CITATION: Veterinary Surgeons Investigating Committee v Thompson [2007] NSWADT 107 DIVISION: General Division APPLICANT PARTIES: Veterinary Surgeons Investigating Committee RESPONDENT Andrew Thompson FILE NUMBER: 063327 HEARING DATES: 20 April 2007 & 30 April 2007 SUBMISSIONS CLOSED: 30 April 2007 DATE OF DECISION: 14 May 2007 BEFORE: McGuire J - ADCJ (Deputy President); Thompson R - Non Judicial Member; Mayo-Ramsay R - Non Judicial Member CATCHWORDS: Veterinary surgeon - application for a disciplinary finding - Veterinary Surgeons Act - veterinary surgeon - application for a disciplinary finding MATTER FOR DECISION: Principal matter LEGISLATION CITED : Veterinary Surgeons Act 1986 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 APPLICANT M N Wade, solicitor, TressCox REPRESENTATION: RESPONDENT P R Callaghan SC instructed by P Quinn, KQ Lawyers ORDERS: 1) That the name of the Respondent be removed from the Register of Veterinary Surgeons or the Register of Specialists; (2) That the Respondent may not make any application for the restoration of his name to The Register prior to 10th May, 2011; (3) That the Respondent pay the Applicant's costs of the hearing. REASONS FOR DECISION 1 The Tribunal is dealing with an application by the Veterinary Surgeons Investigating Committee (VSIC – the Applicant) for a disciplinary finding in relation to the Respondent, the veterinary surgeon. 2 The Applicant seeks a finding that the Respondent has engaged in serious misconduct in a professional respect pursuant to Section 22A of the Veterinary Surgeons Act 1986 ('the Act'). 3 The Respondent does not dispute the conduct alleged. General Description of Conduct '(a) The respondent contravened Order 1998/1 made under section 46 of the Stock Medicines Act 1989 ('the Order') in that he breached prohibition 3A of the Order by supplying an injectable steroid to a person; and/or (b) The respondent engaged in conduct in the veterinary surgeon's professional capacity that, if repeated or continued, is likely to damage the international reputation of Australia in relation to animal exports, animal welfare, animal produce or sporting events contrary to section 22A(1)(c)(iv) of the Veterinary Surgeons Act 1986; and/or (c) The respondent breached Rule 11 of the veterinary surgeons code of professional conduct established under section 23 of the Act in that he signed a certificate relating to the performance of veterinary service that was: (i) Not accurately completed to the best of the respondent's knowledge, and (ii) The respondent had not personally performed or supervised the performance of the service.' 4 The Respondent did not dispute the allegations in paragraphs (a) and (c) of the application. He accepted that he was guilty of serious misconduct in a professional respect with regard to the conduct set out in the said application. 5 In view of these admissions there is no utility in making a finding in relation to (b) of the application, to which he takes objection. 6 The Tribunal was furnished with an Agreed Statement of Facts which is in the following form: ' Blood Testing 1. On a date prior to 6 April 2006 the respondent was engaged in his capacity as a registered veterinary surgeon to, inter alia, perform pre-export preparations on three horses destined for export to Thailand on or about 25 April 2006. The horses were a thoroughbred mare ('Bruhaha'), a thoroughbred mare ('Reveries') and a thoroughbred filly ('Whoopsy'). 2. The applicable protocol for the export of horses to Thailand ('the export protocol') required, inter alia, that a horse test negative for equine viral arteritis (EVA) by the virus neutralisation test within 30 days of export; 3. An EVA test which is negative "at 1 in 4" is regarded for purposes of the export of horses to Thailand as a negative test. 4. On or about 6 April 2006 the respondent took blood samples from Bruhaha, Reveries and Whoopsy and caused those samples to be submitted to the Elizabeth Macarthur Agricultural Institute laboratory ('EMAI') for testing in relation to the proposed export of the horses. Included in the tests ordered was a test of each animals blood for EVA; 5. The result of the EVA test performed on the blood collected from Bruhaha on or about 6 April 2006 was reported in Final Report No. M06-02425-F-V1 as "Toxic @1/16, negative @ 1/32"; 6. The result of the EVA test performed on the blood collected from Bruhaha on or about 6 April 2006 did not satisfy the export protocol; 7. The result of the EVA test performed on the blood collected from Whoopsy on or about 6 April 2006 was reported in Final Report No. M06-02425-F-V1 as "Negative at 1 in 4 dilution"; 8. The result of the EVA test performed on the blood collected from Whoopsy on or about 6 April 2006 satisfied the export protocol; 9. On or about 13 April 2006 the respondent took a sample of the blood of the filly 'Whoopsy' which he knew to be negative for EVA, labelled the sample as the blood of Bruhaha and submitted that blood sample for testing by EMAI for EVA. Also on or about 13 April 2006 the respondent caused an equine export submission form to be delivered to EMAI with the blood sample. In doing those things the respondent represented the blood of Whoopsy to be that of Bruhaha; 10. On or about 13 April 2006 the respondent took a sample of the blood of the filly 'Whoopsy' which he knew to be negative for EVA, labelled the sample as the blood of Bruhaha and submitted that blood sample for testing by Primary Industries Research Victoria (PIRV) for EVA. Also on or about 13 April 2006 the respondent caused an 'export testing submission form' to be delivered to PIV with the blood sample. In doing those things the respondent represented the blood of Whoopsy to be that of Bruhaha; 11. The result of the EVA test performed on the blood collected from Whoopsy on or about 13 April 2006 and represented by the respondent to EMAI as the blood of Bruhaha was reported on 21 April 2006 in Interim Report No. M06-02638-I-V1 as "Negative at 1 in 4 dilution"; 12. The result of the EVA test performed on the blood collected from Whoopsy on or about 13 April 2006 and represented by the respondent to PIRV as the blood of Bruhaha was reported on 24 April 2006 in Report No. 2006-001565-HC as "Negative @ 1:4"; 13. On or about 21 April 2006 the respondent signed a veterinary certificate in relation to the export of the three horses to Thailand which was false and misleading in the following material respects: (a) The respondent certified that 'Bruhaha' was tested with negative results for EVA on 6 April 2006 (date of blood collection) by the serum neutralisation test in circumstances where: (i) The respondent knew or ought to have known the blood collected from Bruhaha on or about 6 April 2006 had not returned a negative test result for EVA; (ii) The respondent knew or ought to have known that Bruhaha's blood had not been tested for EVA subsequent to 6 April 2006 and prior to signing the veterinary certificate. (b) The respondent certified that Reveries was tested with negative results for EVA on 6 April 2006 (date of blood collection) by the serum neutralisation test in circumstances where : (i) The respondent knew or ought to have known the blood collected from Reveries on or about 6 April 2006 had not returned a negative test result for EVA; Steroids 1. On or about 2 May 2006 the respondent inappropriately supplied the following injectable steroids to Mr Vichit Pangsriiam: (a) 5 Ampoules of Deca 50; (b) 5 ampoules of 4Fillies.' 7 The respondent's conduct was drawn to the attention of the VSIC as a result of information provided by Chris Pearson, the Manager of a transportation company, to whom the respondent made admissions. Pearson provided details of the blood substitution and the attempted smuggling of the steroids out of Australia. 8 The respondent was advised of the complaints made by Pearson whereupon he wrote to the VSIC stating that it should have serious reservations about Mr Pearson's version of events. He clearly sought to impugn Mr Pearson's veracity and motives and suggested that Mr Pearson was making a false complaint against him because they were business rivals. 9 This was not a spontaneous reaction as the respondent had ample time to consider the complaint raised and to address it. 10 In addition to his attack on Pearson and his categorical denials of misconduct, he sought to shift the blame onto others for the placement of the steroids which were sent in a box to the airport. It was placed in the aircraft but removed at the instance of Pearson as it was not manifested. 11 He claimed the belief that he was entitled to supply steroids to another veterinary surgeon and pointed to what he termed a 'prescription' from such a surgeon in Thailand, Professor Sudson Sirivaidyapong (Professor S S). Professor S S treated Pangsriiam's horses in Thailand. 12 The respondent attended a meeting convened by the VSIC on 26 June 2006 when he was furnished with the material available to it, including a report regarding the blood samples he collected on 6 April 2006 and 13 April 2006 and the difference in the blood allegedly taken from the same horse on 13 April 2006. 13 He left the meeting and after conferring with his solicitor, he returned and admitted to substituting a blood sample from the horse 'Whoopsy' as the blood sample for 'Bruhaha'. He proffered explanations for his conduct and professed his embarrassment and regrets, however, even at this stage he continued to shift blame and did not assume full responsibility for his actions. He maintained that it was his understanding that once he had issued the medication (anabolic steroid) and horse feed to Mr Vichit Pangsriiam, that it became his responsibility to notify Instone that there would be goods accompanying the horse and that they should be included on the waybill. 14 He explained his conduct at the meeting by stating that prior to becoming aware of the DNA testing he believed that the only evidence against him was the statement of Pearson. He told the Tribunal that he had sought advice from fellow veterinary surgeons. When he told them that he had to appear before the VSIC as he had swapped blood samples, he accepted their advice not to admit anything until it was proven. Accordingly, he denied the allegations. He agreed that he lied as he did not believe there was hard evidence against him. 15 At the meeting referred to he maintained "they were just playing a part, a small cog in a much larger corrupt system but I am responsible for my own actions. I feel that someone is deliberately destabilising my career". 16 The VSIC, in effect, took steps to ensure that conditions on his registration were imposed pending the final disposition of the complaint against him. 17 In a letter to the VSIC of 3 July 2006 the respondent expressed his regrets and remorse for his admitted misconduct with regard to the blood samples and again stressed that he had received no financial gain or inducement. He denied that he had attempted to smuggle steroids to Thailand. 18 He acknowledged the seriousness of his conduct and expressed the realisation that he had compromised himself in his own eyes and that he had compromised his profession. 19 In subsequent submissions seeking variation of the conditions attaching to his practice, he pointed to the financial penalty he was suffering and the impact upon his mental health and his personal relationships. 20 The respondent's solicitors wrote to the applicant's solicitors on 17 August 2006. Reference was made to Mr Pangsriiam telling the respondent that he had previously lost money on the export of horses due to failed blood tests being returned and he wanted the respondent to "sort it out" so that the horses could be exported. Apparently he took this to mean that Mr Pangsriiam wanted him to falsify the blood tests. In that same letter it was stated "Indeed to his clear detriment in an attempt to appease his client and facilitate the export of the horses, Dr Thompson carried out instructions provided by Mr Pangsriiam to falsify blood tests. Until being pressured by Mr Pangsriiam to falsify the blood tests, Dr Thompson had intended to carry out his responsibilities diligently and professionally. 21 These two propositions appear to the Tribunal to be inconsistent. On the one hand it was indicating that he was interpreting Mr Pangsriiam 's instructions to mean that he wanted him to falsify the blood tests. On the other hand he states he was carrying out instructions provided by Mr Pangsriiam to falsify blood tests. 22 Returning to the steroids, the respondent maintained they were placed in a box along with the horse feed. They were sent to the airport but were not manifested goods. He claims that Pangsriiam was in his office and requested his secretary to "put the rest of the steroids in the box and the box on a truck to the airport". 23 It was Pearson's account that the respondent sent the box to the airport with the intention of having Pearson's groom, Mr Rein, carrying the non manifested goods to Bangkok. 24 When Pearson told the respondent that he had had the box removed from the aircraft as it was not manifested and that it had been confiscated by Customs, the respondent told him that the box contained steroids and that if the Customs found it, he could lose his licence. 25 On the evidence, it is apparent that the respondent well knew the prohibitions against the supply of anabolic steroids in other than strictly regulated circumstances. 26 In one of his versions of what occurred in relation to the steroids, he stated that "Richard was in office, took part of the drugs and requested his secretary to put the rest of the steroids in a box and the box on a truck to the airport. The feed and the box were unloaded from the plane and were unmanifested goods." 27 In Paragraph 59 of the respondent's statement of 4 April 2007, he stated "However I attempted to assist Pangsriiam because I believed that Pearson was charging him too much money for the provision of animal remedies. I provided steroids and other animal remedies to Pangsriiam on 20 April 2006. I instructed my assistant, Barbara Furina, to dispense the animal remedies to Pangsriiam and put them on horse pallets with the mares." 28 The suggestion that he was furnishing animal steroids to a vet in Thailand as against a prescription is an entirely different proposition to his statement that he was supplying the drugs to Pangsriiam because he believed that Pearson was charging him too much money for the provision of animal remedies. 29 This claim was patent nonsense. 30 If he was engaged in a genuine transaction there was no need to ship the steroids to Thailand in the manner adopted. 31 There was of course no evidence from the person he claimed to have been responsible for the packaging of the drugs and to what instructions were received. 32 In the course of his evidence before this Tribunal, the Respondent was taken to three documents which he described as prescriptions received from Professor S S. He claimed that on three occasions he received 'requests' for medications which he supplied and for which he was paid in cash, including one amount of $18,200. 33 He clearly sought to represent to the Tribunal that he was supplying steroids to a veterinary surgeon in Thailand as against these so called prescriptions which purported to have been faxed by Professor S S in 2004, 2005. Later in his evidence he admitted that his previous evidence that he had received a fax dated 2nd April, 2006 and the other faxes of 2004 and 2005 from Professor S S, was untruthful. 34 He stated in effect that these purported faxes were received about 26th April, 2006. They were fraudulent documents and did not emanate from Professor S S. 35 He went on to admit that he had not supplied anabolic steroids to Professor S S, but had supplied them to Pangsriiam for the sole reason that he had asked for them. Pangsriiam was not a veterinary surgeon. 36 When he furnished the drug to Pangsriiam he didn't provide any written instructions as to how they were to be administered, albeit that he claimed to have previously provided him with a letter explaining the administration of anabolic steroids. 37 When asked whether there was any evidence that the anabolic steroids supplied to Pangsriiam were to be used on horses, he stated "I trusted Pangsriiam". 38 The Tribunal has carefully considered the respondent's responses in his various statements, his accounts before the VSIC, the letters from his solicitors which were no doubt prepared on his instructions, and his evidence before this Tribunal. 39 Having regard to his blatant lies he initially told to the VSIC, the inconsistencies in his various accounts, his preparedness to blame others and to falsely accuse Pearson and taking into account his persistent lies in the witness box, the Tribunal finds that the respondent was not a remotely credible witness. 40 He presents as an intelligent man and was well qualified with wide experience gained in New Zealand, the United Kingdom, Kenya and in Australia. He had established his own business in July 2003 and has been involved in the certification and exportation of approximately 600 horses from Australia. 41 He described his policy of employing the most modern equipment and estimated that his practice services approximately 60% of standard bred horse trainers in the Sydney Basin. He enjoys the patronage of prominent trainers and major thoroughbred spelling centres. His veterinary practice was successful and his reputation and standing in the profession was high. 42 Seemingly he was not subject to financial or domestic pressures. There was no evidence to suggest that his conduct was influenced by such factors as alcoholism, or psychiatric disabilities. 43 His actions were calculated and deliberate and his conduct was not that of some young, unsophisticated inexperienced veterinary surgeon. He is well versed in the appropriate procedures and fully appreciated the significance of providing reliable evidence to the Thai authorities which was vital to the export of the horses to Thailand. He well knew the issues at stake, i.e. the compliance with the requirements of the Thai authorities without which the horses could not enter Thailand. 44 Dr Thompson realised that if the Thai authorities could not place trust in certificates from Australian veterinary surgeons, that if it became known that certificates and clearances were false and fraudulent, then the equine export industry to Thailand in particular and Asia in general, would be placed in grave jeopardy. 45 From his vast experience, he would have been acutely aware that the reputation of Australia as a reliable equine exporter, would be seriously diminished and that there was the potential to destroy an export industry worth multi millions of dollars. 46 The respondent's conduct was not a minor transgression with consequences restricted to himself and his client, with regard to but three horses. It had enormous ramifications with potential to wreak havoc on the businesses and employment of those engaged in exporting livestock to Asia. 47 David O'Meara, a highly qualified peer reviewer opined "The conduct of intentionally falsifying a veterinary certificate relating to disease testing status for export horses is unprofessional conduct". 48 Mr O'Meara went on to say: "The veterinary profession is relied upon by many areas of the equine industry to provide honest and unbiased reports and certificates. Horse studs, export companies, insurance companies and breed societies are examples of organisations that expect the highest level of professional standards in reports and certificates. Intentionally producing false and misleading information has the risk of putting doubt as to the professionalism of the wider veterinary community. If it is not certain that veterinarians can provide honest and factual certificates, we will not be asked to provide the service in the future". "The market for sale and export of horses from Australia is a considerable one. The protocols put in place for pre-export processing are clear as set out by the country of destination. These protocols for quarantine requirements and pre-export disease testing are to reduce the likelihood of movement of horses that are a perceived risk to spread infectious diseases to other horses in the country of destination. The action by Dr Thompson relating to the false and misleading export veterinary certificate outlined in paragraph 13 of the agreed statement of facts has the potential to reflect poorly on the reputation of Australia's export status in the eyes of countries of destination. A single incident as this would not be expected to be a catalyst for the country of destination to change its protocols in relation to horses being exported from Australia. If this type of conduct was repeated by a member of the veterinary profession, it could damage the international reputation of Australia in relation to the export of horses". "The regulations set out in the Stock Medicines Act 1989 are, I believe, an attempt by the veterinary profession through the legislation to avoid any possibility for misuse of injectable steroids and to minimise any risk for there to be an identified movement of veterinary injectable steroids to the criminal market for potential use in humans. Dr Thompson has due to the nature of his agreed statement of facts under the heading of 'Steroids' has contravened Order 1998/1 under section 46 of the Stock Medicines Act 1989." 49 Cameron Dowse Collins, veterinary surgeon, stated: "It is the deliberate nature of these actions which is to my mind a most serious breach of professional standards. The potential that these actions have to undermine the reputation of Australia and Australian veterinarians in certification and compliance with export protocols is significant ….With respect to the conduct described in paragraph 1 of the Agreed Statement of Facts (steroids), it is my opinion that Dr Thompson's conduct is a serious departure from the minimum acceptable standard of professional conduct for a registered veterinary surgeon in 2006 in that the legislation concerning anabolic steroids and drugs (Stock Medicines Act 1989)." 50 The Tribunal has taken into account the references tendered by the Respondent attesting to his competence and integrity and noted his claims that he was remorseful. 51 It was submitted that his exceptional experience, previously unblemished record and reputation and good character stood him in good stead. 52 Those professions of remorse and regret ring hollow. If they were genuine it would be reasonable to expect that the Respondent would have been frank and forthright before this Tribunal. 53 Instead he sought to maintain the deception involved in the purported prescriptions. It was only in the course of his evidence on the second day of the hearing when he realised that the sham with regard to the faxed "prescriptions" was obvious, that he confessed his attempted deception. 54 Apparently, the Respondent will only reveal the truth when his deceit is exposed. 55 He has demonstrated no vestige of insight. There are but two obvious alternative scenarios. Either (a) he has no conception as to what constitutes proper and honourable conduct in a veterinary surgeon, or (b) he fully appreciates that he is engaged in grossly serious impropriety and is simply indifferent to his obligations to the public and his profession. 56 It was submitted that he had made early admissions and concessions and that "his pleas of guilty should be taken into account". The Tribunal will have regard to them, however the credit to which he would normally be entitled, is diminished by his deliberate lies to it. 57 The Tribunal is aware that he has been practicing since 6th July, 2006 in accordance with restrictions imposed by the VSIC which, in effect, removed him from any participation in the export of horses from Australia. There has been no suggestion of further misconduct since the restrictions were imposed. Reliance was placed upon his claim that he acted impulsively and reacted to what he perceived to be a situation of pressure imposed by Pangsriiam. 58 The Tribunal does not accept that he falsified records because of irresistible pressure from Pangsriiam. 59 He preferred his own interests in pandering to the dishonest overtures of Pangsriiam to retain that man's grace and favour. 60 It is facile to claim as he does, that he did not receive any financial benefit. It might be that he didn't receive any immediate monetary gain by his conduct, however, he clearly acted with a view to retaining the patronage of a good client. 61 Obviously he benefited financially from supplying steroids to Pangsriiam and being paid in cash. On his own account he did not declare that cash in his taxation returns. 62 Simply put, there is no room in the profession for a veterinary surgeon so bereft of honesty, veracity and responsibility. 63 The Tribunal has no role in the provision or imposition of punishment and penalties. The function of the Tribunal is to take appropriate measures for the protection of the public. It is also concerned to ensure the adherence to proper standards of members of the veterinary profession. 64 This respondent's misconduct is so gross that no action short of the removal of his name from the Register would afford sufficient protection for the public. 65 A consideration which looms large in a matter such as this is the question of deterrence. Personal deterrence to the Respondent and deterrence directed to other members of the profession who might be tempted to ignore or breach their obligations by acting in their own interests to the detriment of the public and the profession. 66 It must be seen that if a veterinary surgeon is prepared to act with such serious impropriety then he or she will be removed from practice. 67 It is vital that veterinary surgeons be trusted by their colleagues and their clients by acting honourably and with the utmost. 68 In determining whether the complaint against the respondent has been proved, the Tribunal has applied the standard of proof as outlined in Briginshaw v Briginshaw (1938) 60 CLR. 336. 69 The Tribunal is comfortably satisfied that the Respondent engaged in serious misconduct in a professional sense pursuant to Section 22A of the Act. 70 In arriving at its decision the Tribunal has relied upon the concessions and admissions made by the Respondent, his own statements containing lies and falsehoods, the deliberate lies he told under oath, the statement of Pearson and the opinions expressed by the peer reviewers. 71 It considers that the Respondent's misconduct was so grossly serious that the only appropriate order is one pursuant to Section 32(i)(c) of the Act which provides for "An order directing that the name of a veterinary surgeon be removed from the Register of Veterinary Surgeons or the Register of Specialists". 72 The orders of the Tribunal are: (1) That the name of the Respondent be removed from the Register of Veterinary Surgeons or the Register of Specialists; (2) That the Respondent may not make any application for the restoration of his name to The Register prior to 10th May, 2011; (3) That the Respondent pay the Applicant's costs of the hearing. 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