VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and HARRIS - [2017] WASAT 100

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: VETERINARY SURGEONS ACT 1960 (WA)

CITATION: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and HARRIS [2017] WASAT 100

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS H LESLIE (MEMBER)
DR A VIGANO (SENIOR SESSIONAL MEMBER)

HEARD: 2 TO 4 AUGUST 2016 AND 13 TO 14 FEBRUARY 2017

DELIVERED : 20 JULY 2017

FILE NO/S: VR 127 of 2015

BETWEEN: VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Applicant
AND
ROBERT JAMES HARRIS
Respondent

Catchwords:

Disciplinary proceedings - Unprofessional conduct - Veterinary surgeon - Standard of conduct - Deplorable or disgraceful - Inaccuracies in Poisons Register - Failure to keep clinical records - Dissenting judgment

Legislation:

Poisons Act 1964 (WA), Sch 8
Poisons Regulations 1965 (WA), reg 44, reg 47, reg 47(5)
Sentencing Act 1995 (WA), s 39(2)(c), s 45
Veterinary Surgeons Act 1960 (WA), s 23
Veterinary Surgeons Regulations 1979 (WA), reg 2(1), reg 28, reg 30

Result:

Application allowed in part
Practitioner guilty of unprofessional conduct on one count

Summary of Tribunal's decision:

Dr Harris is a veterinary surgeon practising under the name of Harris Vet Services Pty Ltd and Veterinary Eye Referrals Pty Ltd. He also practises from a number of other veterinary clinics and hospitals, including the Mount Lawley and Inglewood Veterinary Centre in Inglewood and the Greenfields Vet Hospital in Greenfields.
The Veterinary Surgeons' Board of Western Australia brought an application to the Tribunal, alleging that Dr Harris is guilty of unprofessional conduct as a veterinary surgeon on the following grounds:
1) Dr Harris received quantities of Codeine tablets at the Mount Lawley Vet Centre but failed to record the receipt of those tablets in the relevant Codeine register (Allegation One).
2) Dr Harris inaccurately recorded (Allegation Two) or failed to record (Allegation Three) in the relevant Codeine register at the Greenfields Vet Hospital quantities of Codeine tablets supplied by him to patients.
3) Dr Harris failed to make any or accurate clinical records in respect of certain patients for whom Codeine tablets were supplied or prescribed by Dr Harris at the Greenfields Vet Hospital (Allegation Four).
The Board said that the conduct complained about amounts to unprofessional conduct, which is relevantly defined in the Veterinary Surgeons Act 1960 (WA) as conduct falling substantially short of the standards of professional conduct that could be reasonably expected to be observed by members of the profession of good repute and competency. Alternatively, the Board said that Dr Harris is guilty of unprofessional conduct on the basis that his conduct was inexcusable and would be regarded as deplorable by other registered veterinary surgeons.
The Tribunal considered each of the allegations in turn.
In relation to the Mount Lawley allegation (Allegation One), the Board did not satisfy the Tribunal that Dr Harris' conduct amounted to a breach of the Poisons Regulations 1965 (WA).
In relation to the allegation that Dr Harris failed to keep clinical records in respect of certain patients (Allegation Four), the Tribunal found that Dr Harris had in fact produced the 'missing' clinical records. The facts which formed the basis of that allegation were therefore not made out.
In relation to the allegation that Dr Harris inaccurately recorded the supply of codeine in the Greenfields codeine register (Allegation Two), the Tribunal found, based on Dr Harris' admissions, that the facts forming the basis of those allegations were made out. The Tribunal, with the presiding member dissenting, found that Dr Harris' conduct would be regarded as falling substantially short of the standard of professional conduct observed or approved by members of the profession of good repute and competency and as disgraceful by practitioners of good repute and competence generally, and that Dr Harris was therefore guilty of unprofessional conduct as defined in the Veterinary Surgeons Act 1960. The majority made the relevant findings with limited evidence on the basis that the nature of the relevant conduct was such that it would be universally condemned as unprofessional and universally regarded as disgraceful by the profession, and that the Tribunal could take notice of that fact. (The majority made similar findings using a differently worded test relied upon by the Board but ultimately disagreed that that test was the applicable test.)
In relation to the allegation that Dr Harris failed to record in the Greenfields codeine register quantities of codeine tablets supplied by him to patients (Allegation Three), the Tribunal again found, based on Dr Harris' admissions, that the facts forming the basis of that allegation were made out. However, after hearing from the expert witnesses, the Tribunal was unable to determine the existence and content of any relevant standard of conduct. The Tribunal therefore did not find that Dr Harris' conduct fell substantially below any such standard of conduct. The Tribunal also found that it could not conclude, on the basis of the evidence before it, that Dr Harris' conduct would be regarded as disgraceful or dishonourable by practitioners of good repute and competence generally.
The Tribunal by majority found Dr Harris guilty of unprofessional conduct in respect of Allegation Two but the application was otherwise dismissed.

Category: B

Representation:

Counsel:

Applicant: Mr G Abbott
Respondent: Mr J Skinner

Solicitors:

Applicant: Tottle Partners
Respondent: Borello Graham

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Dekker v Medical Board of Australia [2014] WASCA 216
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Qidwai v Brown [1984] 1 NSWLR 100
Re A Solicitor [1972] 1 WLR 869
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
Veterinary Surgeons' Board of Western Australia v Alexander [2014] WASC 486

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Under s 23(2a) of the Veterinary Surgeons Act 1960 (WA) (VS Act), the Veterinary Surgeons' Board of Western Australia (Board) may allege to the Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon. A veterinary surgeon will be guilty of unprofessional conduct if, amongst other things, that person does not observe the standards of professional conduct as prescribed.
On 13 July 2015, the Board made an application to the Tribunal under that subsection in respect of the respondent, Dr Robert James Harris (Dr Harris), a registered veterinary surgeon.
The Board's application concerns the maintenance of clinical records and of a register of a certain drug (namely codeine phosphate) (Codeine) by Dr Harris which is required under reg 44 of the now repealed Poisons Regulations 1965 (WA) (Poisons Regulations).
The Board seeks orders that:
1)Dr Harris is guilty of unprofessional conduct as a veterinary surgeon;
2)in respect of each of the acts of unprofessional conduct, Dr Harris be fined $1,000 pursuant to s 23(2aa)(c) of the VS Act;
3)Dr Harris' name be removed from the Register of Western Australian Veterinary Surgeons pursuant to s 23(2aa)(e) of the VS Act; and
4)Dr Harris pay the Board's costs of its application in a sum to be fixed.
The Board filed its statement of facts, issues and contentions on 22 January 2016 (Board's Statement).
Dr Harris then filed his responsive statement of issues, facts and contentions on 17 February 2016.
The matter was heard over five days, on 2, 3 and 4 August 2016 and 13 and 14 February 2017.

The Board's allegations

We immediately digress to note that there is some disparity between the factual allegations made by the Board in its application and the facts subsequently alleged in the Board's Statement.
The Board's initial allegations against Dr Harris are set out in an attachment to the Board's application, in a document entitled 'Notice of Allegations'. The Notice of Allegations itself is structured as a series of separate allegations (in paras 4 to 9 inclusive), followed in each case by 'Particulars', being the facts which the Board says gives rise to the allegations of professional misconduct.
For example, one of the allegations in the Notice of Allegations, at para 7, is that Dr Harris recorded in the relevant clinical records, but failed to record in the relevant Codeine register, a number of transactions involving Codeine. The 'Particulars' of this particular allegation which then follow are described as the transactions set out in Schedule B to the Notice of Allegations. Schedule B, in turn, is a table which specifies a series of consultation dates, the number of Codeine tablets dispensed as provided in the relevant patient's records and the number of Codeine tablets recorded as being dispensed in the relevant register.
When we turn to the Board's Statement, that same allegation is found at para 13, followed by a list or table substantially in the form of Schedule B, but without entries for some of the patients who appeared in the original Schedule B. For example, patient Jess Hunter is shown in Schedule B as having been prescribed 100 tablets on 31 March 2012 with no corresponding entry in the Codeine register. However, that particular allegation does not appear in the equivalent table in the Board's Statement.
The Board during the course of the hearing was questioned about this but did not concede that it was no longer pressing some of the factual allegations set out in its application. Instead, counsel for the Board said that those particulars were now 'being pressed in another category'; T:42; 03.08.16.
The approach that the Tribunal has taken in this proceeding is to regard the Board's allegations against Dr Harris to be those set out in the Notice of Allegations, supported by the particulars set out in the Board's Statement. Indeed, the Board invited the Tribunal to do so; T:8; 02.08.16.
The Board's specific allegations are thus as follows:

Allegation One: Receipt of Codeine at the Mount Lawley Vet Centre

1)On 18 March 2013 and 6 May 2013, Dr Harris contravened reg 47(5) of the Poisons Regulations by making entries in the Mount Lawley & Inglewood Veterinary Centre at 816 Beaufort Street, Inglewood (Mount Lawley Vet Centre) Codeine Register (Mount Lawley Codeine Register) which were false or untrue.
Particulars
a)On 18 March 2013, Dr Harris signed an acknowledgement of receipt of 300 tablets of Codeine sold by Cenvet Australia Pty Ltd (Cenvet) to the Mount Lawley Vet Centre but recorded the receipt of only 200 quantities of Codeine from Cenvet in the Mount Lawley Codeine Register.
b)On 6 May 2013, Dr Harris signed an acknowledgement of receipt of 200 tablets of Codeine sold by Cenvet to the Mount Lawley Vet Centre but recorded the receipt of only 100 quantities of Codeine from Cenvet in the Mount Lawley Codeine Register.

2)On 26 June 2013 and 5 August 2013, Dr Harris contravened reg 44(3) of the Poisons Regulations in failing to record, or cause to be recorded, in the Mount Lawley Codeine Register two transactions involving Codeine.
Particulars
a)On 26 June 2013, Dr Harris signed an acknowledgement of receipt of 200 tablets of Codeine sold by Cenvet to the Mount Lawley Vet Centre but Dr Harris did not record this transaction in the Mount Lawley Codeine Register at all.
b)On 5 August 2013, Dr Harris signed an acknowledgement of receipt of 100 tablets of Codeine sold by Lyppard Australia Limited (Lyppard) to the Mount Lawley Vet Centre but Dr Harris did not record this transaction in the Mount Lawley Codeine Register at all.

3)Dr Harris' conduct particularised in Allegation One, in contravening reg 44(3) and reg 47(5) of the Poisons Regulations:
a)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, and Dr Harris 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
b)alternatively, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons such that the Tribunal should, for the purposes of s 23(2aa) of the VS Act, be satisfied that Dr Harris is guilty of unprofessional conduct as a veterinary surgeon.

Allegation Two: Discrepancies between the Greenfields Codeine Register and Greenfields Clinical Notes

1)During the period between 5 November 2008 and 9 August 2013 (Period), Dr Harris supplied or prescribed Codeine to patients of the Greenfields Vet Hospital at 4/39 Gordon Road, Greenfields (Greenfields Vet Hospital) but in so doing, Dr Harris:
i)contravened reg 47(5) of the Poisons Regulations by making entries in the Greenfields Vet Hospital Codeine Register (Greenfields Codeine Register) which were false or untrue; and
ii)contravened reg 44(4) of the Poisons Regulations in failing to maintain the Greenfields Codeine Register in such a way that at any time the amount of Codeine used or supplied or kept by Dr Harris was clearly apparent.
Particulars
a)The amounts of Codeine that Dr Harris recorded in the Greenfields Codeine Register as having been used, sold or supplied by him to patients were in quantities that were different to the amounts of Codeine that Dr Harris had recorded in the patients' records as having been supplied or prescribed to those patients.
b)Full particulars of the differences between what Dr Harris recorded in the Greenfields Codeine Register and the patients' records are set out in Table 1 later in these reasons.

2)Dr Harris' conduct particularised in Allegation Two, in contravening reg 44(4) and reg 47(5) of the Poisons Regulations:
a)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, and Dr Harris is guilty of unprofessional conduct as a veterinary surgeon pursuant to reg 28(2)(c) of the VS Regulations and s 23(4)(e) of the VS Act; or
b)alternatively, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons such that the Tribunal should, for the purposes of s 23(2aa) of the VS Act, be satisfied that Dr Harris is guilty of unprofessional conduct as a veterinary surgeon.

Allegation Three: Missing entries in the Greenfields Codeine Register

1)During the Period, Dr Harris contravened reg 44(3) of the Poisons Regulations in failing to record, or cause to be recorded, in the Greenfields Codeine Register a number of transactions involving Codeine.
Particulars

Dr Harris did not record, or cause to be recorded, at all in the Greenfields Codeine Register the transactions involving Codeine set out in Table 2 later in these reasons.
2)Dr Harris' conduct particularised in Allegation Three, in contravening reg 44(3) of the Poisons Regulations:
a)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, and Dr Harris is guilty of unprofessional conduct as a veterinary surgeon pursuant to reg 28(2)(c) of the VS Regulations and s 23(4)(e) of the VS Act; or
b)alternatively, was inexcusable and would be regarded as deplorable by other registered veterinary surgeons such that the Tribunal should, for the purposes of s 23(2aa) of the VS Act, be satisfied that Dr Harris is guilty of unprofessional conduct as a veterinary surgeon.

Allegation Four: Missing clinical records

1)In supplying or prescribing Codeine to patients of the Greenfields Vet Hospital during the Period, Dr Harris contravened reg 30(1) and reg 30(2) of the VS Regulations in failing to make any or accurate clinical records of Codeine Dr Harris had supplied or prescribed to a number of patients.
Particulars

Dr Harris did not make clinical records accurately or at all of Codeine supplied or prescribed to the patients listed in Table 3 later in these reasons.
2)Dr Harris' conduct particularised in Allegation Four, in contravening reg 30(1) and reg 30(2) of the VS Regulations, is:
a)deemed by reg 28(2)(a) of the VS Regulations to have engaged in unprofessional conduct; and
b)guilty of unprofessional conduct as a veterinary surgeon pursuant s 23(4)(e) of the VS Act.

3)Alternatively, Dr Harris' conduct particularised in Allegation Four, 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, and Dr Harris is guilty of unprofessional conduct as a veterinary surgeon pursuant to reg 28(2)(c) of the VS Regulations and s 23(4)(e) of the VS Act.

Facts

The following facts are not disputed by either the Board or Dr Harris and these are the Tribunal's findings of fact.
1)At all material times Dr Harris was a registered veterinary surgeon under the VS Act.
2)At all material times the Mount Lawley Vet Centre was registered as a veterinary hospital under the VS Act.
3)At all material times the Greenfields Vet Hospital was registered as a veterinary hospital under the VS Act.
4)Codeine is, and at all material times was:
a)a poison listed in Sch 8 of the Poisons Act 1964 (WA) (Poisons Act); and
b)a scheduled drug as defined in reg 2(1) of the VS Regulations.

Facts specific to Allegation One: Receipt of Codeine at the Mount Lawley Vet Centre and entries in the Mount Lawley Codeine Register

5)During the period between 18 March 2013 and 5 August 2013, inclusive:
a)Dr Harris practised veterinary surgery at the Mount Lawley Vet Centre on Mondays and Fridays of each week; and
b)the Mount Lawley Vet Centre maintained the Mount Lawley Codeine Register to record transactions involving Codeine procured and kept at the Mount Lawley Vet Centre, and administered, sold, used or supplied by any of the veterinary surgeons practising veterinary surgery at that veterinary hospital.

6)On 18 March 2013, Dr Harris:
a)signed an acknowledgement of the receipt of 300 tablets of Codeine sold by Cenvet to the Mount Lawley Vet Centre and which were delivered to the Mount Lawley Vet Centre; and
b)recorded the receipt of only 200 tablets of Codeine from Cenvet in the Mount Lawley Codeine Register.

7)On 6 May 2013, Dr Harris:
a)signed an acknowledgement of the receipt of 200 tablets of Codeine sold by Cenvet to the Mount Lawley Vet Centre and which were delivered to the Mount Lawley Vet Centre; and
b)recorded the receipt of only 100 tablets of Codeine from Cenvet in the Mount Lawley Codeine Register.

8)On 26 June 2013, Dr Harris:
a)signed an acknowledgement of the receipt of 100 tablets of Codeine sold by Cenvet to the Mount Lawley Vet Centre and which were delivered to the Mount Lawley Vet Centre; but
b)Dr Harris not record, or cause the recording of, this receipt in the Mount Lawley Codeine Register at all.

9)On 5 August 2013, Dr Harris:
a)signed an acknowledgement of the receipt of 100 tablets of Codeine sold by Lyppard to the Mount Lawley Vet Centre and which were delivered to the Mount Lawley Vet Centre; but
b)Dr Harris did not record, or cause the recording of, this receipt in the Mount Lawley Codeine Register at all.

Facts specific to Allegations Two, Three and Four: Disparities between the Greenfields Codeine Register and the Greenfields Clinical Notes

10)During the Period:
a)Dr Harris practised veterinary surgery at the Greenfields Vet Hospital on Wednesdays, Thursdays and Saturdays of each week;
b)Dr Harris from time to time administered, sold, used or supplied Codeine when he was practising veterinary surgery at the Greenfields Vet Hospital;
c)the Greenfields Vet Hospital maintained the Greenfields Codeine Register to record transactions involving Codeine procured and kept at the Greenfields Vet Hospital, and administered, used or supplied by any of the veterinary surgeons practising veterinary surgery at that veterinary hospital; and
d)the Greenfields Vet Hospital maintained clinical records for various animals in relation to which any veterinary surgeon performed any act of veterinary surgery at that hospital (Greenfields Clinical Records).

11)Further, during the Period, Dr Harris recorded or caused to be recorded:
a)in the Greenfields Codeine Register amounts of Codeine as having been administered, used, sold or supplied in relation to animals, and
b)in the Greenfields Clinical Records that the respondent had administered, sold, used or supplied amounts of Codeine for animals,

as follows (this is the table we referred to earlier in these reasons as Table 1):

Patient		Number of Codeine tablets recorded in Greenfields		Difference
Records dated	Name	Surname	Codeine Register	Clinical Records as dispensed	(number of Codeine tablets)
1	10/12/2008	Isabel	Arnold	140	100	40
2	19/06/2010	Carter	Baker	200	100	100
3	10/09/2011	Carter	Baker	200	100	100
4	05/06/2013	Kacee	Bamford	20	10	10
5	10/10/2012	Gripper	Barsby	140	100	40
6	31/10/2012	Gripper	Barsby	100	20	80
7	02/02/2013	Frigga	Barsby	200	100	100
8	23/10/2010	Hunter	Bartlett (Bartleet)	140	10	130
9	05/01/2010	Max	Bassett	100	20	80
10	31/07/2010	Tara	Bastow	214	200	14
11	08/12/2012	Bruiser	Bingham	120	20	100
12	24/11/2010	Cyndi (Cyndy)	Biser	100	20	80
13	31/10/2012	Cooper	Bizzell	100	20	80
14	11/09/2010	Calypso	Bond	100	60	40
15	08/07/2010	Dyno	Bone	106	no amount recorded	106
16	15/10/2011	Sheeba	Brearly	200	100	100
(16A)	12/11/2011	Sheeba	Brearley	200	100	100
(16B)	22/09/2012	Sheeba	Brearley	300	100	200
18	28/01/2012	Goldie	Brown	100	30	70
19	13/09/2012	Borris	Bryant	240	50	190
20	22/11/2008	Kira	Chittenden	200	100	100
21	10/01/2009	Kira	Chittenden	200	100	100
22	09/04/2009	Kira	Chittendon (Chittenden)	140	100	40
23	02/05/2009	Pal	Cleminson	100	10	90
24	06/08/2011	Missy	Comtesse	100	40	60
25	23/03/2013	Packo (Paco)	Cooper	30	10	20
26	14/01/2009	Harvey	Coops	150	100	50
27	01/05/2010	Seamus	Cowcher	120	20	100
28	28/08/2010	Seamus	Cowcher	200	100	100
29	19/02/2011	Bart	Currie	200	40	160
30	10/04/2013	Valentine	Dolan	30	20	10
31	06/02/2013	Bonnie	Elias	245	10	235
32	28/07/2010	Chopper	Ewing	156	50	106
33	07/08/2010	Chopper	Ewing	100	50	50
34	17/11/2010	Peach	Fane	100	30	70
35	11/08/2010	Charlie	Finch	160	60	100
36	25/05/2013	Missy	Fischer	120	10	110
37	05/06/2013	Missy	Fischer	20	10	10
38	21/12/2011	Molly	Gorman	120	20	100
39	10/06/2009	Sandy	Govorko	120	20	100
40	07/05/2011	Shanti	Heath	100	40	60
41	01/01/2011	Bella	Hill	140	40	100
42	05/09/2012	Axel	Hine	100	40	60
42A	22/12/2012	Jessie	Hollier	200	100	100
43	30/01/2013	Jess	Hollier	80	70	10
44	03/11/2012	Jess	Hunter	100	20	80
45	21/10/2009	T-Bone	Hutchinson	100	40	60
46	26/02/2013	Rusty	Jacobs	35	10	25
47	16/02/2013	Indi (Indi (6923))	Jurin (K9 Rescue)	75	60	15
48	20/05/2009	Jack	K9 Rescue	118	60	58
49	01/08/2012	Sophie	K9 Rescue	220	20	200
50	24/07/2010	Zebee (Zebe)	Kahler	200	20	180
51	19/10/2010	Zebee (Zebe)	Kohler (Kahler)	160	60	100
52	26/09/2009	Belle	Kennedy	120	60	60
53	25/04/2009	Elle	May	128	30	98
54	29/04/2009	Elle	May	125	30	95
55	07/11/2009	Elle	May	200	100	100
56	13/06/2009	Kylie	McGuire	120	20	100
57	09/03/2013	Bayswater	Miles	79	30	49
58	11/09/2010	Abigail	Nurse	98	30	68
59	23/03/2011	Benje (Benji)	Old	120	10	110
60	10/04/2010	Jackson	Pagett	300	200	100
61	06/03/2013	Monty	Phillips	45	10	35
62	04/07/2012	Molly	Ramshaw	160	40	120
63	29/10/2009	Sam	Riddles	101	100	1
64	14/05/2011	Molly	Rudland	140	20	120
65	31/10/2009	Rolly	Ryan	120	60	60
66	18/01/2012	Macca	Ryan	200	100	100
67	21/05/2011	Lucy	Shaw	140	40	100
68	29/06/2013	Rex	Sing	40	20	20
69	12/05/2010	Lilly	Smith	110	10	100
70	05/03/2011	Tyson	Sparke	100	40	60
71	09/04/2011	Tyson	Sparke	100	40	60
72	15/09/2010	Cash	Stampton	90	20	70
73	15/05/2013	Indy	Stampton	100	30	70
74	01/06/2013	Nala	Stirling	100	40	60
75	05/06/2013	Nala	Stirling	60	40	20
76	05/02/2009	Sasha	Strother	60	40	20
77	03/07/2013	Buster	Styles	30	20	10
78	24/04/2013	Buster (Breaker)	Termann (Terman)	80	20	60
79	15/02/2012	Icey	Underwood	30	20	10
80	12/05/2012	Jessie	Underwood	200	100	100
81	02/05/2009	Cosmo	Verdoes	110	10	100
82	29/01/2011	Jackson	Watkins	120	20	100
83	08/09/2010	Jack	Wheeler	100	10	90
84	25/09/2010	Elly	Whyborn	186	30	156
85	16/02/2010	Saffie	Wilson	100	60	40
86	27/05/2009	Buttons	Wishart	110	20	90
87	10/06/2009	Buttons	Wishart	140	40	100
104	04/02/2012	Oscar	Birmingham (Bermingham)	100	20	80
105	31/12/2011	Sheeba	Brearley	200	100	100
107	03/03/2012	Borris	Bryant	100	40	60
108	18/04/2009	Kira	Chittendon (Chittenden)	112	100	12
109	01/12/2011	Seamus	Cowcher	180	30	150
110	24/08/2011	Winston	Cox (Kirby)	248	100	148
112	29/05/2010	Jack (Hobbs)	Hobbs (Jack)	120	60	60
114	09/03/2011	Chiro (Charro)	McKenzie	150	20	130
117	22/06/2011	Abigail	Nurse	400	40	360
119	30/07/2011	Hamish	Stevens	113	20	93
120	12/05/2012	Icey	Underwood	147	20	127
121	20/06/2012	Jessie	Underwood	200	100	100
13491	4000	8491
TOTAL DIFFERENCE		8491

We digress again at this point to note that the total under the 'Difference' column is by our calculation 8591 and the total under the 'Clinical Records as dispensed' column is by our calculation 4020. In any event, we do not consider that these discrepancies are material.
12)Further, during the Period, Dr Harris:
a)recorded in the Greenfields Clinical Records that Dr Harris had administered, used, sold, supplied or prescribed amounts of Codeine to animals; but
b)did not record, or cause to be recorded, in the Greenfields Codeine Register any transactions in relation to the amounts of Codeine that Dr Harris had administered, used, sold, prescribed for or supplied to those animals,
as follows (this is the table we referred to earlier in these reasons as Table 2):

Patient		Number of Codeine tablets recorded in Greenfields		Difference
Clinical Records dated	Name	Surname	Clinical Records as dispensed	Codeine Register	(number of Codeine tablets)
88	04/07/2009	Dougy	Cowcher	60	No record	60
89	15/08/2009	Dougy	Cowcher	100	No record	100
90	05/09/2009	Dougy	Cowcher	100	No record	100
91	24/09/2009	Dougy	Cowcher	100	No record	100
92	10/08/2011	Winston	Cox	10	No record	10
100	21/02/2009	Sasha	Strother	40	No record	40
101	15/09/2010	Elly	Whyborn	20	No record	20
102	18/09/2010	Elly	Whyborn	20	No record	20
103	09/10/2010	Elly	Whyborn	30	No record	30
480	0	480
TOTAL DIFFERENCE:		480

13)Further, during the Period, Dr Harris recorded, or caused to be recorded in the Greenfields Codeine Register that Dr Harris had administered, used, sold or supplied amounts of Codeine in relation to animals, as follows (this is the table we referred to earlier in these reasons as Table 3):

Patient

Number of Codeine tablets recorded in Greenfields Codeine Register

Codeine Register Date

Name

Surname

111

23/09/2009

Lucy

Glover

100

113

30/06/2010

Cody

Hunter

100

123

01/06/2011

Watson

Whitehead

210

127

09/07/2011

Bess

Wylie

150

128

25/09/2011

Bess

Wylie

100

660

The Board alleges but Dr Harris denies the Board's allegations that he did not make, or cause to be made, any record in the Greenfields Clinical Records at all that related to the entries that the respondent recorded, or caused to be recorded in the Greenfields Codeine Register.

Further facts

The parties also agree that:
1)Dr Harris:
a)is a director of both Harris Vet Services Pty Ltd (HVS) and Veterinary Eye Referrals Pty Ltd (VER);
b)practices from a number of veterinary clinics and hospitals, including the Mount Lawley Vet Centre and the Greenfields Vet Hospital and others throughout Western Australia;
c)is the holder of Permit 23023 issued under the Poisons Act to Dr Harris on behalf of VER (Permit 23023), which applies to premises located at both 33 Hinkler Loop, Maylands (being Dr Harris' home address) and the address of the Mount Lawley Vet Centre);
2)Permit 23023 does not permit Codeine or other Sch 8 drugs procured in accordance with Permit 23023 to be stored at the Mount Lawley Vet Centre premises.
3)Dr Harris maintains a register to record transactions involving Codeine procured and kept at Dr Harris' home address in accordance with Permit 23023, and administered, sold, used or supplied by Dr Harris on behalf of VER (VER Codeine Register).
4)In October 2013, the Department of Health (Department), conducted a recorded interview with Dr Harris.
5)In January 2014, the Department commenced a prosecution of Dr Harris for breaches of reg 44(4) of the Poisons Regulations in respect of 17 entries in the Greenfields Codeine Register over the period from 2 February 2013 to 3 July 2013. These entries are not included in Table 1 and are not part of the Board's allegations against Dr Harris.
6)In March 2014, Dr Harris pleaded guilty to the prosecution in the Mandurah Magistrates Court.
7)The Magistrate imposed a fine in respect of each of the breaches of reg 44(4) of the Poisons Regulations, but also made a spent conviction order under s 39(2)(c) and s 45 of the Sentencing Act 1995 (WA) (Sentencing Act).

Legislation

These are the relevant legislative provisions as enacted at the relevant time.

Veterinary Surgeons Act 1960 (WA)

23.Removing names from Register
…
(2a)The Board may allege to the State Administrative Tribunal that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon.
(2aa)If, in a proceeding commenced by an allegation under subsection (2a), the State Administrative Tribunal is satisfied that a registered veterinary surgeon is guilty of unprofessional conduct as a veterinary surgeon, 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;
(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.

…
(4)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
(a)is an habitual drunkard; or
(b)is habitually addicted to drugs; or
(c)contravenes any of the provisions of section 26A(2) or (3); or
(d)advertises in any way in respect of the profession of a veterinary surgeon otherwise than in accordance with the regulations, or so advertises in contravention of the regulations; or
(e)does not observe the standards of professional conduct as prescribed; or
(f)contravenes any condition or restriction imposed on or in relation to the registration of that person as a veterinary surgeon.

…
(10)The Registrar shall enter in the Register against the entry relating to the person details of any order made against a person in proceedings commenced before the State Administrative Tribunal by an allegation under this section[.]

Veterinary Surgeons Regulations 1979 (WA)

28.Unprofessional conduct (Act s. 23(4))
(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
(a)contravenes any provision of the Act or these regulations; or
(b)is convicted of an offence under -
(i)the Animal Welfare Act 2002; or
(ii)the Artificial Breeding of Stock Act 1965; or
(iii)the Exotic Diseases of Animals Act 1993; or
(iv)the Poisons Act 1964; or
(v)the Stock Diseases (Regulations) Act 1968; or
(vi)the Veterinary Chemical Control and Animal Feeding Stuffs Act 1976;
or

(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.

…
30.Clinical record of supply or prescription of scheduled drug
(1)A registered veterinary surgeon who supplies or prescribes a scheduled drug must make a clinical record of the supply or prescription.
(2)A clinical record required under subregulation (1) must include
(a)the name and address of the owner of the animal; and
(b)sufficient details to identify the animal; and
(c)the clinical history of the animal including the results of any examination of, or diagnostic tests carried out on, the animal; and
(d)the name of the poison; and
(e)the quantity of the poison supplied or prescribed.

(3)The registered veterinary surgeon must keep the clinical record for a period of 7 years.

Poisons Act 1964 (WA)

Schedule 8
All substances listed in Schedule 8 to the [current Poisons Standard] …

The Tribunal notes that Codeine was at all relevant times one such substance.

Poisons Regulations 1965 (WA)

44. Register of drugs of addiction to be kept by sellers
(1)In this regulation
authorised person means a person authorised to manufacture, distribute, sell or possess any drug of addiction, other than a person having possession of a drug of addiction by the authority of a prescription issued by a medical practitioner, nurse practitioner, endorsed podiatrist, dentist or veterinary surgeon to the extent shown in the prescription.
(2)An authorised person must maintain a register of the drugs of addiction manufactured, procured, used, supplied or kept by, or on behalf of, the person.
(3)An authorised person is to record, or cause to be recorded, in the register, in relation to each transaction involving a drug of addiction
(a)the name, quantity and form of the drug; and
(b)the date of the transaction; and
(c)the name and address of each other person or firm involved in the transaction; and
(d)the name of the person who issued the prescription or order; and
(e)the amount of the drug remaining on hand after the transaction; and
(f)if the authorised person is a pharmacist, the identifying number of the prescription; and
(g)if the authorised person is a manufacturer or distributor, an identifying number of the order or other authority on which the drug is supplied,

and, if the register is maintained on paper, is to sign that entry in the register.
…
(4)The register must be maintained in such a way that at any time the amount of each drug of addiction manufactured, procured, used, supplied or kept by the authorised person is clearly apparent.
(5)An authorised person must -
(a)maintain a separate register for each location at which the person manufactures, procures, uses, supplies or keeps drugs of addiction; and
(b)keep the register at that location.

…
47.Records to be kept for 7 years and available on demand
(1)All records, registers, prescription books, invoices and other documents relating to drugs of addiction, and transactions in regard thereto shall be kept by the person licensed or authorised to have drugs of addiction in his possession for not less than 7 years from the latest date on which such record, register, prescription book, invoice or other document was made or acted upon.
(2)The records, registers, prescription books, invoices or other documents and stocks of drugs of addiction on hand shall be made available for inspection on demand by an authorised officer and shall be accounted for, during the inspection, by the person licensed or authorised to have drugs of addiction in his possession.
(3)In the event of a register being lost or destroyed the person to whom such register belongs shall upon becoming aware of the loss or destruction make and forward to the CEO a statutory declaration concerning that loss or destruction and shall immediately take stock of all drugs of addiction in his possession and enter particulars of those stocks in a new register in accordance with the requirements of these regulations.
(4)A person authorised or licensed to procure and be in possession of a drug of addiction, on ceasing to be so authorised or licensed shall, if requested by the CEO, surrender any records, registers, prescription books, invoices or other documents and stocks of drugs of addiction that are in his possession to the CEO.
(5)A person required by these regulations to make and keep records, registers, returns, prescription books, invoices and other documents relating to drugs of addiction shall not make any entry therein which is false or untrue in any particular.
(6)The duplicate copy of the form or printout of the computerised recording system approved by the CEO for the purposes of regulation 52B is a record to be retained for the purposes of this regulation and, in the case of a transaction referred to in regulation 52(3)(h), it shall be kept at the place at which the poison was dispensed for at least one year from the date of the transaction.

Evidence before the Tribunal

Exhibits

The following exhibits were tendered by the parties at the final hearing:

NO:	DESCRIPTION:	TENDERED BY:
1	Applicant's Bundle of Documents dated 22 January 2016 (Applicant's Bundle)	Board
2	Respondent's Bundle of Documents filed on 19 February 2016 (Respondent's Bundle)	Dr Harris
3	Statement of Evidence of Robert Harris filed on 21 April 2016	Dr Harris
4	Bundle of Documents provided by Dr Harris to Veterinary Surgeons' Board as referred to in Exhibit 3 in paras 67 and 68	Board
5	Register of Drugs of Addiction Codeine Tablets	Board
6	Pages 63 and 64 of the Mount Lawley Vet Sch 8 Register	Board
7	Statement of Evidence of Scott Read filed on 18 May 2016	Dr Harris
8	Transcript and Record of Interview of Robert Harris	Dr Harris
9	Statement of Evidence of Jonathan Wood dated 18 May 2016	Dr Harris
10	Expert Statement of Barry Odesnik dated 22 June 2016	Board
11	Expert Statement of Dena Rao filed on 27 June 2016	Dr Harris
12	Joint Statement of Expert Evidence	Board

Witnesses

The Tribunal heard evidence from Dr Harris and from Dr Scott Read and Dr Jonathan Wood, as well as expert evidence from Dr Barry Odesnik and Dr Dena Kathleen Mira Rao. A summary of each of their evidence follows.

Dr Harris

Dr Harris filed a witness statement dated 21 April 2016; Exhibit 3. His witness statement has attached to it:
a)a copy of the Board's newsletter dated December 2013 including an article on the storage and use of Sch 8 medications, such as Codeine;
b)a copy of the Board's newsletter dated Summer 2015 16, including a note titled 'Standard of Clinical Records'; and
c)a copy of a paper presented by the current chair of the Board, Dr Peter Punch, to the Australian Veterinary Associations 2014 annual conference in Perth in May 2014, titled 'Best practice prescribing and record keeping challenges in providing a framework for a diverse profession'.
Dr Harris' testimony is as follows:

Allegation One - receipt of Codeine at the Mount Lawley Vet Centre and entries in the Mount Lawley Codeine Register

Dr Harris has been practising from the Mount Lawley Vet Centre on several days per week since about December 2004 up to and including the present day.
Dr Harris originally kept the VER Codeine Register in an electronic format; document 11 of the Respondent's Bundle.
In or about February 2014, Dr Harris says he became concerned as to whether the electronic format of the VER Codeine Register fully complied with the requirements of the Poisons Act and the Poisons Regulations. As a result, he also started using a handwritten format as well as the electronic format. He also transcribed all of the entries in the electronic format into the handwritten format; document 12 of the Respondent's Bundle.
Dr Harris advises that it had been a regular and common practice over a long period of time, including between March and August 2013, for orders relating to drugs and other veterinary supplies required by either VER or the Mount Lawley Vet Centre to be combined and placed as part of a single request or order to the various different suppliers. The general practice involved a notepad kept at the reception desk of the Mount Lawley Vet Centre, in which any veterinary surgeon could make notes of drugs or other veterinary supplies that were running short or needed to be reordered. The orders were then organised and orders placed on a regular basis with the appropriate suppliers either by fax or email. Usually, the drugs or supplies were delivered later the same day.
Dr Harris states that if he required a particular drug or specialised supplies for his ophthalmology practice (such as intraocular viscoelastic, balanced salt solution, intraocular lenses, microsurgical drapes, irrigation/administration tubing sets, phacoemulsification needles and cassettes, suture materials and Tonopen covers), from a specialist supplier, he would usually place this as a separate order by VER, to be delivered to the Mount Lawley Vet Centre.
For more general practice requirements, including drugs such as Codeine, obtained from general suppliers, Dr Harris says that he would often record these in a notebook kept at the reception desk to be included as part of the combined order placed by the Mount Lawley Vet Centre. Then, when the drugs were delivered, they would be separated into those ordered for the Mount Lawley Vet Centre and those ordered by VER.
Payments for drugs that were ordered by VER as part of a combined order placed by the Mount Lawley Vet Centre were usually reconciled on a fortnightly basis between the Mount Lawley Vet Centre and VER, as part of a general reconciling of costs.
Dr Harris does not dispute the Board's version of the events that took place on 18 March 2013, referred to in Allegation One, but from this he deduces, although he cannot specifically recall, that the order for 300 tablets of Codeine comprised 200 tablets for use by the Mount Lawley Vet Centre and 100 tablets for use by VER, which were delivered to the Mount Lawley Vet Centre premises in accordance with Permit 23023.
Dr Harris does not dispute the Board's version of events on 6 May 2013 referred to in Allegation One. From this he deduces, although he cannot specifically recall, that the order for 200 tablets of Codeine comprised 100 tablets for use by the Mount Lawley Vet Centre and 100 tablets for use by VER, which were delivered to the Mount Lawley Vet Centre premises in accordance with Permit 23023.
Dr Harris does not dispute the Board's version of events on 26 June 2013 referred to in Allegation One. From this he deduces, although he cannot specifically recall, that the order for 100 tablets of Codeine was all for use by VER, for delivery to the Mount Lawley Vet Centre premises in accordance with Permit 23023.
Dr Harris does not dispute the Board's version of events on 5 August 2013 referred to in Allegation One. From this he deduces, although he cannot specifically recall, that the order for 100 tablets of Codeine was all for use by VER, for delivery to the Mount Lawley Vet Centre premises in accordance with Permit 23023.

Allegation Two - discrepancies between entries in Dr Harris' clinical records in relation to Greenfields Vet Hospital and the Greenfields Codeine Register

Dr Harris does not dispute the facts alleged by the Board in Allegation Two, including the differences between the number of Codeine tablets recorded in the Greenfields Codeine Register and the number of Codeine tablets recorded in the Greenfields Clinical Records as alleged by the Board.
In each case where there is a difference between the number of Codeine tablets that he has recorded in the Greenfields Codeine Register and the number of Codeine tablets that he has recorded in the Greenfields Clinical Records, Dr Harris says that the number of Codeine tablets that he actually administered or supplied to the patient is the number recorded in the Greenfields Clinical Records.
Dr Harris gives this explanation.
Dr Harris says that a register for any Sch 8 drug under the Poisons Act, including Codeine, is meant to contain an entry for each transaction in which that the drug in question is administered or supplied to a patient, and each entry should record (amongst other things) both the amount of the drug administered or supplied and the balance or amount of the drug remaining in the safe.
He says that when he went to record an entry in the Greenfields Codeine Register, it was his habit not to simply subtract the number of Codeine tablets that he was administering or supplying from the balance or amount shown by the most recent previous entry as remaining in the safe and enter this amount as the balance or amount then remaining in the safe. He instead checked the actual balance or amount of Codeine tablets in the safe both before and after taking the tablets to be administered or supplied.
On almost every occasion when Dr Harris made an entry in the Greenfields Codeine Register, he says that the balance or amount of Codeine tablets remaining in the safe as recorded in the most recent previous entry in the Greenfields Codeine Register did not match the actual balance or amount of Codeine tablets in the safe before taking the tablets to be administered or supplied.
Dr Harris says that he always correctly recorded in the 'Balance' column of the Greenfields Codeine Register the actual amount of Codeine tablets remaining in the safe after taking the tablets to be administered or supplied.
On each occasion, for the entry in the 'Amount Used Sold or Supplied' column of the Greenfields Codeine Register, Dr Harris says that he recorded the total amount of Codeine tablets apparently used, sold or supplied since the previous entry, rather than the actual amount of Codeine tablets that he actually administered or supplied on each occasion, which he had recorded in the corresponding clinical record.
Dr Harris says that he does not know for certain on each occasion why the balance or amount of Codeine tablets remaining in the safe as recorded in the most recent previous entry in the Greenfields Codeine Register did not match the actual balance or amount of Codeine tablets in the safe before taking the tablets to be administered or supplied. However, based on a combination of discussions during the Period with other veterinary surgeons practising at the Greenfields Vet Hospital, and information arising from an audit of the clinical records for all veterinary surgeons practising at the Greenfields Vet Hospital and the Greenfields Codeine Register carried out by the Department (referred to below), on numerous occasions veterinary surgeons practising at the Greenfields Vet Hospital administered or supplied Codeine tablets without making any entry in the Greenfields Codeine Register.
Dr Harris says that it was only very rarely that the balance or amount of Codeine tablets remaining in the safe as recorded in the most recent previous entry in the Greenfields Codeine Register in fact matched the actual balance or amount of Codeine tablets in the safe. It was so unusual for this to be the case that Dr Harris remembers commenting on several occasions to staff at the Greenfields Vet Hospital when the balance was correct.
On a number of occasions Dr Harris says that he informed the owner (Dr Steve Michaels) and the practice manager (Dr Jonathan Wood) respectively of the Greenfields Vet Hospital that it was apparent the Greenfields Codeine Register was incomplete, as a result of other veterinary surgeons practising at the Greenfields Vet Hospital not having recorded transactions involving Codeine tablets in the Greenfields Codeine Register.
Dr Harris says that steps were taken from time to time at the Greenfields Vet Hospital to remind veterinary surgeons of the need to record transactions involving Codeine tablets in the Greenfields Codeine Register. The need to make a concerted effort to accurately record entries in the Sch 8 registers was, Dr Harris says, a regular topic at the monthly staff meetings.
On several occasions during the relevant time, Dr Harris says that he contacted the Department by telephone to enquire about the correct storage and recording requirements for Sch 8 drugs such as Codeine, but received no reply.
In or about August 2013, the Department conducted an audit of the Greenfields Vet Hospital records to determine, amongst other things, the degree of compliance with the requirements of the Poisons Act and the Poisons Regulations in relation to the recording of supplies of Codeine tablets and other Sch 8 drugs. As far as Dr Harris was aware, this was the first occasion that the Department had inspected the Greenfields Vet Hospital's records.
Dr Harris says he is aware from discussions with other veterinary surgeons at the Greenfields Vet Hospital that, following the Department audit, they all received warning letters from the Department regarding their failures to make entries in the Greenfields Codeine Register. Several of the other veterinary surgeons showed Dr Harris the warning letters that they received.
Dr Harris explains that the outcome of the Department's audit was different in his case. Whereas for other veterinary surgeons, their clinical records showed that they had administered or supplied a higher number of Codeine tablets than indicated by their entries in the Greenfields Codeine Register, in Dr Harris' case his entries in the Greenfields Codeine Register suggested that he had administered or supplied a much higher number of Codeine tablets than was recorded in his clinical records.
Dr Harris did not receive a warning letter from the Department, but was asked to attend an interview with the Department on 30 October 2013 regarding the outcome of the audit. He attended the interview which was with Mark Walding and Neil Mcintosh of the Department, and informed them of all of the matters referred to above regarding the entries that he had made in the Greenfields Codeine Register.
In January 2014, Dr Harris received a Prosecution Notice from the Department for breaches of reg 44(4) of the Poisons Regulations in respect of 17 of his entries in the Greenfields Codeine Register over the period from 2 February 2013 to 3 July 2013.
Dr Harris says that, so far as he is aware, none of the other veterinary surgeons practising at the Greenfields Vet Hospital were prosecuted for breaches of the Poisons Regulations regarding their failures to make entries in the Greenfields Codeine Register.
In March 2014, Dr Harris pleaded guilty to the prosecution in the Mandurah Magistrates Court. He explained to the Magistrate the circumstances in which he had made the entries in the Greenfields Codeine Register, as referred to above, and accepted that the entries in the Greenfields Codeine Register did not show the quantity of Codeine tablets supplied by him in relation to each individual transaction, as required by reg 44(3)(a) of the Poisons Regulations. Dr Harris acknowledged that, as a result, the amount of Codeine tablets supplied by him on each occasion was not clearly apparent from the entries, as required by reg 44(4) of the Poisons Regulations, but required crossreferencing to the corresponding clinical records.
The Magistrate imposed a fine in respect of each of the breaches of reg 44(4) of the Poisons Regulations, but also made a spent conviction order in respect of each of the convictions under s 39(2)(c) and s 45 of the Sentencing Act.

Allegation Three - missing entries in the Greenfields Codeine Register

Dr Harris concedes the facts described in Allegation Three. He did not make an entry in the Greenfields Codeine Register in relation to the administration or supply of Codeine tablets that are recorded in the corresponding clinical record. He can provide no explanation for this. For each of the four patients referred to by the Board, he says that there are other entries by him in the Greenfields Codeine Register, on different dates, and it appears to him that he simply failed to make entries on the occasions that have been identified.

Allegation Four - missing clinical records, indicated by entries in the Greenfields Codeine Register

We mentioned earlier in these reasons that Dr Harris denies that he failed to make the clinical records as alleged by the Board in the Board's Statement. Dr Harris refers to the alleged missing clinical records in respect of the patients named in Table 3 as the Missing Clinical Records.
Dr Harris says that the Missing Clinical Records were identified for the first time in the Board's Statement.
He goes on to say that as part of the Board's application to the Tribunal the Board identified 25 alleged missing clinical records in para 8 and Schedule C of the Notice of Allegations (Original Missing Clinical Records), but Dr Harris points out that these are different to the Missing Clinical Records.
Dr Harris says that at no time prior to the Board's application did the Board identify the Original Missing Clinical Records or make any request to Dr Harris to produce the Original Missing Clinical Records.
Dr Harris says that after the Board's application was served on him, he carried out his own search of the Greenfields Clinical Records and located all but one of the Original Missing Clinical Records. He located some of the Original Missing Clinical Records simply by searching in the Greenfields Vet Hospital's patient database for the patient's name as noted in the Greenfields Codeine Register, but for others either:
a)the patient's name had been misspelled in the entry in the Greenfields Codeine Register, and he located the clinical record by searching for the correct spelling;
b)the patients had died, and the clinical records for those patients were kept in a separate section of the Greenfields Vet Hospital's patient database that the Board had not searched; or
c)the patients' owner had married after the date of the entry in the Greenfields Codeine Register, and the clinical records from the time predating the marriage were filed in the Greenfields Vet Hospital's patient database together with more recent clinical records, under the owners' married names.
Copies of the Original Missing Clinical Records (except for the one that Dr Harris could not locate) were given to the Board during the course of these proceedings.
Dr Harris says that, after receiving the Board's Statement, he carried out his own search of the Greenfields Clinical Records and located all of the Missing Clinical Records.
As to the patients Lucy Glover, Cody Hunter and Watson Whitehead:
a)each was a patient of HVS that he treated over a period of time at several different veterinary practices and on multiple house calls;
b)on the dates referred to in paras 15 and 16 of the Board's Statement, he treated each patient either at Greenfields Vet Hospital or on a house call from Greenfields Vet Hospital and he prescribed Codeine which was dispensed by Greenfields Vet Hospital - which is why there are entries for these treatments in the Greenfields Codeine Register;
c)on or about the dates referred to in paras 15 and 16 of the Board's Statement, he made a clinical record in respect of the treatment of each patient, which was kept by HVS - not by the Greenfields Vet Hospital; and copies of these Missing Clinical Records are at Documents 13, 14 and 15 of the Respondent's Bundle.
As to the patient Bess Wylie:
a)on or about the two dates referred to in paras 15 and 16 of the Board's Statement, Dr Harris made a clinical record in respect of the treatment of Bess Wylie corresponding to each of the entries in the Greenfields Codeine Register;
b)Bess Wylie later died, and Dr Harris located the clinical records for the treatments in question in the Greenfields Vet Hospital's database for deceased patients; and
c)copies of these Missing Clinical Records are at documents 16 and 17 of the Respondent's Bundle.

Other matters

Up until the beginning of 2014, Dr Harris says he frequently and regularly prescribed and dispensed Codeine tablets as part of his treatment of patients as a veterinary surgeon.
Dr Harris says that at no time has he ever administered Codeine for his personal use or for any purpose other than as part of his treatment of patients as a veterinary surgeon.
He says that he has at all times been open and candid about the manner in which he made his entries in the Greenfields Codeine Register. During the time of making the entries, he informed the owner and manager of the Greenfields Vet Hospital about the discrepancies in the Greenfields Codeine Register and the manner in which he made his entries. He says he gave a full disclosure of the matter to the Department during his interview with them in October 2013. He also gave a full disclosure of the matter to the Mandurah Magistrates Court in the course of pleading guilty to the prosecutions that were brought by the Department, and he gave a full disclosure of the matter to the Board in correspondence with the Board relating to the investigation that led to these proceedings.

Dr Harris also reiterates that although he accepts that his entries in the Greenfields Codeine Register did not show the quantity of Codeine tablets supplied by him in relation to each individual transaction, as required by the Poisons Regulations, this information was accurately recorded in the clinical record corresponding to each of the entries in the Greenfields Codeine Register, made at or about the same time as the entry in the Greenfields Codeine Register. As well as being searchable by patient details and date, the clinical records are also searchable by reference to 'Codeine', so the correct information was available at all times.
Dr Harris says that he no longer administers or dispenses Codeine (or any other Sch 8 drugs) and he has no intention of doing so in the future.

Dr Read

Dr Read's statement of evidence is dated 18 May 2016; Exhibit 7.
Since 1993 Dr Read has been the owner of the Mount Lawley Vet Centre.
The Mount Lawley Vet Centre currently employs a total of 18 staff, including five veterinary surgeons.
Dr Read advises that the Mount Lawley Vet Centre has a permit issued under the Poisons Act which applies to the premises at 816 Beaufort Street, Inglewood. The Mount Lawley Vet Centre maintains the Mount Lawley Codeine Register, a register in written form, as required by the Poisons Act, to record transactions involving Codeine procured by and kept at the Mount Lawley Vet Centre, and administered, sold, used or supplied by any of the veterinary surgeons practising at the Mount Lawley Vet Centre.
Dr Read is also aware that Dr Harris holds Permit 23023 in respect of VER which nominates the Mount Lawley Vet Centre as one of the addresses to which Permit 23023 applies, as well as Dr Harris' home address. He knows that Permit 23023 requires that Codeine or other Sch 8 drugs ordered by Dr Harris must be delivered to the Mount Lawley Vet Centre, rather than to his home address, but does not allow those drugs to be stored at the Mount Lawley Vet Centre.
Dr Read says that the practice, by which orders relating to drugs and other veterinary supplies were (and still are) made by both the Mount Lawley Vet Centre and VER, delivered to the Mount Lawley Vet Centre and then allocated or distributed to either the Mount Lawley Vet Centre or VER, is a common and regular process. Dr Read says he is also aware that payments in relation to the orders are regularly reconciled between the Mount Lawley Vet Centre and VER, although the details of this are carried out by the General Manager of the Mount Lawley Vet Centre.
Dr Read does not specifically recall the orders referred to in Allegation One. However, Dr Read says that there is nothing unusual about the orders as described or the delivery of the Codeine to the Mount Lawley Vet Centre or about the manner in which the receipt of Codeine was recorded in a combination of both the Mount Lawley Codeine Register and the separate register kept by Dr Harris in relation to Permit 23023. He says that the amounts of Codeine that were ordered and to be kept by the Mount Lawley Vet Centre and VER in each case are properly reflected.

Dr Wood

Dr Wood's statement of evidence is dated 18 June 2016; Exhibit 9.
Dr Wood was employed at the Greenfields Vet Hospital from early 2012 until May 2014, and was the practice manager of the Greenfields Vet Hospital between January 2013 and May 2014.
During Dr Wood's time as practice manager, the Greenfields Vet Hospital employed between four and six veterinary surgeons and about 15 nurses and auxiliary staff. During the time that Dr Harris has been practising from the Greenfields Vet Hospital, the total number of veterinary surgeons practising from the Greenfields Vet Hospital has varied from time to time.
Dr Wood explains that the Greenfields Vet Hospital maintained the Greenfields Codeine Register in written form, as required by the Poisons Act, to record transactions involving Codeine procured by and kept at the Greenfields Vet Hospital, and administered, sold, used or supplied by any of the veterinary surgeons practising at the Greenfields Vet Hospital.
Dr Wood also explains that the Greenfields Vet Hospital maintained an electronic database of clinical records relating to animals that are patients of the Greenfields Vet Hospital and that are treated by veterinary surgeons working at the Greenfields Vet Hospital. He is aware that in Dr Harris' case, there are some animals that are patients of one of his own businesses - either HVS or VER - that he treats from time to time at different veterinary clinics or hospitals from which he practices, including Greenfields Vet Hospital. He is aware that Dr Harris maintains his own clinical records relating to the treatment of those patients.
Dr Wood says that he was aware throughout his time at the Greenfields Vet Hospital that not all transactions involving the supply or dispensing of Codeine tablets were being recorded in the Greenfields Codeine Register. From his discussions with several of the veterinary surgeons during his time at the Greenfields Vet Hospital, he understood this was common knowledge amongst the vets and staff. From these discussions and Dr Wood's examination of records, he was also aware that this had been an issue prior to his employment at the Greenfields Vet Centre.
Dr Wood says that a result of this is that the number of Codeine tablets recorded by the last entry in the Greenfields Codeine Register as being the balance remaining in the safe was often not in fact the number of Codeine tablets actually remaining in the safe when the next entry in the Greenfields Codeine Register was made.
Dr Wood says that on a number of occasions, Dr Harris informed him that when making an entry in the Greenfields Codeine Register, Dr Harris had observed that the number of Codeine tablets recorded by the last entry in the Greenfields Codeine Register as being the balance remaining in the safe was not in fact the number of Codeine tablets actually remaining in the safe at the time, and that the Greenfields Codeine Register appeared to contain one or more missing entries.
Dr Wood also recalls Dr Harris told him on several occasions that, in light of this, he had correctly recorded in the 'Balance' column of the Greenfields Codeine Register the number of Codeine tablets actually remaining in the safe, but in the 'Amount Used Sold or Supplied' column had recorded the total amount of Codeine tablets apparently used, sold or suppled since the previous entry, rather than only the amount of Codeine tablets that he had actually supplied on that occasion.
Dr Wood considered that it appeared veterinary surgeons at the Greenfields Vet Hospital were regularly not completing records in the Greenfields Codeine Register.
Dr Wood says that the matter was raised several times at staff meetings at the Greenfields Vet Hospital, where veterinary surgeons were reminded of the need to complete records in the Greenfields Codeine Register.
Dr Wood says he also raised the matter several times in one-to-one discussions with the practice owner, Dr Steve Michaels, and several of the veterinary surgeons at the Greenfields Vet Hospital.
Dr Wood states that, as a result of comments made during the staff meetings and his discussions with Dr Michaels and veterinary surgeons, there was no suggestion that any Codeine tablets were going missing - just that most, if not all, of the veterinary surgeons working at the Greenfields Vet Hospital had, from time to time, failed to make records or entries, or make complete records or entries, in the Greenfields Codeine Register.
In August 2013, the Department conducted an audit of the Greenfields Vet Hospital which included checking the Greenfields Codeine Register for compliance with the requirements of the Poisons Act and the Poisons Regulations.
So far as Dr Wood is aware, this was the first time that the Department had inspected the Greenfields Codeine Register, or any register kept by a veterinary practice.
Following the audit, the Department provided the Greenfields Vet Hospital with a summary comparing information obtained by the Department from the Greenfields Clinical Records with information in the Greenfields Codeine Register over a 12 month period. This confirmed that over that 12 month period there were numerous instances of clinical records made by every veterinary surgeon practising at Greenfields Vet Hospital at the time, recording the prescription and supply of Codeine tablets, but without any corresponding entry having been made in the Greenfields Codeine Register. The Department audit also noted the differences between Dr Harris' entries in the Greenfields Codeine Register and his entries in his clinical records, in relation to the number of Codeine tablets supplied on particular occasions.
Dr Wood notes that the information provided by the Department following the audit also suggested that there were a large number of 'missing' Codeine tablets - that is, tablets that were recorded as having been received by the Greenfields Vet Hospital but which were not accounted for in the records inspected by the Department.
Dr Wood says that, following the Department audit, the Greenfields Vet Hospital carried out its own audit, involving not just clinical records but also records of both orders for Codeine tablets and invoices issued by the Greenfields Vet Hospital containing references to Codeine tablets. The inclusion of the invoices captured instances in which Codeine tablets were supplied but where, for various reasons, the supply may not have been specifically recorded in a clinical record.
Dr Wood says that he carried out this audit with assistance from Dr Harris.
Dr Wood states that the results of the audit, which were provided to the Department, confirmed that there were numerous instances of Codeine tablets being administered or supplied without any corresponding entry having been made in the Greenfields Codeine Register, but accounted for almost all of the 'missing' Codeine tablets as indicated by the Department audit.
Following the Department audit, Dr Wood says that he received a warning letter from the Department regarding the recording of entries in the Greenfields Codeine Register. He was also aware from his role as practice manager that all of the veterinary surgeons at the Greenfields Vet Hospital, except Dr Harris, received similar warning letters from the Department, regarding their failures to make entries in the Greenfields Codeine Register.
So far as Dr Wood is aware, Dr Harris was the only veterinary surgeon at Greenfields Vet Hospital who was prosecuted by the Department as a result of the Department's audit.

Dr Barry Joel Odesnik

The Board filed an expert witness statement of Dr Odesnik dated 22 June 2016; Exhibit 10.
Dr Odesnik was first registered as a veterinary surgeon in Western Australia on 1 September 2000 and has maintained his registration continuously since that time.
He holds a Bachelor degree in Veterinary Science, which he obtained from the Faculty of Veterinary Science, Onderstepoort, University of Pretoria, South Africa.
Since December 2007 he has been the Principal of Vital Vet Animal Hospital in Ellenbrook, Western Australia.
According to his statement, Dr Odesnik was asked by the Board to give expert evidence about various aspects of veterinary medicine and surgery related to the maintenance of records relating to Sch 8 drugs. In particular he was asked to provide his opinion on the following issues:
1)Do veterinary surgeons of good repute and competency comply with the Poisons Act and the Poisons Regulations and, if so, in what respects would noncompliance be conduct that 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?
2)What should a veterinary surgeon of good repute and competency do to maintain any register that is kept under the requirements of the Poisons Act and the Poisons Regulations at the veterinary hospital or veterinary clinic where that Sch 8 Register is kept and in the manner prescribed by the Poisons Act and Poisons Regulations?
3)Do veterinary surgeons of good repute and competency place in one order to the wholesaler for Sch 8 drugs, a purchase order which combines orders for drugs from themselves and for another veterinary surgeon who holds a separate poisons permit?
4)Do veterinary surgeons of good repute and competency comply with each of regs 30(1) and 30(2) of the VS Regulations and is a veterinary surgeon's conduct unprofessional conduct as a veterinary surgeon if he fails to comply with the provisions of any one or more of regs 30(1) and 30(2) of the VS Regulations?
5)If an order for Sch 8 drugs is received at a registered veterinary hospital or clinic, in what circumstances, if any, can a veterinary surgeon of good repute and competency take some or all of those Sch 8 drugs from those premises without making any entry in the Register of the practice where the drugs were delivered by the wholesaler?
6)In what respects, if any, does a veterinary surgeon's conduct fall 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 if they do not comply with the standard of conduct set out in answer to any of the questions set out above?
In Dr Odesnik's view, the matters that Dr Harris, Dr Read and Dr Wood raise in their respective witness statements do not affect his opinion on those issues, which are as follows:
1)If the Mount Lawley Vet Centre and VER pooled their Sch 8 drug orders and then distributed those drugs once they arrived at the premises of the Mount Lawley Vet Centre in the way that Dr Read and Dr Harris describe, then in his opinion, Dr Harris will have acted unprofessionally.
2)Dr Wood's statement that anomalies in the maintenance of the Codeine Sch 8 Register were endemic to Greenfields Vet Hospital and that other staff members (veterinarians) were involved and aware of the problem, in his opinion, makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency.
3)Dr Wood's assertion that Dr Harris purposely made adjustments to the clinical records or the Greenfields Codeine Register to reflect the balance of codeine remaining in the safe and not the balance from the previous record in the Greenfields Codeine Register, in Dr Odesnik's opinion, makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency. Dr Odesnik considers that it is inexcusable and unprofessional to purposely make a record that is inaccurate and making a purposely false entry makes the position more problematic for the staff of the practice and for the veterinarian concerned.
If Dr Harris purposely adjusted either the clinical records or the balance from the previous record in the Greenfields Codeine Register, then in Dr Odesnik's opinion, his conduct falls even further below the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency than making an innocent error if completing the records.
4)If it is true that Dr Harris commented to Dr Wood on a number of occasions that there was a discrepancy between the number of codeine tablets left in the safe and the recorded balance in the Greenfields Codeine Register, this, in Dr Odesnik's opinion, makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency.
5)If it is true that Greenfields Vet Hospital staff discussed the issues with the Greenfields Codeine Register and discrepancies at staff meetings and with the owner, this, in Dr Odesnik's opinion, makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency;
6)If Dr Wood's assertion is true that during discussions, Dr Michaels (the practice owner of the Greenfields Vet Hospital) indicated that there was no suggestion that any Codeine tablets were going missing or if it is true that no codeine tablets had, in fact, gone missing, this, in Dr Odesnik's opinion, makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency;
7)Dr Wood's assertion, even if true, that:
a)he had been informed that the Department was not concerned with Sch 8 Registers kept by veterinary practices, and even if it is true that the Department was not concerned with Sch 8 Registers kept by veterinary practices;
b)there are many other practices that do not fully observe the requirements of the Poisons Act and Poisons Regulations with respect to recording of Sch 8 drugs;
c)a selfregulated audit was carried out by members of the Greenfields Vet Hospital, which accounted for all of the 'missing' Codeine tablets that were unaccounted for by the Department's audit; and
d)although all veterinarians at Greenfields Vet Hospital received a warning letter from the Department (except for Dr Harris), only Dr Harris was targeted for prosecution by the Department, in Dr Odesnik's opinion,
it is Dr Odesnik's opinion that this makes no difference to the standard of conduct that is reasonably expected to be observed by a member of the veterinary profession of good repute and competency, or to whether Dr Harris' conduct fell substantially below the standards of professional conduct that could reasonably be expected to be observed by a member of the veterinary profession of good repute and competency.
8)The contention by Dr Harris that many veterinarians transgress the rules and regulations of the Poisons Act and Poisons Regulations is not, in Dr Odesnik's opinion, a mitigating argument, because a member of the veterinary profession of good repute and competency would educate themselves and their staff regarding these regulations and abide by their legislative responsibility.

Opinion on Management of the Sch 8 Register and Sch 8 drugs - poisons permits

In Dr Odesnik's opinion, a veterinarian of good repute would not remove any Sch 8 drug from a veterinary hospital where these drugs were delivered unless a house visit was made and it were necessary to treat a patient with a Sch 8 drug. There must, in his view, be a clear documentary trail from the supplier of the Sch 8 drug to the recipient's Sch 8 Register and their clinical records.
Also, in Dr Odesnik's opinion, a veterinary surgeon of good repute and competency would not combine orders of Sch 8 drugs with any other veterinary surgeon (or poisons permit holder) and they would ensure that all Sch 8 drugs received by another veterinary surgeon were recorded in that veterinarian's Sch 8 Register.

The entries made by the practitioner in the Greenfields Codeine Register did not involve the insertion of a figure that inaccurately represented the balance of codeine tablets remaining in the practice safe following the relevant occasions of prescribing. It is also accepted that no member of the public could have suffered harm through access to codeine as a result of the incorrect recording by the practitioner in the register of the amount of codeine tablets actually dispensed on each relevant occasion.
It is the view of the Tribunal, however, there is a risk of harm to the public if there is not in existence, a reliable and accurately kept system for tracking all supplies of codeine. This includes the accurate recording of all quantities at all points in the chain of supply. The accurate recording of the amount dispensed on each occasion, in multiple places (as required by the record keeping system mandated) forms part of such a tracking system. The absence of such a system, or the presence of a system to which less than diligent regard is paid by practitioners, potentially allows for illicit 'leaking' of codeine with significant risk for misuse and abuse, addiction and further processing and, thus, harm to the public from these things. It is accepted that the making of a false entry as to the amount dispensed, of itself, could not cause harm. But any inaccuracies in the system of recording weaken the reliability of the system as a whole and open the door to risk. Although in these particular circumstances this is not of substantial significance, it is a relevant matter when considering the question of penalty.

Is there a need to protect the public through general deterrence of other practitioners?

Other practitioners clearly need to be deterred from similar conduct to that of the practitioner, both as it relates to the recording of dispensing information for Sch 8 drugs such as codeine and as it relates to the deliberate falsification of a record.
It is common ground that this consideration is of relevance. It is a significant factor in relation to penalty.
However, the Tribunal considers that when taking this factor into account, it is not appropriate to impose a sanction on the practitioner which reflects or relates to the general confusion and non-compliance of an element of the veterinary profession with procedures in relation to Sch 8 medicines. The practitioner is not to be sanctioned in place of others, for their separate transgressions. It is not in dispute that there was at the relevant time, and remains (although to a lesser extent now) at least some degree of confusion and noncompliance within the veterinary profession generally, with procedures relating to Sch 8 medicines, including codeine. Various examples of such confusion and noncompliance are contained in evidence that was before the Tribunal.

The need to protect the public and maintain public confidence in the profession

In Alexander at [10], this consideration is expressed as follows (citations omitted):
…
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 if its disapproval[.]
…
(Tribunal emphasis)
In the Tribunal's view, the conduct, as it relates to the deliberate falsification of a Sch 8 drug register, is very serious. It cannot be condoned and is the type of conduct that must be eliminated. It requires strong denunciation and a penalty of highly deterrent effect that demonstrates the high professional standards that are demanded in this respect.
The penalty imposed on the practitioner should be such as to deter transgressions, reinforce the requirement of high professional standards and expose the conduct as warranting an emphatic indication of the Tribunal's disapproval.
It is common ground that this consideration is of relevance. It is a significant factor in relation to penalty.

Misleading conduct and dishonesty

In Alexander, at [10], this consideration is expressed as follows (citations omitted):
…
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[.]
…
The Tribunal found that the practitioner's conduct was deliberate and conscious and that he knew of the proper correcting entries that should have been made in the Greenfields Codeine Register.
It is accepted that the practitioner did not attempt to conceal from others either the nature of the entries that he made in the Greenfields Codeine Register or the fact that the balance of codeine tablets remaining in the safe did not reflect the balance recorded by the previous entry in the Greenfields Codeine Register.
It is also accepted that he brought both matters to the attention of the practice owner and practice manager, made efforts to address the apparent lack of recording of the supply or dispensing of codeine, and sought advice and information from the Department of Health relating to the matter.
Further, the practitioner did not attempt to mislead either the Department of Health or the Board in relation to the entries, but from the outset made full disclosure of what occurred.
It is accepted that there is no suggestion of any private gain or benefit obtained by the practitioner as a result of the conduct.
The practitioner, through counsel, submitted in response to the Board's assertion that the practitioner's conduct was dishonest, that there is a difference between doing something knowingly and doing something dishonest. The practitioner says that he cannot be said to have acted dishonestly because he did not intentionally mislead. He claims that the stock balance figure would have been the one upon which others would rely and that he meticulously ensured that this figure was accurate.
The Tribunal does not agree with the practitioner in the latter regard. All of the entries in a poisons register must be accurately completed, not merely the 'stock balance figure'.
Further, the Tribunal considers that the finding of 'falsification' does connote an element of 'dishonesty'. The Tribunal was referred to the Macquarie Dictionary definitions of 'false', 'honest' and 'dishonest' as appear below.
•    … 'false' uttering or declaring what is untrue; … deceitful; … deceptive; used to deceive or mislead …
•    … 'honest' truthful; creditable; candid …
•    … 'dishonest' not honest …
As was said in Khosa at [218] 'dishonesty, like other forms of misconduct, has grades of seriousness'. As in that case, in the view of the Tribunal the subjective element of the breach in this case is more serious because it was a knowing breach.
The Tribunal accordingly rejects the submission that the practitioner's conduct in context was not dishonest. The magnitude or scope of the dishonestly is coloured by the explanation of the circumstances in which he found himself but the practitioner's explanation as to those circumstances does not expiate his deliberate falsification. As will be referred to in Consideration 9, the context of the conduct does not provide a satisfactory explanation as to why the practitioner, knowing of an appropriate corrections procedure, nonetheless elected to enter false information into the register. To do so, even in context, was, in the view of the Tribunal, dishonest. This consideration is of relevance. It is a significant factor in relation to penalty.
On behalf of the practitioner, it was, in the Tribunal's view correctly, submitted that it is also relevant whether, in the case of conduct involving misleading conduct, including dishonesty, 'the public and fellow practitioners can place reliance on the word of the practitioner'. This brings into sharp focus the most difficult aspect of this matter which is the practitioner's inability to explain his failure to use the corrections procedure, a simple option that would have avoided these issues. There is no apparent benefit to him in doing as he did. The consequence of his conduct was that codeine tablets dispensed or otherwise removed from the safe by others could have gone undetected.
The absence of a satisfactory explanation is relevant to penalty.
Positive character evidence as to the reliability of the practitioner has been adduced. Although few of the statements specifically advert to knowledge of the falsification finding of the Tribunal, the Tribunal accepts that all those giving character evidence were provided with access to the Tribunal's reasons for decision and are likely aware of the terms of its findings. The Tribunal accepts the character evidence as having been given in the knowledge of and notwithstanding the findings of the Tribunal, and, that being the case, gives it considerable weight. It is a significant factor in relation to penalty.

Whether there has been a breach of any Act, Regulations and whether this was done knowingly

The practitioner has at all times admitted that his conduct was in breach of the relevant Act and Regulations and that he acted knowingly. This consideration is of relevance. It is a significant factor in relation to penalty.
If a practitioner knowingly does not comply with the regulatory scheme relevant to his profession, the basic protections provided by that scheme will be circumvented.
The reasons that the practitioner advanced for not following the regulatory scheme were unsatisfactory and provide no reasonable excuse for not following them. As will be referred to further under the matter of insight, the Tribunal does not accept that the practitioner fully understands the significance of his misconduct. What the Tribunal was left with after his evidence was that he appeared to have satisfied himself at the time of the conduct that the circumstances in which he found himself, namely the failings of others, entirely justified him breaching the statutory requirement of accuracy in every respect by entering a false figure in the register.
It is again acknowledged that the practitioner took steps to bring the matters to the attention of the practice owner and practice manager, made efforts to address the underlying issues, sought advice or information from the Department of Health relating to the matter and, once the issues were in the hands of the regulators, made full disclosure of what occurred to both the Department of Health and the Board in the course of their investigations.

Whether the conduct demonstrated incompetence

There is no suggestion of any incompetence or that the practitioner's misconduct was due to any incompetence.
No issue arises that is relevant to penalty.

Isolated incident

In Alexander, at [10], this consideration is expressed as follows (citations omitted):
… whether or not the incident was isolated such that the Tribunal can be satisfied of [the practitioner's] worthiness or reliability for the future[.]
…
It is common ground that the misconduct was not an isolated incident in the sense that it involved numerous (121) occurrences over a period of nearly 5 years, as emphasised by the Board in its submissions. The repetition of the behaviour over 5 years is of relevance. It is a factor in relation to penalty.
It is to be noted, however, that the actions of the practitioner that constitute the misconduct were identical in each of the 121 instances and, further, that the matter was pursued by the Board as one allegation of unprofessional conduct, not 121 allegations.
It is accepted that it is relevant for the Tribunal to consider the context and circumstances in which the misconduct occurred as outlined by the practitioner in considering why the misconduct occurred repeatedly, namely the conduct of others. However, the Tribunal does not accept that the errors of others provide a satisfactory excuse for the misconduct. The fact that the misconduct is repeated so often over such a long period is a matter that adds to the seriousness of the misconduct in the view of the Tribunal.
Further, the Tribunal does not agree that the failure of the practice owners or managers to act on the matter or the failure of either of the Department of Health or the Board to identify the issue at an earlier time, provides a satisfactory explanation or reasonable excuse for the misconduct.
It is also accepted that the consideration, as identified by the Tribunal in Alexander, is whether the incident was isolated 'such that the Tribunal can be satisfied of [the practitioner's] worthiness or reliability for the future'. It is submitted that the term 'isolated' is used in the sense of whether or not the misconduct is likely to recur in the future.
It is noted that, so far as the Tribunal is aware, there has been no repeat of this kind of conduct since 2013. In the light of the character evidence and the lack of evidence of any misconduct since, the Tribunal is satisfied that the practitioner's 'worthiness or reliability for the future' is not in question to any great degree or at all. The misconduct can be and is accepted as an unfortunate episode in the past. There is no basis for the Tribunal to have any great concern for the future as to either aspect of the misconduct recurring. This finding is of relevance. It is a significant factor in relation to penalty.

The practitioner's disciplinary history

The practitioner was first registered as a veterinary surgeon in December 1994, some 23 years ago.
So far as the Tribunal is aware, the practitioner has no disciplinary history, and none is alleged.
No issue arises that is relevant to penalty.

Whether the practitioner understands the error of his ways - remorse and insight

The Board's submissions refer to the practitioner as expressing no understanding, remorse or insight regarding his conduct.
The practitioner, through counsel, submits to the contrary. He claims that since the time of his interview with the Department of Health in October 2013, he has repeatedly shown an understanding and insight that his conduct was in breach of the Poisons Act and Poisons Regulations. Amongst other things, he has assisted the Department in its investigations, pleaded guilty to prosecutions brought by the Department and then also assisted and made full disclosure to the Board in its separate investigation. In doing so, he says he has also expressed his remorse for his conduct.
He submits that further demonstrations of insight and understanding are evident in the steps that he has taken:
1)to change his manner of practice by ceasing to administer and dispense codeine, which he continues to observe without any requirement to do so; and
2)to improve recordkeeping amongst other veterinary practices as referred to in his evidence, including his offer to work with the Board to use the finding of unprofessional conduct against him to continue this.
The practitioner, of course, vigorously denied any wrong doing before the Tribunal. However, even though the practitioner has the right to have the allegations made against him tested fully at a hearing, there are a number of authorities that bear on the possible effects of such a course.
The practitioner's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [24] (A Legal Practitioner); Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108] - [109]).
In Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62, the New South Wales Court of Appeal stated at [80]:
4.In New South Wales Bar Association v Maddocks [1998] NSWCA 102 Court of Appeal, 23 August 1988, a case concerning a barrister's alleged professional misconduct, Kirby P said that it was more likely that the Court would withhold disbarment or suspension where the practitioner had admitted guilt. His Honour said:
'This is not simply because such admission may save time and avoid unnecessary controversy. It is because a Barrister is more likely to be accepted by Judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of selfinsight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.'
(Tribunal emphasis)
A practitioner's failure to understand the impropriety of his or her conduct may be a factor of importance in determining the appropriate disciplinary sanction, including whether they should be permitted to stay on the Register; A Legal Practitioner at [32] [34]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler); Legal Profession Complaints Committee v Love [2014] WASC 389; Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35] [44] ; Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [104].
Practitioners who seek to blame others or denigrate the statutory authority which regulates their profession or deny that authority's right to investigate their conduct, demonstrate a lack of insight and a failure to accept responsibility for their actions; Segler at [27] [28]; Johnson at [120]; Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107 at [50] - [55].
It is of concern to the Tribunal that throughout his evidence and, indeed, in the way that his case as to penalty was put to the Tribunal, there appeared to the Tribunal to be a lack of appreciation of the seriousness of the conduct. At all times, the relevant register entries were referred to as 'incorrect' or 'inaccurate' or as referring to 'different amounts of codeine' [than had been recorded in the clinical notes] or as 'a failure to properly record' the dispensed amount.
At no time did the practitioner appear to the Tribunal to accept that what he was doing amounted to a deliberate falsifying of the record, or to acknowledge the inherent deceit or lack of candour that his actions involved. This is reflected right up to and including the submission made on his behalf, that his conduct was not dishonest. Rather, he seemed to consider his conduct to simply be in the nature of inappropriately completed paperwork. The Tribunal does not accept that the practitioner has full insight into his conduct.
Nor did he appear to the Tribunal to be remorseful. It is illuminating that nowhere in the practitioner's evidence is there any direct expression of remorse for his conduct.
Remorse is mitigating. The absence of remorse is not aggravating; Khosa at [58].
As was stated in Khosa, at [210], 'remorse involves a real regret or contrition for wrongdoing'. It means regret or contrition for the wrongdoing, not merely regret for the consequences to the practitioner of the wrongdoing. It requires more than the practitioner taking practical steps in relation to his method of practice to ensure that he is never placed in the same position again. It requires more than cooperation with investigations and a plea of guilty when prosecuted.
It needs to be 'timely, demonstrable remorse'; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S) at [14].
The Tribunal also takes the view that, at all times, the practitioner has sought to cloak his misconduct as responsive to deficiencies in the register caused by others, entirely failing to acknowledge that on each of the 121 occasions, he had a choice about whether to enter a false figure in the register or to take some other action.

He also seemed to be inviting the Tribunal to accept that he had been targeted by the regulatory authorities and the fact that others had not been pursued by the authorities for their failings should be seen as mitigating his conduct.
Rather than seeking to deflect some of the blame onto others, the practitioner should have frankly acknowledged his own failings. The fact that he failed to do so, leads to the inference that he does not have good insight.
The Tribunal does not accept that the practitioner is genuinely remorseful or that he has full insight into his conduct.
This consideration is of relevance. It is a significant factor in relation to penalty.

Desirability of making available to the public any special skills

The practitioner is not a specialist veterinarian. However, the Tribunal accepts that there are few others in the State with the practitioner's skill set.
The Tribunal accepts his evidence, corroborated as it is by the unchallenged evidence of the various witnesses who have provided statements in support of him, that a significant portion of his practice is involved in providing much needed veterinary services to the community that could not easily be replaced over the longer term. He has skills and offers services in relation to ophthalmic veterinary care, particularly in equine practice, that the Tribunal understands to be in reasonably short supply in the Perth metropolitan area and non-existent in country Western Australia. He offers a mobile service and travels to country areas. He has invested in a considerable amount of specialist equipment that his service makes available to clients. Were he not to be in practice, the Tribunal accepts that members of the public in these regions would be required to either travel to the metropolitan area at their own expense in search of similar levels of expertise for their animals, or to make a choice not to access the relevant care for their animals, to the likely detriment of those animals. Members of the public in the metropolitan area may well be deprived of ready access to expert ophthalmic care for their animals given that there appears to be only one metropolitan practice that offers specialist ophthalmic advice, albeit from two available specialists.
It is in the public interest to have the practitioner's skills available to them. This consideration is of relevance. It is a factor in relation to penalty.

Personal circumstances

The practitioner is married with 2 school age children and is the primary source of income for his family. It is noted that he does not seek to rely on any personal circumstances, either at the time of the conduct or at the time of the imposing of the sanction, as overriding any application of the other considerations of the Tribunal.

Other matters

It is also accepted by the Tribunal that the practitioner provides his services and advice pro bono from time to time for a number of organisations concerned with the welfare of both native and non-native animals.
As previously mentioned, the Department of Health prosecuted the practitioner in early 2014 in respect of 17 instances of incorrect entries in the Greenfields Codeine Register. The practitioner pleaded guilty to those prosecutions at the first opportunity, fines were imposed, and the Magistrate also considered it appropriate to make spent conviction orders in accordance with s 39(2) and s 45 of the Sentencing Act 1995 (WA). The Department did not appeal either the amount of the fines or the making of the spent conviction orders, and has taken no further action against the practitioner.
These two matters are relevant albeit to a very limited extent to penalty.
The Board urged the Tribunal to accept its submission that it was relevant to penalty that the practitioner had acted in a way that was against the public interest in that he had, by his conduct, placed at risk the profession's current privileges to directly prescribe and supply restricted drugs. The Board relies on a view to this effect expressed in a paper delivered to the Australian Veterinary Conference in 2014 and tendered into evidence by the practitioner.
Whilst the Tribunal accepts that a view was expressed in the paper by its author, a respected veterinarian, to the effect that there may be a risk in the future if, collectively, the profession does not do more to strengthen its drug management compliance, there is no evidence that the relevant prescribing privileges are in fact now at risk, nor that the particular conduct of the practitioner has contributed to such a risk. The Tribunal rejects this notion as relevant to penalty in this case.

The penalty decision

Notwithstanding that the Tribunal has found a degree of dishonesty in the practitioner's conduct, as was stated in Khosa, honest practitioners can occasionally make a serious mistake. This kind of mistake does not, without more, define them.
Even though the Tribunal is of the view that the practitioner's conduct is very serious, it has not been established that the practitioner is not a fit and proper person to be a veterinary surgeon so as to justify an order that his name be removed from the roll of practitioners.
It is therefore the conclusion of the Tribunal, given the seriousness of the conduct and the lack of insight and remorse, a suspension for some period is appropriate.
As to the length of the suspension, having regard to all the factors identified which we have set out above, and to the submissions advanced by the parties, the Tribunal concludes that a suspension of the practitioner's registration for a period of 2 months would achieve all that is necessary for the protection of the public and the maintenance of the reputation and standards of the profession in this case.
The Tribunal also considers that it should impose the maximum fine of $1,000.
When these two sanctions are considered in the light of the finding itself against the practitioner of unprofessional conduct and also the costs which are awarded against the practitioner, this in the Tribunal's view is appropriate to show the Tribunal's emphatic disapproval of the conduct.
The Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.
The Tribunal will also order that the practitioner gives to the Board the undertaking agreed to by the practitioner not to administer or dispense codeine to any of his patients.

Costs

Applicable legislation

Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows:
87. Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ‑
(a)whether the party (in bringing or conducting the proceeding before the decision maker in which the decision under review was made) genuinely attempted to enable and assist the decision maker to make a decision on its merits;
(b)whether the party (being the decision maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

The principles to be applied

The provisions of s 87(2) of the SAT Act are not displaced by any provisions of the VS Act. Accordingly, the Tribunal has the discretion to order the payment by a party of all or any of the costs of the other party.
As the Tribunal observed in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), 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. It is in the public interest that such bodies have an expectation that, if the allegation is made out, the offending professional will meet or at least contribute to the costs in bringing about the application; Roberman at [30].
In Roberman, the applicant was unsuccessful in relation to some of the allegations brought against the practitioner in question. The Tribunal considered that it was appropriate in that case that that the respondent pay one third of the applicant's costs.
In terms of the actual amount of costs claimed, the Tribunal's approach is to look not at what has actually been charged to the client, but rather, to consider what reasonable allowance should be made, taking a robust and broad brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion; Medical Board of Australia and Costley [2013] WASAT 2 at [66]; The Owners of Strata Plan 4 1133 and Lend Lease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5].

The amount claimed and the disposition of the matter

The Board says that is incurred costs and disbursements up to the end of the proceeding in Harris of $101,430.80. It seeks an order that the practitioner pays half of those costs, together with all of its costs incurred 'in dealing with the disciplinary sanction'. The Board does not specify any amount with regard to the latter.
The Tribunal considers that the practitioner should meet some of the Board's costs. However, the Board was successful in only one of the allegations made against the practitioner and the Tribunal will order that the practitioner pays the Board's costs, including the costs incurred in concluding this matter, in a total amount of $35,000. This amount is to be paid to the Board by 31 March 2018.

Orders

1.Pursuant to s 23(2aa)(b) of the Veterinary Surgeons Act 1960 (WA), the respondent is to provide an undertaking to the Board that he will refrain from administering or dispending codeine to any of his patients.
2.Pursuant to s 23(2aa)(c) of the Veterinary Surgeons Act 1960 (WA), the respondent must pay a fine in the amount of $1,000 to the applicant by 31 January 2018.
3.Pursuant to s 23(2aa)(d) of the Veterinary Surgeons Act 1960 (WA), the registration of the respondent is suspended for a period of 2 months to commence on a date to be agreed between the respondent and the Board.
4.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant part of its costs of the proceeding in the amount of $35,000 by 31 March 2018.
5.The parties have liberty to apply.

I certify that this and the preceding [126] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT

Patient		Number of Codeine tablets recorded in Greenfields Codeine Register
Codeine Register Date	Name		Surname
111	23/09/2009	Lucy	Glover	100
113	30/06/2010	Cody	Hunter	100
123	01/06/2011	Watson	Whitehead	210
127	09/07/2011	Bess	Wylie	150
128	25/09/2011	Bess	Wylie	100
660