VETERINARY PRACTICE BOARD OF WESTERN AUSTRALIA and BURSTEIN

[2024] WASAT 140

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: VETERINARY PRACTICE ACT 2021 (WA)

CITATION:   VETERINARY PRACTICE BOARD OF WESTERN AUSTRALIA and BURSTEIN [2024] WASAT 140

MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT

MS C CONLEY, MEMBER

DR A VIGANO, SENIOR SESSIONAL MEMBER

HEARD:   15-19 APRIL 2024 AND 17 JUNE 2024

DELIVERED          :   12 DECEMBER 2024

FILE NO/S:   VR 105 of 2022

BETWEEN:   VETERINARY PRACTICE BOARD OF WESTERN AUSTRALIA

Applicant

AND

ADRIAN DAVID KOPPEL BURSTEIN

Respondent

Catchwords:

Vocational regulation - Veterinarian - Allegations of professional misconduct - Allegations of misrepresentations to client - Allegations of misrepresentations to Board - Allegations of failure to comply with obligation to provide certain information - Allegation of failure to properly examine or assess - Allegations of failure to obtain complete history from owner and other veterinarians - Allegation of failure to provide continuous care and intensive monitoring - Allegation of false records - Allegation of failure to conduct tests - Allegation that surgery should not have been conducted - Allegation of failure to maintain clinical records, including regarding Schedule 4 drugs - Allegations of charging for services not provided - Findings of professional misconduct as to some but not all allegations

Legislation:

Interpretation Act 1984 (WA), s 46
Veterinary Practice Act 2021 (WA), s 3, s 18, s 84, s 86(2), s 86(2)(c), s 78, s 79, s 79(a), s 79(b), s 80, s 101, s 203, s 211, s 213(1), s 222
Veterinary Surgeons Act 1960 (WA), s 16B(1)(a), s 16B(1)(b), s 23(4)(e)
Veterinary Surgeons Regulations 1979 (WA), reg 2(1), reg 28(2)(c), reg 30(1), reg 30(2)

Result:

The respondent engaged in professional misconduct in respect of 22 complaints
Thirteen complaints of professional misconduct are dismissed

Category:    B

Representation:

Counsel:

Applicant	:	Mr G M Abbott
Respondent	:	Ms F A Stanton & Ms M R Rivett

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	Meridian Lawyers

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

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Burke v Corruption and Crime Commission [2012] WASCA 49

Comcare v Fiedler [2001] FCA 1810

Council of the New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339

Dekker v Medical Board of Australia [2014] WASCA 216

Fidock v Legal Profession Complaints Committee [2013] WASCA 108

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Johns v Law Society of NSW [1982] 2 NSWLR 1

Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56

Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43

Legal Services and Complaints Committee and Bennett [2024] WASAT 28

Legal Services and Complaints Committee and Butler [2023] WASAT 124

Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77

Legal Services and Complaints Committee and McCardle [No2] [2023] WASAT 131

Palmer v Dolman [2005] NSWCA 361

Panegyres v Medical Board of Australia [2020] WASCA 58

Papamihail v Legal Profession Complaints Committee [2023] WASCA 183

Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511

Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35

Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308

Veterinary Surgeons' Board of Western Australia and Barker [2018] WASAT 111

Veterinary Surgeons' Board of Western Australia and Barker [2018] WASAT 111 (S)

Veterinary Surgeons' Board of Western Australia and Harris [2017] WASAT 100

Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The Veterinary Board of Western Australia (Board)[1] alleges, by way of an application filed 23 November 2022 (Application) that the respondent (Dr Adrian Burstein) has engaged in professional misconduct and is not a fit and proper person to be a registered veterinarian.

   [1] In these reasons for decision a reference to the Board is a reference to either the Veterinary Surgeons' Board of Western Australia or the Veterinary Practice Board of Western Australia since the latter is a continuation of the former.

2. The allegations concern his conduct regarding the treatment of two dogs at his practice (Ocean Keys Veterinary Hospital - Hospital) and his conduct afterward, including allegations that he made false and/or misleading representations to the Board during its investigations.

3. Malo was a male 5-year-old Dogue de Bordeaux, whose owner took him to the Hospital on the evening of 8 January 2019.  He had a ruptured spleen.  Malo stayed overnight at the Hospital and died before surgery scheduled the next morning.  The Board's Amended Grounds contains 21 complaints relating to Malo.

4. Meggs was a female American Staffordshire Terrier, whose owner took her to the Hospital on the evening of 1 December 2020.  She had a saddle thrombus - an aortic blood clot which deprived her back half of bloodflow.  Several vets had already advised Meggs' owner that Meggs needed to be euthanised.  Meggs stayed overnight at the Hospital and died during surgery the next morning.  The Board's Amended Grounds contains 14 complaints relating to Meggs.

5. In each case, we must decide whether the facts the subject of the complaint are made out and, if so, whether that conduct constitutes unprofessional conduct or professional misconduct.[2]

   [2] These reasons do not address the issue of penalty, about which we will need to hear from the parties.

6. For the reasons which follow, the Tribunal has decided that Dr Adrian Burstein has engaged in professional misconduct in respect of some, but not all, of the complaints.

Legislative Framework

Complaints and their Investigation

1. The Veterinary Practice Act2021 (WA) (VP Act) and the Veterinary Practice Regulations 2022 (WA) (VP Regulations) regulate the practice of veterinary medicine in Western Australia. 

2. The VP Act came into operation on 18 June 2022 (i.e. before the Board filed the Application), and repealed and replaced the Veterinary Surgeons Act 1960 (WA) (VS Act) and the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations).

3. The investigation into Dr Adrian Burstein's conduct was commenced, following a complaint by Malo's owner on 14 March 2022, under the VS Act.[3]  No complaint was made by Meggs' owner.

   [3] Exhibit 14.

4. By s 211 of the VP Act, an 'investigation or inquiry' under the VS Act 'that was commenced but not completed before [the day on which the VP Act took effect] must be continued and dealt with as if it were an investigation of, or inquiry into, a complaint under' the VP Act.

5. By s 84 of the VP Act, the Board may deal with a matter 'as if it were the subject of a complaint' despite no such complaint having been made.

6. The Board has three options in dealing with a complaint, it may:  (1) dismiss it; (2) conduct an inquiry if the complaint appears to be about unprofessional conduct; or (3) refer the complaint to the Tribunal if the complaint appears to be about professional misconduct or if the Board considers the Tribunal could more appropriately deal with the complaint.[4]

Unprofessional conduct and professional misconduct

[4] VP Act, s 86(2).

1. By s 78 and s 79 (respectively) the VP Act defines:

   unprofessional conduct as including the following:

   (a)doing, or omitting to do, something in connection with the practice of veterinary medicine in a manner, or to an extent, that falls short of the standard of competence, diligence and safety that a member of the public is entitled to expect of a reasonably competent veterinarian or veterinary nurse; and

   (b)conduct that is prescribed to be unprofessional conduct.

   professional misconduct as including the following:[5]

   (a)unprofessional conduct if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence, diligence and safety; and

   (b)conduct, whether occurring in connection with the practice of veterinary medicine or not, that is inconsistent with a person being a fit and proper person to hold registration as a veterinarian or veterinary nurse; and

   (c)conduct that is prescribed to be professional misconduct.[6]

   [5] The definition of 'professional misconduct' under s 79(a) the VP Act is not dissimilar to that of 'unprofessional conduct' as a veterinary surgeon as previously defined under s 23(4)(e) of the VS Act and reg 28(2)(c) of the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations), which provided that a registered veterinary surgeon engaged in such conduct if it 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'.

   [6] In neither case has conduct been prescribed in the VP Regulations.

2. Both definitions are inclusive, and, in our view, they are not exhaustive.

3. The Board alleges that the conduct in relation to Malo falls within the meaning of professional misconduct as defined in s 79(b) of the VP Act.[7] In the alternative, it alleges that the conduct falls within the meaning of professional misconduct as defined in s 79(a) of the VP Act.[8]

   [7] Amended Grounds, paragraph 27.

   [8] Amended Grounds, paragraph 28(a).

4. In the further alternative, it alleges that the conduct 'would reasonably be regarded as disgraceful or dishonourable by veterinarians of good repute and competence and fell short by a substantial degree of the standard of professional conduct observed or approved by veterinarians of good repute and competence' (the Kyle tests).[9]

   [9] Amended Grounds, paragraph 28(b).

5. As to the complaints regarding Meggs, the Board alleges that the conduct falls within the meaning of professional misconduct as defined in s 79(a) of the VP Act[10] and, in the alternative, it alleges that the conduct would fall short of the Kyle tests.[11]

   [10] Amended Grounds, paragraph 72(a).

   [11] Amended Grounds, paragraph 72(b).

6. The Kyle tests is a reference to Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 at [61]. The Tribunal has previously applied the Kyle tests to the VS Act.[12] However, as has been noted, the VS Act was revoked in 2022 and replaced with the VP Act.

   [12] See, for example, Veterinary Surgeons' Board of Western Australia and Harris [2017] WASAT 100 (Harris) [195] ff.

7. We have referred to the Kyle 'tests' above.  They are more commonly described as 'limbs'.  The second limb of Kyle (conduct that, to a substantial degree, falls 'short of the standard of professional conduct observed or approved by members of the profession of good repute and competence') is essentially the same as that described in s 79(a) of the VP Act.

8. The question arises whether the first limb (conduct that would reasonably be regarded as disgraceful or dishonourable) has survived the transition to the new statutory regime.

9. In Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77 [219] - [234],[13] the Tribunal held that, despite the decision in Council of the New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339, binding decisions of the Western Australian Court of Appeal required it to find that the first limb of the Kyle test remains part of the definition of professional misconduct.

   [13] See, also, Legal Services and Complaints Committee and McCardle [No2] [2023] WASAT 131 at [96].

10. There was nothing from Dr Adrian Burstein, either in his Amended Response or otherwise, to suggest a challenge to the Board's use of the Kyle tests as a basis on which to find that the conduct amounted to professional misconduct.

11. In any event, and as noted above, the allegation of a breach of the Kyle tests is put in the alternative, or further alternative.  We have therefore made findings in relation to each of the two, or three, bases on which the allegations are put by the Board.

12. Finally, in this regard, and without limiting the statutory definition of unprofessional conduct and professional misconduct in s 78 and s 79, s 80 of the VP Act gives several examples of conduct that may constitute either unprofessional conduct or professional misconduct, including a contravention of 'this Act', which (by s 46 of the Interpretation Act 1984 (WA)) includes the VP Regulations and (by s 222 of the VP Act) also includes the VS Act and, hence, the VS Regulations.

Standards of professional conduct

1. Several of the complaints made against Dr Adrian Burstein allege that his conduct fell short, or substantially short, of the relevant standard of professional conduct.  In assessing those complaints, we must first establish the relevant standard.[14]

   [14]         Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 (Alexander) at [119]; Harris at [216]; Veterinary Surgeons' Board of Western Australia and Barker [2018] WASAT 111 (Barker) at [16].

2. In Harris at [253] ‑ [254] the Tribunal said:

   The question of whether there exists a generally accepted professional standard or duty, and its content, are questions of fact; Dekker at [72].[15]

   In Dekker at [73], the Full Court went on to say that the conventional ways in which such facts would be proved would, generally speaking, involve, or include, the professional regulatory body calling expert evidence from a person of good repute and competence within the relevant profession to attest to the existence of the generally accepted standard or duty and its content, or to tender any relevant professional conduct rules or to point to any applicable statutory regime governing the conduct in question.

   [15] Dekker v Medical Board of Australia [2014] WASCA 216.

3. If the parties each call expert witnesses who agree about the standard, then the Tribunal is bound to take that evidence into account giving such weight to that evidence as the Tribunal considers appropriate, having regard to the other evidence before it.[16]  If the expert witnesses disagree, then 'it is a matter for the Tribunal to accept or reject that evidence and to attribute such weight as it considers appropriate to the evidence of each witness'.[17]  In other cases, the standard is clear from the relevant legislative regime itself or is a matter of common sense.[18]  In this case, only the Board called expert evidence about the relevant standard.

   [16] Alexander [119].

   [17] Alexander at [119]; Harris at [216].

   [18] Barker at [35].

4. For the purposes of the definition of professional misconduct under s 79(a) of the VP Act the word 'substantial' is to be given its ordinary and natural meaning, which includes 'real or actual[;] of ample or considerable amount, quantity, size etc'. That is, the 'departure from the standards of professional conduct clearly needs to be significant and not inconsequential' to satisfy that term.[19]

Fitness and propriety to hold registration

[19] Barker [17] and [19].

1. In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 Newnes JA, with whom Pullin and Buss JJA agreed, said at [26]:[20]

   The expression 'fit and proper' takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities … When used in connection with an office or vocation it normally comprises the three characteristics of honesty, knowledge and ability in the conduct of that office or vocation[.]

   [20] Internal citations omitted.

2. Section 18 of the VP Act sets out a range of factors that the Board must have regard to in determining whether a person is a fit and proper person to hold registration under the VP Act. They include the person's history of compliance with relevant legislation, including the VP Act, the VS Act;[21] 'any behaviour … that shows that the person is not of good fame and character'; whether the person 'has contravened an order of a regulatory authority'; and whether the person has engaged in conduct that is unprofessional conduct or professional misconduct.

   [21] See s 222 of the VP Act.

3. There is, plainly, an inter-relationship between these factors and the definitions of unprofessional conduct and professional misconduct. In our view, the factors in s 18 are relevant to an assessment, for the purposes of s 79(b) of the VP Act, of whether a person's conduct is inconsistent with a person being a fit and proper person to hold registration under the VP Act.

Provision of false or misleading information - intentional vs reckless indifference

1. Several of the complaints made against Dr Adrian Burstein concern the making of false or misleading representations.  The Board alleges that he made those representations either intentionally or with reckless disregard for the truth.

2. In that regard, the complaints rely upon the tripartite classification of false or misleading representations enunciated in Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [8], where Martin CJ said:

   First, the practitioner might know that the statement or information is false or misleading.  Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless.  Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act.  In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.[22]

   [22] Giudice v Legal Profession Complaints Committee at [8] referring to Fidock v Legal Profession Complaints Committee [2013] WASCA 108. Edelman J agreed at [120].

3. In Legal Services and Complaints Committee and Bennett [2024] WASAT 28 at [18] - [23] the Tribunal said:

   The test of recklessness is a subjective test; it is concerned with the practitioner's state of mind. It is therefore a question of fact.

   …

   As noted above, the practitioner's state of mind is critical in a finding of recklessness. In the majority of cases, a person's state of mind can only be determined by inference from all of the facts and circumstances.

   In seeking to understand the practitioner's state of mind, we are conscious of the need to distinguish between the application of an objective standard (e.g. by saying that the practitioner 'should have known') and the use of objective facts to draw an inference as to the state of the practitioner's mind at the relevant time.

   That is, a finding that the practitioner 'should have' undertaken research in order to confirm his view, would be a finding that he is grossly careless, not reckless.

4. The relevant test for recklessness in these proceedings is, therefore, 'whether the respondent was indifferent to, or had a conscious disregard for, the risk that the [relevant statements] might [be false]'.[23]

Standard of proof

[23] Legal Services Complaints Committee and Bennett at [15].

1. The Tribunal has observed that 'the procedure in disciplinary proceedings is, in substance, adversarial'[24] and that it is 'appropriate to apply rules relating to the standard of proof that would apply to the proof of such matters in civil proceedings'.[25]  That is, the Board has the onus of proving the allegations against Dr Adrian Burstein to the civil standard, namely on the balance of probabilities.

   [24] Legal Services and Complaints Committee and Butler [2023] WASAT 124 (Butler) at [26].

   [25] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 at [30]; and Butler at [26].

1. In accordance with the Briginshaw standard, we must feel an actual persuasion of the occurrence or the existence of a relevant fact in determining the matter.  In these reasons, when we express ourselves to be satisfied, and make a finding, we do so on the balance of probabilities and on the basis of evidence which we regard as clear and cogent, having regard to what was said in Briginshaw v Briginshaw.[26]

Jurisdiction of the Tribunal

[26] Briginshaw v Briginshaw (1938) 60 CLR 336; see also Butler at [30] and Harris at [209] - [210].

1. As noted above, the Board commenced these proceedings by referring various complaints to the Tribunal. That occurred pursuant to s 86(2)(c) of the VP Act.

2. Section 101 of the VP Act provides that the Tribunal may deal with a complaint as referred to it by either dismissing it, making a finding of unprofessional conduct against the relevant respondent or making a finding of professional misconduct against them.

3. Accordingly, the Tribunal is limited in the findings that it may make against Dr Adrian Burstein to those complaints set out in the Board's Amended Grounds.

The Evidence Relied upon by the Parties

1. The parties filed the following documents with the Tribunal:

   (a)The Board's Amended Grounds;[27]

   (b)Dr Adrian Burstein's Amended Response;[28]

   (c)Statements of Issues, Facts and Contentions;[29]

   (d)Schedule of Issues - Malo and Schedule of Issues - Meggs;[30]

   (e)Opening Submissions;[31]

   (f)Respondent's Chronology in relation to Malo;[32]

   (g)Aide Memoir Comparison between Veterinary Surgeons' Board Guide to registered veterinary surgeons to respond to the investigation of a complaint by the Veterinary Surgeons' Board and Annexure G to the report of Dr Holder (Aide Memoir);[33]

   (h)Closing Submissions.[34]

   [27] Amended Grounds filed on 21 March 2023 (Amended Grounds).

   [28] Amended Response filed on 26 September 2023 (Amended Response).

   [29] Applicant's Statement of Issues, Facts and Contentions filed on 2 November 2023 (Applicant's SIFC); and Respondent's Statement of Issues, Facts and Contentions (Respondent's SIFC) filed on 24 October 2023.

   [30] Filed by the Respondent on 6 November 2023.

   [31] Applicant's Summary of Opening filed on 12 April 2024 (Applicant's Opening Submissions) and Respondent's Amended Outline of Opening Submissions filed on 16 April 2024 (Respondent's Opening Submissions).

   [32] Respondent's Chronology in relation to Malo (Malo Chronology) filed on 17 April 2024.

   [33] Attached to the Respondent's Opening Submission.

   [34] Applicant's Written Closing Submissions filed on 14 June 2024 (Applicant's Closing Submission); and Respondent's Outline of Closing Submissions filed on 14 June 2024 (Respondent's Closing Submissions).  See also ts 478 - 597, 17 June 2024 (Oral Closing Submissions).

2. During the hearing, 68 documents were taken into evidence as exhibits.

3. Malo's owner gave evidence concerning her attendance at the Hospital with Malo and her communications with Dr Adrian Burstein on 8 and 9 January 2019 and subsequently in 2022.[35]  Malo's owner's evidence at the hearing was consistent with her witness statement[36] and complaint to the Board.[37]  We found her to be a credible witness.

   [35] ts 37 - 53, 15 April 2024.

   [36] Exhibit 3 (Hearing Book at pages 1,190 - 1,213).

   [37] Exhibit 14 (Hearing Book at pages 1,104 - 1,110).

4. Meggs' owner did not provide a witness statement or give evidence at the hearing.

5. Dr Corrin Boyd and Professor Giselle Hosgood, both veterinarians at The Animal Hospital at Murdoch University (TAHMU) gave evidence about Meggs' attendance at TAHMU and their roles in relation to her care.[38]  Their evidence at the hearing was consistent with their witness statements.[39]  We found Dr Boyd and Professor Hosgood to be credible witnesses.  Curiously, though they were called by the Board to give factual evidence, they were cross-examined by counsel for Dr Adrian Burstein on matters that called for the expression of expert opinion.  Given that, and their qualifications and experience, we have no hesitation in finding them both expert veterinarians and we find Professor Hosgood to be an expert veterinarian surgeon.

   [38] ts 53 - 74, 15 April 2024 (Dr Boyd) and ts 81 - 92, 16 April 2024 (Professor Hosgood).

   [39] Exhibit 15 (Hearing Book at pages 1,214 - 1,225) and Exhibit 19 (Hearing Book at pages 1,226 ‑ 1,233).

6. Dr Holder is a veterinarian, called by the Board to give evidence about the standards expected of a veterinarian in the context of the present allegations.  Dr Holder provided a report[40] and gave evidence at the Hearing.[41]  We found Dr Holder to be a credible witness and, given that there was no expert evidence to the contrary, we accept Dr Holder's evidence.

   [40] Exhibit 20 (Hearing Book at pages 1 - 57).

   [41] ts 95 - 123 and 128 - 145, 16 April 2024.

7. Mr Mahler gave evidence about a HP CodeMaster M1723A Defibrillator/Monitor (ECG Machine) which Dr Adrian Burstein alleges was used on Malo.  Mr Mahler provided a report to the Tribunal[42] and gave evidence at the hearing.[43]  It was not in dispute and, having regard to his qualifications and experience, we find Dr Mahler to be an expert in the relevant field.  We also find him to be a credible witness.  A question arises as to the factual foundation upon which his opinion is based, which we will address below.

   [42] Exhibit 63 (Hearing Book at pages 675 - 699).

   [43] ts 386 - 416, 19 April 2024.

8. Dr Sorell analysed the Telstra records in relation to Dr Adrian Burstein's mobile telephone service[44] and specified text messages between him and Malo's owner.  Dr Sorell provided three reports to the Tribunal.[45]  It was not in dispute and, having regard to his qualifications and experience, we find Dr Sorell to be an expert in the relevant field.  As he was not required to be cross-examined, and his evidence was not otherwise challenged, we accept his evidence.

   [44] Exhibits 33, 34, 35 and 36 (Hearing Book at pages 298 - 504; 505 - 648; and 649 - 664).

   [45] Exhibits 30, 31 and 32 (Hearing Book at pages 178 - 237; 238 - 274; and 275 - 297).

9. A witness statement from Dr Colin O'Connor, a veterinarian who was employed by Dr Adrian Burstein at the time of the events concerning Malo, and who treated Malo before handing over Malo's care to Dr Adrian Burstein, was tendered without objection and he therefore did not attend for cross-examination.  We accept his evidence. 

10. Dr Adrian Burstein gave evidence about his care and treatment of Malo and Meggs in 2019 and 2020 respectively.[46]

    [46] ts 212 - 277, 17 April 2024 and ts 302, 18 April 2024.

11. However, that was done in the context where he said, and repeated several times, that he had no independent recollection of relevant events.[47]  Indeed, he said that he could not remember events from as little time as one week prior.[48]  Rather, he said that he relied for his evidence on various documentary records such as invoices, clinical records and photos to reconstruct events relating to his treatment and care of Malo and Meggs.[49]  That was the case with his evidence before us at the hearing.  It also appears to have been the case when preparing his responses to the Board during its investigations and when instructing his solicitors and counsel.

    [47] ts 307, 326 and 366, 18 April 2024 and ts 418 and 451, 19 April 2024.

    [48] ts 370, 18 April 2024.

    [49] ts 338 and 346 - 347, 361 - 362, 18 April 2024 and ts 451, 19 April 2024.

12. The difficulty with this approach is that his record-keeping was, by his own admission, severely deficient in detail and accuracy.[50]

    [50] ts 329 - 338 and 361 - 362, 18 April 2024.

13. Moreover, we agree with the submission made by Mr Abbott, who appeared for the Board, that when reconstructing past events from that documentary material, Dr Adrian Burstein would inevitably choose the alternative which painted him in the most favourable light.

14. In short, we found Dr Adrian Burstein to be a most unsatisfactory witness.

15. He frequently failed or refused to give a straight answer to a straight question.  He failed to make concessions, even when the point was obvious.  He frequently appeared to say whatever he thought best served his interests and, when challenged, changed his story accordingly.  We refer below to four examples in that regard.

16. By way of background to the first example, on 8 April 2024 (i.e. a week prior to the commencement of the hearing) Dr Adrian Burstein's solicitors sent a 'With Prejudice' letter (the With Prejudice letter) in which, amongst other things, he accepted that, at times relevant to these proceedings, 'his clinical notes and his system of record-keeping was below an acceptable standard' and indicated that he was 'willing to agree to findings' that included those alleged in Paragraph 62 of the Amended Grounds as well as 'to a penalty involving suspension of his registration for an agreed period'.[51]  Paragraph 62 of the Amended Grounds alleges that he did not record or refer to:

    (a)any pre-medication given to Meggs, including their dose, route and time of administration;

    (b)any anaesthetic agents used to induce anaesthesia, including their dose, route and time of administration, other than Propofol;

    (c)any monitoring criteria observed and their intervals to ensure Meggs' wellbeing during the Surgery and to accurately assess the depth of anaesthesia;

    (d)when the Surgery commenced; or

    (e)when Meggs died.

    [51] Letter of 8 April 2024 from Meridian Lawyers to Tottle Partners (attached to the Respondent's Outline of Opening Submissions), paragraphs 37, 38 and 40.

17. In cross-examination, it was put to him that his records are poor, to which he insisted that they had been poor but are not so anymore.  It was then put to him that they were so poor as to amount to professional misconduct.

18. His initial response was to deny that was so.  He then said that that (i.e. the characterisation of the poor record-keeping) was 'something … the judge needs to find against it'.[52]

    [52] ts 329, 18 April 2024.

19. He was then taken to his involvement in the proceedings to that point, including providing instructions for the filing of various documents, including the With Prejudice letter.

20. He then agreed that his record-keeping was 'substantially below the standard of his "colleagues" '.[53]

    [53] ts 331, 18 April 2024.

21. He then agreed that he had previously been disciplined for poor record‑keeping as a result of which he said that he had completed a training course such that he had 'improved [his] records'.[54]  And he agreed that through that process he had learned that his records for Malo and Meggs were deficient.[55]

    [54] ts 332, 18 April 2024.

    [55] ts 332, 18 April 2024.

22. It was then put to him that despite knowing that for some time, he had only just (i.e. by the With Prejudice Letter) conceded the allegations in Paragraph 62 of the Amended Grounds, to which he answered by saying that, in effect, the concession was a negotiation tool.[56]

    [56] ts 332 - 333, 18 April 2024.

23. He was then asked, again, whether he accepted that his record‑keeping for Malo and Meggs were 'substantially below the standard of [his] colleagues', to which he said:[57]

    I don't know if they're substantially below the level of my colleagues.  Some colleagues - I mean, I don't know the clinical records of all of my colleagues.  Some of them are brilliant and some of them are not very good.

    Okay.  Let me - - -?---I mean, the people that were working with me made clinical records similar to mine.  They were my colleagues - - -

    [57] ts 332, 18 April 2024.

24. He was then, again, taken to the fact that he had previously been disciplined for poor record-keeping and he confirmed that that was 'two years' ago:[58]

    [58] ts 333 - 334, 18 April 2024.

    Two years.  So in the last two years, you have been trying to improve your recordkeeping?---Substantially.

    But when you were faced with the allegations in this matter and you looked at the Megs record and the Malo record, you did not immediately conclude that they were below standard?---How does one compare the standard of two separate documents?

    So are you - so your answer is you thought they were sufficiently of standard?---I don't know what the standard necessarily is.  I had inspectors come and look at my records and not comment on them when they came to do their regular inspections, so I - - -

    So - - -?--- - - - accepted that they were standard. You're - - -

    But you're not talking about Megs records there or Malo records there, are you?---General records, when Brian comes to examine your facilities every three years or four years, they look at your computer as part of it and say, 'Yes, those look okay. You've got your temperature, your pulse, your respiration in.'

    So are you telling me that you don't know what the standard is in terms of clinical - - -?---I have learnt now - - -

    - - - records?--- - - - what the standard is.

    You now know what the standard is?---I now know what the standard is.  I did a recordkeeping course and I don't believe that most vets reach that standard.

    Do you believe that you reached that standard in relation to Malo?---In relation with - no, no.

    And when did you come to that realisation?---I think that standard is - - -

    No, when did you come to the realisation - - -?---Oh, when did I come to the realisation.

    - - - that they weren't up to standard?---Once I had done my recordkeeping course.

    And when did you finish that?---Two years ago.  But are they of a - such a deficient standard that they are below everybody else's standard?  I am not sure.

25. In short, over approximately eight pages of transcript,[59] Dr Adrian Burstein sought to insist that he did not know whether or not his record-keeping in relation to Meggs fell short of the relevant standard notwithstanding that he had admitted in the With Prejudice Letter that it did fall short less than two weeks prior.  In addition, he sought to avoid acknowledging that he made that very recent admission despite:

    (a)having completed the training course 'two years' prior (i.e. April 2022); and

    (b)being on notice of the allegations which he so recently admitted since 23 November 2022 (and remaining in the grounds despite amendment on 21 March 2023).

    [59] 18 April 2024, pages 329 - 337.

26. The second example goes to Mr Abbott's submission that Dr Adrian Burstein's evidence was full of supposition as to what he had done and that those suppositions inevitably painted him in the most favourable light.

27. The example concerns a letter from Dr Adrian Burstein regarding Meggs, dated 7 December 2020 addressed 'To whom it may concern'.[60]  There is considerable text under the heading 'History/Consultation' under two dates - 1 and 2 December 2020 (i.e. 5 ‑ 6 days prior to the date of the letter).  And we note, again, that this evidence is in the context where he has recently admitted to the failure of record-keeping alleged in Paragraph 62 of the Amended Grounds (above at [56]).

    [60] Exhibit 25.

28. He was taken to a reference in the letter, which states:

    Discussed prognosis and referral to specialists.  Prog guarded in cats (cardiac issues) but better in dogs (other causes) …

29. He was then asked:[61]

    [61] ts 360 - 362, 18 April 2024.

    And why is it that it's more common in cats than in dogs?---Cats get a heart problem, and so they throw clots from their valves that - it's called a dilated cardiomyopathy.  They throw clots that will end up in the - in the aorta.  Dogs get it for a number of reasons, including a clotting disease.  In this case, they were thinking that it was Cushing's, which is a cortisone disease, but those - - -

    Sorry, you didn't know that at the time, though, did you?---I must have known it because I was testing for it.  I didn't think it was - that was the only other test that we were - - -

    Where - sorry.  Where is it in your record that you - that says you were testing for Cushing's?---I gave cortisone on the invoice; we can get the invoice out.

    So where is it in the clinical record?---I gave the test that we did.  We never ran the test because, obviously, the dog died.

    Sorry.  Sorry,  I'm just - I'm just - you've just gone a bit fast for me there, I'm sorry?---Yes. Okay.

    You said that you were testing for Cushing's; that's your recollection, is it?---My supposition is that I gave cortisone and - yes.

    And, sorry, I just want to test the source of that supposition?---Yes.

    Where in your clinical record does it say you gave cortisone?---On my invoice. It - it - - -

    So not - it doesn't say that in your clinical record?---That is the problem of the records.

    Why were you testing for Cushing's disease?---Because I must have heard about an adrenal issue or seen histories of an adrenal issue (indistinct)

    But you didn't see any histories?---I don't know.

    Well - - -?---Maybe it was a verbal mention of it.

    I'm sorry, we spent rather a lot of time before about that?---Yes. That's - - -

    And we've got to the position where you don't rule out the fact that you've - that you've seen a history, and I've put it to you as plainly as I can that that's fanciful on your part, right?---Yes.

    Because that did not happen?---Well, I must have either heard or seen or something that I was testing for something that they were suspecting.

    So you couldn't have reached your own conclusion that 'I might want to test for Cushing's'?---No, not without hearing or seeing or thinking about it because only a two per cent chance that an - an adrenal tumour would lead to a - a clot in the aorta.

    Well, I don't understand - - -?---There were other reasons why there - yes.

    I don't understand how your evidence works on that because I put it to you that it's very clear that you did not see any other clinical records?---Well, maybe it was a verbal thing that Justin said to me that, listen, he had a CT scan - I mean an ultrasound.

    So maybe - you're just speculating again, aren't you?---Speculating because I've done a test, or I'm speculating even that I - because we never completed the test and I didn't note the test, but in the invoice - - -

    Well, can I put it to you this way that all you have in your clinical record - - -?---Yes.

    There is no reference to doing the test in your clinical record?---No.

    So all you are surmising from is the fact that you've charged for cortisone?---Exactly. And - - -

    So that doesn't connect treatment, does it?---Well, it doesn't necessarily, but I'm trying, with my laxity of clinical records - which I agree aren't up to standard; these days, we would have written in (indistinct) high dose dexamethasone suppression test - but I'm trying to connect the dots by connecting the dots.

    And that's because it's the - that's the favourable position for you if you connect the dots in that way, isn't it?---Even if I don't, it wouldn't have changed it. I - I don't think more testing would have changed the outcome or the treatment that I was going to apply.

30. That is, in answer to a question about his diagnosis of a saddle thrombus, Dr Adrian Burstein has speculated that he had tested for a cause of that thrombosis (i.e. Cushings disease) because his invoice shows that he charged for cortisol in circumstances where:

    (a)the clinical notes do not indicate that such a test was carried out;

    (b)such a test, had it been carried out, would have been relevant for a cause of the saddle thrombus (i.e. Cushings) that applies in only 2% of cases;

    (c)he had been told by Meggs' owner that he had previously taken Meggs to four other practices in the past couple of days but he (Dr Adrian Burstein) had not himself spoken to any of those practices or obtained their notes or records to understand what tests had been carried out; and

    (d)he nonetheless speculated that he 'must have heard' about an 'adrenal issue' so as to warrant such testing.

31. The other, and we find more likely, alternative is that the invoice incorrectly records cortisol as something for which Meggs' owner was liable.  Instead, Dr Adrian Burstein gave positive evidence that he had carried out that test and, only when challenged, acknowledged that the basis for the evidence was 'supposition'.

1. We also refer to two other examples in the body of our reasons below (at [148] and [358] to [361]) which illustrate the same point.

2. For these reasons we are satisfied and we find that we cannot rely on any evidence (written or viva voce) prepared or given by Dr Burstein unless it is contrary to his interests or is corroborated by other, contemporaneous, evidence that is objectively reliable.

3. In case that last passage is not clear, our finding includes that we are unable to place any material weight on any written records prepared by Dr Burstein as to the clinical treatment of Meggs or Malo unless it is supported by other, contemporaneous and objectively reliable evidence (i.e. not his own).

General admitted or agreed facts or facts not otherwise in dispute

1. The following facts are admitted, agreed or not in dispute and we find:

   (a)prior to 18 June 2022, the Board was known under the VS Act as the Veterinary Surgeons' Board of Western Australia (the VS Board) and Dr Adrian Burstein was:

   (i)a veterinary surgeon registered under that Act and was practising as a Registered Veterinary Surgeon at the Hospital which was registered under the VS Act;

   (ii)authorised under the Medicines and Poisons Act 2014 (WA) (MP Act) to administer, possess, prescribe, supply or use poisons included in Schedule 4 of that Act (Schedule 4 Drugs) when acting in the Hospital as a Registered Veterinary Surgeon; and

   (iii)required by reg 30(1) of the VS Regulations to make a clinical record of the prescription and supply of a scheduled drug and to do so in accordance with the requirements set out in reg 30(2) of the VS Regulations.

   (b)on and from 18 June 2022, the Board is, by s 213(1) of the VP Act, a continuation of, and the same legal entity as, the former Board and Dr Adrian Burstein is, by s 203 of the VP Act, taken to hold general registration as a WA veterinarian under and subject to the VP Act and is a veterinarian as defined in s 3 of the VP Act;

   (c)at all material times:  the advertised opening hours for the Hospital were 9.00 am ‑ 12.00 pm and 3.00 pm ‑ 6.30 pm (Monday ‑ Friday) and 9.00 am ‑ 1.00 pm (Saturday); the Hospital had a landline; Dr Adrian Burstein's mobile telephone number (Dr Burstein's Mobile) was advertised as the emergency number for the Hospital; and Dr Adrian Burstein lived only a few minutes' drive from the Hospital;

   (d)between 2018 and 31 December 2019 Dr David Burstein (now deceased), the father of Dr Adrian Burstein, lived in South Africa but would enter and depart Australia frequently.  He:

   (i)was a registered veterinary surgeon who, when in the State stayed in a room at the Hospital and worked there as a paid employee; and

   (ii)left Australia for South Africa on 20 December 2018 and re-entered Australia on 13 February 2019 and was therefore not at the Hospital on 8 and 9 January 2019 (during Malo's stay);

   (e)Dr O'Connor was at all material times a registered veterinary surgeon and was employed at the Hospital between November 2014 and November 2019.  He initially provided care and treatment to Malo and suspected that Malo had a ruptured splenic haemorrhage.  He admitted Malo to the Hospital and undertook various tests, contacted Dr Adrian Burstein to inform him about Malo and had left the Hospital before Dr Adrian Burstein arrived to see Malo;

   (f)Malo was at the Hospital on 8 and 9 January 2019;

   (g)Meggs was at the Hospital on 1 and 2 December 2020; and

   (h)Following treatment of each dog at the Hospital, an invoice was rendered to that dog's owner: to Malo's owner on 8 January 2019 (Malo Invoice) and to Meggs' owner on 2 December 2020 (Meggs' Invoice). 

The Complaints regarding Malo

1. The Board's allegations in respect of Malo run to 36 pages in the Amended Grounds and run to 21 complaints about the treatment of Malo and its aftermath.[62]  The Amended Grounds are, more or less, in the form of a civil pleading.  That document does not use the nomenclature of 'Malo Complaint 1' etc. which we have adopted below.  We have done so because it has assisted us to identify and organise the allegations.  It has not altered the substance of any of those allegations, which are best addressed in the following groups:

   (a)Complaints 1 - 9 concern communications with Malo's owner which, the Board alleges, contained various representations which were false and which Dr Adrian Burstein knew were false;

   (b)Complaints 10 - 16 concern a statutory declaration made by Dr Adrian Burstein during the Board's investigations which, the Board alleges, contained various representations which were false and which he knew were false;

   (c)Complaints 17 - 20 concern documents provided to the Board with that statutory declaration which, the Board alleges, contained various representations which were false and which he knew were false; and

   (d)Complaint 21 is that Dr Adrian Burstein failed in his duty to provide to the Board the source of the information provided to the Board in his statutory declaration.

   [62] Amended Grounds, at paragraphs 4 - 28.

2. There is some considerable overlap between the various complaints.  Many of them are concerned with, in very broad terms, whether Dr Adrian Burstein was present with Malo at the Hospital between about 8.30 pm on 8 January 2019 and about 8.00 am the following morning.  Indeed, Ms Stanton, who appeared for Dr Adrian Burstein, submitted that all of the allegations regarding Malo turn on that question.  We do not fully accept that submission for reasons that will become apparent but there is some strength to it.

Agreed facts concerning Malo

1. Before addressing each of the complaints we note the following facts which are either admitted, agreed or not in dispute and we find:

   (a)At about 3.15 pm on 8 January 2019, Dr O'Connor consulted Malo with his owner after which he wrote, by way of diagnosis, 'Acute Collapse' on a form which, amongst other things, contains wording which Malo's owner signed, giving consent for his treatment (Malo's Consent Form);

   (b)Dr O'Connor also wrote certain words, including 'BLOODS', 'PT/PTT'[63] and 'ULTRASOUND' indicating that he thought those tests should be undertaken and 'VIT K 2.0ml IV' and 'VOREN 2.0ml IV', indicating that he thought those fluids should be administered intravenously.  His evidence is that other entries on the Malo Consent Form are not in his handwriting.  He finished work at about 6.30 pm that evening.  Before he did so, he exchanged text messages with Dr Adrian Burstein:[64]

   [63] PTT = Partial Thromboplastin Time; PT = Prothrombin Time.

   [64] Unless otherwise stated, when we say that Dr Adrian Burstein sent or received a text message, we mean that it was sent to, or received by, Dr Burstein's Mobile.

   (i)At 5.57 pm Dr O'Connor said that he had a 'case that I could do with your help' to which Dr Adrian Burstein answered, at 7.36 pm 'Sorry in a movie with family … splenic dog still in ? Will keep you posted as soon as I've seen dog'.  If the 'splenic' dog was Malo, it is unclear how, at that stage, Dr Adrian Burstein knew Malo was 'splenic'.

   (ii)At 7.41 pm, Dr O'Connor advised the results of blood tests, that he had administered Voren and Vitamin K and said 'Prob not anticoag poison[;] suspect splenic'.

   (iii)At 7.47 pm, Dr Adrian Burstein texted saying that he was 'heading in now' to which Dr O'Connor advised that he had told Malo's owner that 'you will US [ultrasound] abdo[men] and give [her] a call'.

   (iv)At 8.36 pm and 8.38 pm Dr Adrian Burstein texted Dr O'Connor saying 'Spot on haemangio ' and 'you were dead on … 200ml caniplas .. dog looking pink.. surgery tomorrow'.

   (c)Consistent with that timing, Malo's owner says that Dr Adrian Burstein telephoned her at 'about 8 pm' on 8 January 2019 and advised that Malo had a 'ruptured splenic mass' and that he 'could not do surgery immediately because Malo needed to be stabilised first'.  Dr Sorell's evidence was to the effect that Dr Adrian Burstein's mobile called Malo's owner at 8.13 pm on 8 January 2019.[65]  The evidence of Malo's owner to the content of that conversation was not the subject of cross-examination and Dr Adrian Burstein gave no evidence to the contrary.  We find:

   [65] Exhibit 31 at page 10 (Hearing Book at page 247).  Also Exhibit 33 (Hearing Book at page 397).

   (i)He said to her words to the effect that that he would be 'intensely monitoring Malo overnight';

   (ii)She told him that her husband would fly back to Perth that night and both of them would visit Malo before surgery in the morning; and

   (iii)He did not say that he had performed, or would perform, an ultrasound on Malo.[66]

   [66] Exhibit 3 (Hearing Book at pages 1,194 - 1,195).

   (d)At 8.34 pm Dr Adrian Burstein sent Malo's owner a photograph of Malo in a blue harness (Harness Photo) with a text message saying 'Stable for now' (8.34 pm Message);[67]

   [67] Exhibits 5, 6 and 7 (Hearing Book at pages 667, 665 and 668).

   (e)At 8.37 pm on 8 January 2019, Malo's owner sent the following text message to Dr Adrian Burstein in response to the 8.34 pm Message:

   Aw Thankyou so much. I don't know how to break this to my husband he will be gutted.  I hate not being there for him!  Being a vet nurse previously when pets where sick I stayed with them so it's very strange indeed to not be with him!  Please do call any time through the night.

   (8.37 pm Message);[68]

   [68] Exhibit 5 (Hearing Book at page 667).

   (f)At 9.14 pm on 8 January 2019, Malo's owner sent the following text message to Dr Adrian Burstein:

   Hi Adrian my husband has got it as fifo if your attending to Malo at all my husband would like to come see him at the same time but no need to do anything out plan

   (9.14 pm Message);[69]

   [69] Exhibit 5 (Hearing Book at page 667).

   (g)At 10.55 pm on 8 January 2019, Malo's owner sent the following text message to Dr Adrian Burstein:

   My husband…has just returned from his FIFO swing and is very upset and is wanting to see Malo ASAP so even if it's during the night if he can meet you at the clinic he would be grateful to see him.  Otherwise we will see you in the morning but please give him lots of pats for us so he knows he is not alone

   (10.55 pm Message);

(h)No further communications were sent between Malo's owner and Dr Adrian Burstein until 6.22 am the following day, 9 January 2019, when Dr Adrian Burstein sent a photo of Malo's Gums (Gum Photo) and the following text message to Malo's Owner:

Stable for now..colour good..Sees you at 9..been a long night..so sorry only got message now..

(6.22 am Message)[70]

[70] Exhibits 7 and 8 (Hearing Book at page 668 and 666).

The uncontroverted evidence of Dr Sorell is that Dr Adrian Burstein's phone was not at the Hospital when he sent that message but was, rather, at his home.[71]

[71] Exhibit 30 (Hearing Book at pages 202 and 206). 

(i)At 7.57 am on 9 January 2019 Dr Adrian Burstein sent Malo's owner a text message saying: 'Call when you can' (7.57 am Message).[72]  The uncontroverted evidence of Dr Sorell is that that text message was sent from Dr Burstein's Mobile while it was at his home;[73]

[72] Exhibit 7 (Hearing Book at page 668).

[73] Exhibit 30 (Hearing Book at page 202 and 206). 

(j)Malo's owner's evidence was that, following her receipt of that message, she called Dr Adrian Burstein immediately who told her that when a nurse was moving Malo to clean his cage he had a massive fit and died;

(k)Malo's owner and her husband arrived at the Hospital at about 8.45 am on 9 January 2019.  The evidence of Malo's owner, which was not the subject of cross-examination, was that Malo had rigor mortis; that she tried to position Malo but was unable to and that 'his legs were so stiff that I could not move or bend them' and that she 'could not open his jaw or move his lip to cover up his tooth';[74]

[74] Exhibit 3 (Hearing Book at page 1,198).

(l)An invoice was issued dated 8 January 2019 in the sum of $2,376 (Malo Invoice),[75] which included a charge of $29 for 'hospitalisation per calendar day' and a charge of $654.68 for 'Monitoring - Night (Intensive)'.  The Malo Invoice was paid.

[75] Exhibit 9 (Hearing Book at page 1,117 - 1,118).

(m)At 9.16 pm on 9 January 2019, Dr Adrian Burstein sent Malo's Owner a text message in the following terms:

Are [sic] you guys doing kindest regards Adrian'.

(9 January 9.16 pm Message);[76]

[76] Exhibit 7 (Hearing Book at page 668).

(n)At 9.39 pm on 9 January 2019,  Malo's Owner sent a very lengthy text message to Dr Adrian Burstein in terms which included the following:

Hi Adrian, it's been a very tough day. … We both wish we were there when he passed, as traumatic as it may have been I always want to be with my pets as they pass. … The staff where amazing and my heartfelt thanks to you for being with him through the night…most clinics just leave and hope for the best and I was surprised that you were coming in to treat him. …as I said I just wish one of us was there as he passed but that wasn't to be. …

(9 January 9.39 pm Message);[77]

[77] Exhibit 10 (Hearing Book at pages 669 - 671).

(o)At 9.56 pm on 9 January 2019 Dr Adrian Burstein sent a text to Malo's owner in the following terms:

I really appreciate the text…he was alone for very very few periods last night.. and died painlessly and quickly with nursing staff around..it's always traumatic but it was quick with no suffering... big hug'

(9 January 9.56 pm Message);[78] and

[78] Exhibit 10 (Hearing Book at page 671).

(p)On an unknown date but soon after Malo's death, his owner requested a copy of Malo's clinical record.  A document dated 19 January 2019 and titled 'To whom it may concern' was sent to her on 21 January 2019, which she then sent to her then employer - Drover's Vets (Malo's Clinical Record);[79]

[79] Exhibit 11 (Hearing Book at pages 1,145 - 1,146).

(q)In February 2022, Go Vets contacted Dr Adrian Burstein and sought a copy of 'Malo's records' on behalf of Malo's owner.  On 22 February she followed up by phone and, on the same day, Dr Adrian Burstein sent a letter of that date advising that Malo 'presented with a rupturing splenic mass - Suspected Haemagiosarcoma…';[80]

[80] Exhibit 12 (Hearing Book at pages 1,147 - 1,148).

(r)On 23 February 2022, Malo's owner asked for, and Dr Adrian Burstein provided to Go Vets, a copy of Malo's Clinical Record and the Malo Invoice, which Go Vets forwarded to Malo's owner;[81]

[81] Exhibit 13 (Hearing Book at pages 1,149 - 1,152).

(s)In April 2022, Dr Adrian Burstein received a letter from a Senior Inspector of the Board dated 11 April 2022 (April 2022 Letter)[82] seeking information about Malo together with a Guide for Registered Veterinary Surgeons to Respond to the Investigation of a Complaint by the Veterinary Surgeons' Board (VSB Guide);[83]

[82] Exhibit 27 (Hearing Book at pages 1,187 - 1,188).

[83] Exhibit 29 (Hearing Book at pages 1,171 - 1,177).

(t)In response to the April 2022 Letter, Dr Adrian Burstein made a statutory declaration dated 22 April 2022 concerning Malo's care and treatment at the Hospital (Malo Statutory Declaration)[84] which he provided to the Board together with the Malo Consent Form[85] and four pieces of paper with electrocardiogram traces on their front (Original Four ECG Strips);[86]

[84] Exhibit 37 (Hearing Book at pages 1,113 - 1,127).

[85] Exhibit 4 and Exhibit 37 (Hearing Book at page 1,119).

[86] Exhibit 37 (Hearing Book at page 1,122) and Exhibit 53 (Set of 4 Original ECG Traces with BP Records on the reverse).

(u)On the reverse (back) of each of the Original Four ECG Strips are handwritten annotations apparently setting out blood pressure readings and the time at which they were taken:

(i)On the first is stated:  '8:45 8/1 BP 135/80';

(ii)On the second is stated:  '1208 8/1 125/90';[87]

[87] The Tribunal notes that the respondent gave evidence at the Hearing that the date should have been 9/1 and not 8/1.  ts 467, 19 April 2024.

(iii)On the third is stated:  '3:15 9/1, 110/85'; and

(iv)On the fourth is stated:  '6:15 9/1 BP 120/90'

(together, BP Records);[88]

[88] Exhibit 37 (Hearing Book at page 1123) Exhibit 53 (Set of 4 Original ECG Traces with BP Records on the reverse).

(v)In the Malo Statutory Declaration, Dr Adrian Burstein relevantly declared that:

6.Malo was monitored through the night.

7.By 6:00am the next morning Malo was still flat but the mucous membranes were still pink (ie. Malo was not bleeding profusely internally)

…

13.I have no issue with referral to an after-hours vet but Malo had more than adequate after-hours monitoring.  Malo was admitted at 6:00 pm by Dr Colin.  I did an ultrasound at 8:16pm and Dr David Burstein was at the Hospital the entire night.

14.Dr David Burstein actively monitored Malo through the night and Malo had an ultrasound just after 8 pm and an ECG/Blood pressure was taken at about 9pm, again at 12am, 3am and 6 am.

15.I was at the hospital at 6.00am sending the owner photos of Malo and the nurses came on duty at 7:00am.  Malo died while there were people at the Hospital at 8:00am.

…

17.… By 6:20am the next morning the photo (SMSed to the owner) still showed Malo having pink mucous membranes.

…

20.Malo did not show any signs of pain on admission or through the night. …

…

This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a material particular. …

Malo Complaints 1 - 5:  Alleged false representations in the Gum Photo and 6.22 am Message

1. As noted above, at 6.22 am on 9 January 2019, Dr Adrian Burstein sent Malo's owner the Gum Photo with the 6.22 am Message ('Stable for now..colour good..See you at 9..been a long night..so sorry only got message now..').

2. The Board alleges that the sending of the Gum Photo and the 6.22 am Message constitutes five representations that are false and/or misleading.  Given that commonality, it is convenient to set out the evidence and our findings in a general sense, before turning to the particular complaints.

3. The evidence of Dr Sorell was that, in the period 8 and 9 January 2019:

   (a)between 7.58pm and 8.40pm on 8 January 2019 the location of Dr Adrian Burstein's mobile telephone service was most consistent with the Hospital;[89]

   (b)between 8.43pm on 8 January 2019 and 8.00am on 9 January 2019 the location of Dr Adrian Burstein's mobile telephone service was most consistent with his home;[90]

   (c)Dr Adrian Burstein's mobile telephone service was actively in use between 10.25.11pm and 10.25.40pm;[91]

   (d)Dr Adrian Burstein's mobile telephone service was actively in use by an operator at 10.44.26pm on 8 January 2019 through an outgoing SMS and then at 6.22.36am on 9 January 2019;[92]

   (e)between 10.45pm on 8 January 2019 and 6.22am on 9 January 2019 only data sessions and incoming text messages are logged and there were no indications of user interaction.[93]

   [89] Exhibit 30 (Hearing Book at pages 181, 188, 196, 202).

   [90] Exhibit 30 (Hearing Book at pages 181, 188-189, 197, 202).

   [91] Exhibit 30 (Hearing Book at page 248).

   [92] Exhibit 31 (Hearing Book at pages 249).

   [93] Exhibit 31 (Hearing Book at pages 249 - 250).

4. Dr Sorell also stated that the set up and shut down of a data session does not require user interaction because the data session can be initiated by a software application on the phone or from the network side.[94]  We take Dr Sorell's evidence to mean that the phone records may show a data session has taken place but that does not always mean that a person is interacting with the phone in question.

   [94] Exhibit 31 (Hearing Book at page 249).

5. Dr Adrian Burstein's evidence at the hearing was to the effect that he puts his mobile on charge '[l]ike clockwork' at 10.45 pm, and leaves it on charge until the morning.[95]  He said that he always charges his telephone at home[96] and does not answer his telephone after a certain time at night.[97]  Further, he said that back in 2019 and 2020 if he were going to the Hospital after 10.45 pm, he would leave his mobile telephone at his house, charging.[98]

   [95] ts 254, 17 April 2024.

   [96] ts 469, 19 April 2024.

   [97] ts 255, 17 April 2024.

   [98] ts 441, 19 April 2024.

1. The Board, through Mr Abbott, challenged that evidence in cross‑examination of Dr Adrian Burstein to the effect that such a practice made no sense given that:

   (a)as was agreed, Dr Burstein's Mobile number is published as the emergency number for the Hospital so that owners of sick animals would not be able to contact him after 10.45 pm if he was at the Hospital; and

   (b)he may need to contact the owners of a sick animal to which he was attending at the Hospital should things take a turn for the worse overnight.

2. To the latter proposition, Dr Adrian Burstein answered that he can use the Hospital's landline or another mobile telephone owned by the practice, should it be necessary to do so, while he is at the Hospital overnight without his mobile phone.[99]

   [99] ts 445, 19 April 2024.

3. The Board also relies in this regard on the evidence of Dr O'Connor who, in his supplementary witness statement,[100] stated that he could not recall any instance where he saw Dr Adrian Burstein without his mobile telephone and ordinarily he (Dr Adrian Burstein) responded to text messages within a couple of minutes.[101]  Of course, however, that evidence is limited to daytime hours as Dr O'Connor's evidence was also to the effect that he never attended to animals overnight.[102]

   [100] Exhibit 48 (Hearing Book at pages 1,248 - 1,250).

   [101] Exhibit 48 (Hearing Book at pages 1,248 - 1,250).

   [102] Exhibit 47, paragraph 16 (Hearing Book at page 1,238).

4. We tend to agree with the Board's position that it seems unlikely that Dr Adrian Burstein would make a deliberate decision to leave his mobile phone on charge at his home and not take it to the Hospital with him when he went there at night.  The evidence of Dr Adrian Burstein in this regard appears to us to be contrary to common professional practice, his own convenience and common sense.  As to the last point, we see no sensible reason why he would advertise to the public that they can call a particular number after hours and then make a habit of not answering the phone attached to that number after 10.45 pm or even carrying it when he leaves the house after that time.

5. Nonetheless, it is the case that his evidence of charging his phone from 10.45 pm is consistent with Dr Sorell's analysis of his phone records.

6. The next piece of relevant evidence is that Malo's owner:

   (a)sent the 8.37 pm Message (only three minutes after Dr Adrian Burstein sent the Harness Photo and the 8.34 pm Message) inviting, or perhaps requesting, Dr Adrian Burstein to 'Please do call any time through the night';

   (b)sent the 9.14 pm Message advising that her husband had flown in from FIFO and 'would like to come see' Malo; and

   (c)sent the 10.55 pm Message advising that her husband 'is very upset and is wanting to see Malo ASAP'.

7. In that regard, we note that Dr Adrian Burstein's evidence that he put his mobile phone on charge at 10.45 pm each evening means that he did so 1½ hours later than the 9.14 pm Message from Malo's owner.  In answer to a question from Ms Stanton, he 'surmised' that he simply did not see the 9.14 pm Message.  That seems unlikely given Dr Sorell's evidence that Dr Adrian Burstein's phone was actively in use at 10.25 pm and 10.44 pm on 8 January 2019 with the latter interaction being an SMS sent by his phone.[103]

   [103] Exhibit 31 (Hearing Book at pages 249 - 250).

8. The third piece of evidence is that of Malo's owner who says that Malo was cold and had rigor mortis when she and her husband arrived at 8.45 am on 9 January 2019.  In her witness statement she says that she is a registered veterinary nurse and worked as such from 2009 to about 2015[104] and then recommenced her practice in mid 2020.[105]

   [104] At the hearing she said 2016 – ts 15 April 2024, page 50. In her statement, she said that she took a five year break and returned in 2020.

   [105] Exhibit 3 (Hearing Book at page 1,191).

9. She says that she knew at the time 'how a dog in rigor mortis looked' and that she was unable to move Malo when she tried 'by tucking in his legs and opening his jaw', that his 'legs were so stiff that [she] could not move or bend them' and that she 'could not open his jaw'.[106]

   [106] Exhibit 3 (Hearing Book at page 1,198).

10. She was not cross-examined at all about this point.  But neither was there any evidence given as to how quickly an animal such as Malo might take to enter rigor mortis after death.

11. We accept her evidence and find that Malo was stiff with rigor mortis at 8.45 am on 9 January 2019.  In our view that finding appears to be inconsistent with Dr Adrian Burstein's case that Malo died suddenly just before 8 am, although we are unable to say with any more certainty when he died.

12. That raises the next (fourth) relevant piece of evidence, which is that although it is Dr Adrian Burstein's case that Malo died suddenly at about 8 am while a nurse was moving him,[107] that nurse has not been called to corroborate that evidence.

    [107] See above at [78(j)].  The Malo Consent Form also shows a cross/crucifix in a diamond, which he said showed the time of death.  Exhibit 4 (Hearing Book at page 1,119); ts 421, 19 April 2024. 

13. It is true that the Board has also not called the nurse (or, indeed, any nurse) to give evidence as to what occurred on the morning of 9 January 2019.  Neither did the Board submit we should draw an adverse inference from the failure by Dr Adrian Burstein to call the nurse.  In those circumstances we do not do so.

14. The fifth relevant piece of evidence concerns the changing story given by Dr Adrian Burstein as to who was present at the Hospital overnight.

15. His evidence at the hearing was that he (Dr Adrian Burstein) was present.[108]  But that is not what he said in the Malo Statutory Declaration of 22 April 2022 where, at paragraph 13, he said that his father, 'Dr David Burstein actively monitored Malo through the night …'.

    [108] ts 374 - 375, 18 April 2024.

16. The Malo Statutory Declaration was made only eight weeks after a telephone conversation between Dr Adrian Burstein and Malo's owner on 23 February 2022 in which she sought Malo's clinical history.  Her evidence (being the sixth piece of relevant evidence) was that in that conversation, Dr Adrian Burstein said 'that a blood transfusion was done on Malo and that he [i.e. Dr Adrian Burstein] checked on Malo a couple of times through the night'.[109]

    [109] Exhibit 3 (Hearing Book at page 1,202).

17. Dr Adrian Burstein does not dispute that he said as much to Malo's owner.  Rather, it was put by Ms Stanton for him that during that phone call he (Dr Adrian Burstein) was trying to 'placate' her (Malo's owner).[110]  That may be so, although it hardly helps her client as it suggests he was willing to say whatever he thought necessary to achieve that objective.  The reality is that only two months later, Dr Adrian Burstein said the opposite - that his father, and not himself, was with Malo overnight on 8 ‑ 9 January 2019.

    [110] ts 531, 17 June 2024.

18. The seventh piece of evidence is the Hospital's records:

    (a)In the 'Plan' section of the Consent Form for Malo there is an entry which states 'BP and ECG'.[111]  Further, in the 'Treatment' section there are tick box entries at 9, 12, 3 and 6.[112]  When asked about the tick box entries, Dr Adrian Burstein said that 'The plan is BP and ECG at 9 o'clock, 12 o'clock, 3 o'clock, 6 o'clock'.[113]

    (b)Malo's Clinical Record (being the letters of 19 January 2019 and 23 February 2022) records 'BP and MM pink throughout night - SMS 620 pic of gums and sms doing well';

    (c)The invoice dated 8 January 2019 includes 'Monitoring - Night (Intensive)'.  By way of contrast, we note that Meggs' owner was not charged for intensive monitoring.[114]  In evidence, Dr Adrian Burstein said that his charge for 'intensive monitoring' is dependent on the work.  That is, if he was with a dog the entire night he would charge three units and that he never charged more than three units.[115]

    [111] Exhibit 4 (Hearing Book at page 1,119).

    [112] Exhibit 4 (Hearing Book at page 1,119).

    [113] ts 232, 17 April 2024.

    [114] Exhibit 24 (Hearing Book at pages 165 - 166).

    [115] ts 469-470, 19 April 2024.

19. Ordinarily, contemporaneous business records would be given considerable weight but, for reasons already given, these records and Dr Adrian Burstein's viva voce evidence about them must be treated very cautiously.

20. Finally, it is necessary to address the issue of the ECG strips.

21. By way of background, we note the evidence of Dr Adrian Burstein to the effect that, as a matter of ordinary practice, once an owner has given their consent for treatment, that animal's partially completed Consent Form is placed on a clipboard which travels with the animal to wherever it's being treated or housed (which we understand is limited to different parts of the Hospital).[116]  After the animal is discharged, the relevant Consent Form and other documents are taken to the Hospital's reception desk where they are put in a folder and filed.[117]  They are later archived by being placed into boxes with the relevant date on them.[118]  He said whilst that electronic records generally do not get printed and filed,[119] ECG strips are printed and torn off the machine and then clipped to the clipboard.[120]

    [116] ts 218 - 219, 17 April 2024.

    [117] ts 219, 17 April 2024.

    [118] ts 220, 17 April 2024.

    [119] ts 220, 17 April 2024.

    [120] ts 244, 17 April 2024.

22. Dr Adrian Burstein said that he records blood pressure test results on the back of the ECG strips together with their date and time, and other tests[121] because, first, the blood pressure machine does not have a printable readout and, secondly, to allow correlation of the records.[122]  He also said that blood pressure notes recorded on the back of an ECG strip would be done reasonably contemporaneously with the making of the ECG strip.[123]  He said that the times recorded on the reverse of a strip would have been read off his watch, rather than off the front of the ECG Strip.[124]

    [121] ts 247, 17 April 2024.

    [122] ts 247, 17 April 2024.

    [123] ts 247, 17 April 2024.

    [124] ts 247, 17 April 2024.

23. The difficulty with that evidence is that, as we have previously noted, he has admitted that his record-keeping at the time was very poor indeed and amount to professional misconduct.

24. Indeed, as will be apparent, his case in relation to the ECG strips relies upon the inadequacy of his record-keeping.  His evidence is that two ECG strips which he says relate to Malo were discovered, well after the event, archived with the records of another animal - 'George' the cat (New Two ECG Strips).

25. There are therefore, before us, six original ECG strips.  The Original Four ECG Strips show handwritten results of blood pressure tests on their reverse.  They were provided to the Board by Dr Adrian Burstein together with the Malo Consent Form as attachments to the Malo Statutory Declaration.

26. Following receipt of the Malo Statutory Declaration (in which, it will be remembered, Dr Adrian Burstein said that his father, Dr David Burstein, was present at the Hospital, and monitored Malo, overnight on 8 - 9 January 2019) the Board carried out investigations during which it discovered that Dr David Burstein was not in Australia at that time and could not, therefore, have monitored Malo overnight.

27. Dr Adrian Burstein says that following that discovery, and in an effort to demonstrate that Malo had been monitored (by himself, rather than his father), he used the mobile phone records which now form the basis for Dr Sorell's evidence to identify other patients that he says were present at the Hospital on 8 and 9 January 2019.

28. He says that in doing so, he located the New Two ECG Strips filed with other records of 'George' a cat that was at the Hospital at the relevant time for renal failure.[125]

    [125] ts 320, 18 April 2024.

29. His evidence is that he concluded that the New Two ECG Strips must be Malo's because:

    (a)The results are similar to those recorded in the Original Four ECG Strips for Malo;

    (b)The New Two ECG Strips had results for haematocrit tests[126] on their reverse and haematocrit testing was done for Malo but not for George, since George had kidney failure not a splenic tumour[127] and George's owner had not been charged for haematocrit testing.[128]

    [126] Haematocrit readings record the percentage by volume of red blood cells in the blood.

    [127] ts 248 - 250, 17 April 2024 and ts 323 - 324, 18 April 2024.

    [128] ts 319 - 325, 18 April 2024.

30. In our view, Dr Adrian Burstein's explanation for his reliance on the New Two ECG Strips provides another example in support of Mr Abbott's criticism that Dr Adrian Burstein's evidence relies upon the most favourable supposition available to him.  We will return to this in more detail shortly.

31. The Original Four ECG Strips are as follows:

    (a)ECG Strip 1[129] is undated and bears a partial time-stamp of ':49:04'.  The top contains the annotations 'HR 133' and 'PADDLES x 1.25'.  The bottom contains the annotations, '611' and 'PHILIPS'.  The reverse contains the following annotation in black biro:  '8.45 8/1' and 'BP 135/80';

    (b)ECG Strip 2[130] is undated and bears a partial time-stamp of '8:44'.  The top contains the annotations 'HR 135' and 'PADDLES x 0.50'.  The bottom contains no annotations.  The reverse contains the following annotation in blue biro:  '12.08 8/1' and '125/90'.[131]

    (c)ECG Strip 3[132] is undated and bears a partial time-stamp of '3:14:30'.  The top contains the annotations 'HR 54' and 'PADDLES x 1.00'.  The bottom contains the annotation 'PHILIPS'.  The reverse contains the following annotations in blue biro:  '3:15 9/1' and '110/85';

    (d)ECG Strip 4[133] is undated and bears a partial time-stamp of ':14:42'.  The top contains the annotations 'HR 131' and 'PADDLES x 1.00'.  The bottom contains the annotation 'REORDER NO. 40457C/40457D'.  The reverse contains the following annotations in black biro:  '6.15 9/1' and 'BP 120/90'.

    [129] Exhibit 53 (Copy of front page at Exhibit 67, Hearing Book at page 1,077).

    [130] Exhibit 53 (Copy of front page at Exhibit 67, Hearing Book at page 1,078).

    [131] During the Hearing the respondent corrected the date on the reverse of ECG Strip 2 to 9 January 2019: ts 467, 19 April 2024.

    [132] Exhibit 53 (Copy of front page at Exhibit 67, Hearing Book at page 1,080).

    [133] Exhibit 53 (Copy of front page at Exhibit 67, Hearing Book at page 1,082).

32. The New Two ECG Strips are as follows:

    (a)ECG Strip 5[134] is dated 9 January 2019 and bears a time-stamp of '03:11:34'.  The top of ECG Strip 3 contains the annotations 'HR 112' and 'PADDLES x 1.00'.  The Bottom of ECG Strip 3 contains the annotations 'REORDER NO. 40457C/40457D', '611' and 'PHILIPS'.  The reverse of ECG Strip 3 contains the following annotation in blue biro:  'Hct = 35%';

    (b)ECG Strip 6[135] is dated 9 January 2019 and bears a time-stamp of '06:04:39'.  The top contains the annotations 'HR 125' and 'PADDLES x 1.00.'  The bottom contains the annotations '457D' and 'PHILIPS'.  The reverse contains the following annotation in blue biro:  'Hct = 34%'.

    [134] Exhibit 54 (Copy of front page at Exhibit 67, Hearing Book at pages 1,079 and copy of both front and reverse pages at Exhibit 55, Hearing Book at pages 1,153 - 1,154).

    [135] Exhibit 54 (Copy of front page at Exhibit 67, Hearing Book at page 1,081 and 1,153 - 1,154).

33. It was not in dispute that the date was missing on each of the Original Four ECG Strips and only part of each time-stamp was included.  Dr Adrian Burstein opined that his staff may have cut the date off when they were putting all the paperwork in files.[136]

    [136] ts 245, 17 April 2024.

34. Regardless of why the details are missing, the result is that the only evidence of the date and time on which the Original Four ECG Strips were created and, therefore, might be related to Malo, is the handwriting on the reverse of each strip.

35. It is Dr Adrian Burstein's case that the times and dates handwritten on the rear of the Original Four ECG Strips represent the approximate time at which the ECG was undertaken for Malo so that an ECG (and blood pressure reading) was taken at around each of 9.00 pm on 8 January 2019, and around 12.00 am, 3.00 am and 6.00 am on 9 January 2019.

36. But there is no independent, objective, evidence linking the Original Four ECG Strips to Malo; and as we have already found, we have very considerable misgivings about the evidence of Dr Adrian Burstein, particularly in relation to his document keeping.

37. Given all of that, it is perhaps unsurprising that Dr Adrian Burstein relies heavily on the New Two ECG Strips, and particularly the date and time recorded on them by the machine that produced them.

38. His evidence was that the time recorded on the front of those strips accurately (more or less) represents the time at which he took those ECG tests on Malo so that they were taken at or about 3.11 am and 6.04 am on 9 January 2019.

39. In support of the veracity of those records, Dr Adrian Burstein relies upon the evidence of Mr Mahler, which concerned the workings of an ECG machine.

40. The ECG machine in question was identified as a CodeMaster Defibrillator.  Dr Adrian Burstein's evidence was that all the relevant times he had one in the Hospital, that although manufactured as a defibrillator the machine has two paddles which, if you put them across the animal's chest, will produce a decent ECG,[137] that 'it's used just about exclusively'[138] and 'it's the only one we've got'.[139]   He said explicitly that all of the six ECG Strips were produced by the machine[140] of which he provided photos and video footage located in his surgery during 2018, together with associated metadata which confirmed the dates when the photos and video were taken.[141]

    [137] ts 224,17 April 2024.

    [138] ts 221, 17 April 2024.

    [139] ts 222, 17 April 2024.

    [140] ts 248, 17 April 2024.

    [141] Exhibit 49, 50, 51 and 52.

41. A further video of Dr Adrian Burstein operating the ECG Machine was tendered in evidence.  It was this video upon which Mr Mahler said that his evidence was based.[142]

    [142] Exhibit 52; ts 387 - 388, 19 April 2024.

42. In his report of 20 November 2023,[143] Mr Mahler gave evidence relating to the functions of the ECG machine the subject of that video.  His evidence was to the effect that the ECG machine's clock could be manipulated (altered) but that, in order for the New Two ECG Strips to bear false dates and times, Dr Adrian Burstein would have needed to falsely reset the machine's clock eight months prior to Malo's treatment.[144]

    [143] Exhibit 63 (Hearing Book at pages 675 - 699).

    [144] Exhibit 63 (Hearing Book at page 695).

43. However, the utility of Mr Mahler's opinion to Dr Adrian Burstein's case depends on the assumption that the ECG Strips (and especially the New Two ECG Strips) were produced by the ECG machine shown in the video to be located in the Hospital.

44. If there is doubt in that regard, then Mr Mahler's evidence as to the difficulty of manufacturing a false readout of the time/date on which an ECG Strip was produced is of almost no utility to anyone in these proceedings; if we cannot be sure that the New Two ECG Strips came from the machine the subject of Mr Mahler's evidence then his evidence about that machine tells us nothing about when those strips were produced.

45. There are several problems with the New Two ECG Strips as evidence relied upon by Dr Adrian Burstein to support his assertion that he was present at the Hospital overnight and monitored Malo.

46. The first is that they are unusually 'fulsome' in that, as we have previously noted, none of the Original Four ECG Strips have the date, or even the whole of the time, printed on them.  The New Two ECG Strips are the only strips with the whole date and time printed on them.  That might reasonably be said to be a remarkable coincidence.  That coincidence is perhaps compounded by Dr Adrian Burstein's reliance on his poor document management regime to account for why he only located them some months after he originally provided the Board with the Original Four ECG Strips.

1. The Board alleges that during his consultation with Meggs' owner on 2 December 2020 Dr Adrian Burstein should have, but did not, inform him that unless the results of the earlier tests performed on Meggs (Earlier Test Results) could be obtained and provided he would have to perform his own tests (such as bloods and ultrasounds) (Own Tests) before he could proceed with surgery.[353]

   [353] Amended Grounds, at paragraph 57(c) and 59.

2. In his Amended Response, Dr Adrian Burstein repeats what he said previously as to Meggs Complaints 7 and 8: he denies that he gave Meggs' owner a guarded prognosis; he says that he telephoned Meggs' owner and said that Meggs' ASA score was high and that Meggs may not survive surgery; but that, notwithstanding his advice, Meggs' owner wanted to proceed with surgery to attempt to remove the thrombus and gave his verbal consent to proceed; and he otherwise denies the allegations.[354]

   [354] Amended Response, at paragraphs 56 and 59.

3. Dr Holder's evidence was that even had Dr Adrian Burstein obtained the Earlier Test Results, he should have carried out his Own Tests.  In his report he stated:[355]

   Obtaining earlier test results is part of relevant, previous clinical history. In critical patients, this is vital. In surgical patients it is very sensible and helpful. One should only proceed with emergency first aid until previous written history and accompanying test results are available, especially for such a critical condition such as saddle thrombus.

   Even with prior test results, in a deteriorating patient further testing is warranted to ensure one is aware of the current status of the patient and whether deterioration has gone past the point of no return, which had previously been established and corroborated, by specialist veterinarians, in this case.

   Ideally the following tests would be run, if available: complete blood count and smear for haematology evaluation; a standard sick patient diagnostic biochemistry panel especially looking at lactate, as commonly used predictor of outcome in seriously ill patients; blood gases; clotting profile; electrolytes; blood type; abdominal ultrasound and potentially radiographs.

   Essentially, a veterinarian would be aiming to get as much information as possible, to ensure a full picture and understanding of the very sick patient, to give the owner the option to make a factually up to date, informed choice.

   [355] Exhibit 20 (Hearing Book at page 15).

4. Although he was cross-examined as to whether it was necessary for a vet to obtain previous test results despite being confident in his diagnosis of an aortic thromboembolism (as to which see above regarding Meggs Complaints 2 and 3), Dr Holder was not taken in cross‑examination to the above quoted evidence.

5. We previously found, as to Meggs Complaints 2 and 3, that a veterinarian of good repute, competence, diligence and safety should have obtained the Earlier Test Results before performing surgery on Meggs.[356]

   [356] At paragraphs [374] - [376] above.

6. It logically follows from that finding that such a veterinarian would also inform their client that, unless the Earlier Test Results could be obtained and provided to him, he would have to perform his Own Tests before he could proceed with surgery.  Indeed, on Dr Holder's evidence, a veterinarian should have both obtained the Earlier Test Results and carried out his Own Tests.

7. Such communication to Meggs' owner about the need for the Earlier Test Results, and the need to carry out his Own Tests if they were not obtained, would be necessary to ensure that the client understood the consequences of not obtaining the Earlier Test Results and to provide a basis for consent to be given either for the obtaining of the Earlier Test Results or to carry out his Own Tests or both.

8. It is not in dispute that Dr Adrian Burstein did not obtain the Earlier Test Results or perform his Own Tests but proceeded to surgery without them.  From that we infer, and we find, that he did not inform Meggs' owner that, unless the results of the Earlier Test Results could be obtained and provided to him, he would have to perform his Own Tests before he could proceed with surgery.

9. Further, given Dr Holder's evidence, which we accept, we are satisfied and find that in doing so, Dr Adrian Burstein's conduct:

   (a)fell substantially below the standard of a veterinarian of good repute, competence, diligence and safety; and

   (b)was conduct which would be reasonably be regarded as disgraceful or dishonourable by a veterinarian of good repute, competence, diligence and safety.

10. Accordingly, we find that he has engaged in professional misconduct in respect of Meggs Complaint 9.

Meggs Complaint 10:  Surgery without test results or tests

1. The Board alleges that Dr Adrian Burstein should not have proceeded with, or performed, surgery on Meggs without either obtaining the Earlier Test Results or performing his Own Tests.[357]

   [357] Amended Grounds, at paragraph 60.

2. In his Amended Response, Dr Adrian Burstein repeated what he said as to Meggs' Complaints 8, 9 and 10, which we will not repeat here.[358]

   [358] Amended Response, at paragraphs 56 and 60.

3. We have previously described the evidence given by Dr Adrian Burstein at the hearing as to why he did not obtain the Earlier Test Results.  In examination-in-chief, he was also asked why he did not conduct his Own Tests.  He answered as follows:[359]

   There's not too many-there's an urgency to remove the clot.  And that for me is the salient point.  If there's any way to relieve Megs -to stop progression of symptoms-that would be the salient point.  The underlying cause will come out in the wash and we will have to deal with it at some stage.  And repeating-spending money on tests that aren't going to give me real information and pertinent information to-trying to remove this clot is all that I'm interested in at the time.  There's always more tests to be done in every case.  But time is of the essence with this case.

   [359] ts 304, 18 April 2024.

4. He also contended that he was left with no option other than surgery as Meggs' owner was insistent on that course.[360]  In particular, he said that he did not agree that, if an animal is brought to him and he formed the view that treatment would be unsuccessful and that the appropriate course is to euthanise the animal, that it was appropriate and ethical to refuse to otherwise attempt to treat the animal.

   [360] ts 275, 17 April 2024; ts 350 - 359, 18 April 2024.

5. Equally, he disagreed with the proposition that, in such circumstances, if the owner refused to euthanise, it was appropriate to ask the owner to remove the animal from the practice.[361]  He said that he considered that such a course would be the 'worst welfare outcome'.[362]

   [361] ts 353, 18 April 2024.

   [362] ts 359, 18 April 2024.

6. Dr Holder's opinion as to the need for the Earlier Test Results is set out above as to Meggs Complaint 9.  Dr Holder was highly critical of Dr Adrian Bustein's decision to proceed to and carry out surgery on Meggs.  Describing that decision, he said of Dr Adrian Burstein:[363]

   Yes.  He was woefully short of accurate, timely and comprehensive information. His clinical assessment of saddle thrombus should have been enough for him not to proceed to surgery, but in aiming to do so he absolutely had to get more information about the past and present state of his patient before proceeding, to at least give himself a chance of acting in the best interest of the patient and client. 

   [363] Exhibit 20 (Hearing Book at pages 15 - 16).

7. In cross-examination, Dr Holder had put to him the situation where the owner of an animal does not want to provide the details of previous vets and is insistent on proceeding to surgery.  He said in such a case he would be 'severely concerned about proceeding with that case'.  He further said that if, despite further questioning of the owner he remained unsuccessful in obtaining relevant information, he would refuse to treat the animal and, if the owner refused to leave, would call the police to assist.[364]

   [364] ts 133, 16 April 2024.

8. Professor Hosgood was of the view that, if Meggs' owner wanted to explore all options, a computed tomography scan of the abdomen and thorax would be required.  After explaining why those tests were necessary she said that she 'would never contemplate a surgery of this complexity without this information'.[365]

   [365] Exhibit 19 (Hearing Book at page 1,231).

9. In cross-examination she had put to her, in effect, the same scenario as was put to Dr Holder and gave, in effect, the same answers as he gave saying:[366]

   I think at the end of the day our role is to act in the best interest of the animal.  The owner's emotions are something that you have to manage, but that should not drive you doing something that's against your better judgment and not in the best interest of the dog.

   But if you're sure that the best interests of the animal would be served by euthanasia, you can't euthanise against the will of the owner, can you?‑‑‑Correct.

   And, similarly, if you think the best interests of the animal short of euthanasia involve quiet aggressive palliative care and the owner says, 'No.  I don't want that treatment.  I - I don't want palliation.  I want treatment.  I'm taking my dog,' you can't stop the owner from taking the dog and leaving, can you?‑‑‑No.  I mean, it's their choice.

   So if that happens, what is the responsibility of the veterinary surgeon at that point in terms of the welfare of the animal?‑‑‑I mean, you can only offer what you can provide and it's up to the owner then to make a choice.  If they've decided they don't want to accept what you're offering, then clearly, their choice is to go somewhere else.  So beyond that, you're not able to offer anything more.

   So are you suggesting that in the situation that I have described where the owner is taking that position that you just let the owner and the dog go?‑‑‑It's their dog.  You ‑ ‑ ‑

   Yes?‑‑‑ ‑ ‑ ‑ cannot their dog against their will.

   There's nothing else you could do?‑‑‑No.

   [366] Exhibit 86, 16 April 2024.

10. Dr Boyd's evidence was to the same effect, saying that it was the role of the vet to communicate clearly so that the owner properly understood the situation.  He said that cases where the owner is 'implacably opposed' to euthanasia are 'extremely rare'[367] and that, if he 'truly had exhausted' his communication options regarding euthanasia then his 'next stance would be to move towards discussing palliative care'.[368] When it was suggested that the owner may have been implacably opposed to even that course, he said that it was difficult to answer as a hypothetical.[369]

    [367] ts 68, 15 April 2024.

    [368] ts 70, 15 April 2024.

    [369] ts 70, 15 April 2024.

11. In our view, there is no material difference between the evidence of Dr Holder, Dr Boyd and Professor Hosgood.  All of them were firm that it was the proper role of a veterinarian to persuade an owner to euthanise an animal where it was in the interests of the animal to do so, rather than to simply agree to the owner's wishes to proceed to treatment.

12. We note that that evidence is entirely consistent with the experience of Meggs' owner with the previous vet clinics; all of them indicated that they thought Meggs should be euthanised and, when that course was refused by Meggs' owner, no further alternatives were offered.

13. Accordingly, we are satisfied and we find that, had he formed the view that euthanasia was the appropriate course of action (and he should have done so for reasons we explain below), he was obliged to persuade Meggs' owner of that view and, if he could not, was obliged to refuse to offer alternative treatment (save for palliation).

14. That is, we reject Dr Adrian Burstein's explanation for why he chose to perform surgery on Meggs despite not having the benefit of any of the Earlier Test Results or carrying out his Own Tests.

15. Based on the evidence of Dr Holder and Professor Hosgood we are satisfied and find that Dr Adrian Burstein should not have proceeded to conduct surgery on Meggs in the absence of the Earlier Test Results and, indeed, other additional tests which should have been conducted prior to any surgery.

16. To be clear, we are satisfied and we find that surgery should not have been conducted on Meggs at all.  Based on the evidence of Professor Hosgood and Dr Holder, a refusal to conduct surgery appears to have been the likely decision regardless of the receipt of additional information that was, and could have been made, available.  But as we understand their evidence, any consideration of surgery as an option should not have been undertaken without that additional information.

17. By way of completeness, we also reject Dr Adrian Burstein's contention that there are 'always more tests to be done'.  In our view, this amounts to a reductio ad absurdum argument that seeks to diminish the value of the information that was and could have been made available by suggesting that the Board's position was unreasonable because there is no such thing as perfect knowledge.

18. As we have previously found, it is common or accepted practice for vets to obtain the clinical records held by other vets about an animal; Dr Adrian Burstein could have quite easily obtained the Earlier Test Results held by, at least, TAHMU (which would have provided the records of any others it held).  Further, it is clear from Professor Hosgood's evidence that there were additional tests which could and should have been done before surgery was contemplated.

19. And we emphasise again that surgery was not performed until the next day in any event, giving plenty of time for obtaining all of the Earlier Test Results and undertaking any additional tests.  Accordingly, we reject the contention that he did not perform his Own Tests because time was of the essence.

20. For these reasons, we are satisfied and find that Dr Adrian Burstein's conduct in performing surgery on Meggs without previously obtaining the Earlier Tests Results or performing his Own Tests fell short of the relevant standard.  We agree with Dr Holder that in carrying out that surgery Dr Adrian Burstein 'was woefully short of accurate, timely and comprehensive information.' [370]  That is, we find that his conduct:

    (a)fell substantially below the standard of a veterinarian of good repute, competence, diligence and safety; and

    (b)was conduct which would be reasonably be regarded as disgraceful or dishonourable by a veterinarian of good repute, competence, diligence and safety.

    [370] Exhibit 20 (Hearing Book at page 15).

21. Accordingly, we find that he engaged in professional misconduct in respect of Meggs Complaint 10.

Meggs Complaint 11:  Clinical Records

1. The Board alleges that:

   61.[Dr Adrian Burstein] made the following entries in Meggs' Record for 2 December 2020:

   Injected 14 PROPOFOL SANDOZ) 200mg/20ml 20ml Injectable. Mid line 20cm incision. Due to delay in surgery intestinal blood vessels already affected - multiple peticiation Opened caudal aorta - 1 cm removed clot - unfortunately clot grown to 15 cm long clot. Closed Aorta successfully with pressure placed on proximal aorta - Vicryl sutures - minimal leak and good pulse. On Abdomenal closure Circulatory collapse as closing. CPR started and owner phoned.(See hosp card for more details) Unfortunately died.

   62.[Dr Adrian Burstein] did not record, or refer to:

   (a)any pre-medication given to Meggs, including their dose, route and time of administration;

   (b)any anaesthetic agents used to induce anaesthesia, including their dose, route and time of administration, other than Propofol;

   (c)any monitoring criteria observed and their intervals to ensure Meggs' wellbeing during the Surgery and to accurately assess the depth of anaesthesia;

   (d)when the Surgery commenced; or

   (e)when Meggs died.

2. As we said in the beginning of these Reasons, in the With Prejudice Letter Dr Adrian Burstein admitted the allegations in paragraph 61 of the Amended Grounds and agreed to findings in terms of the allegations set out in paragraph 62 of the Amended Grounds.[371]

   [371] With Prejudice Letter at [38]; Respondent's opening submissions at [117].

3. We have previously set out some of Dr Adrian Burstein's evidence at the hearing in this regard, which was not to his credit.  He did, however, ultimately maintain his admission that his records were below the relevant standard and that by keeping records of that quality he had engaged in professional misconduct.[372]

   [372] ts 335 - 337, 18 April 2024.

4. Accordingly, we find the facts alleged in paragraphs 61 and 62 of the Amended Grounds made out.

5. Notwithstanding that admission, we note Dr Holder's opinion in this regard, which was unchallenged and which we accept.  In answer to a question asking him to identify the relevant standard regarding the preparation of a clinical record of surgery, he said:[373]

   The standard is to record an accurate description of events, chronologically.

   All drugs given should have their name, ideally concentration, dose, route and time of administration, and who gave it, recorded. This should be legibly written or electronically recorded.

   A monitoring sheet should accompany the clinical records and detail facts and trends of monitored parameters, such as, but not limited to: heart and respiratory rate, blood pressure and temperature.

   Fluid therapy used and administered via which vein should also be recorded, including type of fluid, rate and any changes needed during anaesthesia.

   There are many variations of veterinary anaesthetic monitoring charts. All of them I have used include start and finish times for surgery, anaesthesia and extubation. …

   Any relevant events should be accurately recorded on an anaesthetic chart and in the clinical history, such as cardiac arrest and time of death. Within a few minutes is often acceptable if there are limited personnel and not a dedicated recorder available whilst dealing with a cardiac arrest, which ideally has 5 attendees.

   [373] Exhibit 20 (Hearing Book at pages 16 - 17).

6. Dr Holder also gave his opinion, which was also unchallenged as to the Hospital's records as to the drugs administered before, during and after surgery:[374]

   [374] Exhibit 20 (Hearing Book at pages 18 - 19).

   The Ocean Keys Vet Hospital Clinical Record (Document 10) records Propofol 200mg/20ml.  It is unclear which route of administration was used.  The time of administration is unknown.  It is unknown who gave the drug.

   The Ocean Keys Vet Hospital Invoice (Document 9) suggests that 14 ml Propofol was given.  It is therefore unclear as to whether 14 or 20 ml was administered.

   The following drugs are mentioned in the Ocean Keys Vet Invoice (Document 9):

   (a)Antisedan 10ml 5mg fluid;

   (b)General - gas (maintenance);

   (c)Induction intravenous;

   (d)Injections subcutaneous;

   (e)Pain killing injections subcutaneous; and

   (f)Premedication subcutaneous.

   I assume the reference to 'induction intravenous' refers to the Propofol in the Ocean Keys Clinical Record (Document 10). Other than that, none of the drugs recorded in the invoice are mentioned in the clinical history.

   The Invoice is devoid of detail.  I cannot be sure what drugs were given subcutaneously, as premedication, or as a pain killer.  I also query whether any schedule 8 drugs were used as none are specified in the invoice or clinical record.

   There is no route, volume, time or dose rate specified for any administration of Antisedan.

   I cannot make judgement on whether any drugs were given other than Propofol, as I have no corroborating evidence other than for Propofol.  Propofol induction dose rate is 2.2-7.6mg/kg given slowly over 30-90 seconds, dependent on which premedication drugs used or none.  Also, patients that are debilitated will generally require lower doses and may experience exaggerated cardiovascular and respiratory depression.

   The dog is recorded as an intact male on the Ocean Keys Vet Hospital records, with no weight.  The Brighton Vet clinical records (Document 4) record the weight as 27.3 kgs.  The Brighton Vet, EVH, Animalius and TAHMU records (Documents 4, 5, 6 and 7) record the dog as female.

   This patient is presumed to have been pre-medicated with an unknown drug as this is billed on the invoice.  Also, she was debilitated.  So, one would presume that the dose needed would be low.  At a concentration of 10mg/ml.  We would draw up max dose expected, generally for premedicated dogs 2.5-4mg/kg but we usually would have 6mg/kg available.  This would be around (27x6)/2=16.2ml, not knowing her exact weight at the time of surgery.  However, expected dose would be 1-2mg=2.7-5.4ml.  14ml of Propofol seems possible but unlikely.

   If Antisedan was used, then that suggests an alpha-2 agonist such as Medetomidine was used previously, which would be contraindicated in a cardiovascularly, unstable patient in a general practice setting.

   There is no clear indication of pain relief drugs given and whether schedule 8 drugs were used, which would suggest potential for inadequate pain relief for this patient.

1. Accordingly, Dr Holder opined that:[375]

   … This record is woefully inadequate as it suggests no pain relief was given and we cannot tell how the dog was anaesthetised.  We cannot recreate the events that occurred from the clinical record, even when read with the invoice.  

   A clinical record should match the invoice.  Ideally, there should also be an anaesthetic monitoring chart that matches the clinical record and invoice.

   [375] Exhibit 20 (Hearing Book at page 19).

2. Given Dr Holder's evidence in this regard was unchallenged, we accept it and find the relevant standard as stated.  Consistent, therefore with Dr Adrian Burstein's admission, we find that his failure to include in Meggs' clinical records the information set out in paragraph [62] of the Amended Grounds amounts to conduct that:

   (a)substantially fell short of the standard of competence, diligence and safety that a member of the public is entitled to expect of a reasonably competent veterinarian; and

   (b)would reasonably be regarded as disgraceful and dishonourable by veterinarians of good repute and competence. 

3. Accordingly, we find that Dr Adrian Burstein has engaged in professional misconduct in respect of Meggs Complaint 11.

Meggs Complaint 12:  Records of administration of Schedule 4 drugs

1. The Board alleges that on 2 December 2020 Dr Adrian Burstein rendered the Meggs' Invoice to Meggs' owner for the total amount of $2,179, which the owner paid in full and which included charges for:

   (a)1 December 2020 for 'DEXAFORT VOREN injectable 50ml 3mg'; and

   (b)2 December 2020 for 'Antisedan 10ml 5 mg Fluid';

   where:

   (c)Dexafort Voren is an injectable suspension of dexamethasone and Antisedan is atipamezole and it is administered intramuscularly for reversal of sedation and analgesia; and

   (d)Dexamethasone and atipamezole are S4 Drugs and scheduled drugs as defined in reg 2(1) of the VS Regulations;[376]

   [376] Amended Grounds, paragraphs 63 - 68.

2. In his Amended Response, Dr Adrian Burstein agreed that, on 2 December 2020, he rendered the Meggs' Invoice to Meggs' owner for the amount of $2,179[377] but did not admit the Meggs' Invoice was paid in full.[378]  He also admitted the allegations regarding Dexafort Voren and Antisedan set out above.[379]

   [377] Amended Response, paragraph 63.1.

   [378] Amended Response, paragraph 63.2. We do not understand that anything turns on whether the invoice was paid or not. It is not an element of the complaint.

   [379] Amended Response, paragraphs 64 - 68. See, also, ts, 336, 18 April 2024.

3. The Board further alleges that, in contravention of reg 30 of the VS Regulations, Dr Adrian Burstein did not make a clinical record of the supply of dexamethasone and atipamezole to Meggs on 1 and 2 December 2020, respectively.[380]

   [380] Amended Grounds, paragraph 69.

4. Regulation 30 of the VS Regulations provided that:

   (1)A registered veterinary surgeon who supplies or prescribes a scheduled drug[381] must make a clinical record of the supply or prescription.

   (2)A clinical record required under subregulation (1) must include ‑

   (a)the name and address of the owner of the animal; and

   (b)sufficient details to identify the animal; and

   (c)the clinical history of the animal including the results of any examination of, or diagnostic tests carried out on, the animal; and

   (d)the name of the poison; and

   (e)the quantity of the poison supplied or prescribed.

   …

   [381] For the purposes of the VS Regulations, the term 'scheduled drug' means 'a Schedule 4 poison or a Schedule 8 poison as those terms are defined in the Medicines and Poisons Act 2014 section 3': VS Regulations, reg 2.

5. Dr Adrian Burstein also admitted that, in contravention of reg 30 of the VS Regulations, he failed to make the required clinical records. That admission, however, came much later, only a week before the hearing on 8 April 2024.[382]

   [382] With Prejudice Letter at [38]; Respondent's Opening Submissions at [117]. Compare Amended Response, paragraph 69.

6. Perhaps because of those admissions, no other evidence was called about the administration of Dexafort Voren and Antisedan.

7. The result is that the only evidence that we have before us that supports the allegation, save for the admission, is the Meggs' Invoice.

8. But as we have already discussed, and found, we have very considerable concerns with relying on any document completed by Dr Adrian Burstein unless it is supported by other, objective, evidence.

9. Indeed, the Board's case as to Meggs Complaint 9 is that the records are so inadequate as to amount to professional misconduct.

10. And in his cross-examination of Dr Adrian Burstein, Mr Abbott was critical of him for relying on the inclusion of Dexafort Voren in the Meggs' Invoice as the basis for a claim that he tested Meggs for Cushings disease.[383]

    [383] ts 360 - 362, 18 April 2024. See our previous finding at [71].

11. In those circumstances, we are reluctant to proceed on the basis that Dr Adrian Burstein did, in fact, supply Dexafort Voren and Antisedan.

12. Of course, if he did not supply the drugs, he should not have charged for them, and if he did supply them, he should have recorded them in accordance with reg 30 of the VS Regulations.

13. It is the latter which forms the gravamen of paragraphs 63 - 69 of the Amended Grounds; in particular both paragraphs 68 - 69 of the Amended Grounds proceed on the basis that the supply did occur.

14. We are not obliged to proceed on the basis of an admission where there is reason to doubt 'that it is factually justified'.[384]

    [384] Comcare v Fiedler [2001] FCA 1810 at [39].

15. In the present case, the evidence is that Dr Adrian Burstein had no recollection of treating Meggs at all.  As such, the admission must be based on the Meggs' Invoice.  But, as we have repeatedly said, no meaningful weight should be given to Dr Adrian Burstein's documentary records.

16. Further, in this case, there is no evidence to support a finding that the drugs in question were administered.  In particular, there is nothing to suggest that they were (or were not) clinically justified.

17. For those reasons we do not find that the drugs the subject of paragraphs 63 - 68 of the Amended Grounds were provided.

18. As such, Meggs Complaint 12 must be dismissed.

Meggs Complaint 13:  Blood transfusion

1. The Board alleges that the Meggs' Invoice included a charge of $587.50 for a purported blood transfusion on 2 December 2020 and that Dr Adrian Burstein charged Meggs' owner for a blood transfusion in circumstances where Meggs did not receive any blood transfusion.[385]

   [385] Amended Grounds, paragraphs 70 and 71.

2. Dr Adrian Burstein admits that the Meggs' Invoice contains the charge but does not admit that Meggs did not receive a blood transfusion.[386]  He also admitted that the blood transfusion should have been noted in the clinical record as well as the Meggs' Invoice and is willing to agree to a finding to that effect.[387]

   [386] Amended Response, paragraphs 70 and 71.

   [387] With Prejudice Letter at [39].

3. The Board submitted that there is no evidence that a blood transfusion was administered (including that there is no note in Meggs' clinical record to that effect) and there was no therapeutic reason for it to occur.[388]  Further, it submits that if we find that a blood transfusion was made, it is open to the Tribunal to find that Dr Adrian Burstein engaged in professional misconduct in accordance with his admission to that effect by failing to record in Meggs' clinical record that he administered a blood transfusion to Meggs.[389]

   [388] Applicant's Closing Submissions footnote 13.

   [389] Applicant's Closing Submissions footnote 13.

4. Dr Adrian Burstein contends that Meggs did receive a blood transfusion and that he recorded the blood transfusion in the Meggs' Invoice.[390]

   [390] Respondent's SIFC at [19].

5. The Meggs' Invoice covers the period 1 and 2 December 2020 and contains 41 items.[391]  Line items 1 to 16 inclusive are for 1 December 2020.  Line items 17 to 41 inclusive are for 2 December 2020.  The entry for the blood transfusion is line item 19 and is the third entry for 2 December 2020.

   [391] Exhibit 24 (Hearing Book at pages 165 - 168).

6. At the Hearing, Dr Adrian Burstein was asked to explain how the entry for the blood transfusion came to be on the Meggs' Invoice.  He answered as follows:[392]

   When we had done the surgery, it had taken an hour-taken a long surgery, we were closing up.  All of a sudden, Meg[g]s collapsed and the most common reason would have been that she is probably bleeding.  We were putting stitches in an aorta, which has got a very high pressure.  It has got its pulse back, so it's pumping and it's leaking.  At that stage, the best thing you can do is try wake the animal up and give them a blood transfusion to try keep their pulse-keep their blood flowing.  So during that period, blood was being pushed in at a huge rate to try save Meg[g]s and that's part of resuscitation in this case.

   …

   The only reason I can say that there was a blood transfusion is because it's on my invoice and because it's the most logical thing to do when the dog was collapsing.  Didn't need fluid.  He needed blood.  He's bleeding-she is bleeding.

   [392] ts 305 - 306, 18 April 2024.

7. That evidence was not the subject of specific questions in cross-examination.

8. Nonetheless, we have some difficulty in accepting it because it contains a level of detail that appears to be quite at odds with his repeated statement that he had no recollection of treating Meggs at all and the almost complete absence of any of that detail in the written record.  In that regard we also note that the Meggs Statutory Declaration makes no mention of the blood transfusion, referring instead to the use of adrenaline.

9. Nonetheless, despite that, and the lack of any record of a blood transfusion in Meggs' clinical record,[393] for the following reasons we are not satisfied that no blood transfusion was given to Meggs.

   [393] ts 335, 18 April 2024.

10. While we accept Dr Holder's evidence that 'a clinical record should match the invoice',[394] the failure to include the blood transfusion in the clinical record does not by itself inevitably lead to the conclusion that no blood transfusion was administered.  It could simply represent yet another failure by Dr Adrian Burstein to maintain clinical records.

    [394] Exhibit 20 (Hearing Book at page 19).

11. Despite our concerns about the level of detail contained in Dr Adrian Burstein's viva voce evidence as to why Meggs would have received a blood transfusion, that explanation does appear to amount to a reasonable explanation as to what might have happened in that it appears to provide a reasonable clinical basis for the provision of a blood transfusion.

12. Further, as we have previously noted, Dr Adrian Burstein was not cross-examined about his explanation.

13. Finally, no expert evidence was given on behalf of the Board in support of its contention that there was no therapeutic need for a blood transfusion.  In particular, we note that this matter was not addressed in Dr Holder's report or in the evidence he gave at the hearing.

14. Accordingly, while we have some doubts in this regard, we do not feel an actual satisfaction that no blood transfusion was administered and, therefore, Meggs Complaint 13 should be dismissed.

15. Further, while we accept that Dr Adrian Burstein has admitted that he failed to make a clinical record of the administration of the blood transfusion, we reject the Board's contention that we should make a finding that he engaged in professional misconduct in accordance with that admission. 

16. The Tribunal's jurisdiction under s 101 of the VP Act is limited to dealing with a complaint referred to it by the Board. The failure to make a clinical record of the administration of the blood transfusion was not so referred and we cannot, therefore, make the finding sought.

Meggs Complaint 14:  Meggs Statutory Declaration

1. In the Meggs Statutory Declaration of 24 November 2021 Dr Adrian Burstein declared that he 'set up a drip and kept Meggs at the Hospital overnight, monitoring her often during the night'.[395]

   [395] Amended Grounds, paragraph 71B.

2. The Board alleges that statement is false because he was not at the Hospital between 7.30 pm on 1 December 2020 and 8.49 am on 2 December 2020 and did not check on Meggs between those times or at all.[396]  The Board further alleges that Dr Adrian Burstein knew that the statement was false or made that statement with reckless disregard as to its truth.[397]

   [396] Amended Grounds, paragraph 71C.

   [397] Amended Grounds, paragraph 71D and 71E.

3. Rather confusingly, the Board alleges that further, or in the alternative, Dr Adrian Burstein failed to identify the sources upon which the statement was based.

4. Dr Adrian Burstein admits that he made the Meggs Statutory Declaration which contained the relevant statement but he does not admit that the relevant paragraph is false.[398]

   [398] Amended Response, paragraph 71B and 71C.

5. The two different limbs of this Complaint have already been addressed to some extent elsewhere:

   (a)in relation to Meggs Complaint 5, we found that Dr Adrian Burstein had not 'intensively' monitored Meggs as he should have done, but in relation to Meggs Complaint 6 we held that we could not be satisfied that his clinical record, which said that he had attended Meggs at 11.30 pm and 6.00 am, was false.

   (b)in relation to Malo Complaint 21 we held that there was no duty on Dr Adrian Burstein to advise the Board of the sources of the statements made in his Malo Statutory Declaration.

6. Consistent with the second of the two limbs, we find that there was no duty on Dr Adrian Burstein to advise the Board of the sources of the statements made in the Meggs Statutory Declaration.

7. However, it is not so straightforward a matter in relation to the first of those two limbs.  That is because, in the present case, the concern is with the Meggs Statutory Declaration, as opposed to the Meggs' Record:  Meggs' Record states that Dr Adrian Burstein attended Meggs at 11.30 pm and 6.00 am, while in the Meggs Statutory Declaration he states that he attended to Meggs 'often'.

8. We are satisfied and we find that on its ordinary meaning, to say that you attended on an animal 'often' during the night implies that you attended many more times than twice.

9. We have previously accepted, and held, that Dr Adrian Burstein has no actual recollection of treating Meggs at all.  We have also held he was equally ignorant when he made the Meggs Statutory Declaration.

10. As we did with the Malo Statutory Declaration, we accept that he was not on notice when he made the Meggs Statutory Declaration that his records were so inadequate that he could not rely upon them (the Meggs Statutory Declaration was made several months prior to the Malo Statutory Declaration) and, therefore, any reliance upon those records when preparing the Meggs Statutory Declaration should not be condemned.

11. However, on the assumption that Dr Adrian Burstein used Meggs' written records as the sole basis for the relevant statement in the Meggs Statutory Declaration, we find that he was intentionally dishonest in that the Meggs' Record does not provide a basis for the statement that he attended Meggs 'often' and the Meggs Statutory Declaration represents a decision to depart from the terms of the Meggs' Record without any basis to do so.

12. On that basis, we are satisfied that in making the statement in the Meggs Statutory Declaration, Dr Adrian Burstein engaged in conduct which:

    (a)substantially fell short of the standard of competence, diligence and safety that a member of the public is entitled to expect of a reasonably competent veterinarian; and

    (b)would reasonably be regarded as disgraceful and dishonourable by veterinarians of good repute and competence.

13. As such, we are satisfied that he engaged in professional misconduct.

Other matters

Alleged deficiencies in Malo's clinical records

1. The Board alleged during the hearing that Malo's Clinical Records were also substantially below the relevant standard.[399]

   [399] ts 335 - 337, 18 April 2024.

2. Dr Adrian Burstein accepted that, at the time he treated both Malo and Meggs, his clinical notes and his system of record-keeping was below an acceptable standard.[400]

   [400] 8 April 2024 Letter at [37] - [38]; ts 335 - 337, 18 April 2024.

3. However, as we have already noted, the Tribunal only has jurisdiction to deal with a complaint which is referred to it.

4. Whilst the Board referred a complaint to the Tribunal about Meggs' records, it did not refer a comparable complaint about Malo's.

5. Accordingly, we have no jurisdiction to make a finding of professional misconduct or unprofessional conduct against Dr Adrian Burstein in relation to Malo's clinical records.

Dr Adrian Burstein's conduct at the hearing

1. The Board also submitted that the conduct of Dr Adrian Burstein at the hearing was relevant to our decision as to whether or not he had engaged in conduct that is inconsistent with a person being a fit and proper person to hold registration as a veterinarian.[401]

   [401] Applicant's Closing Submissions at [83] - [88].

2. We do not agree for the reasons set out immediately above - we have only that jurisdiction which s 101 of the VP Act provides us, which is to deal with a complaint referred to the Tribunal by the Board.

3. Self-evidently, the conduct of Dr Adrian Burstein at the hearing was not the subject of a complaint referred to the Tribunal by the Board and we therefore lack any jurisdiction to make a finding that it did, or did not, constitute professional misconduct or unprofessional conduct.

4. Of course, his conduct at the hearing is relevant to our assessment of his credibility as a witness, which is a matter to which we have previously referred.

Conclusion

1. We have found that the conduct of Dr Adrian Burstein in respect of the following complaints constitutes professional misconduct:

   (a)Malo Complaints 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 16 and 17; and

   (b)Meggs Complaints 2, 3, 5, 7, 8, 9, 10, 11 and 14.

2. We have also found that the following complaints should be dismissed:

   (a)Malo Complaints 10, 11, 14, 15, 18, 19, 20 and 21; and

   (b)Meggs Complaints 1, 4, 6, 12, and 13.

3. The Board alleges that:

   (a)each of the complaints in relation to Malo individually constitutes professional misconduct by Dr Adrian Burstein;[402] and

   (b)the complaints in relation to Meggs individually and collectively constitute professional misconduct by Dr Adrian Burstein.[403]

   [402] Amended Grounds, at paragraph 27 and 28.

   [403] Amended Grounds, at paragraph 72 and 73.

4. Given our findings that several of the complaints against Meggs constitute professional misconduct, it is unnecessary to address the allegation that they collectively constitute professional misconduct.  

Orders

1. We will hear from the parties as to the orders which should be made to reflect our findings and as to the programming of the matter for hearing as to penalty.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

PN

Associate to Deputy President Judge Jackson

12 DECEMBER 2024