The practitioner has now returned to practice, under the supervision of the Board, and imposing a period of suspension from practice at this late stage would be counter-productive. The proper purposes of disciplinary action can be met by the sanctions imposed, namely reprimand, a fine and imposition of conditions.

The practitioner will also be required to pay the complainant's cost.

Administrative and disciplinary - Health practitioner - Professional misconduct - Illicit drug use - Deceiving the medical Board about illicit drug use - Illegal prescription of drugs for clinic while not registered - Inappropriate self-prescription and for family members - Board delayed in bringing proceedings - Whether delay is relevant to the ascertainment of the appropriate disciplinary action - Tribunal held that what happens during a delay may be highly relevant - Suspension not appropriate in the circumstances of this case.

Health Practitioner Regulation National Law (the National Law) s 196

Health Practitioner Regulation National Law (South Australia) Act 2010 s 4

HCCC v Geary [2018] NSWCATOD 15

MBA v Hadges [2018] SAHPT 6

HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

1. Dr Dimitrios Konidaris is registered as a health practitioner under the provisions of the Health Practitioner Regulation National Law (the National Law)[1].
2. Dr Konidaris ("the practitioner") admitted that he was guilty of professional misconduct in respect of certain conduct occurring between 2007 and 2017. The task of this Tribunal was to impose appropriate disciplinary sanctions pursuant to s 196 of the National Law.
3. The Tribunal received a document entitled "Respondent's Admissions and Statement of Agreed Facts". We made findings in accordance with the contents of that document. We were also informed by an "Agreed Book of Documents" tendered by consent.
4. We paid careful attention to the evidence and to the detail of the conduct alleged and admitted. We were assisted by submissions from both parties.
5. Following the hearing the Tribunal conferred and subsequently announced its decision. The Tribunal made a finding of professional misconduct. The following sanctions were imposed:
   • (a) A reprimand was imposed in relation to each item of admitted misconduct.
   • (b) Conditions were imposed on the practitioner's registration, requiring him to undertake further education as to his professional responsibilities.
   • (c) The Tribunal also imposed a fine of $5,000.00.
6. The Tribunal ordered that the practitioner pay the Board's costs of the proceeding.
7. The Tribunal declined to suspend the registration of the practitioner as had been urged by the Board. Our reasons for this are explained below.
8. For the purpose of explaining the decision reached by the Tribunal, it is not necessary to set out the facts and evidence in laborious detail. It will be sufficient to summarise the facts by way of broad overview and to point to considerations that influenced our decision.

1. The practitioner is currently 41 years of age. He first obtained registration as a medical practitioner in 2003. He obtained specialist registration as an anaesthetist in 2010.
2. We were advised that he separated from his then partner in 2014 and became depressed. He mixed with persons who used illicit drugs and started to do so himself. He did not recognise the extent of his depression. He was clearly involved in ongoing illicit drug use.
3. At the time the practitioner was mainly working as an anaesthetist contracted to a dental practice, but also did contract work for a hospital. There has been no criticism of the standard of his work.
4. On 22 May 2015 the practitioner was observed to be driving erratically and was found by police in the toilets at Bunnings. He was drowsy, confused, dishevelled and covered in vomit. He was taken by police to the Royal Adelaide Hospital (RAH), where he was examined but denied alcohol or drug use, other than a small amount of marijuana the previous night.
5. The doctors at the RAH suspected drug use and made a mandatory notification to the Board.
6. The Board gave notice that it was considering immediate action under s 156 of the National Law to suspend the practitioner's registration. The practitioner arranged to make personal submissions to the Board and did so on 3 June 2015. He advised the Board that his presentation on 22 May 2015 had not been due to alcohol or drugs, but rather was to be explained by motion sickness. This advice was untruthful.
7. Nonetheless the Board decided to take immediate action and suspended the practitioner's general and specialist registration as from 3 June 2015. The Board also arranged a health assessment by Dr Michael Baigent, to occur on 3 July 2015.
8. The practitioner was untruthful in the account that he gave to Dr Baigent. He denied illicit drug use (other than minor experimentation when a youth). He attributed the Bunnings incident to drinking alcohol the previous night and possible motion sickness. As a result of the false information provided, Dr Baigent reported on 6 July 2015 that he could not be satisfied that there was a substance abuse disorder.
9. The practitioner provided a hair sample on 3 July 2015 which was subsequently analysed with a report being provided on 23 July 2015. The analysis was indicative of illicit drug use.
10. Dr Baigent provided a further report dated 3 August 2015 after receipt of the analysis report. He considered it likely that the practitioner had failed to disclose drug use and that he had a drug problem, if not a disorder.
11. The practitioner was also untruthful in information provided to his general practitioner, Dr Lartey. After receipt of the above analysis, the practitioner stated to Dr Lartey in July and August 2015 that he had not taken the drugs indicated in the analysis and suggested other explanations for the analysis. Eventually, on 26 August 2015 the practitioner admitted to Dr Lartey his substance abuse, but it seems that the Board may not have been informed of this.
12. Following further negotiations and submissions between the practitioner and the Board, the suspensions of the practitioner's registration were revoked on 25 September 2015 but replaced by various undertakings, which required strict drug testing.
13. However, the practitioner decided to surrender his general and specialist registration which occurred on 27 October 2015. This may have been influenced by the strict testing regime, but the practitioner also points out that his contract work at the dental practice was not reinstated as he had hoped.
14. On 11 December 2015 the practitioner advised Dr Lartey that he had ceased taking illicit drugs. This was untrue.
15. On 22 April 2016 the practitioner applied for specialist registration as an anaesthetist.
16. On 26 September 2016 the practitioner advised Dr Lartey that he had not taken any drugs. This was untrue.
17. A hair sample was taken from the practitioner on 14 October 2016. The analysis of the sample indicated use of methamphetamine (speed or ice).
18. On 3 November 2016 a further assessment was conducted by Dr Baigent. The practitioner claimed to Dr Baigent that he had been completely abstinent since Christmas 2015. He claimed that the hair sample from 14 October must have been wrongly analysed. A further hair sample was taken on 4 November 2016 at the practitioner's request. It indicated the presence of amphetamine.
19. Dr Baigent reported on 30 December 2016 that the two 2016 analyses, taken together, establish that claims of abstinence were false. They may have demonstrated abstinence since September 2016, but were inconsistent with abstinence immediately before that time. This was all accepted in the agreed facts.
20. Finally, the practitioner was interviewed by AHPRA on 2 June 2017. He claimed, untruthfully, that he had been abstinent since Christmas 2015.
21. Meanwhile, other issues had arisen and were being considered by the Board.
22. In October 2015 a further notification was received by the Board concerning the dental practice where the practitioner had worked. It transpired that on 24 June 2015 and again on 17 September 2015 the practitioner had, at the request of an employee at that practice, ordered prescription drugs to be delivered to the practice. It is agreed that the drugs were for the use of the practice and not in any way for the practitioner's private purposes. However, the practitioner was unregistered at the time and had no legal right to order the drugs. It was a serious criminal offence for him to do so.
23. Furthermore, enquiries were instituted into the practitioner's prescribing habits. These enquiries demonstrated, and it is admitted, that between 2007 and 2015, the practitioner had on many occasions self-prescribed and prescribed for family members in a way that was unprofessional and inappropriate. The practitioner did not at the relevant time have a treating relationship with such family members. Proper examinations were not conducted, and adequate notes were not made. No liaison occurred with the treating practitioners of the family members. The conduct in question was in breach of ethical guidelines and professional expectations. It is not necessary to set out the details.

1. Not surprisingly, the Board had serious reservations about the practitioner's application for specialist registration. The reservations related both to issues of impairment and conduct. The application was not determined until 21 March 2018. By that time evidence had been received suggestive of continuing abstinence over a significant period. The practitioner also demonstrated insight into his previous issues, contrition, and positive steps to turn his life around.
2. On 21 March 2018 the Board decided to approve the application subject to acceptance of various conditions by the practitioner. They were accepted and registration was granted from 5 April 2018. The conditions required the practitioner to develop a re-entry to practice plan with appropriate mentoring and supervision. He was able to do this by December 2018 and commenced the re-entry programme in February 2019. This involved the practitioner working on an unpaid basis at a major hospital under direct supervision.
3. On 27 August 2019 the Board accepted that the re-entry to practice programme had been successfully completed. The Board's letter to the practitioner, dated 30 August 2019[2], is significant. The Board modified the practitioner's conditions of practice to reduce the drug screening requirements and the level of supervision required.
4. The Board acted on compelling reports from the practitioner's supervisors. Similar evidence was before the Tribunal and we will refer to it in due course.
5. The practitioner has a contract for unpaid employment at the hospital until March 2020. He indicated that he would remain in that arrangement unless paid work consistent with his conditions of registration became available.

1. The totality of the admitted conduct amounts to professional misconduct. The individual elements of this are as follows:
   • (a) The practitioner repeatedly lied about his drug use to the Board, Dr Baigent, Dr Lartey, and AHPRA. He lied over a period from June 2015 to July 2017 in an attempt to deceive the Board. This, by itself, amounts to serious professional misconduct. It is conduct that has the potential to put the public at serious risk.

Counsel has referred to the fact that a practitioner has an obligation to be frank and honest with the Board. The level of untruthfulness that occurred in this case would normally be met with a significant period of suspension in order to bring home to all concerned that such conduct will not be tolerated.

(b) The practitioner has committed breaches of the criminal law by ordering prescription drugs for the dental practice when not registered and thus not legally entitled to do so. At one level, such conduct can be described as foolish, and all the more so as the practitioner was already under investigation. However, it is a serious matter for a trained anaesthetist to ignore legal requirements concerning prescription drugs. This aspect of the matter is admitted to amount to unprofessional conduct.

(c) The practitioner has self-prescribed over an extensive period. He appears to have not had a relationship with a general practitioner during much or all of that period. The nature and extent of the self-prescribing amounted to a serious breach of professional expectations and relevant codes of conduct. The self-prescribing is admitted to be unprofessional conduct.

(d) The practitioner also prescribed for members of his family over a similar period. He was practising as a specialist and not a general practitioner. He had no treating relationship with the family members. He conducted no sufficient examinations and made no adequate notes. He did not liaise with treating practitioners. This conduct amounted to a clear breach of professional expectations and relevant codes of conduct. It was admitted to be unprofessional conduct.

1. Counsel drew the Tribunal's attention to case law[3] in which it has been made clear that such self-prescription and inappropriate prescription for family members is unprofessional and will not be tolerated. Practitioners who ignore these warnings and the clear statements in relevant codes of conduct do so at their peril[4].

1. The Tribunal considered it appropriate to impose disciplinary sanctions with respect to the overall conduct.
2. The practitioner has returned to practice and has completed his re-entry programme to the satisfaction of the Board. It was not suggested that there is an ongoing unfitness to practice. However, the Board suggested that a significant period of suspension was necessary to bring home the seriousness of the conduct, maintain standards in the profession, reassure the public, and deter the practitioner and others from similar conduct in the future.
3. The practitioner's conduct in being dishonest in an effort to deceive the Board, failing to comply with legislative requirements concerning prescription drugs, and ignoring professional requirements concerning self-prescription and prescription to family members, is very serious. Such conduct cannot be tolerated. It would normally require the imposition of a significant suspension from practice to achieve the objectives outlined by the Board.
4. All of the admitted professional misconduct (with one minor exception) was known to the Board and under investigation by February 2017[5]. The allegations were not referred to the former SA Health Practitioners Tribunal until 27 September 2018 and came on for hearing before this Tribunal on 30 September 2019[6].
5. In the meantime the Board had re-registered the practitioner (on 5 April 2018), approved his re-entry plan (to commence February 2019), and expressed its satisfaction that the re-entry had been accomplished successfully (in August 2019). The Board then reduced the strictness of the conditions attaching to the practitioner's registration.
6. If this matter had come before the Tribunal in 2018 it is likely that a significant period of suspension may have been imposed. However, since that time circumstances have changed in a significant way. To impose such a suspension now would be counter-productive. It would simply interfere with the progress already made (under the Board's supervision) in returning the practitioner to productive practice.
7. We received a report prepared in October 2018 by the practitioner's treating psychologist, Dr Dunbar,[7] in which he states:

Dr Konidaris exercises every day, is in a stable and committed relationship, has strong family ties, regularly engages in family and community work, continually undertakes professional development activities, and shows a great motivation to return to the workforce.

It is my clinical opinion that Dr Konidaris has excellent insight into his previous methamphetamine use, understands past triggers and reasons for using, and has already taken the necessary steps to prevent relapse and maintain his continued abstinence. Dr Konidaris displays a level of maturity that will hold him in good stead for the future. Dr Konidaris and I have formulated a treatment plan that will continue to support his efforts.

I have no hesitation in recommending Dr Konidaris returning to work.

1. In a further report dated 17 September 2019,[8] Dr Dunbar expresses very similar views following the practitioner's return to work. He adds that "it is my clinical opinion that he is fully capable of maintaining his continued abstinence from methamphetamine without third party check-ins."
2. We also received evidence from the practitioner's supervisors at the hospital during his re-entry programme.[9] They speak highly of the practitioner's character, professionalism and standard of work. The evidence suggests that the practitioner has good skills and expertise as an anaesthetist and has a valuable contribution to make as part of the medical profession. The view is expressed that the practitioner is remorseful, has accepted his past mistakes, and has a determination never to fall into the same position again. He is committed to a successful return to practice and had kept up his continuing education during his long absence from practice.[10]
3. We accept the submission of counsel for the complainant that delay in the bringing of proceedings (or mere passage of time) has of itself no relevance to the ascertainment of the appropriate disciplinary action (HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at page 637). However, Litchfield's case demonstrates that what happens during such delay or passage of time may be highly relevant. In Litchfield, where the issue was fitness for practice, the Court indicated that reformation of character might be demonstrated to have occurred during that period of delay. Furthermore, in a case such as the present (where fitness to practice is not an issue) events or developments during the period may have relevance in other ways. Here the practitioner has successfully re-entered practice, creating a situation where it would be counter-productive to interrupt that. This is a powerful consideration to which the Tribunal must have regard in determining what is now necessary by way of disciplinary action.
4. In the present case the practitioner was effectively absent from practice from June 2015 until February 2019. His misconduct no doubt complicated and probably delayed his return to practice. He has now returned to practice, but in an unpaid role and still with significant conditions of registration. In a letter to the Tribunal,[11] he stated:

I can assure the Medical Board and the Tribunal that the loss of my registration and the subsequent processes to regain my registration, with substantial conditions, has had a significant effect on me. It has strongly reinforced to me the need to uphold the proper standards of the profession at all times. I am committed to doing so."

1. Whilst the absence from practice was not by way of a disciplinary sanction, the Tribunal has no doubt that the events have been such as to bring home to the practitioner the seriousness of his conduct and the importance of upholding professional standards. He well understands the need for future compliance. Rather than impose a period of suspension from practice (which, as we have said, would be counter-productive), the proper purposes of disciplinary action can be met by the lesser (but still significant) sanctions that we have imposed. These sanctions will have the effect of demonstrating that the misconduct will not be tolerated and that standards will be upheld. The consequences that have befallen Dr Konidaris should be a sufficient warning and deterrence to any other practitioner who might otherwise engage in such misconduct. The public can be assured that appropriate action has been taken and appropriate safeguards are in place. The conditions imposed by the Tribunal (requiring engagement in a substantial education programme) will provide further assurance that the practitioner is fully aware of his professional responsibilities.
2. The practitioner will also be required to pay the complainant's costs.

[1] The Health Practitioner Regulation National Law (South Australia) is incorporated as part of the law of this jurisdiction by s 4 of the Health Practitioner Regulation National Law (South Australia) Act 2010. The National Law is found in Schedule 2 to the Act.

[3] Health Care Complaints Commission v Geary [2018] NSWCATOD 15 at [155]; MBA v Hadges [2018] SAHPT 6 at [54].

[4] Exhibit C10, Exhibit C1 from page 437-483

[5] Letter from AHPRA to practitioner dated 23 February 2017, exhibit C1 page 91.

[6] Following transfer of the jurisdiction to this Tribunal in August 2019

[9] Exhibits C1 at pages 405, 407 and 408; R5, and R8.