Veterinary Surgeons Board of Queensland v Griffin
[2016] QCAT 380
•26 October 2016
| CITATION: | Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380 |
| PARTIES: | Veterinary Surgeons Board of Queensland (Applicant) |
| v | |
| Victor Leslie Griffin (Respondent/Registrant) |
| APPLICATION NUMBER: | OCR272-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATES: | 23, 24 and 25 November 2015; 21, 22 and 23 March 2016; 9 May 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne (Presiding) Dr Grigg, Member Dr King, Member |
| DELIVERED ON: | 26 October 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. In relation to each of the allegations 4.6, 4.8, 4.9, 4.14, 5.6, 6.1, 6.2, 6.4, 6.8, 6.3, 6.5, 6.10, 6.12, 6.14, 6.15, 6.19, 6.6, 6.7, 4.2, 6.13 and 4.12 in the Referral, the Tribunal finds that a ground for disciplinary action has been established against Victor Leslie Griffin in that he has behaved in a way that constitutes misconduct in a professional respect pursuant to s 22F of the Veterinary Surgeons Act 1936 (Qld) (‘the Act’). THE TRIBUNAL DIRECTS THAT: 2. The Veterinary Surgeons Board must file three (3) copies in the Tribunal and give to Victor Leslie Griffin one (1) copy of any written submissions as to appropriate orders to be made by the Tribunal pursuant to s 22E of the Act, by: 4:00pm on 16 November 2016 3. Victor Leslie Griffin must file three (3) copies in the Tribunal and give to the Veterinary Surgeons Board one (1) copy of any written submissions in response, by: 4:00pm on 7 December 2016 |
| 4. The proceeding OCR272-13 is listed for a half-day oral hearing on a date to be advised by the Tribunal. 5. The Veterinary Surgeons Board and Victor Leslie Griffin must file in the Tribunal an agreed list of dates of availability for the further half-day oral hearing by: 4:00pm on 7 December 2016 |
| CATCHWORDS: | PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – referral of allegations – where registrant supplied, dispensed and/or administered drugs – where registrant treated horses – where registrant failed to keep adequate records – whether allegations substantiated – whether registrant behaved in a way that constitutes ‘misconduct in a professional respect’ Health Regulation 1996 (Qld), s 153 Briginshaw v Briginshaw (1938) 60 CLR 336, cited Legal Services Commissioner v Madden(No 2) [2009] 1 Qd R 149, cited |
REPRESENTATIVES:
| APPLICANT: | Veterinary Surgeons Board of Queensland represented by Mr C Wilson of Counsel instructed by Lander & Rogers Lawyers |
| RESPONDENT: | Victor Leslie Griffin represented on 23, 24 and 25 November 2015 by Mr M Labone of Counsel instructed by WP McMillican Legal & Consulting; and on 21, 22 and 23 March 2016 and 9 May 2016 represented by Mr R Devlin QC of Counsel with Mr M Labone of Counsel instructed by WP McMillican Legal & Consulting |
REASONS FOR DECISION
INDEX
Introduction
What is the role of the Tribunal?
What are the 21 allegations referred by the Board?
What do the cases say about ‘misconduct in a professional respect’?
What are the competing submissions about the test to be applied in this case?
Tribunal findings - what is the common law test to be applied?
Is a complaint and/or proof of injury or loss necessary for there to be a finding of negligence or incompetence in this case?
What are the further particulars of the allegations?
What do the experts say about standards and practice of veterinary surgeons; and the treatment of horses?
Evidence of Dr van Eps
Evidence of Dr Clarke
Tribunal’s findings in relation to the expert evidence and the treatment of an animal
What does Dr Griffin say about the allegations?
Dr Griffin’s evidence about anabolic steroids
Dr Griffin’s evidence about treating horses prophylactically
Dr Griffin’s evidence about treating sporting and racing horses
Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.6 – C. Martin’s property?
Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.8 – P. Healy’s Property?
Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.9 – N. Osbourne’s Property?
Has Dr Griffin engaged in misconduct in a professional respect for allegation 4.14 (same as 6.18) – W. Lawson’s Property?
Has Dr Griffin engaged in misconduct in a professional respect for allegation 5.6 (same as 6.17) – T. Gollan’s Property?
Has Dr Griffin engaged in misconduct in a professional respect for allegation 6.1 – Tomorrows Stud Farm?
Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.2, 6.4 and 6.8 – A. Eggleston’s property?
● Allegation 6.2 – Deca 50
● Allegation 6.4 – Filybol
● Allegation 6.8 - Stanazol
Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.3, 6.5, 6.10, 6.12, 6.14, 6.15 (same as 6.16), 6.19 (same as 6.20) – Allandale Stud Farm?
● Allegation 6.3 - Stanazol
● Allegation 6.5 – Stanazol and Deca 50
● Allegation 6.10 - Stanazol
● Allegation 6.12 – Stanazol and Anadiol
● Allegation 6.14 – Stanazol and Filybol
● Allegation 6.15 (same as 6.16) – Stanazol
● Allegation 6.19 (same as 6.20) – Stanazol
Has Dr Griffin engaged in misconduct in a professional respect for allegation 6.6 – G. Gavin’s Property?
Has Dr Griffin engaged in misconduct in a professional respect for allegations 6.7, 4.2, 6.13, 4.12 – R Smith?
● Allegation 6.7 – Stanazol, Testoprop, Testosterone Suspension, Boldebal-H and Deca 50
● Allegation 4.2 – Stanazol and Drive and Boldebal-H
● Allegation 6.13 – Stanazol, Deca 50
● Allegation 4.12 – Anab+ Stanazol
Conclusion
Introduction
Victor Leslie Griffin is a registered veterinary surgeon with approximately 25 years’ experience practising as an equine veterinarian. He conducts a mobile veterinary practice focusing on racing and sporting horses.
On various dates in 2011 and 2012, Dr Griffin visited stables, trainers and farms throughout Queensland, New South Wales and Victoria. He treated thoroughbred and standardbred horses by administering and dispensing certain ‘restricted’ drugs.[1] Some of those drugs are now banned from use for horses in the racing industry.
[1]For the purposes of the Health (Drugs and Poisons) Regulation 1996 (Qld), see Appendix 9.
The Veterinary Surgeons Board of Queensland (the Board) has referred 21 allegations to the Tribunal for determination about Dr Griffin’s conduct and practice as a veterinary surgeon, and some further allegations that relate to record keeping.[2] The Board contends that Dr Griffin has engaged in ‘misconduct in a professional respect’ pursuant to s 22F of the Veterinary Surgeons Act 1936 (Qld) (the Act) because he was negligent or incompetent[3]; and/or otherwise practised in a manner that was of a lessor standard than that expected by his professional peers and the public.[4]
[2]Application or referral – disciplinary proceeding filed on 28 October 2013 (the Referral). See s 22(3) of the Veterinary Surgeons Act 1936 (Qld) (the Act) and see Exhibit 7.
[3]In the practice of his profession under s 22F(f) of the Act.
[4]Referral filed on 28 October 2013 and Exhibit 7. See Submissions for the Board dated 11 April 2016.
The Board says that Dr Griffin is required to consider the health, welfare and respectful treatment of the animal.[5] The Board says that Dr Griffin’s ‘mass administration’ of non-steroidal anti-inflammatories (Bute Paste) and anabolic steroids to (various horses) do not ‘constitute appropriate preventative measures nor suitable management and treatment of disease conditions’.[6]
[5]Submissions for the Board dated 11 April 2016, [49] and see the Australian Veterinary Association (AVA) Code of Professional Conduct, principle 1(a).
[6]Submissions for the Board dated 11 April 2016, [49].
Dr Griffin accepts that his record keeping was inadequate but denies the 21 allegations in relation to the conduct of his veterinary practice.[7] Dr Griffin says that in some instances he treated horses prophylactically and in others he treated horses for a therapeutic purpose, including weight gain and tissue repair, with the added benefits of appetite stimulation and red blood cell increase.[8] Dr Griffin says that he had a ‘long-term, on-going relationship with the relevant farm or stable’ and his treatments were supported by information from owners and trainers about the horses in conjunction with his own ‘independent examination of the horses’.[9]
[7]See statement of agreed and disputed facts filed 24 June 2014 and schedule of admissions with respect to records dated 11 April 2016.
[8]Affidavit of Victor Leslie Griffin sworn 31 October 2014, Exhibit 1 (doc. 2.7), [16].
[9]Supplementary submissions on behalf of the registrant filed on 10 April 2016, [23].
The issue before the Tribunal now is whether the Board has proven to the required civil standard each of the 21 allegations relating to Dr Griffin’s conduct in his practice as a veterinary surgeon.
The Tribunal will consider in separate reasons those allegations relating to record keeping because Dr Griffin admits that by failing to keep adequate records in accordance with s 25 of the Veterinary Surgeons Regulation 2002 (Qld)[10] he has engaged in ‘misconduct in a professional respect’.[11]
[10]Schedule of admissions with respect to records dated 11 April 2016. See Affidavit of Victor Leslie Griffin sworn 31 October 2014, [65].
[11]For the purposes of s 22F(i) of the Act, see Schedule of admissions with respect to records dated 11 April 2016.
What is the role of the Tribunal?
The Act confers original jurisdiction on the Tribunal to hear and decide disciplinary proceedings involving allegations of misconduct in a professional respect.[12] The Tribunal is constituted by a legal member and two other members who are veterinary surgeons.[13]
[12]The Act s 15A.
[13]Ibid, s 15B.
If the Tribunal determines that a veterinary surgeon has engaged in misconduct in a professional respect it may order, amongst others, that the veterinary surgeon’s (the registrant) name be removed from the register of veterinary surgeons, that the registrant be suspended for a specified period, that the registrant pay to the Board a penalty or admonish or reprimand the registrant.[14]
[14]The Act s 22E.
In the proceeding, the Board bears the burden of proof. The Tribunal must be satisfied to the required civil standard on the balance of probabilities, that the allegations as particularised are proven. In Briginshaw’s case, commonly referred to as the ‘Briginshaw principle’,[15] Dixon J (as he then was) said that the allegation must be made out to the reasonable satisfaction of the tribunal and should not be ‘produced by inexact proofs, indefinite testimony, or indirect inferences’. The relevant extract from Briginshaw’s case is as follows:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes… it is enough that that affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences….[16]
[15]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362.
[16]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362.
In conducting a proceeding the Tribunal is not bound by the rules of evidence,[17] but must observe the rules of natural justice and, amongst others, ‘ensure, so far as is practicable, all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.’[18]
[17]Section 28(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that the rules of evidence do not apply other than to the extent that the tribunal adopts them.
[18]QCAT Act s 28.
In this case, Dr Griffin has responded to the allegations.[19] Dr Griffin relies on his own evidence and the expert evidence of Dr Andrew Clarke. Dr Clarke is the Chief Executive Officer (CEO) and Veterinary Director of Living Legends, ‘the international home of rest for champion horses’. Prior to this Dr Clarke was the principal veterinarian at Equine Connections, a private consultancy practice.
[19]Final written supplementary submissions of Dr Griffin received by the Tribunal on 19 April 2016, final written submissions of the Board received on 11 April 2016 and reply (written) submissions of the Board received by the Tribunal on 4 May 2016.
The Board relies on the expert evidence of Dr Andrew van Eps who is an equine medicine specialist and the Director of the UQ Equine Hospital at the University of Queensland Gatton Campus. Dr van Eps and Dr Clarke prepared reports and gave oral evidence at the hearing.
Dr Griffin gave oral evidence at the hearing responding to the allegations (in the Referral) as they relate to particular farms or stables that he visited and where he treated horses. For example, allegations 6.2, 6.4 and 6.8 relate to or concern alleged conduct that took place at ‘A. Eggelston’s’ farm. The Tribunal will adopt, for these reasons, a similar approach in considering all of the evidence because some of Dr Griffin’s evidence about a particular farm or stable is relevant to more than one allegation. This approach will assist the Tribunal in meeting its objectives under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) to act with ‘as much speed’[20] as the requirements of the QCAT Act or the Act permit.
[20]QCAT Act s 28(d).
What are the 21 allegations referred by the Board?
The Board relies on the particulars in the Referral and further particulars provided to the Tribunal.[21] The allegations as they appear in the Referral are as follows:
[21]Letter from Lander & Rogers Lawyers to QCAT dated 6 August, Exhibit 1, volume 5 p 1719. See also written submissions filed by the Board dated 27 October 2014, 28 October 2015 (as amended), 11 April 2016 and 3 May 2016; and statement of agreed and disputed facts filed 24 June 2014.
Relevant Allegation Number
Particulars of charge
4. On various dates, the Registrant administered, prescribed, dispensed or sold restricted drugs to various horses or clients for no legitimate therapeutic purpose.
4.2
On or about 20 December 2011 the Registrant dispensed or administered Stanazol, Drive and Boldebal H to 10, 6 and 4 horses respectively under the care of Ronald Smith (or Robert Smith or Rochelle Smith). The Registrant says he dispensed or administered restricted drugs for the purpose of tissue repair, appetite stimulation, live weight gain and virilising effects (see Document 2 of Board’s Index to Material). No therapeutic purposes for dispensing or administering the drugs were recorded (see Document 3 of Board’s Index to Material).
4.6
On about 28 September 2010 the Registrant supplied 2 x 1kg Bute Paste to a client, C Martin (see Document 10 of Board’s Index to Material). The Registrant says the restricted drug was supplied for use on 15 to 20 horses in training and was supplied as an anti-inflammatory (see Document 11 of Board’s Index to Material). The names of the animals intended to be supplied or administered Bute Paste were not recorded.
4.8
[same as 6.9[22]]
On about 11 November 2011 the Registrant supplied 2 x 1kg Nitrotain to P Healey. The Registrant says it was supplied for a certain number of horses in training for tissue repair and live weight gain (see Document 13 of Board’s Index to Material). The only clinical note recorded is “horses in training” (see Document 14 of Board’s Index to Material).
4.9
[same as 6.11[23]]
On 7 December 2011 the Registrant supplied 3 x 1kg Nitrotain to N Osbourne. The Registrant says the treatment was for tissue repair and live weight gain for between 100 and 200 horses on the property. The only clinical note recorded is “H.I.T” (see Document 15 of Board’s Index to Material).
4.12
On about 26 June 2012 the Registrant supplied 14 x “1M Anab + Stanazol” to R Smith. The Registrant says the drug was administered for tissue repair, as an appetite stimulant and for live weight gain prior to pre-training and training. The only clinical note recorded is “spellers” (see Document 18 of Board’s Index to Material).
4.14
[same as 6.18[24]]
Also on about 2 July 2012 the Registrant supplied 1 x 500g of Bute Paste to W Lawson. The Registrant says the drug was used as an anti-inflammatory for horses in training for the first 6-8 weeks of preparation to encourage mental improvement to their attitude to exercise. The only clinical note recorded is “H.I.T” (see Document 20 of Board’s Index to Material).
5. On various dates, the Registrant administered, prescribed, dispensed or sold various combinations of restricted drugs for which there was no legitimate therapeutic need for the restricted drugs, or combination of restricted drugs. 5.6
[same as 6.17[25]]
On about 26 June 2012 the Registrant administered, prescribed or dispensed Testosterone, Suspension and Stanazol to 20 horses under the care of T Gollan. The Registrant says that the restricted drugs were administered, prescribed or dispensed for the purpose of an appetite stimulant and for tissue repair (see Document 27 of Board’s Index to Material). The therapeutic purposes for administering, prescribing or dispensing the drugs were not recorded (see Document 28 of Board’s Index to Material).
6. On various dates, the Registrant treated in circumstances where he did not or could not adequately establish a therapeutic purpose for administering or supplying the drugs or medicines.
6.1
On 19 April 2011 the Registrant administered Stanazol to 28 horses at Toomorrows Stud Farm (see Document 29 of Board’s Index to Material). The Registrant says the drug was administered to improve live weight gain. The Registrant says he personally injected each horse on the property. The Registrant says in the past, a respiratory infection and cough spread through the yearlings (see Document 30 of Board’s Index to Material).
6.2
On 21 May 2011 the Registrant administered Deca 50 to 27 horses under the care of A Eggleston (see Document 31 of Board’s Index to Material). The Registrant says the drugs were administered to assist with appetite stimulation and muscle bulk gain prior to the horses entering training (see Document 32 of Board’s Index to Material).
6.3
On 13 July 2011 the Registrant administered Stanazol to 31 horses at Allandale Stud Farm (see Document 33 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and minerals and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.4
On 23 July 2011 the Registrant administered Filybol to 17 horses under the care of A Eggleston (see Document 35 of Board’s Index to Material). The Registrant says this was an on-going treatment (see Document 32 of Board’s Index to Material).
6.5
On 10 August 2011 the Registrant administered both Stanazol and Deca 50 to 30 horses at Allandale Stud Farm (see Document 36 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.6
On 13 August 2011 the Registrant administered Testoprop and Stanazol to 20 horses under the care of G Gavin (see Document 37 of Board’s Index to Material). The Registrant says the horses were about to go out for a spell or had just come in for exercise training. The Registrant says the drugs were administered to assist with tissue repair and to stimulate appetites (see Document 38 of Board’s Index to Material).
6.7
On 16 August 2011 the Registrant administered Stanazol, Testoprop, Testosterone Suspension, Boldebal-H and Deca 50 to 22, 6, 15, 6 and 6 horses respectively, under the care of R Smith (see Document 39 of Board’s Index to Material). The Registrant says although the complaint is not noted it is indicated by the treatment, which is the therapeutic purposes of tissue repair, appetite stimulation, live weight gain and virilising effects (see Document 2 of Board’s Index to Material).
6.8
On 15 September 2011 the Registrant administered Stanazol to 27 horses under the care of A Eggleston (see Document 40 of Board’s Index to Material). The Registrant says this was an on-going treatment (see Document 32 of Board’s Index to Material).
6.9
[same as 4.8[26]]
On about 11 November 2011 the Registrant supplied 2 x 1kg Nitrotain to P Healey. The Registrant says it was supplied for a certain number of horses in training for tissue repair and live weight gain. (see Document 30 of Board’s Index to Material). The only clinical note recorded is “horses in training” (see Document 14 of Board’s Index to Material).
6.10
On 16 November 2011 the Registrant administered Stanazol to 53 horses at Allandale Stud Farm (see Document 41 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.11
[same as 4.9[27]]
On 7 December 2011 the Registrant supplied 3 x 1kg Nitrotain to N Osbourne. The Registrant says the treatment was for tissue repair and live weight gain for between 100 and 200 horses on the property. The only clinical note recorded is “H.I.T” (see Document 15 of Board’s Index to Material).
6.12
On 8 February 2012 the Registrant administered Stanazol and Anadiol to 60 and 30 horses respectively, at Allandale Stud Farm (see Document 42 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.13
On 17 February 2012 the Registrant administered Stanazol and Deca 50 to 25 and 10 horses respectively, under the care of R Smith (see Document 43 of Board’s Index to Material). The Registrant says although the complaint is not noted, it is indicated by the treatment, which is the therapeutic purposes of tissue repair, appetite stimulation, live eight gain and virilising effects ((see Document 2 of Board’s Index to Material).
6.14
On 21 March 2012 the Registrant administered Stanazol and Filybol to 58 and 24 horses respectively at Allandale Stud Farm (see Document 44 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.15
[6.16[28]]
On 13 June 2012 the Registrant administered Stanazol to 30 horses at Allandale Stud Farm (see Document 45 of Board’s Index to Material). The Registrant says the drugs were used as treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
6.17
[same as 5.6[29]]
On 26 June 2012 the Registrant administered Stanazol and Testosterone Suspension to 20 horses under the care of T Gollan (see Document 46 of Board’s Index to Material). The Registrant says the drugs were prescribed as an appetite stimulant and for tissue repair (see Document 27 of Board’s Index to Material).
6.18
[same as 4.14[30]]
On about 2 July 2012 the Registrant supplied 1 x 500g of Bute Paste to W Lawson. The Registrant says the drug was used as an anti-inflammatory for horses in training for the first 6-8 weeks of preparation to encourage mental improvement to their attitude to exercise. The only clinical note recorded is “H.I.T” (see Document 20 of Board’s Index to Material).
6.19
[6.20[31]]
On 25 July 2012 the Registrant administered Stanazol to 32 horses at Allandale Stud Farm (see Document 47 of Board’s Index to Material). The Registrant says the drugs were used as a treatment for lack of live weight gain which he had identified a number of years ago. The Registrant says he used a combination of anabolic injections and mineral and vitamin supplementation (see Document 34 of Board’s Index to Material).
[22]Exhibit 7.
[23]Ibid.
[24]Exhibit 7.
[25]Ibid.
[26]Exhibit 7.
[27]Exhibit 7.
[28]Ibid.
[29]Ibid.
[30]Exhibit 7.
[31]Ibid.
What is the meaning of ‘misconduct in a professional respect’?
The Act relevantly provides that, without limiting the ways a veterinary surgeon may engage in ‘misconduct in a professional respect’, a veterinary surgeon is engaging in ‘misconduct in a professional respect’ if, amongst others, the veterinary surgeon is habitually drunk or is addicted to any deleterious drug; or conducts any veterinary premises or other place for the practice of veterinary science where he or she is not in full-time attendance; signs or gives a certificate, notice, report or like document that is incomplete or is false or misleading in a material respect; or is convicted of an offence involving cruelty to an animal, or ‘is negligent or incompetent in the practice of his or her profession’.[32]
[32]The Act s 22F.
The Board submits that Dr Griffin was ‘negligent or incompetent’ [under s 22F(f) of the Act] in the practice of his profession; and/or otherwise practised in a manner that was of a lessor standard than that expected by his professional peers and the public.[33] It is common ground that the latter imports the common law test of misconduct in a professional respect.[34]
[33]Submissions for the Board dated 11 April 2016, [50].
[34]Ibid, [4] and see Supplementary submissions on behalf of the registrant (Dr Griffin) filed on 10 April 2016, [28].
The Tribunal must determine the common law test to be applied in this case because there are published decisions that endorse different approaches or tests for the purposes of determining whether conduct is ‘misconduct in a professional respect’.
What do the cases say about ‘misconduct in a professional respect’?
The Tribunal has been referred to the following cases now set out in the order of date of publication:
1)1989 – Pillai v Messiter (1989) 16 NSWLR 197
2)1992 – Medical Board of Queensland v Cooke [1992] 2 Qd R 608 applied Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
3)1999 – Medical Board of Queensland v Bayliss [2000] 1 Qd R 598 applied Pillai v Messiter (1989) 16 NSWLR 197
4)2004 – Psychologists Board of Qld v Robinson [2004] QCA 405 discussed Medical Board of Queensland v Cooke [1992] 2 Qd R 608
5)2015 – Cook v The Psychologists Board of Queensland [2015] QCA 250 applied Psychologists Board of Qld v Robinson [2004] QCA 405
The earliest decision decided in 1989 by the New South Wales (NSW) Court of Appeal is Pillai v Messiter.[35] In Pillai’s case the NSW Court of Appeal considered the statutory test of ‘misconduct in a professional respect’ and what is required by way of standards for a medical practitioner. Kirby P said that something more is required than professional incompetence or deficiencies in the practice of the profession, such as a deliberate departure from accepted standards or serious negligence. The relevant extract from Pillai’s case is as follows:
…But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence, as although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[36]
[35](1989) 16 NSWLR 197.
[36]Pillai v Messiter (1989) 16 NSWLR 197, p 200.
In Pillai’s case, the NSW Court of Appeal said that for ‘professional reprobation’ it is necessary for such a finding to be established by the evidence of an appropriately qualified person or persons. The Court also said that the purpose of discipline (in a professional respect) is ‘not to punish but to protect the public’.[37] The extracts from Pillai’s case are as follows:
In giving meaning to the phrase “misconduct in a professional respect” in the context within which it appears, it must be kept in mind that the consequence of an affirmative finding is drastic for the practitioner. And the purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public.[38]
…
It is necessary, however for professional reprobation to be established by the evidence of an appropriately qualified person or persons. Here the respondent relies upon, and only upon, the evidence of Professor Bushanan; and although the source was well qualified the testimony was insufficient…[39]
[37]Ibid.
[38]Pillai v Messiter (1989) 16 NSWLR 197, p 200.
[39]Ibid, p 208.
In Pillai’s case the NSW Court of Appeal set aside the decision at first instance of the Medical Tribunal of NSW. The NSW Court of Appeal in allowing the appeal said that there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect. The relevant extracts from Pillai’s case are as follows:
Accordingly, the finding of misconduct must rest upon the evidence of Professor Buchanan…But unacceptable practice does not make a case of misconduct. In my opinion there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect.
The Tribunal made findings about the appellant’s conduct, which, of course, it had ample power to do. But it was not entitled to substitute its own view of the response which the appellant’s professional colleagues would have made to his conduct.
However I do not think that the Tribunal made any such endeavour. Indeed, its judgment is remarkable for the omission of any reference to the principles which regulate the translation of professional negligence into professional misconduct (or misconduct in a professional respect). It seems as if the Tribunal treated the matter as if it were an action for professional negligence rather than a charge of misconduct… However it is not every departure – even if gross – from proper standards which amounts to misconduct, and in the absence of the necessary evidence no such inference can be made…[40]
[40]Ibid, p 210.
In 1992, the Full Court of the Supreme Court of Queensland (as it then was) decided Medical Board of Queensland v Cooke.[41] In Cooke’s case, a medical specialist (Dr Cooke) faced seven charges of misconduct in a professional respect presented by the former Medical Board of Queensland. The charges related to advertising on certain large billboard advertisements, advertising by print media releases, advertisements and articles, advertising on radio and canvassing. The former Medical Assessment Tribunal after hearing evidence called by the Board and given on behalf of Dr Cooke determined that the ‘prosecution failed’ and dismissed the charge. The Board appealed against the Tribunal’s decision to the Full Court. Thomas J, with whom McPherson ACJ and Byrne J agreed, wrote the leading judgment.
[41][1992] 2 Qd R 608.
Thomas J said (in Cooke’s case) that the appropriate test is as stated in Adamson v Queensland Law Society Incorporated.[42] That is, ‘whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency’.[43] Thomas J also said that it is appropriate for the Tribunal to take advice from medical assessors and this may include matters of professional standards and expectations. The relevant extract from Cooke’s case is as follows:
In order to justify an adverse finding against Dr Cooke it was not sufficient merely to prove that he had breached one or more of the Advertising By-Laws. It was necessary to provide that his conduct amounted to ‘misconduct in a professional respect’.
It was common ground that the appropriate test is that stated in [Adamson’s case]:
“The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”
…
In appreciating the standard of professional conduct that is to be expected in a particular matter it is appropriate for the Tribunal to take advantage of such advice as the two medical assessors can provide…and this may include matters of professional standards and expectations. Ultimately, the acceptable level of professional conduct and whether it has been transgressed are questions of fact. It is also permissible, although not always essential, to call evidence from members of the profession of good repute and competency to give evidence of their perception of the prevailing standard…[44]
[42][1990] 1 Qd R 498.
[43]Medical Board of Queensland v Cooke [1992] 2 Qd R 608 at 616.
[44]Ibid.
In 2000, the Queensland Court of Appeal decided Medical Board of Queensland v Bayliss.[45] Bayliss’ case was an appeal by both parties from a decision of the former Medical Assessment Tribunal about treatment by Dr Bayliss of a patient at his clinic. The Tribunal at first instance found Dr Bayliss guilty of misconduct in a professional respect and imposed a penalty. Bayliss’ case endorsed the approach taken by Kirby P in Pillai v Messiter.[46] McMurdo P and Thomas JA in joint reasons accepted the approach taken in Pillai’s case and said that in determining misconduct in a professional respect it is necessary to find something more. The relevant extract from Bayliss’ case is as follows:
As to the question of whether the facts as found established negligence so gross as to satisfy the standard required for a finding of misconduct in a professional respect, we are content to accept the approach stated by members of the New South Wales Court of Appeal in [Pillai’s case] and in particular the views expressed by Kirby P. This acknowledges that mistakes may be made by the most conscientious professional peers, and that in determining whether there has been ‘misconduct in a professional respect’ it is necessary to find something more than mere negligence by the civil standard.[47]
[45][2000] 1 Qd R 598.
[46](1989) 16 NSWLR 197.
[47][2000] 1 Qd R 598, p 609.
In 2004, the Queensland Court of Appeal published Psychologists Board of Qld v Robinson.[48] The Queensland Court of Appeal considered the test to be applied as described in other cases in determining whether conduct is ‘unsatisfactory professional conduct’ that includes (as defined) ‘misconduct in a professional respect’.
[48][2004] QCA 405.
In Robinson’s case, a psychologist was found guilty of unsatisfactory professional conduct involving acts of sexual intercourse with a former patient. The Court of Appeal discussed Cooke’s case in the context of being an example of where reputable professional men and women disagree about the propriety of certain types of professional conduct. The Court of Appeal said the question of whether there has been ‘infamous conduct in a professional respect’ was to be decided by reference to whether the conduct ‘would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency’.[49] The Court of Appeal said the question for the Tribunal (at first instance) was whether the appellant had engaged in unsatisfactory conduct, as particularised in the reference. The relevant extract from Robinson’s case is as follows: [footnotes omitted]
…There can be cases where reputable professional men and women disagree about the propriety of certain types of professional conduct. [Cooke’s case] is an example of such a case. There can be no scope for disagreement about the content of the ethical obligations of the member of a profession subject to the Act where the relevant Board has developed a code of practice in accordance with s 374. That, it seems to me, is its only function.
…
The answer is obvious. As long ago as 1894 it was decided in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 that the question whether a doctor had been guilty of ‘infamous conduct in a professional respect’ was to be decided by reference to whether the conduct ‘would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency’. The same test was applied with respect to solicitors in Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507 and in Cooke at 616. In each case it was said that:
‘The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.’
The same test has been applied by the Supreme Court of Victoria with respect to pharmacists…[50]
[49]Psychologists Board of Qld v Robinson [2004] QCA 405, [23].
[50]Robinson’s case, [21], [23].
In 2015, the Queensland Court of Appeal published Cook v The Psychologists Board of Queensland.[51] In Cook’s case the Queensland Health Practitioners Tribunal considered at first instance whether there were grounds for disciplinary action because of Mr Cook’s (a psychologist) unsatisfactory professional conduct (as alleged), including conduct that involved allegations of exploitation of the patient/therapist relationship. Under the relevant legislation ‘unsatisfactory professional conduct’ includes (as defined) ‘misconduct in a professional respect’. The Court of Appeal said that the Tribunal at first instance found each of the alleged six particularised matters had been established. The Court of Appeal in applying Robinson’s case said that the correct approach to the application of the code of ethics and expert evidence is that identified by Chesterman J (as he then was) in Robinson’s case. The relevant extracts from Cook’s case are as follows: [footnotes omitted]
The standard of proof applied by the Tribunal in relation to these allegations was the Briginshaw standard… As to ground 1 the Tribunal found each of the alleged six particularised matters had been established…
In being satisfied that ground 1 had been established, the Tribunal observed:
“… the [applicant’s] conduct was of a lesser standard than that which might reasonably be expected of him by the public and by his professional peers. I am further satisfied that his conduct demonstrates a lack of adequate judgment in the practice of his profession. This behaviour constitutes unsatisfactory professional conduct within the meaning of the Act.”
…
The correct approach to the application of the APS Code of Ethics, and indeed the expert evidence of Mr Dooley, is that identified by Chesterman J (as his Honour then was) in [Robinson’s case]:
“The question for the Tribunal was whether the appellant had engaged in unsatisfactory professional conduct, as particularised in the reference. The answer was to be found by the test described in the cases. It is the test which the Tribunal did apply. Whether the appellant’s conduct, the subject of the referral, was of a lesser standard than that to be reasonably expected by the appellant’s peers, or was discreditable to her profession, or was unethical, was, obviously a question of fact to be determined on the evidence. The Tribunal had evidence before it, principally from Dr Dooley, that the appellant’s conduct did satisfy that description. Both Dr Dooley, and the Tribunal, relied upon the contents of the APS code and the Position Statement. There can be no possible objection to this use of the APS code, or the Position Statement, by the Tribunal. It is to miss the point entirely to say that neither document was ‘binding’ on the appellant by force of law. The point is that psychologists of good repute and standing regarded the rules in question, the APS code and Position Statement concerning sexual relationships between psychologists and former patients, as setting forth standards to which they, as professionals, should adhere. They regarded those rules as ‘binding’ on themselves and their conduct notwithstanding that the rules had no statutory force and breach of them could not result in a prosecution. This is the very nature of an ethic. It is a voluntarily observed rule which is obeyed because obedience to it is seen to be good for the reputation of the profession and the proper performance of its members’ functions.” [52]
[51][2015] QCA 250.
[52]Cook v The Psychologists Board of Queensland [2015] QCA 250 at [15]-[16], [44].
In Cook’s case, the Court of Appeal refused leave to appeal and the application for an extension of time was refused. The Court of Appeal said that the Tribunal at first instance was entitled to have regard to the APS Code of Ethics and Guidelines and it made no error in accepting the evidence of Mr Dooley (expert witness). The Court of Appeal said that Mr Dooley, as a longstanding and experienced psychologist, ‘was able to identify professional conduct that was of a lessor standard than which might reasonably be expected of the applicant by his professional peers.’[53]
[53]Ibid at [53].
What are the competing submissions about the test to be applied in this case?
In oral submissions, Mr Wilson for the Board argues that Cooke’s case sets out the appropriate test and should be applied. Mr Wilson submits that the test in Pillai’s case suggests a ‘higher bar,’ in that the conduct in question needs to be more wanting than the test in Cooke’s case. Mr Wilson submits that, as stated in Cooke’s case, the test is simply go to the question of what would a member of the profession of good repute or competency do. That is, what is the standard the profession expects.
Mr Devlin QC for Dr Griffin submits that in assessing the allegations about negligence or incompetence the test in Bayliss’ case assists the Tribunal. In assessing the allegations as to whether Dr Griffin’s conduct is of a lessor standard expected of his peers and the public, the test in Cooke’s case and Robinson’s case (that applies Adamson’s case) assists the Tribunal.
Tribunal findings - what is the common law test to be applied?
The Tribunal has considered the submissions made and the nature of the allegations contained in the Referral. A finding by the Tribunal that some or all of the allegations have been substantiated will potentially have serious consequences for Dr Griffin in his practice as a veterinary surgeon because the Tribunal has the power to take certain disciplinary action.[54]
[54]Under s 22E of the Act.
The Tribunal accepts the submission advanced by Mr Wilson for the Board that Pillai’s case suggests a ‘higher bar,’ in that the conduct in question needs to be more wanting than the test stated in Cooke’s case. Given the seriousness of the allegations and the potential consequences that may flow from any adverse findings made about Dr Griffin’s conduct and his practice as a veterinary surgeon, the Tribunal will apply the test that suggests a ‘higher bar’, being the test in Bayliss’ case that endorsed the approach taken in Pillai’s case.
Bayliss’ case said that, as to whether the facts as found establish ‘negligence so gross’, it is necessary for the Tribunal to ‘find something more’ than mere negligence by the civil standard.[55] Bayliss’ case accepted the approach set out in Pillai’s case. Pillai’s case said that in assessing the evidence and making a finding of ‘professional reprobation’, there must be evidence ‘established by…an appropriately qualified person or persons’.[56] Pillai’s case also said that the statutory test of ‘misconduct in a professional respect’ is not met by ‘mere professional incompetence or by deficiencies in the practice of the profession’. Pillai’s case said there must be something more, such as ‘a deliberate departure from accepted standards or such serious negligence, as although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner’.[57]
Is a complaint and/or proof of injury or loss necessary for there to be a finding of negligence or incompetence in this case?
[55][2000] 1 Qd R 598, p 609.
[56](1989) 16 NSWLR 197, p 208.
[57]Ibid, p 200.
This argument, advanced by Mr Devlin QC in oral submissions, he says rests on the principle of negligence as stated by the House of Lords in Donoghue v Stevenson.[58] Mr Devlin QC submits a fundamental element of negligence is proof of loss suffered by a party as a result of an act or omission of the defendant. Mr Devlin QC submits that a singular feature of the Board’s case is the lack of any evidentiary basis for a finding of negligence or incompetence that are in itself as stated, ‘legal terms of art’ not otherwise defined by the Act.
[58][1932] AC 562.
Mr Devlin QC refers the Tribunal to the decision in Burton v Anderson[59] as being a relevant authority as to the ‘process’ to be taken in disciplinary proceedings and in assessing the evidence of what a practitioner did in order to be satisfied that the alleged conduct is incompetent. Burton’s case involved an appeal against findings made by the Veterinary Surgeons Disciplinary Tribunal at first instance against Dr Burton who was a registered veterinary surgeon. The appeal proceeded before the NSW Court of Appeal.
[59]Burton v Anderson [1994] NSWCA 36.
In Burton’s case the Tribunal at first instance heard evidence from witnesses including expert witnesses, Dr Burton and the complainants who were the owners of the subject animal (a dog) treated by Dr Burton. The Court said that the Tribunal accepted the opinions expressed by the expert witnesses called by the nominal complainants, and their criticisms of Dr Burton’s clinical management of the dog. The Tribunal at first instance accepted that the ‘opinions and criticism reflect the opinion which would be generally held by competent veterinary surgeons of good repute and standing in the profession’.[60] The Court of Appeal referred to the ‘prolonged suffering of the dog’ and said that it (like the Tribunal) regarded this to be a ‘very serious case.’[61]
[60]Burton v Anderson [1994] NSWCA 36, p 7.
[61]Ibid, p 10.
Mr Devlin QC submits that negligence and incompetence are of the same category because the only way to measure incompetence referring to a ‘serious departure’ (of standards) is to look at the process leading to the result. Mr Devlin QC submits that on the facts of this case, it is dangerous to return an adverse finding of negligence or incompetence because such findings rely upon a common law concept of negligence settled over 65 years ago. Mr Devlin QC submits that in this case Dr Griffin admits that his records are inadequate and the allegations referred by the Board require the Tribunal to draw inferences based on the evidence. Mr Devlin QC submits that this requires inferences to be made by the Tribunal about Dr Griffin’s notes and a failure (by him) to determine therapeutic purpose or need in order to be satisfied that there is evidence of misconduct in a professional respect but there are no discernible outcomes adverse to the animal patients before us.
Mr Wilson says in response that you cannot import tortious concepts into the statutory test because this will lead to confusion and error. Mr Wilson says that this is not a matter about private recovery.
We find Robinson’s case helpful in considering the issue before us because it is an example of a case where on the reported facts there was no complaint made and no primary evidence before the Tribunal at first instance of injury or loss to the patient in making a finding of unsatisfactory professional conduct that included misconduct in a professional respect.
Robinson’s case concerned conduct by Ms Robinson (a psychologist) in the form of a sexual relationship with a former patient. In Robinson’s case the Court of Appeal set out the facts giving rise to the referral. The facts state that Ms Robinson ‘has continued contact with [the patient] and intends to continue contact…into the future’. In Robinson’s case, the Tribunal found at first instance that there was a power imbalance between Ms Robinson and the patient upon his (the patient’s) release from prison due to his vulnerability on release. The Tribunal also accepted that there is a ‘mutual attraction between [Ms Robinson] and [the patient] which continues’. The Court of Appeal said that the Tribunal at first instance accepted that the Code of Conduct and the Position Statement were ‘evidence of rules of conduct’ concerning sexual relationships between psychologists and former patients which ‘psychologists of good standing and repute observed’.
In this case, there is no evidence before us of a complaint giving rise to the Referral and no evidence of any adverse consequences including proof of injury or loss arising from Dr Griffin’s treatment of an animal in his conduct or practice as a veterinary surgeon.
We prefer Mr Wilson’s submission that to import tortious concepts into the statutory test will lead to confusion and error. We find that the Act requires us to determine the allegations as particularised in the Referral. The Act, for the purposes of making a finding of ‘misconduct in a professional respect’, does not provide that there must be a complaint as there was in Burton’s case and/or proof of injury or loss. The Act empowers the Board ‘of its own motion’ or upon ‘complaint’ of ‘a person aggrieved’ to cause an investigation to be made about the conduct of a veterinary surgeon.[62] Under s 22(3) the Board may elect to proceed to take disciplinary action as prescribed under s 22A or refer ‘the matter’ as provided under the QCAT Act to ‘hear and decide any disciplinary proceeding’.[63]
[62]Section 22(1).
[63]See s 15A.
It is settled law that the purpose of disciplinary proceedings is not to punish but to maintain standards and public confidence in the profession and to protect the public.[64] The Act confers powers on the Board as provided to investigate and take certain action in relation to conduct of a veterinary surgeon. The Act does not limit the Board’s power to refer a matter to the Tribunal in certain circumstances such as upon receipt of a complaint and/or where there is evidence of proof of injury or loss.
[64]See Pillai’s case at 207. See also Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597, and Medical Board of Australia v North [2012] QCAT 546 at [14].
In this case, Dr Griffin in responding to the allegations has given evidence as to his conduct and practice as a veterinary surgeon. Expert evidence has been given by qualified and experienced veterinary surgeons of good standing in the profession as to the conduct and practice of veterinary surgeons and the treatment of racing and sporting horses. The expert evidence is evidence of the standard expected of a veterinary surgeon by which Dr Griffin’s conduct and practice in this case may be measured.
In assessing the evidence, the findings we can make for the purposes of determining whether Dr Griffin has engaged in ‘misconduct in a professional respect’[65] are not hampered as submitted by Mr Devlin QC, by the lack of a complaint made or proof of injury or loss before us. It is open to us to make a finding if we are satisfied the allegations are proven to the required civil standard, about Dr Griffin’s conduct and practice as a veterinary surgeon. This includes making a finding that Dr Griffin was ‘negligent or incompetent’ or for the purposes of s 22F of the Act that provides ‘without limiting the ways a veterinary surgeon may engage in misconduct in a professional respect’, otherwise practised in a manner that was of a lessor standard than expected by his professional peers and the public.
[65]The Act s 22E.
What are the further particulars of the allegations?
Some of the allegations contained in the Referral refer to certain drugs as being administered, prescribed, dispensed or sold (by Dr Griffin) for no ‘legitimate therapeutic purpose’. One of the allegations refers to certain drugs as being administered, prescribed, dispensed or sold (by Dr Griffin) for no ‘legitimate therapeutic need’.
It is common ground that for the meaning of the words ‘therapeutic purpose’ and ‘therapeutic use’, the words ‘purpose’ and ‘use’ are equivalent terms.
The words ‘therapeutic need’ and ‘therapeutic purpose’ are not defined in the particulars of the Referral or in the Act. We therefore must consider each of the allegations as they are particularised in the Referral and that is with reference to one instance of administering, prescribing or dispensing various restricted drugs for which there was no ‘therapeutic need’ and in other instances there was no ‘therapeutic purpose’.
The Board and Dr Griffin have filed written submissions that present different approaches to be taken by the Tribunal in determining the meaning of ‘therapeutic purpose’ and ‘therapeutic need’. The Board has also provided further particulars of the allegations that fall outside the Referral.[66]
[66]Exhibit 1, volume 5, pp 1719-1720, and see Submissions of the Board dated 11 April 2016, [9]-[13].
The Board’s further particulars of the allegations also referred to in written submissions are as follows:[67]
1) Dr Griffin, in each case particularised in paragraph 4 [same particulars repeated for paragraphs 5 and 6] of the referral:
(a)did not identify for each horse to be treated, a therapeutic purpose for the drugs administered, prescribed, dispensed, sold or supplied;
(b)was not and could not reasonably have been satisfied that the drugs administered, prescribed, dispensed, sold or supplied were necessary for a therapeutic purpose for each horse to be treated with the drug;
(c)did not adequately assess or examine each horse before administering, prescribing, dispensing, selling or supplying the drugs as alleged in each case.
[67]Ibid.
For the allegations in paragraph 4 (and 6) and the reference ‘for no therapeutic purpose’ the Board relies[68] on the common meaning of ‘therapeutic’ that relates to the treatment of disease.[69] In written submissions the Board refers to the dictionary meaning of ‘therapeutic’ that means ‘pertaining to the treating or curing of disease; curative’,[70] ‘of, for, or contributing to the cure of disease.’[71]
[68]See reply submissions for the applicant board dated 3 May 2016 and Exhibit 1, p 1497.
[69]Reply submissions for the applicant board dated 3 May 2016, [1].
[70]Submissions of the Board dated 11 April 2016, [9].
[71]Ibid.
For allegation 5.6 the particulars refer to ‘no legitimate therapeutic need’. The Board submits that for each horse to be treated a therapeutic purpose was not identified, the registrant could not have been satisfied that the drugs were necessary, and Dr Griffin did not adequately examine the horses.[72]
[72]Ibid, [11]-[12].
For paragraph 6 of the allegations the Board submits Dr Griffin treated the horses in circumstances where ‘he did not or could not adequately establish a therapeutic purpose’ for administrating the drugs. The Board relies on particulars that Dr Griffin did not, for each horse to be treated, identify a therapeutic purpose, could not have been satisfied that the drugs were necessary, and Dr Griffin did not adequately assess or examine each horse.[73]
[73]Ibid, [13].
In responding to the particulars of the allegations, Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulation 1996 (Qld) (the Health Regulation).[74]
[74]Supplementary submissions on behalf of the registrant filed on 10 April 2016, p 4, p 5.
In relation to dispensing Bute Paste to be administered to various horses, Dr Griffin says that pursuant to s 180(1)(c) of the Health (Drugs and Poisons) Regulation 1996 (Qld) (the Health (D&P) Regs), as a matter of law, he was authorised to dispense Bute Paste in the instances alleged if ‘reasonably satisfied that the animal he was treating needs a restricted drug [Bute Paste] for a therapeutic use’.[75] Dr Griffin also says that on the evidence his satisfaction was reasonable.[76]
[75]Ibid, p 3.
[76]Ibid.
We accept Dr Griffin’s submission that the Health (D&P) Regs and the Health Regulation are applicable in this case.[77] The allegations refer to the treatment of horses by Dr Griffin with certain ‘restricted’ drugs as particularised, that are defined for the purposes of the Health (D&P) Regs, as ‘restricted’ drugs.[78] That Act refers to ‘therapeutic use’ by a veterinary surgeon treating an animal with a restricted drug. Section 180 relevantly provides that a veterinary surgeon is ‘authorised’ to ‘use’ a restricted drug as part of the animal’s veterinary treatment if the veterinary surgeon is ‘reasonably satisfied’ the drug is for a ‘therapeutic use’. Section 180 of the Health (D&P) Regs relevantly provides:
[77]See Supplementary submissions on behalf of the registrant filed on 10 April 2016.
[78]See Appendix 9.
180 Veterinary surgeons
To the extent necessary to practise veterinary medicine, a veterinary surgeon is authorised to—
(a) obtain a restricted drug; or
(b)possess a restricted drug at a place occupied by the veterinary surgeon; or
(c)if the veterinary surgeon is reasonably satisfied that an animal the veterinary surgeon is treating needs a restricted drug for a therapeutic use as part of the animal’s veterinary treatment—
(i) administer the drug to the animal; or
(ii) dispense or prescribe the drug for the animal; or
(iii) obtain the drug for the animal; or
(iv) sell a restricted drug to a person for the person’s animal.
The Health (D&P) Regs does not define the meaning of ‘therapeutic use’. Under s 153 of the Health Regulation there is a definition of ‘therapeutic use’ in the context of treating ‘a person’. Section 153 of the Health Regulation provides:
153 Definitions
In this part—
…
therapeutic use means a use for the purpose of or in connection with—
(a)preventing, diagnosing, curing or alleviating any disease, ailment, defect or injury in any person; or
(b)influencing, inhibiting or modifying a physiological process in any person; or
(c) testing the susceptibility of any person to a disease or ailment.
In written submissions in reply the Board submits that the definition in s 153 of the Health Regulation requires that there be a ‘disease, ailment, defect or injury’ to be prevented.[79] The Board says the manner of treatment adopted by the registrant does not establish the threat of any condition.[80] The Board says that procedures (as to treatment) should be based on ‘sound evidence-based science and practice’.[81]
[79]Reply submissions for the applicant board dated 3 May 2016, p 1.
[80]Ibid, p 1.
[81]See Appendix 9.
The Board also refers to the relevant principle 1(a) of the Australian Veterinary Association Code of Professional Conduct (AVA Code). The relevant extract from the AVA Code provides as follows:
1. Always consider the health, welfare and respectful treatment of the animal.
(a) Veterinarians should recommend appropriate preventive measures and provide suitable management and treatment for disease conditions. Although actions may be influenced by consideration of a client’s commercial, financial, emotional or other circumstances, veterinarians should not condone animal suffering, nor be party to it.
…
3. Strive to provide the best possible veterinary services, and to improve the quality of animal health and welfare.
…
(b) Veterinary procedures and recommendations should be based on sound evidence-based science and practice.
…
At the oral hearing Mr Devlin QC for Dr Griffin submits that s 180 of the Health (D&P) Regs permits Dr Griffin to use a restricted drug/s in circumstances where he was reasonably satisfied that the horse/s being treated by him needs the drug for a therapeutic use as part of the animal’s treatment. Mr Devlin QC submits that if we find that Dr Griffin was reasonably satisfied as a matter of fact and law for the purposes of s 180 of the Health (D&P) Regs, then the Tribunal must apply the standards of his profession and ask the question could Dr Griffin have been so satisfied.
Mr Wilson submits that in determining whether the allegations are substantiated it is not a question of what Dr Griffin thought he was trying to achieve in terms of treatment, but whether it was reasonable for him to do so having regard to all of the evidence including the expert witnesses and what is the competent standard (of the profession of veterinary surgeons).
In this case, the role of the Tribunal is to hear and decide disciplinary proceedings concerning Dr Griffin and the allegations of misconduct in a professional respect as contained in the Referral.[82] We must determine whether the allegations as particularised in the Referral are substantiated having regard to all of the evidence including Dr Griffin’s evidence, the expert evidence, the AVA Code and the applicable law.
[82]Section 15A of the Act, see Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149.
We find that in relation to administering or dispensing a restricted drug, a veterinary surgeon pursuant s 180 of the Health (D&P) Regs is, as a matter of law, authorised to treat an animal (with a restricted drug) if he or she is reasonably satisfied that the animal being treated needs the restricted drug for a therapeutic use (or purpose) as part of the animal’s veterinary treatment.
We accept the Board’s submission that s 153 of the Health Regulation requires there to be a ‘disease, ailment, defect or injury’ to be prevented. Section 153 also means ‘a use’ for the purpose of or in connection with ‘influencing, inhibiting or modifying a physiological process…’. We accept the Board’s submission that veterinary procedures and recommendations should be as provided in the AVA Code, based on sound evidence-based science and practice.
What do the experts say about standards and practice of veterinary surgeons; and the treatment of horses?
Dr van Eps and Dr Clarke gave evidence about the treatment of horses by a veterinary surgeon generally and treatment of horses with certain drugs with reference to the Referral. Although the expert witnesses agree generally that when conducting a physical examination of a horse certain steps or procedures should be undertaken, they do not agree about the circumstances in which a physical examination of a horse is required.
The divergent opinions arise in the context of treating a horse individually and treating horses as a group (or herd) as part of an ongoing program. The expert opinions also differ about whether it is appropriate to treat horses in certain situations with anabolic steroids and whether the registered use for a drug with the Australian Pesticides and Veterinary Medicines Authority (the APVMA) is justification for how the drug might be used.
In short compass, Dr Clarke says that an individual examination of a horse is not required when treating horses as a group (or a herd) as part of an ongoing program; and that treatment of those horses with anabolic steroids is appropriate. Dr Clarke also gave evidence about the registration of drugs with the APVMA.
Dr van Eps says when treating a horse the veterinarian must establish a therapeutic purpose or use for treatment and to do this requires establishing a therapeutic need that also requires an individual examination of the horse. Dr van Eps says that anabolic steroids are not appropriate as a first line treatment and the APVMA registration is for the sole purpose of registration of the drug and not a guideline for how the drug can be used.
Evidence of Dr van Eps
In summary, it is Dr van Eps’ evidence that a veterinarian surgeon must establish a therapeutic need for any treatment regime. This requires an examination of the animal to establish a diagnosis then the development of a therapeutic plan.
Dr Griffin states that the drugs were administered for tissue repair and as an appetite stimulant for live weight gain prior to pre-training and training.[517] In his affidavit Dr Griffin stated that he examined the 14 horses and made a clinical note stating ‘spellers’, as well as recording the names of each of the horses, their sex and the different anabolic steroids used in each horse. The therapeutic purpose for the drugs being administered to the 14 horses was ‘appetite stimulation and weight gain’.[518]
[517]Statement of agreed and disputed facts, Exhibit 1, p 4.
[518]Affidavit of Victor Leslie Griffin, Exhibit 1, doc 2.7, p 1511, [26].
For the allegation to be proven we must find that for each horse to be treated Dr Griffin did not identify a therapeutic purpose, was not and could not reasonably have been satisfied in all of the circumstances that the drugs were necessary for a therapeutic purpose; and he did not adequately assess or examine each horse.[519]
[519]Submission for the applicant Board dated 11 April 2016.
We have found based on the expert evidence of Dr van Eps that to establish a therapeutic purpose for any treatment a veterinary surgeon must establish a therapeutic need for treatment where there is clinical justification and documentation. We have also found based on Dr van Eps’ evidence that in every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment; and that reasonable veterinary practice requires an examination of the animal to establish a diagnosis and there should be careful follow up on the outcomes of treatments.
We have found based on Dr van Eps’ evidence that where a number of horses have been treated for the same symptoms it is unlikely the number of horses treated would present symptoms which would require exactly the same treatment and dosage for each horse at the same time; and that it would be unusual to treat without evaluation. We have accepted the evidence of Dr van Eps that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each one and not treat in a blanket fashion.
Dr Griffin says that he did treat the horses for a therapeutic purpose and the treatment given by him was for a purpose that falls within s 153 of the Health Regulations.[520]
[520]Supplementary submissions on behalf of the registrant filed on 10 April 2016, p 4, p 5.
Dr Griffin gave oral evidence about allegation 4.12 at the hearing summarised as follows:[521]
a) The horses injected received either Filybol or Boldebal-H plus Stanazol;
b) The difference between Boldebal-H and Filybol is that Filybol has a less androgenic effect and that is why it is used more with fillies and colts;
c) Dr Griffin identified from his notes the names of the horses injected with Stanazol and Filybol (a capital ‘F’ was used to identify the drug Filybol). Those horses were going out for a break so the drugs were to assist with live weight gain;
d) The horses that received Boldebal-H (with Stanazol) were geldings that ‘just needed that extra androgenic effect which is what Boldebal-H has over the Filybol injection’;
e) When questioned about whether observations or opinions were received from the person in charge of the property, Dr Griffin stated ‘Robert Smith identified those horses for me and informed me that they were going out for a spell so that we can inject them without being concerned about the rules of racing’;
f) Dr Griffin made the ultimate decision to inject the horses;
g) Dr Griffin spent two hours (estimate) on the property and did not assess other horses at the property on that day;
h) The horses injected were in the stables and were about to go out into the paddocks.
[521]T5-37 to T5-41.
During cross-examination Dr Griffin referred to the ‘deficiency’ in the soils and grains and referred to the ‘highly cropped’ nature of the property.[522] Dr Griffin was questioned about the different reason for some of the horses receiving Filybol and some receiving Boldebal-H. Dr Griffin stated the horses that received Filybol were colts and geldings and a horse received Boldebal-H.[523] Dr Griffin stated that he saw ‘a difference between giving those geldings and colts a bigger boost or a more androgenic effect than the Filybol’.[524]
[522]T5-96, L17-26.
[523]T6-72, L31-34.
[524]T6-72, L36-37.
Dr Griffin was questioned about his examination of the horses treated by him. Dr Griffin stated that the horses were all contained in the stables. Dr Griffin was questioned about how he will ‘track’ how a particular horse treated by him has responded. Dr Griffin stated that ‘the response will be noted as to whether there’s a follow-up injection for that horse’.[525]
[525]T6-74, L11-13.
We find that on balance Dr Griffin was not and could not reasonably have been satisfied that each horse to be treated required the anabolic steroids for a therapeutic use or purpose as part of the animal’s treatment because no existing symptoms were present and Dr Griffin’s examination and evaluation of each horse was limited.
We have found that in every case before treatment, a veterinary surgeon must establish whether the animal in fact needs treatment and this requires an examination and evaluation where there is clinical justification and documentation. We have found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system. We have also found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition.
The evidence shows that Dr Griffin’s decision to treat was based on his knowledge of the horses and his experience as a racehorse veterinarian. There is no indication that Dr Griffin’s decision to treat was, as provided in the AVA Code, based on sound evidence-based science and practice; and that he has physically examined and monitored each horse.
Dr Griffin accepted during cross-examination that horses with different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid.[526]
[526]T5-46, L1-4.
We find that Dr Griffin’s assessment or examination of each horse to be treated was limited because he did not adequately examine and follow up on the outcomes of treatment. We find that an individual examination and follow up treatment of each horse based on the expert evidence before us is good veterinary practice and is warranted in all of the circumstances where the same dose of anabolic steroid is to be administered to different horses and each horse (being of different weights and gender) may not respond the same way to the same dose of drug.
We find that in the absence of an individual examination and follow up, Dr Griffin could not reasonably have been satisfied that the drug was necessary to treat a diagnosed medical condition or, for the purposes of s 153 of the Health Regulations, a ‘disease...’, or that the ‘use’ (of the drug) was to ‘[influence]…a physiological process’. We find that for the purposes of s 180(1)(c) of the Health (D&P) Regs, Dr Griffin could not be reasonably satisfied that each horse to be treated did in fact need treatment because he did not adequately examine and follow up each horse.
The Tribunal has carefully considered Dr Griffin’s evidence and the expert evidence about this allegation. We are satisfied that the allegation has been proven and find that on 26 June 2012 Dr Griffin supplied a combination of Stanazol and Filybol or Bolebal H to various horses in circumstances where he did not or could not adequately establish a therapeutic purpose for administering the drug. For the purposes of allegation 4.12, we find that Dr Griffin supplied restricted drugs for no legitimate therapeutic purpose.
We find that Dr Griffin’s conduct was, as held in Pillai’s case, ‘a deliberate departure from accepted standards’ or was conduct that ‘although not deliberate’ does portray indifference and an abuse of the privileges which accompany registration as veterinary surgeon. In every case before treatment, a veterinary surgeon must establish whether the animal in fact requires treatment. A veterinary surgeon is required under the AVA Code to consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice. This requires a veterinary surgeon to establish whether the animal in fact needs treatment through examination and follow up treatment.
We have found that it is not good practice to treat a number of horses for the same symptoms and with the same dose of anabolic steroid without examination and evaluation. We have found that in the absence of an individual examination and follow up of each horse to be treated Dr Griffin could not be satisfied the drug was necessary. In this matter, Dr Griffin administered anabolic steroids to various horses for the same symptoms and with the same dose of drug for each horse. Dr Griffin administered the drugs in circumstances where he did not adequately examine and follow up each horse and where each horse (being of a different weight and gender) may not respond the same way to the same dose of drug. We find that for allegation 4.12, Dr Griffin’s conduct fell below the standard expected by his professional peers and the public and was for the purposes of s 22F of the Act ‘misconduct in a professional respect.’
Conclusion
The allegations referred by the Board relate to Dr Griffin’s conduct in his practice as a veterinary surgeon. In some instances, Dr Griffin treated both racing and sporting horses based on his professional and personal knowledge of the horses, the properties and his long-standing relationships with the trainers and owners.
There is no evidence before us of a complaint giving rise to the Referral or evidence of any adverse consequences including proof of injury or loss arising from Dr Griffin’s treatment of the horses.
We have determined the allegations as particularised in the Referral to the required civil standard after considering the expert evidence, Dr Griffin’s evidence, the AVA Code and relevant legislation. Under the AVA Code, a veterinary surgeon is required to, amongst others, consider the health, welfare and respectful treatment of the animal; and procedures and recommendations should be based on sound evidence-based science and practice.
We found based on the expert evidence of Dr van Eps and Dr Clarke, that there are standards in the conduct and practice of a veterinary surgeon particularly in relation to treating racing and sporting horses. We preferred the evidence of Dr van Eps and made findings about what is required by a veterinary surgeon when treating an animal such as a racing or sporting horse with an anabolic steroid; and Bute Paste.
In summary, we found that in every case before treatment, a veterinary surgeon must establish whether the animal needs treatment. We found that this requires an examination and evaluation where there is clinical justification and documentation; and there should be careful follow up on the outcomes of treatment. We found that an examination of a horse in particular racehorses includes taking temperature, pulse, respiration, examination from nose to tail, palpating and running hands over limbs, paying particular attention to the musculoskeletal system.
In relation to treating a horse with an anabolic steroid, we found that an anabolic steroid is not an appropriate first line treatment in a horse that may be suffering a condition. In relation to treating a horse with Bute Paste that contains the active ingredient phenylbutazone, we found that there are potential adverse effects that must be considered. We found that an animal treated with phenylbutazone for weeks or months requires monitoring with blood parameters and clinical evaluation. We also found that horses of different weights and of different gender are not going to respond the same way to the same dose of an anabolic steroid; and phenylbutazone.
We found that where a number of racing and sporting horses have been treated for the same symptoms it is unlikely that the number of horses treated would present symptoms which would require exactly the same treatment and dosage of drug for each horse at the same time; and that it would be unusual to treat without evaluation. We also found that horses that have come out of race training have individual and very different problems and it would be reasonable veterinary practice to evaluate each individual horse and not treat in a blanket fashion.
In relation to each of the allegations, we found that Dr Griffin’s examination and evaluation of each horse treated was inadequate. We found Dr Griffin’s conduct for each allegation was ‘misconduct in a professional respect,’ for the purposes of s 22F of the Act because his practice or conduct as a veterinary surgeon fell below the standard expected by his professional peers and the public.
The following allegations in relation to the administration and/or dispensing of anabolic steroids that involved in some instances Dr Griffin personally injecting horses at various properties and in other instances leaving tubs of Nitrotain paste to be administered orally by the trainers or owners at the properties are proven by the Board:
·Allegation 4.8 (same as 6.9) – P. Healy’s property
·Allegation 4.9 (same as 6.11) – N. Osbourne’s property
·Allegation 5.6 (same as 6.17) – T. Gollan’s property
·Allegation 6.1 - Tomorrows Stud Farm
·Allegations 6.2, 6.4 and 6.8 – A. Eggleston’s property
·Allegations 6.3, 6.5, 6.10, 6.12, 6.14, 6.15 (same as 6.16) and 6.19 (same as 6.20) – Allandale Stud Farm
·Allegation 6.6 – G. Gavin’s property
·Allegations 6.7, 4.2, 6.13 and 4.12 - R. Smith’s property
We found that the allegations relating to the supply of Bute Paste to be administered to various horses by the trainer or owner at the properties for the following allegations are proven:
·Allegation 4.6 – C. Martin’s property
·Allegation 4.14 (same as 6.18) – W. Lawson’s property
In relation to each of the allegations 4.6, 4.8, 4.9, 4.14, 5.6, 6.1, 6.2, 6.4, 6.8, 6.3, 6.5, 6.10, 6.12, 6.14, 6.15, 6.19, 6.6, 6.7, 4.2, 6.13 and 4.12 contained in the Referral, we find that a ground for disciplinary action has been established against Victor Leslie Griffin in that he has behaved in a way that constitutes ‘misconduct in a professional respect’ pursuant to s 22F of the Act.
Dr Griffin admits that by failing to keep adequate records in accordance with s 25 of the Veterinary Surgeons Regulation 2002 (Qld) he has engaged in ‘misconduct in a professional respect’.
If the Tribunal decides a veterinary surgeon has engaged in misconduct in a professional respect, certain action may be taken as prescribed under s 22E of the Act. The Board and Dr Griffin should be given an opportunity to address the Tribunal further in relation to the appropriateness of any action to be taken as a result of our findings and Dr Griffin’s admission in relation to record keeping. We make directions accordingly.
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