Veterinary Surgeons Investigating Committee v Post

[2005] NSWADT 111

CITATION:	Veterinary Surgeons Investigating Committee v Post [2005] NSWADT 111
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Surgeons Investigating Committee RESPONDENT Dr Alan Post
FILE NUMBER:	043264
HEARING DATES:	15/11/2004-17/11/2004
SUBMISSIONS CLOSED:	02/18/2005
DATE OF DECISION:	05/20/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Crisp T - Non Judicial Member; Clark F - Non Judicial Member
APPLICATION:	Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect - Veterinary surgeon - misconduct in a professional respect
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Veterinary Surgeons Investigating Committee -v- Howe [2002] NSWADT 191
REPRESENTATION:	APPLICANT M Wade, solicitor RESPONDENT M Allars, counsel
ORDERS:	The complaints against Dr Post are not proved.

Introduction

1 Dr Post is a veterinary surgeon who used to practise in Glen Innes. He has a strong interest in horses and his de facto partner, Ms Judy Burton, has competed in numerous endurance riding events. The Annetts family and the Parnell family also live in Glen Innes. Both families had an extremely high regard for Dr Post, professionally and personally, and socialised with him especially at horse riding events. Their daughters, Jennifer Annetts and Tami Parnell went to the property on which Dr Post and Ms Burton lived, three or four times a week and rode horses which Dr Post and Ms Burton were looking after for the owner, Ms Sue Hicks.

2 On 7 and 8 June 2003 the annual Tom Quilty Endurance Ride of 160 kilometres was held in Canowindra. The Annetts family, the Parnell family, Dr Post and Ms Burton took five horses to the event and they all camped together at the show grounds. Judy Burton, Tami Parnell and Jennifer Annetts competed in the ride, which began at midnight on the Saturday morning. Jennifer Annetts, who was 17 years old at the time, rode “Pharaoh” and was successful in winning the lightweight division of the ride. She finished the race sometime late on Saturday afternoon. The following morning at about 9 am, she competed in and won the Fittest Horse Competition. That competition is held to determine which horse in each division completed the ride in the soundest condition.

3 After the completion of the Fittest Horse Competition Jeffrey Bonham, the Drug Testing Steward approached Jenny Annetts and told her that Pharaoh would be required to have a drug test. The test was performed at about 12.10 pm and Pharaoh tested positive to phenylbutazone. Dr Post says that he administered phenylbutazone to Pharaoh when treating the horse for a cut on his front left leg at about 11.30 am on Sunday morning 8th June 2003. He says that he thought the horse had already been drug tested at that time. Dr McKay (Jennifer Annett’s mother) and Mrs Parnell, both say that Ms Burton had a conversation with each of them separately before Dr Post says he treated Pharaoh. In that conversation Dr McKay and Mrs Parnell both said that Ms Burton told them that Dr Post had told her that “Pharaoh” would test positive because he had given all five horses an intravenous injection of Butazolidine at about 5 am to make them more comfortable for the journey home. Ms Burton denies that she had those conversations with either Dr Mackay or Mrs Parnell.

4 On 11 June 2003 Dr Post completed a veterinary certificate setting out the treatment he said he administered to the horse on Sunday 8th June at 11.30 am. He also completed a statutory declaration on 12 June, which he sent to the Endurance Riders Association Inc (ERA). He admits that he re-sutured Pharaoh’s wound at home on 11 June and then took photos of the injury.

5 The Veterinary Surgeons Investigating Committee (VSIC) referred the following complaint to the Tribunal. The headings were not included in the complaint.

Failure to complete Veterinary Certificate to the best of his knowledge

That you are guilty of misconduct in a professional respect pursuant to s 22(c) of the Veterinary Surgeons Act 1986, and regulation 10 of the Veterinary Surgeons Regulations 1995, in that you have breached clause 5(11) of the Veterinary Surgeons Code of Professional Conduct in that your Veterinary Certificate dated 12 June 2003 is not accurately completed to the best of your knowledge.

Particulars

(i) the statement “The gelding had suffered a laceration and bruising to his medial heel of his near fore foot after becoming entangled between his yards and a steel post holding the yards to the ground” is not true

(ii) the description of the treatment of the horse is not true

(iii) the statement “The skin was clipped . . . “ is not true

(iv) the statement “the skin laceration was sutured . . “ is not true

(v) The Veterinary Certificate is inaccurate and misleading in that it omits any information regarding the administration of phenylbutazone to Pharoah at about 5 am on 8 June 2003.

Administration of drug without a therapeutic reason

That you are guilty of misconduct in a professional respect pursuant to section 22(c) of the Veterinary Surgeons Act 19876 and regulation 10 of the Veterinary Surgeons Regulations 1995, in that you have breached clause 5(2) of the veterinary Surgeons’ Code of Professional Conduct in that you administered phenylbutazone to Pharoah at about 5 am on 8 June 2003 without having a therapeutic reason for so doing, contrary to current standards of Veterinary Science.

Failure to make a detailed record of treatment

That you are guilty of misconduct in a professional respect pursuant to section 22(c) of the Veterinary Surgeons Act 1986, and regulation 10 of the Veterinary Surgeons Regulations 1995, in that you have breached clause 5(12) of the Veterinary Surgeons’ Code of Professional Conduct in that you did not make a detailed record of any treatment of Pharoah by you on 8 June 2003.

Not of good character

4. That you are not of good character pursuant to section 26(1)(e) of the Veterinary Surgeons Act 1986

Particulars

(i) On 12 June 2003 you made a statutory declaration containing statements as to the cause and extent of injury to Pharoah at Canowindra on 8 June 2003 and the treatment rendered by you which are not the truth.

(ii) As the nominated person responsible for Pharoah at the 2003 Tom Quilty Endurance Ride, you did not comply with the Rules of the NSW Endurance Riders Association governing the Ride and relating to the administration of prohibited substances to competing horses

(iii) As the nominated person responsible for Pharoah at the 2003 Tom Quilty Endurance Ride, you did not comply with the Rules of the NSW Endurance Riders Association governing the Ride and relating to the reporting of injuries to and treatment of competing horses.

6 We must determine whether any of these complaints have been proved. The VSIC has the burden of proving the complaints on the balance of probabilities in accordance with the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336.

Jurisdiction of the Tribunal

7 Before dealing with each of these complaints, we will outline the legislative provisions that form the basis for the Tribunal’s jurisdiction so that the parties’ submissions and our findings can be put into context. Section 26 of the Act allows any person, including the VSIC itself, to make a complaint to the VSIC that a veterinary surgeon has engaged in various kinds of conduct including that he or she “has been guilty of misconduct, or serious misconduct, in a professional respect.” Each of those terms is defined non-exhaustively in s 22 and s 22A respectively. Both s 22 and s22A include in the definition “breaches of any provision, prescribed for the purposes of this paragraph, of the veterinary surgeons’ code of professional conduct established under s 23.” The code of conduct is in Schedule 1 to the Veterinary Surgeons Regulation 1995 (the Regulation). Section 23 states that a veterinary surgeon should observe the code of professional conduct in carrying on his or her practice.

8 Clause 10 of the Regulation deems a breach of certain rules in the code of conduct to constitute misconduct, or serious misconduct, in a professional respect. For example, a breach of rule 5(11), which concerns accurate completion of a veterinary certificate, is deemed to be serious misconduct in a professional respect. A breach of rule 5(12), which concerns the making of detailed records of treatment, is deemed to be misconduct in a professional respect. Subject to certain exceptions, s 27 obliges the VSIC to investigate all complaints made to it under s 26. Before taking any action in relation to a complaint, the VSIC must give the veterinary surgeon an opportunity to make representations. If the VSIC is satisfied that a prima facie case has been made out and considers the complaint is sufficiently serious to warrant it being referred to the Tribunal, s 28(c) obliges it to refer the complaint. Under s 32, if the complaint is proved to the satisfaction of the Tribunal, the Tribunal may make certain orders ranging from a reprimand or caution to fines and removing the veterinary surgeon from the register.

First complaint: failure to complete Veterinary Certificate to the best of his knowledge

9 The first complaint is that Dr Post is guilty of misconduct by not accurately completing a Veterinary Certificate to the best of his knowledge. The Veterinary Certificate to which this complaint relates was completed by Dr Post on Tuesday 10th June 2003, two days after the horse tested positive for phenylbutazone. The full text of the certificate is as follows:

This is to certify that at approximately 11.30 am on 8th June 2003 at the Canowindra Showground, I administered treatment to the Anglo gelding “Pharoah”.

The gelding had suffered a laceration and bruising to his medial heel of his near fore foot, after becoming entangled between his yards and a steel post holding the yards to the ground.

The laceration was approximately 5 cm in length extending from near the medial coronary band then posteriorly towards the frog sulcis. The horse was in considerable pain.

Neither the rider Jenny Annetts (rider number 256) nor a representative of the owners, Tall Timbers Arabians, were present and I made a decision as the horse’s usual veterinarian, to treat the injury immediately.

The medial heel was anaesthetised by a palmar digital nerve block using 2 ml 2% lignocaine with adrenaline. While waiting for the block to take effect “Pharoah” was given 20 ml Benacillin (a combination of procaine penicillin, benzathine penicillin and procaine HCI) intramuscularly, 1500IU tetanus antitoxin subcutaneously and 20 ml Butasyl (a combination of phenylbutazone and sodium salicylate) intravenously. The skin was clipped and the wound cleansed with hibitane solution. The skin laceration was sutured with size 1 Prolene.

Prednoderm (codliver oil, chlorophyll, neomycin sulphate, prednisolone and nitrofurazone) was applied topically to an area on the heel bulb that couldn’t be sutured. Combine dressing was applied to the area of the wound and the foot and pastern bandaged with elastoplast.

Sgnd

AE Post BVSc

10 The basis for the VSIC’s complaint was that Dr Post had breached Rule 5(11) of the code of professional conduct which states that:

A veterinary surgeon should not sign a certificate relating to the performance of a veterinary service unless:

(a) the certificate is accurately completed to the best of the veterinary surgeon’s knowledge, and

(b) the surgeon has personally performed or supervised the performance of the service.

11 The VSIC said in the complaint that Dr Post was guilty of misconduct in a professional respect under s 22(c) of the Act by virtue of Cl 10 of the Regulation which deems conduct in breach of rule 5(11) of the Code of Conduct to be misconduct in a professional respect. The VSIC made a mistake in relation to the formulation of this complaint. Contrary to the implication in the complaint, Cl 10 does not deem a breach of rule 5(11) of the Code to constitute misconduct in a professional respect pursuant to s 22(c) of the Act. Rather, clause 10 deems a breach of rule 5(11) to constitute serious misconduct in a professional respect under s 22A. On the first day of the hearing the VSIC sought leave to amend its application by adding a charge of serious misconduct in a professional respect and amending the particulars relating to each charge. We refused that application on the ground that we did not have jurisdiction to amend the application in that way.

12 We also accept Dr Post’s submission that the Tribunal does not have power to make a finding of serious misconduct in a professional respect on the basis of the original application because that was not the complaint that the VSIC made against Dr Post. Dr Post went on to submit that because of the VSIC’s error, the Tribunal does not have the power to make a finding of misconduct in a professional respect as a result of a breach of rule 5(11). Dr Post put forward two key propositions:

a) Since conduct in breach of clause 5(11) is not prescribed for the purpose of s 22(c) of the Act, a veterinary surgeon found to be in breach of clause 5(11) cannot be deemed to be guilty of misconduct in a professional respect under s 22(c).

b) In the absence of Cl 10(3), breach of clause 5(11) could not be referred to the Tribunal under s 28(1)(c).

13 In relation to the first proposition, we agree that Dr Post cannot be “deemed” to be guilty of misconduct in a professional respect because of a breach of clause 5(11). In relation to the second proposition, because the definition of “misconduct in a professional respect” in s 22 is not exhaustive, the VSIC could have referred a complaint to the Tribunal that did not rely on a breach of the code of conduct. However, it did not do so and we agree, for the reasons presented by Dr Post, that given the terms of the first complaint, as a matter of law it must fail. In case we are wrong, and the complaint can be characterised as a complaint of misconduct in a professional respect under s 22, we go on to consider the substance of the complaint.

Substance of first complaint

14 Rule 5(11)(a) of the code of conduct states that “A veterinary surgeon should not sign a certificate relating to the performance of a veterinary service unless the certificate is accurately completed to the best of the veterinary surgeon’s knowledge.” The VSIC alleges that certain statements made by Dr Post in the Veterinary Certificate are not true and that it is inaccurate and misleading in the sense that certain information was left out. As Dr Post pointed out, the question is not whether the statements are objectively true, or whether they are misleading, but rather whether the certificate was accurately completed to the best of Dr Post’s knowledge. There was no issue in relation to Cl 5(11)(b) as to whether Dr Post had personally performed the service.

15 First statement. The first statement in issue is that, “The gelding had suffered a laceration and bruising to his medial heel of his near fore foot after becoming entangled between his yards and a steel post holding the yards to the ground.” According to the VSIC the inaccuracy was that Dr Post did not know how Pharaoh had injured his near fore foot because he didn’t see it happen and in those circumstances he should not have said that it become entangled between his yards and a steel post.

16 Manner in which Pharaoh suffered injury. Dr Post admitted that he did not see the horse become entangled between his yards and a steel post holding the yards to the ground. He said: “Well, I didn’t see it but you might suggest how else it could have happened, it’s the only way it could happen is that his yard – he was injured in his yards.” Jenny Annetts said that when she unsaddled the horse back in the camp after the fittest horse competition she noticed Pharaoh had an injury on his near fore leg. She said “It looked to me as if he had overstepped and clipped the bulb of his front foot.” She added that “the injury consisted of a flap of skin on the bulb of his foot which was cut. The injury was about as big as a twenty cent piece.” When viewing the photographs taken by Dr Post on about Tuesday 10th June 2003, Jenny Annetts said that the injury was in the same place and appeared to be the same injury that she had observed.

17 The VSIC suggested to Dr Post that another way the horse could have been injured was by overreaching in the fittest horse competition. Dr Post’s reply was, “Certainly not.” He later agreed that while he did not see any injury when the horse first came back to the yard, Pharaoh could have had an overreaching injury at that time. Dr Dart, who inspected the horse some months later, gave evidence that the injury was more likely to have occurred as a result of the hoof becoming caught in something rather than by overreach. Dr Dart’s report said that he had every reason to believe that the horse did sustain a wound to the left fore medial heel bulb on 8th June as described by Dr Post and that the treatment given was appropriate.

18 Findings. We agree with Dr Post’s submissions that Clause 5(11) does not impose an absolute standard of factual accuracy in a veterinary certificate, nor is there anything in Clause 5(11) to prevent a veterinary surgeon from expressing his belief about how an injury occurred. Dr Post’s statement in the veterinary certificate that Pharaoh had become entangled between his yards and a steel post holding the yards to the ground is expressed as a statement of fact. It is not expressed as a statement of his opinion or belief as to how the injury occurred. Although he said that Pharaoh could also have had an overreaching injury at the time, that was not necessarily inconsistent with him having injured himself in the yard. Dr Post admitted that he did not know how the injury occurred and that his statement was his “interpretation” of what had happened.

19 For the certificate to have been completed accurately, to the best of Dr Post’s knowledge, it should have said either that he did not know how the injury occurred, or that he assumed that the horse had been injured in a certain manner. To state as a fact that Pharaoh was injured in a certain manner when he had no actual knowledge of how the injury occurred, constitutes a breach of Clause 5(11). However, since we have found that the complaint cannot be characterised as a complaint of misconduct in a professional respect under s 22, particular (i) of the first complaint is not proved.

20 Second, third and fourth statements. The VSIC alleged that the description of the treatment of the horse is not true. In particular, that the statement “The skin was clipped . . . ” is not true and the statement “The skin laceration was sutured . . .” is not true. Terry Parnell says that after watching Jenny Annetts in the Fittest Horse Competition he went back to the camp site and sat by the fire. He says that about half an hour later he saw Jenny Annetts bring the horse back to the yard. Some time later he says he saw Jenny Annetts holding Pharaoh’s lead while Dr Post was applying a bandage to his left front leg. According to Mr Parnell, the horse’s leg was not bleeding and it was not upset, edgy or lame. He says that the hair on Pharaoh’s leg was not clipped nor were sutures applied at that time and that if it had been a big cut requiring stitches he would have noticed. Mr Parnell says that he was approximately 5 meters away at the time and that Jenny Annetts was standing in front of the horse.

21 Tami Parnell gave evidence that she saw the horse’s leg when it was bandaged, but did not see the cut. She said that when she saw the horse’s leg being bandaged its hair had not been clipped and that Dr Post did not have any clippers with him. She stated that the cut was not stitched at the Ride. Ms Annetts cannot remember whether or not she was present when the bandaging took place. The VSIC relied on evidence from Dr Robyn Mather, who said that the period of approximately 40 minutes that was available for Dr Post to treat Pharaoh meant that he must have treated the horse in “very quick time”.

22 Findings. Dr Mather did not give oral evidence and Dr Post rightly pointed out that no details of her qualifications were in evidence. Given the fact that her evidence is hearsay and that Dr Post did not have an opportunity to cross-examine her, we do not give her evidence any weight. Both Terry and Tami Parnell saw Dr Post bandaging Pharaoh’s leg, but did not see him clipping the leg or suturing a wound. Dr Post says no-one else was there when that happened. If that is true, then it explains why there is no corroboration of his evidence. While the evidence of Terry and Tami Purcell suggests that Pharaoh’s leg was merely bandaged as a result of an overreaching injury, we are not satisfied that he did not perform the treatment in the way he said he did in the veterinary certificate. Consequently, particulars (ii), (iii) and (iv) of the first complaint are not proved.

23 Omission of information about administration of phenylbutazone at 5 am on 8 June. The final particular in relation to the first complaint is that the Veterinary Certificate is inaccurate and misleading in that it omits any information regarding the administration of phenylbutazone to Pharaoh at about 5 am on 8 June 2003. As we have found at [33] below that the allegation that Dr Post administered that drug at 5 am on 8 June is not proved, this particular is similarly not proved.

Second complaint: administration of drug without a therapeutic reason

24 The VSIC alleges that Dr Post administered phenylbutazone to Pharoah at about 5 am without having a therapeutic reason for doing so. Dr Post denied that he administered Phenylbutazone to any horse at 5 am. He said it would be dangerous to do so because he would not be able to see whether the syringe had drawn blood from the vein. He added that there would be no reason to administer Phenylbutazone simply because the horse was about to travel. The relevant evidence supporting the allegation, which is all circumstantial, includes:

- an allegation that Dr Post would stand to lose financially if Pharoah returned a positive drug test;

- Dr Post’s reaction when told that Pharoah would be drug tested; and

- alleged conversations Ms Burton had with Dr McKay and Mrs Parnell.

25 Financial implications. The VSIC relied on evidence which it says suggests that Dr Post stood to lose financially if Pharaoh returned a positive drug test because the horse would not be worth as much in those circumstances. Dr Post acknowledged that at the time he completed the veterinary certificate he was concerned about the fact that the horse would test positive. However, he said that if he had been seeking a financial gain, he would have administered a drug to Pharoah before the 2003 Tom Quilty Endurance Ride to ensure that it won, not after the Ride. No allegation has been made that he administered any drugs before the Ride.

26 Reaction of Dr Post when told Pharoah would be drug tested. After the completion of the Fittest Horse Competition, Mr Bonham, the Drug Testing Steward, told Dr Post and others that Pharoah would be subjected to a drug test. Mr Bonham’s evidence was that Dr Post had a look of “shock/horror” on his face when he was told that Pharoah would be drug tested and asked him if it was normal practice to drug test horses after the ride had finished. Mr Bonham remarked to his wife after this conversation that he wouldn’t be surprised if Pharoah returned a positive test. Dr Mackay’s evidence was that when she went over to tell Dr Post that Pharoah would be drug tested, Dr Post said “We’re stuffed.”

27 Conversations between Ms Burton and Dr Mackay and Mrs Parnell. Dr Mackay said that when she returned from the lightweight division of the fittest horse presentation she saw Ms Burton standing behind Dr Post’s vehicle. She said Ms Burton called out to her to come over and then said “Alan tells me he got up at 5.00 am today and gave all five horses IV Butazolidine to make them more comfortable to travel home.” Dr McKay said that her response was, “But not Pharaoh, not before the fittest horse.” She then said that Ms Burton said, “Yes he has.” Dr Mackay’s impression was that Ms Burton was angry with Dr Post when she had that conversation. Dr Mackay said she was in such a state of shock as a result of that conversation that she found Mrs Parnell and they went for a walk together. Dr McKay says she was extremely upset and crying during the walk. She says she got back to camp just as Pharaoh was being taken for drug testing.

28 Mrs Parnell’s evidence is that Dr McKay came up to her shortly after the completion of the lightweight division of the fittest horse competition and told her what Ms Burton had said and asked her to come for a walk. When they got back Mrs Parnell says that Ms Burton said to her, “Has Trish (Dr McKay) told you what happened?” Mrs Parnell says she said, “Yes, what’s happening about it now?” Ms Burton is said to have replied, “I’m really pissed off with Alan (Dr Post). I can’t even talk about it.” Ms Burton is then alleged to have said, “Alan gave Pharoah an injection of Butazolidine early this morning when he was treating the other horses.” Ms Burton denied having the conversations regarding the administration of Butazolidine at 5 am with either Dr Mackay or Mrs Parnell.

29 Credibility of witnesses. Dr Mackay admitted that she made an incorrect statement in a letter to the Endurance Riders Association after the ride. She told them that she was not aware “of any drugs being administered prior to during or after the Tom Quilty Ride.” She now acknowledges that that statement is incorrect because she says that Judy Burton told her after the Fittest Horse Competition that Dr Post had administered phenylbutazone to Pharaoh at 5 am on Sunday morning. She says the reason she made an incorrect statement was to protect Dr Post. The VSIC submitted that Dr Mackay’s motivation to protect Dr Post’s reputation does not suggest that she would lie about the conversation she had with Ms Burton. On the contrary, if her motivation were to protect Dr Post, then she would have been reluctant to disclose a conversation that indirectly implicated him. Dr Post attacked Dr Mackay’s credibility on several other grounds, but none of those grounds persuade us that she was not telling the truth about the conversation with Ms Burton. Her reaction to the conversation was dramatic. She found Mrs Parnell and walked for a considerable period crying and trying to work out what to do. Dr Mackay’s version was supported by Mrs Parnell.

30 On the other hand, Ms Burton’s evidence was extremely vague and at times unresponsive. She admitted that her memory of the events had faded over time and that she had a lot of trauma in her life. She was obviously distressed by the events of 8th June and their aftermath but we were left with the impression that she was not disclosing everything she knew about those events. On the other hand, Dr Mackay and Mrs Parnell gave their evidence in a forthright manner and did not leave us with the impression that they were being untruthful or concealing anything. Dr MacKay adequately explained the reasons for not telling the whole truth to the ERA and in our view, gave honest answers at the hearing.

31 Findings. We are not satisfied that financial motivation was the reason for any of Dr Post’s conduct. As Dr Post said, if he had wanted Pharaoh to have the best chance of winning the Race, he would have administered drugs prior to the event, not after it. There was no allegation that Dr Post had administered drugs to Pharaoh at any time other than on the morning after the Race had finished. We are satisfied that Dr Mackay and Mrs Parnell had the conversations with Ms Burton that they said they had. We are also satisfied that Dr Post was shocked by Mr Bonham’s announcement that Pharoah would be drug tested and that he said to Dr Mackay “We’re stuffed.” These two incidents are consistent with one another and with Dr Post being concerned about the drug testing. Although it is not clear why Dr Post reacted in that way, his reaction is also consistent with our finding that Ms Burton had the conversations with Dr Mackay and Mrs Parnell. The next question is whether those facts constitute a sufficient basis for a finding that Dr Post in fact administered phenylbutazone to Pharoah at about 5 am and, if so, whether he had a therapeutic reason for doing so.

32 According to the VSIC, apart from the conversations outlined above, the following circumstances also support a finding that Dr Post administered the drug at that time:

- Pharaoh tested positive to the drug just after midday on 8 June 2003;

- the improbability that Dr Post treated Pharoah in the way he said he did at 11.30 am; and

- the conduct of Dr Post when Dr Mackay and Jenny Annetts came to take Pharoah for the drug test and his alleged behaviour after that time.

33 In our view, while there is circumstantial evidence suggesting that Dr Post did administer phenylbutazone to Pharoah at about 5 am, we are not comfortably satisfied that he did so. While Dr Post reacted negatively to the news of the drug test, that does not necessarily lead to an inference that he must have known Pharaoh would test positive because he had administered drugs to the horse at 5 am. There may have been another reason for his reaction. We have found that Dr Post did treat Pharaoh in the way he said he did at 11.30 am. The conversations that Ms Burton had with Dr Mackay are hearsay evidence and do not go to the truth of what was said. Dr Post denies having administered the drug at 5 am and it seems unlikely that he would have done so. There was no evidence from any witnesses that they saw or heard anything happen at 5 am. Dr Post would have needed a torch to administer the drugs in the dark and it would have been difficult for him to do so by himself. Although we are concerned that there is no adequate explanation for Dr Post’s negative reaction to the news of the drug testing, nor as to why Ms Burton had the conversations with Dr Mackay and Mrs Parnell, those concerns are insufficient to make us comfortably satisfied that Dr Post in fact administered a drug to the horse at 5 am. Consequently, we do not find the second complaint proved.

Third complaint: failure to make a detailed record of treatment

34 The third complaint against Dr Post is that he is guilty of misconduct in a professional respect because he failed to make a detailed record of any treatment he gave to Pharaoh on 8 June 2003. Rule 5(12) of the Code of Conduct provides that:

When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation.

35 Dr Post recorded the treatment he undertook at 11.30 am on 8th June in the horse’s medical record, in the Veterinary Certificate and in the statutory declaration. The Veterinary Certificate was completed on 11 June and the statutory declaration was completed on 12 June 2003. Dr Dart and Dr Pedrana gave evidence that a veterinarian treating animals in rural areas is not expected to carry paper records or a laptop computer in order to enter details of treatment immediately it is given. We are satisfied that the records were made “as soon as practicable” after the horse was treated and that those records contained sufficient detail of the treatment.

36 In relation to any treatment at 5 am, we have not found that Dr Post administered phenylbutazone to Pharoah at that time so he cannot have failed to make a detailed record of any such treatment.

Fourth complaint: not of good character

37 The fourth complaint against Dr Post is that he is guilty of misconduct in a professional respect because he is not of good character. The first particular of this complaint relates to the statutory declaration completed by Dr Post on 12 June 2003 containing statements about the cause and extent of injury to Pharaoh on 8 June and the treatment Dr Post provided. The VSIC alleges that the statements in that statutory declaration are not true and that as a consequence, Dr Post is not of good character. In relation to those matters, the statutory declaration states that:

Pharaoh suffered an injury to his left forefoot following the fittest horse workouts Sunday morning June 8th. The injury occurred at approximately 11.30 am, in the presence of myself, the horse’s usual attending veterinarian. Neither the rider Jenny Annetts, her mother Dr PN MacKay, nor a representative of the owner were (sic) present.

38 In relation to the cause of injury, Dr Post says in the statutory declaration that the injury occurred in his presence. He later agreed that he did not see Pharaoh injure himself. Although it is arguable that a person may not have seen something, even if it happened in his or her presence, the clear implication in the statutory declaration is that Dr Post saw Pharaoh injure himself. We are satisfied on that basis that the statement is not true. In addition, the VSIC alleged that it was incorrect for Dr Post to say that a representative of the owner was not present, when he himself was a representative of the owner. However, that was not an allegation that relates to the cause and extent of injury or to the treatment Dr Post provided so it is not within our jurisdiction to deal with it.

39 The second and third particulars of this complaint alleged that as the nominated “person responsible” for Pharaoh, Dr Post did not comply with the Rules of the NSW Endurance Riders Association governing the administration of prohibited substances to competing horses or the reporting of injuries to and treatment of competing horses. Three issues need to be considered:

- Was Dr Post the “responsible person”?

- If so, was he in breach of the ERA Rules?

- If so, does that breach, together with any other relevant conduct, mean that Dr Post is “not of good character”?

40 Responsible person. The Endurance Riders Association (AERA) has rules which govern rides such as the Tom Quilty. The “Prohibited Substance Rules” define “responsible person” to mean “. . . one or more of the rider, trainer, owner or any other connection of a horse who take responsibility for that horse at an affiliated ride.” Further details relating to the identity of the “responsible person” are set out in 4.3 to 4.7 of the Rules:

4.3 The responsible person is normally the rider. However, in some circumstances another person (the owner, trainer or other connection of the horse) may be the designated responsible person instead of the rider. A horse may have more than one designated responsible person.

4.5 If the responsible person is the rider, then he or she must also sign the “Responsible Person Declaration” on the Ride Entry Form.

4.6 If the responsible person is a different person to the rider, then the responsible person must sign the “Responsible Person Declaration” on the Ride Entry form, whether the responsible person is the trainer, owner, agent, coach and/or any other form of connection to the horse.

4.7 Where the rider is a junior member, the parent or legal guardian signing the nomination form on behalf of the rider must nominate a responsible person.

41 Dr Mackay gave evidence that she wrote her own name on the original pre-nomination form, but when she completed the entry form at Canowindra immediately prior to the race she put Dr Post’s name on the form as the responsible person. She admits that she did not tell Dr Post that she had done so. A copy of the completed entry form was not in evidence. According to Dr Post, he was not the responsible person because he did not complete a pre-nomination form or a nomination form for the 2003 Tom Quilty. Rule 4.6 provides that if the responsible person is not the rider, the responsible person must sign the “Responsible Person Declaration” on the Ride Entry Form. Dr Post did not sign that form.

42 According to the VSIC, regardless of who was named on the competition entry form as the person responsible, Dr Post was in fact the responsible person for Pharaoh during the 2003 Tom Quilty Ride. He was the representative of the owner, he cared for the horse during the Ride and he treated the horse at 11.30 am on Sunday 8th June without reference to anyone else. The VSIC said that even on his own evidence, Dr Post administered drugs to Pharaoh, told no one what drugs he had administered and did not attend the swabbing. The VSIC asks the Tribunal to conclude on that basis that he took responsibility for the horse and therefore was the “responsible person” under the Rules.

43 Findings re “responsible person”. The “responsible person” is defined by the ERA Rules. The only way in which Dr Post could be the person responsible is if he comes within the meaning of that term in the Rules. There is a formal procedure for assigning a person responsibility and that procedure had not been complied with in relation to Dr Post. Furthermore, Dr Post did not know until after the race had been completed that Dr Mackay had nominated him as the “person responsible”. For those reasons, we are not satisfied that he was the “person responsible” even though his name apparently appeared on the entry form.

44 Was Dr Post in breach of the Rules? If our conclusion is wrong, and Dr Post was the “person responsible”, the next question is whether he breached the Rules applicable to such a person. The Rules say that that the responsible person is “responsible and accountable under these rules:

(a) for the physical condition of the horse once it arrives at the competition ride base – whether or not the horse has yet been officially entered;

(b) to guard and protect the horse prior to and at competition;

(c) to prevent the administration by anyone of (or exposure to) any prohibited substance to the horse; and

(d) to know all the provisions of these rules and all other rules of the AERA Inc . . .”

45 Administration of prohibited substances. Under the Rules, if Dr Post was the responsible person, he was required to guard and protect Pharaoh and to prevent anyone administering to him or exposing him to prohibited substances. It is clear that he did not do so, as he admits administering a prohibited substance at 11.30 am before the log books had been returned marking the completion of the ride. Dr Post knew that the log book had not been returned as at midday on Sunday but said that he regarded the event as well and truly finished as half the people had gone home. When it was put to Dr Post in cross examination that he knew from the moment he became aware that Pharoah was to be drug tested that the horse was still in competition, he said:

Well, basically and I did make attempts to – well, I started making an attempt to inform people ...

46 Findings. If, contrary to our initial finding, Dr Post was the responsible person, then he was in breach of his responsibility to prevent the administration by anyone of (or exposure to) any prohibited substance to the horse.

47 Reporting of injuries and treatment. The VSIC alleged that Dr Post did not comply with the Rules of the ERA relating to the reporting of injuries to and the treatment of competing horses. The Rules relating to the reporting and treatment of injuries of competing horses is in H 24. Although Dr Post submitted that this matter was not in the VSIC’s application, we consider that it follows from the allegation that Dr Post did not comply with Rules relating to the reporting and treatment of competing horses, that Rule H 24 is the rule which the VSIC was relying on. That rule, which was included on 1 January 2003, is as follows:

24.1 Invasive treatment is defined as any diagnosis or treatment of a horse which involves the puncture of or incision of the skin or insertion of any instrument or foreign material into the body (except the use of oral electrolytes by way of a syringe, or the use of a thermometer to take temperatures is exempted from this rule).

24.2 Invasive treatment of a horse by a rider or other non-veterinary person is prohibited from the time of pre-ride examination to the return of signed log books.

24.3 Invasive treatment required because of a metabolic condition or injury must be conducted under the supervision of the Head Veterinarian.

24.4 The collection of blood for diagnostic purposes by a veterinarian requires prior permission from the Head Veterinarian.

24.5. The rider and/or responsible person of a horse which has received invasive treatment must complete the relevant sections of the invasive Treatment form.

48 Dr Post engaged in invasive treatment of Pharaoh as a result of an injury but contrary to the Rule 24.3 that treatment was not conducted under the supervision of the Head Veterinarian. That rule does not depend on Dr Post being the “person responsible”. Dr Post said in his statutory declaration of 9 March 2004:

“I confess that at the Quilty I was unfamiliar with the requirement relating to the reporting of injuries. For this I admit fault and apologise.”

49 In addition, if Dr Post was the responsible person, he did not complete the relevant sections of the invasive treatment form as required by 24.5.

50 Does any breach mean that Dr Post is not of “good character”? The VSIC said that Dr Post’s failures to comply with the rules relating to the administration of prohibited substances and reporting of injuries and treatment to competing horses demonstrates a willingness to avoid responsibilities of which a registered veterinary surgeon of many years standing and experience should have been aware. According to the VSIC, his conduct demonstrates a lack of good character because he chose to ignore his responsibility to report injuries. The VSIC submitted that Dr Post’s assertion that he was ignorant of the rule about reporting injuries is disingenuous in circumstances where he is a former member of the ERA and a currently accredited ERA vet.

51 In Veterinary Surgeons Investigating Committee -v- Howe [2002] NSWADT 191 at [15], the Tribunal set out the test for “good character” in the Act

15 In McBride v Walton , (Supreme Court of NSW, Court of Appeal, 15 July 1994, unreported) Handley J discussed the meaning of “not of good character” in a similar legislative context, namely the Medical Practitioners Act 1938. Handley J adopted the test set down by Dixon J in Re Davis (1947) 75 CLR 409 where His Honour referred to the requirement of good character as “the test of ethical fitness” which requires “enduring moral qualities.” Handley J found that there was no legal error contained in the questions that the Medical Tribunal asked itself, to determine whether Dr McBride was not of good character. Those questions were:

(a) whether misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.

52 These questions are equally applicable to this Tribunal’s consideration of the question of whether Dr Post, as a veterinary surgeon, is “not of good character.” His character must be determined as at the date of the Tribunal hearing. (Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 475 per Holmes JA.)

53 Findings. The only findings we have made which could impact negatively on our assessment of Dr Post’s character is that he said incorrectly in his statutory declaration that the injury occurred in his presence and that he did not treat Pharaoh under the supervision of the Head Veterinarian. The other adverse findings depend on Dr Post being the responsible person and we have found that he did not have that status. The incorrect completion of the statutory declaration is a matter of some concern. As a veterinarian Dr Post should have been completed that declaration accurately. In relation to his failure to comply with the Rules in relation to the treatment of Pharaoh under supervision, we accept that rule 24 was a new rule introduced on 1 January 2003 and that Dr Post may have not been familiar with it. However it is critical that veterinarians involved in competitions such as endurance riding events are familiar with all the Rules that apply to them. While it is important that all veterinary surgeons are meticulously accurate when completing statutory declarations and are familiar with all rules of competitions in which they are involved, in the circumstances of this case, Dr Post’s conduct is not sufficiently serious or pervasive to amount to a defect in character. Consequently the fourth complaint is not proved.

Matters outside the complaint

54 The VSIC referred to several other matters in its submissions that were not detailed in the application to the Tribunal. While those matters may be used as evidence in support of complaints that were made in the application, they do not constitute discrete complaints that the Tribunal has jurisdiction to find proved.

Comment

55 Notwithstanding the fact that the complaints have not been proved, this case highlights the importance of a veterinary surgeon completing a statutory declaration accurately and being fully conversant with competition rules. Most significantly, veterinary surgeons should be acutely aware of the risks involved in administering prohibited substances to any animal who is still involved in competition. Had Dr Post checked whether or not Pharaoh had been drug tested prior to treating him, any disciplinary action may have been avoided. We are also mindful of the devastating effect that the positive drug test had on Jenny Annetts and her family.

Orders

The complaints against Dr Post are not proved.