2014] WASAT 105 (S)
Veterinary Surgeons Board of Western Australia and Harris [2017] WASAT 100
Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107
1 In Veterinary Surgeons Board of Western Australia and Harris [2017] WASAT 100 (Harris), the respondent (practitioner) was found pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA) (VS Act) to have engaged in unprofessional conduct as a veterinary surgeon. Details of the Tribunal's finding in Harris are set out later in these reasons. However, in essence, the Tribunal found that the practitioner had inaccurately recorded the amounts of codeine he supplied to his patients in the poisons register of the Greenfields Vet Hospital in Greenfields where the practitioner was at the relevant time practicing veterinary surgery three days each week. The Tribunal considered that this conduct would be regarded as falling substantially short of the standard of professional conduct observed or approved by members of the veterinary profession of good repute and competency and as disgraceful by practitioners of good repute and competence generally. Accordingly, the practitioner was guilty of unprofessional conduct.
2 All of the other allegations which the applicant (Board) made against the practitioner were dismissed.
3 The Tribunal in Harris ordered the parties to file submissions on penalty and costs. The parties subsequently filed their written submissions in accordance with those directions.
4 The matter was heard on 20 November 2017 and the Tribunal reserved its decision on both the issue of penalty and of costs.
5 These are the Tribunals' decisions and the reasons for them.
6 Under s 23(2a) of the VS Act, the Board on 13 July 2015 brought an application to the Tribunal, alleging that the practitioner is guilty of unprofessional conduct as a veterinary surgeon. The specific allegations made by the Board were as follows:
Allegation 1: Receipt of codeine at the Mount Lawley Vet Centre
7 The Board alleged that on two occasions in 2013, the practitioner contravened reg 47(5) of the now repealed Poisons Regulations 1965 (WA) (Poisons Regulations) by making entries in the Mount Lawley & Inglewood Veterinary Centre (Mount Lawley Vet Centre) Codeine Register (Mount Lawley Codeine Register) which were false or untrue.
8 Further, on two other occasions in 2013, the Board said that the practitioner contravened reg 44(3) of the Poisons Regulations in failing to record, or cause to be recorded, in the Mount Lawley Codeine Register two transactions involving codeine.
9 The Board considered that this conduct fell substantially short of the standards of professional conduct that could be reasonably expected to be observed by the members of the veterinary profession of good repute and competency, or, alternatively, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons.
10 The Tribunal found that the practitioner had not breached the Poisons Regulations.
Allegation 2: Discrepancies between the Greenfields Codeine Register and Greenfields clinical notes
12 The Board alleged that between 5 November 2008 and 9 August 2013, the practitioner supplied or prescribed codeine to patients of the Greenfields Vet Hospital, Greenfields (Greenfields Vet Hospital) but in so doing he contravened reg 47(5) of the Poisons Regulations by making entries in the Greenfields Vet Hospital Codeine Register (Greenfields Codeine Register) which were false or untrue. The Board also alleged that he contravened reg 44(4) of the Poisons Regulations in failing to maintain the Greenfields Codeine Register in such a way that at any time the amount of codeine used or supplied or kept by the practitioner was clearly apparent.
13 In particular, the amounts of codeine that the practitioner recorded in the Greenfields Codeine Register as having been used, sold or supplied by him to patients were in quantities that were different to the amounts of codeine that the practitioner had recorded in the patient's records as having been supplied or prescribed to those patients.
14 The Board considered that this conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency or alternatively, that this conduct was inexcusable and would be regarded as deplorable by other registered veterinary surgeons
15 While the practitioner maintained, and the Tribunal accepted, that the patient records made by him in relation to the amount of codeine dispensed in each case were correct, the practitioner admitted that the entries in question in the Greenfields Codeine Register were false or untrue in relation to the amount of codeine used or supplied in each case. As such, the Greenfields Codeine Register was not maintained in such a way that at any time the amount of codeine used or supplied by the practitioner was clearly apparent.
16 Accordingly, again on the practitioner's own admission, the Tribunal was satisfied that the particulars of Allegation 2 were made out and that, as a result, the practitioner had contravened reg 44(4) and reg 47(5) of the Poisons Regulations.
17 The Tribunal further considered that the conduct of the practitioner in this regard, namely deliberately and consciously making false entries in the Greenfields Codeine Register, amounted to conduct which was inexcusable and unprofessional and constituted a professional impropriety that is unacceptable and demanding of strong censure. It was a conduct which could never be justified and fell substantially below the standard that practitioners of good repute and competency would reasonably expect and was therefore unprofessional conduct.
Allegation 3: Missing entries in the Greenfields Codeine Register
18 The Board alleged that, during the period referred to in Allegation 2, the practitioner contravened reg 44(3) of the Poisons Regulations in failing to record, or cause to be recorded, in the Greenfields Codeine Register a number of transactions involving codeine.
19 The Board considered that this conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency or, alternatively, the conduct was inexcusable and would be regarded as deplorable by other registered veterinary surgeons.
20 The Tribunal found in respect of Allegation 3, again based upon the practitioner's own admissions, that the practitioner had contravened reg 44(3) of the Poisons Regulations but did not accept that the conduct in question breached any relevant standard or that the conduct in question would be regarded by competent veterinary surgeons generally as being disgraceful or dishonourable.
22 The Board alleged that, again during the same period, in suppling or prescribing codeine to patients of the Greenfields Vet Hospital, the practitioner contravened reg 30(1) and reg 30(2) of the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations) in failing to make any or accurate clinical records of codeine that the practitioner had supplied or prescribed to a number of patients.
23 The Board considered that by virtue of reg 28(2) of the VS Regulations, the practitioner had engaged in unprofessional conduct or, alternatively, that the practitioner's conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
24 This Allegation was denied by the practitioner who subsequently located and produced the clinical records said to be missing.
26 Section 23(2aa) of the VS Act provides for a range of disciplinary sanctions where a veterinarian surgeon is guilty of unprofessional conduct. The Tribunal may:
(a) reprimand the veterinary surgeon;
(b) require the veterinary surgeon to give an undertaking to refrain from such conduct as may be specified by the Board;
(c) fine the veterinary surgeon an amount not exceeding $1 000;
(d) order the suspension of the registration of that veterinary surgeon for such period not exceeding 12 months, as the Tribunal thinks fit;
(e) order the removal of the name of that veterinary surgeon from the Register;
(f) order the imposition of conditions as to the registration of that veterinary surgeon or restrictions on the practice of veterinary surgery by that person.
27 The principles to be applied are well recognised and are not in dispute between the parties. Both parties in their submissions refer to and rely upon the statement of these principles set out in Veterinary Surgeons Board of Western Australia and Alexander [2014] WASAT 105 (S) (Alexander) and in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa).
28 In Khosa, Buss JA sets out at [37] the purposes of disciplinary proceedings against, in that case, a legal practitioner. We consider that this statement applies equally to proceedings concerning registered veterinary surgeons.
It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession. See Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ); Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 - 25 (Malcolm CJ; Kennedy & Franklyn JJ agreeing); Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41] (Doyle CJ; Williams & Martin JJ agreeing).
30 The Tribunal in this case will apply the considerations set out in Alexander, which can be summarised as follows (citations omitted):
1. Is there a need to protect the public against further misconduct by the practitioner?
31 This is described by the Tribunal in Alexander at [12] as the primary concern in the case of veterinary surgeons.
32 There is no suggestion of any harm occurring to any animal as a result of the practitioner's conduct. No issue arises that is relevant to penalty.
b) Conduct by the practitioner as it relates to the dispensing of codeine
33 Codeine is a poison specified in Sch 8 in Appendix A of the now repealed Poisons Act 1964 (WA) (Poisons Act).
34 The misconduct identified by the Tribunal was the deliberate falsification of a Sch 8 drug register in circumstances where the Tribunal found that the practitioner was aware of an appropriate corrections entry process which could have been used as an alternative to making the false entry.
35 The misconduct relates to the false recording only of the quantity of codeine tablets dispensed. The Tribunal notes the practitioner's assurance that he ceased to administer or dispense codeine in late 2013/early 2014, that he has not administered or dispensed codeine since then, and has no intention of doing so in the future. There is no evidence that contradicts this assurance. Further, the Tribunal notes that the partitioner has consented to either give an undertaking or to accept conditions on his registration to that effect.
36 It is submitted by the Board that these statements made by the practitioner are self-serving and that, in view of the conduct, the assurances by the practitioner should not be accepted.
37 The Tribunal does not agree with this. We see no reason why we should not accept an undertaking from the practitioner, a person of hitherto unblemished record, in this regard.
38 Accordingly, the Tribunal is of the view that, assuming an appropriate undertaking is given, there is no basis or need for any further protection of the public against misconduct by the practitioner as it relates to the dispensing of codeine. No issue arises that is relevant to penalty.
c) Conduct of the practitioner as it relates to the deliberate falsification of a record.
39 It is submitted by the Board that the public requires protection from the conduct of the practitioner as it relates to the deliberate falsification of a record. This submission is made in the form of a submission that that conduct renders the practitioner unfit to practice.
40 The Board urges on the Tribunal the view that the practitioner is not a fit and proper person to practice. The Board says that, on 121 occasions over 5 years, the practitioner was faced with a choice as to the course that he should take. On the one hand, the practitioner could choose a professionally correct course of making a corrections entry (the form of which he knew) in the Greenfields Codeine Register, or, on the other hand, a professionally incorrect course, namely, falsifying the register. The practitioner, knowing of his professional obligation to act in compliance with the law and knowing that he was acting in breach of the relevant statutory provisions, adopted the professionally incorrect course. The Board submits that the fact that the practitioner is unable to provide a satisfactory explanation as to why he repeatedly adopted the professionally incorrect course when faced with this choice means that the Tribunal should regard him as professionally unreliable that he cannot be trusted not to take the professionally incorrect course in relation to other choices or decisions that he will have to make in the future; that he cannot be trusted to 'exercise his professional obligations properly from now on' (T:33; 20.11.17).
41 Whilst the absence of a satisfactory explanation for the professional misjudgement involved in the repeated misconduct is a matter of concern to the Tribunal, it has not been suggested that the practitioner has in any other respect failed to live up to the high standards required by his profession. As will appear under Consideration 4, the Tribunal accepts and places weight on the character reference material tendered by the practitioner.
42 Accordingly, the Tribunal is of the view that, assuming an appropriate undertaking is given, there is no basis or need for any protection of the public against future misconduct by the practitioner as it relates to the falsifying of records. No issue therefore arises that is relevant to penalty.
d) Conduct of the practitioner as it relates to the integrity of the record keeping system
43 It was common ground that the drug at the centre of the issues, codeine, is a drug of addiction, with a high 'street' value, that can be processed into other drugs for illicit purposes and that poses a significant risk for misuse and abuse. However, it was not alleged, nor even suggested, that any codeine was misused by the practitioner. The relevance of those factors is simply to underscore the reasoning behind and the vital importance of the regulation, controls and record keeping requirements imposed on practitioners. This system exists in order to protect the public by strictly controlling access to drugs such as codeine so as to facilitate proper therapeutic use and prevent misuse or abuse. The existence of a reliable system for tracking all supplies of codeine as part of that strict control is crucial to that public protection.
44 The entries made by the practitioner in the Greenfields Codeine Register did not involve the insertion of a figure that inaccurately represented the balance of codeine tablets remaining in the practice safe following the relevant occasions of prescribing. It is also accepted that no member of the public could have suffered harm through access to codeine as a result of the incorrect recording by the practitioner in the register of the amount of codeine tablets actually dispensed on each relevant occasion.
45 It is the view of the Tribunal, however, there is a risk of harm to the public if there is not in existence, a reliable and accurately kept system for tracking all supplies of codeine. This includes the accurate recording of all quantities at all points in the chain of supply. The accurate recording of the amount dispensed on each occasion, in multiple places (as required by the record keeping system mandated) forms part of such a tracking system. The absence of such a system, or the presence of a system to which less than diligent regard is paid by practitioners, potentially allows for illicit 'leaking' of codeine with significant risk for misuse and abuse, addiction and further processing and, thus, harm to the public from these things. It is accepted that the making of a false entry as to the amount dispensed, of itself, could not cause harm. But any inaccuracies in the system of recording weaken the reliability of the system as a whole and open the door to risk. Although in these particular circumstances this is not of substantial significance, it is a relevant matter when considering the question of penalty.
2. Is there a need to protect the public through general deterrence of other practitioners?
46 Other practitioners clearly need to be deterred from similar conduct to that of the practitioner, both as it relates to the recording of dispensing information for Sch 8 drugs such as codeine and as it relates to the deliberate falsification of a record.
47 It is common ground that this consideration is of relevance. It is a significant factor in relation to penalty.
48 However, the Tribunal considers that when taking this factor into account, it is not appropriate to impose a sanction on the practitioner which reflects or relates to the general confusion and non-compliance of an element of the veterinary profession with procedures in relation to Sch 8 medicines. The practitioner is not to be sanctioned in place of others, for their separate transgressions. It is not in dispute that there was at the relevant time, and remains (although to a lesser extent now) at least some degree of confusion and noncompliance within the veterinary profession generally, with procedures relating to Sch 8 medicines, including codeine. Various examples of such confusion and noncompliance are contained in evidence that was before the Tribunal.
3. The need to protect the public and maintain public confidence in the profession
49 In Alexander at [10], this consideration is expressed as follows (citations omitted):
...
the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession ... such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication if its disapproval[.]
...
(Tribunal emphasis)
50 In the Tribunal's view, the conduct, as it relates to the deliberate falsification of a Sch 8 drug register, is very serious. It cannot be condoned and is the type of conduct that must be eliminated. It requires strong denunciation and a penalty of highly deterrent effect that demonstrates the high professional standards that are demanded in this respect.
51 The penalty imposed on the practitioner should be such as to deter transgressions, reinforce the requirement of high professional standards and expose the conduct as warranting an emphatic indication of the Tribunal's disapproval.
52 It is common ground that this consideration is of relevance. It is a significant factor in relation to penalty.
53 In Alexander, at [10], this consideration is expressed as follows (citations omitted):
...
in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner[.]
...
54 The Tribunal found that the practitioner's conduct was deliberate and conscious and that he knew of the proper correcting entries that should have been made in the Greenfields Codeine Register.
55 It is accepted that the practitioner did not attempt to conceal from others either the nature of the entries that he made in the Greenfields Codeine Register or the fact that the balance of codeine tablets remaining in the safe did not reflect the balance recorded by the previous entry in the Greenfields Codeine Register.
56 It is also accepted that he brought both matters to the attention of the practice owner and practice manager, made efforts to address the apparent lack of recording of the supply or dispensing of codeine, and sought advice and information from the Department of Health relating to the matter.
57 Further, the practitioner did not attempt to mislead either the Department of Health or the Board in relation to the entries, but from the outset made full disclosure of what occurred.
58 It is accepted that there is no suggestion of any private gain or benefit obtained by the practitioner as a result of the conduct.
59 The practitioner, through counsel, submitted in response to the Board's assertion that the practitioner's conduct was dishonest, that there is a difference between doing something knowingly and doing something dishonest. The practitioner says that he cannot be said to have acted dishonestly because he did not intentionally mislead. He claims that the stock balance figure would have been the one upon which others would rely and that he meticulously ensured that this figure was accurate.
60 The Tribunal does not agree with the practitioner in the latter regard. All of the entries in a poisons register must be accurately completed, not merely the 'stock balance figure'.
61 Further, the Tribunal considers that the finding of 'falsification' does connote an element of 'dishonesty'. The Tribunal was referred to the Macquarie Dictionary definitions of 'false', 'honest' and 'dishonest' as appear below.
• ... 'honest' truthful; creditable; candid ...
• ... 'dishonest' not honest ...
62 As was said in Khosa at [218] 'dishonesty, like other forms of misconduct, has grades of seriousness'. As in that case, in the view of the Tribunal the subjective element of the breach in this case is more serious because it was a knowing breach.
63 The Tribunal accordingly rejects the submission that the practitioner's conduct in context was not dishonest. The magnitude or scope of the dishonestly is coloured by the explanation of the circumstances in which he found himself but the practitioner's explanation as to those circumstances does not expiate his deliberate falsification. As will be referred to in Consideration 9, the context of the conduct does not provide a satisfactory explanation as to why the practitioner, knowing of an appropriate corrections procedure, nonetheless elected to enter false information into the register. To do so, even in context, was, in the view of the Tribunal, dishonest. This consideration is of relevance. It is a significant factor in relation to penalty.
64 On behalf of the practitioner, it was, in the Tribunal's view correctly, submitted that it is also relevant whether, in the case of conduct involving misleading conduct, including dishonesty, 'the public and fellow practitioners can place reliance on the word of the practitioner'. This brings into sharp focus the most difficult aspect of this matter which is the practitioner's inability to explain his failure to use the corrections procedure, a simple option that would have avoided these issues. There is no apparent benefit to him in doing as he did. The consequence of his conduct was that codeine tablets dispensed or otherwise removed from the safe by others could have gone undetected.
65 The absence of a satisfactory explanation is relevant to penalty.
66 Positive character evidence as to the reliability of the practitioner has been adduced. Although few of the statements specifically advert to knowledge of the falsification finding of the Tribunal, the Tribunal accepts that all those giving character evidence were provided with access to the Tribunal's reasons for decision and are likely aware of the terms of its findings. The Tribunal accepts the character evidence as having been given in the knowledge of and notwithstanding the findings of the Tribunal, and, that being the case, gives it considerable weight. It is a significant factor in relation to penalty.
5. Whether there has been a breach of any Act, Regulations and whether this was done knowingly
67 The practitioner has at all times admitted that his conduct was in breach of the relevant Act and Regulations and that he acted knowingly. This consideration is of relevance. It is a significant factor in relation to penalty.
68 If a practitioner knowingly does not comply with the regulatory scheme relevant to his profession, the basic protections provided by that scheme will be circumvented.
69 The reasons that the practitioner advanced for not following the regulatory scheme were unsatisfactory and provide no reasonable excuse for not following them. As will be referred to further under the matter of insight, the Tribunal does not accept that the practitioner fully understands the significance of his misconduct. What the Tribunal was left with after his evidence was that he appeared to have satisfied himself at the time of the conduct that the circumstances in which he found himself, namely the failings of others, entirely justified him breaching the statutory requirement of accuracy in every respect by entering a false figure in the register.
70 It is again acknowledged that the practitioner took steps to bring the matters to the attention of the practice owner and practice manager, made efforts to address the underlying issues, sought advice or information from the Department of Health relating to the matter and, once the issues were in the hands of the regulators, made full disclosure of what occurred to both the Department of Health and the Board in the course of their investigations.
71 There is no suggestion of any incompetence or that the practitioner's misconduct was due to any incompetence.
73 In Alexander, at [10], this consideration is expressed as follows (citations omitted):
... whether or not the incident was isolated such that the Tribunal can be satisfied of [the practitioner's] worthiness or reliability for the future[.]
...
74 It is common ground that the misconduct was not an isolated incident in the sense that it involved numerous (121) occurrences over a period of nearly 5 years, as emphasised by the Board in its submissions. The repetition of the behaviour over 5 years is of relevance. It is a factor in relation to penalty.
75 It is to be noted, however, that the actions of the practitioner that constitute the misconduct were identical in each of the 121 instances and, further, that the matter was pursued by the Board as one allegation of unprofessional conduct, not 121 allegations.
76 It is accepted that it is relevant for the Tribunal to consider the context and circumstances in which the misconduct occurred as outlined by the practitioner in considering why the misconduct occurred repeatedly, namely the conduct of others. However, the Tribunal does not accept that the errors of others provide a satisfactory excuse for the misconduct. The fact that the misconduct is repeated so often over such a long period is a matter that adds to the seriousness of the misconduct in the view of the Tribunal.
77 Further, the Tribunal does not agree that the failure of the practice owners or managers to act on the matter or the failure of either of the Department of Health or the Board to identify the issue at an earlier time, provides a satisfactory explanation or reasonable excuse for the misconduct.
78 It is also accepted that the consideration, as identified by the Tribunal in Alexander, is whether the incident was isolated 'such that the Tribunal can be satisfied of [the practitioner's] worthiness or reliability for the future'. It is submitted that the term 'isolated' is used in the sense of whether or not the misconduct is likely to recur in the future.
79 It is noted that, so far as the Tribunal is aware, there has been no repeat of this kind of conduct since 2013. In the light of the character evidence and the lack of evidence of any misconduct since, the Tribunal is satisfied that the practitioner's 'worthiness or reliability for the future' is not in question to any great degree or at all. The misconduct can be and is accepted as an unfortunate episode in the past. There is no basis for the Tribunal to have any great concern for the future as to either aspect of the misconduct recurring. This finding is of relevance. It is a significant factor in relation to penalty.
80 The practitioner was first registered as a veterinary surgeon in December 1994, some 23 years ago.
81 So far as the Tribunal is aware, the practitioner has no disciplinary history, and none is alleged.
9. Whether the practitioner understands the error of his ways - remorse and insight
83 The Board's submissions refer to the practitioner as expressing no understanding, remorse or insight regarding his conduct.
84 The practitioner, through counsel, submits to the contrary. He claims that since the time of his interview with the Department of Health in October 2013, he has repeatedly shown an understanding and insight that his conduct was in breach of the Poisons Act and Poisons Regulations. Amongst other things, he has assisted the Department in its investigations, pleaded guilty to prosecutions brought by the Department and then also assisted and made full disclosure to the Board in its separate investigation. In doing so, he says he has also expressed his remorse for his conduct.
85 He submits that further demonstrations of insight and understanding are evident in the steps that he has taken:
86 The practitioner, of course, vigorously denied any wrong doing before the Tribunal. However, even though the practitioner has the right to have the allegations made against him tested fully at a hearing, there are a number of authorities that bear on the possible effects of such a course.
87 The practitioner's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [24] (A Legal Practitioner); Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
88 In Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62, the New South Wales Court of Appeal stated at [80]:
'This is not simply because such admission may save time and avoid unnecessary controversy. It is because a Barrister is more likely to be accepted by Judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of selfinsight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.'
90 A practitioner's failure to understand the impropriety of his or her conduct may be a factor of importance in determining the appropriate disciplinary sanction, including whether they should be permitted to stay on the Register; A Legal Practitioner at [32] [34]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler); Legal Profession Complaints Committee v Love [2014] WASC 389; Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35] [44] ; Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [104].
91 Practitioners who seek to blame others or denigrate the statutory authority which regulates their profession or deny that authority's right to investigate their conduct, demonstrate a lack of insight and a failure to accept responsibility for their actions; Segler at [27] [28]; Johnson at [120]; Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107 at [50] - [55].
92 It is of concern to the Tribunal that throughout his evidence and, indeed, in the way that his case as to penalty was put to the Tribunal, there appeared to the Tribunal to be a lack of appreciation of the seriousness of the conduct. At all times, the relevant register entries were referred to as 'incorrect' or 'inaccurate' or as referring to 'different amounts of codeine' [than had been recorded in the clinical notes] or as 'a failure to properly record' the dispensed amount.
93 At no time did the practitioner appear to the Tribunal to accept that what he was doing amounted to a deliberate falsifying of the record, or to acknowledge the inherent deceit or lack of candour that his actions involved. This is reflected right up to and including the submission made on his behalf, that his conduct was not dishonest. Rather, he seemed to consider his conduct to simply be in the nature of inappropriately completed paperwork. The Tribunal does not accept that the practitioner has full insight into his conduct.
94 Nor did he appear to the Tribunal to be remorseful. It is illuminating that nowhere in the practitioner's evidence is there any direct expression of remorse for his conduct.
95 Remorse is mitigating. The absence of remorse is not aggravating; Khosa at [58].
96 As was stated in Khosa, at [210], 'remorse involves a real regret or contrition for wrongdoing'. It means regret or contrition for the wrongdoing, not merely regret for the consequences to the practitioner of the wrongdoing. It requires more than the practitioner taking practical steps in relation to his method of practice to ensure that he is never placed in the same position again. It requires more than cooperation with investigations and a plea of guilty when prosecuted.
97 It needs to be 'timely, demonstrable remorse'; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S) at [14].
98 The Tribunal also takes the view that, at all times, the practitioner has sought to cloak his misconduct as responsive to deficiencies in the register caused by others, entirely failing to acknowledge that on each of the 121 occasions, he had a choice about whether to enter a false figure in the register or to take some other action.
99 He also seemed to be inviting the Tribunal to accept that he had been targeted by the regulatory authorities and the fact that others had not been pursued by the authorities for their failings should be seen as mitigating his conduct.
100 Rather than seeking to deflect some of the blame onto others, the practitioner should have frankly acknowledged his own failings. The fact that he failed to do so, leads to the inference that he does not have good insight.
101 The Tribunal does not accept that the practitioner is genuinely remorseful or that he has full insight into his conduct.
102 This consideration is of relevance. It is a significant factor in relation to penalty.
10. Desirability of making available to the public any special skills
103 The practitioner is not a specialist veterinarian. However, the Tribunal accepts that there are few others in the State with the practitioner's skill set.
104 The Tribunal accepts his evidence, corroborated as it is by the unchallenged evidence of the various witnesses who have provided statements in support of him, that a significant portion of his practice is involved in providing much needed veterinary services to the community that could not easily be replaced over the longer term. He has skills and offers services in relation to ophthalmic veterinary care, particularly in equine practice, that the Tribunal understands to be in reasonably short supply in the Perth metropolitan area and non-existent in country Western Australia. He offers a mobile service and travels to country areas. He has invested in a considerable amount of specialist equipment that his service makes available to clients. Were he not to be in practice, the Tribunal accepts that members of the public in these regions would be required to either travel to the metropolitan area at their own expense in search of similar levels of expertise for their animals, or to make a choice not to access the relevant care for their animals, to the likely detriment of those animals. Members of the public in the metropolitan area may well be deprived of ready access to expert ophthalmic care for their animals given that there appears to be only one metropolitan practice that offers specialist ophthalmic advice, albeit from two available specialists.
105 It is in the public interest to have the practitioner's skills available to them. This consideration is of relevance. It is a factor in relation to penalty.
106 The practitioner is married with 2 school age children and is the primary source of income for his family. It is noted that he does not seek to rely on any personal circumstances, either at the time of the conduct or at the time of the imposing of the sanction, as overriding any application of the other considerations of the Tribunal.
107 It is also accepted by the Tribunal that the practitioner provides his services and advice pro bono from time to time for a number of organisations concerned with the welfare of both native and non-native animals.
108 As previously mentioned, the Department of Health prosecuted the practitioner in early 2014 in respect of 17 instances of incorrect entries in the Greenfields Codeine Register. The practitioner pleaded guilty to those prosecutions at the first opportunity, fines were imposed, and the Magistrate also considered it appropriate to make spent conviction orders in accordance with s 39(2) and s 45 of the Sentencing Act 1995 (WA). The Department did not appeal either the amount of the fines or the making of the spent conviction orders, and has taken no further action against the practitioner.
109 These two matters are relevant albeit to a very limited extent to penalty.
110 The Board urged the Tribunal to accept its submission that it was relevant to penalty that the practitioner had acted in a way that was against the public interest in that he had, by his conduct, placed at risk the profession's current privileges to directly prescribe and supply restricted drugs. The Board relies on a view to this effect expressed in a paper delivered to the Australian Veterinary Conference in 2014 and tendered into evidence by the practitioner.
111 Whilst the Tribunal accepts that a view was expressed in the paper by its author, a respected veterinarian, to the effect that there may be a risk in the future if, collectively, the profession does not do more to strengthen its drug management compliance, there is no evidence that the relevant prescribing privileges are in fact now at risk, nor that the particular conduct of the practitioner has contributed to such a risk. The Tribunal rejects this notion as relevant to penalty in this case.
112 Notwithstanding that the Tribunal has found a degree of dishonesty in the practitioner's conduct, as was stated in Khosa, honest practitioners can occasionally make a serious mistake. This kind of mistake does not, without more, define them.
113 Even though the Tribunal is of the view that the practitioner's conduct is very serious, it has not been established that the practitioner is not a fit and proper person to be a veterinary surgeon so as to justify an order that his name be removed from the roll of practitioners.
114 It is therefore the conclusion of the Tribunal, given the seriousness of the conduct and the lack of insight and remorse, a suspension for some period is appropriate.
115 As to the length of the suspension, having regard to all the factors identified which we have set out above, and to the submissions advanced by the parties, the Tribunal concludes that a suspension of the practitioner's registration for a period of 2 months would achieve all that is necessary for the protection of the public and the maintenance of the reputation and standards of the profession in this case.
116 The Tribunal also considers that it should impose the maximum fine of $1,000.
117 When these two sanctions are considered in the light of the finding itself against the practitioner of unprofessional conduct and also the costs which are awarded against the practitioner, this in the Tribunal's view is appropriate to show the Tribunal's emphatic disapproval of the conduct.
118 The Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.
119 The Tribunal will also order that the practitioner gives to the Board the undertaking agreed to by the practitioner not to administer or dispense codeine to any of his patients.
120 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(a) whether the party (in bringing or conducting the proceeding before the decision maker in which the decision under review was made) genuinely attempted to enable and assist the decision maker to make a decision on its merits;
(b) whether the party (being the decision maker) genuinely attempted to make a decision on its merits.
(5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6) The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
121 The provisions of s 87(2) of the SAT Act are not displaced by any provisions of the VS Act. Accordingly, the Tribunal has the discretion to order the payment by a party of all or any of the costs of the other party.
122 As the Tribunal observed in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest and usually with limited resources. It is in the public interest that such bodies have an expectation that, if the allegation is made out, the offending professional will meet or at least contribute to the costs in bringing about the application; Roberman at [30].
123 In Roberman, the applicant was unsuccessful in relation to some of the allegations brought against the practitioner in question. The Tribunal considered that it was appropriate in that case that that the respondent pay one third of the applicant's costs.
124 In terms of the actual amount of costs claimed, the Tribunal's approach is to look not at what has actually been charged to the client, but rather, to consider what reasonable allowance should be made, taking a robust and broad brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion; Medical Board of Australia and Costley [2013] WASAT 2 at [66]; The Owners of Strata Plan 4 1133 and Lend Lease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5].
The amount claimed and the disposition of the matter
125 The Board says that is incurred costs and disbursements up to the end of the proceeding in Harris of $101,430.80. It seeks an order that the practitioner pays half of those costs, together with all of its costs incurred 'in dealing with the disciplinary sanction'. The Board does not specify any amount with regard to the latter.
126 The Tribunal considers that the practitioner should meet some of the Board's costs. However, the Board was successful in only one of the allegations made against the practitioner and the Tribunal will order that the practitioner pays the Board's costs, including the costs incurred in concluding this matter, in a total amount of $35,000. This amount is to be paid to the Board by 31 March 2018.
I certify that this and the preceding [126] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Dekker v Medical Board of Australia [2014] WASCA 216
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
Veterinary Surgeons' Board of Western Australia v Alexander [2014] WASC 486
... The notion of unprofessional conduct first found its place in s 20 of the [Legal Practitioners' Act 1893 (WA)] when it was enacted in 1893. This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. ... While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.
(1992) 110 ALR 449
(1957) 97 CLR 279
(1938) 60 CLR 336
(1999) 21 WAR 56
(1995) 15 WAR 12
(2001) 79 SASR 545