1. The respondent is reprimanded.
2. The respondent's registration is cancelled.
3. The respondent is disqualified from applying for registration as a health practitioner for a period of two years and six months from 14 November 2019.
4. The respondent is to pay the Board's costs of and incidental to the proceedings as agreed with the Board or, failing agreement, as determined by the Tribunal.
5. The publication of the name of or any material that would tend to identify the notifier and any other third party or non-party to the proceedings is prohibited.

Administrative and disciplinary - Health practitioner - Complaint by Nursing and Midwifery Board of Australia- Illicit drug use - Sale and distribution of illicit drugs - Respondent admitted professional misconduct - Failure to notify Board of convictions and charges - Orders imposing sanctions

Administrative and disciplinary - Health practitioner Significant departure from approved standards of conduct - Orders imposed upon respondent - Reprimand - Registration cancelled - Disqualified for applying for registration for 2 years and 6 months - Pay Board's costs of and incidental to proceedings

Administrative and disciplinary - Health practitioner - Failure to notify Board of convictions and charges treated as an aggravating factor

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 138, 196, 207

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Mr A Forbes (instructed by Lander & Rogers) for the Applicant

The publication of the name of or any material that would tend to identify the notifier and any other third party or non-party to the proceedings is prohibited.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010

1. The Nursing and Midwifery Board of Australia ("the Board") referred a complaint to the former South Australian Health Practitioners Tribunal dated 4 February 2019 in relation to a registered nurse, Konstantin Bezmylov. The proceedings transferred to the South Australian Civil and Administrative Tribunal on 8 August 2019 under the transitional provisions of the Statutes Amendment (SACAT) Act 2019.
2. The complaint alleges that Mr Bezmylov, whilst a registered nurse, engaged in various criminal acts in relation to which he was subsequently convicted. Further, it alleges that those criminal acts, committed outside of the work environment, were associated with his addiction to illicit drugs and that Mr Bezmylov on occasions between late 2014 and 2015 performed his duties as a nurse at the Modbury Hospital in Adelaide under the influence of illicit drugs.
3. The complaint further alleges that upon being arrested and charged, Mr Bezmylov failed to notify the Board of the charges or his subsequent convictions.
4. The Board submits that Mr Bezmylov has committed professional misconduct and is not fit and proper.
5. The Board suspended Mr Bezmylov's registration on 12 June 2015 and that suspension has not since been lifted.

1. The Tribunal was constituted by a presiding member, an assessor from the profession of nursing and midwifery and an assessor from the panel of persons appointed to represent the interests of consumers of health services.
2. The Board was represented in the proceedings by counsel.
3. Mr Bezmylov was at all times unrepresented in the proceedings. He did not attend at the primary hearing in person. The evening before the hearing he informed Mr Forbes, acting for the Board, that he was injured and would not attend but would be available by phone. On the morning of the hearing, the Tribunal received a medical certificate stating that Mr Bezmylov was unfit for any activity involving movement from 12 to 16 November 2019 inclusive. Mr Bezmylov was contacted by the Tribunal and participated by telephone in the hearing.

1. The parties agreed certain facts. Those facts are supported by the documents provided by the Board to the Tribunal and the panel is satisfied that the Statement of Agreed Facts filed by the Board and signed by both parties contains factual propositions that the Tribunal finds to be a proper basis upon which to proceed.
2. A summary of those facts is as follows.
3. Mr Bezmylov was employed as a registered nurse at Modbury Hospital in 2012. For much of the period of employment until he was arrested in June 2015, he used illicit drugs including cannabis, ecstasy, methamphetamines and steroids. On several occasions he performed his duties as a nurse affected by these drugs.
4. Mr Bezmylov became involved in the sale and distribution of illicit drugs.
5. Mr Bezmylov's use of these drugs had secondary effects on his work. He became indebted to others and, from time to time, neglected his duties in order to respond to his involvement in paying back debts or selling drugs.
6. On more than one occasion his behaviour at work was such as to prompt colleagues to formally register their observations and concerns about his demeanour and actions.
7. In 2015 he was charged with a large number of offences including eight counts of trafficking in a controlled drug, six counts of possessing controlled drugs and four offences relating to firearms and offensive weapons. He pleaded guilty to these offences in the District Court and in November 2016 was sentenced to imprisonment for five years and three months with a non-parole period of 3 years.
8. Mr Bezmylov did not inform his employer or the Board about either the charges or the conviction as required by the Health Practitioner Regulation National Law (South Australia) Act 2010 ("the National Law").
9. At the time of this decision, Mr Bezmylov is in the community on parole, and that parole is due to expire in August 2021.

1. The parties agreed that Mr Bezmylov's conduct amounted to professional misconduct.
2. "Professional misconduct" for the purpose of the National Law is defined to include:

1. Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 2. More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

1. Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.[1]
2. The Tribunal has no hesitation in determining that the conduct for which Mr Bezmylov was found guilty, and the conduct at the workplace, constitutes professional misconduct. There was misconduct outside of the workplace represented by the criminal offending. There was misconduct in the workplace represented by the performance of nursing duties whilst under the influence of illicit drugs and neglect of duty. There was misconduct in the failure to notify the Board of the charges and convictions.

1. The Tribunal took into account the submissions of the parties and the content of the Court Book and the following documents submitted to it at the hearing:

1. Letter from Kelly Partridge, Matrix Program Facilitator, PsychMed dated 11 November 2019; 2. Medical certificate by Dr Derek Lo dated 12 November 2019;

1. A psychological report of Dr Lim dated 30 August 2016.
2. The Tribunal is required to consider whether, having made the finding of unprofessional conduct, it will make orders reprimanding, cautioning or fining Mr Bezmylov, suspending or cancelling his registration, disqualifying him from re-registration, imposing conditions upon his registration or any combination of those orders in response to the misconduct.[2]
3. Mr Bezmylov's registration was suspended by the Board but by virtue of the provisions of the National Law, the Tribunal may impose its orders as if he is currently registered.[3]

1. The Board submitted that the Tribunal should take into account the fact that Mr Bezmylov remains on parole.
2. Counsel for the Board directed the Tribunal to various authorities relevant to the making of orders on a finding of professional misconduct, to which the Tribunal has had regard and some of which are referred to in this decision.
3. The Board submitted that the Tribunal should make orders to achieve the protection of the public and the maintenance of professional standards for nurses in the eyes of the public. In Mr Bezmylov's case, the Board submitted that a significant period of disqualification is required to ensure that the standards of the profession are maintained including through general deterrence.
4. The Board drew the Tribunal's attention to Dr Edmunds' opinion, expressed in 2015, that Mr Bezmylov was at that time unfit to practice nursing by virtue of the impairment caused to him through drug dependence on his reliability, concentration, mood and behaviour.[4] Quite properly, given that Mr Bezmylov was unrepresented and in light of the Board's duty to assist the Tribunal in the discharge of the Tribunal's functions under the National Law, the Board observed that Mr Bezmylov has no prior disciplinary history and has cooperated with the Board since the Board commenced its investigation and has been the subject of favourable assessments from correctional authorities whilst on parole.

1. Mr Bezmylov asked the Tribunal to consider his written submission which, though undated, was said by the Board to have been received by it on about 8 November 2019. In that document, Mr Bezmylov states that he takes "full responsibility for, and deeply regret poor decisions I have made which led to my addiction to methamphetamine, and subsequently to me becoming involved in its trafficking." Mr Bezmylov goes on to say, "Prior to my offences, I was respected among my working community, and was proud to hold my position as a registered nurse. I hope in time to regain this respect. Going forward I intend to continue my rehabilitation by attending counselling and group programs, I am focused on returning to work and reconnecting with my passion for health and caring for others."
2. Mr Bezmylov's participation in the hearing was consistent with this submission. He advised the Tribunal that he was hoping to be accepted into tertiary study next year, either at a local university or online at an interstate university. He wishes to be able to look for work upon graduating and would like to do so with no suspension operating upon him.

1. The Tribunal's task is to consider what, if any, orders are appropriate to be made in respect of Mr Bezmylov's registration in light of the professional misconduct. In so doing, the Tribunal is required to make orders for the purpose of protecting the public, maintaining proper professional standards and assuring the public that proper standards are being maintained in respect of the profession. The purpose is not to punish the health practitioner: Craig v Medical Board of South Australia.[5]

1. The Tribunal is satisfied that the public requires protection from the conduct in which Mr Bezmylov engaged. The conduct involved being under the influence of illicit drugs at work. It also entailed working whilst being subject to an addiction that resulted in Mr Bezmylov's decision-making being inconsistent with his duties as a nurse.
2. The extent of the departure of his conduct from approved standards must be assessed: Health Care Complaints Commission v Litchfield.[6] In this regard, the Tribunal considers that the deviation from approved standards was significant. It is particularly concerning that Mr Bezmylov allowed himself to attend the workplace whilst affected by illicit drugs. Colleagues observed his behaviour and reported it. In addition to having the care of others within his responsibility, it is relevant that the conduct of abusing illicit drugs is particularly incompatible with the role of a nurse or other health practitioner.
3. Mr Bezmylov's failure to report his offending to his employer or to the Board is treated, in this case, as a matter aggravating the offending. However, the Tribunal also takes into account the fact that Mr Bezmylov cooperated with authorities once he was arrested, and to the Tribunal has not resisted a finding of unprofessional conduct.
4. The Tribunal considers that the evidence suggests that Mr Bezmylov is on the way to recovering from drug addiction. That recovery needs to be progressed before he could be considered to be fit and proper to perform the duties of a nurse. It is appropriate that he be disqualified from re-registration for a period at least as long as the remainder of his parole.

1. The respondent is reprimanded.
2. The respondent's registration is cancelled.
3. The respondent is disqualified from applying for registration as a health practitioner for a period of two years and six months from 14 November 2019.
4. The respondent is to pay the Board's costs of and incidental to the proceedings as agreed with the Board or, failing agreement, as determined by the Tribunal.
5. The publication of the name of or any material that would tend to identify the notifier and any other third party or non-party to the proceedings is prohibited.

[3] National Law, Schedule 2, ss 138 and 207.

[5] [2001] SASC 169; (2001) 79 SASR 545 at 553.

[6] [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.