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 - where allegations substantiated - where registrant found to have behaved in a way that constitutes 'misconduct in a professional respect' - appropriateness of action to be taken following findings made

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9, 10, 28, 100

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

Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27

Medical Board of Australia v Mughammad Saliem Ismail unreported, State Administrative Tribunal No 212 of 2013, 10 October 2014

Medical Board of Western Australia v Roberman [2005] WASAT 118

Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105

Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234

Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380

Veterinary Practitioners Board (NSW) v Hughes [2013] NSWADT 313

Veterinary Surgeons Board of Queensland v McIntosh [2010] QCAT 601

Veterinary Surgeons Board of Queensland v O'Flaherty [2010] QCAT 8

Veterinary Surgeons Board v Western Australia v O'Keefe, unreported, State Administrative Tribunal No 60 of 2013, 28 May 2013

Veterinary Surgeons Investigating Committee v Soemartopo [2007] NSWADT 107

Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186

Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107

Veterinary Surgeons Investigating Committee v Williamson (No. 2) [2005] NSWADT 112

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

Victor Leslie Griffin represented by Mr R Devlin AM of Queens Counsel with Mr M Labone of Counsel instructed by WP McMillican Legal & Consulting

[1] On 26 October 2016, the Tribunal found that Dr Victor Leslie Griffin's conduct for each of the 21 allegations referred was 'misconduct in a professional respect.'[1]

[2] The Tribunal must now determine appropriate orders as to sanction and whether Dr Griffin should pay the costs of the proceedings because of our earlier findings and Dr Griffin's admissions in relation to record keeping.[2]

[3] The power to make appropriate orders in relation to sanction and costs is contained in the Veterinary Surgeons Act 1936 (Qld) (the Act). Under s 22E the Tribunal may make certain orders if it decides a veterinary surgeon (the registrant) has 'engaged in misconduct in a professional respect'. These orders include removing the registrant's name from the register, suspending registration, a pecuniary penalty and admonishing or reprimanding the registrant.[3] The Tribunal also has the power under s 15D to make any decision about costs 'it considers appropriate'.

[4] In this matter, the Veterinary Surgeons Board is seeking an order that Dr Griffin's name be removed from the register and that he not be permitted to reapply for registration for a period of 3 years. The Board is also seeking an order that Dr Griffin pay its costs of and incidental to the proceedings.[4]

[5] Dr Griffin does not agree with the submissions advanced by the Board. Dr Griffin submits that a period of suspension of up to 6 months is appropriate. Dr Griffin submits that there should be no order as to costs, having regard to the number of allegations which were withdrawn, the fact that he was previously ordered to pay the Board's costs fixed in the sum of $20,000; and his limited capacity to pay a costs order. Alternatively, Dr Griffin submits that any costs order should exclude the Board's costs of the allegations which were discontinued by the Board.[5]

[6] In this matter, the Tribunal has considered its earlier findings and Dr Griffin's admission in relation to his record keeping. We have also considered the written submissions filed and the oral submissions made at the further hearing of this matter by Mr Wilson for the Board and Mr Devlin AM of QC for Dr Griffin in relation to the appropriateness of sanction and costs.[6]

What is the purpose of disciplinary proceedings?

[7] 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.[7]

[8] There are several cases from this jurisdiction and other states that have considered the purpose of disciplinary proceedings and made appropriate orders following a finding/s of misconduct in a professional respect.

[9] In written submissions, the Board refers to the principles noted in Veterinary Surgeons Board of Western Australia v Alexander,[8] in particular that the 'welfare of animals' are important when considering the general principles of disciplinary sanctions.[9] The Board also refers to the Tribunal's 'global approach' to sanction.[10]

[10] In Alexander's case, the Tribunal made findings of 'unprofessional conduct' in relation to a veterinary surgeon's administration of a drug to a guinea pig and surgery performed on three guinea pigs. The Tribunal said that where there is a choice of sanction it will choose that sanction which maximises the 'protection of the public'.[11] The Tribunal also said that the impact that a particular penalty would have upon a practitioner guilty of misconduct and personal hardship are secondary considerations.[12] The Tribunal also said that a 'global' approach to sanction may be more appropriate.[13] The relevant extracts from Alexander's case are as follows (footnotes omitted):

Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public...

The dominant purpose of the disciplinary regulation of the veterinary profession is the protection of the public by the maintenance of proper standards within the profession. Therefore, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner are necessarily secondary considerations...

There are considerations in which a 'global' approach to sanction rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings, namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription...[14]

[11] In relation to removal from the register, the Tribunal in Alexander's case said that the purpose (of removal) is not to punish the practitioner concerned but for the protection of the public and the reputation and standards of the veterinary profession. The Tribunal said that where an order for removal is contemplated the ultimate question is 'whether the material demonstrates that the practitioner is not a fit and proper person to remain a veterinary surgeon'.[15] The Tribunal also said that a practitioner is not a 'fit and proper person' to be registered as a veterinary surgeon and should be removed from the register where the unprofessional conduct is 'so serious that the practitioner is permanently or indefinitely unfit to practise'.[16]

[12] In relation to a suspension, the Tribunal in Alexander's case said that it is less serious and differs from removal from the register because the practitioner 'has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice'.[17] The Tribunal said that suspension is appropriate where the Tribunal is satisfied that, upon completion of the period of suspension the practitioner will be 'fit to resume practice'.[18]

[13] In written submissions in response, Mr Devlin AM of QC submits that in considering the orders proposed by the Board (removal from the register) the Tribunal must balance the public interest in allowing Dr Griffin to practice, against the public interest in protecting patients from any repetition of the conduct exhibited (both by the practitioner and against similar defaults by other practitioners).[19]

[14] Mr Devlin AM of QC relies on the principles considered in Gelderman v Veterinary Surgeons Investigating Committee (GD).[20] Gelderman's case said that the Tribunal must balance the public interest in allowing competent practitioners to practice against the likelihood of a repetition of the offence. Gelderman's case also said that the protection of the public in disciplinary proceedings is not confined to the protection of the public from similar defaults by the practitioner but extends to the 'protection of the public against similar defaults by other practitioners'.[21] The relevant extracts from Gelderman's case also referred to in written submissions is as follows (footnotes omitted):

In determining whether a practitioner found guilty of misconduct should be permitted to continue to practice, the Tribunal must, amongst other things, balance the public interest in allowing competent practitioners to practice, against the likelihood of a repetition of the offence. "The public interest in allowing the practitioner to continue to practice must be weighed against the public interest in protecting patients from any repetition of the conduct exhibited in the case"...[22]

However it is clear from the authorities that an assessment of the likelihood of a repeat of the offending behaviour is not the sole issue before the Disciplinary Panel in its determination as to whether it is the public interest to make an order to suspend (or remove) a veterinary surgeon from practice. While the purpose of orders made in disciplinary proceedings is the protection of the public, protection of the public is not confined to the protection of the public from similar defaults by the practitioner the subject of the disciplinary proceedings, but extends to the protection of the public against similar defaults by other practitioners. "In this sense any penalty has an element of general deterrence, publicly marking the seriousness of what the instant [registrant] has done"...[23]

[15] The Tribunal also said in Gelderman's case that it is clear from the authorities that 'deterrence, both general and personal' is a key principle in 'guiding disciplinary tribunals' on the appropriate sanction to impose.[24] The Tribunal also said that any sanctions imposed on the practitioner 'will inescapably have a punitive consequence for the practitioner'; and that the person ultimately responsible 'for his or her misfortune' is the practitioner in question.[25] The relevant extracts from Gelderman's case are as follows (footnotes omitted):

It is clear from the authorities that deterrence, both general and personally, is a key principle in guiding disciplinary tribunals and courts on the appropriate sanction to impose. While it may reflect a somewhat pessimistic view of human nature, common sense and experience of the world tell us that a measure of deterrence is necessary in both the criminal and the purely protective, disciplinary spheres...[26]

While this is a protective jurisdiction, if any sanctions at all are imposed upon the practitioner, they "will inescapably have a punitive consequence for the practitioner"... But the person ultimately responsible for his or her misfortune is, of course, the practitioner in question.[27]

[16] In Queensland, this Tribunal has previously made findings about a veterinary surgeon's conduct and determined whether or not an appropriate sanction should be imposed on the registrant.

[17] In Veterinary Surgeons Board of Queensland v McIntosh[28] a decision was made to impose a 'lengthy suspension' on the registrant. The Tribunal had regard to the facts that were admitted and the consequences for the horses treated under the registrant's care. The Tribunal said that '[t]he suspension would also reflect the seriousness of her [the registrant's] misconduct, and serve as a deterrent to those who choose to engage in similar practices'.[29]

[18] In McIntosh's case, the registrant provided dental treatment to four horses. The serious consequences of the registrant's conduct that was found to be 'misconduct in a professional respect', included, amongst other things, medical complications arising from the treatment. For example, one of the horses treated was euthanised and in another instance, the treatment resulted in pulp exposure and/or thermal pulp necrosis leading to the death of the 4 extracted teeth.

[19] In McIntosh's case, the Tribunal accepted and took into account several factors in considering sanction, including insight into the conduct, undertakings given to the Tribunal to undergo further specialist training in equine dentistry and the serious consequences of the registrant's conduct. The Tribunal accepted that the registrant did not intend the consequences of her dental treatment nor did she disregard the welfare of the animals she treated. The Tribunal found, however, that the registrant was 'somewhat misguided in her approach' in regards to the techniques used.[30] The Tribunal was 'confident' that with 'proper education' the registrant will not fall into the same error in the future.[31] The Tribunal also said that any suspension will have 'serious consequences on the [registrant]' and accepted that the registrant and her husband have significant expenses.[32] The Tribunal imposed an order that the registrant be reprimanded and her registration suspended for a period of 3 months save for those periods necessary to undertake the various training and courses the subject of the respondent's undertaking to the Tribunal. The Tribunal also made an order in relation to costs.

[20] In Veterinary Surgeons Board of Queensland v O'Flaherty,[33] the Tribunal found that the registrant had engaged in 'misconduct in a professional respect' but did not take any further action. The conduct concerned giving out-of-date antibiotics to a dog, operating premises that were not approved veterinary premises and failing to keep adequate records. The registrant provided to the Board an undertaking for his immediate and permanent retirement. The Tribunal said that the conduct which the registrant 'concedes occurred' may not have warranted a sanction that removed him from the register. The Tribunal said, however, that the registrant has given an undertaking to the Board and this is not something the Tribunal can 'interfere with'.[34]

[21] In Veterinary Surgeons Board of Queensland v Brown[35] the Tribunal made findings about the conduct of the registrant but did not take any action under s 22E of the Act because of undertakings made by the registrant to the Board. The registrant's conduct concerned treatment of a cat that was later euthanised by another practitioner and a failure to keep adequate records. The registrant gave undertakings to the Board to complete two courses being in emergency medicine and internal medicine at his own cost. The Tribunal said that recognising the undertaking, rather than making an order under s 22E of the Act, 'is an appropriate sanction to achieve the purpose of protecting the public and maintaining the integrity of the profession'.[36] The Tribunal ordered that the registrant pay the Board's costs of the proceeding and said that Dr Brown accepts that, 'given his admissions', he should be ordered to pay these costs.[37]

[22] In New South Wales, the Tribunal in Veterinary Surgeons Investigating Committee v Temmingh[38] ordered that the veterinary surgeon's name be removed from the register and that he not apply for restoration of his name for at least five years. Dr Temmingh was prosecuted and convicted in the criminal jurisdiction of the Supreme Court. He wilfully supplied injectable steroids and wilfully made a false entry in a record. He also pleaded guilty to charges of importing restricted substances. The Tribunal said that the conduct was 'so serious and involve[ed] such a significant departure from accepted standards of professional conduct that it is appropriate that his name be removed from the register'.[39] Dr Temmingh was also ordered to pay costs.

[23] In Veterinary Surgeons Investigating Committee v Williamson (No. 2),[40] the Tribunal reprimanded Dr Williamson and ordered that he submit at his own expenses to auditing of his prescribed practices. The Tribunal said that Dr Williamson is a very experienced veterinary surgeon who has specialised for much of his career in equine medicine. Dr Williamson for two instances supplied a substance without examining the animal or having the animal under his care. One of the substances was a restricted substance (labelled 'Femme') and the other substance was labelled 'Pain'. He was also ordered to pay costs. Dr Williamson admitted all of the facts relevant to the allegations and the parties put forward different options as to the disciplinary orders that the Tribunal should make. In relation to conduct, the Tribunal said that public confidence in the operation of racing relies on licensed persons observing the rules of racing and behaving with integrity and to deal directly with these animals. The relevant extract from Williamson's case is as follows:

Dr Williamson's conduct is also of special concern because it involves racing animals. The racing industry and the massive gambling activities (and income stream to government) that surround it are tightly regulated. Public confidence in the operation of racing depends heavily on licensed persons observing the rules of racing and behaving with integrity. Equally, professionals with a close involvement in the industry must act in a way which upholds that public confidence. While animal welfare considerations are the paramount ones, the nature of this industry provides an important additional reason for ensuring that veterinary surgeons only deal directly with these animals.[41]

[24] In Williamson's case, the Tribunal in determining sanction gave some weight to the fact that Dr Williamson did, belatedly, plead guilty thereby saving the applicant and the Tribunal the time, effort and cost of further days of hearing.[42] The Tribunal said that his misconduct should be the subject of a reprimand and that the significance of the misconduct warrants the imposition of a condition on his registration.

[25] In Veterinary Surgeons Investigating Committee v Thompson[43] the Tribunal ordered the removal of the veterinary surgeon's name from the register and that he not make any application for the restoration of his name for a period of four years. Dr Thompson supplied an injectable steroid to a person and engaged in conduct that is likely to damage the international reputation of Australia in relation to animal exports, animal welfare, animal produce or sporting events; and signed a certificate inappropriately. Dr Thompson did not dispute the allegations and the Tribunal was furnished with an agreed statement of facts. The Tribunal found that his conduct was 'not that of some young, unsophisticated inexperienced veterinary surgeon. He was well versed in the appropriate procedures and fully appreciated the significance of providing reliable evidence to Thai authorities which was vital to the export of the horses to Thailand'.[44] Dr Thompson was also ordered to pay the applicant's costs.

[26] In Veterinary Surgeons Investigating Committee v Soemartopo[45] the Tribunal removed the veterinary surgeon's name from the register and ordered costs. Dr Soemartopo made full admissions to the facts alleged and accepted his conduct in relation to purchasing and prescribing and dispensing Schedule 4 poisons. He also failed to record adequate clinical notes. Dr Soemartopo admitted that he personally consumed or administered to himself some of the Schedule 4 poisons. In 2010, Dr Soemartopo was successful in obtaining leave to make an application to the applicant for restoration to the register.

[27] In Veterinary Practitioners Board (NSW) v Hughes[46] the Tribunal ordered, by consent, that the veterinary surgeon's registration be cancelled and she was prohibited from applying for registration for a period of 12 months. The charges concerned professional skill in the administration of doses involving the provision of steroids to a human being and breaches of record keeping standards especially those relating to injectable steroids. Dr Hughes had more than 20 years' experience as a veterinary surgeon and had worked with horses. She made admissions about the allegations and the final orders were made by consent including an order that the parties bear their own costs of the proceedings. In determining the sanction to be imposed the Tribunal said that deregistration is 'a very significant one for a practitioner' and is the most significant penalty that can be imposed. The Tribunal said that the purpose of disciplinary proceedings is the protection of the public and if she is to reapply, she will have to 'satisfy the Board that she has the current skills and judgment to be registered again'.[47]

[28] In Western Australia the Tribunal in Veterinary Surgeons' Board of Western Australia v O'Keefe[48] ordered that the veterinary surgeon's name be removed from the register. Dr O'Keefe made admissions to the conduct that was found to be 'unprofessional conduct' in relation to a failure to make and keep proper clinical records. The Tribunal noted that the conduct occurred in circumstances in which the majority of Dr O'Keefe's practice involved racing greyhounds, he was under extreme personal and professional pressure and all of the records maintained in electronic form prior to about August 2011 were lost when the computer malfunctioned. The Tribunal also noted that Dr O'Keefe co-operated fully with the investigation of the Board and made admissions at the first opportunity that her conduct was unprofessional.[49] In 2014 Dr O'Keefe was successful in obtaining leave to make an application for restoration to the register.[50]

[29] In Medical Board of Australia v Mughammad Saliem Ismail[51] the Tribunal ordered that the medical practitioner be reprimanded, his registration cancelled, his name be removed from the register and he pay the Board's costs of the proceeding to be assessed if not agreed. In this matter, the medical practitioner prescribed anabolic androgenic steroids, human growth hormones and stimulants in circumstances where there was no proper therapeutic indication for the use of the drugs and they had the potential to cause effects adverse to the health of the patients to whom the drugs were intended. The medical practitioner made full admissions and the parties agreed the terms upon which the proceedings could be settled.

Tribunal findings about the appropriateness of sanction

[30] We do not find the earlier Queensland cases from this Tribunal helpful in this matter. As discussed above, in McIntosh's case_,_ the Tribunal did consider appropriate orders as to sanction but also acknowledged that concessions had been made by both the Board and the registrant as to the allegations and the appropriate penalty to be imposed. In O'Flaherty and Brown although relatively recent decisions, the Tribunal did not determine the appropriateness of the sanction to be imposed because undertakings had been given by the registrant to the Board.

[31] The cases from other states, discussed above, also acknowledge that in some instances admissions as to conduct and concessions in relation to sanction had been made by the parties. In the cases where deregistration was imposed as a sanction for certain conduct, the Tribunal described such conduct as 'so serious',[52] not that of an 'inexperienced veterinary surgeon'[53] and 'very significant'[54] for the registrant. For sanctions other than deregistration, such as a reprimand and auditing conditions (imposed), the Tribunal referred to the conduct as being of 'special concern'[55] and also referred to the public confidence in the operation of the racing industry.

[32] In this matter, but for the record keeping, Dr Griffin did not make any concessions about the allegations that were ultimately found to be substantiated. Dr Griffin and the Board do not agree about the sanction to be imposed. We find both Alexander's case and Gelderman's case to be relevant and helpful authorities in this matter because both cases give considered and detailed reasons for imposing relevant sanctions and the purpose of disciplinary proceedings.

[33] We find Alexander's case is good authority for the proposition that a global approach to sanction should be taken and the question of whether Dr Griffin is a fit and proper person to practice as a veterinary surgeon is a relevant consideration in determining sanction and to considering a sanction of deregistration. We find that in determining the appropriate sanction we must choose that sanction which maximises the protection of the public. In relation to making an order to remove Dr Griffin's name from the register, we must be satisfied that all of the material before us demonstrates that he (Dr Griffin) 'is not a fit and proper person' to be registered as a veterinary surgeon and that his conduct is so serious that he is 'unfit to practise'.[56]

[34] We find that, consistent with the principles in Gelderman's case, in determining whether to remove Dr Griffin's name from the register, as submitted by the Board, we must also balance the public interest in allowing Dr Griffin to practice against the likelihood of a repetition of the offence by Dr Griffin and similar defaults by other practitioners.

What is the appropriate order in relation to sanction in this matter?

[35] Dr Griffin's conduct in relation to his treatment of thoroughbred and standardbred horses took place on various dates in 2011 and 2012 at various stables and farms throughout Queensland, New South Wales and Victoria.

[36] Dr Griffin's treatment of horses concerned the administration and dispensing of drugs that are restricted drugs.[57] Some of those drugs are now banned from use for horses in the racing industry. Save for two of the 21 allegations, all of the drugs administered by Dr Griffin were anabolic steroids. All of the anabolic steroids administered by Dr Griffin were 'injectable' drugs except for two allegations that involved the supply of Nitrotain paste that is administered orally.

[37] We found that for each of the 21 allegations referred, Dr Griffin's examination and evaluation of each horse treated was inadequate. We found that his conduct was 'misconduct in a professional respect' because his practice or conduct as a veterinary surgeon fell below the standard expected by his professional peers and the public.

[38] We preferred the expert evidence of Dr van Eps for the Board to Dr Clarke in relation to treating racing and sporting horses, and the Australian Pesticides and Veterinary Medicines Authority guidelines. We also preferred the evidence of Dr van Eps to Dr Clarke in relation to the standards and practice of veterinary surgeons. The expert evidence of Dr van Eps was compelling because it was evidence before us as to the standard expected of a veterinary surgeon when treating an animal such as a racing or sporting horse. We accepted Dr van Eps' evidence about treatment of animals and his evidence about what is reasonable veterinary practice, which was not inconsistent with the relevant sections of the Australian Veterinary Association Code of Professional Conduct (the AVA Code). The AVA Code says that a veterinary surgeon is required to, amongst other things, 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.

[39] We have carefully considered Dr Griffin's submissions advanced on his behalf by Mr Devlin AM of QC in relation to the appropriateness of sanction, in particular whether Dr Griffin's name should be removed from the register or whether a period of suspension should be imposed with or without an undertaking.

[40] In written submissions, Mr Devlin AM of QC says that the orders sought by the Board in relation to removal from the register, are not 'called for in the circumstances of this case'.[58] Mr Devlin AM of QC relies on relevant cases and refers to certain factors to be considered including the delay in the proceedings and 'changes' that he says Dr Griffin has made to his practice. Mr Devlin AM of QC submits that in the four years since Dr Griffin's conduct (and the referral) he has continued to practice 'without complaint or incident'.[59] Mr Devlin AM of QC refers to references filed in the proceedings that he says attest to the 'success of [Dr Griffin's] treatment'. Mr Devlin AM of QC submits and it is open to the Tribunal to find that he (Dr Griffin) 'provides a valued and needed service'.[60]

[41] Mr Devlin AM of QC submits that there is no evidence nor was it alleged by the Board that Dr Griffin has harmed any animal, nor is it alleged that there has been any 'subsequent misconduct' by Dr Griffin.[61] Mr Devlin AM of QC contends that in respect of injecting racehorses with anabolic steroids and the supply of Nitrotain, this case is 'unique in that the conduct is historic'.[62] Mr Devlin AM of QC refers us to Dr Griffin's earlier evidence given in the proceedings that he (Dr Griffin) no longer injects racehorses with anabolic steroids and has not done so since December 2013.[63] Mr Devlin AM of QC contends that the production of Nitrotain has been discontinued since May 2014, following the 2014 ban on anabolic steroids.[64] Mr Devlin AM of QC also submits that the Tribunal 'could be satisfied to a high standard' that there is no risk of repetition of his conduct in relation to the use of anabolic steroid injections or supply of Nitrotain by Dr Griffin or any other practitioner.[65] Mr Devlin AM of QC submits that a period of suspension of up to 6 months is appropriate.

[42] In oral submissions Mr Devlin AM of QC submits that Dr Griffin was truthful and made appropriate concessions in giving his evidence. Mr Devlin AM of QC submits that the Tribunal can be comfortably satisfied that there will be no repetition of the conduct by Dr Griffin that has brought him here before the Tribunal. Mr Devlin AM of QC contends that a strike off or to de-register Dr Griffin would be more punitive than protective in nature.

[43] In relation to the use of Bute paste and keeping of records, Dr Griffin relies on his sworn evidence contained in an affidavit in which he states that he has changed his practice.[66] Dr Griffin states:

In each and every circumstances of dispensing bute paste I examine the animal, arrive at a diagnosis and record all findings. All horses treated are exhibiting active signs of inflammation.

The maximum amount of bute paste which I now dispense is two (2) weeks treatment.

If a horse requires more than two (2) weeks treatment with bute paste, I would require the trainer or client to have a blood test of the horse to continue treatment. This has not been necessary to date.[67]

[44] Dr Griffin also states in his further affidavit that he will give 'undertakings' to the Tribunal that he will submit at his own expense to an annual audit of his record keeping by the Board for each of the next two years.[68] Dr Griffin states that he will submit to any supervising orders made by the Tribunal and/or undertake voluntary education or training as the Tribunal requires.[69]

[45] We are not satisfied that a period of suspension or any supervising orders/undertakings are appropriate in this matter having considered our earlier findings, all of the material before us and all of the relevant cases. We find that the appropriate order to be imposed by us must reflect the seriousness of Dr Griffin's conduct to ensure the maintenance of standards and public confidence in the profession. The order should maximise the protection of the public and serve as a deterrence to other practitioners from engaging in similar conduct. Consistent with the principles in Alexander's case, the protection of the public by the maintenance of proper standards within the profession is an important consideration in this matter. We find that Dr Griffin's conduct was 'so serious'[70] and not that of an 'inexperienced veterinary surgeon',[71] and was 'very significant'[72] because his conduct fell below the standard expected of a veterinary surgeon. We find that removal of Dr Griffin's name from the register of veterinary surgeons is an appropriate order in this matter.

[46] We have considered our earlier findings in relation to the 21 allegations. We found that in some instances Dr Griffin treated a number of horses for the same symptoms and with the same dose of drug without adequately examining and following up on treatment. We also found that in other instances Dr Griffin treated horses with the same dose of drug on an ongoing basis in circumstances where there were potential adverse effects that must be considered with the drugs.

[47] In relation to the administration of the drug Bute Paste, 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.

[48] In relation to Nitrotain paste administered orally, Dr Griffin again 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 different weight and gender may not respond the same way to the same dose of drug.

[49] In relation to the injectable anabolic steroids, Dr Griffin in most instances personally injected horses with a drug or combination of drugs for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We found that Dr Griffin administered the drug/s in circumstances where he did not adequately examine and follow up each horse treated and where each horse may not respond the same way to the same dose of drug.

[50] We have also taken into consideration Dr Griffin's admission in relation to record keeping. Dr Griffin admits keeping inadequate records on 31 visits to properties and stables over a period of 22 months, involving the administration or supply of treatments or restricted drugs to multiple patients as follows:

• 1.1 Bute Paste;

• 1.2 (injectable) Anabolic Steroids;

• 1.3 (Oral) Anabolic Steroid paste;

• 1.4 (Injectable) Pentosan;

• 1.5 (Injectable) Dexapent;

• 1.6 (Oral) Bronco pulmin powder;

• 1.7 (Oral) Clare gel paste.

[51] The number of horses administered to or supplied on each of the 31 visits ranged from 4 to 60 horses, or in some cases was unknown. Dr Griffin also admits to the administration of between 750 and 1200 items of restricted drugs and failing to keep an adequate record.[73]

[52] As we have said, Dr Griffin's conduct is very serious. He is not an inexperienced veterinary surgeon because he has 25 years' experience practising as an equine veterinarian and conducts a mobile practice focusing on racing and sporting horses.

[53] We find that Dr Griffin should be familiar with the AVA Code and the standards expected of a veterinary surgeon in relation to the treatment of an animal, in particular racing and sporting horses. As found by us and based on the evidence of Dr van Eps, reasonable veterinary practice requires an examination of the animal to establish a diagnosis then develop a therapeutic plan that also requires follow up treatment. This is something that Dr Griffin did not do in all 21 instances referred to us.

[54] The position of a veterinary surgeon is held in high regard in our community, particularly in the racing and sporting industry. There is an expectation in the community that a veterinary surgeon of 25 years' experience, such as Dr Griffin, will maintain a standard of practice including adopting adequate examinations and follow-up treatment and keeping and maintaining adequate records. As found by us and based on Dr van Eps' evidence, in every case before treatment a veterinarian surgeon must establish whether the animal in fact requires treatment. This requires examination and follow-up treatment.

[55] In relation to record keeping, we find the failure to keep adequate records is also serious and that members of the public would expect a veterinary surgeon with Dr Griffin's number of years of experience to be familiar with the Veterinary Surgeons Regulation 2002 (Qld). Section 25 of the regulations requires veterinary surgeons to keep and maintain adequate records and this is something that Dr Griffin has failed to do. As found by us and based on Dr van Eps' evidence, records are vital because they are the only way to 'gauge' whether treatment instigated is effective.

[56] We find Dr Griffin's repeated failures to examine and assess every animal before treatment and to keep adequate records is not only a failure that falls short of the professional standards of his profession but calls into question his ability to continue to practice and hold registration as a veterinary surgeon. We are satisfied, having considered all of the material, that Dr Griffin is not a suitable person to remain a veterinary surgeon, and that an appropriate sanction that removes his name from the register is warranted.

[57] We also find that a period of de-registration is warranted in this matter as a deterrence to other registrants who may disregard the standards expected of a veterinary surgeon in treating an animal and in keeping and maintaining adequate records. We find that consistent with the principles in Gelderman's case, the public interest in allowing Dr Griffin to continue to practice is outweighed by deterrence principles and the protection of the public from other practitioners engaging in similar conduct. This is particularly important in circumstances where a number of animals are being treated with the same dose of drug for the same symptoms. Furthermore, it is especially serious where a veterinary surgeon considers it necessary to leave a drug such as Bute Paste (that has potential adverse consequences for the animal) for the trainer or owner to administer (to the animal) in circumstances where the examination is inadequate and there is no follow up treatment. We also find that deterrence of similar conduct in this matter is important in considering that the horses were involved in the racing and sporting industry. As held in Williamson's case, there are standards expected in the racing industry and public confidence relies on licensed persons such as veterinary surgeons behaving with integrity.

[58] In determining the appropriate order under s 22E of the Act, we accept and have taken into consideration Dr Griffin's further evidence. We accept and find accordingly that Dr Griffin has been honest in giving his evidence throughout the disciplinary proceedings and, consistent with our earlier findings, 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 horses. We also accept that since the referral of the allegations there is no evidence before us of any complaints in relation to Dr Griffin's conduct and practice as a veterinary surgeon and this is, as submitted, evidence of good conduct by Dr Griffin in the past four years. We accept that Dr Griffin has implemented changes to his practice since the Tribunal's findings were made, particularly in relation to the administration of bute paste. We accept that Dr Griffin has clients that value his work as a veterinary surgeon.[74] We acknowledge that a period of de-registration will have serious consequences for Dr Griffin as a veterinary surgeon because, amongst other things, he will not be able to draw a wage from his practice during the period of disqualification. Dr Griffin will also need to re-apply for registration at the end of the relevant period of de-registration and this will require him to satisfy the Board that he has met all of the requirements (for registration) under the Act.

[59] The submissions advanced on Dr Griffin's behalf such as the evidence of his conduct since the proceedings were commenced, the changes made to his practice, references in support of his work as a veterinary surgeon, and findings made as to there being no adverse consequences or any complaints before us, are relevant matters to be considered by us in determining the period during which Dr Griffin will not be permitted to reapply for registration.

[60] In relation to the period of de-registration, Mr Wilson for the Board says that Dr Griffin's name should be removed from the register after a period of 14 days from the date of the order. Mr Wilson submits that Dr Griffin should not be permitted to re-apply for registration as a veterinary surgeon for a period of 3 years from the date of the Tribunal's order.[75] The Board also seeks an order that Dr Griffin pay the Board's costs of and incidental to the proceeding on the District Court scale of costs as agreed or as assessed.[76]

[61] We find that a period of 18 months as the time that Dr Griffin is not permitted to re-apply for registration is appropriate in this matter. We have taken into consideration Dr Griffin's early admission in relation to record keeping and his remorse in relation to his failure to keep and maintain adequate records as reflected in his recent affidavit sworn 8 February 2017.[77]

[62] We have considered and found that in the past four years there is no further evidence of complaint in relation to Dr Griffin and this is evidence of good conduct. We have considered the changes that Dr Griffin says he has made to his practice. We accept that Dr Griffin has been honest in giving his evidence before this Tribunal and that there is no evidence of adverse consequences in relation to Dr Griffin's treatment of horses but rather evidence before us in the form of references from clients that have engaged Dr Griffin's services as a veterinary surgeon. We find all of these matters to be relevant to the issue of sanction and the period of de-registration. We are satisfied that a period of de-registration and an order that Dr Griffin not be permitted to re-apply for 18 months will serve as a suitable deterrence to other practitioners from engaging in similar conduct and maintain standards required in the profession in relation to the treatment of animals. The period of 18 months is also appropriate having considered our findings, Dr Griffin's early admission in relation to record keeping and all of the relevant cases. The appropriate order in relation to sanction is that Dr Griffin's name be removed from the register effective from 14 days from the date of this order and he not be permitted to re-apply for registration for a period of 18 months. We make orders accordingly.

What is the appropriate order in relation to costs?

[63] Mr Devlin AM of QC submits that there should be no order as to costs. Mr Devlin AM of QC refers to the number of allegations which were discontinued late into the proceedings, the fact that Dr Griffin was ordered to pay the Board's costs fixed in the sum of $20,000 when the proceedings were adjourned on 5 November 2014; and Dr Griffin's limited capacity to pay a costs order. Alternatively, Mr Devlin AM of QC submits that any costs order made in favour of the Board should exclude the Board's costs of the allegations which were discontinued on 5 August 2015 being 43 allegations (or 67% of the total number of allegations).[78]

[64] In oral submissions, Mr Devlin AM of QC submits that the Tribunal should make an allowance for the withdrawal at a relatively late stage of the 43 allegations that did not proceed. Mr Devil AM of QC contends that Dr Griffin incurred costs in preparing for the whole raft of allegations.

[65] It is settled law that s 15D of the Act confers jurisdiction on the Tribunal to make a decision about costs it considers 'appropriate in the circumstances of the particular proceedings'.[79]

[66] In Veterinary Surgeons Board of Queensland v McIntosh[80] the Tribunal said that in making an order about costs the interests of justice remain 'a valid basis upon which the discretion ought be exercised under section 15D'. The Tribunal said (footnotes omitted):

In exercising the jurisdiction to make a costs order in this Tribunal, the interests of justice remain a valid basis upon which the discretion ought be exercised under section 15D. Also the broad power must still be exercised judicially, not upon irrelevant or extraneous considerations but upon acts connected with or leading up to the hearing. This would include the financial circumstances of the parties. The Board's submissions are generally confined to relevant matters. [81]

[67] In McIntosh's case the Tribunal found that the appropriate order in relation to costs was from a date when the registrant was fully apprised of the case against her. The Tribunal took into consideration the registrant's financial circumstances and health issue. The Tribunal determined that the appropriate order to make was that the registrant pay the Board's costs of and incidental to the application from and including '18 January 2010 when she was fully apprised of the case against her'.[82]

[68] We are satisfied that a costs order is warranted. We accept the evidence relied upon by the Board in relation to its costs incurred in these proceedings.[83] The Board relies on the sworn evidence of Valerie Mustafay, Registrar.[84] Ms Mustafay states that the Board has the responsibility of maintaining standards within the profession of veterinary surgeons in Queensland. A key aspect of that function is the investigation of complaints. The Board's income is derived from registration (or membership) fees paid by registered practitioners within the profession. It is anticipated that the Board's total costs for this proceeding will be approximately $310,000.00 plus GST.[85] We accept this evidence.

[69] We accept Mr Wilson's oral submission that this proceeding has been protracted and expensive for the Board and that a costs order is appropriate in this matter. In oral written submissions Mr Wilson referred to the Tribunal's findings in Medical Board of Western Australia v Roberman.[86] In Roberman's case the Tribunal said that where a regulatory body successfully brings a complaint of conduct there will usually be a strong case for the exercise of the discretion to award costs. This is because such bodies perform a function which promotes the public interest and usually with limited resources. The relevant extract from Roberman's case is as follows:

S87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. 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. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. It is of course a matter of discretion to be exercised in the circumstances of each case.[87]

[70] In this case, the Tribunal found all of the 21 allegations to be substantiated. Dr Griffin admitted only the allegations in relation to record keeping. In proceeding to a hearing for the 21 contested allegations there was expert evidence and Dr Griffin's oral evidence heard over 7 days. We accept that both the Board and Dr Griffin have incurred considerable costs in these proceedings. Such costs would include the costs of legal representation and expert evidence. The Board and Dr Griffin did not file an agreed chronology in relation to costs as directed.[88] The Tribunal has therefore considered the written and oral submissions made by both parties and all of the supporting material filed that are relevant to the issue of costs.

[71] We accept Dr Griffin's further evidence that he will have limited capacity to pay any costs ordered because he draws a wage from his practice and has no other source of income.[89] Dr Griffin's evidence alone in relation to his capacity to pay a costs order made is not a compelling reason to not award costs to the Board, particularly in circumstances where all of the 21 allegations referred and ultimately proceeded with were found to be substantiated. As held in Roberman's case the Board as a regulatory body has limited resources and a financial burden of bringing disciplinary proceedings. It is in the public interest that if the allegations are successful the offending registrant, in this case Dr Griffin, should meet or at least contribute to the costs incurred in bringing the proceedings.

[72] We accept that Dr Griffin should not be required to pay the Board's costs related to those allegations that were discontinued late in the proceedings. The parties rely on material including correspondence and emails exchanged in relation to the Board's position with all of the allegations and it is clear that from 5 August 2015 the Board was only proceeding with 21 allegations against Dr Griffin. We find that consistent with the principles in McIntosh's case Dr Griffin would have been in a position to know the case against him as at the date he received the Board's letter notifying him about the allegations that were to be discontinued. Dr Griffin should be responsible for the Board's costs after from 6 August 2015 being the day after the Board communicated to Dr Griffin that only 21 allegations would proceed because this is when he could make an informed decision about whether he would proceed to a contested hearing for the remaining 21 allegations.

[73] We also accept that Dr Griffin should not be required to pay the Board's costs prior to 5 November 2014 when the proceedings were adjourned. On 5 November 2014, Dr Griffin was ordered to pay the Board's costs fixed in the amount of $20,000.00. In exercising the broad discretion under s 15D of the Act and having considered all of the submissions and material, we are satisfied that a costs order is warranted in this matter. We find that the appropriate order in relation to costs is that Dr Griffin must pay the Board's costs of and incidental to these proceedings from and including 6 August 2015 to be agreed or assessed by way of a short form assessment from Garrett Legal Costs Assessors on a standard basis in accordance with the District Court Scale of Costs. We make orders accordingly.

[1] For the purposes of s 22F of the Veterinary Surgeons Act 1936 (Qld), see Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380.

[2] See schedule of admissions with respect to records - 11 April 2016 filed on 7 March 2017 and see submission of the registrant's board on penalty filed on 24 November 2016 and submissions on orders on behalf of the registrant filed on 15 December 2016 in accordance with directions made on 26 October 2016.

[3] Veterinary Surgeons Act 1936 (Qld) s 22E. See also s 15C that provides matters that the Tribunal must consider in making particular decisions including a disciplinary proceeding.

[4] Submissions of the board filed on 24 November 2016.

[5] Submissions of the board at page 14.

[6] Further directions were made by consent on 27 February 2017 for the filing of an agreed statement in relation to record keeping (received) and chronology in respect of costs (not filed).

[7] Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380, [44].

[8] [2014] WASAT 105.

[11] Surgeon's Board of Western Australia v Alexander [2014] WASAT 105, [14].

[14] Surgeon's Board of Western Australia v Alexander [2014] WASAT 105, [14] - [16].

[19] Submissions of the registrant, [7].

[20] [2001] NSWADTAP 27.

[28] [2010] QCAT 601.

[33] [2016] QCAT 8.

[35] [2016] QCAT 234.

[36] Ibid [17]. See also Ooi v Medical Board of Queensland [1997] 2 Qd R 176.

[37] Veterinary Surgeons Board of Queensland v Brown [2016] QCAT 234, [19].

[38] [2004] NSWADT 186.

[40] [2005] NSWADT 112.

[43] [2007] NSWADT 107.

[44] Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107, [43].

[45] [2007] NSWADT 172. See also earlier decision dated 25 September 2007.

[46] [2013] NSWADT 313.

[48] Unreported, State Administrative Tribunal No 60 of 2013, 28 May 2013.

[50] O'Keefe v Veterinary Surgeons' Board of Western Australia [2014] WASAT 106.

[51] Unreported, State Administrative Tribunal No 212 of 2013, 10 October 2014.

[52] Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186.

[53] Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107.

[54] Veterinary Practitioners Board (NSW) v Hughes [2013] NSWADT 313.

[55] Veterinary Surgeons Investigating Committee v Williamson (No. 2) [2005] NSWADT 112.

[56] Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105, [14]-[16].

[57] For the purposes of the Health (Drugs and Poisons) Regulation 1996 (Qld), see Appendix 9.

[58] Submissions on behalf of the registrant, p 1.

[66] Affidavit of Victor Leslie Griffin sworn 8 February 2017, exhibit 1 and see submissions on behalf of the registrant, p 9.

[70] Veterinary Surgeons Investigating Committee v Temmingh [2004] NSWADT 186.

[71] Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107.

[72] Veterinary Practitioners Board (NSW) v Hughes [2013] NSWADT 313.

[73] Schedule of admissions with respect to records - 11 April 2016 filed 7 March 2017.

[75] Submissions of the registrant's board, p 2.

[78] Submissions of the registrant's board, p 14.

[79] Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417.

[86] [2005] WASAT 118.

[87] Medical Board of Western Australia v Roberman [2005] WASAT 118, [30].

[88] Direction made on 27 February 2017.