[2024] WASAT 140 (S)
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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : VETERINARY PRACTICE ACT 2021 (WA)
CITATION : VETERINARY PRACTICE BOARD OF WESTERN AUSTRALIA and BURSTEIN [2024] WASAT 140 (S)
MEMBER : JUDGE H JACKSON, DEPUTY PRESIDENT
MS C CONLEY, MEMBER
DR A VIGANO, SENIOR SESSIONAL MEMBER
HEARD : 16 APRIL 2025
DELIVERED : 14 JULY 2025
FILE NO/S : VR 105 of 2022
BETWEEN : VETERINARY PRACTICE BOARD OF WESTERN AUSTRALIA
Applicant
AND
ADRIAN DAVID KOPPEL BURSTEIN
Respondent
Catchwords:
Vocational regulation – Veterinarian – Penalty – Findings of professional misconduct as to deliberate dishonesty and incompetence – Principles relating to sanction – Protective purpose of disciplinary proceedings – Lack of insight and remorse – Previous disciplinary history – Specific and general deterrence – Reprimand – Fine – Cancellation of registration – Disqualification from applying for re-registration
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Legislation:
Interpretation Act 1984 (WA), s 37
Veterinary Practice Act 2021 (WA), s 102, s 102(2)(c)(i), s 102(2)(c)(ii), s 211
Veterinary Surgeons Act 1960 (WA), s 23(2aa)(c)
Result:
The respondent is reprimanded
The respondent’s registration is cancelled
The respondent is disqualified from applying for registration for 5 years
The respondent is to pay to the applicant a fine of $5,000
Category: B
Representation:
Counsel:
Applicant
:
Mr G M Abbott
Respondent
:
Ms F A Stanton & Ms M R Rivett
Solicitors:
Applicant
:
Thomson Geer
Respondent
:
Meridian Lawyers
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Craig v The Medical Board of Australia (2001) 79 SASR 545
Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359
Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S)
Legal Profession Complaints Committee and Staffa [2020] WASAT 58 (S)
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v Love [2014] WASC 389
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Legal Services and Complaints Committee and Khosa [2023] WASAT 90 (S)
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Muffert [2022] WASAT 115
Nadkarni v Medical Board of Australia [2022] WASCA 109
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Psychology Board of Australia v Fawcett [2023] WASAT 86; (2023) 111 SR (WA) 19
Quinn v Law Institute of Victoria [2007] VSCA 122
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Singh v Medical Board of Australia [2019] WASCA 51
Veterinary Practice Board of Western Australia and Braunstein [2024] VR 14
Veterinary Practice Board of Western Australia and Burstein [2024] WASAT 140
Veterinary Practice Board of Western Australia and Walton [2023] VR 117
Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S)
Veterinary Surgeons’ Board of Western Australia and Harris [2017] WASAT 100 (S)
Veterinary Surgeons Investigating Committee v Howe [No 2] [2003] NSWADT 156
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1
By reasons delivered on 12 December 20241 (Primary Reasons), we found that the respondent (Dr Adrian Burstein) had engaged in 22 counts of professional misconduct as a veterinarian pursuant to the Veterinary Practice Act 2021 (WA) (VP Act).
2
The findings concern Dr Adrian Burstein’s care and treatment of two dogs (Malo and Meggs) and/or his conduct afterwards.
3
A hearing as to penalty and costs occurred on 16 April 2025 (Penalty Hearing). Each party filed a written outline of submissions and Dr Adrian Burstein provided two bundles of character references.2
4
Although the written material filed by the parties addressed the issue of costs, by consent that issue was not addressed at the Penalty Hearing. Rather, orders were made providing for conferral. The issue remains outstanding as at the date of publication of these reasons and, if agreement cannot be reached, a further hearing may be required. In any event, these reasons do not address the issue of costs but are limited to that of penalty.
5
The applicant (Board) seeks orders such that Dr Adrian Burstein’s registration as a WA veterinarian is cancelled and he is disqualified from applying for registration indefinitely, as well as a fine of $22,000.
6
In stark contrast, it was Dr Adrian Burstein’s case that ‘the findings do not call for cancellation of registration’.3 Rather, it was submitted on his behalf that ‘conditions could be imposed that would safeguard the public either in lieu of suspension or following a period of suspension’.4
7
For the reasons which follow, the Tribunal has decided that Dr Adrian Burstein’s registration should be cancelled and that he should be disqualified from applying for registration as a WA veterinarian for a
1 Veterinary Practice Board of Western Australia and Burstein [2024] WASAT 140.
2 Applicant’s Submissions on Sanctions and Costs filed on 5 March 2025 (Applicant’s Submissions); Respondent’s Outline of Submissions as to Penalty and Costs filed on 9 April 2025 (Respondent’s Outline); Respondent’s Bundle of Character References for Hearing on Penalty and Costs filed on 10 April 2025 (Bundle of Character References); and Respondent’s Supplementary Bundle of Character References for Hearing on Penalty and Costs filed on 10 April 2025 (Supplementary Bundle of Character References).
3 Respondent’s Outline, para 71.
4 Respondent’s Outline, para 73.
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period of
5 years. He should also be reprimanded and a modest fine of $5,000 should be imposed.
8
The decision whether to register him or not at the end of the 5 year period, or some later time, should he seek registration, and any conditions which are imposed if registration is granted, will be a matter for the Board. Nonetheless, at the conclusion of these reasons we offer our view as to some issues which may assist both Dr Adrian Burstein and the Board should he so apply.
Legal Framework and General Principles as to Sanction
9
Section 102 of the VP Act provides a range of possible penalties that we may impose having made a finding of professional misconduct against a veterinarian. They are a reprimand; a fine of no more than $10,000; the imposition or modification of conditions; the suspension of registration; and the cancellation of registration, either indefinitely or for a period specified.
10
It was submitted on behalf of Dr Adrian Burstein that the range of penalties is relevant to the question of penalty,5 citing the Court of Appeal in Nadkarni.6 We accept that that is so. The Court stated:7
… It was necessary for the Tribunal, in arriving at the decision [to suspend Dr Nadkarni’s registration], to evaluate and weigh a broad range of factors. Those factors included the purpose of disciplinary proceedings against medical practitioners (notably, the protection of the public and the maintenance of high professional standards); the findings of fact made by the Tribunal in its reasons; the numerous sanction or penalty options available to the Tribunal under s 196(2) of the National Law; the sanctions or penalties that have been imposed upon medical practitioners in previous cases with at least some features reasonably comparable to the present case; personal and general deterrence; Dr Nadkarni’s personal circumstances and antecedents; and the mitigating factors. The determination of the appropriate sanction or penalty option or options was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various sanction or penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique ‘right’ answer which was able to be identified by the application of principle[.]
11
The above passage succinctly summarises our task and also describes the central principle governing the exercise of our discretion:
5 Respondent’s Outline, para 63.
6 Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni), [69], [82] and [116].
7 Nadkarni, [82].
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that the purpose of disciplinary proceedings against
veterinarians, as much as medical practitioners, lawyers or other professionals, is the protection of the public and the maintenance of high professional standards.
12
The other principles relevant to the task are also well established and, save for three areas of disagreement, the parties’ submissions proceeded upon a common understanding of them.
13
Two of the differences between the parties arise from paragraph 1 of the Respondent’s Outline which said:
It is well established that disciplinary proceedings are not punitive. They have as their sole purpose the protection of the public through the maintenance of professional standards. This means that no penalty beyond that which is required for the protection of the public should be imposed.
14
Mr Abbott, who appeared for the Board, took issue with both the first and last sentences of that paragraph.8
15
We agree that the first sentence has not been framed with great precision but that shortcoming does not appear to us to represent any fundamental misunderstanding of the relevant principle on the part of counsel.
16
The point made by Mr Abbott, which is supported by considerable authority, is that it is the purpose of disciplinary proceedings which is protective rather than its outcome.
17
The result is that the impact of a sanction imposed in disciplinary proceedings may well be punitive. As the High Court acknowledged in Evatt, the exercise of the Court’s protective power ‘may involve a great deprivation to the person disciplined’.9 Indeed, because of the protective purpose of disciplinary sanctions, the personal impact suffered by a practitioner may be greater than would have been the case if the sanction was imposed for punitive purposes.10
8 ts 31 – 34, 16 April 2025.
9 New South Wales Bar Association v Evatt (1968) 117 CLR 177 (Evatt), 183.
10 Craig v The Medical Board of Australia (2001) 79 SASR 545 (Craig), [46].
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18
As to the final sentence in the above quoted paragraph, Mr Abbott submitted that the decision cited in support of it (Thorpe11) is not authority for the proposition stated. We agree.
19
Further, the proposition stated does not accurately reflect the relevant principle. It is not that ‘no penalty beyond that which is required for the protection of the public should be imposed’. Rather, it is that where there is a choice of sanctions, the decision-maker is expected ‘to choose that sanction which maximises the protection of the public’.12 As we have said, that principle has the effect that a sanction may be imposed which is greater than would have been the case if the purpose of the sanction was punitive.
20
The third area of disagreement between the parties as to principle was the role of the ‘twelve matters’ identified in Alexander.
21
In that case the Tribunal stated that ‘twelve matters may require consideration’ when determining an appropriate sanction.13
22
The list was subsequently used in cases in a manner that the Tribunal described in Chang as ‘formulaic’. It said that the focus, instead, ‘should be on identifying and assessing the particular matters which are relevant to the determination of the appropriate disciplinary consequence of the conduct in question in the circumstances of the case’.14 We agree, but that is not to say that any one of those factors, or indeed, the whole of them, are wrong or should not be considered. As the Tribunal held in Nairn, while they ‘are not exhaustive, they provide a useful framework for considering the circumstances … relevant to penalty’.15
23
That approach is consistent with that described by the Court in Nadkarni in the passage quoted above; that the various relevant matters must be weighed and balanced in a process which is not mechanical.
24
Finally, before leaving the issue of broad principle, it is necessary to note that the central concept of the ‘protection of the public’ ought not to be narrowly framed. It is certainly not limited to the question whether
11 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9, [43].
12 Quinn v Law Institute of Victoria [2007] VSCA 122, [31]; Veterinary Surgeons Board of Western Australia v Alexander [2014] WASAT 105 (S) (Alexander), [14].
13 Alexander, [10].
14 Legal Profession Complaints Committee and Chang [2019] WASAT 67, [292].
15 Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359 (Nairn), [23].
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the relevant practitioner poses a particular risk
. Rather, the concept has been said to contain ‘various dimensions’.16
25
In Singh,17 the Court of Appeal said that:
… the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner’s conduct, the need to bring home to the practitioner the seriousness of their conduct and to the need to deter the practitioner from future breaches. … the protection of the public may [also] require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. Such an order may, in this sense, be regarded as akin to ‘general deterrence’.
26
That passage cites the decision of the South Australian Full Court in Craig,18 where Doyle CJ, with whom the other judges agreed, held:
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
16 Nairn, [14].
17 Singh v Medical Board of Australia [2019] WASCA 51, [32]. Citations omitted.
18 Craig, [46] – [48].
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27
Returning to the general principles applicable to our task, the following are uncontroversial:
(a) the appropriate sanction to be imposed is to be considered at the time of the making of the sanction and not by reference to the date of the misconduct.19 That has particular relevance to the question of insight and contrition;20
(b) of particular significance will be whether the findings of misconduct reveal that a person is unfit to practise;21
(c) as has already been averted to, given the protective purpose of disciplinary proceedings, the impact of an appropriate penalty on the practitioner (i.e. any personal hardship suffered by them as a result of the sanction) must necessarily be of secondary significance;22
(d) in a case such as this, which concerns the discipline of a veterinarian, in addition to those matters of general importance to all professions is the issue of the welfare of animals;23 and
(e) while, as a general proposition, it is preferable for each breach of professional standards to be reflected in a penalty, there are circumstances in which a ‘global’ approach to sanction may be more appropriate, especially where the facts of each breach are closely, or inextricably, woven together.24
Principles relating to the imposition of conditions on a practitioner’s registration
28
As noted above, s 102(2)(c)(i) and (ii) of the VP Act provides a power to impose or modify a condition of Dr Adrian Burstein’s registration by way of sanction for our findings of professional misconduct.
19 A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21]; Khosa v LPCC [2017] WASCA 192 (Khosa), [195]; Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S), [8].
20 A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21]; Khosa, [195]; Veterinary Surgeons’ Board of Western Australia and Alexander [2014] WASAT 105 (S), [8].
21 Singh, [34], citing Khosa, [191] – [192].
22 Legal Profession Complaints Committee v Detata [2012] WASCA 214, [47]; Legal Profession Complaints Committee v Love [2014] WASC 389, [59]; Nairn, [15].
23 Alexander [2014] WASAT 105 (S), [12]; Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson), [110].
24 Medical Board of Australia and Singh [2017] WASAT 33 (S), [29]; Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S), [45] and [82].
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29
A condition so imposed must be reasonably capable of being regarded as related to the purpose of the relevant disciplinary proceedings.25
30
The imposition (or modification) of conditions is appropriate as a disciplinary sanction where, in order to protect the public:
(a) there is a need to modify or remediate the behaviour of the veterinarian by means of education, supervision, inspection, counselling or medical intervention, especially where there is a pattern of conduct in the course of their veterinary practice;
(b) there is a need to prevent the veterinarian from engaging in certain conduct in the course of their practice because their skill set is deficient or because they are suffering from an impairment; or
(c) there is a need to guard against the risk that the veterinarian may lose essential skills during any period of suspension that is imposed.26
31
Save for the final of those propositions, the imposition or modification of conditions proceeds on the basis that the practitioner will continue to practice.
32
The submissions made on behalf of Dr Adrian Burstein proceeded on the basis that we could impose conditions sufficient to ‘safeguard the public either in lieu of suspension or following a period of suspension’.27
33
In our view, the imposition of conditions without a period of, at least, suspension would not adequately respond to the facts and circumstances of this case. Specifically, we are concerned that the submission made on behalf of Dr Adrian Burstein as noted in the immediately preceding paragraph fails to recognise/acknowledge:
(a) the very serious nature of the factual findings, both as to dishonesty and to incompetence;
(b) the lack of any real insight or contrition by Dr Adrian Burstein and the risk that poses of recurrence;
25 Nadkarni, [98].
26 Nadkarni, [104].
27 Respondent’s Outline, para 73.
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(c) the need for a suitably strong sanction to ensure that both Dr Adrian Burstein and the profession more generally are clear that conduct of this nature is unacceptable; and
(d) the need for the public to be provided with sufficient comfort that grave misconduct of the nature involved will be adequately sanctioned.
34
We address these matters in more detail below, but for present purposes it suffices to say that, accordingly, we are satisfied that it is necessary to consider the principles concerning the suspension and cancellation of registration.
Principles relating to suspension and cancellation of registration
35
A number of cases have discussed suspension versus cancellation of a practitioner’s right to practise, however that may be achieved.28 The following principles may be distilled therefrom:
(a) Where a conclusion is reached that a practitioner is presently unfit to practise, then a choice may be made between suspension and cancellation of the practitioner’s registration/striking off.29
(b) Present unfitness to practise includes a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner’s fitness to practise.30
(c) The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of a member of their profession, but where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.31
(d) Where the practitioner’s unfitness to practice reveals that they lack the qualities of character necessary to discharge the responsibilities of practise (or that they are otherwise permanently or indefinitely unfit to practise), cancellation of
28 Alexander; Khosa; Singh v Medical Board of Australia [2019] WASCA 51 (Singh); Nadkarni; Nairn, [17] – [22]; and Psychology Board of Australia v Fawcett [2023] WASAT 86; (2023) 111 SR (WA) 19, (Fawcett).
29 Khosa, [191]; Singh, [36].
30 Khosa, [191]; Singh, [34].
31 Khosa, [191]; Alexander, [20] and [21]; Nairn, [19].
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registration/striking off rather than suspension will, at least ordinarily, be the appropriate response.32
(e) Permanent or indefinite unfitness to practise will be a sufficient basis for cancelling the practitioner’s registration/striking off but is not a necessary condition for cancellation, unless the relevant statutory regime makes it a necessary condition (which the VP Act does not).33
(f) If the Tribunal has the power to impose a period of suspension, then the length of the suspension imposed must both represent the period after which the Tribunal is satisfied that the practitioner will be fit to practise (as above34) and be commensurate with the overall seriousness of the professional misconduct when viewed in the context of all of the relevant factors.35
(g) If the Tribunal has the power to order that a practitioner be disqualified from applying for registration for a specified period, or has the power to fix a period within which registration may not be sought, then:
(i) that period indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession;36 and
(ii) all of the factors relevant to penalty are relevant to the determination of the period of disqualification including: the protective purpose; the seriousness of the conduct; deterrence, both specific and general; the denunciation of misconduct in order to uphold public confidence in professional standards; and ‘signalling that those whose conduct does not meet the required standards will not be permitted to practise’.37
32 Khosa, [192]; Alexander, [19] and [21] Singh, [34] and [37]; Nairn, [16].
33 Singh, [38]; Nairn, [16]; Fawcett, [53].
34 Khosa, [191]; Alexander, [20] and [21]; Nairn, [19].
35 Nadkarni, [82].
36 Singh, [44]; Fawcett, [54], citing Nairn, [18].
37 Singh, [43] – [45] and [97].
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Principles relating to the imposition of a fine
36
By the Applicant’s Outline, fn 64, the Board submits that any fine cannot exceed that which could be imposed under the previous legislative regime. Reference is made to Mijatovic38 in that regard.
37
Section 23(2aa)(c) of the Veterinary Surgeons Act 1960 (WA) (VS Act) provided for a fine not exceeding $1,000.
38
The Board’s submission that a suitable penalty includes a fine of $22,000 appears to represent a fine of $1,000 for each of the 22 findings of professional misconduct.
39
One of the issues in Mijatovic was the extent to which conduct that had been engaged in prior to a change in the relevant regulatory regime (due to the repeal and replacement of relevant legislation) was addressed under the new regime.39 Critical in its determination in this regard was s 37 of the Interpretation Act 1984 (WA) (Interpretation Act), which provides a ‘savings’ of various things despite the repeal of legislation, including the ‘inchoate liability’ incurred by misconduct engaged under the repealed legislation. Section 37 provides for its own exclusion by the expression of a ‘contrary intention’ in the repealing legislation.
40
In this case, as we made clear in our Primary Reasons (at [7] – [10]):
(a) The VP Act came into operation on 18 June 2022, before the Board filed the application in the Tribunal on 23 November 2022;
(b) The VP Act repealed and replaced the VS Act;
(c) The investigation into Dr Adrian Burstein’s conduct was commenced, following a complaint by Malo’s owner on 14 March 2022, under the VS Act, with no complaint made by Meggs’ owner; and
(d) Section 211 of the VP Act provides that an ‘investigation or inquiry’ under the VS Act ‘that was commenced but not completed before [the day on which the VP Act took effect] must be continued and dealt with as if it were an investigation of, or inquiry into, a complaint under’ the VP Act.
41
In our view, s 211 of the VP Act expresses the necessary ‘contrary intention’ for conduct such as this, which was concluded prior to the
38 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115.
39 See, for example, Mijatovic, [144]. See, also, Goldsmith, [25] – [38].
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commencement of the VP Act.
It provides for such conduct to be ‘continued and dealt with’ under the VP Act such that there does not appear to be any room for the operation for s 37 of the Interpretation Act (and the relevant analysis in Mijatovic) for the retention of any inchoate liability under the VS Act.
42
As such, the relevant penalties are, in our view, those set out in the VP Act, rather than the VS Act. Relevantly, the maximum fine that may be imposed for each finding of professional misconduct is therefore $10,000 and not $1,000.
The Factual Findings
43
The findings we have previously made about Dr Adrian Burstein’s misconduct are very serious indeed. Briefly stated, we found that he:
(a) knowingly made eight false representations to Malo’s Owner concerning Malo’s care and treatment;
(b) charged Malo’s Owner a fee for a service (night intensive monitoring) that he did not provide;
(c) knowingly made four false statements to the Board in a statutory declaration about Malo’s care and treatment;
(d) failed to obtain a complete clinical history about Meggs from Meggs’ Owner;
(e) failed to get consent from Meggs’ Owner to obtain Meggs’ clinical history/records from the four veterinary practices that had seen Meggs prior to being seen by him (Prior Treating Veterinarians);
(f) failed to take steps to obtain Meggs’ clinical history/records from the Prior Treating Veterinarians;
(g) inadequately monitored Meggs overnight;
(h) had no proper basis for making a ‘guarded’ prognosis of Meggs’ condition, recklessly understated the severity of her condition and overstated the prospects of success of surgery;
(i) failed to inform Meggs’ Owner that, unless the results of earlier tests performed by the Prior Treating Veterinarians (Earlier Test Results) could be obtained and provided to him, he would have
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to perform his own tests (Own Tests) before he proceeded with surgery;
(j) performed surgery on Meggs without obtaining the Earlier Test Results or performing his Own Tests;
(k) made an inadequate clinical record of the surgery he performed on Meggs; and
(l) knowingly made a false statement to the Board in a statutory declaration about Meggs’ care and treatment.
Dishonesty
44
Amongst those findings, we made 13 findings that his conduct was ‘inconsistent’ with him being a ‘fit and proper person’ to be registered as a veterinarian: Malo Complaints 1 – 9, 12, 13, 16 and 17.
45
Those matters concern findings of dishonesty. They include that he deliberately made false representations to his client (Malo’s owner) and to the Board and that he charged the client for a service not provided.
46
As the Tribunal noted in Harris,40 ‘dishonesty, like other forms of misconduct, has grades of seriousness’. The Tribunal went on to say, as is the case here, that ‘the subjective element of the breach in this case is more serious because it was a knowing breach’.
47
Further, while the misrepresentations to Malo’s owner and the charge for the service not provided were all made in a short period in January 2019, those to the Board were made in 2022 and the dishonest conduct therefore covers a considerable period of time.
48
We also note here the making of a deliberately false representation to the Board in a statutory declaration regarding his care and treatment of Meggs, made in November 2021.
49
At the primary hearing, the Board did not allege that any of the conduct concerning Meggs was inconsistent with being a fit and proper person. However, in the Applicant’s Submissions (i.e. that regarding penalty),41 the Board alleges that such a finding ‘follows inevitably on the application of the reasoning’ that we applied in the Primary Reasons
40 Veterinary Surgeons’ Board of Western Australia and Harris [2017] WASAT 100 (S), [62], citing Khosa, [218].
41 Applicant’s Submissions, para 18.
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to his deliberate dishonesty in the Malo statutory declaration.
42 We accept the logic of that submission although it does not allow us to retrospectively alter our findings.
50
In any event, the point is that findings of dishonesty, and particularly deliberate dishonesty, must weigh heavily in the consideration of a suitable sanction in disciplinary proceedings.
51
As we noted in the Primary Reasons,43 the Court of Appeal in LJW noted that when the expression ‘fit and proper’ is used ‘in connection with an office or vocation it normally comprises the three characteristics of honesty, knowledge and ability in the conduct of that office or vocation’.44
52
Honesty is, therefore, one of three critical aspects of being a fit and proper veterinarian. As was said in Johnson:45
Like medical practitioners, veterinary practitioners are in a position of trust. They are entrusted with the right to prescribe and keep various medicines that are not generally available to the public. Owners of animals rely on them to tell the truth and for advice with respect to their animals’ health and welfare. The reliance of the community upon the good faith of practitioners is heightened by the fact that their patients cannot complain themselves or give evidence as to what happened in the absence of their owners.
53
The obligation of honesty is also particularly significant when it comes to dealing with a professional regulator. In Khosa46 the Tribunal held that the reputation of the legal profession depends to a large extent on the power and the ability of the regulator to perform its role of effectively regulating the profession.47
54
For the regulator to be able to do that, practitioners must cooperate with its reasonable requests, which include the provision of a practitioner’s version of events which are the subject of investigation, with complete honesty. The same may equally be said of the Board as the regulator of veterinarians.
55
To repeat, we made findings that Dr Adrian Burstein was deliberately dishonest in multiple ways, over a lengthy period of time,
42 Primary Reasons, [293] – [294] and [298] – [299].
43 Primary Reasons, [29].
44 Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35, [26].
45 Johnson, [109].
46 Legal Services and Complaints Committee and Khosa [2023] WASAT 90 (S), [44].
47 See, also, Legal Profession Complaints Committee and Staffa [2020] WASAT 58 (S), [14].
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and to both his clients and the Board
. For the above reasons, those findings are very serious indeed.
Incompetence
56
We also made nine findings as to Meggs (as well as 13 findings as to Malo) that Dr Adrian Burstein’s conduct ‘would reasonably be regarded as disgraceful or dishonourable’ by veterinarians of good repute and competence.
57
We agree with Mr Abbott, who appeared for the Board, that the misconduct as to Meggs ‘relates directly to animal welfare and shows his incompetence’.48
58
The findings as to incompetence are limited to his assessment and treatment of Meggs; they do not concern his assessment and treatment of Malo. However, they address almost every aspect of his assessment and treatment of Meggs.
59
In our view, Dr Adrian Burstein’s assessment and treatment of Meggs, considered as a whole, represents gross incompetence.
60
Moreover, Dr Adrian Burstein continued, during the primary hearing, to dismiss the significance of his failure to obtain further information, his assessment of risk and his decision to proceed to surgery on the basis that his diagnosis of Meggs’ aortic thrombosis was correct.
61
In so doing he was contemptuous of the accumulated knowledge and expertise of other veterinarians. He knew at the time that Meggs had been seen by other veterinarians and that each of them had considered euthanasia the most appropriate course. Further, the evidence at the hearing was overwhelmingly that a necessary precondition to proceeding to surgery was an understanding of the underlying condition that has caused the thrombosis, which he plainly did not have.
62
That contempt continued into the Penalty Hearing. The submissions made on his behalf were expressed only at a very high level of generality. It was submitted that he ‘accepts that the findings against him are serious’49 and that he ‘has learnt from the disciplinary findings … and that he is willing and able to maintain a high standard of practice in the future’.50
48 Applicant’s Submissions, para 14.
49 Respondent’s Submissions, para 72.
50 Respondent’s Submissions, para 41.
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63
No evidence was put in support of either submission, save for certificates of completion of ‘courses recently taken’.51 Those courses concern recordkeeping, ethics, ‘cardiac emergencies’ and ‘bleeding disorders and hemostasis’. However, all but the ethics course were completed in 2022 or 2023 – prior to the primary hearing, let alone the delivery of the Primary Reasons. There is also nothing on the face of the certificate for the completion of the ethics course that suggests that its content was in any way relevant to the subject matter of our findings of professional misconduct.
64
Certainly, there is nothing before us that indicates that he recognises that our findings represent very serious criticisms of his competence or remorse for his failings or their consequences. We will return to this below.
The Need for Protection of the Public
65
As we have already noted, honesty is an essential characteristic of a veterinarian.52
66
To make deliberately false statements to an animal’s owner about the care and treatment of that animal, or to charge for a service not provided, seriously undermines the good faith and trust placed in the veterinarian by that owner who relies on the veterinarian’s professionalism and expertise to act in the best interests of their animal.
67
Similarly, to make a deliberately false statement to the Board seriously impedes the Board’s ability to properly investigate complaints against veterinarians and thereby undermines the Board’s ability to effectively regulate the profession.
68
The public needs (and deserves) to be protected from Dr Adrian Burstein, as a veterinarian who has engaged in deliberately dishonest conduct.
69
Equally, the public needs (and deserves) to be protected from Dr Adrian Burstein as a veterinarian who has failed to make and maintain adequate clinical records of his consultations with, and treatment provided to, animals under his care.
51 Respondent’s Submissions, paras 39 – 41.
52 In addition to the authorities already referred to, see also Muffert [2022] WASAT 115 (Muffert), [42]; Veterinary Surgeons Investigating Committee v Howe [No 2] [2003] NSWADT 156 (Howe No 2), [40]; Johnson, [113] – [114].
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70
His failure to make proper records prevents subsequent veterinarians from properly managing the future (whether immediate or later) care and treatment of that animal. As this case demonstrates, it can also prevent or hinder a proper response to a query or complaint about the care and treatment of an animal53 and prevents (or at least seriously hinders) the giving of accurate evidence to the Board or the Tribunal.
71
The public also needs (and deserves) to be protected from Dr Adrian Burstein’s serious lack of competence.
72
We have noted above that his failures of competence covered the entirety of his assessment and treatment of Meggs, including:
(a) his failure to obtain a full clinical history from Meggs’ Owner;
(b) his failure to obtain the clinical records from those veterinarians who had already seen Meggs, which were not only relevant but vital to the decision about whether or not, and how, to treat Meggs;
(c) his failure to adequately monitor Meggs overnight despite her critical condition, which is an issue of animal welfare;
(d) his failure to adequately assess risk and to provide a suitable prognosis, and his reckless understating of her condition and overstating the prospects of success of surgery, all of which is (again) an animal welfare issue, as well as one which likely gave false hope to Meggs’ owner;
(e) his proceeding to surgery without relevant records and/or proper testing providing the full picture of Meggs’ condition; and
(f) his failure to make adequate clinical records.
73
As we found in the Primary Reasons, the proper course to be taken for Meggs was her euthanasia, consistent with the prior advice of no less than four other veterinarians and the evidence of Dr Holder and Professor Hosgood at the primary hearing.
74
We have no doubt that, due to his several failures, Dr Burstein unnecessarily prolonged the suffering of a critically ill animal.
53 See Veterinary Practice Board of Western Australia Code of Practice No.1 of 2022 at para 6.
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The
public needs to be protected from veterinarians who engage in such conduct.
Lack of Insight/Remorse
75
As noted above, it was submitted on his behalf that Dr Adrian Burstein ‘accepts that the findings made against him are serious’.54 That may be so, but it does not take his case very far.
76
Much more relevant is the question of insight and remorse.
77
By ‘insight’, we mean the willingness and ability to recognise and appreciate that the conduct the subject of findings of professional misconduct represents a breach of relevant standards. Remorse is a ‘deep and painful regret for wrongdoing’;55 that is, for engaging in the conduct the subject of those findings. Mere acceptance that the findings are serious does not necessarily cover either of those concepts.
78
In Khosa,56 Murphy and Beech JJA held that:
A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practice. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
79
Under the heading ‘Dr Burstein’s insight, contrition and remorse’, the Respondent’s Outline:
(a) refers to evidence given at the primary hearing ‘of his efforts to improve his record keeping’;57
(b) attaches certificates of completion for courses undertaken; and58
(c) includes the submission that ‘he has learnt from the disciplinary findings against him in both VR 9 of 2022 and the present proceedings, and that he [is] willing and able to maintain a high standard of practice in the future’.59
80
We do not accept the submission in para (c) above for the following reasons:
54 Respondent’s Outline, para 72.
55 Macquarie Dictionary Online.
56 Khosa, [193], citing Evatt, [184].
57 Respondent’s Outline, para 39.
58 Respondent’s Outline, paras 39 – 40.
59 Respondent’s Outline, para 41.
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(a) First, there is no evidence, by way of a statement or similar, to that effect, although we assume that he approved the submissions made on his behalf.
(b) Second, the submissions fall well short of any statement of remorse or contrition. To say that he has ‘learnt from’ the findings and that he is ‘willing and able to maintain’ suitable standards is to stay silent as to whether he regrets his conduct.
(c) Third, as previously noted, the evidence purportedly filed in support of the submission that he has ‘learnt from’ our findings are limited to certificates of completion of ‘courses recently taken’, all but one of which were completed prior to the primary hearing. There is also nothing that suggests the content of the ethics course was relevant to the findings of misconduct. Put another way, there is no evidence of acts done which evidence or demonstrate insight or remorse prompted by our Primary Reasons.
(d) Fourth, as also noted above, there is nothing before us that indicates any insight whatsoever that he recognises that our findings represent very serious criticisms of his competence.
81
As we have noted, a lack of insight and remorse increases the risk of recurrence of the improper conduct. That has implications for deterrence, both specific and general.
Deterrence: Specific and General
82
As well as needing and deserving protection from Dr Adrian Burstein, the public needs and deserves to be protected from other veterinarians who might engage in similar behaviour.
83
We are satisfied that there is an ongoing need for protection from Dr Adrian Burstein due to his misconduct and his failure to put before us meaningful evidence that he appreciates his wrongdoing and is remorseful for it. Accordingly, there is a need for the penalty to be imposed to include a substantial element of specific deterrence.
84
We are also satisfied that the penalty to be imposed must be sufficient to include an element of general deterrence such that veterinarians more generally may be dissuaded from engaging in the conduct in question.
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Denunciation
85
As we have also previously noted, the concept of the protection of the public is broad and allows for penalties to be imposed which ’emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable …’.60
86
Conduct of the kind engaged in by Dr Adrian Burstein has the potential to seriously undermine the public’s confidence in veterinarians. Accordingly, the penalty imposed must be sufficient to maintain public confidence in veterinarians and reinforce the professional standards expected of all veterinarians. Further, the penalty must involve public condemnation of conduct of this nature by the Tribunal so as to reassure the public that the kind of conduct engaged in by Dr Burstein will not be tolerated.
Dr Burstein’s Disciplinary History
87
The previous disciplinary history of Dr Adrian Burstein was not in dispute.61
88
In 2011, Dr Adrian Burstein was found guilty, by his own admission, of unprofessional conduct in relation to his conduct in 2009 in performing an ovariohysterectomy in which he sutured the removed ovaries (or part thereof) onto the patient’s spleen, rather than performing ‘only an ovariohysterectomy’. It was agreed that that was ‘not a routine surgical procedure’, had not been substantiated by academic research and ’employs a technique similar to one that has been the subject of academic research that concluded it involved risks of complications’. Dr Burstein gave an undertaking not to repeat the procedure62 and was reprimanded.
89
In 2022, Dr Adrian Burstein was found guilty, by his own admission, of unprofessional conduct in relation to his failure to record information in the clinical records of two dogs.63
90
That brief description fails to adequately describe Dr Adrian Burstein’s comprehensive failures in recordkeeping. It is sufficient to note that, in relation to one of the dogs in question (by way of an example), Dr Adrian Burstein agreed:
60 Craig, [47].
61 Respondent’s Submissions, paras 25 – 27; Attachment 2 to the Applicant’s Submissions; Attachment 3 to the Applicant’s Submissions.
62 Subject to certain exceptions which are not necessary to repeat.
63 VR 9 of 2022.
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(a) to the effect that there was an almost complete failure of records that explained or justified the diagnoses reached by him;
(b) that he had not recorded any details of his discussions with the dog’s owners about treatment or management options, the advice given or his reasoning or justification for his clinical recommendation;
(c) that he had not recorded the supply of various S4 and S8 drugs;
(d) that, in relation to an operation carried out on the dog, he had failed to record ‘meaningful information’ about the surgery sufficient to allow a peer to understand what had occurred;
(e) that he had failed to record the dog’s subsequent hospitalisation or any observations and assessments; and
(f) that he had failed to record any discharge instructions.
91
By consent, a condition was imposed on his registration that he must not practise any veterinary surgery at all for a period of 5 months (from 24 June 2022 to 23 November 2022) and he was ordered to pay the applicant’s costs of the application fixed at $15,000.
Does Dr Adrian Burstein Possess any Special Skills?
92
The Tribunal has been provided with character references from 13 of Dr Adrian Burstein’s clients, including several from persons involved with animal charities and/or animal rescue services.64
93
We note that there are no references from any other veterinarian.
94
Each of the character references state that the author has, at least, been advised of our findings of misconduct. Some of them state that they have read the Primary Reasons. All of them are fulsome in their praise of Dr Adrian Burstein. Several of them assert that, without his assistance, their animal rescue service may not be able to continue.
95
In Harris65 the Tribunal accepted that, while Dr Harris was not a specialist veterinarian, he offered services, including the use of specialised equipment, that were ‘in reasonably short supply’. It was held
64 Respondent’s Bundle of Character References at pages 1 – 9 and pages 15 – 16.
65 Veterinary Surgeons’ Board of Western Australia and Harris [2017] WASAT 100 (S), [103] – [105].
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that it was in the public interest to have Dr Harris
‘ skills available to the public, which was a factor relevant to penalty.
96
There is a degree of analogy here, in that one of the references provided suggests that there are few veterinarians willing and able to treat reptiles.66
97
We are less convinced of the relevance of the several references from people associated with animal rescue services concerned with domestic animals (dogs and cats). It seems inherently unlikely to us that such services will be unable to obtain the services of alternative veterinarians.
98
Further, although we accept that the fulsome praise contained in the various references is, in each case, genuine, we repeat that there are no references from other veterinarians who are those best placed to comment on his competence and, to a lesser extent, his honesty.
Dr Adrian Burstein’s Personal Circumstances
99
Dr Adrian Burstein obtained his veterinary degree in 1996 from South Africa’s University of Pretoria. He is 52 years of age. He lives with his wife and four children, one of which is a recently graduated veterinarian who currently works at her father’s veterinary practice. Another child has recently graduated from university. Their other two children are studying at university. Dr Adrian Burstein’s wife does not work in paid employment outside of the home.
100
We accept that a sanction that would prevent him from practising would have a serious financial impact on Dr Adrian Burstein and his family. That is a factor relevant to penalty although, as noted previously, its weight must yield to the protection of the public.
101
The submissions made on his behalf also noted, as a factor relevant to penalty, that Dr Adrian Burstein had practised with his father, Dr David Burstein, for many years; that his father began to suffer from dementia and subsequently died; that Dr Adrian Burstein did not know, when he was with his father in Australia, that the onset of his father’s aggressive and inappropriate behaviour towards him and his wife was caused by an illness and was unintentional; that Dr Adrian Burstein found the onset of his father’s dementia confronting; that those circumstances disrupted the long-standing arrangement that had seen Dr David Burstein working at the practice and ‘taking the nightshift’ and
66 Reference from Mr Allan Fisher (reptiles).
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that the
deterioration in the relationship between Dr Burstein and his father ‘coincided with at least part of the period relevant to the disciplinary findings’.67
102
We accept all of that but do not agree that it has any relevance to the penalty that ought to be imposed. When asked to explain the relevance to our task Ms Stanton, who appeared for Dr Adrian Burstein, said that these matters were ‘one of the things’ occurring when the misconduct occurred and that it was ‘a matter that’s properly and commonly taken into account’.68
103
When challenged further on the lack of any evidence by which a link might be drawn between his father’s illness and Dr Adrian Burstein’s misconduct, Ms Stanton submitted that she was ‘not putting it that highly’ and was ‘not suggesting there was anything of that kind’. Rather, she submitted that it was ‘just … one of the circumstances that did emerge during the hearing as an obviously stressful situation for Dr Burstein’.69
104
That may be so, but in the absence of anything more which suggests that the misconduct the subject of findings represents behaviour that is otherwise out of character and explicable by the circumstances apparently relied upon, we give this topic, and the associated submissions, no weight.
Other Aggravating or Mitigating Circumstances
105
It was also submitted, as a factor relevant to the misconduct, that Dr Adrian Burstein did not engage in the relevant misconduct for personal financial gain. His treatment of Meggs was relied upon as an example. It was said:70
… the surgery was plainly risky; Dr Burstein knew that Meggs may well not survive and there was no personal advantage to [him] in attempting the surgery. Dr Burstein did not insist on payment before undertaking Meggs’ surgery notwithstanding that, viewed objectively, there was a risk that he would not be paid given that Meggs’ owner was already upset about the costs he had incurred to that point in time. As it happened, Dr Burstein was not paid, and there is no evidence that Dr Burstein ever sought to recover payment from Meggs’ owner.
106
We do not accept that that summary accurately reflects the reality as we found it. At para [457] of the Primary Reasons, we held that the
67 Respondent’s Outline, paras 42 – 46.
68 ts 22, 16 April 2025.
69 ts 22, 16 April 2025.
70 Respondent’s Outline, para 34.
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email sent by Meggs
‘ owner to TAHMU was ‘not expressed in the terms of someone who has recently been told that … ‘there’s a real possibility that [s]he doesn’t survive’.
107
Further, we do not accept that there is an evidentiary basis for the submission that, ‘viewed objectively, there was a risk that he would not be paid’. It is true that Meggs’ owner was unhappy with the money spent to date, but his email to TAHMU suggests that that was because he had nothing to show for it.71 We do not accept that that is evidence of an objective risk that he would not pay Dr Adrian Burstein.
108
It is true that there was evidence that Dr Adrian Burstein had not been paid but there was no explanation for that. He gave no evidence by way of explanation and Meggs’ owner was not called.
109
Further, and contrary to the submission, we found that Dr Adrian Burstein charged Malo’s Owner for a service that he did not provide. In that way he gained a financial advantage from at least one aspect of his misconduct.
110
However, limited weight should be given to the issue whether or not he gained a financial advantage from his misconduct.
111
We accept that financial exploitation was not a primary motivator for his conduct but, equally, we do not accept that he was acting altruistically.
112
No other matters relevant to Dr Adrian Burstein’s fitness to practise which may be regarded as aggravating or mitigatory have been raised.
Comparable cases
113
As noted above, the Court of Appeal in Nadkarni held that the Tribunal should have regard to the penalties imposed in comparable cases.72
114
We have had regard to the penalties imposed on other veterinarians as set out in Annexure A to the Respondent’s Submissions. However, we have paid particular regard to the following:
(a) In Braunstein,73 the Tribunal endorsed orders reached by agreement between the parties. Dr Braunstein was found to have
71 Primary Reasons, [456].
72 Nadkarni, [69]. See, also, Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155, [110].
73 Veterinary Practice Board of Western Australia and Braunstein [2024] VR 14.
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engaged in professional misconduct for leaving a dog alone and unmonitored following surgery and, when the dog died, making false representations to the dog’s owner and the Board about her care and treatment of the dog and making false entries in the dog’s clinical records. Dr Braunstein’s registration was suspended for 11 months, she was fined $10,000 together with costs of $3,500. It is to be noted that the Board agreed that Dr Braunstein admitted her misconduct early, was remorseful and used the process to improve, including undergoing counselling to understand her errors and avoid remaking them.
(b) In Walton74 the Tribunal also endorsed orders reached by agreement between the parties. Dr Walton was found to have engaged in professional misconduct in respect of his care and treatment of four horses (two of which died) including: making false statements or representations to his colleague, the owners of the horses, and the Board about his care and treatment of the horses (including false representations that he had checked on the animals); making false representations in the clinical and other records of the horses; failing to make or complete clinical records; failing to administer medication to two of the horses; and leaving a horse recumbent after administering medication. Dr Walton’s registration was cancelled and he was disqualified from applying for registration for a period of 4 years. He also agreed to pay costs of $16,000. Again, we note it was agreed that Dr Walton was remorseful and had shown insight by seeking and continuing to seek professional assistance to examine his conduct and prevent its recurrence.
(c) In Howe No 2, the New South Wales Administrative Decisions Tribunal imposed a penalty in relation to findings previously made. Dr Howe was found to have engaged in serious misconduct in a professional respect in relation to the paperwork required for the export of a ram’s semen to New Zealand. Specifically, Dr Howe transmitted various false and misleading statements to Dr Gregory (another veterinary surgeon), provided a false certificate to Dr Gregory and certified that various requirements had been met in two veterinary certificates in circumstances where he knew or ought to have known that the statements would mislead or were likely to mislead Dr Gregory.75
74 Veterinary Practice Board of Western Australia and Walton [2023] VR 117.
75 Howe No 2, [4].
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Dr Howe’s name was removed from the register of veterinary surgeons and he was prevented from reapplying for registration for 2 years.76
(d) In Johnson, Dr Johnson was found to have engaged in professional misconduct or unsatisfactory professional conduct in respect of his care and treatment of two cats in that he:
(i) deceived Cat 1’s owner about the circumstances of Cat 1’s death;
(ii) created false and/or misleading records in relation to the care of Cat 1 and the circumstances of her death;
(iii) was dishonest in his representations to the Board (by fabricating records and providing them to the Board) about the circumstances of Cat 1’s death, including that he was present when Cat 1 died and that he was available to provide necessary after hours treatment;
(iv) engaged in conduct that was likely to cause unnecessary suffering to an animal and/or cause the inappropriate death of an animal, including that: he did not attend to Cat 1; failed to adequately review or assess Cat 1 or administer necessary treatment to her including treatment to alleviate her pain or suffering; and left the hospital without making any arrangements for her care in his absence;
(v) delayed by four days informing Cat 1’s owner of her death;
(vi) demonstrated inadequate knowledge or skill by administering, or causing to be administered, dexamethasone to Cat 1 (a diabetic cat) when its administration is contraindicated in diabetes;
(vii) engaged in improper or unethical conduct in his dealings with the owner of Cat 2 about the disposal of the cat’s corpse and threatened the owner after she complained to the Board;
76 Howe No 2, [48].
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(viii) demonstrated a lack of adequate care in the disposal of Cat 2’s corpse, which was taken to the tip;
(ix) made, or caused to be made, deliberately misleading statements to the Board about his dealings with pharmaceutical companies and/or his ability to obtain ongoing pharmaceutical supplies, which suggested that there had been no refusal to supply pharmaceuticals due to his failure to pay outstanding bills; and
(x) breached a condition of his registration by not having another full-time veterinarian working with him.
Dr Johnson’s registration was cancelled and he was prevented from re-applying for registration for at least 4 years.
(f) In Muffert, the applicant sought this Tribunal’s leave to apply to the Veterinary Surgeons’ Board for re-registration. Two years previously the Tribunal had ordered, by consent, that her name be removed from the register on the basis of an agreed finding that she was guilty of unprofessional conduct. The conduct which led to that finding was that she had misled the Board in answer to inquiries as to who had conducted certain surgical procedures. There were four instances of misleading the Board and three of those involved false statutory declarations. The Tribunal granted the applicant leave to make an application for restoration to the Register with the Tribunal noting that the dishonesty was not motivated by personal or financial gain.
115
The various facts and circumstances of these cases make it very difficult for a direct comparison to be made such that they might be ‘ranked’ against one another.
116
Having said that:
(a) The findings in this case concerning Dr Adrian Burstein’s incompetence are considerably more serious and much more comprehensive than those made in Braunstein, which was limited to failures of post-surgery observation and monitoring. Equally, as to dishonesty, while the deliberate fabrication of records in Braunstein is very serious, the deliberate dishonesty of Dr Adrian Burstein involved multiple misrepresentations, concerned two different animals and covered some considerable timespan. His entirely inadequate recordkeeping must also be
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kept in mind. The totality of Dr Adrian Burstein’s misconduct is considerably more serious than that of Dr Braunstein. It is also significant that Dr Braunstein was remorseful and showed insight, which Dr Adrian Burstein has not done.
(b) Equally, the conduct of Dr Burstein appears to be considerably more serious than the conduct the subject of disciplinary action in Howe No 2 and Muffert, which did not involve any concern as to competency.
(c) There is much of Dr Burstein’s conduct which appears to be comparable to the various elements of misconduct in Walton. In both cases, deliberately false statements were made to the animals’ owners and the regulator. In both cases, the veterinarian failed to complete clinical records. In Walton, the vet also fabricated false records, which is not the case for Dr Adrian Burstein. In both cases, there are significant findings of incompetence. In our view the findings of incompetence against Dr Adrian Burstein are more comprehensive than those made against Dr Walton. It is also significant that Dr Walton was remorseful and showed insight by seeking professional assistance.
(d) Similarly, there are several matters in Johnson which appear comparable to the present case. Both involved findings regarding conduct in relation to the care and treatment of two animals. Both involved false statements to their owners and the Board about the circumstances surrounding the death of an animal. Both concerned issues of incompetence which caused unnecessary suffering, including leaving animals unattended.
(e) Arguably, the dishonesty of Dr Johnson was broader than that of Dr Adrian Burstein as it involved the deliberate creation of false records (Dr Adrian Burstein’s recordkeeping created false records, although that appears to have been a matter of incompetence, rather than dishonesty), and also involved false representations to the Board about third parties (pharmaceutical companies) concerning financial matters. He also breached a condition of his registration by not having another full-time veterinarian working with him. Finally, he threatened a complainant. However, in our view, the findings as to incompetence against Dr Adrian Burstein are more comprehensive than those found against Dr Johnson.
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What is the appropriate penalty to be imposed on Dr Burstein?
117
We have taken into account the principles relating to penalties, the considerations relevant to those principles discussed above and the penalties imposed in the broadly comparable cases.
118
Having done so, we have decided that it is appropriate to cancel Dr Adrian Burstein’s registration as a WA veterinarian and disqualify him from applying for registration for a period of 5 years. We also consider that it is appropriate for him to be reprimanded and subject to a modest fine of $5,000. Our reasons may be briefly stated as follows.
119
First, for the reasons set out above, the findings of professional misconduct are very serious indeed.
120
Second, Dr Adrian Burstein has failed to demonstrate any material insight into, or remorse for, his misconduct the subject of our findings.
121
Third, as we have previously found, the first and second matters are such as to require strong sanction for the protection of the public and the maintenance of public confidence in the profession.
122
Fourth, this is the third time Dr Adrian Burstein has been the subject of disciplinary proceedings, with previous sanctions for incompetence and poor recordkeeping, the latter resulting in a period of suspension.
123
Fifth, there is a need for both general and specific deterrence. As to the latter, Dr Adrian Burstein’s lack of insight and remorse and his prior history of disciplinary proceedings makes it particularly relevant. As to the former, it is important for both the public confidence in the profession and the confidence of other veterinarians in the system that it is made clear that the Tribunal will ensure the maintenance of proper professional standards for veterinarians.
124
The reprimand and the modest fine ought to be seen as primarily concerned with these aspects of the penalty. They are intended to represent a public denunciation of the conduct and to ‘bring home’ to Dr Adrian Burstein the seriousness of his departure from professional standards.77
125
Sixth, we are not satisfied that the circumstances of the present case are so different from other cases, particularly Walton and Johnson, such
77 See, for example, Craig, [47].
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that we should accede to the Board
‘s submission that Dr Adrian Burstein should be permanently precluded from applying for re-registration.
126
Those cases are broadly comparable to the present and, while in our view the findings as to incompetence against Dr Adrian Burstein are more serious than those against those practitioners, they are not so far removed as to warrant the penalty sought by the Board.
127
Seventh, while his work with animal rescue entities, and particularly regarding his work with reptiles, is valuable, and while we have no doubt that the penalty will result in a heavy burden on him and his family, those factors must yield to and not outweigh the very heavy weight that must be given to the other matters – the protection of the public, the maintenance of appropriate standards, the confidence of the public, deterrence and denunciation.
128
Finally, the period of disqualification will allow Dr Adrian Burstein, who will be 57 or 58 years old when the period of disqualification expires, an opportunity to gain the necessary insight and remorse and undertake relevant training which may be sufficient to persuade the Board to grant him re-registration. At that age, if granted registration, he will be able to conclude his working life as a registered veterinarian, having somewhat rehabilitated his reputation.
Matters that Might be Considered by the Board should re-registration be Sought
129
Given that we have found that his registration should be cancelled, and that he should not be permitted to apply for re-registration for 5 years, we do not consider it within our powers to impose conditions on any subsequent registration.
130
Rather, the issue as to whether he is re-registered and, if so, what conditions (if any) should be imposed, is properly a task for the Board, to be considered in light of all of the facts and circumstances at the time.
131
However, we consider it appropriate to offer our views on certain matters of concern as an aid to Dr Adrian Burstein as well as the Board if and when the time comes.
132
First, we are concerned with what appears to have been a failure or refusal by Dr Adrian Burstein to consult with or have regard to the view of other veterinarians.
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133
That is most evident in his failure to obtain the views, records and results of those other veterinarians who had previously assessed Meggs.
134
In a similar way, his evidence as to his own abilities to diagnose and treat Meggs appeared to be dismissive of the views of undoubted experts, such as Professor Hosgood.
135
In our view, it would be to his benefit, and that of his patients, if Dr Adrian Burstein would work with, and possibly under the supervision of, another senior veterinarian should he be re-registered.
136
In our view, the benefits of such an approach would likely include exposure to other views about clinical practise, recordkeeping and practice management more generally.
137
As to the latter, there are plainly difficulties in trying to run a generalist practice with after-hours capacity as a sole practitioner. Even with a junior veterinarian, the difficulties are considerable. Without making a finding to this effect, it may be that the circumstances associated with those difficulties gave rise to the underlying conditions in which the conduct the subject of our findings of professional misconduct occurred.
138
In any event, we encourage both the Board and Dr Adrian Burstein to consider, should he seek re-registration, whether he should work with or under one or more veterinarians and whether he should be obliged to seek advice more generally about the management of his practice.
139
Finally, our concern regarding his recordkeeping is obvious in the Prior Reasons. We would encourage regular review to ensure proper standards are maintained.
Orders
The Tribunal orders:
- The respondent is reprimanded.
- The respondent is to pay to the applicant a fine of $5,000.
- The respondent’s registration is cancelled.
- The respondent is disqualified from applying for registration for 5 years.
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I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
14 JULY 2025