Veterinary Surgeons Board of Queensland v Aarn
[2023] QCAT 255
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- Unreported Judgment
- Veterinary Surgeons Board of Queensland v Aarn[2023] QCAT 255
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Veterinary Surgeons Board of Queensland v Aarn[2023] QCAT 255
Veterinary Surgeons Board of Queensland v Aarn[2023] QCAT 255
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Veterinary Surgeons Board of Queensland v Aarn [2023] QCAT 255 |
PARTIES: | Veterinary Surgeons board of queensland (applicant) v aarn aarn (respondent) |
APPLICATION NO/S: | OCR302-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 6 July 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Munasinghe (Presiding) Dr Grigg, Member Dr Baxendell, Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – VETERINARY SURGEONS – MISCONDUCT AND DISCIPLINE – referral of allegations – where registrant dishonestly obtained, consumed, and supplied restricted medicines – where registrant admitted allegations – where registrant found to have behaved in a way that constitutes ‘misconduct in a professional respect’ – where both applicant and registrant proposed a sanction involving the Tribunal ‘taking no further action’ – where Tribunal considered the jointly proposed sanction inadequate Criminal Code Act 1899 (Qld), s 448 Drugs Misuse Act 1986 (Qld), s 6 Veterinary Surgeons Act 1936 (Qld), s 22F, s 22E Veterinary Surgeons Board of Queensland v GLM [2022] QCAT 337 Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380 Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S) Veterinary Surgeons Investigating Committee v Soemartopo [2007] NSWADT 172 Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]Dr Aarn Aarn is a veterinary surgeon who is named on the register of veterinary surgeons (‘register’) kept by the registrar of the Veterinary Surgeons Board of Queensland (‘Board’).
- [2]On 4 November 2021, the Board applied to the Tribunal to decide whether Dr Aarn had engaged in ‘misconduct in a professional respect’ within the meaning of s 22F of the Veterinary Surgeons Act 1936 (‘Act’).
- [3]The alleged misconduct in a professional respect involved Dr Aarn unlawfully prescribing restricted medicines in the name of fictitious animals, which he personally consumed and supplied to others. Specifically:
- (a)on 25 June 2018, Dr Aarn wrote a prescription for escitalopram 10mg x 28 tablets (an antidepressant) for a fictious dog, filled the prescription at Chemist Warehouse, Innisfail and personally consumed one of the tablets.
- (b)on 16 July 2018, Dr Aarn wrote a prescription for diazepam 5 mg x 50 in the name of a fictitious dog, filled the prescription at Chemist Warehouse at Innisfail and gave the diazepam to a person. On 18 October 2018, Dr Aarn gave the person more diazepam.
- (c)on 28 November 2018, Dr Aarn wrote a ‘veterinary prescription’ for Tramadol, which he gave to a person.
- (a)
- [4]It is apposite to note that escitalopram, diazepam and tramadol (‘S 4 medicines’) are restricted medicines in Schedule 4 of the Therapeutic Good (Poisons Standard). Under s 180 of the (now superseded) Health (Drugs and Poisons) Regulation 1996, Dr Aarn was only authorised to obtain, possess, and use S 4 medicines ‘to the extent necessary to practice veterinary medicine”. He was not authorised to supply S 4 medicines to humans.
- [5]Dr Aarn’s conduct above, caused him to be charged with the following criminal offences, to which he pleaded guilty in the Magistrates Court of Queensland at Innisfail on 27 August 2019:
- (a)four counts of fraud – dishonestly gaining a benefit/advantage, contrary to s 408C(1)(d) of the Criminal Code Act 1899 (Qld) (‘Code’);
- (b)four counts of forgery and uttering, contrary to s 488(1) of the Code;
- (c)four counts of uttering a forged document, contrary to s 488(1)(b) of the Code; and
- (d)two counts of supplying dangerous drugs, contrary to s 6(1) of the Drugs Misuse Act 1986 (Qld).
- (a)
- [6]Dr Aarn admits the conduct alleged by the board. Further, he concedes that his conduct amounts to misconduct in a professional respect.[1]
Did Dr Aarn engage in misconduct in a professional respect?
- [7]Section 22F(e) of the Act provides that a veterinary surgeon is engaging in misconduct in a professional respect if the veterinary surgeon practices fraud or deception in the practice of his or her profession.
- [8]Dr Aarn’s convictions in the Magistrates Court at Innisfail, his admissions to the Board, and admissions to the Tribunal, satisfy us that he engaged in misconduct in a professional respect within the meaning of s 22F(e) of the Act.
Sanction for misconduct in a professional respect
- [9]If the Tribunal decides a veterinary surgeon has engaged in misconduct in a professional respect, it may:[2]
- (a)order that the veterinary surgeon’s name be removed from the register of veterinary surgeons; or
- (b)order that the veterinary surgeon’s registration be suspended for a specified period; or
- (c)order that the veterinary surgeon pay to the board by way of penalty a specified sum of money in no case exceeding 40 penalty units; or
- (d)admonish or reprimand the veterinary surgeon.
- (a)
- [10]Initially, the Board contended that if the Tribunal decided Dr Aarn engaged in misconduct in a professional respect, his name ought to be removed from the register of veterinary surgeons and an order made he not be permitted to reapply for registration for a period to be determined.[3]
- [11]However, on 4 April 2022, Dr Aarn gave the Board a written undertaking (‘undertaking’) agreeing to:
- (a)not renew his registration as a Veterinary Surgeon in Queensland;
- (b)not apply for registration as a Veterinary Surgeon in Queensland or in any other jurisdiction at any time in the future; and
- (c)not seek to be relieved of any of the terms of the undertaking at any time in the future.
- (a)
- [12]The undertaking caused the Board to resile from its submission that Dr Aarn’s name should be removed from the register. Instead, the Board now asks the Tribunal to:
- (a)find pursuant to s 22E of the Act, that Dr Aarn engaged in misconduct in a professional respect.
- (b)recognise the undertaking Dr Aarn provided to the Board; and
- (c)make no further orders under s 22E of the Act.[4]
- (a)
- [13]Dr Aarn concurs with the sanction proposed by the Board.
Matters relevant to the determination of sanction
- [14]In Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S),[5] the State Administrative Tribunal (Western Australia) considered the matters that require consideration in determining the appropriate sanction for misconduct in a professional respect. Inter alia, they include:
- (a)any need to protect the public against further misconduct by the practitioner;[6]
- (b)the need to protect the public through general deterrence of other practitioners from similar conduct;[7]
- (c)the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;[8]
- (d)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;
- (e)whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.[9]
- (a)
- [15]Further principles relevant to the determination of sanction include:
Factors in mitigation
- [16]We consider the following mitigating factors relevant to our determination of sanction:
- (a)Dr Aarn promptly advised the board about his misconduct;
- (b)Dr Aarn concedes that he engaged in misconduct in a professional respect, thereby obviating the requirement for a contested hearing and reducing the length, complexity and cost of the present Tribunal proceeding; and
- (c)Dr Aarn has no previously disciplinary history.
- (a)
- [17]Notwithstanding the above, we are mindful that mitigating factors are of considerably less significance than in the criminal process because the disciplinary jurisdiction is protective not punitive.[12]
What is the appropriate sanction?
- [18]We consider the appropriate sanction in this case to be an order removing Dr Aarn’s name from the register of veterinary surgeons. In our view, the sanction proposed by the board is inadequate for the following reasons.
- [19]Firstly, taking no further action under s 22E of the Act is not commensurate to the seriousness of Dr Aarn’s misconduct, which involved several wilful acts of dishonesty over a protracted period. That dishonestly is antithetical to maintaining public confidence in the veterinary profession and reinforcing high professional standards within the profession.
- [20]Secondly, Dr Aarn’s history of dishonesty, and his responses to the Board’s investigation, gives us limited confidence that he will comply with his undertaking to not seek reregistration. We note that in correspondence to Board on 10 November 2021, Dr Aarn indicated that he would “seek immediate deregistration”.[13] Evidently, Dr Aarn did not seek immediate deregistration because on 23 January 2022 he sent a letter to the Tribunal in similar terms to his letter to the Board, indicating an intention to “seek immediate deregistration”. Later, in his undertaking dated 4 April 2022, Dr Aarn indicated he would “…not renew my registration as a Veterinary Surgeon in Queensland”. We infer from the wording of the undertaking that, as of 4 April 2022, Dr Aarn had not fulfilled his earlier professed intention to seek immediate deregistration. Presently, there is no evidence before us indicating Dr Aarn took concrete steps to promptly remove his name from the veterinary register.
- [21]Thirdly, we consider Dr Aarn has demonstrated only partial insight into his misconduct. Whilst Dr Aarn accepts that he engaged in misconduct in a professional respect, he attributes his actions to the variability of legal requirements across the various jurisdictions he worked in. Relevantly, in submissions to the Tribunal, Dr Aarn wrote:[14]
I worked in different jurisdictions, often in a voluntary capacity. Legal requirements and standards of professional service evolved over those years. I apologise for not having a better understanding.
- [22]Similarly, in supplementary submissions, Dr Aarn wrote:
Restrictions concerning the use of substances vary across jurisdictions. I took a fresh vial of ketamine to a gibbon conservation project in Thailand in 2001 and was told it was (a) totally banned substance. When I returned to live in Australia, Valium/diazepam (classed S 8) and amoxycillin (S 4) were available without prescription at pharmacies in Thailand and Cambodia. It was unclear to me whether tramadol was S 4 or S 8.
- [23]In our view, Dr Aarn fails to acknowledge the dishonesty associated with his prescribing. Plainly, Dr Aarn must have been aware that as a veterinarian, he was not authorised to prescribe S 4 medicines for human consumption, irrespective of the jurisdiction in which he practiced. 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 remain on the Register.[15]
- [24]Fourthly, whilst Dr Aarn raises depression to explain and mitigate his misconduct, he did not provide the Tribunal with medical evidence of that condition or explain how it impacted his mental functioning at the time the misconduct occurred. In any case, whilst a practitioner’s personal circumstances at the time of the conduct and at the time of imposing the sanction are relevant to sanction, as observed in Alexander,[16] the weight given to personal circumstance cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of practitioners.
- [25]Lastly, we consider removing Dr Aarn’s name from the register of veterinary surgeons serves as an empathic denunciation of the gravity of his misconduct and deters other practitioners from engaging in similar dishonesty, which maximises protection of the public.
Comparative cases
- [26]The Board raises Veterinary Surgeons Board of Queensland v O'Flaherty [2016] QCAT 8, Veterinary Surgeons Board Queensland v Brown [2016] QCAT 234 and Veterinary Surgeons Board of Queensland v Auld [2018] QCAT 447, as examples of cases where the Tribunal took no further action under s 22E of the Act on account of an undertaking. We do not consider the misconduct in the above cases comparable to the misconduct Dr Aarn engaged in. The cases put forward by the Board involved failures of record keeping and the negligent clinical care of animals. In contradistinction, Dr Aarn’s misconduct involved dishonesty. In cases such as Veterinary Surgeons Board of Queensland v GLM [2022] QCAT 337, Veterinary Surgeons Investigating Committee v Soemartopo [2007] NSWADT 172 and Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107, Tribunals have considered it appropriate to remove from the register, practitioners who deceptively prescribed or supplied restricted drugs.
Costs
- [27]Dr Aarn agrees to pay the Board’s costs under s 15D of the Act in the fixed sum of $3500. We consider it appropriate that the Tribunal makes the costs order proposed by the parties. We decline to set a date by which the costs must be paid, because Dr Aarn has already done so.[17]
Footnotes
[1] Respondent’s response to QCAT dated 23.01.22, p 1; Respondent’s supplemental response to QCAT dated 7.02.2022, p 1.
[2]Veterinary Surgeons Act 1936, s 22E(1)(a)-(d).
[3] Statement by the Board about the ground for disciplinary action and the facts and circumstances forming the basis for the ground, p 8, para 13.
[4] Submissions of Applicant dated 21.04.2022, p 17, para 97; Further Submissions of Applicant dated 22 February 2023, p 3, para 109.
[5]Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S), [10].
[6]Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S).
[7] Ibid, [77].
[8]Craig v The Medical Board of South Australia [2001] SASC 169, [64].
[9]Law Society of new South Wales v Walsh [1997] NSWCA 185 per Beazley JJA; Legal Profession Complains Committee v Lashansky [2007] WASC 211.
[10]Veterinary Surgeons Board of Queensland v Griffin [2016] QCAT 380, [44].
[11]Surgeon’s Board of Western Australia v Alexander [2014] WASAT 105, [14].
[12]Surgeon’s Board of Western Australia v Alexander [2014] WASAT 105, [10]; Law Society of new South Wales v Walsh [1997] NSWCA 185.
[13] Application or referral – disciplinary proceeding, 4 November 2021, p 18.
[14] Respondent’s Submissions, filed in the Tribunal 27 January 2022.
[15]Surgeon’s Board of Western Australia v Alexander [2014] WASAT 105, [79]; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S).
[16]Surgeon’s Board of Western Australia v Alexander [2014] WASAT 105, [10].
[17] Dr Aarn’s email to the Tribunal dated 10 February 2023.