1. The Medical Board of Australia (MBA) refers the matter of Dr Mario Athinodorou ("the respondent"), a registered medical practitioner, to the Tribunal on the basis that the MBA reasonably believes that the respondent has behaved in a way that constitutes professional misconduct.
2. Section 193 of Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010.
3. The grounds upon which the complaint is made are as follows:

The respondent has been registered as a medical practitioner in the State of South Australia since 1993. He was first registered pursuant to the provisions of the Medical Practitioners Act 1983, then the Medical Practice Act 2004, and currently the Health Practitioner Regulation National Law (South Australia) Act 2010. At all relevant times, the respondent was a practitioner with Harbour Medical Services ("the practice") at its clinics in Taperoo, North Haven and Port Adelaide.

1. Between about 1996 and 2000 inclusive, Ms G consulted with the respondent at the practice on about 10 occasions, including for the prescription of anti-depressant medication.
2. From about 1997 to 2000 ("the first period"), the respondent kissed Ms G on the lips at the end of each consultation.
3. During the first period, the respondent conducted numerous procedures on Ms G for which he requested that she be completely naked, and for which no draping was offered or used, namely:

1. During the breast examinations referred to above, the respondent leaned his genitals against Ms G's leg.
2. The conduct referred to above caused Ms G to feel shame, embarrassment and sadness.

1. Ms R consulted with the respondent at the practice between 1 March 1996 and 20 June 2000 ("the second period"), including for the prescription of anti-depressant medication.
2. In a consultation on 20 June 2000, the respondent purportedly performed a pap smear on Ms R during which:

(c) the respondent conducted a lengthy digital examination;

1. Ms R did not receive any results of the pap smear purportedly conducted on 20 June 2000.
2. At the conclusion of the pap smear procedure on 20 June 2000, when Ms R was leaving the examination room, the respondent pushed his hands against the door on either side of Ms R, leaned towards her and kissed her on the lips.
3. At the time of the consultation on 20 June 2000 Ms R felt sick, and knew that the respondent's conduct was 'not right'.

1. Ms M consulted with the respondent at the practice between about June 1996 and 18 December 2004 ("the third period"), including for the prescription of anti-depressant medication.
2. When Ms M was about 15 or 16 years old, the respondent started greeting her with a kiss to each cheek.
3. About six months to one year after the conduct described in particular 13, above, the respondent commenced each consultation by kissing Ms M on the lips.
4. On multiple occasions during the third period, the respondent drew his chair towards Ms M while she was seated in consultations, putting his legs around the outside of her knees.
5. During some of the instances described in particular 21, above, the respondent rested his hand on her thigh or rubbed her leg.
6. In the course of the third period, the respondent conducted a number of pap smears on Ms M. On at least three such occasions the respondent stroked the inside of Ms M's legs before or after the procedure.
7. The respondent did not offer Ms M a chaperone for pap smears conducted during the third period, nor was one present for these examinations.
8. On more than one occasion after performing a pap smear during the third period, the respondent asked Ms M to lift her top so that he could conduct a breast examination.
9. During the third period the respondent telephoned Ms M on five or six occasions to ask how she was and/or advise her that she needed to make an appointment for a pap smear.
10. The respondent's conduct towards Ms M in the third period has made her less trusting of medical professionals and of men generally.

1. Ms C consulted with the respondent at the practice between 2002 and 2005 ("the fourth period"), including consultations for post-natal depression.
2. On 5 July 2005 Ms C consulted with the respondent when she 'was in a real state' with her depression. At the end of the consult as she was leaving, the respondent hugged Ms C, and grabbed her on the buttock.
3. On 19 July 2005 as Ms C was leaving a consultation with the respondent, he touched her on the buttock.

1. Ms L consulted with the respondent at the practice in 2003 ("the fifth period").
2. At some time before February 2003, Ms L's regular practitioners at the practice were unavailable, so she saw the respondent. On this occasion, before the consultation commenced, the respondent complimented Ms L on her dress, which he said looked lovely on her. This made her feel uncomfortable.
3. During the consultation referred to in particular 26, the respondent suggested that Ms L should have a pap smear, which she refused.
4. In the fifth period, Ms L attended two consultations with the respondent regarding cluster migraines. During the second of these appointments, on 2 February 2003, the respondent told Ms L to lift her top. He then placed the stethoscope on the soft tissue of each of her breasts, just above the line of her bra. He did this on each side, leaving the stethoscope only briefly on the breast tissue. While he was undertaking this procedure, the respondent had his right knee between Ms L's legs and she could not move away.
5. Also during this consultation, the respondent asked Ms L if she was due for a pap smear, and when she declined to have one, he replied, "you are not being a typical female about this, are you?".
6. Ms L felt that she had been violated by the respondent during the consultation on 2 February 2003.

1. Ms C consulted with the respondent at the practice between 2004 and 2009 ("the sixth period").
2. When she first began consulting with the respondent, he greeted Ms C with a kiss to each cheek.
3. Later in the sixth period, the respondent's greeting to Ms C progressed to holding both sides of her face and kissing her for a few seconds on the mouth. This made her feel very uncomfortable, and she felt that she could not move her face away.
4. During a consultation with the respondent on 7 February 2007, the respondent conducted a digital vaginal manipulation of Ms C's cervix, reportedly to "bring on" labour. No chaperone was offered for this procedure.
5. At some time after the birth of her son (on 16 February 2007), Ms C attended a consultation with the respondent during which he commented on having seen Ms C's semi-nude photograph in Ralph magazine. The respondent raised his eyebrows and smiled at Ms C. She felt that this was unprofessional, and it made her feel uneasy.
6. During Ms C's second pregnancy, the respondent performed a number of fundal height measurements, during which he pulled down Ms C's pants and underpants, fully exposing her genitalia. These measurements were taken on the following dates:
   • 14 November 2008;
   • 11 December 2008;
   • 5 January 2009;
   • 5 February 2009;
   • 12 February 2009;
   • 16 March 2009;
   • 26 March 2009;
   • 6 April 2009;
   • 16 April 2009;
7. On 2 March 2009, the respondent conducted a fundal height measurement on Ms C, with an Asian male present. During this consultation, the respondent did not pull down Ms C's pants and underpants, and instead conducted the measurements over her clothing.
8. After the birth of Ms C's daughter (on 19 April 2009), Ms C took her child for a consultation with the respondent at the practice. During this consultation, Ms C mentioned that she was considering breast augmentation surgery.
9. The respondent spoke to Ms C about the procedure, and asked her to get onto the examination table and remove her upper clothing and bra, which she did. The respondent then told Ms C that she would be a "good candidate" for the procedure. No chaperone was offered for this examination.
10. On 25 August 2009, Ms C had breast augmentation surgery conducted by a specialist surgeon. Soon after this procedure, she began receiving calls on her mobile telephone from the respondent, who left messages to the effect that she should attend for a consultation so that he could check her breasts after the surgery. This continued for some weeks.
11. Ms C rang the practice and asked that the respondent stop telephoning her. She asked the practice to change her contact number to that of her then-husband's mobile telephone number.
12. After the change of the contact telephone number for Ms C to that of Mr C, he received a call on his mobile telephone from the respondent, asking whether he had upset Ms C and asking that she telephone him.
13. During the sixth period, on multiple occasions, the respondent pulled up Ms C's upper garments, exposing her breasts, to use his stethoscope.
14. During the sixth period, the respondent booked Ms C in for regular appointments without her request, and without any apparent clinical justification for them.
15. During the sixth period, the respondent conducted frequent pap smears on Ms C, in the absence of family history or other risk factors warranting such examinations.
16. On some occasions during the sixth period when the respondent conducted pap smears on Ms C the respondent would conduct a digital examination. Prior to this the respondent would say words to the effect that he was just going to feel around to see if she had any cysts.
17. During the sixth period, the respondent conducted regular examinations of Ms C's breasts, also without any family history or other relevant risk factors.
18. The pap smears and breast checks referred to in particulars 45 and 52 occurred more frequently than reflected in Ms C's practice notes.

1. Ms V consulted with the respondent at the practice from a young age. Until she turned 18, those consultations occurred in the company of one of her parents.
2. From about August 2010 - October 2012, Ms V attended consultations with the respondent on her own ("the seventh period").
3. Soon after Ms V turned 19, (in August 2011) the respondent began greeting her at the start of consultations with a hug.
4. Later in the seventh period, the respondent's greeting progressed:

(c) then a hug, followed by holding her face firmly in his hands, and kissing her on the lips. During this greeting, Ms V would stand with her hands to her side and try to pull away from the respondent. It made her feel very uncomfortable.

1. During consultations in the seventh period, the respondent asked Ms V about her sister, Ms A, particularly in relation to whether she was still in a relationship with her then-boyfriend.
2. On a number of occasions during the seventh period, the respondent pulled Ms V's upper clothing up over her breasts in order to use his stethoscope.
3. On one occasion during the seventh period when Ms V had a chest complaint, the respondent was using his stethoscope on her chest when she was standing up, when (without warning or seeking consent) he pulled the waist band of her pants down and placed the stethoscope at various points around her waist.
4. During the seventh period, the respondent questioned Ms V on her choice of contraception. The respondent was "pushy" in his suggestions.
5. During the seventh period, the respondent frequently asked if Ms V needed a pap smear.
6. In 2012, the respondent began booking Ms V in for frequent appointments without apparent clinical justification. Ms V stalled, cancelling some of these appointments because she felt that they were unnecessary.
7. On 4 September 2012, Ms Y presented for a consultation with the respondent, because she had spots on her hands and arms. During the consultation, Ms V told the respondent that she had no spots anywhere else, however, the respondent (without warning or seeking consent) pulled down Ms V's pants about one inch, and inspected the exposed area. This made Ms V feel uncomfortable.

1. Ms V2 consulted with the respondent at the practice as a child. Until she was about 17, those consultations occurred in the company of one of her parents.
2. From 8 November 2011 until 24 July 2012 Ms V2 attended consultations with the respondent on her own ("the eighth period").
3. At the first consultation during the eighth period, the respondent greeted Ms V2 with a kiss to each of her cheeks.
4. During the eighth period the respondent would hug Ms V2 at the end of a consultation.
5. On more than one occasion during the eighth period, when the respondent would hug Ms V2, the respondent would move his hand down to the top of her bottom and touch her with a pat or gentle slap on her bottom.
6. As time progressed, the respondent started greeting Ms V2 by cupping her head in his hands for a few seconds, during which he kissed her on the mouth. If she tried to turn her head away, the respondent would pull it back towards him. Ms V2 pulled a face when the respondent engaged in this conduct, which she felt was inappropriate.
7. On 8 November 2011, during a consultation with the respondent, he suggested to Ms V2 that she should have an intra- uterine device inserted. When she refused, the respondent became insistent about it.
8. During the eighth period, the respondent frequently checked that Ms V was up-to-date with her pap smears. She did not let the respondent perform these procedures, because he made her feel uncomfortable.
9. In March 2012, the respondent asked Ms V2 how her back was. She told him that it was a bit sore and the respondent offered to "crack" it for her. The respondent then:

(a) asked Ms V2 to remove her upper clothing, so that he could see her back better;

(b) sat on the examination table and asked Ms V2 to stand in-between his legs, with her hip facing him;

(c) wrapped his legs around her body, and twisted her shoulders;

(d) told Ms V2 that she needed more of these treatments.

1. During the eighth period, the respondent performed a number of these spinal manipulation procedures on Ms V2. On a number of these occasions, the respondent tried to remove Ms V2's upper clothing for her, and tried to assist her putting her clothes back on at the conclusion of the procedure.
2. On one instance of the spinal manipulation procedure, Ms V2's breast came out of the top of her bra, and the respondent went to pull the top of her bra over her breast, and she had to intervene to stop him from doing so.
3. On 1 May 2012, Ms V2 attended a consultation with the respondent, during which she reported that her parents had recently separated. During this consultation she was distraught. The respondent drew his chair closer to her, cupped her face in his hands and kissed her on the lips. This made her feel sick.
4. During the eighth period, the respondent made multiple calls to Ms V2 on her mobile telephone, requesting her attendance for appointments. When she attended these appointments, there appeared no purpose to them. Consequently, Ms V2 began cancelling these appointments, after which the respondent would telephone her again and ask why she had done so.
5. On 24 July 2012, Ms V2 attended a consultation with the respondent, with her then-boyfriend, Mr R. A medical student or nurse was also present during this consultation.
6. During this consultation on 24 July 2012, the respondent told Mr R that he needed to have a blood test, and sent him out of the room with the medical student/nurse. The respondent then conducted a spinal manipulation procedure on Ms V2.
7. Ms V2 was never offered a chaperone for the spinal manipulation procedures.
8. The consultations with the respondent in the eighth period made Ms V2 feel dirty and distressed.

1. Ms L2 consulted with the respondent at the practice between 24 July 2010 and 5 July 2012 ("the ninth period').
2. During the early stages of the ninth period, the respondent started hugging Ms L2 on her arrival at consultations.
3. Later during the ninth period, the respondent's greeting progressed to cupping Ms L2's face in his hands and kissing her on the mouth. If she got in and sat down in the consultation room without this process occurring, the respondent stood in front of her with arms outstretched and asked for a hug.
4. On one occasion the respondent kissed Ms L2 on her lips while she was clothed only in briefs.
5. During the ninth period, the respondent often called Ms L2 names like "my beautiful girl" and made comments about the clothing she was wearing, in particular that he "liked her better in a dress".
6. On 13 October 2010, the respondent inserted a Mirena intra-uterine device for Ms L2 at the practice.
7. After the procedure described in particular 75, the respondent asked Ms L2 to attend the practice for a number of follow-up consultations. At the third of these consultations, the respondent conducted a digital vaginal examination, (without warning or seeking consent), which made her feel confused and uncomfortable.
8. On 29 June 2011, the respondent removed a mole from Ms L2's back.
9. Following the procedure referred to in particular 89, the respondent conducted regular skin checks to monitor Ms L2's other moles. During one of these examinations (on 2 November 2011), the respondent told Ms L2 to remove her clothes (other than underpants) and wait in the examination room. She was not instructed to lie on the table, nor was she offered a chaperone or a draping.
10. When the respondent entered the examination room on this occasion, he ran his bare hands over Ms L2's body, and pulled down her underpants a bit, and inspected the skin there.
11. Also during this examination, the respondent asked Ms L2 whether she had any other problems, to which she replied that she had some back pain. The respondent offered to "crack" her back. During this procedure, the respondent:

(a) sat on the examination table and wrapped his legs around Ms L2's waist, with her back towards him;

(b) placed his hands on Ms L2's shoulders and rotated them left and right;

(c) told her to turn around and face him, and, with his legs still wrapped around her waist, he placed his palm on her chest above her breasts and pushed her backwards.

1. Ms L2 found this procedure embarrassing, invasive, and uncomfortable. She felt shocked and intimidated.
2. Also during the consultation on 2 November 2011, the respondent asked Ms L2 to sit in a chair, while she was still wearing only her underpants, and manipulated her head to "crack" her neck.
3. The spinal and neck manipulations occurred on multiple occasions in the ninth period.
4. On two occasions Ms L2 asked the respondent not to perform the neck manipulation procedure, to which he replied words to the effect of, "luckily I studied chiropractic in my studies and I will be gentle".
5. On one occasion the respondent performed a neck manipulation on Ms L2 without her consent.
6. Ms L2 did not ask for the skin checks or spinal manipulation procedures, and queried whether they were necessary, to which the respondent replied that they were.
7. During the ninth period, the respondent conducted a number of pap smears on Ms L2. On one occasion, the respondent did not offer Ms L2 a chaperone for the pap smear, nor was one present for the examination.
8. During the ninth period, the respondent made a number of appointments for Ms L2, without her requesting them and without apparent clinical justification.
9. Ms L2 began to cancel appointments by ringing the practice receptionist and advising that she would not be attending. When she did so, the respondent called her on her mobile telephone or work number, to ask her to reschedule her appointments. He would often say things like "I really need to see you".
10. The respondent's conduct towards Ms L2 during the ninth period made her feel anxious and uncomfortable.

1. Ms C3 consulted with the respondent at the practice between 2005 and 2013 ("the tenth period").
2. At her first consultation with the respondent on 19 July 2005, he asked her whether she had ever had the spots on her skin checked, to which she replied that she had not.
3. The respondent asked Ms C3 to remove her shirt, so that he could examine her, which he did by running his fingers over the skin on her back and shoulders, and other parts of her body.
4. On 30 August 2005, the respondent conducted a pap smear procedure on Ms C3, during which:

1. During the same consultation on 30 August 2005, the respondent conducted a "skin check" as previously described in particular 91.
2. Also during this consultation, the respondent offered to manipulate Ms C3's back, saying words to the effect of "don't tell anyone because I'm not a registered chiropractor and I could get into trouble for doing this".
3. When performing the back manipulation referred to in particular 96, the respondentpap sat on the edge of the examination bed, and asked Ms C3 to stand next to him side-on. He then spread his legs apart, and wrapped them around Ms C. When he did this, Ms C3 could feel the respondent's erect penis on the side of her hip. He then twisted her upper body from side-to-side in an attempt to "crack'' her back. He then asked her to bend over and touch her toes to stretch her back, while he ran his hands over her spine.
4. The respondent then asked Ms C3 to sit in a chair while he stood behind her and manipulated her head from side-to-side to "crack" her neck.
5. During the tenth period the respondent provided these spinal manipulation procedures at subsequent appointments with Ms C3, or at consultations she attended with her family members.
6. The respondent also regularly conducted breast examinations on Ms C3 during the tenth period.
7. The respondent also regularly conducted "skin checks", including on Ms C3's legs. When he examined her legs, the respondent asked Ms C3 to remove her lower garments.
8. At some stage during the tenth period (after 20 January 2009), the respondent conducted a pap smear, with a chaperone present in the room. This was the only instance in the tenth period on which the respondent used a speculum for a pap smear conducted on Ms C3.
9. Ms C3 has reviewed her practice notes for the tenth period, which do not reflect the number of pap smears conducted during this time.
10. At some time doing each consultation in the tenth period, the respondent touched Ms C3 in some way not clinically justified, such as touching her on the knee during appointments, as they sat facing each other.
11. The respondent never referred to Ms C3 during the tenth period by name, instead calling her names such as "sweetie", "lovely" or "beautiful".
12. On 18 October 2010, Ms C3 attended a consultation with the respondent. At the conclusion of this appointment, the respondent touched Ms C3 on the buttocks. When she turned around, the respondent indicated that he had only meant to touch her back.
13. The foregoing conduct was in breach of Good Medical Practice: A Code of Conduct for Doctors in Australia ("the Code") and/or Sexual Boundaries: Guidelines for doctors ("the Guidelines") in that:

(a) the respondent failed to demonstrate the professional values and qualities of a doctor in that he failed to make the care of Ms G, Ms R, Ms M, Ms C, Ms L, Ms C2, Ms V, Ms V2, Ms L2, and Ms C3 ("the patients") his first concern and took advantage of the patients (clause 1.4 of the Code);

(b) the respondent failed to treat the patients with respect at all times (clause 2.4.1 of the Code);

(c) the respondent recommended, and on occasions provided, services that were not necessary and likely to benefit patients (clause 5.2.1 of the Code);

(d) the respondent failed to maintain accurate medical records regarding investigations, treatment and other management of patients (clauses 2.2.3 and 8.4.1 of the Code);

(e) the respondent failed to display a standard of behaviour that warranted the trust and respect of the community (clause 8.1 of the Code);

(f) the respondent failed to act in the patients' best interests when providing treatment or care (clause 8.11.2 of the Code);

(g) the respondent failed to maintain professional boundaries (clause 8.2.1 of the Code and sections 3, 6 and 8 of the Guidelines);

(h) the respondent exploited the patients physically, emotionally and sexually (3.2.6 of the Code);

(i) the respondent used his professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with the patients (8.2.2 of the Code);

(j) the respondent engaged in sexual misconduct in connection with the practice of medicine in that the respondent engaged in sexualised behaviour, and/or sexual exploitation or abuse, and/or sexual assault in that:

1. the respondent made sexual remarks and/or suggestive comments about patients' appearances or bodies and/or unnecessary comments about patients' bodies or clothing;
2. the respondent touched patients in a sexual way;
3. the respondent engaged in sexual behaviour in front of patients;
4. the respondent sexually harassed patients;
5. the respondent provided inappropriate draping for physical examinations of patients;
6. the respondent conducted intimate examinations without adequate prior explanation (and thus without informed consent);
7. the respondent kissed patients without consent;
8. the respondent attempted to assist patients to undress and/or dress in circumstances where the patients did not request assistance;
9. the respondent allowed patients to remain undressed for longer than was needed for the examination;
10. the respondent conducted intimate examinations without a chaperone offered or present (sections 3, 6 and 8 of the Guidelines).

1. The foregoing conduct constitutes professional misconduct in that:

(a) The respondent acted in such a manner as to bring the medical profession into disrepute;

(b) The respondent's conduct was substantially below the standard reasonably expected of a registered medical practitioner of an equivalent level of training or experience;

(c) The respondent's conduct was inconsistent with him being a fit and proper person to hold registration in the medical profession.

1. The Medical Board alleged that some of the conduct individually and in its totality constituted professional misconduct.
2. The respondent was at all relevant times registered as a general and specialist medical practitioner initially under the State Legislation and subsequently the National Law.
3. The current disciplinary hearing commenced in the South Australian Health Practitioners Tribunal (SAHPT) on 26 June 2018 at which time the respondent argued unsuccessfully for a stay of proceedings. Over objection from the respondent, the Board led evidence from all 10 patients which meant that the hearing became protracted.
4. The majority of the allegations were contested throughout the hearing and remain disputed.[2]
5. The exceptions included admissions to conduct amounting to aggravated indecent assault of three female patients. The respondent pleaded guilty to these offences in the Adelaide Magistrates Court on 15 August 2016. Convictions and a fine of $6000.00 was imposed by Magistrate Grasso on 9 September 2016.
6. The current disciplinary proceedings concluded in June 2019 and the Tribunal's decision as to factual findings was delivered on 8 August 2019.[3] The outstanding matters to be determined included categorisation of the proven conduct, imposition of sanction and costs.
7. The day after the findings were delivered, the SAHPT was dissolved by force of s 112(6) of the Statutes Amendment (SACAT) Act 2019. The South Australian Civil and Administrative Tribunal (SACAT) was designated as the responsible tribunal for the Health Practitioner Regulation National Law (s 6 Health Practitioner Regulation National Law (South Australia) Act 2010.
8. The proceedings were transferred to SACAT (s 112(4) Statutes Amendment (SACAT) Act 2019) and continued before a differently constituted Tribunal following the retirement of the former presiding member. Two remaining members of the SAHPT were re-appointed to the newly constituted Tribunal to see the matter through to its conclusion. A new presiding member was appointed from the Magistracy.
9. The respondent unsuccessfully applied for the two pre-existing members to disqualify themselves on the basis of apprehended bias. The respondent submitted that because those two members had been involved in determining findings of fact against the respondent, a fair minded lay observer might reasonably apprehend that those members might not bring an impartial mind to bear in relation to the remaining issues to be determined by the new Tribunal.[4]
10. The Tribunal rejects the respondent's argument as misconceived.[5] Part of the argument concerned the interpretation of the transitional provisions.

Transitional Provisions within the Statutes Amendment (SACAT Act) 2019

112 - Transitional provisions**[6]**

(4) Any proceedings before the South Australian Health Practitioners Tribunal under the principal Act immediately before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been commenced before that Tribunal.

(5) The Tribunal may -

(a) receive in evidence any transcript of evidence in proceedings before the South Australian Health Practitioners Tribunal, and draw any conclusions of fact from that evidence that appear proper; and

(b) adopt any findings or determinations of the South Australian Health Practitioners Tribunal that may be relevant to proceedings before the Tribunal; and

(c) adopt or make any decision (including a decision in the nature of a determination), direction or order in relation to proceedings before the South Australian Health Practitioners Tribunal before the relevant day (including so as to make a decision or determination, or a direction or order, in relation to proceedings fully heard before the relevant day); and

(d) take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section.

1. The Tribunal accepts the arguments advanced by the Board in their written outline on the topic of apprehended bias as well as the legislative framework for continuing proceedings.[7]
2. There is a clear legislative intent in the transitional provisions for part heard matters such as the current matter which commenced before the SAHPT to transfer over and be heard by SACAT.
3. The newly constituted Tribunal continued to hear the matter and received the transcript of the proceedings.
4. The Tribunal has also received the exhibits referred to in the transcript over opposition from the respondent. The Tribunal is not persuaded by the argument advanced by the respondent to the effect that s112 when referring to 'transcript of evidence', should be interpreted as an exhaustive code. The Tribunal agrees with the analysis of the Board that such a narrow reading of the legislation would undermine the purpose of the transitional provisions.
5. The newly established Tribunal hereby formally adopts the findings of the previous Tribunal.
6. Members wish to express appreciation to the parties for their helpful outlines of argument provided concerning the various issues canvassed in the lead up to today's hearing.
7. The previous Tribunal concluded that whilst some particulars in the Complaint were not found proven to the requisite degree, it was satisfied by proven particulars that there had been breaches by the respondent of 'Good Medical Practice: A Code of Conduct for Doctors in Australia, ("the Code") as well as ' Sexual Boundaries: Guidelines for Doctors', 'The Guidelines' as follows:
   • failing to treat the patients with respect at all times
   • recommending, and on occasions, providing services that were not necessary and likely to benefit patients
   • failing to maintain accurate medical records
   • failing to display a standard of behavior that warranted the trust and respect of the community
   • failing to act in the patients best interests when providing treatment or care
   • failing to maintain professional boundaries
   • exploiting patients physically, emotionally and sexually
   • using his professional position to establish or pursue an inappropriate relationship with patients
   • engaging in sexual misconduct in connections with the practice of medicine e.g. comments about appearances, touching in a sexual way, kissing without consent, and conducting intimate examinations without a chaperone being offered or present.'[8]

Categorisation of Conduct in current proceedings

1. This Tribunal continues to be satisfied about the nature of those proven breaches and the seriousness of them. The findings set out in the Tribunal's reasons speak for themselves. Dr Ford's evidence concerning the respondent's conduct underscores those findings and how they may be characterised.
2. The Health Practitioner Regulation National Law (South Australia) Act 2010 Schedule 2_,_ sets out the relevant provisions which govern the process following delivery of findings by the Tribunal.

196 - Decision by responsible tribunal about registered health practitioner_[9]_

(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(b) one or more of the following -

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

(iv) the practitioner has an impairment;

1. The Tribunal has been assisted in assessing the nature of the proven findings with respect to each of the 10 patients by way of a summary prepared by the Board in its outline of argument. We accept that it accurately summarises the Tribunal findings of fact, albeit with concessions made concerning some matters of detail referred to in argument from the respondent.[10]
2. The character of the respondent's conduct may be illustrated in part by reference to findings made in relation to patient two, Ms R (aged in her 20s) as follows:
   • "on 20 June 2000 the respondent purportedly performed a pap smear on Ms R during which, no chaperone was offered or present, no draping was offered or used, the respondent conducted a lengthy digital examination, no speculum or other equipment was used and Ms R did not feel any swab being taken.
   • Ms R did not receive any results of the pap smear purportedly conducted on 20 June 2000
   • At the conclusion of the examination on 20 June 2000 when Ms R was leaving the examination room the respondent pushed his hands against the door on either side of Ms R leaned towards her and kissed her on the lips."[11]
3. Another finding which illustrates the nature of the conduct concerns patient nine, Ms L2:

'The Tribunal accepts Ms L2's evidence that at some point during the consultation on 2 November 2011 she was left just wearing her knickers following which the respondent conducted a skin check by running his hands over her and pulling down her underpants and then offered and proceeded to perform a TSS procedure and neck manipulation whilst she was clad only in her knickers'.[12]

1. This same patient gave evidence which was accepted by the Tribunal that the respondent made appointments for her which she attempted to cancel, however, the respondent initiated calls to her to have her rebook when there was no clinical justification for an appointment. The Tribunal found the conduct to be intrusive and inappropriate.[13]
2. The TSS procedure or spinal thoracic stretch which the respondent performed on some patients is of particular concern to the Tribunal.
3. To illustrate the unprofessional nature of this conduct, reference may be made to the 'procedure' found proven upon patient 10, C3 as summarised in the Board's summary of findings document.[14]
4. On 30 August 2005, the respondent had performed a skin check on C3. He followed the same process as performed during an earlier consult in July 2005. He asked her to remove her shirt, after which he examined her back by running his fingers over the skin on her back and shoulders and other parts of her body. The following then took place:
   • the respondent offered to manipulate Ms C3's back, saying "don't tell anyone because I am not a registered chiropractor and I could get in trouble for doing this".[15]
   • While performing the back manipulation offered, the respondent sat on the edge of the examination bed, and asked Ms C3 to stand next to him side on. He spread his legs apart and wrapped them around her. Ms C3 could feel the respondent's erect penis against her hip. He then twisted her upper body side to side in an attempt to "crack" her back. He then asked her to bend over and touch her toes to stretch her back, and he ran his fingers over her spine.[16]
   • On the same occasion, the respondent asked Ms C3 to sit in a chair and he manipulated her head from side to side, to 'crack' her neck.[17]
5. Intimate examinations in the absence of a chaperone were conducted on the third patient, Ms M by the respondent on 6 March 2003, 10 July 2003, 6 November 2003 and 12 August 2004. The following findings are relevant to characterisation as follows:

'The Tribunal is satisfied to the requisite degree that the pap smears were performed more frequently and at closer intervals, then (sic) could be clinically justified. Moreover the Tribunal is satisfied that the frequency was informed by a prurient interest and was not medically justified.'[18]

'In relation to breast examinations the medical notes record that such an examination was performed on 6 March 2003, 6 November 2003 and 12 August 2004. The Tribunal is satisfied that no clinical justification was or could be provided by the respondent for these examinations. The Tribunal is further satisfied to the requisite degree that no chaperone was present. There being no proper clinical purpose for these examinations the Tribunal is of the view that the respondent's actions were prurient.'[19]

1. In addition to the above findings, the Tribunal accepts that the respondent made frequent phone calls outside the clinic setting to remind Ms M that she was due for a pap smear. These calls were regarded by the patient as intrusive and led her to complain to her mother who wrote a letter to the clinic about it. The respondent's conduct towards this patient 'has made her less trusting of medical professionals and of men generally'.[20]
2. The findings concerning patient four, Ms C, indicate the sexually exploitative nature of the respondent's conduct quite plainly. During a consult with Ms C when she was being counselled over her failing marriage, she said that she was suicidal. At the end of the consult, she was emotional and upset. The Tribunal found the following particulars proven as follows:

'At the end of the consultation Ms C said she stood up to leave the consultation room and "we hugged". During the hug Ms C remained emotional and was still crying. Ms C said that one of the respondent's hands was resting on her left buttock, and in that position he grabbed her left buttock, with "reasonable force" with an open hand. Ms C said that following this conduct on the part of the respondent she was in shock and felt disappointed that the professional she was relying on for support and medical help had done this. Ms C said she left without saying anything to the respondent. She walked home in tears.'[21]

1. The conduct found proven by the Tribunal is undoubtedly serious and points to a disturbing conclusion that the behaviour on many occasions was motivated by a prurient interest in the respondent's female patients. Some of the patients were young and particularly vulnerable in light of their personal circumstances. The Tribunal has rejected the repeated assertions by the respondent that if he had behaved inappropriately, or unprofessionally, his patients would not have continued to consult him. This lack of acknowledgment of the power imbalance between a medical practitioner and his patients is concerning.[22]
2. The Tribunal is firmly of the view that the conduct found proven, including sexual misconduct, when seen separately and in its totality, is behaviour that constitutes professional misconduct in accordance with s 196(1)(b)(iii).
3. The conduct was such as to bring the medical profession into disrepute. It was substantially below the standard reasonably expected of a registered medical practitioner of an equivalent level of training or experience and it was inconsistent with him being a fit and proper person to hold registration in the medical profession.

1. The power to impose sanctions derives from s 196 as follows:

196 - Decision by responsible tribunal about registered health practitioner_[23]_

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from -

(i) providing any health service or a specified health service; or

(ii) using any title or a specified title.

1. In approaching the question of sanction, it is relevant to touch upon the respondent's previous disciplinary experience and criminal convictions for aggravated indecent assault.

1. The respondent had been subject to disciplinary proceedings finalised in 2003 before the Medical Practitioners Professional Conduct Tribunal concerning allegations of unprofessional conduct in relation to a female patient. The conduct which commenced in June 2000, bears similarity to the types of conduct alleged in the current proceedings. After a contested hearing in November 2002, the Tribunal found against the respondent in relation to some allegations but not others. It was accepted that he gave the patient a full body hug on one occasion and in subsequent consultations gave her a hug and kiss on the side of the face until she ceased consulting him.
2. During the proceedings, the respondent conceded that he had previously had a practice of hugging and kissing some patients and therefore may have done so with this particular patient as per the allegations. He also accepted that in accordance with his previous practice, he may have made personal remarks as alleged complimenting her personality and appearance following weight loss.
3. It was established that the respondent should have known that his conduct might cause apprehension and be misinterpreted and might damage the relationship of trust between the patient and her doctor.
4. The Tribunal reprimanded the respondent for his unprofessional conduct and expressed the following remarks:

'The Tribunal accepts that immediately the accumulation of his behaviour relating to M was pointed out to him, the Respondent changed his practices in the several areas which had allowed the course of conduct since 23 June 2000 in relation to M to commence and continue. It also accepts that these changed practices are now personally firmly established and that there is little or no likelihood of recurrence.'[24]

1. Subsequent disciplinary proceedings were conducted in 2008 concerning alleged inappropriate conduct with patients, but were ultimately dismissed. The fact that those proceedings occurred is relevant in assessing subsequent proven misconduct because it served as another opportunity for the respondent to reflect on the importance of maintaining appropriate professional boundaries.
2. It is concerning to note that the respondent pleaded guilty to indecent assault of 3 female patients in the Adelaide Magistrate's Court on 15 August 2016. The conduct occurred after he had been reprimanded by the Tribunal in 2003 and was taken to have adjusted his approach to female patients.

1. According to the factual basis for sentencing, it was admitted that in February 2012, in the context of a medical consultation, the respondent greeted his 22 year old patient with a hug, put his hands on either side of her cheeks and kissed her on the mouth saying 'how's my beautiful girl'.[25]
2. This patient was a witness in the current proceedings and is referred to in the documents as 'The Ninth Patient. - Ms L2.
3. Another patient, also a witness in the current proceedings referred to in the documents as 'The Eighth Patient - Ms A, also known as V2 was a secondary school student, aged 18 at the relevant time.
4. On 1 May 2012, she consulted the respondent and revealed that her parent's relationship had broken down. At the end of the consult, the respondent placed his hands on either side of her cheeks and kissed her on the lips for 2-3 seconds.
5. The third patient who was 'patient 6, C2' in the current proceedings, alleged the same type of kissing incident on 18 June 2009. This patient was 25yrs old.
6. The penalty imposed by the Magistrate was a fine of $6,000.00. By reference to the Magistrate's remarks, the agreed factual basis for sentencing was confined to one incident concerning each patient and it was accepted by the Court that it was at the lower end of scale of indecent assault. It was submitted by the practitioner's counsel at the time that the conduct did not occur for the defendant's own sexual gratification.
7. It has become clear from the findings of this Tribunal that that submission is no longer tenable.
8. The respondent's disciplinary history and opportunities provided previously to alert him to shortcomings in his professional behaviour speaks against anything other than the imposition of sanctions which will appropriately protect the public from his behaviour.
9. The reprimand in 2004 concerning touching a female patient and making personal remarks to her should have caused him to reflect and develop appropriate insight into the importance of maintaining professional boundaries.
10. Yet the evidence given during these proceedings together with the findings found proven, indicate an alarming lack of insight into his conduct and the effects that it has had upon his young female patients. The findings also make plain that the respondent has been untruthful in his evidence to the Tribunal, which is a matter of continuing concern.
11. The respondent has emphasised in recent submissions that he does not accept that he is guilty of professional misconduct.
12. This Tribunal proceeds to impose sanctions available to it pursuant to s196 National Law and is guided by the need for the protection of the public.

Pursuant to s 2(a) the Respondent is reprimanded again

1. The respondent is to understand that this time, the conduct which has warranted the reprimand is regarded with the utmost seriousness. It might be expected that a reprimand denouncing such conduct would be accompanied by deep shame and contrition.
2. The rejection of the respondent's denials and explanations by the Tribunal does not give any confidence about respondent's suitability to safely continue the practice of medicine. There is a need in these circumstances to impose an appropriate sanction which would amount to reassurance to the public and to the profession that the type of conduct found proven is simply unacceptable.

1. The Board has sought cancellation of the respondent's registration over opposition from the respondent, who submits that a period of suspension would be adequate, followed by conditional practice thereafter.
2. It is noted that the respondent's registration in June 2013 was subject to severe restrictions and undertakings pending the outcome of criminal charges, which originally included a charge of rape (exhibit C29 signed undertaking 23.11.16). It is also understood that following some publicity surrounding the criminal charges, the respondent became medically unfit to practice between 6 February and 8 June 2013 and again between 7 January 2016 and 18 June 2016, some two months before the charges finally resolved with pleas to indecent assault.
3. In considering suitable sanctions the Tribunal has regard to the submissions of counsel and also to an independent review, commissioned by AHPRA and written by Professor Ron Paterson concerning 'the use of chaperones to protect patients in Australia'.[26]
4. After careful consideration about what is appropriate and necessary to protect the public, the Tribunal directs that the respondent's general and specialist registration as a medical practitioner is cancelled, effective today, pursuant to s 196 ss 2(e) of the National Law.
5. Having regard to the submissions from both parties, the Tribunal is not satisfied that suspension would be an adequate sanction, given the gravity of the conduct found proven.

Disqualification from applying for registration

1. The Board has sought an order disqualifying the respondent from applying for registration as a registered health practitioner for a period of 15 years pursuant to s 196 ss 4(a) of the National Law. Having regard to the submissions from both parties on this topic, including references to cases involving sexual misconduct, the Tribunal is persuaded that an order of this type is appropriate, but that it be for a period of 13 years.
2. A reduction in the period sought by the Board is made, taking into account some periods when the practitioner has not been able to practice due to medical unfitness, periods where there have been severe restrictions on his registration and periods under suspension by the Board.[27]
3. Pursuant to s 196 ss 4(a) of the National Law, the respondent is disqualified from applying for registration as a registered practitioner for a period of 13 years from today.

Prohibition from providing any relevant health service

1. An additional sanction is sought by the Board which would prohibit the respondent from providing any health service involving any form of intimate physical contact with a patient for a period of 15 years.
2. The Tribunal is satisfied that the findings provide a relevant justification for an order of this type, particularly when considering the unconventional spinal manipulation procedures engaged in by the respondent.
3. Pursuant to s 196(4)(b)(i), the Tribunal prohibits the respondent from providing any health service involving any form of physical contact with a female patient, including any intimate examination or spinal manipulation which would require a female patient to undress either partially or fully for a period of 13 years from today.
4. The Tribunal is satisfied that this combination of sanctions is necessary to reflect the gravity of the respondent's conduct. It is also necessary to provide adequate protection to the public and to protect and uphold the standards of the medical profession.

1. Pursuant to s 195 of the National Law, this Tribunal makes an award of costs in the Medical Board's favour on a party/party basis in relation to the proceedings before the SAHPT and the SACAT.
2. The Tribunal is satisfied that the power to order costs following transfer of the proceedings into SACAT may be implied into the transitional provisions.[28]
3. The Board seeks an award of costs assessed at 100% of the applicable scale in recognition of the complexity and scope of the proceedings.
4. It is accepted that the matter was sufficiently complex to justify retention of senior counsel.

57 - Costs_[29]_

(1) Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal.

(2) Unless otherwise specified in a relevant Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material, if the Tribunal thinks that it is appropriate to do so after taking into account -

(a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and

(c) any provision made by the rules; and

(d) any other matter considered relevant by the Tribunal.

101. Costs_[30]_

[rule 101 inserted by South Australian Civil and Administrative Tribunal Rules 2014 (Amendment No. 1)]

(a) Subject to any order of the Tribunal, if the Tribunal has not ordered the payment of a lump sum in costs:

1. costs awarded by the Tribunal are to be assessed at 75% of the scale of costs applicable from time to time for the purposes of the Supreme Court Civil Rules 2006; and

2. if costs are not agreed by the parties, the Tribunal may, on the application of a party, determine the amount of costs payable.

(b) In determining the costs to be awarded to a party, the Tribunal may take into account that the party did not accept an offer as favourable as, or more favourable than, the Tribunal's order or decision in the proceedings.

(c) A registrar of the Tribunal is expressly authorised to constitute the Tribunal for the purposes of this Rule.

1. Having regard to the provisions of s 57(2) of the SACAT Act and Rule 101(a) SACAT Rules, a determination has been made that costs be awarded at 75% of the scale of costs applicable for the purposes of the Supreme Court Civil Rules 2006.
2. The Tribunal is not persuaded by the respondent's argument concerning a 50% rate or discounting the rate to reflect the number of allegations proven out of the total number alleged. In that regard, we adopt the arguments set out in the Board's final outline of argument.

1. Pursuant to s 60 of the SACAT Act_,_ the Tribunal directs that the orders suppressing the identity of the female patient witnesses in these proceedings or anything which would tend to identify those witnesses remain in place on an ongoing basis, subject to future applications to vary or revoke them.

[1] Medical Board of Australia v Athinodorou [2019] SAHPT 22 [6]-[110].

[2] Medical Board of Australia v Athinodorou [2019] SAHPT 22, Response to Complaint, 16-24.

[3] Medical Board of Australia v Athinodorou [2019] SAHPT 22.

[4] Section 112(6) of the Statutes Amendment (SACAT) Act 2019.

[5] Respondent's Outline of Argument 31 January 2020.

[6] Statutes Amendment (SACAT) Act 2019 (SA) s 112.

[7] Complainant's Outline of Argument 7 February 2020.

[8] Medical Board of Australia v Athinodorou [2019] SAHPT 22 [910].

[9] Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1)(b)(i)-(iv).

[10] Respondent's Second Outline of Argument 7 February 2020 [4]-[8] [11]-[14] [17] [18].

[11] Medical Board of Australia v Athinodorou [2019] SAHPT 22 [87].

[14] Complainant's Summary of Findings, page 10.

[15] Medical Board of Australia v Athinodorou [2019] SAHPT 22 particular 98.

[17] Complainant's Summary of Findings and Medical Board of Australia v Athinodorou [2019] SAHPT 22 [814]-[815].

[18] Medical Board of Australia v Athinodorou [2019] SAHPT 22 [154]-[155].

[23] Health Practitioner Regulation National Law (South Australia) Act 2010, s 196(2)-(4).

[24] Medical Board of South Australia v A [2003] SADC 4 [49].

[27] Complainant's Outline of Argument 7 February 2020 and Respondent's Outline of Argument 14 February 2020 [27] where the respondent suggests a maximum term of 5 years.

[28] Statutes Amendment (SACAT) Act 2019 (SA) s 112(4).

[29] South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57(1)-(2).

[30] South Australian Civil and Administrative Tribunal Rules 2014 (SA), r 101.