VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and BARKER
[2018] WASAT 111
•31 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: VETERINARY SURGEONS ACT 1960 (WA)
CITATION: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and BARKER [2018] WASAT 111
MEMBER: MS C WALLACE (SENIOR MEMBER)
MS L EDDY (MEMBER)
MR D MARSHALL (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 31 OCTOBER 2018
FILE NO/S: VR 56 of 2018
BETWEEN: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
KATHERINE ELIZABETH JEAN BARKER
Respondent
Catchwords:
Veterinary surgeon - Unprofessional conduct - Entering false clinical records - Diversion of Diazepam for self-administration
Legislation:
Medicines and Poisons Act 2014 (WA)
Veterinary Surgeons Act 1960 (WA), s 23(2a), s 23(2aa), s 23(2aa)(e)
Veterinary Surgeons Regulations 1979 (WA), reg 2(1), reg 28, reg 28(2)(c), reg 30(1), reg 30(2)
Result:
Practitioner guilty of unprofessional conduct
Representation:
Counsel:
| Applicant | : | Ms Naylor |
| Respondent | : | Non Appearance |
Solicitors:
| Applicant | : | Tottle Partners |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Briginshaw vs Briginshaw (1938) 60 CLR 336
Tillmanns Butcheries Pty Ltd vs Australasian Meat Industry Employees' Union (1979) 42 FLR 331
Veterinary Surgeons' Board of Western Australia vs Alexander [2013] WASC 136
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter involves an application made by the Veterinary Surgeons' Board of Western Australia (the Board) pursuant to s 23(2)(a) of the Veterinary Surgeons Act 1960 (WA) (VS Act) alleging that Dr Katherine Elizabeth Jean Barker (Dr Barker), being the respondent in the proceeding, is guilty of unprofessional conduct as a veterinary surgeon.
At all material times the respondent was a registered veterinary surgeon under the VS Act employed at the Halls Head Small Animal Clinic in Halls Head.
In essence the allegations relate to the entering of false clinical records in relation to the prescribing of Diazepam which quantities were diverted to Dr Barker for her own use.
The Board seeks a finding by the Tribunal of unprofessional conduct and a penalty be imposed pursuant to s 23(2aa)(e) of the VS Act that the name of Dr Barker be removed from the Register of Veterinary Surgeons' of Western Australia.
The facts set out in the Board's application seem to be substantially admitted by Dr Barker although she raises some mitigating circumstances.
Unfortunately, Dr Barker did not participate in the proceeding. Dr Barker now resides interstate and although in the early stages of the proceeding was contactable by email, during the course of the proceeding Dr Barker stopped responding to email correspondence from the Board and the Tribunal. However, given that Dr Barker advised the Board that she would accept service of the application by email, in lieu of personal service, the Tribunal accepted that email address as Dr Barker's preferred mode of contact. The Tribunal has not been advised of any alternative contact details for Dr Barker.
The proceeding was listed for mediation on 30 May and again on 25 June 2018. However the mediation could not proceed in the absence of participation by Dr Barker. Programming orders were therefore made which provided for Dr Barker to file a response to the Notice of Allegations together with documents relied upon and witness statements. Dr Barker failed to comply with the programming orders.
The matter was initially listed for hearing on 5 November 2018, however, the hearing was vacated and an order was made by the Tribunal pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) that the matter be determined entirely on the documents.
The Tribunal is satisfied that Dr Barker had a fair opportunity to participate in the proceedings but has chosen not to do so.
The Tribunal had the following documents before it:
1)the Board's Notice of Allegations dated 12 April 2018;
2)the Board's Bundle of Documents for Hearing dated 9 August 2018 which comprised the following:
a)Halls Head Small Animal Clinic animal records (pages 1-14);
b)Department of Health documents (WA) (pages 1526);
c)transcript of record of interview conducted by Department of Health (WA) investigators with Dr Barker on 5 December 2017 (pages 27-44);
d)letter from the Board to Dr Barker dated 2 January 2018 (pages 45-46); and
e)Statutory Declaration of Dr Barker dated 4 January 2018 together with an attachment (pages 47-50).
The Board's allegations
The Board alleges that Dr Barker's conduct fell substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency such that Dr Barker is guilty of unprofessional conduct as a veterinary surgeon pursuant to reg 28(2)(c) of the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations) and s 23(4)(e) of the VS Act or alternatively that Dr Barker's conduct would reasonably be regarded as disgraceful or dishonourable by registered veterinary surgeons of good repute and competence such that the Tribunal should, for the purposes of s 23(2aa) of the VS Act, be satisfied that Dr Barker is guilty of unprofessional conduct as a veterinary surgeon.
The conduct the subject of the allegations is as follows:
a)On seven separate occasions Dr Barker made clinical records of the supply or prescription of Diazepam in circumstances where she knew that they were false;
b)Dr Barker diverted the quantities of Diazepam which she falsely recorded to herself for use when selfadministering;
c)Dr Barker forged another veterinary surgeon's signature on one of the Diazepam prescriptions;
d)Dr Barker purchased quantities of Diazepam when Dr Barker knew that her authority under Medicines and Poisons Act 2014 (WA) (MPA Authority) had been suspended and she was not authorised to administer, possess, prescribe, supply or use Diazepam; and
e)Dr Barker attempted to cover up the making of one of the alleged false clinical records by requesting that a former colleague and veterinary nurse at Mandurah South Veterinary Clinic provide false information if questioned about it.
Unprofessional conduct
The application for disciplinary action was made pursuant to s 23(2a) of the VS Act, which relevantly provides as follows:
The Board may allege to the State Administrative Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon.
Section 23(4)(e) of the VS Act provides assistance as to the meaning of the expression 'unprofessional conduct as a veterinary surgeon' as follows:
Without limiting the meaning of the expression, unprofessional conduct as a veterinary surgeon, a registered veterinary surgeon is guilty of such unprofessional conduct if that person
(e)does not observe the standards of professional conduct as prescribed [.]
As to the prescribed standards of professional conduct, reg 28 of the VS Regulations provides as follows:
(1)For the purposes of section 23(4) of the Act, this regulation sets out the standards of professional conduct to be observed by registered veterinary surgeons.
(2)A registered veterinary surgeon engages in unprofessional conduct if he or she
…
(c)otherwise falls substantially short of the standards of professional conduct that could reasonably be expected to be observed by members of the veterinary profession of good repute and competency.
In assessing whether the conduct of a veterinary surgeon falls substantially short of the standard of professional conduct for the purposes of s 23(2a) of the VS Act, the Tribunal must first establish what the standard is; Veterinary Surgeons' Board of Western Australia vs Alexander [2013] WASC 136 at [119].
The VS Regulations do not define the term 'substantial'. It ought to be given its ordinary and natural meaning in the context of its use in the VS Act. The Macquarie Dictionary Online in its definition of 'substantial' includes the following:
1.of a corporeal or material nature; real or actual.
2.of ample or considerable amount, quantity, size etc[.]
It is also useful to have regard to Deane J in Tillmanns Butcheries Pty Ltd vs Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, albeit in a different context:
[Substantial] can … mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size.
The departure from the standards of professional conduct clearly needs to be significant and not inconsequential. The Board bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw vs Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. Thus the facts need only be established on a balance of probabilities, however, the nature and seriousness of the allegations are relevant to the question as to whether the facts are proved to the reasonable satisfaction of the Tribunal.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts when determining whether the allegations against Dr Barker have been made out; Briginshaw at 361.
Relevant findings
Unfortunately, given the lack of participation in the proceeding by Dr Barker the Tribunal did not have the benefit of a statement of agreed facts. However, Dr Barker in her Statutory Declaration dated 4 January 2018 admitted to all of the allegations made by the Board, which allegations were based on facts asserted by the Board. The facts asserted by the Board also appear to be substantially agreed by Dr Barker in her record of interview with the Department of Health (WA) which forms part of the Board's Bundle of Documents for Hearing. The Tribunal therefore accepts that those facts are made out and they are set out in detail below.
At all relevant times (May to November 2017) Dr Barker was a registered veterinary surgeon employed at the Halls Head Small Animal Clinic (Clinic).
As a registered veterinary surgeon, Dr Barker was authorised to:
a)administer, possess, prescribe, supply or use a medicine under the MPA; and
b)under the VS Regulations to supply or prescribe a Schedule 4 poison as the term is defined in the MPA.
In Dr Barker's profession as a registered veterinary surgeon she administered, possessed, prescribed and supplied and used Diazepam which is a benzodiazepine and a medicine as defined in the MPA as well as a scheduled drug as defined in reg 2(1) of the VS Regulations. Further, in relation to the supply or prescription of Diazepam, Dr Barker was required to:
a)make a clinical record as required by reg 30(1) of the VS Regulations; and
b)make a clinical record as required by reg 30(2) of the VS Regulations that includes:
i)the name and address of the owner of the animal;
ii)sufficient details to identify the animal being treated;
iii)the clinical history of the animal including the results of any examination of, or diagnostic test carried out on, the animal; and
iv)the quantity of Diazepam supplied or prescribed.
On seven separate occasions during the period MayNovember 2017 Dr Barker made clinical records of the supply or prescription of Diazepam at the Clinic as set out in the Table below.
DATE
NAME OF ANIMAL
QUANTITY OF TABLETS OF DIAZEPAM
STRENGTH OF DIAZEPAM
1 August 2017
Dean Barker
30
5 mg
13 August 2017
Harry Ellis
20
2 mg
28 August 2017
Rosie Ellis
30
2 mg
28 August 2017
Frankie Place
15
5 mg
25 September 2017
Dean Barker
60
5 mg
6 October 2017
Harry Ellis
30
2 mg
9 October 2017
Rosie Ellis
30
2 mg
TOTAL QUANTITY OF TABLETS 215
As noted, Dr Barker has admitted that she falsely made the clinical records set out in the Table above and admits that she did not supply or prescribe the relevant Diazepam to any of the animals identified in her clinical notes. The quantities of Diazepam were diverted to Dr Barker for use when selfadministering.
On 11 November 2017 Dr Barker forged the signature of Dr Julie Willmore, a registered veterinary surgeon at the Clinic, on a prescription for 50, 5 milligram strength Diazepam tablets for a blue heeler dog named 'Charlie' which belonged to Dr Barker's sister. Dr Barker's position is that she produced the prescription from the Clinic's electronic system and as Dr Willmore was already logged on the prescription printed in her name. It is not alleged by the Board that the prescription was diverted to Dr Barker for selfadministration. Dr Barker's position is that the prescription was given to her sister (pages 35-36 of the Board's Bundle of Documents for Hearing).
On 15 November 2017:
a)Dr Barker's MPA Authority to administer, possess, prescribe, or supply or use Benzodiazepines was suspended by the Chief Executive Officer of the Department of Health (WA) with immediate effect; and
b)Dr Barker was notified in writing of the suspension.
On 15 November 2017 Dr Barker purchased and imported:
a)60, 10 milligram strength Diazepam tablets from India; and
b)120, 10 milligram strength Diazepam tablets from Romania,
for use when selfadministering.
At 11:37 am on 15 November 2017 Dr Barker sent the following facebook message to Ms Alicia Place, a former colleague and veterinary nurse at Mandurah South Veterinary Clinic:
I dispensed some Diazepam 2 or 5 mg to Frankie but took them myself as I was so stressed I did it in July the dept of health is now searching my house for Diazepam but there isn't any here, can you please tell them that you got those tablets? I am so sorry to drag you into this, but they might call.
The Diazepam imported by Dr Barker was addressed to her and delivered to the Clinic on or about 7 December 2017 and was seized by the Department of Health (WA) and destroyed.
Dr Barker admits that she sent the message to Ms Place in an attempt to cover up the false record of supplying 15 tablets to Ms Place's dog Frankie which were in fact diverted to her for selfadministering.
As mentioned briefly earlier in these reasons, Dr Barker referred in her Statutory Declaration to matters by way of mitigation. Although those matters are more so relevant to any penalty to be imposed, for completeness they ought to be referred to. Essentially Dr Barker stated that during June-October 2017 she became dependent on Diazepam, to which she had previously been addicted. The recourse to Diazepam followed Dr Barker discovering her mother's deceased body following her suicide in March 2017. Dr Barker states she was suffering, during the relevant period of time, from posttraumatic distress disorder and anxiety.
Determination
The Tribunal accepts the facts as set out above other than [33] which is unsubstantiated by medical evidence.
The Tribunal notes that there was no need for expert evidence to be filed in the proceeding and accepts that as a matter of common sense, Dr Barker's conduct by:
a)making the clinical records as set out in the Table at [25] knowing them to be false;
b)diverting the quantities of Diazepam referred to in the Table at [25] to herself when selfadministering;
c)forging Dr Willmore's signature on Charlie's prescription;
d)purchasing and importing Diazepam when Dr Barker knew that her MPA Authority had been suspended; and
e)sending a message to Ms Place in order to cover up the making of a false clinical record in relation to Ms Place's dog Frankie with the intention of persuading Ms Place to give false information
falls substantially short of the standards of professional conduct that could be reasonably expected by members of the veterinary profession of good repute and competency.
In the Tribunal's view there could be no question that the relevant conduct falls substantially short of the standards reasonably expected by others in Dr Barker's profession. The conduct taken as a whole could not, in the view of the Tribunal, be described as inconsequential or minor or inadvertent in nature. The conduct, irrespective of the mitigating circumstances, was undertaken intentionally by Dr Barker, her explanation being a relapse into her addiction of Diazepam. The Tribunal finds that a registered veterinary surgeon of good repute and competency would not intentionally make false clinical records, divert Schedule 4 drugs for the purpose of selfadministration, forge signatures of colleagues on prescriptions, import Schedule 4 drugs absent the requisite authority or attempt to elicit false corroboration from former colleagues. To do so clearly substantially falls below the expected standard of conduct in the profession.
We therefore find that the Board has proven that Dr Barker engaged in unprofessional conduct.
Orders
1.The Tribunal finds the following disciplinary matters exist and that Dr Katherine Elizabeth Jean Barker is guilty of unprofessional conduct in that:
(a)On seven separate occasions Dr Katherine Elizabeth Jean Barker made clinical records of the supply or prescription of Diazepam in circumstances where she knew that they were false;
(b)Dr Katherine Elizabeth Jean Barker diverted the quantities of Diazepam which she falsely recorded to herself for use when selfadministering;
(c)Dr Katherine Elizabeth Jean Barker forged another veterinary surgeon's signature on one of the Diazepam prescriptions;
(d)Dr Katherine Elizabeth Jean Barker purchased quantities of Diazepam when she knew that her authority under Medicines and Poisons Act 2014 (WA) had been suspended and she was not authorised to administer, possess, prescribe, supply or use Diazepam; and
(e)Dr Katherine Elizabeth Jean Barker attempted to cover up the making of one of the alleged false clinical records by requesting that a former colleague and veterinary nurse at Mandurah South Veterinary Clinic provide false information if questioned about it.
2.The Veterinary Surgeons' Board of Western Australia is to file and serve written submissions on the Tribunal and Dr Katherine Elizabeth Jean Barker as to the orders and penalty by 20 November 2018.
3.Dr Katherine Elizabeth Jean Barker is to file and serve written submissions and any supporting evidence in relation to orders and penalty by 11 December 2018.
4.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C WALLACE, SENIOR MEMBER
31 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: VETERINARY SURGEONS ACT 1960 (WA)
CITATION: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and BARKER [2018] WASAT 111 (S)
MEMBER: MS C WALLACE (SENIOR MEMBER)
MS L EDDY (MEMBER)
MR D MARSHALL (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 DECEMBER 2018
FILE NO/S: VR 56 of 2018
BETWEEN: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
KATHERINE ELIZABETH JEAN BARKER
Respondent
Catchwords:
Veterinary surgeon Unprofessional conduct Whether fit and proper person to remain a veterinary surgeon Removal from register Costs
Legislation:
Medicines and Poisons Act 2014 (WA)
State Administrative Tribunal Act 2004 (WA), s 61, s 61(4), s 62, s 87(1)
Veterinary Surgeons Act 1960 (WA), s 23(2aa)(a)-(f), s 23)4)
Veterinary Surgeons Regulations 1979 (WA), reg 2(1), reg 30(1), reg 30(2)
Result:
Removal from Register
Category: B
Representation:
Counsel:
| Applicant | : | Ms Naylor |
| Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | Tottle Partners |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v A Practitioner [2010] WASC 13
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)
Quinn v Law Institute of Victoria [2007] VSCA 122
Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105 (S)
Veterinary Surgeons' Board of Western Australia and Barker [2018] WASAT 111
Veterinary Surgeons' Investigating Committee v Howe (No 2) [2003] NSWADT 156
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In Veterinary Surgeons' Board of Western Australia and Barker [2018] WASAT 111 (Barker), the respondent, Dr Katherine Elizabeth Jean Barker, was found, pursuant to s 23(4) of the Veterinary Surgeons Act 1960 (WA) (VS Act), to have engaged in unprofessional conduct as a veterinary surgeon.
The Tribunal found Dr Barker guilty of unprofessional conduct on the basis of the following findings:
(a)On seven separate occasions during the period 1 August and 9 October 2017 Dr Barker made clinical records of the supply or prescription of Diazepam in circumstances where she knew that the records were false and in each instance the quantities of Diazepam were diverted to Dr Barker for self-administration; Barker at [25]-[26];
(b)Dr Barker forged another veterinary surgeon's signature on one of the Diazepam prescriptions; Barker at [27];
(c)Dr Barker imported 180, 10 mg strength Diazepam tablets from India and Romania with the intention of self-administering when she knew her authority under the Medicines and Poisons Act 2014 (WA) (MPA Authority) had been suspended; Barker at [28][29]; and
(d)Dr Barker attempted to cover up the making of one of the false clinical records by requesting a former colleague to provide false information if questioned about the matter; Barker at [30] and [32].
Also relevantly the Tribunal made the following findings:
(a)Diazepam is a benzodiazepine and a medicine as defined in the Medicines and Poisons Act 2014 (WA) (MPA) as well as a scheduled drug as defined in reg 2(1) of the Veterinary Surgeons Regulations 1979 (WA) (VS Regulations); Barker at [24];
(b)In relation to the supply or prescription of Diazepam, Dr Barker was required to make a clinical record in accordance with reg 30(1) and reg 30(2) of the VS Regulations; Barker at [24];
(c)Dr Barker's conduct was undertaken intentionally on the basis of a relapse into her addiction of Diazepam; Barker at [33] and [36]; and
(d)Dr Barker's conduct fell substantially short of the standards reasonably expected by others in Dr Barker's profession and a registered veterinary surgeon of good repute and competency would not intentionally make false clinical records, divert Schedule 4 drugs for the purpose of self-administration, forge signatures of colleagues on prescriptions, import Schedule 4 drugs absent the requisite authority or attempt to illicit false corroboration from former colleagues; Barker at [36].
Relevant procedural matters
Although the Tribunal made orders requiring written submissions on penalty together with supporting documentation to be filed by both parties, only the applicant, the Veterinary Surgeons' Board of Western Australia (Board), filed submissions with the Tribunal dated 21 November 2018.
Although the Tribunal has received no contact from Dr Barker, Dr Barker did contact the Board by email on 6 November 2018, such email which was forwarded to the Tribunal by the Board. The Tribunal notes that Dr Barker contacted the Board from the email address which the Tribunal has been using to contact Dr Barker and to which all orders of the Tribunal have been sent.
In the email of 6 November 2018 Dr Barker asserts that she has been the victim of identity theft since leaving Perth and has not been able to access her accounts. She further notes that she is homeless and unemployed in New South Wales. Dr Barker states that the results of the Tribunal's decision in Barker have been published in the media and as a result:
… I find this humiliating and incredibly damaging to my mental health. If you truly do want me to recover from everything that's happened to me over the last 3 years, you will ensure that article is removed and allow me to present my defence to the SAT.
Following receipt of the 6 November 2018 email from the Board, the Tribunal emailed Dr Barker at the same email address she had used to communicate with the Board and offered to make available to her a pro bono solicitor from the Tribunal's Pro Bono Scheme to assist in the preparation of submissions on penalty and possible representation at a mediation in respect of penalty. The Tribunal has received no response from Dr Barker to this communication.
The Tribunal received an email from the solicitors representing the Board on 21 November 2018 which was copied to Dr Barker inviting the Tribunal to exercise its powers pursuant to s 61 and s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to treat the information contained in the Board's submissions as a protected matter and/or to de-identify Dr Barker when publishing its penalty decisions and reasons.
On 22 November 2018 the Tribunal made the following orders:
1.The respondent has liberty to provide to the Tribunal and to the applicant, by 6 December 2018, written submissions together with supporting documentation in respect to any application pursuant to s62 of the State Administrative Tribunal Act 2004 (WA) seeking orders for non-publication in relation to the Tribunal's pending penalty decision.
2.If the Tribunal receives an application pursuant to Order 1 above, the applicant shall, by 14 December 2018, provide responsive written submissions and any supporting documentation to the Tribunal and to the respondent.
3.Any application made pursuant to s62 of the State Administrative Tribunal Act 2004 (WA) will be determined entirely on the documents.
The Tribunal notes that Dr Barker has not made an application seeking nonpublication in this proceeding.
The non-publication power of the Tribunal is statutory in nature and therefore it is important to set out the relevant sections of the SAT Act in full as follows:
61.Hearings to be public; exceptions
…
(4)The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so
(a)to avoid endangering the national or international security of Western Australia or Australia; or
(b)to avoid damaging inter-governmental relations; or
(c)to avoid prejudicing the administration of justice; or
(d)to avoid endangering the physical or mental health or safety of any person; or
(e)to avoid offending public decency or morality; or
(f)to avoid endangering property; or
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
62.Publishing evidence etc. given at proceeding, restrictions as to
(1)This section applies to
(a)any evidence given before the Tribunal; and
(b)the contents of any documents produced to the Tribunal; and
(c)any information that might enable a person who has appeared before the Tribunal to be identified.
(2)Anything to which this section applies that is protected matter is not to be published.
(3)On the application of a party or on its own initiative the Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
(4)The Tribunal's power to make an order under subsection (3) is exercisable by
(a)a legally qualified member; or
(b)the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member.
The principles that apply to non-publication orders are well-established and are usefully discussed in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 from which the following can be distilled:
(a)The Tribunal does not apply common law as the Courts do but must source its power solely from s 61(4) and s 62 of the SAT Act;
(b)On a proper statutory interpretation of those provisions of the SAT Act it is clear that they were intended to limit orders for non-publication to those circumstances where it is necessary to avoid the particular consequences identified in s 61(4)(a)-(g) or if the order is found to be necessary in the interests of justice (s 61(4)(h));
(c)For the Tribunal to be satisfied that it is necessary to make a non-publication order it must find that there is a real and substantial connection between the publication of the material and the relevant adverse consequence identified in s 61(4) or the detrimental effect upon the interests of justice. A remote possibility of harm arising from an indirect or tenuous connection will not satisfy the statutory requirement of the order that it is 'necessary'; and
(d)The particular consequences specified in s 61 only apply to consequences of a significant or of a material kind and not consequences that are minor in character, transient or ephemeral.
The Tribunal assumes that the Board is suggesting a nonpublication order pursuant to s 61(4)(d) in order to avoid endangering the physical or mental health or safety of Dr Barker. To be able to make such an order the Tribunal must find that it is necessary to do so on the basis that the publication of the penalty orders and reasons will have a significant detrimental impact on Dr Barker's mental health and/or personal safety.
Absent any application and supporting documentation it is the Tribunal's view that it ought not to make an order for non-publication for the following reasons:
(a)There is no supporting evidence before the Tribunal that Dr Barker is currently suffering from a diagnosed mental health condition which may be detrimentally impacted by the publication of the Tribunal's penalty decision. In applications of this nature the Tribunal is ordinarily provided with medical reports which are able to satisfy it that it is necessary to make an order for nonpublication when considering an application based on s 61(4)(d) of the SAT Act (Legal Profession Complaints Committee v A Practitioner [2010] WASC 13 at [20]);
(b)A number of the matters referred to in the Board's penalty submissions have already been referred to in the Tribunal's published decision of Barker and have therefore already been published; and
(c)Even if the Tribunal made a non-publication order to deidentify Dr Barker in this decision, given the publication of Barker recently and the fact that the Tribunal has not published any other decision in respect to a veterinary surgeon since Barker was published, it would be reasonably open to members of the public and the media to connect the two decisions which would likely render any order for non-publication nugatory.
For the reasons set out above the Tribunal has therefore decided not to exercise its powers pursuant to s 61 and s 62 of the SAT Act.
Range of disciplinary sanctions
Section 23(2aa)(a)-(f) of the VS Act provides for a range of disciplinary sanctions where a veterinary surgeon is found guilty of unprofessional conduct. The Tribunal may:
(a)reprimand the veterinary surgeon;
(b)require the veterinary surgeon to give an undertaking to refrain from such conduct as may be specified by the Board;
(c)fine the veterinary surgeon an amount not exceeding $1,000;
(d)order the suspension of the registration of that veterinary surgeon for such period not exceeding 12 months, as the Tribunal thinks fit;
(e)order the removal of the name of that veterinary surgeon from the Register; and/or
(f)order the imposition of conditions as to the registration of that veterinary surgeon or restrictions on the practice of veterinary surgery by that person.
Disciplinary sanctions general principles
The vocational regulation jurisdiction of the Tribunal is protective rather than punitive, and such protection is in respect of both members of the public and the profession itself by maintaining and preserving high professional standards (Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105 (S) (Alexander (S)) at [7]).
When the Tribunal considers the appropriate sanction to be imposed, the matter must be considered at the time of making the sanction and not by reference to the date of the unprofessional acts themselves (Alexander (S) at [8]).
The Tribunal's decision in Alexander (S) at [10] sets out twelve matters which may require consideration in determining an appropriate sanction. The matters are interrelated and are not mutually exclusive and the list of the matters is not exhaustive. The twelve matters are set out below (citations omitted):
1)any need to protect the public against further misconduct by the practitioner;
2)the need to protect the public through general deterrence of other practitioners from similar conduct;
3)the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
4)in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner;
5)whether the practitioner has breached any:
(a)Act;
(b)Regulations;
(c)Guidelines or Code of Conduct, issued by the relevant professional body; and
(d)whether the practitioner has done so knowingly;
6)whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
7)whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;
8)the practitioner's disciplinary history;
9)whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community;
10)the desirability of making available to the public any special skills possessed by the practitioner;
11)the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of veterinary practice; and
12)the Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal jurisdiction because the jurisdiction is protective not punitive.
In matters involving veterinary surgeons, an additional matter of particular importance is the welfare of animals; Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [110].
General matters relating to imposition of sanctions
Where there is a choice of sanctions, the Tribunal will choose the particular sanction which, in its view, maximizes the protection of the public; Quinn v Law Institute of Victoria [2007] VSCA 122 at [31].
As previously noted, the primary objective of the vocational regulation jurisdiction of the Tribunal is the protection of the public by the maintenance of proper professional standards. It follows therefore, that the impact on the practitioner which an appropriate penalty would have, and personal hardship to the practitioner, are necessarily secondary considerations; Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47].
At times, a global approach to sanction is appropriate rather than the imposition of separate sanctions for each unprofessional act; this is particularly so where the facts of the case are inextricably interrelated; Alexander (S) at [16].
Removal from the register
As mentioned previously, sanctions imposed in the vocational regulation jurisdiction of the Tribunal are not punitive in nature but are protective. Therefore when the Tribunal considers removal of a practitioner from the register it considers whether to do so is necessary in order to protect the public and to maintain proper professional standards and the reputation of the profession; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [192]; Johnson at [103] and Veterinary Surgeons' Investigating Committee v Howe (No 2) [2003] NSWADT 156 at [27].
Clearly the sanction of removal from the register is the most serious of the available sanctions and as a result the Tribunal should approach the removal from the register with caution and having been satisfied that the unprofessional conduct is so serious in and of itself that it evidences that the practitioner is permanently or indefinitely unfit to practice as a veterinary surgeon (Alexander (S) at [19]).
Twelve matters for consideration
Is there a need to protect the public against further misconduct by Dr Barker?
(a) Is there any animal welfare issue?
There is no suggestion of any harm suffered by any animal as a result of the unprofessional conduct and therefore this consideration is not relevant to penalty.
(b)Specific findings of unprofessional conduct engaged in by Dr Barker
In the Tribunal's view, there is a need to protect the public from the conduct of a practitioner in respect of deliberate falsification of clinical records in respect of scheduled drugs. The purpose of the VS Regulations is to ensure proper and safe handling of certain regulated drugs. Adherence to the VS Regulations is a necessary protection in respect of the proper use of certain categories of drugs for those veterinary surgeons authorised under the MPA to administer, possess, prescribe, supply or use those drugs. The authorisation is a privilege and responsibility and therefore comes with statutory obligations. The failure to adhere to those obligations, intentionally, for one's own interests is conduct in this Tribunal's view which presents a risk to the public. The fact that the conduct continued in circumstances where the MPA Authority was suspended, together with the fact that Dr Barker took action to cover up the conduct, supports the position that the Tribunal should regard her as professionally unreliable.
Honesty of practitioners is of utmost importance. This was emphasised in the decision of Johnson at [113] where the Tribunal noted the following:
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 Priestly JA at 86). That applies equally to veterinary practitioners[.]
In Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [26] in the context of a discussion of striking off a legal practitioner from the Roll, the Court stated:
Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice'. Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner (citations omitted).
In addition, part of the protection of the public is the deterrence of other practitioners in the profession from engaging in the same conduct. There is a clear need to deter others from engaging in the type of conduct engaged in by Dr Barker and therefore when determining a relevant sanction the Tribunal needs to send a clear message to the profession at large that this type of conduct is not condoned.
Is there a need to protect the public through general deterrence of other practitioners?
This consideration interrelates with the first in respect of the need for protection of the public. As already mentioned, other practitioners clearly need to be deterred from engaging in similar conduct. The need for general deterrence is therefore a significant factor for the Tribunal to consider in determining a relevant penalty.
The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards
This consideration again interrelates with the second consideration but adds a further element in respect to maintaining public confidence in the profession. In the Tribunal's view this involves consideration as to whether the sanction imposed will assist in maintaining the confidence of the community in the professional standards of the particular vocation.
Dr Barker's conduct is of the most serious kind. It not only included falsification of clinical records in respect of scheduled drugs, it also included steps taken to cover up such actions, forging a colleague's signature on a prescription and importing scheduled drugs following suspension of her MPA Authority. In totality the conduct is of a most unprofessional and dishonest kind.
Such conduct damages the good reputation of the profession and there is therefore a need for the imposition of an appropriate sanction that sends a clear message to the public and the profession of the Tribunal's emphatic disapproval of the conduct. By sending such a message through the imposition of an appropriate penalty, the Tribunal hopes to assist in maintaining public confidence in the service they receive from other practitioners in the profession.
This consideration is therefore of relevance in relation to the Tribunal's consideration of an appropriate penalty.
Dishonest conduct
The Tribunal found that Dr Barker's conduct was intentional and dishonest.
A finding of dishonesty requires a consideration by the Tribunal as to whether the public and Dr Barker's fellow practitioners can place reliance on her.
Honesty goes to the heart of many professions including the veterinary profession (see [28] above).
In the Tribunal's view the dishonesty evidenced by Dr Barker is of upmost concern and would be of ongoing concern both to members of the public and also to fellow practitioners in the profession for the following reasons:
(a)Dr Barker intentionally falsified clinical records on a number of occasions for her own benefit;
(b)Dr Barker forged a former colleague's signature on a prescription without her colleagues knowledge;
(c)Dr Barker asked a former colleague to give false information in order to protect her own selfinterests; and
(d)Dr Barker sought to import scheduled drugs in breach of the suspension of her MPA Authority.
It would be extremely difficult, in the Tribunal's view, in the knowledge of the above facts, for Dr Barker to regain the confidence of fellow practitioners in the profession and no doubt members of the public seeking professional services from Dr Barker.
The dishonest nature of the unprofessional conduct is therefore significant in relation to the Tribunal's consideration of an appropriate penalty particularly in circumstances of the ensuing likely lack of trust of Dr Barker as a result of her unprofessional conduct and the implication of that on her ability to continue to practice.
Breach of an Act and Regulations
As already noted earlier in these reasons, the making of intentionally false clinical records in respect of scheduled drugs also constitutes a breach of the VS Act and VS Regulations. In addition, Dr Barker breached the MPA in her conduct of forging a colleague's signature on a Diazepam prescription.
It cannot be in dispute that those in medical related professions hold a privileged position in being authorised to possess, prescribe, administer and supply scheduled drugs. Indeed they are entrusted with that privileged position; Johnson at [109].
The regulatory scheme in relation to scheduled drugs is proscriptive for very good reasons. Scheduled drugs are not available to the public absent obtaining a prescription from an authorised practitioner. Many scheduled drugs pose dangers, including the possibility of addiction. Thus the necessity for a strict regime in respect to the possession, prescription, administration and supply of scheduled drugs is essential for the protection of the public.
Those involved in medical related professions are the most qualified to understand and appreciate the nature and the need for the regulatory scheme which applies to scheduled drugs. It is therefore most concerning when those practitioners within those professions depart from the regulatory scheme and even more concerning when they do so intentionally for their own self-interests.
Dr Barker's explanation for her behaviour can only be gleaned from her statutory declaration dated 4 January 2018 which attached a typed document prepared by Dr Barker (the Board's Bundle of Documents for Hearing, pages 46-49) given that she did not participate in the proceeding. The explanation offered by Dr Barker appears to be a relapse into her Diazepam addiction. Although Dr Barker also mentions mental health conditions including clinical depression and posttraumatic stress disorder, no medical evidence has been filed in the proceeding to support the position that Dr Barker is currently suffering from a diagnosed mental health condition or has previously suffered from one.
The primary explanation therefore appears to be Dr Barker's selfreported Diazepam addiction. That fact in and of itself evidences the dangers of access to drugs such as Diazepam and the need therefore to strictly adhere to the regulatory scheme which is in place in order to protect the public.
The breach of the VS Act, VS Regulations and the MPA are relevant matters in determining the appropriate sanction.
Whether the conduct demonstrates incompetence
There is no suggestion of incompetence on the part of Dr Barker and therefore this consideration is not relevant to penalty.
Was the incident isolated?
The facts as established show that Dr Barker's conduct does not fall into the category of being one isolated incident. In respect to the making of false clinical records, that occurred on seven separate occasions between August and October 2017. In addition, Dr Barker engaged in further unprofessional conduct in relation to the forging of her colleague's signature on a prescription, an attempt to cover up her conduct and by importing Diazepam when her MPA Authority had been suspended.
Therefore the unprofessional conduct comprises a series of actions rather than one isolated incident, and thus is of a more serious nature. In addition, the unprofessional conduct only stopped following Dr Barker's MPA Authority being suspended on 15 November 2017 and her importation of Diazepam being seized and destroyed. Absent those actions the Tribunal has no evidence before it to suggest that the offending conduct would have ceased.
The repetitive nature of the conduct and the decision to continue to engage in it by Dr Barker is relevant to the Tribunal's consideration of an appropriate sanction.
The practitioner's disciplinary history
Dr Barker was first registered as a veterinary surgeon in Western Australia on 21 January 2009.
Dr Barker has previously been found to be guilty of unprofessional conduct; VR 177 of 2014 - Veterinary Surgeons' Board and Barker. That matter was settled at mediation at the Tribunal and final orders were made by consent of the parties on 23 February 2015 which found Dr Barker guilty of unprofessional conduct by:
(a)diverting 228, 5 mg Valium tablets for selfadministration and 70-100, 1 mg Xanax tablets for her family members between July 2013 and February 2014 (Valium and Xanax and benzodiazepine derived Schedule 4 drugs); and
(b)breaching an undertaking and misleading the applicant.
The penalty imposed on Dr Barker was as follows:
1)Her registration as a veterinary surgeon was suspended for a period of three months; and
2)Conditions were imposed on Dr Barker's registration as a veterinary surgeon which included:
(a)completing a professional ethics course to address ethical decision-making and the creation of a personal Ethics Protection Plan;
(b)provision of quarterly reports for a 12 month period from Dr Barker's medical practitioner and clinical psychiatrist and a monthly written selfassessment report from Dr Barker; and
(c)a restriction on Dr Barker ordering or purchasing scheduled drugs and a restriction on her ability to prescribe or handle benzodiazepine derivatives except under supervision of a registered veterinary surgeon.
The conditions imposed on Dr Barker's registration expired approximately 10 months before the commencement of the unprofessional conduct the subject of the present proceeding.
The previous disciplinary proceeding is relevant to the Tribunal's consideration of an appropriate sanction for the following reasons:
(a)The unprofessional conduct is substantially the same in that in both disciplinary matters Dr Barker was found guilty of the diversion of a benzodiazepine drug for selfadministration;
(b)The sanctions imposed in proceeding VR 177 of 2014, including the three month suspension and conditions imposed on Dr Barker's registration, did not deter her from engaging in the offending behaviour again;
(c)Not only did the previous sanction not deter Dr Barker from engaging in the same or similar conduct again, she did so in circumstances where she knew or ought to have known the significance of the behaviour and the possible consequences. This evidences a clear persistence in the behaviour by Dr Barker irrespective of the consequences to Dr Barker and/or others;
(d)The reoccurrence of the behaviour tends against the Tribunal being able to find on behalf of Dr Barker a level of insight such as would be necessary for the Tribunal to have confidence in Dr Barker not engaging in the behaviour into the future; and
(e)The previous unprofessional conduct also appeared to take place during a period of time where Dr Barker was suffering from drug addiction and a 'stressful time in her personal professional life' (Minute of Consent Order in VR 177 of 2014 dated 20 February 2015, page 2, para (a)). It therefore appears that Dr Barker has not been able to rehabilitate or develop effective coping mechanisms in times of stress despite the attempt by the Board and the Tribunal to assist Dr Barker in this regard through the imposition of conditions which included a learning plan allowing for self-exploration and a mental health plan (the Minute of Consent Order in VR 177 of 2014, Annexures A and B).
What the Tribunal can ultimately draw from the above is that it appears that Dr Barker was not deterred by the sanction previously imposed on her and therefore she poses a risk of engaging in the conduct in the future.
The previous disciplinary history of Dr Barker is clearly relevant to the consideration of an appropriate penalty in this matter, particularly the fact that certain sanctions were imposed previously which did little to protect the public from a reoccurrence of the offending behaviour by Dr Barker. This is particularly so when considering the short lapse of time between the conditions imposed being removed and the commencement of the unprofessional conduct found in Barker.
Whether Dr Barker understands the error of her ways including an assessment of any remorse and insight
Remorse and insight are relevant of course in respect of the consideration as to whether a practitioner has learnt from the error of their ways and as a result is less likely to engage in the conduct again.
It is common cause and accepted in the vocational regulation jurisdiction that those practitioners who evidence a lack of insight are at risk of repeating the offending behaviour and adversely impacting the good reputation and professional standards of the profession. Insight and remorse are therefore relevant matters in considering what sanction ought to be imposed. In particular, a complete lack of understanding of the impropriety of the practitioner's conduct and absence of insight is important when the Tribunal considers, as a disciplinary sanction, whether the practitioner ought to be removed from the register; Johnson at [104]; Love at [19].
Insight and remorse are difficult to assess in the context of a complete lack of participation in the proceeding by Dr Barker. However, the Tribunal can find that concessions were made by Dr Barker admitting all allegations at an early stage and her acknowledgment in her statutory declaration that she fully accepts the allegations against her and 'currently have undertaken not to practice [sic] until these matters are determined'.
Dr Barker also states in her statutory declaration that she has sought drug counselling and psychiatric counselling as well as psychological counselling. However, as previously noted, the Tribunal has received no evidence to support this statement by Dr Barker. Indeed, the Board provided the Tribunal with a letter from Dr Proud, Consultant Psychiatrist, dated 6 February 2018 which noted that Dr Proud has only seen Dr Barker on one occasion and that she had failed to attend a followup appointment. It is therefore difficult for the Tribunal to make an assessment of Dr Barker's insight, which may have been evident by seeking professional assistance.
The best indicator of remorse, contrition and insight is of course a practitioner abstaining from further engaging in the unprofessional conduct. The Tribunal's concern in respect of this matter is that the conduct has been ongoing, and in fact was engaged in again only 10 months following removal of conditions imposed on Dr Barker's registration. This calls into question whether Dr Barker has genuine insight and remorse. This consideration is therefore of relevance and in the Tribunal's view is a significant factor in relation to penalty.
Desirability of making available to the public any special skills
Dr Barker is not a specialist veterinarian and the Tribunal is not aware of any particular special skill. Therefore this consideration is not relevant to penalty.
Personal circumstances
In relation to Dr Barker's personal circumstances during the period of time that she engaged in the unprofessional conduct, she asserts in the attachment to her statutory declaration that in or about March 2017 circumstances triggered her post-traumatic stress disorder and despite enjoying working at the Halls Head Small Animal Clinic from May 2017, her mental health was affected by long working hours and her 'significant personal issues'.
As has previously been noted, there is no medical evidence before the Tribunal to support the position that Dr Barker has a diagnosis of posttraumatic stress disorder. Dr Barker asserts that she developed the condition following the traumatic experience of being involved in the 2014 disciplinary investigation and proceeding at the Tribunal.
Dr Barker also asserts that in or about July 2017 she became clinically depressed which progressively worsened with suicidal ideations. Dr Barker then states that she relapsed into her Diazepam dependency.
As previously noted, the offending behaviour appears to be directly linked to Dr Barker's self-reported dependency on Diazepam.
In relation to Dr Barker's personal circumstances at present, there is very little which is known. In her most recent communication with the Board Dr Barker states that she has been the victim of identity theft and that she is currently homeless and unemployed in New South Wales. However, other than the email sent from Dr Barker to the Board on 6 November 2018 there is no evidence before the Tribunal in respect of those matters and therefore, the Tribunal is unable to place much weight on them.
It does not appear that Dr Barker is asserting that her mental health illnesses have triggered or caused her to engage in the unprofessional conduct and thus they are not personal circumstances which help to explain the conduct.
If Dr Barker is indeed homeless at the moment, that certainly explains her lack of participation in the proceeding which is unfortunate. However, as previously noted, the Tribunal has attempted to contact Dr Barker and offer assistance, which offer has not been taken up.
In Dr Barker's present circumstances, she will not be financially impacted by any sanction imposed by the Tribunal given that she is not currently engaged in the profession. In addition the Tribunal notes that her registration is due to expire on 31 December 2018.
In summary, in the Tribunal's view, there are no matters of a personal nature which would override the application of any other relevant consideration in imposing an appropriate sanction.
Other matters
There are no other matters outside of those already addressed that the Tribunal considers needs to be taken into account in determining penalty.
The penalty decision
In the Tribunal's view it has no option other than to remove Dr Barker from the register. We find that Dr Barker is not a fit and proper person to remain a veterinary surgeon and that her unprofessional conduct is of such a serious nature that it shows that she is permanently or indefinitely unfit to practice. We make this finding taking into account all of the relevant factors identified above and in particular because of the repetitive and dishonest nature of the conduct and Dr Barker's previous similar disciplinary history. The Tribunal is satisfied that the need to protect the public and the public's confidence in the profession require that this sanction be imposed.
In addition, the Tribunal is not confident that other sanctions would be sufficient to deter Dr Barker from further engaging in the offending behaviour so as to protect the public. Despite being involved in previous disciplinary proceedings and serving a three month suspension and having conditions imposed on her registration, Dr Barker sought to engage in similar conduct. The Tribunal therefore has no confidence that if similar penalties were imposed in this proceeding, that they would be sufficient in achieving the objectives of this jurisdiction, that is, the protection of the public and maintaining professional standards in the vocation.
It is a difficult decision to reach and one that has required some careful consideration. However, in the Tribunal's view, having considered all of the matters that the Tribunal is required to consider, the most appropriate penalty in all of the circumstances is removal of Dr Barker from the register.
Costs
The Board incurred costs as a consequence of Dr Barker's unprofessional conduct and payment of costs does not form part of the sanction itself (Detata at [41] and [66]).
The starting position in relation to costs in the Tribunal is that, normally, each party bears its own costs of a proceeding; s 87(1) of the SAT Act. However, the Tribunal has a discretion to award costs to a party in certain circumstances and that discretion is usually exercised in favour of professional disciplinary applicants if the practitioner is found to have acted unprofessionally; Alexander at [95].
In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) the Tribunal stated at [30], in respect of the exercise of the discretion to award costs in the vocational regulation jurisdiction:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
These observations have been cited with approval in Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35] and Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) at [10].
Therefore, as the Board has been successful in the allegations of unprofessional conduct as against Dr Barker and has acted reasonably in its conduct of the proceeding, it is appropriate that Dr Barker pays the Board's reasonable costs incurred in the proceeding.
In respect of the amount of costs to be fixed by the Tribunal, the Tribunal takes a robust and relatively broad brush approach; Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]. It does not tax or assess costs in the way that courts do. However, although fixing costs involves a broad brush approach, the Tribunal still needs to be satisfied that the costs incurred are reasonable and not excessive.
In this regard the Board claims costs fixed in the amount of $5,000. However, in the circumstances where the Board was saved costs on the basis that the hearing was vacated and the matter was determined on the documents and also taking into account that Dr Barker will lose her profession as a result of the orders made by the Tribunal and is possibly at the moment unemployed and homeless, the Tribunal has decided to fix costs at the amount of $2,500.
Orders
1.Pursuant to s 23 (2aa)(e) of the Veterinary Surgeons Act 1960 (WA), Dr Katherine Elizabeth Jean Barker's name is hereby removed from the Register.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) Dr Katherine Elizabeth Jean Barker shall pay to the Veterinary Surgeons' Board of Western Australia its costs fixed in the amount of $2,500 within 21 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Wallace, (SENIOR MEMBER)
19 DECEMBER 2018
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