Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Veterinary Practitioners Board v Hughes [2013] NSWADT 313 Hearing dates: 22 November 2013 Decision date: 22 November 2013 Jurisdiction: General Division Before: Judge K.P. O'Connor, AM, President Dr T Carter, (Non-judicial member) R Mayo-Ramsay, (Non-judicial member) Decision: By consent, 1. The Respondent is guilty of professional misconduct on the grounds particularised in paragraphs 3, 4, 5, 6, 7, 8, 10, 11, 12(a), and 14 of the application filed by the Applicant on 29 May 2013 (matter no.133172). 2. The Respondent's registration as a veterinary practitioner is cancelled. The Respondent cannot apply for registration as a veterinary practitioner for a period of 12 months from the date of these orders. 3. The Respondent's application filed on 30 July 2013 (matter no.133227) is dismissed. 4. The parties to bear their own costs of the proceedings. Catchwords: PROFESSIONAL DISCIPLINE - Veterinary Practitioner - Professional Misconduct - Consent Orders - Cancellation of Registration. Legislation Cited: Veterinary Practice Act 2003 Stock Medicines Act 1989 Poisons and Therapeutic Goods Regulation 2008 Category: Principal judgment Parties: Veterinary Practitioners Board of New South Wales (Applicant) Dr Susan Joy Hughes (Respondent) Representation: HWL EbsworthLawyers (Applicant) Longmores (Respondent) File Number(s): 133172 reasons for decision 1These reasons are issued in reference to the consent orders approved by the Administrative Decisions Tribunal (ADT) on 22 November 2013, the Tribunal then responsible for hearing and determining proceedings brought under the Veterinary Practice Act 2003 (VPA). The Tribunal had two applications before it, the first an application for disciplinary findings and orders filed by the Veterinary Practitioners Board against a veterinary practitioner, Dr Susan Joy Hughes (matter no. 133172), the second an application for review of a disciplinary decision made by the Board on 21 September 2013 in respect of a complaint made to the Board. Background to Consent Orders 2The Board took action against Dr Hughes following a complaint relating to her practices in relation to the use and supply of drugs in her possession by reason of her work as a veterinary practitioner. The Board investigated her conduct in relation to her receipt and supply of prescribed restricted substances, special restricted substances and drugs of addiction, and audited her record keeping practices. On 29 May 2013 the Board lodged an application for a disciplinary finding of professional misconduct and for orders that her registration be cancelled, for its costs and such farther order as the Tribunal sees fit. The material before the Tribunal comprised: Board: the Application; affidavit in support sworn 24 May 2013, of John Baguley, Registrar of the Board, containing numerous annexures mainly related to record keeping; Reply by the respondent, filed 23 July 2013; small bundle handed up by respondent at hearing. 3Section 35 of the VPA defines 'professional misconduct' as, in essence, a more serious form of 'unsatisfactory professional conduct'. It is therefore necessary to consider the definitions of both terms. We will set out the full definition of 'professional misconduct' and those parts of the related definition of 'unsatisfactory professional conduct' relevant to these proceedings. professional misconduct means: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of a veterinary practitioner's registration, or (b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act. unsatisfactory professional conduct means any of the following: (b) contravening Order 1998/1 made under section 46 of the Stock Medicines Act 1989 and published in Gazette No 108 on 17 July 1998 at pages 5496-5498 (or any Order amending or replacing that Order), (d) any contravention by a veterinary practitioner of the conditions of the veterinary practitioner's registration, (e) any failure by a veterinary practitioner to comply with a provision, prescribed by the regulations for the purposes of this paragraph, of the code of professional conduct in effect under section 37, (f) any failure by a veterinary practitioner to supervise a person adequately in doing an act where supervision by a veterinary practitioner was required by law and the veterinary practitioner concerned undertook to provide that supervision, (k) any other conduct of a veterinary practitioner that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of veterinary science, (l) any other improper or unethical conduct of a veterinary practitioner in the course of the practice of veterinary science. 4We will now set out the specific legal provisions to which the matters admitted by Dr Hughes refer. We will then set out the detail of the matters admitted. 5The legal requirements: Poisons and Therapeutic Goods Regulation 2008 119 Loss or destruction of registers Immediately after a drug register (including a ward register) is lost or destroyed, the person responsible for keeping the register: (a) must give written notice to the Director-General of that fact and of the circumstances of the loss or destruction, and (b) must make an accurate inventory of all drugs of addiction held at the premises concerned and enter, in a new drug register, the particulars of the drugs so held. Maximum penalty: 20 penalty units. 124 Loss or theft of drugs of addiction A person who is authorised to be in possession of drugs of addiction must immediately notify the Director-General if the person loses a drug of addiction or if a drug of addiction is stolen from the person. Maximum penalty: 20 penalty units. Stock Medicines Act 1989 46 Supply and use bans and recall orders (1) The Director-General may make an order under this section if the Director-General believes on reasonable grounds that the administration or application of a stock medicine or a stock medicine of a particular class: (a) is likely to endanger the health of the public, consumers of food or produce derived from stock or persons administering or applying the stock medicine, or (b) is likely to cause undue hazard to the environment, or (c) is likely to make stock ill, or (d) is likely to have an adverse effect on trade, or the promotion of trade, in stock or a product derived from stock, or (e) is likely to impede the control or eradication of diseases or pests affecting stock, or (f) is likely to impede the control or reduction of populations of pests, including bacterial organisms, that are resistant to stock medicines, or (g) is inappropriate in a particular area because of local climatic or soil conditions. Editorial note. For orders under section 46-see item (5) of the Historical notes at the end of this Act. (2) An order under this section may: (a) prohibit or regulate the supply of the stock medicine or stock medicines of the class, or (b) require any person who has supplied the stock medicine or stock medicines of the class to take such reasonable steps as are specified in the order to recover any such stock medicine from other persons to whom it has been supplied by the person, or (c) prohibit or regulate the use of the stock medicine or stock medicines of that class by any person in relation to any specified species of animal, or (d) provide for exemptions from the operation of the order. (2A) Without affecting the generality of subsection (2), an order under this section made in relation to a specified stock medicine or a stock medicine of a specified class may make provision for or with respect to: (a) the identification or marking of stock to indicate whether or not stock has been treated with the stock medicine, including the use of particular colours of tags required under the Stock Diseases Act 1923, or (b) the making and keeping of records relating to, and to the treatment given or not given by, the stock medicine, or (c) the information or documentation required to accompany the stock medicine when sold, or to accompany stock when sold or consigned for sale, or (d) the disposal of the stock medicine in accordance with requirements of the Director-General, or (e) the holding of an authority for the purchase, sale or use of the stock medicine, the fixing of a fee for such an authority and the waiver of such a fee, or (f) the prohibition of the use of the stock medicine for a particular purpose or for any purpose. (3) An order under this section: (a) is to be published in the Gazette and in some other manner that, in the opinion of the Director-General, is most likely to bring it to the attention of the persons who will be affected by it, and (b) if it applies to a named person (whether or not it also applies in any respect generally or to a specified class of persons) is to be served on the named person, and (c) may relate to a registered stock medicine or an unregistered stock medicine. (4) (Repealed) (5) Any such order takes effect: (a) in so far as it applies to a named person, when it is served on the person, and (b) in so far as it applies generally or to a specified class of persons, when it is published in the Gazette or on any later date specified in the order. (6) A person must not, without reasonable excuse, contravene an order under this section. Maximum penalty: 200 penalty units or, for an offence by a corporation, 400 penalty units. Orders Stock Medicines Act 1989, section 46. Order 1998/1 Injectable Steroids (Anabolic and Other Products) 3. Supply, Use and Record-keeping The following prohibitions and regulations apply to injectable steroids: A. Subject to clauses 3B(ii) and 6, a veterinary surgeon must not prescribe the supply of, or supply, an injectable steroid to any person. B. Where a veterinary surgeon treats any stock with an injectable steroid, the veterinary surgeon must either: i. inject the stock with the injectable steroid personally, or ii. permit a person in the immediate presence of the veterinary surgeon to inject the stock with the injectable steroid. C. A veterinary surgeon must maintain a legible record, which includes the following information, in respect of any injectable steroid in the possession of the veterinary surgeon as at the date of commencement of this Order and any injectable steroid subsequently coming into the possession of the, or used or disposed of by, the veterinary surgeon: (i) name of the injectable steroid, (ii) the date the veterinary surgeon obtained the injectable steroid (iii) name and address of the source from which the injectable steroid was obtained, (iv) the total quantity of the injectable steroid obtained, (v) details about the use or disposal of the injectable steroid, adequate to account for its total quantity, including: - date of use or disposal, - amount used or disposed of, - in the case of use, the stock on which the injectable steroid was used (particularly, details sufficient to identify the stock and the name and address of the owner or person in charge of the stock), - in the case of disposal, how the injectable steroid was disposed of, including the name of the recipient, if any, of the injectable steroid, and - the amount of the injectable steroid remaining after use or disposal out of the total quantity as recorded for the purposes of this clause. 1. Disposal of Injectable Steroids Where a veterinary surgeon no longer wants to keep an injectable steroid that is in the veterinary surgeon's possessions, the veterinary surgeon must either: - supply the injectable steroid to another veterinary surgeon, or - return the injectable steroid to the source from which it was obtained, or - otherwise dispose of the injectable steroid in a manner approved in writing by the Veterinarian (Chemical Control), NSW Agriculture. Veterinary Practitioners Code of Conduct 15 Records (1)A veterinary practitioner must ensure that a detailed record of any consultation, procedure or treatment is made as soon as is practicable. (2)The record: (a) must be legible and in sufficient detail to enable another veterinary practitioner to continue the treatment of the animal, and (b) must include the results of any diagnostic tests, analysis and treatments. (3) A veterinary practitioner must ensure that all records of any consultation, procedure or treatment are retained for at least 3 years after they are made. The Matters Admitted 6The respondent admitted the following allegations and particulars: 3. The respondent engaged in improper or unethical conduct in the course of the practice of veterinary science or failed to demonstrate adequate knowledge, skill, judgment or care in the practice of veterinary science in that she, (a) failed to give written notice to the Director-General [of the Department of Health CHECK] or delegate on or about 20 February 2011 that he drug register had been destroyed contrary to cl 119 of the Poisons and Therapeutic Good Regulation 2008 (PTGR). (b) failed to notify the Director-General or delegate on or about 20 February 2011 that she had lost or had stolen from her a drug of addiction contrary to cl 124 of PTGR. 4. The respondent contravened clause 3C of Order 1998/1 made under s 46 of the Stock Medicines Act 1989 (SMA) in that she failed to maintain a legible record of the possession of the specified injectable steroids as set out on the dates specified in Appendix A [5 dates from 29/3/11 to 26/5/11]. 5. The respondent engaged in improper or unethical conduct in the course of veterinary science or failed to demonstrate adequate knowledge, skill, judgment or care in the practice of veterinary science in that she failed to record in her drug register the receipt of Ketamine 50ml received from Cenvet Australia Pty Ltd on 27 March 2011. 6. The respondent contravened cl 3A of Order 1998/1 made under s 46 of the SMA or failed to demonstrate adequate knowledge, skill, judgment or care in the practice of veterinary science in that she supplied 500ml bladders of Testosterone Propionate being an injectable steroid on the dates set out in Appendix B [15 dates, from 9/3/11 to 20/5/11]. 7.The respondent contravened cll 3A and 3B of Order 1998/1 made under s 46 of the SMA on various occasions between 10 March 2011 and 28 June 2011 in that she permitted a person to inject stock (horses) not in the presence of a veterinary surgeon. 8. The respondent engaged in improper or unethical conduct in the course of the practice of veterinary science and contravened cl 3A of Order 1998/1 made under s 46 of the SMA when she supplied 2000ml of Testosterone Propionate on 3 December 2011, 2000ml of Testosterone Propionate on 24 December 2011 and 500ml of Testosterone Propionate on 5 January 2012 being injectable steroids to a person who identified himself as 'David Olds'. 10. The respondent contravened cl 6 of Order 1998/1 made under s 46 of the SMA on the dates set out in Appendix D [13 dates from 7/5/11 to 23/6/11] in that she inappropriately disposed of the specified injectable steroids by discarding them in or about Eclipse Stables, Sydney, NSW. 11. The respondent engaged in improper or unethical conduct in the course of the practice of veterinary science or failed to demonstrate adequate knowledge, skill, judgment or care in the practice of veterinary science in that she destroyed a drug of addiction, namely Ketamine 3.5ml on 2 April 2011 and Ketamine 6.5ml on 19 May 11, contrary to cl 125 of the PTGR. 12. The respondent engaged in conduct in her professional capacity as a veterinary practitioner which demonstrates incompetence or lack of adequate knowledge, skill, judgment or care in the practice of veterinary science, in that: (a) on the occasions set out in Appendix E [16 animals listed, some with several administrations, from 10/3/11 to 28/5/11] she prescribed and administered excessive or inadequate doses, as the case may be, of the following substances to a patient: (i) Testosterone Propionate (ii) Testosterone Enanthate (iii) Ketamine; and (iv) Butorphanol 14. The respondent failed to comply with cl 15 of the Veterinary Practitioners Code of Conduct in that during the period 10 March to 28 June 2011 she maintained clinical records which were deficient in the following respects: (a) they did not provide a detailed record of consultation, procedure or treatment including clinical histories; (b) they did permit another veterinary practitioner to continue treatment of her animals including; (c) they did not note the proper dose rates for anaesthetic agents used; and (e) they failed to provide a proper anaesthetic record. 7It will be seen that one charge goes to professional skill in the administration of doses (no 12(a)), one involved provision of steroids to a human being, 'David Olds', and most of the others involve serious breaches of the strict record keeping standards, especially those relating to injectable steroids, that are fundamental to the practice of veterinary medicine. 8The Board's case relied primarily on the investigation undertaken at its request by the Pharmaceutical Standards Unit of the Department of Health. Its detailed investigation report dated 22 September 2011 forms ex JB1 to the Board's affidavit. The Board's affidavit also annexes an expert opinion from Dr Craig Suann on the appropriateness of the dosage regime of anabolic steroids (specifically Testosterone Proprionate and Testosteroe Etanthate) as shown in the respondent's clinical records for the period March to June 2011; and an expert opinion from Dr Colin Dunlop, a registered specialist in veterinary anaesthesia, on the appropriateness of the parenteral anaesthetic regimen as shown in the respondent's clinical records for the period March to June 2011. The respondent attended a formal interview by the Board's Complaints Committee on 3 April 2012, the transcript is annexed to the affidavit. During the meeting the respondent supplied copies of numerous documents divided into tax invoices relating to purchase of Cenvet, a desk diary covering the period January-April 2012 and a Drugs and Addiction Register relating to her administration of the drugs in issue in the case. 9In the affidavit accompanying her reply, Dr Hughes details her history as a veterinary practitioner, which extends back more than 20 years. She describes herself a big animal veterinarian. She has mainly worked in country districts in areas such as Goulburn, Bowral and Bringelly. She has worked a lot with horses, and she refers to her ownership in recent years of a horse agistment centre, Wattle Grove Park, and her business association with two brothers, Jeremy and Beau Wilson, horse trainers, in particular in connection with their enterprise Eclipse Racing. The complaint that has led to these proceedings was lodged by Jeremy, who alleged that Dr Hughes was improperly supplying drugs to his brother for his use. Dr Hughes has strongly denied this allegation. She also provides an explanation of her dealings with the man known as 'David Olds', and states that the drugs she supplied him were for the treatment of his sheep. She refers in her affidavit to her recent, poor health history. She also refers to the financial losses she has experienced in recent years. As the matter was disposed of by consent, the statements in her affidavit were not tested or challenged. We have included this synopsis to give some context to the proceedings. 10Clearly the order of deregistration is a very significant one for a practitioner of Dr Hughes' age and experience. This is the most significant penalty that can be imposed. The purpose of disciplinary orders is the protection of the public. It will mean that Dr Hughes can no longer practise as a veterinarian, and the bar on further application (12 months) gives some certainty in that regard. Furthermore if she is to reapply she will have to satisfy the Board that she has the current skills and judgment to be registered again. 11The review application (matter no 133227) was not, on its face, an application that could have engaged the jurisdiction of the Tribunal. It does not refer to any decision of the Board that falls within the Tribunal's review jurisdiction. It appears to have been lodged with a view to having the Tribunal examine aspects of the way the Board, and the Pharmaceutical Standards Unit, conducted themselves towards Dr Hughes in the course of the disciplinary investigation that gave rise to the Board's application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2014