O'KEEFE and VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
[2014] WASAT 106
•27 AUGUST 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: VETERINARY SURGEONS ACT 1960 (WA)
CITATION: O'KEEFE and VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA [2014] WASAT 106
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR M SPILLANE (SENIOR MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 AUGUST 2014
FILE NO/S: VR 143 of 2014
BETWEEN: JANETTE MAREE O'KEEFE
Applicant
AND
VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Professions Veterinary surgeon Application for leave to apply for restoration of name to Register Criteria for the grant of leave
Legislation:
Poisons Act 1964 (WA)
Poisons Regulations 1965 (WA)
Veterinary Surgeons Act 1960 (WA), s 24(4), s 24(4)(a)
Veterinary Surgeons Regulations 1979 (WA)
Result:
Leave granted
Summary of Tribunal's decision:
Dr Janette Maree O'Keefe applied for leave of the Tribunal to apply to the Veterinary Surgeons' Board of Western Australia (the Board) for restoration of her name to the Register of Veterinary Surgeons.
Dr O'Keefe's name had been removed from the Register as a result of consent orders made in the Tribunal in May 2013.
The Tribunal noted the nature of the conduct which led to Dr O'Keefe's deregistration, the steps taken by her to address the underling issues leading to her deregistration, and the time since deregistration.
The Tribunal concluded that it was appropriate for the Board to consider whether the matters raised by Dr O'Keefe would justify restoration of her name to the Register, and accordingly granted leave for her to make that application.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: No appearance
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Soemartopo [2010] WASAT 172
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
During 2013, the Board brought proceedings in the Tribunal against Dr Janette Maree O'Keefe (Dr O'Keefe) for unprofessional conduct as a veterinary surgeon.
The proceedings were resolved by agreement between the Veterinary Surgeons' Board of Western Australia (the Board) and Dr O'Keefe following mediation in the Tribunal in May 2013. Dr O'Keefe acknowledged that she was guilty of the conduct alleged, which comprised the prescription and dispensing of Schedule 4 poisons without making adequate clinical records, in breach of various regulations under the Veterinary Surgeons Regulations 1979 (WA) and certain provisions of the Poisons Act 1964 (WA) and the Poisons Regulations 1965 (WA).
The outcome agreed by the parties to those proceedings, and accepted by the Tribunal, was that Dr O'Keefe's name be removed from the Register of Veterinary Surgeons (the Register).
Dr O'Keefe now seeks to have her name restored to the Register. Section 24(4) of the Veterinary Surgeons Act 1960 (WA) (VS Act) enables a person whose name has been removed from the Register to apply to the Board for restoration of her name. Section 24(4)(a) provides that an application under subsection (4) cannot be made without first applying for and obtaining the leave of the Tribunal where the person's name was removed as a result of a proceeding before the Tribunal.
It is thus necessary for Dr O'Keefe to have the Tribunal's leave to make the application to the Board for restoration of his name to the Register.
Dr O'Keefe brought her application for leave on 30 July 2014. A directions hearing was held on 12 August 2014. Prior to the hearing, the Board indicated that it did not intend to appear. It drew the Tribunal's attention to the decision in Soemartopo [2010] WASAT 172 (Soemartopo). A direction was made that the matter be determined on the documents.
The grounds of the application
Dr O'Keefe's application states that as a result of the order she has not practised as a veterinary surgeon for around 15 months. She has implemented a protocol and a record-keeping system to ensure that she complies with the obligations of the relevant Acts and Regulations. The system covers recordkeeping in the field as well as a central system.
Dr O'Keefe's application for leave was accompanied by a reference from a veterinary surgeon in New South Wales, where she now lives, various greyhound trainers and former work colleagues.
The Tribunal's decision
An application under s 24(4)(a) of the Act does not require the Tribunal to determine whether the applicant's name should be restored to the Register. The issue for the Tribunal is whether leave should be granted for Dr O'Keefe to apply to the Board for restoration. The criteria for the grant of leave are not spelled out in the legislation.
In Soemartopo, the Tribunal set out the following factors as relevant to an application for leave:
a)the nature of the conduct which led to removal from the Register;
b)the time since the order leading to deregistration was made; and
c)the conduct of the practitioner since deregistration.
As in Soemartopo, whilst the nature of the conduct which led to Dr O'Keefe's removal from the Register was serious, it was not such as to suggest permanent unsuitability for veterinarian practice. The underlining problems leading to the conduct were matters which could be addressed by appropriate education and a more careful approach to the regulatory requirements of veterinary practice.
Fifteen months have elapsed since the order for deregistration was made. That is a substantial penalty, and one which the papers before us suggest caused considerable hardship for the applicant, particularly since she lost her position with Greyhound Racing New South Wales and suffered a substantial loss of income.
The conduct which led to Dr O'Keefe's deregistration is capable of being remedied by education and the implementation of suitable protocols, unlike some conduct which requires permanent deregistration.
Section 24(4) of the VS Act permits an application for restoration of a name to the Register being made at any time. In the case of a suspension for an offence, an application may be made after the expiration of 12 months from the date of deregistration.
Dr O'Keefe has not been convicted of an offence. Fifteen months is in excess of the minimum period for an application for restoration, even where that occurs as a result of conviction of an offence. In our view, the period since the suspension is such that it favours the grant of leave, particularly given the nature of the conduct which led to the deregistration.
It is apparent that Dr O'Keefe has made attempts to deal with the issues which caused her to be deregistered. We note that she has sought to reduce her use of steroids in the greyhound industry and to educate others about the need to reduce the use of steroids. This is also a factor which favours a grant of leave.
In all the circumstances, leave to make an application to the Board for restoration to the Register is appropriate. The grant of leave does not constitute any expression of opinion as to whether the application to the Board should succeed or otherwise. That is a matter for the Board, having regard to the materials put before it by Dr O'Keefe.
Order
The Tribunal makes the following order:
1.The applicant has leave pursuant to s 24(4)(a) of the Veterinary Surgeons Act 1960 (WA) to apply to the Veterinary Surgeons' Board of Western Australia for restoration of her name to the Register of Veterinary Surgeons.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT