Microsoft word - document2

RESULT OF AN ENQUIRY HELD BY THE DISCIPLINARY PANEL ON
MONDAY 22ND JUNE 2009
Nicky Henderson / Moonlit Path
1. On 22nd June 2009, the Disciplinary Panel of the British Horseracing Authority
(BHA) conducted an enquiry into allegations that Nicky Henderson acted in breach of the Rules of Racing in relation to a positive analysis returned from a urine sample taken from MOONLIT PATH after she raced at Huntingdon on 19 February 2009. The mare was trained by Henderson and this was her first run. 1. There were four allegations of breach of the Rules: 1) Rule 53, because analysis of the sample identified the presence of tranexamic acid (“TA”), a prohibited substance. 2) Rule 221B(i), because TA was given to MOONLIT PATH on 19th February 2009, the same day as the race, which is contrary to the requirement of Instruction C9 that only normal feed and water should be given on the day of a race unless a dispensation is granted by a BHA engaged Veterinary Officer. 3) Rule 221B(i), because Henderson did not keep a record of the administration of TA to MOONLIT PATH as Instruction C8 requires. 4) Rule 200, because Henderson allowed or caused the administration of TA either with the intention of affecting MOONLIT PATH’s racing performance, or in the knowledge that its racing performance could be affected. 1. The first three of these allegations were admitted by Henderson. The dispute at the enquiry was whether the administration of TA was carried out either with the intention of affecting the mare’s performance in her race at Huntingdon or with knowledge that her performance could be affected. 2. At the conclusion of the hearing on 22nd June the Panel announced its decision that there had been a breach of Rule 200, and its written reasons for this now follow.
Background
1. MOONLIT PATH arrived at Henderson’s yard in August 2008 (having been with
him briefly in 2007). She did a considerable amount of work, both fast and slow, in the months before her Huntingdon run. The Medication Book discloses that she was treated with Becotide in September and October 2008 (at a time when she was not due to run for some time). Henderson also stated that the mare was kept in an open sided box. 1. Henderson’s evidence was that MOONLIT PATH was not showing much promise, though she had schooled well over hurdles, and was not quick enough to run in a bumper. So he entered her for a 2m 5½f novices’ hurdle at Huntingdon on 19 February 2009 in which he also had the strong favourite, the eventual winner of the race. MOONLIT PATH was selected for sampling, and a sample was taken at 1420 hours, shortly after the race. 1. HFL analysed the sample and on 16 March 2009 they issued a certificate confirming the presence of TA. The next day Henderson was handed a letter from the BHA informing him of the positive test, and a preliminary interview was conducted by BHA investigators. Henderson said at this stage that MOONLIT PATH had been given an injection on 18 February (the day before the race) by James Main, his regular vet from the practice of O’Gorman, Slater and Main. Mr Main was interviewed on 19 March (i.e. 2 days after the interview with Henderson). On this occasion, Mr Main told the BHA investigators that he had given a 20 ml intravenous injection of Cyklokapron shortly after he had arrived at Seven Barrows at 0630 on 19 February (Cyklokapron is the brand name for a product containing TA). He gave this date for the injection having consulted, he said, his practice records, and said he was correcting the date of 18 February he had given, in the presence of Henderson and the investigators, on 17 March when he happened to be present at the yard. 1. After further interviews with Henderson and Mr Main on 9 April, and after counter analysis of MOONLIT PATH’s sample confirmed the presence of TA, the BHA put its allegations of breach of the Rules into a letter to Henderson dated 5 May 2009. His response was lodged on 27 May. It makes the admissions already referred to, and denied breach of Rule 200.

Tranexamic Acid
1. The Panel heard expert evidence about the properties and effects of TA from
Professor Morris, Director of Equine Science & Welfare at the BHA, and from Dr David Marlin a consultant in private practice. He is also a visiting Professor in Equine Science at Nottingham Trent University and holds other part time academic posts. Both gave helpful and careful evidence at the enquiry. 1. The relevant points to emerge from their evidence are these. TA is a synthetic drug which can shorten blood clotting time. It does not operate to prevent a bleed occurring, as an ordinary reading of the BHA’s evidence suggested. But it can aid the clotting process, shortening the time during which a bleed would otherwise continue and therefore reducing the severity of the bleed. TA therefore has a primary effect on the blood system and a secondary effect on the respiratory system because it can reduce bleeding into the airways. There is no peer-reviewed published material which describes or analyses the effect of TA on exercise induced pulmonary haemorrhage (“EIPH”) in the thoroughbred. A 1976 study of the effect of TA on clotting times observed for a healthy horse at rest have shown that TA’s maximum effect (more than halving clotting time) came 25 minutes after administration. After 3 hours, clotting time was in the region of 85% of the pre administration value. Dr Marlin estimated that, on the basis of these figures, any influence upon clotting time will have ended around 4½ hours after administration. 1. The fact that, on Dr Martin’s estimate, TA might not have affected MOONLIT PATH’s performance in the race (because it was injected 7 hours or more before she ran) is an irony in this case, but not much more. It was undoubtedly found in the sample taken from the mare and it is equally admitted to be a prohibited substance. Nor does this irony affect the Panel’s approach to the question whether there was a breach of Rule 200. That Rule focuses on whether a person intends to affect performance or knows that it could. In any event, the scientific evidence was inconclusive on the issue of whether the injection given here was or was not likely to help MOONLIT PATH in the event of a bleed. All that can be said is that it was capable of doing so.
Evidence at this Enquiry
1. The main factual evidence came just from Henderson. He had given notice that he
intended to call Mr Main, and he also produced a statement signed on 3 June 2009 from him. This statement was also sent direct by Mr Main to the BHA on 3 June, under cover of a letter in which he expressed disagreement with the note compiled by the BHA investigators of his interview on 9 April. (Mr Main had refused to allow this to be recorded at the time). But on 18 June 2009, the BHA was informed by Henderson’s representatives that Mr Main would not be called to give evidence, because he was refusing to come. 1. As will be apparent from the analysis of this case below, it is obvious that Mr Main had some important, perhaps vital evidence to give. The Panel therefore raised with the parties the possibility of adjourning the enquiry to see if Mr Main might respond to invitations to attend from the BHA or even from the Panel direct. Mr Norris QC for Henderson forcefully opposed this course, and Mr McPherson QC for the BHA doubted whether Mr Main might respond to their invitation, because of the earlier dispute with him about the accuracy of the 9 April interview note. 1. The Panel saw an additional possible benefit from an adjournment. This would have allowed evidence to be taken from Tom Symonds, who was also, in the Panel’s view, someone with an important story to tell. But Mr Norris QC’s reaction to that was again to resist any adjournment, because he did not propose to call any evidence from Symonds. The Panel’s eventual decision was not to adjourn, because it was uncertain whether Mr Main would agree to give evidence, even with the “encouragement” he might be given by drawing his attention to Rule 6 of the Rules of Racing. It remained the Panel’s view that Mr Main and Mr Symonds had potentially crucial evidence to give.
The Panel’s findings
1. The critical questions which the Panel eventually had to answer when deciding if
there was a breach of Rule 200 were these. Firstly, did Henderson intend to affect MOONLIT PATH’s performance at Huntingdon by arranging an injection of TA? Or did he know that her performance could be affected by the injection which he accepted was given as a result of his instructions? 1. Henderson’s answer was that he neither intended this nor knew that it could affect performance. He said he was unaware that the treatment he instructed and which Mr Main carried out involved the use of a prohibited substance. He said also that his only reason for ordering the treatment was his concern for the mare’s welfare, because he thought the drug might aid recovery if the mare bled. Based upon the results of her tracheal washes, he had a fear that the stress of her race might bring on a bleed. 1. To help in evaluating the evidence, it is necessary at the outset to record some undisputed facts and features of the case:- (i) TA is a prohibited substance because it acts upon the blood system of a horse. This is obvious to anybody who knows that it aids blood coagulation and who reads the general definition in paragraph 2 of Instruction C1 with any care. And it is made even more obvious to anybody who reads the concluding part of that paragraph, which says:- “For the purposes of clarity Prohibited Substances include:- …. substances affecting blood coagulation”. (ii) TA had been used for some time by Henderson. It was not possible to put an exact date on when he first used it, but it had been for some years before 19 February 2009. Nor was it possible from the evidence before the Panel to say how frequently it had been used, but it was accepted that it was typically given to horses which Henderson thought might benefit from it on the morning of their race. (iii) Henderson said he ordered its use on MOONLIT PATH when doing afternoon stables 18 February 2009. The order was given in the presence of his head lad and his two assistants, Ben Pauling and Tom Symonds. If the instruction was given by Henderson during afternoon stables, it is likely to have been the day before 17 February because the practice diary referred to below was not modified after 1435 on 18 February. This detail is not significant in the greater scheme of things, however. (iv) That order was transmitted to Mr Main’s practice (probably by Tom Symonds, suggested Henderson). The diary software page maintained by Mr Main’s practice was last modified at 1435 hours on 18 February and records that he was booked to visit Seven Barrows the next day for “1 x dycenene”. Dycenene is the brand name for another substance that can act as an aid to blood coagulation, called etamsylate. (v) The Panel was told by Henderson that “Dycenene” was ordered because this was the substance originally recommended to him as a possible treatment for horses at risk of bleeding, and that is what Henderson and his staff asked for in cases where he thought it might help. But TA under the Cyklokapron brand name came to be the drug which Mr Main used in preference to Dycenene. (vi) The Panel raised the question whether there could be any breach of Rule 200 by Henderson when he ordered the administration of Dycenene, yet Mr Main supplied and injected a different substance (TA), which is used for the same purpose though it has a different pharmacological effect. Mr Norris QC for Henderson disowned any reliance on this argument, saying that when Henderson ordered Dycenene, he was meaning a drug which aided blood coagulation to assist recovery from bleeding. The Panel concluded that he was right to reject this approach – Dycenene was the “label” used by Henderson and his staff to signify a request to Mr Main to inject an aid to blood coagulation, and he used Cyklokapron, i.e. TA. Mr Main himself says as much in a statement he signed on 3 June 2009. (vii) The Medication Book contains no record of the injection given by Mr Main on 19 February. Though the ultimate responsibility for the accuracy and completeness of medication records lies with a trainer, the entries in the book maintained at Seven Barrows were generally made by one or other of the assistants, Tom Symonds or Ben Pauling. The book has two lines blank between entries for treatment of a horse on 17 February and of another horse on 19 February – blank save for a few largely undecipherable deleted words under the “horse identification” and “drug used” columns. (viii) The “Animal History” maintained by Mr Main’s practice to record its treatments for MOONLIT PATH describes what happened on his visit to give the injection on 19 February as a “Pre Race Check”. The same description is given in the invoice addressed to Henderson dated 28 February 2009. Mr Main’s explanation for this (appearing in his signed statement of 3 June 2009) was that “Our training clients are aware that this equates to the injection of TA to the horse”. 1. Before addressing the crucial questions referred to above, the Panel first examined whether Henderson knew, back in February 2009, that the injection of TA was the administration of a prohibited substance. He said he did not, because he had not kept up to date with Instruction C1, at least since he had left the NTF Council 7 or 8 years ago, and he had not been told by Mr Main or anyone else that it was. It should of course be borne in mind that the term “prohibited substance” has a specialised meaning. It does not mean that it is a substance which can never be administered to a horse. It means a substance which can act on one or more of the body systems referred to in Instruction C1, which is revealed to have been in the horse’s system when racing by sample analysis (or even some other evidence). 1. Mr Main himself said in his first interview on 19 March that he was unaware that TA was prohibited and that he only learnt that it was when he looked in the Rule Book after 17 March. Though the Panel was conscious of the need for caution in expressing views about the truthfulness of the evidence of a professional man, especially when he did not give evidence in person, the Panel found it impossible to accept that a vet with the experience Mr Main possesses did not know that TA was prohibited. He is the Senior Veterinary Surgeon at Newbury racecourse. He sits as the NTF representative on the Veterinary Committee and on the Counter Analysis Advisory Committee of the BHA. He is also the NTF’s Veterinary Advisor. Furthermore, his description of the purpose of his visit to MOONLIT PATH on 19 February as a “pre race check” was, in the Panel’s view, calculated to mislead in the event of an outside investigation. It would also mislead an owner who might come to see the invoice. He had been booked for a visit to administer Dycenene. He gave a TA injection and (it seems) did nothing else to the mare, yet describes this as a “pre race check”. According to him, he was unaware that the mare was due to race on 19 February, so the misleading label was not an attempted concealment of a breach of Instruction C9, it was a concealment of the administration of a prohibited substance. 1. Was Henderson also aware that TA was a prohibited substance? The Panel concluded that he was. The relevant parts of Instruction C1 have been in their present form since at least 1995. Henderson has been aware of its terms not just through his work on the NTF Council which ended some time ago but through his everyday activities as a trainer. He was introduced to Dycenene (and its later replacement Cyklokapron) by Mr Main some years ago as a product “which produces good results with horses which might bleed”. While he may not have been aware of the precise way in which it might work, he must have been aware from even thatgeneral knowledge of its function that it was a prohibited substance. His suggestion that he viewed TA as very different to Lasix, which he knew to be a prohibited substance and would not administer 7 days or less before a race, is accepted in the sense that he was aware that they had different effects. But it does not follow that he thought TA was permissible. In fact, he knew both were prohibited. The real reason he was prepared to use TA close to a race (which it is accepted he would not do with Lasix) was that he thought it would not be detected. He said as much in his interview with BHA investigators on 9 April 2009:- “…. I wasn’t aware … of the fact that it was a … what we would call a detector. I mean, nobody’s trying to play games with what’s detectable and what’s not detectable, but we have used it in the past and, in my belief, I must admit that I didn’t realise it was at least detectable obviously otherwise we – if it was detectable we were not going to be administering something like that.” When asked about this passage at the Enquiry, he said that by “detectable” he really meant “illegal”. Even making allowance for the fact that people do not always get their meaning across clearly, the Panel did not feel that this was a plausible interpretation of his words: earlier in the interview he demonstrated an understanding of the distinction between “detectable” and “illegal”. This conclusion was reinforced by another remark he made at the Enquiry, when he said that he thought plenty of horses which had been given TA had been tested and not found with it. It is likely that at least one source for this belief was Mr Main, who has indicated that TA is in fairly widespread use as a pre race drug but has not, until now, produced a positive analysis. 1. The Panel furthermore concluded that the systematic omission from the Medication Book of any reference to administration of TA to his horses shortly before races showed not only concealment of a breach of Instruction C9 (the ban on same day administration of anything other than normal food and water) but also knowledge that TA was a prohibited substance. Henderson’s explanation for the omission of any record of TA administration on 19 February to MOONLIT PATH and for the omission of any record of the previous occasions when it was given to other horses was this. He assumed that the omission was deliberate and was decided upon by one or other of his assistants (probably Tom Symonds in the case of MOONLIT PATH). He thinks they must have done this because they were aware of the Instruction C9 ban on race day treatments, (of which he said he himself was partially ignorant because he thought it was only a ban on giving anything other than food and water when on the racecourse). 1. When pressed for an explanation of what investigation he had made of his head lad or assistants to verify this assumption, he said he had made none, because he accepted 100% responsibility for any errors of theirs. He said he had never even discussed this with them. While it might seem superficially attractive to hear the trainer refusing to blame subordinates, this is not really a position that stands up to analysis. The improbable logic that lies behind Henderson’s evidence is that his head lad and assistants have been aware, every time they are instructed to arrange a TA injection for a race day, that their boss is breaking an important Rule of Racing, and they have never mentioned this to him. Instead, they have decided for themselves to cover up his breach by omissions from the Medication Book (another breach of the Rules). The real situation, in the Panel’s view, was that Henderson was very much aware of both Instruction C9 and of the systematic omissions from the Medication Book. These omissions were calculated to conceal a knowing breach of Instruction C9 by giving a prohibited substance. 1. So it was in the light of these findings that the Panel then addressed the vital questions for the purpose of deciding whether a Rule 200 breach had occurred. These are:- (1) did Henderson intend to affect MOONLIT PATH’s performance by arranging the TA injection on the morning of her Huntingdon race? or (2) did he arrange the injection with knowledge that her performance could be affected? 1. The potentially more serious allegation is of intention to affect performance. Here, the Panel’s decision is that Henderson did intend to do this, but only in the following limited sense. His overriding concern when arranging for this injection was for the welfare of MOONLIT PATH. He hoped that, if she bled, her recovery after the race would be assisted by TA. It was put to him that he did not mention horse welfare as a reason for the injection when he was first interviewed on 17 March, but he was never asked then why TA had been administered, as he admitted it had been. The Panel rejected the suggestion that “horse welfare” was in any sense a false justification. Though Henderson was deliberately acting in breach of Instruction C9 and was causing the administration of what he knew to be a prohibited substance, it does not follow that he was doing this to try to gain an illicit advantage in running for MOONLIT PATH. His paramount aim is accepted to have been to assist recovery in the event of a bleed. 1. But he also necessarily recognised that the drug could affect race performance. His understanding of the potential effects of TA was gained from Mr Main, who is recorded as saying in his first statement on 19 March (before he became more cautious in how he expressed himself in his later interview and statement) that he used TA “for horses who bleed after castration and for the prevention of exercise induced pulmonary haemorrhage (EIPH)”. While subsequently produced scientific evidence has established that it does not “prevent” EIPH in the same sense that Lasix does – i.e. by preventing the onset of a bleed – it can still operate to reduce the length and therefore the severity of a bleed, and that is why it can affect racing performance, depending upon if and when a bleed occurs. Henderson did not of course know in February 2009 the detail of how TA worked, but he did know and understand that it could affect racing performance because he knew the drug was intended to operate once a bleed occurred. He said as much in paragraph 25 of his statement prepared for the Enquiry. And in his evidence before the Panel, he said for instance that he was “trying just to help the horse get through this race”. It is in this sense that he intended to affect racing performance. His primary intention was a welfare one but he also intended to affect performance in the race because that is what the drug can do in certain circumstances, as he knew. This finding is reinforced by a consideration of an option open to him under Instruction C9: the BHA Veterinary Officer can give special dispensation for a treatment. If it was really thought that TA was not prohibited, there was no reason for not asking for a dispensation, either before or after the race. The failure to take this avenue, and the omissions from the Medication Book show that horse welfare cannot be seen as Henderson’s sole intention. 1. The Panel’s finding in the previous paragraph also supports an alternative view of Henderson’s breach of Rule 200, which is that he fell foul of the second limb of it. He knew that racing performance could be affected by the injection of TA which he caused to be given. 1. Having provided written reasons for its decision to Henderson, the Panel held a further hearing on 2 July 2009 at which it heard representations from the parties on penalty. 1. The current Guide to Procedures and Penalties recommends only financial penalties for breaches of Rule 53 and Rule 221B(i) so far as Instructions C8 and C9 are concerned. For Rule 200, the range for a fine is £1,000 to £12,000. For a disqualification or exclusion the range is 1 month to 5 years. The entry point penalty is expressed to be “£2,500 or disqualify/exclude 1 year”. Though a fine and a disqualification/exclusion are expressed to be alternatives, the Panel recognised that a mix of the two might be appropriate. 1. As the breaches found by this decision are all interconnected, the Panel resolved to 1. Though the Panel found a breach of Rule 200, it was on the limited basis already explained. While any breach of this Rule is serious, the breach here is of a fundamentally different kind to that found in some recent cases where either a “milkshake” or bute has been used to improve performance. The paramount motive behind Henderson’s use of TA was to assist post-race recovery from a possible bleed, but because of the very nature of the drug in question and his knowledge of it, he also intended to affect performance, and knew it could affect performance. That was an incidental purpose, however. 1. The Panel also bears in mind that the drug here is of uncertain efficiency as a possible performance enhancer. While it is capable of affecting performance, there is reason to think here that it could not have had much if any influence on MOONLIT PATH’s run because of the time at which it was administered. This point may not detract from the moral blameworthiness of Henderson’s conduct in arranging the injection of what he knew to be a prohibited substance, which he recognised could affect performance, but it is something which the Panel brought into account when deciding upon penalty. 1. The real vice of the conduct here was that this was but one example of the use of a prohibited substance in knowing breach of Instruction C9. The omission in this case of any mention of the injection in the Medication Book was part of a systematic attempt to conceal from investigation the use of TA. The Panel has no way of knowing how frequent the use of TA was. Henderson gave an estimate that it was used on occasions numbering “low single figures”, but the records that he had responsibility for maintaining are silent about it. The Panel did not have the help of Mr Main’s evidence in this regard, nor did it hear from the assistant trainers. 1. The Panel had very much in mind that the injection of TA was carried out by an experienced veterinary surgeon, whom Henderson regarded as his adviser, and that he had introduced Henderson to it. The Panel was not however in a position to make any better or more detailed judgement about the respective roles of Henderson and Mr Main or about the extent of any collaboration between them because of Mr Main’s absence from the enquiry. 1. It was also recognised that Henderson has made enormous contributions to the sport over many years both through his professional and charitable activities. It is all the more unfortunate that someone of his high reputation should be subjected to the penalties that the nature of his conduct required. 1. Having these factors in mind, the Panel’s overall conclusion was that a disqualification was not warranted. However, it was also felt that a fine alone was not an adequate response. Rule 2(i)(g) allows a refusal to accept entries from a trainer for an appropriate period. This sort of approach has the preferable effect in the present circumstances of allowing Henderson to continue to employ his Seven Barrows workforce. Horses can be kept with him by owners if they wish. But if they want to run them during the period given below, they must be entered by and put into the care of another trainer. The Panel decided upon a mix of penalties as follows:- (1) No further entries will be accepted for horses in Henderson’s care for any races to be held for a period of 3 months from 11 July 2009 (ie from 8 days after the date of this decision, which is the time that Rule 2(viii) prescribes) to 10 October 2009 inclusive. However any declaration for a horse to run in any race up to and including 10 July may be accepted. If any horse leaves Henderson’s care and then runs in a race during the 3 month period, it cannot return to his care until that period ends. Entries and declarations for races taking place after the end of the 3 month period may be accepted. (2) A fine of £40,000 must be paid. 36.The BHA suggested that this was a case in which it was appropriate to order Henderson to pay costs. The Panel disagreed. This was not a case in which he had imposed any special costs on the Regulator beyond those of dealing with the ordinary incidents of a disciplinary investigation. 37.Finally, Rule 180(ii) requires that MOONLIT PATH be disqualified from the race.

Source: http://images.racingpost.com/pdfs/bharesult.pdf