Veterinary Practitioners Board of NSW v Johnson - [2010] NSWADT 308

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

DIVISION: General Division

PARTIES:
APPLICANT
Terrence Johnson
RESPONDENT
Veterinary Practitioners Board of New South Wales

FILE NUMBER: 093282 and 093178

HEARING DATES: 23, 24, 25, 26, 27 and 30 August 2010

SUBMISSIONS CLOSED: 14 September 2010

DATE OF DECISION:
30 December 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Carter T - Non-Judicial Member; Mayo-Ramsay R - Non-Judicial Member

CATCHWORDS: Professional discipline – veterinarian – professional misconduct

LEGISLATION CITED: Veterinary Practice Act 2008
Veterinary Practice Regulation 2006
Evidence Act 1995

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Bannister v Walton (1993) 30 NSWLR 699
Dr Aladdin Matter & The Medical Practice Act of NSW (Medical Tribunal of NSW, unreported, 3 August 2000) Re Dr Than Le (Medical Tribunal of NSW, 20 September 2001)Prakash v Health Care Complaints Commission [2006] NSWCA 153
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Health Care Complaints Commission v Pham [1999] NSWCA 39
Smith v New South Wales Bar Association (1992) 176 CLR 256
McBride v Walton, unreported, NSWCA, 15 July 1994; BC 9402907
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Clyne v NSW Bar Association (1960) 104 CLR 186
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Veterinary Surgeries Investigating Committee v Thompson [2007] NSWADT 107
Law Society of NSW v Foreman (1994) 34 NSWLR 408 Craig v Medical Board of South Australia [2001] SASC 169 Dr Graeme Reeves (Medical Tribunal of NSW, 23 July 2004)Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191
Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27 Veterinary Surgeons Investigating Committee v Williamson (No.2) [2005] NSWADT 112

REPRESENTATION:
APPLICANT
In person
RESPONDENT
S. Strickland, senior counsel
K. Sant, counsel

ORDERS: 1Dr Johnson’s veterinary practitioner’s registration is cancelled
2 Dr Johnson cannot re-apply for registration for at least four years from the date of this decision
3 Dr Johnson is to pay the costs of the Veterinary Practitioner’s Board. This order does not take effect until 21 days after notice of the order is given to the veterinary practitioner by the Registrar of the Board.

REASONS FOR DECISION

Introduction

1 Dr Johnson has been a veterinary practitioner since May 1986. He practiced mainly as a sole practitioner at the Hawke Drive Veterinary Hospital (the hospital) at Woolgoolga in northern NSW. The Veterinary Practitioners Board of NSW (the Board) applied to the Tribunal for a disciplinary finding that Dr Johnson is guilty of professional misconduct and/or unsatisfactory professional conduct: Veterinary Practice Act 2008 (the Act), s 47(4) and 50. If the Tribunal makes such a finding it can make orders ranging from a reprimand or caution to cancelling Dr Johnson’s registration. The Board submitted that Dr Johnson’s registration should be cancelled and that Dr Johnson should pay the Board’s costs of the proceedings: s 51(1)(c). Dr Johnson submitted that he should be permitted to continue to practise and that he should not be liable for the Board’s costs.

2 The Board lodged two separate applications: an amended application in matter 091378 filed on 3 May 2010 (Application 1) and a further application filed in matter 093282 on 2 November 2009 (Application 2). The first five grounds of Application 1 and Ground 9 of Application 2 concern Cat 1. Those grounds, in summary, are that Dr Johnson:

a) deceived Complainant 1 about the circumstances of her cat’s death;
b) created, false and/or misleading records in relation to the care of Cat 1, and the circumstances of her death;
c) was dishonest in his representations to the Board about the circumstances of the death of Cat 1;
d) engaged in conduct that was likely to cause unnecessary suffering to an animal and/or cause the inappropriate death of an animal; and
e) delayed informing Complainant 1 of her cat’s death.

3 Ground 9 of Application 2 asserts that Dr Johnson’s knowledge and skill as a veterinarian was inadequate because he administered Dexason to a diabetic cat. Grounds 6 and 7 of Application 1 concern a second cat, Cat 2 and the circumstances of her disposal after she had died. Ground 1 of the second application relates to Dr Johnson’s pharmaceutical supplies, and the representations he made to the Board about those supplies. Ground 2 of Application 2 alleges that Dr Johnson obstructed or hindered the Board’s inspector in the exercise of his power. Ground 3 alleges that Dr Johnson breached a condition of his registration that the Board had imposed on him.

History of complaints and investigation

4 On 5 December 2008, a client of Dr Johnson, Complainant 1, complained to the Board about Dr Johnson’s treatment of her cat, Cat 1. On 30 March 2009, Complainant 2 made a separate complaint in relation to her cat, Cat 2. On 13 March 2009, while investigating Complainant 1’s complaint, the Board's Complaints Committee (the Committee) took evidence from a number of Dr Johnson’s past and present employees. Evidence was obtained from a former locum, Dr Emma Harding (now Emma Billing) and several of the employees who worked at the hospital. The Committee also contacted and received correspondence from three pharmaceutical companies. In the course of correspondence in relation to the adequacy of Dr Johnson’s pharmaceutical supplies, Dr Johnson’s solicitor suggested that an inspection of the hospital would resolve the issue. However, when Board members attempted to inspect the hospital on 29 May 2009, Dr Johnson refused to allow the inspection. He said he had told his solicitor that morning that he had personal appointments and it was not a convenient time to inspect the supplies.

5 On 2 June 2009, the Board decided to impose the following condition on Dr Johnson's registration effective from 3 June 2009:

Dr Johnson must have another full time veterinary practitioner working with him; or
Dr Johnson must only practise in a group practice.

6 On 2 June 2009 the Board wrote to Dr Johnson advising him of the conditions it had placed on his registration. Dr Johnson said that the condition was unworkable and decided not to comply with it.

7 On 20 October 2009, the Board suspended Dr Johnson’s registration pending determination of the matter before the Tribunal: s 47(4) (b). One of the reasons for that decision was that Dr Johnson had admitted that he had not been complying with the condition that he must work with another full time veterinary practitioner or within a group practice.

8 On 2 November 2009, Dr Johnson applied to the Tribunal for a review of the suspension decision and for a stay of that decision. On 10 December 2009, the Tribunal stayed the decision of the Board pending determination of the application on the following conditions:

(a) Dr Johnson file and serve all documents recording the days on which his employees worked during 19 September to 24 September 2009; the cage cards for Cat 1 and the documents requested by the Board in relation to Complaint 2, within 3 days of receiving this decision; and
(b) Dr Johnson comply with the conditions on his registration that he must work with another full time vet or within a group practice: Veterinary Practitioners Board of New South Wales v Johnson [2009] NSWADT 308.

9 The Board did not receive the cage card for Cat 1 so Dr Johnson remained suspended.

Evidence

10 Apart from the documentary evidence, oral evidence was given by the two people who had complained to the Board: Complainant 1 and Complainant 2. Evidence was also given by three employees of Dr Johnson, Lee Bottomley, Wendy King, Sharyn Messner (nee Edwards) and by a locum, Dr Emma Billing (nee Harding). Dr Johnson’s former girlfriend, Ms Lahure, also gave evidence. The Board relied on expert evidence from Dr Prowse, a registered veterinarian with 39 years experience in mixed practices. Dr Hansen, a Board member gave evidence as did Ms Mittiga, a solicitor acting for the Board. Dr Johnson gave oral evidence in his own case.

Unsatisfactory professional conduct and professional misconduct

11 The Board submitted that Dr Johnson’s conduct amounts to unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct is defined in s 35 of the Act. The relevant parts of those definitions are as follows:

. . .

(c) engaging in conduct in the veterinary practitioner’s professional capacity that, if repeated or continued, is likely to do any of the following:

(i) cause unnecessary suffering to an animal,
(ii) cause the inappropriate death of an animal,
(iii) adversely affect the safety or health of any person,
(iv) damage the international reputation of Australia in relation to animal exports, animal welfare, animal produce or sporting events,

(d) any contravention by a veterinary practitioner of the conditions of the veterinary practitioner’s registration,

(e) any failure by a veterinary practitioner to comply with a provision, prescribed by the regulations for the purposes of this paragraph, of the code of professional conduct in effect under section 37,
. . .

(g) any failure without reasonable excuse by the veterinary practitioner to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court imposed on the veterinary practitioner in his or her capacity as a veterinary practitioner,
. . .

(i) any contravention by a veterinary practitioner of this Act or the regulations,
. . .

(k) any other conduct of a veterinary practitioner that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of veterinary science,

(l) any other improper or unethical conduct of a veterinary practitioner in the course of the practice of veterinary science,

12 Professional misconduct is also defined in s 35:

"professional misconduct" means:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner’s registration, or

13 Consequently, professional misconduct is either “serious” unsatisfactory professional conduct as defined above or conduct which is declared by the Veterinary Practice Regulation 2006 (Regulation) to be professional misconduct. Clause 11 of the Regulation provides that for the purposes of paragraph (b) of the definition of professional misconduct in s 35, the breach of any of a number of specified clauses of the Veterinary Practitioners Code of Professional Conduct (Code) is declared to be professional misconduct for the purposes of the Act. Those clauses relevantly include clauses 2, 3, 4, 6 and 8. Those provisions are reproduced below. If the Tribunal finds Dr Johnson guilty of breaching any of these clauses, it follows that he is guilty of professional misconduct in respect of the relevant matter.

Code of Conduct

14 Under the Code concern for the welfare of animals is the most fundamental principle of veterinary practice: Code, Cl 1(a). Certain clauses, including clause 2, 3, 4, 6 and 8, are declared to constitute professional misconduct: Regulation, Cl 11.

2 Welfare of animals must be considered

A veterinary practitioner must at all times consider the welfare of animals when practising veterinary science.

3 No refusal of pain relief

(1) A veterinary practitioner must not refuse to provide relief of pain or suffering to an animal that is in his or her presence.

(2) In this clause, relief, in relation to pain or suffering, means:

(a) first aid treatment, or

(b) timely referral to another veterinary practitioner, or

(c) euthanasia,

as appropriate.

4 Knowledge of current standards of practice

(1) A veterinary practitioner:

(a) must maintain knowledge to the current standards of the practice of veterinary science in the areas of veterinary science relevant to his or her practice, and

(b) must always carry out professional procedures in accordance with those current standards.

(2) A veterinary practitioner must base professional decisions on evidence based science or well-recognised current knowledge and practice, or both.

. . .

6 Professional conduct

A veterinary practitioner must not mislead, deceive or behave in such a way as to have an adverse effect on the standing of any veterinary practitioner or the veterinary profession.

8 Availability to care for animal

A veterinary practitioner must, when accepting an animal for diagnosis or treatment:

(a) ensure that he or she is available for the ongoing care of the animal, or

15 Section 91(1), (2) and (3) of the Act provides for the power of entry and examination of premises by a Board inspector.

(1) An inspector may, at any reasonable time, enter any premises in which the inspector has reasonable cause to believe that any person is doing or has done any act that is a restricted act of veterinary science for the purpose of ascertaining:

(a) whether any provision of this Act or the regulations has been or is being contravened, or

(b) whether the conduct of a veterinary practitioner constitutes unsatisfactory professional conduct or professional misconduct.

(2) An inspector may:

(a) make such examinations, inspections and inquiries, and

(b) collect and take away such samples and specimens, and

(c) take such photographs, and

(d) seize and take away such records,

in or from premises entered in accordance with this section as the inspector considers necessary in connection with the administration of this Act.

Issues

16 At the hearing, Dr Johnson admitted, for the first time, many of the facts alleged against him. In relation to the facts that he did not admit, the issue is whether the Tribunal is satisfied that the Board has proved those allegations. The standard of proof for factual matters is the civil standard of proof, which is satisfaction on the balance of probabilities. However, the Tribunal must take into account the gravity of the matters alleged in deciding whether it is satisfied that allegations of fact have been proved: Evidence Act 1995, s 140; see also with Briginshaw v Briginshaw (1938) 60 CLR 336; Bannister v Walton (1993) 30 NSWLR 699, (711F, 712D, 734E, 734G). Based on the Tribunal’s factual findings, the next question is whether Dr Johnson’s conduct amounts to professional misconduct, unsatisfactory professional conduct or neither. Finally, if the conduct amounts to professional misconduct or unsatisfactory professional conduct, the Tribunal must determine whether to make an order against Dr Johnson. The available orders range from a reprimand or caution to the cancellation of Dr Johnson’s registration if he is found to be guilty of professional misconduct: s 51.

Application 1, Grounds 1-5

. During the hearing Dr Johnson admitted each of the particulars set out in these grounds apart from particulars (d) and (e) of Ground 4. The particulars which Dr Johnson did not admit are highlighted in italics.

Ground 1

Dr Johnson breached Clause 6 of the Veterinary Practitioners Code of Professional Conduct (the Code) or is guilty of unethical or improper conduct in the course of veterinary practice within the meaning of s 35(l) of the Act in that he deceived Complainant 1 (the owner of Cat 1) who had been his patient and who died in the hospital, about the circumstances of the cat's death:

Particulars

(a) On Friday 19 September 2008, Cat 1 died at approximately 6:30 p.m. at the hospital whilst an inpatient.

(b) Dr Johnson was not with Cat 1 at the time of her death.

(c) On Saturday 20 September 2008 Complainant 1 received a message on her answering machine from Dr Johnson saying he was just giving her an update on Cat 1 and that he would ring her the next day.

(d) Complainant 1 did not receive a phone call from Dr Johnson on either Sunday 21 September 2008 or on Monday 22 September 2008.

(e) On or about Tuesday 23 September 2008 Complainant 1 spoke to Dr Johnson on the telephone. During that phone call Dr Johnson informed Complainant 1 that he had put Cat 1 to sleep on Sunday 21 September 2008 at 12.23 am because her kidney had collapsed.
Ground 2

Dr Johnson breached clause 6 of the Code or is guilty of unethical or improper conduct in the course of veterinary practice within the meaning of s 35(1) of the Act in that he created, or caused to be created, false and/or misleading records in relation to the care of Cat 1, and the circumstances of her death:

Particulars

(a) Cat 1 died at the hospital on Friday 19 September 2008, whilst an inpatient.

(b) By letter dated 18 January 2009 Dr Johnson produced hospital records in relation to Cat 1 that included entries for 17, 18, 19, 20 and 22 September 2008 which purported to be and/or tended to give the impression of being contemporaneous.

(c) The records were not made contemporaneously.

(d) The records relating to the condition of Cat 1 on 20 and 22 September 2008 and the treatment provided to her on those dates were fabricated.

(e) The records that purported to record the circumstances of the death of Cat 1 on 22 September 2008 were dishonest in relation to that time, manner and circumstances of her death.

Ground 3

Dr Johnson breached clause 6 of the Code or is guilty of unethical or improper conduct in the course of veterinary practice within the meaning of s 35(1) of the Act in that he has been dishonest in his representations to the Board about the circumstances of the death of Cat 1.

Particulars

The records referred to in ground 2 were produced to the Board on or about 28 January 2009 with a covering letter dated 18 January 2009, in circumstances where those communications conveyed, and were intended by Dr Johnson to convey, the misleading and/or dishonest impression that:

(a) Cat 1 died late at night on 22 September 2008.

(b) Dr Johnson was present when Cat 1 died.

(c) Dr Johnson was available to provide necessary treatment for Cat 1 after hours and over the weekend.

(d) Dr Johnson had provided reasonably frequent review and treatment of Cat 1 in the days leading up to her death.

(e) Dr Johnson had been providing treatment to Cat 1 in the immediate period before her death and up until the time of her death.

(f) Cat 1 died as a result of the administration of lethabarb.

(g) Dr Johnson administered the lethal dose of lethabarb.

(h) All records relating to Cat 1 that he produced to the Board had been made reasonably contemporaneously.

Ground 4

Dr Johnson breached clauses 2, 3 and 8 of the Code when responsible for the care of Cat 1 and/or engaged in conduct in his professional capacity that, if repeated or continued, was likely to cause unnecessary suffering to an animal and/or cause the inappropriate death of an animal in contravention of s 35(c)(i) and/or (ii) of the Act.

Additionally, or in the alternative, Dr Johnson's care of Cat 1 demonstrated a lack of judgement or care in the practice of veterinary science: s 35(k).

(a) Cat 1, a diabetic cat, was admitted to the hospital by Dr Emma Harding on Tuesday 16 September 2008 because she was not eating and only drinking a little.

(b) Cat 1 remained an inpatient at the hospital until her death on Friday 19 September 2008 at approximately 6:30 p.m.

(c) On Friday 19 September 2008, Cat 1’s health deteriorated.

(d) Dr Johnson failed to attend to Cat 1 during the afternoon of Friday 19 September 2008 while he was present at the hospital despite being told that she was in distress and suffering seizures.

(e) Dr Johnson left the hospital on Friday 19 September 2008 without adequately reviewing or assessing Cat 1 and/or administering necessary treatment to her, including treatment to alleviate the pain and/or making other suitable arrangements for her care in his absence.

Ground 5

Dr Johnson's communications with Complainant 1 in relation to the death of her cat, demonstrated a lack of adequate knowledge skill judgement or care in the practice of veterinary science: s 35(k).

Particulars

(a) Cat 1 died at the hospital on Friday 19 September 2008 at approximately 6:30 p.m.
(b) Dr Johnson did not inform Complainant 1 about the death of Cat 1 until Tuesday 23 September 2008.

18 Background to Application 1, Grounds 1-5. On 18 August 2008 Dr Johnson undertook tests on Cat 1 and told Complainant 1 that her cat had diabetes. On 22 August 2008 Complainant 1 took her cat home and began giving her insulin injections. After that the cat did not seem well and went off her food. On 1 September 2008 Complainant 1 took the cat back to the hospital where she spent a couple of days. Cat 1 returned home but remained unwell. Complainant 1 had further conversations with Dr Johnson on 6 September 2008 and 7 September 2008. She took Cat 1 to the hospital on Tuesday 16 September and was seen by Dr Emma Billing (then Harding) who was doing a locum practice at the hospital. Complainant 1 told Dr Billing that Cat 1 was not eating or drinking. Dr Billing admitted the cat to hospital. The following day Complainant 1 rang the hospital and the nurse told her that they were monitoring the cat, but that she was OK.

19 We deal firstly with Ground 4, of Application 1 which is the only ground which Dr Johnson ultimately contested, and then with grounds 1, 5, 2 and 3.

Ground 4 – conduct likely to cause unnecessary suffering and/or inappropriate death

20 Evidence for Ground 4. On Friday morning 19 September 2008 at about 10 am, Complainant 1 visited the hospital. She was expecting to collect her cat that day. Dr Johnson saw Complainant 1 that morning and told her that the cat had an enlarged kidney. She asked Dr Johnson how the insulin was going and he said, "The levels are starting to come in line." The next time Complainant 1 heard from Dr Johnson was when he left a message on her phone at about 10.30am the next day, 20 September 2008. He said, “Just an update on [Cat 1], just a few little things. I’ll ring you tomorrow.”

21 Cat 1 died on the Friday evening 19 September at approximately 6:30 p.m. in the presence of Ms Messner, Ms King and Ms Winkler. Dr Johnson was not with the cat when she died and she was not euphonised. Dr Johnson admitted those facts for the first time at the hearing. Dr Johnson denied that he failed to attend to Cat 1 during the afternoon despite being told that she was in distress. In addition, he denied that he left the hospital without adequately reviewing or assessing Cat 1 and/or administering necessary treatment to her.

22 According to Ms Messner, after the consultations had finished, Dr Johnson “ran out the door” and had driven to the bottom of the hill when Cat 1 died. The cat was in the cage at the time and two other nurses, Simone Winkler and Wendy King were there as well. Ms Messner rang Dr Johnson and told him that the cat had died. He then told her to put the cat in a special bag and place her body in the freezer. Ms Messner says she put a label on Cat 1 recording her name and the date of death and put her in the freezer. Wendy King was able to confirm Ms Messner's end of the phone call with Dr Johnson. Ms King also said she and Ms Messner were monitoring Cat 1 and she saw the cat die. She said the cat was “sick, very flat” and that she did not see Dr Johnson attend to the cat on that day.

23 Lee Bottomley was another veterinary nurse working at the hospital on Friday 19 September 2008. She said that she and Ms Messner had made it known to Dr Johnson that they were really concerned about Cat 1’s health as she seemed to be deteriorating. She observed that Cat 1 seemed to be unresponsive and struggling to breathe. She said, “There was obviously a severe problem.” Ms Bottomley confirmed in evidence to the Tribunal that she told Dr Johnson that the cat "needed attention, needed help somehow" probably on two occasions. She said when she went to speak to Dr Johnson he was doing paper work. He told Ms Bottomley that he knew there was an issue and that he was getting on to it. Ms Bottomley was not there when Cat 1 died because she left about 4pm on that day.

24 Ms Sharon Messner (nee Edwards) said that Cat 1 progressively declined during the afternoon of 19 September, especially during the consultation period which started about 4pm. Ms Messner said she observed Cat 1 stiffening in all her limbs and crying and howling, as if she was in severe pain. She described the seizures as “sort of convulsing like straightening out all her limbs and stiffening and throwing her head out and just howling basically.” Ms Messner said that on two or three occasions, she went in to see Dr Johnson during the afternoon to say that Cat 1 needed attention immediately “as she was definitely going downhill.” She said that that occurred after 4 pm when Dr Johnson returned to his office between consultations. Dr Johnson’s response was that he would see her after the consultations. She spoke to Dr Johnson again between half an hour and an hour later asking that he come and look at Cat 1. She was sure she said, “She is seizuring in there.” She said that Cat 1’s health was definitely failing “and the writing was on the wall but I wanted him to come to check her so either he could call the owner and tell her and make a decision or do something for the pain she was in because when a cat howls the way that she did you know there is something wrong with them.” Ms Messner said she just held Cat 1 and tried to make her feel as comfortable as she could. Ms Messner says that after 4 pm she was in the kennel area with Cat 1.

25 Dr Johnson gave evidence at the hearing that he attended to Cat 1 “that day” but does not remember when. He said it was a very busy day and that the day was “a blur”. He said twenty-two surgical hospital cases were scheduled and another 30 animals were booked in for consultations. In cross-examination Dr Johnson agreed that none of the procedures that were scheduled for that day were as urgent as attending to a cat who was having a seizure.

26 Dr Johnson says he remembers Lee Bottomley and perhaps Wendy King asking him to look at Cat 1 but does not recall Ms Messner asking him to do so. He said he checked the cat and she was deteriorating rapidly. He said he treated her “as best he could” without causing further distress. He said, “She had fluids and a mild sedative.” Dr Johnson also said that he is “incredibly careful with medication.” He went on to say that he “would have used” some Rompon which is a mild sedative, to control the seizures, but does not recall whether he made a record.

27 Dr Johnson agrees that he left the surgery at about 6.15 pm and maintained for the first time at the hearing, that he did so because of a “family emergency.” He said he had not mentioned the family emergency previously because no-one had ever asked him the reason that he left the hospital and it was nobody else’s business. He said he went to his wife’s home in Coffs Harbour for half an hour. Dr Johnson also said in cross-examination that Cat 1 was “peaceful and sedated” when he left the hospital. He said that after Sharon Messner rang him he went back to the hospital at about 7 pm and checked on all the animals. By that time Cat 1 had died and had been placed in the freezer.

28 Dr Billing, a locum working for Dr Johnson said that when she came back to work on Monday 22 September, Ms Messner told her that Cat 1 had remained in the cage anorexic and that she had tried to get Dr Johnson’s attention but he did not attend to her. When shown the hospital’s diary for 2008, Ms Billing later retracted her evidence that she had been at the hospital on Monday 22 September. She recalled that she had attended some time that week but does not remember the precise day. The diary shows that she attended on the Friday of that week.

. We accept that Friday 19 September was a busy day for Dr Johnson and that looking back on it now, it all seems like a “blur” to him. However, we accept the evidence of Ms Messner, Ms King and Ms Bottomley that Cat 1 was seizuring and in distress on the afternoon of Friday 19 September 2008 and that despite at least two requests, Dr Johnson did not attend to her. He failed to adequately review or assess her or administer necessary treatment to her including treatment to alleviate her pain or suffering. He left the hospital without making any arrangements for her care in his absence. In making those findings, we do not need to rely on Dr Billing’s hearsay evidence. It is inconsequential that Dr Billing was mistaken about the date that she had a conversation with Ms Messner. The reasons we have accepted the nurses’ evidence and rejected the evidence of Dr Johnson are:

a) all three nurses gave consistent and very similar versions of events and none has any motivation not to tell the truth;

b) the inconsistency between two of the nurses’ descriptions of how Cat 1 looked (“seizuring” compared with “very flat”) are explainable by the fact that Cat 1 was being observed over several hours;

c) despite originally claiming that Cat 1 died two days’ later, Dr Johnson now agrees with most of the assertions made by the nurses except that he did not attend to Cat 1;

d) whether or not he attended to Cat 1 cannot be verified by documentary evidence because the cage card for Cat 1 is missing;

e) Dr Johnson would not initially have felt the need to lie to Complainant 1 about when and in what circumstances Cat 1 died if he had done if he had attended appropriately to Cat 1;

f) Dr Johnson’s evidence about what he did when he attended Cat 1 was vague and unconvincing. For example, he said in cross-examination, “I would have used some Rompon.” If Dr Johnson administered Rompon to Cat 1 it is more likely that he would have said, “I gave Cat 1 Rompon” or “I remember giving Cat 1 Rompon.”

30 Professional misconduct?

Dr Johnson agreed that if he did engage in the conduct set out in Ground 4 he would deserve criticism. Dr Prowse’s expert opinion was that this conduct would invite a high level of criticism from peers and find that it constitutes professional misconduct. We are satisfied that the conduct identified in Ground 4 is in breach of clauses 2, 3 and 8 of the Code. By not attending to Cat 1 when she was in distress, Dr Johnson did not consider the welfare of Cat 1: Code, Cl 2. Dr Johnson refused to relieve Cat 1’s pain and suffering while she was in his presence: Code, Cl 3. He also accepted Cat 1 for diagnosis and treatment but did not ensure that he was available for the ongoing care of the animal or, if he was not available, make arrangements for another veterinary practitioner to take over the care of the animal: Code, Cl 8. Breaches of those clauses constitute professional misconduct: Regulation, Cl 11.

Application 1, Ground 1 and 5

31 Evidence for Grounds 1 and 5. Dr Johnson agreed at the hearing that he failed to inform Complainant 1 of Cat 1’s death until 23 September, 4 days after she had died. On Saturday 20 September 2008, Complainant 1 received a message on her answering machine from Dr Johnson. He said, “It’s Terry Johnson here. Just an update on Cat 1. Just a few little things I’ll ring you tomorrow.” After hearing that message Complainant 1 believed that everything was fine with Cat 1 and that Dr Johnson was merely trying to adjust her insulin levels. Complainant 1 says that Dr Johnson did not telephone her on Sunday 21 or Monday 22 September. She was at home on those days and remembers checking the messages to see if Dr Johnson had phoned her about her cat as she was hoping for news. Dr Johnson admits that he did not speak to her on either of those two days.

32 Complainant 1 says that at 8.30am on Tuesday 23 September 2008 Dr Johnson telephoned her and said, “I’m giving you a call about [Cat 1]. I put her to sleep on Sunday night at about 12.23am. Her kidney had ruptured and she was suffering. Her breathing was very shallow and I felt that I had to put her to sleep.” Dr Johnson now concedes that that was untrue. Dr Johnson went on to say, “I’m sorry I didn’t tell you sooner but I wanted to come myself and tell you myself. On Monday I got too busy and couldn’t come.” Dr Johnson said that he wanted to tell Complainant 1 personally that Cat 1 had died because that had always been his policy, but she had visitors on the weekend.

33 Complainant 1 called back a short time later and asked Wendy King what she had done with Cat 1’s body. Ms King said, “Cat 1 is here. Do you want us to take care of her or do you want to pick her up?” Complainant 1 said, “I want to pick her up.” Complainant 1 rang the hospital again later that day and asked if Ms King would mind dropping Cat 1 at her place. At about 5 or 6 pm on Tuesday 23 September Complainant 1 spoke to Dr Johnson saying, “Ms King hasn’t arrived yet, is she running late?” Dr Johnson said, “We’ve lost Cat 1’s body. We don’t know where it went.” Complainant 1 described her reaction as “devastated”. She went to the hospital herself and spoke to one of the nurses demanding to get Cat 1 back. Dr Johnson said to her, “We don’t know where Cat 1 is. We don’t know what happened to her. We don’t know if we sent her to be cremated or to the Council but I will find out.”

34 Complainant 1 spoke to Dr Johnson by phone two days later on 25 September. He told her that he would take Friday off to search for the cat. On 28 September Dr Johnson visited Complainant 1 and told her he couldn’t find the cat. He wrote to her on the same day saying that there was “nothing suspicious.” He apologised and took full responsibility for the “mistake”. In evidence, Dr Johnson said he takes full responsibility for inadvertently sending Cat 1 to the tip.

35 Findings on Grounds 1 and 5. Dr Johnson lied to Complainant 1 in his phone call on 23 September about the date and circumstances of her cat’s death. The truth was that Cat 1 had died on Friday 19 September, Dr Johnson was not present when she died and she was not euphonised by him as he claimed. Dr Johnson failed to tell Complainant 1 that her cat had died until 4 days after her death.

36 Professional misconduct? Dr Johnson’s deception of Complainant 1 about the timing and circumstances of her cat’s death forms the basis of Ground 1. Clause 6 of the Code provides that a veterinary practitioner "must not mislead, deceive or behave in such a way as to have an adverse effect on the standing of any veterinary practitioner or the veterinary profession". We are satisfied that Dr Johnson’s deception, if known, would have an adverse effect on his standing. As noted, breaches of clause 6 have been declared to be professional misconduct. Consequently the conduct in Ground 1 amounts to professional misconduct.

37 By failing to inform Complainant 1 of the death of Cat 1 until 4 days after she had died, Dr Johnson failed to exercise adequate judgment: s 35(k). Dr Johnson’s explanation was that he was preoccupied with “some family things” and “had to create a story in my stress that alleviated Complainant 1’s anxiety.” He said he was extremely remorseful for “creating an impossible situation” but the circumstances in his life at that time left him in an untenable situation. He said that because of the delay in informing Complainant 1 he had to “create some plausible scenario.” Dr Johnson’s suggestion that he was trying to spare Complainant 1 by telling her lies about what happened to her cat does not ring true and cannot possibly explain why he said the cat had been alive when it was in fact deceased. It also cannot possibly explain the fact that he maintained the untrue version of events after receiving a complaint which made clear the distress he had caused her. The four-day delay was unacceptable and much longer than the usual practice of notifying owners as soon as possible. Ground 5 amounts, in our view, to unsatisfactory professional conduct. It would invite a low to moderate level of criticism from peers.

Application 1, Grounds 2 and 3

38 Evidence and findings for Grounds 2 and 3. Ground 2 relates to creating false or misleading records about Cat 1 and Ground 3 relates to producing fabricated records to the Board when it was investigating Complainant 1's complaint. On 18 January 2009 Dr Johnson wrote a letter to the Board responding to Complainant 1’s complaint. He admitted that she had two legitimate grievances, which were, first, that there was a delay in informing her of the loss of Cat 1 and secondly that Cat 1 was taken to the waste disposal with other animals by mistake on 22 September. Dr Johnson enclosed with that letter what he described as “the relevant hospital records” in relation to Cat 1. The Board received them on about 28 January 2009. Hospital notes are recorded for 17, 18, 19, 20 and 22 September. The notes for 20 September indicate, “repeat fluids and will collect urine sample later not interested in food again this am”. There is a record purporting to be a blood glucose reading of [Cat 1]. There are further notes on 22 September (which was a Monday) “still not eating seems a little brighter” and then a reading for temperature and blood glucose and a record “gave 2 units caninsulin.” There was also a reading of blood glucose at 12 noon. “12 noon BG 13 will speak to Lorraine tomorrow. Late pm massive seizure suspect renal failure could not control, euth with lethabarb”. These entries were typed by JN (Jessica Nicholson). The creation of and forwarding of those records to the Board was a premeditated attempt by Dr Johnson to deceive the Board.

39 At the hearing, Dr Johnson admitted that he fabricated records that purported to establish that Cat 1 received treatment, including the administration of lethabarb, at least two days after she had died. Dr Emma Harding, a locum who had been working at the hospital, made a statement to the Board on 18 December 2008 in which she produced the computerised records of Cat 1. The primary records of the hospital are hand written notes of the admission, diagnosis and treatment of all animals. The hard copies of these records are known as “cage cards”. Dr Johnson said he either dictated information which would be entered on the computer by one of the nurses or dictated the information from his handwritten notes on the cage card. The tapes were given to an employee who would type out the dictated notes into the computerised system.

40 Dr Billing finished her locum period on 25 November 2008. On the day before she finished she printed out copies of the computerised notes in respect of various animals which she had treated and which had passed away in circumstances which caused her concern. Dr Billing also looked for the hard copy of the cage card for Cat 1 but could not find it in the manila folder where it was supposed to be kept. She confirmed that the computer entry on 15 September 2008 was her own and had been typed by SE (Sharyn Edwards). Cage cards for that week and the week after are also missing from the documents produced to the Tribunal by Clout & Associates, Dr Johnson’s trustee in bankruptcy. They are the only two weeks for 2008 that are missing. Dr Johnson denies that he has the relevant cage cards and says that he believes that Dr Billing may have taken the cage card for Cat 1. He also contends that the Board’s solicitors did not look in all the boxes now under the control of Clout and Associates.

41 Professional misconduct? Dr Johnson’s response to these grounds was that fabricating the records and providing them to the Board was an isolated event and there was no evidence that he had ever fabricated records on any other occasion. Dr Prowse regards this conduct as highly unethical and improper conduct that would invite a high level of criticism. Clause 6 of the Code provides a veterinary practitioner "must not mislead, deceive or behave in such a way as to have an adverse effect on the standing of any veterinary practitioner or the veterinary profession". As noted, breaches of clause 6 have been declared to be professional misconduct. We are satisfied that, even if this was the first and only time Dr Johnson fabricated records in an attempt to mislead the Board, it would amount to professional misconduct. The conduct is also in breach of s 35(l) because it is improper and unethical.

Application 2, Ground 9

This ground asserts that Dr Johnson’s knowledge and skill as a veterinarian was inadequate because he administered Dexason to Cat 1 on various dates. Dr Johnson admits that Cat 1 was diabetic and that he administered Dexason but denies that Dexason is contra-indicated in a diabetic cat. The particular which is denied is highlighted in italics.

Ground 9

Dr Johnson breached clause 5 of the Code or was guilty of conduct that demonstrated inadequate knowledge or skill in the practice of veterinary science within the meaning of s 35(k) in that on or about 1 September 2008, 10 September 2008 and 19 September 2008, he administered dexamethasone or caused dexamethasone to be administered to a diabetic cat, Cat 1.

(a) Dr Johnson's clinical records dated 1 September 2008 indicate he prescribed and/or administered or caused to be administered 1 ml of dexamethasone to Cat 1.

(b) Dr Johnson's clinical records dated 10 September 2008 indicate that he prescribed and/or administered or caused to be administered 1 ml of dexamethasone to Cat 1.

(c) Dr Johnson's clinical records dated 19 September 2008 indicate that he prescribed and/or administered or caused to be administered 1 ml of dexamethasone to Cat 1.

(d) Cat 1 was known by Dr Johnson to have diabetes.

(e) Dexamethasone is contraindicated in a diabetic cat.

43 Evidence and findings for Application 2, Ground 9

. Dr Johnson administered 1 ml of Dexason (dexamethasone) to Cat 1 on 1 September 2008, 10 September 2008 and again on 19 September 2008. At the time of administration, Dr Johnson knew that Cat 1 was diabetic. According to Dr Prowse, dexamethasone is contraindicated in diabetes because it increases blood sugar levels and suppresses insulin production. Dr Prowse was of the opinion that there was nothing in the clinical records of Cat 1 to justify the use of dexamethasone and was highly critical of its use. Dr Johnson stated that he used the dexamethasone as an appetite stimulant.

44 Professional misconduct? Dr Prowse said no vet he knew would give dexamethasone in these circumstances. Dr Johnson said he was happy with the reason he gave for administering it and remained happy with that reason. At the hearing he asserted his “right” to give it if he wished, regardless of the views of other vets. He said he could not produce any research which supported his view but, at best, it is a matter about which he should receive a ‘mild’ discipline. He said in his written submissions that he had learned from the episode but was working in an atmosphere of limited funds which only allowed “slow sequential diagnosis.”

45 We accept Dr Prowse’s evidence which was supported by documentary evidence to the same effect. The conduct demonstrated a lack of adequate knowledge in the practice of veterinary science and is at least unsatisfactory professional conduct in accordance with s 35(k). It is also in breach of clause 4 of the Code, which states that a veterinary practitioner must maintain knowledge to the current standards of the practice of veterinary science. In our view the administration of Dexason to Cat 1 demonstrates that Dr Johnson did not have that level of knowledge. Breach of clause 4 of the Code has been declared to be professional misconduct: Regulation, Cl 11. In addition, Dr Prowse was of the view that the conduct would invite a high level of criticism from the profession. We are satisfied that it constitutes professional misconduct.

Application 1, Ground 6

Grounds 6 and 7 of Application 1 relate to Complainant 2 and the circumstances of the disposal of the corpse of her cat, Cat 2. Dr Johnson admitted some of the particulars in Grounds 6 and denied others. He denied particulars (c), (d), (e), (f), (h), (i), (k) and (m). The particulars which Dr Johnson denied are highlighted in italics.

Ground 6

Dr Johnson breached clause 6 of the Code or was guilty of other improper or unethical conduct in the practice of veterinary science within the meaning of s 35(1) of the Act in that he has been dishonest in his dealings with Complainant 2, the owner of a cat who had been his patient, about the circumstances of the disposal of the corpse of her cat and inappropriately threatened Complainant 2 after she complained to the Board.

Particulars

(a) On or about 29 or 30 January 2009 Dr Johnson diagnosed a malignant tumour in Cat 2 belonging to Complainant 2.

(b) On the same day Dr Johnson rang Complainant 2 and informed her of the diagnosis recommending euthanasia.

(c) Complainant 2 agreed to the recommendation. She then asked Dr Johnson when she could retrieve her cat's body. Dr Johnson informed her that they would keep the cat’s body at the practice for one or even two weeks.

(d) Between 30 January 2009 and 4 February 2009, the body of Cat 2 was taken to the tip by mistake at Dr Johnson's direction and/or with his approval .

(e) On or about Wednesday 4 February 2009, six days after Cat 2 had been euthanased, Complainant 2 spoke to Dr Johnson by telephone.

(f) Dr Johnson dishonestly informed Complainant 2 that her cat’s body had been mistakenly taken to the crematorium. Further, he dishonestly assured her that ashes would be returned the following Wednesday.

(g) No ashes were returned, or were available to be returned, the following Wednesday 11 February 2009.

(h) Between 11 February 2009 and 10 March 2009 Dr Johnson dishonestly informed Complainant 2 or dishonestly caused her to be informed by his staff that there was a delay due to problems at the crematorium, including that they had had a breakdown.

(i ) On or about 10 March 2009, Dr Johnson spoke to Complainant 2 on the telephone and dishonestly informed her that her cat's ashes were back from the crematorium.

(j) The body of Cat 2 was never at the crematorium.

(k ) On or about Friday 13 March 2009 at Dr Johnson’s direction and/or with his knowledge and/or permission Danielle Lahure visited Complainant 2 at her home and gave her a container falsely representing that it held the ashes of Cat 2.

(l) On or about 17 March 2009, Dr Johnson wrote a letter to Complainant 2 in which he attempted to blame her for the error that had been made at his surgery .

(m) Between 17 March 2009 and 5 June 2009 Dr Johnson dishonestly informed Complainant 2 that her cat had been privately cremated by a council employee. He further dishonestly informed her that Cat 2 had been picked up by a private delivery company.
(n) On 30 March 2009, Complainant 2 made a complaint about Dr Johnson to the Board. After that complaint was made, Ms Lahure visited Complainant 2 and threatened her at the direction of Dr Johnson that if she did not withdraw the complaint to the Board, Dr Johnson would take her to court.

47 Evidence for Application 1, Ground 6, particulars (a) to (j). On 29 January, Cat 2 was admitted to the hospital. On 30 or 31 January 2009, Dr Johnson informed Complainant 2 that her cat had an abdominal mass. Complainant 2 gave permission to Dr Johnson to euthanase the cat. According to Complainant 2, when she asked Dr Johnson when she could pick up the corpse, Dr Johnson said, “I can keep her for at least a week, maybe two if you want, it’s alright.” Dr Johnson’s version of events is that Complainant 2 was moving to the United States and did not know whether she wanted to collect the body. He said that he told Complainant 2 that he would keep the cat for a week until she made up her mind. Complainant 2 rejected Dr Johnson’s suggestion in cross-examination that he offered to keep the cat for a week only "as a free service, as a courtesy".

48 Complainant 2 says that she telephoned the hospital on 4 February because she had decided to collect Cat 2. She was adamant that that phone call occurred less than a week after the cat had been euphonised. Her evidence as to dates is based on appointments recorded on a calendar at the time and other contemporaneous notes. She was told on that day that Dr Johnson was too busy to take her call. At 6.00pm Dr Johnson telephoned Complainant 2 to say that Cat 2 had been picked up by mistake by the crematorium and her ashes would be available the following Wednesday, which was 11 February. He reassured her that it would be ‘individual.’

49 Dr Johnson denied that he told Complainant 2 on 4 February, or any other day, that Cat 2 had been taken to the crematorium or that her ashes would be available the following Wednesday. In his evidence to the Board, Dr Johnson said that he told Complainant 2 that the cat’s body had been taken to the tip. He said that his evidence is supported by the fact that his invoice to Complainant 2 dated 29 January 2009 refers to “Council fee”. He said that is the fee council charges for disposal of the body in a common grave at the tip. Dr Johnson said that the cat was taken to the tip on 8 or 9 February, more than a week after she had died. Dr Johnson was adamant that Complainant 2 did not ring until more than a week after Cat 2 had died, by which time she had been taken to the tip. He said, “We would not have got rid of the cat in less than a week.” He denies that any mistake was made in taking Cat 2 to the tip. He says that that was a deliberate decision because Complainant 2 had not contacted him.

50 The ashes were not available the following Wednesday, 11 February, because the cat had not been taken to the crematorium. However, Complainant 2 alleges that Dr Johnson still did not tell her that the body had been taken to the tip. Instead, he said the delay in getting the ashes was due to a breakdown at the crematorium. Complainant 2 checked with two crematoriums and was told that her cat had not been cremated at either of them.

51 Findings on Application 1, Ground 6, particulars (a) to (j). We accept Complainant 2’s evidence where it differs from Dr Johnson’s. Complainant 2 gave a credible and consistent version of events which was supported by notes of dates of conversations she had with Dr Johnson. We do not accept Dr Johnson’s submission that Complainant 2 was “borderline senile”. There was no evidence whatsoever for that view. Dr Johnson's reliance on his invoice and the listing of a ‘council fee’ as indicating that Complainant 2 knew that her cat had been taken to the tip is not convincing. First, there is no statement on the invoice or in his subsequent letter to Complainant 2 that indicates that he told her that Cat 2 had been taken to the tip. Secondly, the invoice is dated 29 January 2009. On its face, that indicates that a decision to take the cat to the tip was not made one week after the cat died (as Dr Johnson claims), but on 29 January 2009 when the words ‘council fee’ were allegedly written.

52 Consequently, we find that Dr Johnson told Complainant 2 that he would keep the cat for at least a week, but instead of doing so, Dr Johnson directed that the cat be taken to the tip before a week had expired. On 4 February, after realising his mistake, Dr Johnson dishonestly informed Complainant 2 that the cat had been taken to the crematorium. Subsequently Dr Johnson informed Complainant 2 that there was a delay in returning the cat’s ashes because of problems at the crematorium.

53 Evidence for Application 1, Ground 6, particulars (k) to (n). On about 10 March 2009, Complainant 2 says that Dr Johnson again spoke to her saying, “I will come by tomorrow afternoon to bring Cat 2’s ashes”. Dr Johnson did not go to Complainant 2's house the next day. Instead, according to Ms Lahure who was Dr Johnson’s girlfriend at the time, Dr Johnson asked her to deliver a box to Complainant 2 and present it to her as containing the ashes of her cat. Ms Lahure says that he told her that there had been a breakdown at the crematorium and gave her a small box purportedly with the ashes inside. Dr Johnson denies that this occurred. At the hearing, the Board produced a small box containing ashes and showed it to Ms Lahure who was appearing by video-link. Ms Lahure was adamant that that was not the box that Dr Johnson had given her. We accept her evidence.

54 Complainant 2 says that Ms Lahure came to her house on about Friday 13 March 2009 to perform her regular cleaning job. After finishing, Ms Lahure presented Complainant 2 with a plastic bag containing a small cardboard box which was supposed to be Cat 2’s ashes. Complainant 2 opened the box and saw soot, but did not believe that these were Cat 2’s ashes. Complainant 2’s handwritten notes of this incident record that there was a note inside the plastic bag to the effect that the box got wet and had been dropped. In evidence was a handwritten note saying, “ . . . continuing on the unbelievable crappy run with this saga the box got wet and I dropped it. I don’t know if it can be fixed.” The letter was signed “T”. Dr Johnson admitted that he wrote this note but maintained that it had nothing to do with Complainant 2. He suggested that Ms Lahure may have kept a note that he had previously written referring to a box.

55 On 17 March 2009, Dr Johnson wrote to Complainant 2 attempting to explain why she had been treated fairly. Among other things, he said, “This tendency to talk and not listen meant that you did not get back to us in time when deciding what to do with her.” He still did not tell her the truth about what had happened to her cat. On 30 March 2009, Complainant 2 made a complaint to the Board about Dr Johnson’s conduct.

56 After the complaint was lodged, Dr Johnson left a second type written letter and a cheque refunding the fees she had paid for Ms Lahure to give to Complainant 2. In the letter, he says:

57 He told Ms Lahure there had been problems at the crematorium and asked her to take the cheque to Complainant 2 and see if she would withdraw the complaint. Ms Lahure did so. At Dr Johnson’s request, she attempted to give the cheque to Complainant 2. Complainant 2 says that Ms Lahure said to her, “He wants you to accept the cheque and apology and drop the charges, or he’ll have to take you to court.” Dr Johnson admits asking Ms Lahure to see if Complainant 2 would withdraw her complaint and says that he did so because she was in emotional distress and “borderline senile”. He believes he acted professionally in asking her to withdraw the complaint because he wanted her to realise that she was making an extremely serious accusation against him.

58 Ms Lahure gave evidence that the handwritten note was provided by Dr Johnson at a later time and after she was given the typewritten letter. That evidence is contrary to Complainant 2’s recollection. It is apparent from the content of the letter that the type written letter was prepared after Dr Johnson had become aware that Complainant 2 had made a complaint to the Board. Dr Johnson accused Complainant 2 and Ms Lahure of dishonesty and of colluding in their statements. Dr Johnson highlighted the conflict in evidence between Ms Lahure and Complainant 2 on this point and submitted that both cannot be regarded as credible witnesses. We do not accept that submission. The fact that Ms Lahure failed to recall the precise order of events does not undermine her credit. Indeed the fact that there is a material difference between the evidence of Ms Lahure and Complainant 2 suggests that there was no collusion on their part.

59 Findings on Application 1, Ground 6, particulars (k) to (n). Dr Johnson’s denial that he arranged for Ms Lahure to deliver a box with ashes in it to Complainant 2 is unconvincing. We are satisfied that the letter about having a “crappy run with this saga” and the box getting wet relates to Complainant 2. We accept the evidence from Complainant 2 that she saw the letter when Ms Lahure offered the ashes because it was inside the plastic bag. She remembers that the letter referred to the box getting wet. Despite Ms Lahure’s evidence that a cheque was given with the ashes, we prefer Complainant 2’s evidence that the giving of the ashes and the cheque were separate events. Dr Johnson typed the letter and gave it to Ms Lahure after Complainant 2 had complained to the Board. Ms Lahure and Complainant 2 have not colluded to make up a story to discredit Dr Johnson. Dr Johnson admits that he asked Ms Lahure to see if Complainant 2 would withdraw her complaint to the Board and if she refused, to say that he would take her to court.

60 Professional misconduct? Dr Johnson says in relation to the threat to take Complainant 2 to court that, “I was in a state of extreme bereavement and under many pressures at the time.” The most serious features of Ground 6 is the attempt to deceive Complainant 2 by repeatedly lying to her and organising for the delivery of sham ashes. Dr Prowse described the latter as highly unethical. The dishonesty extended over nearly 5 months. According to Dr Prowse, the conduct would attract a high level of criticism from his peers. Dr Johnson agrees that if the conduct occurred it would be seriously unethical. We are satisfied that Dr Johnson’s numerous attempts to deceive Complainant 1 amount to a breach of Cl 6 of the Code and constitute professional misconduct. Causing her to be threatened with court proceedings if she did not withdraw her complaint is unethical conduct in breach of s 35(l) and amounts to unsatisfactory professional conduct. Such a threat is sufficiently serious to amount to professional misconduct.

Application 1, Ground 7

61 Ground 7 relates to Dr Johnson’s system for identifying which bodies could be disposed of and when. The particular in italics is denied.

Ground 7

Dr Johnson's handling of the disposal of the corpse of Cat 2 demonstrates a lack of adequate care in the practice of veterinary science.

Particulars

Between 30 January 2009 and 4 February 2000 the body of Cat 2 was taken to the tip by mistake at Dr Johnson's direction and/or with his approval.

62 Evidence and findings on Application 1, Ground 7

. Dr Johnson denies that taking Cat 2 to the tip was a mistake, however we have found that the cat was taken to the tip contrary to Dr Johnson’s undertaking that he would keep the body for at least a week. While he ultimately took full responsibility for directing that Cat 2 be taken to the tip, the point is that he made that direction prematurely.

63 Professional misconduct? Dr Prowse says a system should be in place to prevent animals being disposed of without the consent of the client. According to Dr Prowse, the failure to have such a system in place and to exercise adequate care would attract a moderate level of criticism from Dr Johnson's peers. If the fact that it was the second mistake in a matter of months is taken into account, it would attract a high level of criticism. We have formed the view that taking Cat 2 to the tip by mistake would attract a relatively low level of criticism. While systems should be in place to prevent such a mistake, the error does not amount to professional misconduct because it would not justify suspension or cancellation of registration. Consequently, it constitutes unsatisfactory professional conduct in breach of s 35(l) because it demonstrates a lack of adequate care in the practice of veterinary science.

Application 2, Grounds 1 - 3

64 Particulars for Ground 1. Apart from Ground 9, which has been addressed, the second application relates to Dr Johnson’s pharmaceutical supplies and the representations he made to the Board about those supplies. The particulars which Dr Johnson denies are highlighted in italics. The Board withdrew grounds 4 to 8 of the second application which related to previous allegations of deceptive conduct. When Dr Johnson was represented, his lawyers submitted that the Tribunal did not have jurisdiction to consider those grounds. While the Board did not concede that point, it nevertheless withdrew those grounds. The allegations in Grounds 4 to 8 are relevant only in determining what orders the Tribunal should make.

Ground 1

Dr Johnson breached clause 6 of the Code or is guilty of unethical or improper conduct in the course of the practice of veterinary science within the meaning of section 35(1) of the Act in that he made, or caused to be made, deliberately misleading statements to the Board in communications with it about his dealings with pharmaceutical companies and/or his ability to obtain ongoing pharmaceutical supplies.

Particulars

(a) On or about 2 March 2009 Lyppard Australia Ltd suspended trade on Dr Johnson's account for trading "out of terms".

i he had been obtaining stock from Lyppard Queensland;

ii his most recent delivery from the supplier was 2 March 2009;

iii Lyppard Queensland can dispatch pharmaceuticals to Woolgoolga overnight; and

(c) That communication conveyed and was intended by Dr Johnson to convey the false or misleading impression that there had been no refusal by a pharmaceutical company to supply pharmaceuticals to Dr Johnson and/or the Hawke Drive Veterinary Hospital due to failure to pay outstanding bills.

Taken together, the representations contained in the 16 May 2009 letter would be reasonably understood, and were intended to be understood, as conveying the false or misleading impression that Dr Johnson was able to obtain further pharmaceutical supplies as needed when Dr Johnson was not so able, from about 2 March 2009.

65 Evidence for Application 2, Ground 1.

The background to this Ground relates to Dr Johnson's bankruptcy and failure to pay debts to three different pharmaceutical companies. From 4 April 2008, a pharmaceutical company, Provet VMS Pty Ltd ceased to supply pharmaceutical products to Dr Johnson because of a large debt he owed that company. From 17 October 2008, another pharmaceutical company, Cenvet Australia Pty Ltd ceased supplying products to Dr Johnson due to a bad debt history on his account. On 29 December 2008, the pharmaceutical company Lyppard Australia Ltd sent Dr Johnson what is referred to in their records as a “stop letter” stating that his account has been trading “outside our normal trading terms.” Dr Johnson was 60 days overdue in the sum of $20,921.61 and 90 days overdue in the sum of $4,613.41. It warned that if the overdue amount was not paid before 19 January 2009, his account would be placed on stop until full payment was received.

66 On 20 January 2009, the District Court of NSW entered judgment against Dr Johnson in the sum of $52,773. The judgment related to monies he owed to Provet VMS Pty Ltd for pharmaceutical supplies and equipment hire.

67 On 10 February 2009, Dr Johnson wrote to Lyppard Australia Ltd apologising for late payment and stating: “I believe all nearly up to date.” He said that he would repay the full amount by the end of February or the first week of March and asked them to release the current order. On 2 March 2009, Lyppard suspended trade on Dr Johnson's account for failing to pay monies he owed them for various pharmaceutical supplies. On 30 April 2009, Jenni McKernan, the manager of Lyppard Australia Ltd, confirmed to the Board that Lyppard Australia Ltd did not despatch any order to Dr Johnson after 2 March 2009. On 4 March 2009, a further Stop Letter was sent . On 16 March 2009, Dr Johnson sent a cheque for $7,000 but that did not clear the debt. The account was put back on stop on that day.

68 Sharyn Messner gave evidence to the Board on 14 April 2009 that Dr Johnson had not had a drug order from Lyppard for about 5 weeks. She outlined the resulting difficulties that caused in his practice. Staff members of the hospital were sent out to purchase drugs from other veterinary practices. This evidence is consistent with the documentary evidence from Lyppard and an email dated 30 April 2009 from Dr Rob Mills, a vet at Moonee Beach, concerning staff at Dr Johnson’s hospital attempting to purchase drugs from him over some months. Dr Johnson admitted that he sent nurses to other vets to get vaccines, but said that he always had adequate vaccines.

69 On 11 May 2009, the Board wrote to Dr Johnson. Among other things, that letter informed him that the Complaints Committee of the Board had received evidence from staff members and other sources that he had limited pharmaceutical supplies; that he had not received such supplies for 5 weeks; that he was unable to obtain pharmaceutical supplies because suppliers had ceased trading with him due to the amounts he owed them; and that he was unable to treat animals with necessary pharmaceuticals. The letter suggested that he was in breach of cl 2 of the Code which requires a vet to consider the welfare of animals at all times when practising veterinary science. The Board, exercising its power under s 45 of the Act, required Dr Johnson to provide certain information.

70 On 16 May 2009, Dr Johnson’s then solicitor, Mr Guthrie, wrote to the Board saying that he “had been asked to write to you by our client” in response to the 11 May letter. Mr Guthrie's response on Dr Johnson’s stated, in part:

Dr Johnson had been obtaining stock from Lyppard Queensland.

He has not been ordering much in the way of pharmaceuticals as he has been reducing is inventory to a lower level. His most recent delivery from the supplier was 2 ^nd March 2009. There has been no refusal of supply because of any inability to pay accounts. The account with Lyppard Queensland is in dispute at the moment in respect of discounts and promotions.

. . .

Lyppard Queensland can dispatch pharmaceuticals to Woolgoolga overnight.

71 Dr Johnson admitted that the representations made to the Board by Mr Guthrie were based on his instructions. When he gave those instructions, Dr Johnson was aware that his account with Lyppard had been put on stop on 20 January 2009 and again on 16 March 2009. Moreover, he knew he was bankrupt and that two other pharmaceutical companies had refused supply. Dr Johnson’s explanation for giving his solicitors instructions to write this letter was that the global financial crisis meant that he had to re-finance his practice. He said that because he could get deliveries overnight, he decided to reduce his supplies of pharmaceuticals as much as possible. He denies that anything conveyed in the 16 May letter was false or misleading.

72 According to the general manager of Provet, it last supplied Dr Johnson with pharmaceuticals on 4 April 2008. On 30 April 2009, a bankruptcy notice had been served upon him, identifying a debt of $52,773.60 owed to Provet VMS Pty Ltd. Cenvet had not traded with Dr Johnson since 17 October 2008. Like Lyppard, it had stopped supply because of his bad debt history. Dr Johnson could not get supplies from any of these companies. In evidence on 27 August 2010, he belatedly admitted that the statement that there had been no refusal of supply because of an inability to pay was at least partially untrue.

73 Findings for Application 2, Ground 1. Dr Johnson maintains that staff were sent out “very few times” to purchase medications from other practices. While that may be correct, we agree that the 16 May letter that Dr Johnson instructed his solicitors to write to the Board conveyed the impressions set out at (c) and (d) of Ground 1.

74 Professional misconduct? Dr Johnson submitted that he has supplied medications to other practices and it seems “a professional thing to do in a caring profession.” He said he had an oversupply of inventory and was able to practice with due care and treatment. He says he was in a delicate stage of trying to refinance the hospital and submits that the Board has overstepped the mark by “harassing” him about this issue. Those submissions do not affect the fact that Dr Johnson engaged in the conduct set out in Ground 1. We are satisfied that the conduct particularised in Ground 1 is in breach of clause 6 of the Code because it was intended to mislead or deceive the Board. It constitutes professional misconduct and invites a high level of criticism. Regulation of the profession by the Board is not possible if the honesty of practitioners cannot be relied on.

Dr Johnson admits each of these particulars except particular (d) which he says he does not know:

Ground 2

Dr Johnson failed to comply with a direction or requirement of the Board in contravention of section 35(g) of the Act and/or obstructed or hindered an inspector in the exercise of an inspector’s power in contravention of section 91(4)(b) of the Act.

Dr Johnson had no reasonable excuse within the meaning of section 35(g) or s 91 of the Act for his conduct.

Particulars

(a) at all relevant times Dr Johnson was the occupier of premises at 10 Hawke Drive Woolgoolga;

(b) at all such times Dr Johnson was the licensee and superintendent of the Hawke Drive Veterinary Hospital;

(c) at all such times the hospital was conducted from the premises;

(d) on 29 May 2009 Dr Johnson's solicitor was informed in writing that the Registrar of the Board, together with a Board member, would be attending the hospital later that day in order to inspect his pharmaceutical supplies;

(e) at about 11 a.m. on 29 May 2009 Mr Glenn Lynch, the Registrar of the Board, who was also an inspector appointed by the Board pursuant to section 90 of the Act together with Dr Andrew Hansen, a Board member, attended the hospital and entered the reception area;

(f) Mr Lynch showed Dr Johnson his identification, informed Dr Johnson that he was exercising power under section 91 at the Act to enter and inspect the premises, and further informed Dr Johnson that it was an offence to obstruct an officer;

(g) Dr Johnson refused Mr Lynch and Dr Hanson access beyond the reception area and/or refused to allow any inspection of pharmaceutical supplies.

76 On 21 May 2009, the Board wrote to Mr Guthrie setting out its findings in relation to veterinary pharmaceutical supplies available to Dr Johnson’s practice and its proposal to impose a condition on his registration effective from 30 May 2009. The foreshadowed condition was that Dr Johnson must have another full time veterinary practitioner working with him or, alternatively, must only practice in a group practice. On 28 May 2009, Dr Johnson’s solicitor faxed a letter to the Board. In that letter Mr Guthrie stated that the issue of the quantity (i.e. sufficiency) of Dr Johnson’s pharmaceutical supplies was capable of proof by way of an inspection. The Board replied to Mr Guthrie on the same day and advised him that the Board would attend the hospital the next day, 29 May, to inspect the pharmaceuticals at the hospital.

77 At 8.30 am on 29 May 2009, the Board’s solicitors faxed a further copy of that letter to Mr Guthrie advising that the Registrar and a member of the Board would attend the hospital at around 11am to undertake the inspection. Dr Johnson says that Mr Guthrie telephoned him to say that Board members were intending to inspect the pharmaceutical supplies that day. Dr Johnson says that he told Mr Guthrie that it was not a suitable time because he needed to attend a dental appointment at 11.30 am and a grief counselling appointment at 1.00 or 1.30. Mr Guthrie advised the Board’s solicitors that Dr Johnson was not available for an inspection that day as he had dental appointments and other commitments that he could not cancel.

78 At 10.38 am, Mr Lynch, the Registrar of the Board and an authorised inspector, and Dr Hansen, a veterinary practitioner and member of the Board, arrived at the hospital. Mr Lynch showed Dr Johnson an inspector’s authority card issued under the Act. Dr Hansen set out the ensuing conversation in contemporaneous notes of the conversation, which he confirmed in evidence before the Tribunal. It is also contained in Mr Lynch's affidavit sworn 30 October 2009.

79 Dr Johnson repeated his refusal to let the Board inspector even have a quick look at his vaccines or other pharmaceuticals.

80 Findings for Application 2, Ground 2. Dr Johnson admitted the particulars in this Ground. The Tribunal can be reasonably satisfied that Dr Johnson was fully aware of the visit before it occurred as he provided instructions to his solicitors that the time was inconvenient because he had other commitments. Dr Johnson says that Mr Lynch and Mr Hansen should not have come to the hospital that day because they had been told by his solicitor that it was not a suitable time. In addition, Dr Johnson says that it was obviously not critical that they inspect the pharmaceutical supplies because they did not contact him again to make another appointment. Even if that is accepted, it does not alter the fact that Dr Johnson refused entry to an authorised person. Dr Johnson knew Mr Lynch was an inspector. He nevertheless refused Mr Lynch access to his premises beyond the reception area and refused to allow any inspection of his pharmaceutical supplies. His position was plainly stated; he did not care that Mr Lynch had authority to enter or that it was an offence to obstruct an inspector. He maintained that position in his evidence to the Tribunal.

81 Professional misconduct? Contravention of s 91(4)(a) and (b) of the Act, that is obstructing, hindering or refusing to assist an inspector, is a criminal offence. This Tribunal has no power to find that such an offence has been committed and we decline to do so. Nor are we satisfied that the conduct is in breach of s 35(g). That provision relates to directions or requirements of the Board, Tribunal or the Supreme Court, not of an inspector. Even though the Board may appoint a member of its staff as an inspector, an inspector is a separate entity from the Board: s 90. Despite the fact that Dr Johnson admitted these particulars, we are not satisfied that the conduct constitutes either unsatisfactory professional conduct or professional misconduct.

Application 2, Ground 3

3. Dr Johnson ultimately admitted each of the particulars in this ground.

Ground 3

Dr Johnson breached a condition of his registration imposed by the Board on 3 June 2009 in contravention of clause 6 of the Code and/or s 35(d) of the Act.

Particulars

(a) At all relevant times Dr Johnson was the licensee and superintendent of the Hawke Drive Veterinary Hospital situated at 10 Hawke Drive Woolgoolga New South Wales.

(b) On 21 May 2009 the Board wrote to Dr Johnson foreshadowing its intention to impose a condition on his registration that Dr Johnson must work with another veterinary practitioner at all times or only practise in a group practice.

(c) On 28 May 2009, Mr Guthrie, Dr Johnson's solicitor, wrote to the Board on his behalf in response to that letter.

(d) On 2 June 2009, the Board decided to impose the following condition on his registration effective 3 June 2009: that Dr Johnson must have another full-time veterinary practitioner working with him or he must only practise in a group practice.

(e) On or about 2 June 2009 the Board wrote to Dr Johnson informing him of the conditions it had placed on his registration.
(f) After 3 June 2009 Dr Johnson continued to practise at the hospital although no other full-time veterinary practitioner was working at that practice.

83 By letter dated 2 June 2009, the Board imposed the condition referred to earlier, effective from 3 June 2009 pursuant to s 19(2) of the Act.

Dr Johnson admitted in his evidence to the Tribunal in interlocutory proceedings in November 2009 that:

(a) he received and read the fax from the Board dated 2 June 2009 which imposed a condition upon his registration;

(b) he was aware that effective from 3 June 2009 it was a condition of his registration that he could not continue to practice at his hospital unless another full time vet practiced with him. Yet, he continued to practise without satisfying that condition of his registration;

(c) he took no step to employ another veterinary practitioner until 2 September 2009; and
(d) he made a deliberate decision not to comply with the condition.

85 The Board wrote to Dr Johnson on 16 June 2009 and 24 August 2009 seeking confirmation of his compliance with the conditions. Dr Johnson did not respond until 2 September 2009, via his solicitors.

86 The Board's letter of 24 August 2009 specifically required Dr Johnson to notify the Board immediately of compliance and put him on notice that the definition of unsatisfactory professional conduct in the Act included any contravention of a condition of registration. He continued in breach of the condition of his registration after receipt of the letter when he can have been in no doubt as to his misconduct. Dr Johnson says that he did not understand the Board’s powers and had no respect for the Board members concerned. He regarded the conditions as further harassment. He said they were impossible to comply with and denied an income to himself and his six employees.

87 Professional misconduct? Conditions of registration are imposed for the protection of the public. They must be scrupulously observed, particularly when the condition has been imposed in a disciplinary context. A practitioner practising in breach of conditions is practising when he or she is not entitled to do so. Deliberate breach of a condition of registration is a serious matter: Dr Aladdin Matter & The Medical Practice Act of NSW (Medical Tribunal of NSW, unreported, 3 August 2000), Re Dr Than Le (Medical Tribunal of NSW, 20 September 2001) and Prakash v Health Care Complaints Commission [2006] NSWCA 153, esp at [74]. Deliberate breach of a condition of a professional's registration over a matter of months is plainly professional misconduct, being unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of registration. It invites a high level of criticism from the profession.

Conclusion

88 We have found Dr Johnson to be guilty of professional misconduct in relation to Grounds 1, 2, 3, 4 and 6 of Application 1 and Grounds 1, 3 and 9 of Application 2.

89 We have found him guilty of unsatisfactory professional conduct in relation to Grounds 5 and 7 of Application 1. The next step is to determine whether to make an order against Dr Johnson and, if so, what that order should be.

Range of orders available

. Section 51 (1) of the Act sets out the range of orders available if the Tribunal is satisfied that Dr Johnson is guilty of unsatisfactory professional conduct or professional misconduct.

(1) If an application is made under this Division for a disciplinary finding against a veterinary practitioner and the Tribunal determines that the veterinary practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following orders:

(a) an order reprimanding or cautioning the veterinary practitioner,

(b) an order suspending the veterinary practitioner’s registration for a period not exceeding 12 months,

(c) an order cancelling the veterinary practitioner’s registration,

(d) an order imposing a fine on the veterinary practitioner of an amount not exceeding $25,000,

(e) an order imposing conditions on the veterinary practitioner’s registration with respect to the practice of veterinary science,

(f) an order requiring the veterinary practitioner to complete specified educational courses,

(g) an order requiring the veterinary practitioner to report on his or her veterinary practice at specified times, in a specified manner and to specified persons,

(h) an order requiring the veterinary practitioner to seek and take advice, in relation to the management of his or her veterinary practice, from a specified person or persons,

(i) an order requiring the veterinary practitioner to pay specified costs relating to the hearing.

(2) If the Tribunal considers that the matter of the complaint against the veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint, the Tribunal must, despite section 88 of the Administrative Decisions Tribunal Act 1997, make an order against the veterinary practitioner under subsection (1) (i).

(3) If the Tribunal orders the cancellation of the veterinary practitioner’s registration, it may also order that the veterinary practitioner cannot apply for such registration within such period as may be specified by the Tribunal.
(4) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary practitioner by the Registrar, subject to any decision of the Supreme Court on appeal under Part 9A.

91 The Board sought an order that Dr Johnson's registration be cancelled in accordance with section 51(1)(c) of the Act and that Dr Johnson pay the Board’s costs of the proceedings. Dr Johnson submitted that he should be permitted to continue to practise and that he should not be liable for the Board’s costs.

Other matters relevant to orders

Apart from the findings of unsatisfactory professional conduct and professional misconduct, other conduct of Dr Johnson is relevant to the orders the Tribunal should make. Other conduct which bears on the question of what orders should be made include:

a) that Dr Johnson was dishonest to a Tribunal of fact, as long as he has been notified and given an opportunity to respond: Smith v New South Wales Bar Association (1992) 176 CLR 256; Bannister v Walton (1993) 30 NSWLR 699 at 729; McBride v Walton (unreported, NSWCA, 15 July 1994; BC 9402907 per Handley JA (at 23) and Powell JA (at 49); Barwick v Council of the Law Society of NSW (2004) Aust Torts Reports 81-730; [2004] NSWCA 32, esp. [104]-[109] .

b) that Dr Johnson failed to produce relevant documents to the Board and the Tribunal including the cage cards for Cat 1;

c) that Dr Johnson falsified records in relation to his use of methadone and pethidine; and

On 23 June 2009, the Board convened a hearing pursuant to s 44 of the Act to take evidence as part of its investigation of the complaints made against Dr Johnson. Dr Johnson affirmed prior to giving that evidence, that he would tell the truth. Despite that affirmation, he told the following lies to the Board:

a) that Cat 1 had not died on Friday 19 September;

b) that he was present when Cat 1 died late at night on 21 September;

c) that he euphonised Cat 1with an injection of lethabarb; and
d) he had repeatedly tried to contact Complainant 1 over the weekend of Saturday 20 and Sunday 21 September without success.

94 Dr Johnson persisted with these lies in relation to Complaint 1 in his Reply filed with the Tribunal. He conceded in cross-examination that the false statements included in his Reply were based on his instructions to his solicitors. He maintained he did not deliberately lie to the Tribunal because he was unaware that the reply was being prepared for the Tribunal. However, we are satisfied that he was aware that the lies he told to his solicitors would be part of his case in the Tribunal.

95 Non-production of documents. The original cage card for 16 September 2008 for Cat 1 was missing when Dr Billing looked for it in November 2008. When the Board pointed out to Dr Johnson that the computerized records he produced in January 2009 had no entry for Sunday 21 September he said that he did not have an explanation. He said, “I don’t know. I don’t know. It’ll be written on the cage card what was done.” Dr Johnson agreed that he knew when answering questions from the Board that the cage card would reveal the truth about what happened to Cat 1. In December 2008, the Board served a notice on Dr Johnson to produce contemporaneous records in relation to the treatment of Cat 1. He did not produce the original cage card in relation to that cat. Dr Johnson gave evidence before the Tribunal on 20 November 2009 about his failure to produce the cage card. He initially said he did not know why he had not produced it and then said he believed he had produced it to the Board. Neither the Board nor the Tribunal has ever received an original or copy of the cage card for the treatment of Cat 1. The cage cards for the week commencing 16 September 2008 and the following week commencing 23 September 2008 are the only weeks missing from that period. The Tribunal found that Dr Johnson had deliberately not complied with the Board’s requests to provide that and other documents. We are satisfied on the basis of the evidence of Ms Mittiga, a solicitor representing the Board, that they are not in the box of cage cards of the relevant period produced by Dr Johnson’s trustees in bankruptcy. We are also satisfied that Dr Johnson deliberately removed the cage cards for Cat 1 to cover up the fact that he had not attended to Cat 1 when asked to do so on Friday 21 September 2008.

96 Similarly, Dr Johnson refused to produce Cat 2’s records to the Board when required to do so. He insisted in evidence to the Tribunal that he was justified in doing so because he regarded the letter from the Board about the complaint as being "incredibly unfair and vexatious".

97 Dr Johnson also refused to supply to the Board the hospital’s staff records from 19 September to 22 September. He told the Board that he refused to disclose those records because they would be good evidence when witnesses were cross-examined. He said the time sheets had been checked against the history and would support his version of events, including showing he was the only one at the practice when Cat 1 died. Again, the Tribunal has found in earlier proceedings that he deliberately refused to provide the Board with those documents.

98 In his statement to the Tribunal dated 4 May 2010 Dr Johnson stated, “I now admit some untruths and give my reasons for them . . .”. He admitted that he took 4 days to disclose to Complainant 1 that Cat 1 had died. He also stated, “I acknowledge my deceit to the Board and to Complainant 1 but was under extreme strain at the time.” When asked at the hearing about his false evidence to the Board, he said he was under incredible duress and "being hammered by the Board", and that he “was being harassed by the Board.” He also maintained that the treatment of Cat 1 had not involved "any sort of malpractice."

99 Falsifying records about misuse of pethidine and methadone. In early 2004 the Pharmaceutical Services Board (PSB) commenced an investigation into Dr Johnson’s prescribing and supply of various Schedule 8 drugs. Dr Johnson admitted that he procured pethidine and methadone for his own use by making false drug register entries although he added that many of the entries were genuine with him using methadone as a “pre op” and pethidine for acute trauma cases. He also said that each drug register entry whether false or genuine, had a matching record on the respective animal’s treatment card. Dr Johnson completed the request for the withdrawal of his Schedule 8 Drug Authority. As a result, Dr Johnson’s Schedule 8 Authority was withdrawn. There is no dispute as to any of these matters.

100 Breach of conditions imposed by Board and Tribunal. Dr Johnson admitted to continuing to practise after he was suspended by the Board on 20 October 2009 and after the 10 December 2009 decision of the Tribunal. After being suspended he said he euthanased “a few old animals” using the drug, lethabarb and saw another animal, Coco Sly, for a check up and to dispense medications. He also said later in evidence that he checked up on "a couple of animals." He admitted he regarded the treatment of Coco Sly as practising as a vet. However, he also stated several times in evidence that he did not regard what he was doing as practising as a vet.

101 Dr Johnson attempted to avoid the consequences of practising while suspended by claiming he did not regard it as veterinary practice. Restricted acts of veterinary practice are those declared to be by the Regulation: s 7. Clause 4 of the Regulation declares certain acts to be restricted acts of veterinary science for the purposes of the Act. These relevantly include examination of or attendance on any animal for the purposes of diagnosing the physiological or pathological condition of the animal; the carrying out of any treatment, procedure or test which should not be undertaken without anaesthetising, sedating or tranquillising the animal; and administration of an anaesthetic agent. Lethabarb is a barbiturate used by vets for euthanasia. Dr Johnson had no right to use any barbiturate, unless authorised to do so by the Poisons and Therapeutic Goods Act 1966.

102 Dr Johnson's misconduct in continuing to practise is aggravated by his failure to be honest with the Tribunal about the fact that he did practice as a vet in defiance of the suspension, his reluctance to admit he knew he was practising veterinary science and the excuses he gave for doing so when he was fully aware of his suspension.

General principles in relation to orders

103 Introduction. The disciplinary jurisdiction is protective, both of the public and the profession. The purpose of an order is not to punish Dr Johnson. The protective nature of the jurisdiction means that the impact of any order on the practitioner, the subject of the disciplinary proceedings, is not a relevant consideration: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. Protection of the public includes specific deterrence and general deterrence directed to other veterinary practitioners who may be "tempted to ignore or breach their obligations by acting in their own interest to the detriment of the public and the profession": Veterinary Surgeries Investigating Committee v Thompson [2007] NSWADT 107, [65]; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Craig v Medical Board of South Australia [2001] SASC 169, [47] and Dr Graeme Reeves (Medical Tribunal of NSW, 23 July 2004), pp 28-9. The serious nature of the conduct alone may warrant cancellation of a practitioner's registration even where the public does not require protection and specific deterrence is unnecessary because of suspension or retirement. In Craig, where the doctor was suspended, the Court said the conduct was of such a kind that it “called for an emphatic indication of the Tribunal’s disapproval, and of the profession’s disapproval;” at [64]. Similarly, in Thompson, the Tribunal said, "it must be seen that if the veterinary surgeon is prepared to act with such serious impropriety than he or she will be removed from practice" at [66].

104 The extent to which a practitioner is remorseful, has rectified his or her errors and appreciates the nature and extent of his or her wrongdoing may be relevant, for example, to the likelihood that he or she will continue to behave in the same way in the future: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [67]; Health Care Complaints Commission v Pham [1999] NSWCA 39 at [23].

105 Most of the authorities concern other professionals. That the same principles apply equally to veterinary practitioners is well-established: Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191, [199]; Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27, [16]; Veterinary Surgeons Investigating Committee v Williamson (No.2) [2005] NSWADT 112 at [79]; Veterinary Surgeries Investigating Committee v Thompson [2007] NSWADT 107, [62]-[67].

Consideration of appropriate orders

106 Submissions. Dr Johnson submitted that he had a very busy veterinary practice which indicates that he must have some basic skills and is capable of making a contribution. He said he has served the community in northern NSW for 23 years and attended to more than 63,000 animals. He believes he has served the veterinary profession as well as anyone and regards himself as an average GP. Dr Johnson said that he should be allowed to resume his career. He promised to pursue that career with full ethical and professional considerations and said he had been adequately punished. He added that he is “deeply remorseful” for his actions and is having counselling for his personal troubles. He believes that the local population would support him resuming veterinary practice.

107 A character reference from a local pastor and long time neighbour of Dr Johnson attested to him being an “outstanding citizen and community member” and an “exceptional veterinarian”. Several clients also attested to his caring nature and his up to date knowledge. When Dr Johnson closed the hospital in around April 2010 several clients wrote to the local newspaper praising his dedication and veterinary skills.

108 The Board seeks cancellation of Dr Johnson’s registration for at least 4 years. In summary, the Board said that Dr Johnson did not exercise adequate care for Cat 1, has engaged in a long history of deceit, has falsified records on more than one occasion, is contemptuous of the supervising and regulatory authorities in relation to his practice and cannot be trusted to behave differently in the future. According to the Board, the following factors indicate that that is the only proper order:

a) as a veterinary surgeon, Dr Johnson is in a position of trust;

b) Dr Johnson has exhibited behaviour which discloses lack of care for an animal;

c) Dr Johnson acted dishonestly; and
d) Dr Johnson breached conditions imposed by the Board and the Tribunal.

109 Position of trust

. Like medical practitioners, veterinary practitioners are in a position of trust. They are entrusted with the right to prescribe and keep various medicines that are not generally available to the public. Owners of animals rely on them to tell the truth and for advice with respect to their animals' health and welfare. The reliance of the community upon the good faith of practitioners is heightened by the fact that their patients cannot complain themselves or give evidence as to what happened in the absence of their owners.

110 Lack of care and serious disregard for the welfare of animals. In determining the proper order to be made against a veterinary practitioner, the welfare of animals is the primary concern. Grounds 4, 5 and 7 of Application 1 and Ground 9 of Application 2 concern inadequate care in the practice of veterinary science. While Application 1 relates to the management of a single living animal, it is serious because Dr Johnson did not attempt to treat Cat 1 or alleviate her suffering when she was seizuring. He left the hospital without seeing her. Dr Johnson also failed to understand and apply basic pharmacology in relation to dexamethasone. It should not have been prescribed to a diabetic cat but Dr Johnson did so on three separate occasions. Dr Johnson said that he has been punished excessively when, in relation to the administration of Dexason, a simple phone call and discussion from the Board would have been enough to alert him to any dangers. That submission is disingenuous because Dr Johnson maintained, even at the hearing, that he had a right to administer Dexason even if other vets disagreed.

111 Dr Johnson continues to deny that he failed to treat Cat 1 when she was seizuring. We have found otherwise. The failure of Dr Johnson to assess or treat Cat 1 indicates that if Dr Johnson were allowed to remain in practice, there would be an ongoing risk of other animals suffering or dying because of his indifference to their welfare and/or lack of knowledge. Further, Cat 1's case demonstrates a specific danger that, if allowed to practice, Dr Johnson may not provide animals in his care with attention or care even if they are in a critical condition. His inadequate knowledge of at least one aspect of veterinary science increases that risk. No regulatory regime, including the imposition of conditions, can safely be relied on to ameliorate that risk.

112 Dishonesty. Dr Johnson has repeatedly acted in a dishonest manner. Grounds 1, 2, 3 and 6 of Application 1 and Ground 1 of Application 2 all relate to dishonesty. The dishonesty has been serious, repeated and frequently premeditated. In 2004, he fabricated entries in his drug register and in the corresponding clinical records of individual animals in order to cover up his conduct in diverting medications intended to relieve pain in animals. In 2008, he fabricated records and lied to the Board in relation to the death of Cat 1. He lied to Complainant 2 and colluded in having a substance delivered to her which purported to be the ashes of her cat.

113 There are numerous authorities to the effect that professionals are required to be honest in their dealings with others: McBride v Walton (NSWCA, 15 July 1994, unreported, BC9402907). The majority of the Court of Appeal held that, even if the practitioner was otherwise of good character and reputation, the dishonest reporting established that he was “not of good character” in respect of the practice of medicine. Honesty is a critical quality required in the character of a medical practitioner (McBride per Priestley JA at 86). That applies equally to veterinary practitioners as confirmed by the legislature in declaring breaches of clause 6 to be professional misconduct. Similarly, in Matter, the Medical Tribunal of NSW stated that the dishonesty inherent in some of Dr Matter's conduct constituted "very serious professional misconduct" and that behaviour was "grossly unethical" (at p 34). Dr Matter’s conduct in providing false information to the review Committee and endeavouring to continue to conceal what it described as "his misdoings" was said by the Medical Tribunal to represent an "egregious breach of the standards of conduct required of a member of an honourable profession" (at 33).

114 Dishonesty to the Board is of particular significance because it relies on the good faith and honesty of practitioners to determine what happened in the treatment at an animal. The present case provides a stark illustration of the difficulty of establishing what has happened in the absence of the owner. The false records Dr Johnson created in relation to Cat 1 would never have come to light but for the evidence of Dr Johnson’s employees and Dr Billing. The Board relies upon records being genuine and on the truthful evidence of those present. That dishonesty is significant in determining the proper order for three reasons:

(a) It underlines the importance of general deterrence. It is appropriate and necessary that the Tribunal take into account the need to send a message to practitioners who may be tempted to cover up their mistakes by deceiving the Board.

(b) It is part of the evidence establishing deceit as a pattern of conduct by Dr Johnson.
(c) Most importantly, Dr Johnson's dishonesty to the Board and his continuing contempt for its authority mean that continuing practice even with stringent conditions cannot be contemplated.

115 In the present case, the dishonesty to the Board was accompanied by serious allegations against former employees that were unfounded. Dr Johnson has persisted with some of those allegations at the hearing, without providing evidence in support of them. For example, Dr Johnson says that he assumes that Dr Billing removed Cat 1’s cage card. Dr Johnson' evidence to the Board was given several months after he initially misled Complainant 1 and concocted false records. His lies to her cannot be dismissed as out of character or isolated instances. He did not admit those lies until the third day of the Tribunal hearing, after all the veterinary nurses and Dr Billing had given evidence and after records had been tendered establishing the truth of their evidence and the falsity of his version of events.

116 Breach of condition and other failures to comply with regulation of the profession. Cases involving other professionals, including other health professionals, provide adequate guidance as to the proper approach. They are invariably to the effect that breach of a condition of registration is a very serious infraction. The matter of Dr Aladdin Matter & The Medical Practice Act of NSW (Medical Tribunal of NSW, unreported, 3 August 2000) has features in common with the present matter. Dr Matter breached conditions imposed by a professional standards committee and misled a review committee about his compliance. The Medical Tribunal took the opportunity to make it plain that a practitioner in Dr Matter's position had an obligation to take positive steps "to ensure that he was acting in accordance with the conditions of his registration" (at p 24). It was highly critical of his deliberate disregard for the conditions, describing it variously as being a serious breach of the standard of conduct required of a practitioner, adopting a cavalier attitude to restrictions under which he was to practice, "a most serious finding" and attracting "very severe criticism". It amounted to professional misconduct.

117 Those principles apply equally in the case of any professional man or woman. In the now notorious case of Dr Grahame Reeves, who came to the attention of the Medical Tribunal for breaching conditions imposed on his registration by a professional standards committee of the Medical Board, the Medical Tribunal made the following observations and findings which are apposite to the present case:

It is an idle claim that the practitioner is not a danger to the public.

Any doctor who is not prepared to obey and comply with restrictions placed on his practice, for sound and obvious reasons, must be regarded as a serious potential risk, if not an actual risk, if he seeks to treat without entitlement so to do.

118 Dr Johnson’s breach of the Board’s condition and his flouting of the Board’s suspension and the Tribunal’s previous orders are particularly serious. His behaviour in ignoring Board correspondence and continuing in breach of the condition after receiving the August letter is indicative of his contempt for the regulators.

119 Dr Johnson’s evidence in this hearing was that he had the right to disregard decisions of the Board that he did not like, or could ignore decisions of the Board if it was constituted by people he did not like. For example, when asked whether he accepted the Board's authority to make enquiries about his pharmaceutical supplies he responded that he did if it was “constituted by decent people.” That evidence, and evidence like it, is of great concern to the Tribunal. Furthermore, Dr Johnson also made it plain in his evidence that he did not accept the right of clients to make complaints if he considered that complaint was without foundation. Consequently one very strong reason that the imposition of conditions on Dr Johnson’s practice is inappropriate is because the Tribunal could not be satisfied that he would comply with them.

Insight and contrition

120 Dr Johnson submitted that he has a role to play in the veterinary profession and has “tremendous insight” into his shortcomings. His conduct of these proceedings demonstrates that, contrary to Dr Johnson’s assertion, he has little insight into his behaviour and is not genuinely contrite for it. He repeatedly blamed others and told the Tribunal many times of his contempt for various members of the Board. For example, Dr Johnson called Complainant 2 “stupid”, an “idiot” and “borderline senile”. Such comments are entirely inappropriate and unprofessional. He blamed the Board, at least in part, for the fact that he had lied to it when he gave evidence to it in 2009. He also refused to accept that it was highly unethical to deceive the Board about his ability to obtain pharmaceutical supplies from Lyppard saying that it was “my private business”, that negotiations (with Lyppards) were at a sensitive point and that he did not regard some members of the Board as being “of particularly high calibre.” In giving that evidence, Dr Johnson was not simply describing his attitude at the time. He considered the conditions imposed on his practice as “terribly unfair” and remained of that view. It was plain that he continued to believe the Board had no right to investigate the complaints against him. We are not satisfied that Dr Johnson has accepted responsibility for his past conduct.

The relevance of Dr Johnson's personal circumstances

121 The Tribunal is entitled to and must take into account relevant factors put forward by Dr Johnson that would explain or excuse his behaviour or indicate that the conduct was out of character. Dr Johnson tendered a letter from a psychiatrist, Dr Paul Cadzow who had treated him for an adjustment disorder with depressed for approximately 12 months July 2005, shortly after he was prohibited from possessing, supplying or prescribing drugs of addiction. Dr Cadzow concluded his report by saying that Dr Johnson “always spoke of his patients and their owners with respect and sensitivity.”

122 Dr Johnson also relied on his personal circumstances as explaining or excusing specific conduct. For example, he said that he left the hospital on the Friday 21 September because of a family emergency. The nature of the emergency was not disclosed. He felt under pressure after he had lied to Complainant 1 and the Board, but says he did not mistreat Cat 1. He admits not handling the circumstances surrounding the death of Cat 2 well and wishes he had never written the letter to Complainant 2 after she lodged a complaint. He said that it had been a difficult time for him because his son had died and he needed to work to give himself a focus. Within a year he had lost a son, a house and a business. He says he was in survival mode and is not proud of the way he treated his staff.

123 We acknowledge that Dr Johnson’s personal circumstances, to the extent that they were disclosed, would have been extremely stressful for him. We also appreciate that it is often very difficult to cope with high levels of stress. Nevertheless, stress does not excuse or adequately explain his conduct. While there is only one incident of Dr Johnson knowingly permitting an animal to suffer, his dishonesty was not an isolated event associated with a particular period of stress. The evidence satisfies us that he is habitually dishonest and disrespectful of those who are legally entitled to regulate members of his profession. In addition he lacks some of the basic knowledge expected of a veterinary surgeon. Despite the fact that Dr Johnson has obviously been professional and caring to numerous clients and their pets over the years, the conduct that we have found to constitute unsatisfactory professional conduct or professional misconduct in these proceedings is incompatible with him continuing veterinary practice.

124 The Tribunal may provide in its order that an application for a review of the order may not be made until after a specified time: s 51(3). In our view, given the number and nature of the adverse findings against Dr Johnson, he should not be permitted to re-apply for registration for at least four years.

Costs

125 The Tribunal has a discretion to order that Dr Johnson pay the Board’s costs: s 51(1)(i). However, in this case, the Tribunal must make such an order because of s 51(2) provides that:

If the Tribunal considers that the matter of the complaint against the veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint, the Tribunal must, despite section 88 of the Administrative Decisions Tribunal Act 1997, make an order against the veterinary practitioner under subsection (1) (i).

126 As the complaints have been proved or, if not proved, the conduct was sufficiently unacceptable to warrant the making of the complaint, we must make an order for costs against Dr Johnson.

1. Dr Johnson’s veterinary practitioner’s registration is cancelled.

2. Dr Johnson cannot re-apply for registration for at least four years from the date of this decision.

3. Dr Johnson is to pay the costs of the Veterinary Practitioner’s Board.
This order does not take effect until 21 days after notice of the order is given to the veterinary practitioner by the Registrar of the Board.

CITATION:	Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
DIVISION:	General Division
PARTIES:	APPLICANT Terrence Johnson RESPONDENT Veterinary Practitioners Board of New South Wales
FILE NUMBER:	093282 and 093178
HEARING DATES:	23, 24, 25, 26, 27 and 30 August 2010
SUBMISSIONS CLOSED:	14 September 2010
DATE OF DECISION:	30 December 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Carter T - Non-Judicial Member; Mayo-Ramsay R - Non-Judicial Member
CATCHWORDS:	Professional discipline – veterinarian – professional misconduct
LEGISLATION CITED:	Veterinary Practice Act 2008 Veterinary Practice Regulation 2006 Evidence Act 1995
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Bannister v Walton (1993) 30 NSWLR 699 Dr Aladdin Matter & The Medical Practice Act of NSW (Medical Tribunal of NSW, unreported, 3 August 2000) Re Dr Than Le (Medical Tribunal of NSW, 20 September 2001)Prakash v Health Care Complaints Commission [2006] NSWCA 153 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Health Care Complaints Commission v Pham [1999] NSWCA 39 Smith v New South Wales Bar Association (1992) 176 CLR 256 McBride v Walton, unreported, NSWCA, 15 July 1994; BC 9402907 Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Veterinary Surgeries Investigating Committee v Thompson [2007] NSWADT 107 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Craig v Medical Board of South Australia [2001] SASC 169 Dr Graeme Reeves (Medical Tribunal of NSW, 23 July 2004)Veterinary Surgeons Investigating Committee v Howe [2002] NSWADT 191 Gelderman v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 27 Veterinary Surgeons Investigating Committee v Williamson (No.2) [2005] NSWADT 112
REPRESENTATION:	APPLICANT In person RESPONDENT S. Strickland, senior counsel K. Sant, counsel
ORDERS:	1Dr Johnson’s veterinary practitioner’s registration is cancelled 2 Dr Johnson cannot re-apply for registration for at least four years from the date of this decision 3 Dr Johnson is to pay the costs of the Veterinary Practitioner’s Board. This order does not take effect until 21 days after notice of the order is given to the veterinary practitioner by the Registrar of the Board.