SOEMARTOPO

[2010] WASAT 172

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: VETERINARY SURGEONS ACT 1960 (WA)

CITATION:   SOEMARTOPO [2010] WASAT 172

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

MR M SPILLANE (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   25 NOVEMBER 2010

FILE NO/S:   VR 211 of 2010

BETWEEN:   SUDJAR WAHJUDI SOEMARTOPO

Applicant

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)
State Administrative Tribunal Act 2004 (WA), s 11(3)
Veterinary Regulations 1979 (WA)
Veterinary Surgeons Act 1960 (WA), s 24(4), s 24(4)(a)

Result:

Leave granted

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Solicitors:

Applicant:     Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Dr Sudjar Wahjudi Soemartopo applied for leave of the Tribunal to apply to the Veterinary Surgeons' Board of Western Australia for restoration of his name to the Register of Veterinary Surgeons.  Dr Soemartopo's name had been removed from the Register as a result of consent orders made in the Tribunal in September 2007.

2. The Tribunal noted the nature of the conduct which led to Dr Soemartopo's deregistration, the steps taken by him to address the underlying issues leading to his deregistration, and the time since deregistration.  The Tribunal concluded that it was appropriate for the Board to consider whether the matters raised by Dr Soemartopo would justify restoration of his name to the Register, and accordingly granted leave for him to make that application.

Introduction

1. During 2007, the Veterinary Surgeons' Board of Western Australia (the Board) brought proceedings in the Tribunal against Dr Sudjar Wahjudi Soemartopo for unprofessional conduct as a veterinary surgeon in various respects.  The proceedings were resolved by agreement between the Board and Dr Soemartopo following mediation in the Tribunal in September 2007.  Dr Soemartopo acknowledged that he 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 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 Soemartopo's name be removed from the Register of Veterinary Surgeons and that he pay the Board's costs.

2. Dr Soemartopo now seeks to have his 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 their name. Section 24(4)(a) provides, however, that an application under subsection (4) cannot be made without first applying for and obtaining the leave of the State Administrative Tribunal where the person's name was removed as a result of a proceeding before the Tribunal. Thus it is necessary for Dr Soemartopo to have the Tribunal's leave to make the application to the Board for restoration of his name to the register.

3. Dr Soemartopo brought his application for leave on 29 October 2010. In a directions hearing on 9 November 2010, the Board, which had been named as a respondent to the application, appeared through counsel. The Board submitted that, given that, if leave is granted, it will fall to the Board to determine the merits of Dr Soemartopo's application to have his name restored, the Board should not participate in the proceedings for leave. That submission was accepted, and an order was made that the Board be removed as respondent to the application, and that the application proceed ex parte before a Tribunal constituted in accordance with the requirements of s 11(3) of the State Administrative Tribunal Act 2004 (WA). The direction was made that the matter be determined on the documents.

The grounds of the application

1. Dr Soemartopo submits that, as a result of the orders, he had not practised as a veterinary surgeon for around three years.  Since that time he has undertaken a number of on-line continuing education courses for veterinarians and a TAFE course to assist him in understanding and appreciating the value of keeping records.  He has formulated a recording system to collect data and print labels for any medications which he might dispense.  He has also addressed his use of Valium which had been an underlying issue in relation to one of the matters of complaint in the early proceedings.

2. Dr Soemartopo's application for leave was accompanied by a significant number of references from veterinary surgeons from within Western Australia supporting his reinstatement to the Register.  The general theme of those references is that Dr Soemartopo has endured a significant penalty for his earlier unprofessional conduct, that he has taken significant steps to address the deficiencies in his practice, and that the period of deregistration is an adequate penalty for his earlier transgressions.

The Tribunal's decision

1. An application under s 24(4)(a) of the VS 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 Soemartopo to apply to the Board for restoration. The criteria for the grant of leave are not spelt out in the legislation.

2. The VS Act expressly contemplates that the person whose name has been removed from the Register might have his or her name restored.  Removal from the Register is a serious disciplinary penalty and in some cases, the conduct leading to removal from the Register will be of such a character that it suggests permanent unfitness to undertake the responsibilities of a veterinary surgeon.  There will be other cases, however, where whist the conduct is serious, and warrants removal from the Register, the conduct is not of such a nature as to suggest that the person concerned will never be fit for practice.  It follows, in our view, that, in considering an application for leave, the nature of the conduct which led to removal from the Register must be considered.

3. In our view, whilst the nature of the conduct which led to 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, in this case, matters which could be addressed by appropriate education and more careful approach to the regulatory requirements of veterinary practice. 

4. A second factor in relation to the grant of leave is the time since the order leading to deregistration was made. In this case, the period of deregistration approximates three years. That is a very substantial penalty, and one which the papers before us suggest worked considerable hardship on the applicant. Section 24(4) of the VS Act contemplates an application for restoration of a name to the Register being made after the expiration of 12 months from the date of the order in the case of the conviction of an offence, and otherwise permits an application to be made at any time. The passage of three years is obviously substantially in excess of the minimum period for an application for restoration even where that occurs as a result of conviction of an offence, which is not the case in relation to Dr Soemartopo. 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.

5. A further relevant factor in relation to the grant of leave is the conduct of the practitioner since deregistration.  Although we express no view as to the extent or value of the steps undertaken by Dr Soemartopo to address the underlying causes of his conduct, it is apparent that he has made attempts to deal with the issues which caused his problems.  That is also a factor which favours a grant of leave. 

6. In all the circumstances, this is a case in which leave to make an application to the Board for restoration to the Register is appropriate.  The grant of leave does not, of course, 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 Soemartopo.  It is, however, appropriate that the Board undertake that assessment and that Dr Soemartopo have the opportunity to put forward his case for reinstatement.

Orders

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 his name to the Register.

I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT