The parties submitted a joint statement of agreed facts and a joint proposal as to the appropriate sanctions to be imposed. However, the parties differed as to the characterisation of the respondent's conduct under cl 5 of sch 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law).

The Board submitted that the respondent's conduct should be characterised as professional misconduct under sub-clauses (a) and (c) of s 5. The Board argued that this finding would serve the public interest by indicating the degree to which certain conduct departs from proper professional standards and is inconsistent with being a fit and proper person to hold registration. The respondent submitted that this characterisation would not add to the clear condemnation of the respondent's conduct by making a finding under sub-clause (b), and that sub-clause (c) was not relevant as the respondent's registration had been cancelled.

Held, finding professional misconduct and imposing sanctions:

• Taking all the circumstances of this case into account, we are comfortably satisfied that the appropriate characterisation of the conduct is as professional misconduct within the meaning of paragraph (b) of cl 5 of the National Law;
• The Tribunal is satisfied that the respondent has behaved in a way that constitutes professional misconduct within the meaning s 196(1) of the National Law;
• The respondent is reprimanded;
• The suspension of the respondent's registration imposed on 3 May 2021 is revoked as of the date of this Order;
• The conditions in the agreed Schedule of Conditions filed by the parties are imposed on the respondent's registration.

Health practitioners - Complaint by the Optometry Board of Australia - Professional misconduct - Breach of professional boundaries - Inappropriate use of social media - Reprimand - Conditions imposed on registration

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 156, 193, 196

South Australian Civil and Administrative Tribunal Act 2013 s 60

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

Medical Board of Australia v Singh, [2017] WASAT 33(s)

Mr S Hurburgh with Mr D Oliver appeared in for the complainant

Mr B Doyle KC with Mr N Crouch appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been further de-identified in accordance with the Tribunal's anonymisation policy. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1)

1. This is the determination of a complaint referred to the Tribunal on 7 June 2022 by the Optometry Board of Australia (the Board) concerning the conduct of a practitioner, Jason Didone.
2. The complaint was made pursuant to s 193(1) of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law).
3. The complaint made two allegations against Mr Didone, and alleged that Mr Didone had behaved in a way constituting professional misconduct within the meaning of the National Law.
4. The terms of the referral to the Tribunal were subsequently modified by the Agreed Statement of Facts and Issues filed with the Tribunal on 1 March 2024, and the parties agreed that these Agreed Facts were to be taken as effectively formulating the complaint to the Tribunal.
5. The first allegation was that Mr Didone had engaged in professional misconduct in transgressing professional boundaries by engaging in inappropriate physical contact with eight female colleagues, between about 1 June 2018 and around January 2021. In particular it was alleged that Mr Didone, while he was working as an optometrist in a retail practice (the Store), had knowingly engaged in various forms of inappropriate physical conduct with eight female fellow workers in the Store, including touching them, hugging them, and pressing up against them. It was alleged this conduct was contrary to the Code of Conduct for Optometrists (the Code), which was effective from 1 July 2010 - 29 July 2022.
6. A second allegation was also made concerning a single occasion of inappropriate and disrespectful use of social media by Mr Didone in relation to a professional colleague.
7. It is alleged that Mr Didone's conduct taken as a whole, constituted professional misconduct within the meaning of paragraphs (a) and/or (b), and/or (c) of the definition of professional misconduct in cl 5 of the National Law.
8. The Board took immediate action against Mr Didone pursuant to s 156 of the National Law on 3 May 2021 and suspended Mr Didone's registration from that date. His registration remained suspended at the time of the hearing.
9. The parties filed an Agreed Statement of Facts and Issues with the Tribunal on 1 March 2024, as well as Proposed Minutes of Consent Orders to the Tribunal, and an original Book of Documents and a Supplementary Book of Documents, both of which were admitted into evidence at the hearing.
10. On 28 July 2024 the Tribunal made orders pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) prohibiting the publication of the names, addresses, or any material tending to identify Mr Didone's colleagues at the Store, and limiting any inspection of the Tribunal file to the parties. That order remains in place.
11. The Tribunal has before it the complaint and response; the Agreed Statement of Facts and Issues; the Book of Documents and Supplementary Book of Documents; witness statements from 5 witnesses, and transcripts of interviews from two further witnesses, and the respondent; a psychological report from Dr Lim; and four character references in support of the respondent. We take all these into account. Other documents were provided in the course of the hearing of this matter, including a psychological report from Dr Pam Carroll and an additional supplementary report from Dr Lim.
12. In addition we have before us outlines of argument from the Board and the respondent, and a Joint Outline of Submissions. This Joint Submission reflected agreement between the parties concerning the facts, and in respect of the disciplinary sanctions the parties considered appropriate.

1. Section 196 of the National Law governs the Tribunal's determination in this matter. There are two matters to be determined: the characterisation of Mr Didone's conduct; and the appropriate disciplinary sanction to be imposed.
2. Section 196(1)(b) of the National Law empowers the Tribunal to decide one or more of the following as the appropriate characterisation of the practitioner's conduct:

(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;

...

1. Professional misconduct is defined in clause 5 of Schedule 2 of the National Law as follows:

professional misconduct, of a registered health practitioner, includes -

(a) 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

(b) 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

(c) 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. Section 196(2) of the National Law provides that where the Tribunal has made a decision pursuant to s 196(1) of the National Law concerning the characterisation of the conduct the subject of a complaint, it may make a decision concerning any disciplinary sanction to apply in respect of the practitioner. The possible sanctions specified are a caution or reprimand; the imposition of a condition upon the practitioner's registration; a fine; a suspension of registration for a specified period; or a cancellation of the practitioner's registration, including a review period for the cancellation. If the Tribunal decides to cancel the practitioner's registration, it may also prohibit the person from providing any health service or using any specified title (s 196(4)).

1. The Board provided a Book of Documents and a Supplementary Book of Documents containing the evidence it relied on in support of the Agreed Statement of Facts and Issues. This included witness statements and records of interview with seven women who had worked with Mr Didone at the Store, and a record of interview with Mr Didone on 20 January 2021, and the transcript of a later interview with him on 21 October 2021.
2. In addition, the Book of Documents contained a forensic psychological report from Dr Loraine Lim dated 15 June 2023.
3. In her report, Dr Lim states that she met with Mr Didone on two occasions to conduct a comprehensive clinical interview. She concluded that Mr Didone's inappropriate conduct toward female colleagues "could be explained by his Italian upbringing", including the normalisation of public displays of affection. She refers to "his apparently persistent lack of insight into his inappropriate conduct" during the course of his employment (where he had been told his conduct was inappropriate and unwelcome, but still persisted with and repeated it) "was also likely to be a result of his traditional upbringing and his limited exposure to interactions with females during his formative and early adulthood". She concludes:

It was likely difficult for Mr Didone to develop a precise understanding of the appropriate standards of behaviour and boundaries within a work environment that comprised of predominantly female employees, especially if he felt that a certain level of rapport and friendship had been established between them. He appeared, against that background, to have largely transplanted his mannerisms and his habituated ways of interacting with his friends and family into the workplace context and towards his female colleagues as such.

4. Dr Lim states that "it is often extremely difficult for most people to organically modify their communication and interactional style", and it would have been very difficult for Mr Didone to change his conduct, especially where he had not been provided with any formal professional coaching or mentoring in respect of professional boundaries in the workplace.
5. Dr Lim accepted there was no "nefarious or sexually predatory motive" in Mr Didone's conduct.
6. Dr Lim concludes in her 15 June 2023 report that Mr Didone "has only managed to achieve partial awareness into the reasons underpinning the allegations of professional misconduct". She comments that "this is somewhat concerning", as without full insight he is unlikely to effectively comply with the required professional boundaries in optometry practise. She considered he would benefit from a course of professional coaching or counselling to support him to develop better insight. She recommended that Mr Didone attend with another psychologist to engage in such professional intervention and in particular to provide him with a gender perspective on his behaviour.
7. Mr Didone also provided the Tribunal with a report from Dr Pam Carroll, who provided a Psychological Treatment Report dated 28 April 2024. Dr Carroll had access to the report of Dr Lim, and she reports that Mr Didone had attended six treatment sessions with her since September 2023.
8. Dr Carroll reports that after he was suspended from his optometry work Mr Didone had commenced work at a "Salvos Store", and she refers to supportive references from workplace colleagues in his present work. She reports that she suggested to Mr Didone that he would benefit from a formal education program and he took up this suggestion at a personal cost of $4500. An Education Program Report was provided in respect of the program of education Mr Didone undertook.
9. This Report was undertaken by Mr Didone in February and March 2024 and addressed, in particular, professional practice, professional boundaries, and sexual harassment. The Report states that Mr Didone participated well throughout and completed the program, and "demonstrated he had reflected on the circumstances which gave rise to the complaint".
10. Dr Carroll considered that Mr Didone had engaged well in treatment and demonstrated increased insight into his behaviour, and she concludes that Mr Didone "is safe to return to optometry practice". She considered that if he did return to his practice, he would benefit from ongoing treatment "for several years".
11. Dr Lim also provided an Addendum Psychological Report, dated 14 May 2024, having re-assessed Mr Didone and considered Dr Carroll's report.
12. At that re-assessment, Dr Lim discussed with Mr Didone his participation in the education program and his sessions with Dr Carroll. She concludes that in her opinion Mr Didone had "demonstrated a significant improvement into his level of insight" into his behaviour, and had developed the ability to appropriately recognise and describe the inappropriateness of his conduct in a workplace setting, as well as the boundaries and behaviour he would need to implement in the future to maintain appropriate boundaries. She also commented that his communication skills, and his emotional awareness and literacy, had significantly improved.
13. Dr Lim concludes that while "it is important to note that the concept of absolute zero risk does not exist", nevertheless, on her assessment, Mr Didone's "risk factors of poor insight, and ... his poorly developed coping and problem-solving strategies in respect of conflicts in the workplace as well as his poor understanding of professional boundaries" had been effectively mitigated by his engagement in psychological therapy and the professional education program.
14. Dr Lim's view was that Mr Didone was "ready and would be fit" to resume employment as an optometrist, but should be encouraged to engage in professional development workshops and courses to maintain his knowledge and appreciation for ethics and professional boundaries. She agreed with Dr Carroll's recommendation that Mr Didone participate in long term psychological therapy.
15. Mr Didone also provided four personal references from current work colleagues. He is described by one current female colleague as "a caring person with integrity", who "treats his colleagues ... with respect, compassion and understanding". He is described as having "a strong work ethic", and the colleague comments that "I have never heard, or heard of, him talking or behaving inappropriately to either males or females of any age, in any situation". Another colleague describes the conduct the subject of the allegations as out of character for Mr Didone as she has come to know him at work, and comments that he is highly respected in their workplace. Another female colleague comments that Mr Didone "has always been professional and worked well within a team in which we have many diverse people", and that she has never seen "any act from him towards any person that reflects his past misconduct". All the referees state Mr Didone made them aware of the circumstances of these proceedings.

1. The Board submitted that the parties had reached a joint position on the factual basis of the matter, and agreement concerning both the characterisation of Mr Didone's conduct, and on disciplinary sanctions.
2. It was agreed that Mr Didone's conduct was to be characterised as constituting professional misconduct within the meaning of cl 5 Schedule 2 of the National Law. However, there was disagreement between the parties as to which sub-paragraphs of cl 5 should apply. The disagreement was whether Mr Didone's conduct should be characterised as professional misconduct pursuant to sub-clauses (a), (b) and (c) of cl 5.
3. Mr Hurburgh for the Board submitted that the parties agreed that the conduct the subject of Allegation 1 constituted professional misconduct under the National Law, and the conduct set out in Allegation 2 constitutes unprofessional conduct, and that when this conduct is considered together with that in Allegation 1, the totality of the conduct constitutes professional misconduct.
4. However, Mr Hurburgh submitted that the Board's view was that the Allegation 1 conduct should be characterised as professional misconduct under paragraphs (a) and (c) of the definition of professional misconduct in cl 5 of the National Law, as both substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (see cl 5(a)); and inconsistent with the practitioner being a fit and proper person to hold registration in the profession (see cl 5(c)).
5. Mr Hurburgh told the Tribunal it was not strictly necessary for the Tribunal to make a determination concerning this matter, because it was agreed that the relevant conduct constituted professional misconduct in itself (s 196(1)(b)(iii)). However, he submitted that a more specific characterisation of the conduct would best serve the public interest by indicating the degree to which the Tribunal considered certain conduct departs from proper professional standards, and what types of conduct are inconsistent with being a fit and proper person to hold registration.
6. Mr Hurburgh submitted that Mr Didone's admitted conduct in this matter demonstrated that he had failed to afford an appropriate level of respect to his female colleagues: six of his colleagues reported they felt uncomfortable with his conduct, and four of them felt they had been touched in a sexualised manner. Mr Hurburgh submitted this failure to afford an appropriate level of respect falls substantially below what is expected of a registered optometrist.
7. However, he submitted further that the substantial departure from the expected standard of behaviour is apparent not only in viewing the conduct in totality, but in Mr Didone's repeated touching of each of his colleagues, in isolation, which demonstrates that the conduct is substantially below the expected standard. He submitted that Mr Didone's conduct toward his colleagues should, at least in some circumstances, be viewed as a substantial departure from expected professional circumstances, and therefore, in its own right should be characterised as professional misconduct. This was particularly so where Mr Didone had repeatedly touched those colleagues where he had specifically been made aware that this was unwelcome, inappropriate, or made them feel uncomfortable.
8. Mr Doyle opposed this approach to the characterisation of the conduct. He submitted that Mr Didone's conduct arose from the circumstances of his personal background, coupled with youth, lack of experience, and lack of sophistication in respect of appropriate personal interactions in a professional environment, and this should be considered in determining if his conduct fell substantially below the standard reasonably expected of a practitioner of his training or experience.
9. Nevertheless, he confirmed that Mr Didone has admitted that his conduct amounts to professional misconduct: his admission is that the individual allegations of conduct constitute unprofessional conduct; and when considered together, this unprofessional conduct amounts to professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct under cl 5.
10. Mr Doyle submitted that it was neither necessary nor appropriate to consider whether the allegations in themselves should be characterised as constituting professional misconduct (by reference to paragraph (a) or (c)), as distinct from characterisation as unprofessional conduct which collectively amounts to professional misconduct under paragraph (b) of cl 5. Mr Doyle submitted that a finding of professional misconduct in itself, along with the significant sanction of what is effectively a suspension of more than three years, made it clear that the Tribunal regarded the admitted conduct as serious and warranting a significant penalty by way of sanction.
11. Further however, Mr Doyle submitted that the admitted conduct did not amount to professional misconduct under the definitions in paragraph (a) or (c).
12. It was conceded that four of the complainants had interpreted his conduct as sexualised, and the other four did not. Of the four who made this interpretation, two felt uncomfortable by his conduct. There is no allegation that Mr Didone was in fact sexually motivated in this conduct. It is agreed the conduct was inappropriate. The submission was that the seriousness of the admitted conduct (and therefore the degree of departure from the expected standard of conduct), should not be determined by the complainant's subjective impression of the intention behind the conduct, especially where that assumed intention was not alleged against Mr Didone.
13. In any event, it was submitted, it should not be considered that any particular episode of conduct fell substantially below the standard expected of a registered health practitioner of Mr Didone's level of training or experience.
14. In acknowledging that it is for the Tribunal to make the determination of appropriate disciplinary sanctions, in relation to the sanctions proposed and agreed by the parties, it was submitted that the joint position proposed reflected a carefully considered and extensively negotiated outcome.
15. In particular the parties submitted that the proposed disciplinary orders put in place a number of measures devised to ensure the protection of the public. It was proposed that Mr Didone only be permitted to practise from locations pre-approved by the Board, which will enable AHPRA to obtain reports from a senior person at Mr Didone's workplace; that Mr Didone will be indirectly supervised by a registered health practitioner, so will not be the only health practitioner at the workplace, and Mr Didone will consult with the supervisor as to the management of patients or his performance as necessary, or at least at weekly intervals; Mr Didone must undergo professional mentoring in relation to appropriate professional boundaries; and Mr Didone will continue treatment with a registered clinical psychologist. These measures are set out in the Schedule of Conditions proposed by the parties.

1. Section 196 of the National Law governs the Tribunal's determination in this matter. There are two matters to be determined: the characterisation of Mr Didone's conduct; and the appropriate disciplinary sanction to be imposed.
2. As noted above, the parties have agreed on both the broad characterisation of Mr Didone's conduct under the National Law (with one limited qualification, which we will address below), and the sanctions they consider appropriate. Nevertheless, it is for the Tribunal to be satisfied that the conduct alleged is supported by the evidence before us; that the conduct established comes within the relevant characterisation under the National Law; and that the sanctions proposed and agreed address the requirements of disciplinary sanctions under the National Law.
3. In considering these matters we have before us a Hearing Book of Documents and a Supplementary Book of Documents containing the details of the allegations against Mr Didone and the evidence supporting them, as well as the Statement of Agreed Facts and a Proposed Minute of Consent Orders, in addition to the psychological reports from Dr Lim and Dr Carroll, and the references in support of Mr Didone. In addition, both parties provided both written and oral submissions. We take all this material into account in making our decisions in this matter.

1. The standard of proof required to be met in making findings of fact in a civil matter such as this is the balance of probabilities. However, we are satisfied that the significance of the views expressed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 is that more convincing evidence is necessary to meet the standard of proof where an allegation is of a particularly serious matter, especially akin to an assertion of criminal conduct such as fraud. This does not amount to a higher standard than the balance of probabilities, closer to the criminal standard, is required. We have borne this requirement in mind when reaching our conclusions on the facts in this matter, but we have reached our conclusions on the facts on a basis of comfortable satisfaction, noting the Statement of Agreed Facts and Issues, and Mr Didone's admissions in this matter in respect of the complaint. We accept that these Agreed Facts represent the facts applicable to this complaint, and we are satisfied that the facts alleged in the complaint against Mr Didone are substantiated by the material contained in the Book of Documents and in other material before the Tribunal.
2. On the basis of the material before us, and in particular in the Statement of Agreed Facts and Issues, the following is a summary of our findings of fact in this matter:
   • Mr Didone was first registered as an optometrist on 8 December 2014. He held general registration until 3 May 2021, when his registration was suspended by the Board.
   • Mr Didone was subject to the National Law for the period of his registration.
   • Mr Didone was employed at the Store in April or May 2019. His employment was terminated on 12 February 2021.
   • On 15 April 2021 AHPRA received a notification concerning Mr Didone's conduct in respect of five female colleagues.
   • On 3 May 2021, following notification to Mr Didone and consideration of written submissions from him, immediate action was taken by the Board to suspend Mr Didone's registration. His registration remained suspended at the time of the hearing of this complaint.
   • On 6 September 2017 a notification had been received concerning Mr Didone's conduct toward a patient. The allegation was that Mr Didone had inappropriately touched her on her upper arm in the course of a routine eye consultation. After considering a written response from Mr Didone on 12 October 2017 the Board decided to take no further action in respect of this notification, accepting that the touch was likely to be in a situationally appropriate and non sexual manner, and there was insufficient evidence that the conduct alleged was below the standard reasonably expected, or that the safety of the public was placed at risk. However, Mr Didone received a formal warning from his employer in respect of the conduct.
   • MSL was employed at the Store in or about April or May 2019 as Store Manager, and she had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with MSL in or about October 2020 and on or about 8 December 2020 by massaging her shoulders on a number of occasions; resting his head on her shoulder; and hugging her. MSL felt some of this conduct was sexualised and made her feel uncomfortable, and Mr Didone accepted this was a reasonable interpretation of his conduct.
   • In or around June 2018 AQG commenced working at the Store as a trainee and had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with AQG by touching her upper arm and shoulder (between June 2018 and December 2020); putting his hands on her waist and knowingly making contact with the back of her body with the front of his body (in or around June 2019); knowingly resting his hand on her thigh in the course of checking her eyes (January 2020). AQG felt some of this conduct was sexualised and made her feel uncomfortable, and Mr Didone accepted this was a reasonable interpretation of his conduct.
   • NEK commenced employment at the Store in or about April or May 2019, and had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with NEK in the period between April or May 2019 and December 2020 by resting his head on her shoulder; touching her face; massaging her shoulders and neck; and putting his hands on the sides of her waist or hips and knowingly pressing the front of his body against the back of NEK's body as he moved past her, such that NEK felt his groin press against the back of her body (December 2022). NEK felt some of this conduct was sexualised and made her feel uncomfortable, and Mr Didone accepted this was a reasonable interpretation of his conduct.
   • OFX was employed at the Store from about 28 November 2017 and had regular professional contact with Mr Didone. In or about October 2020 Mr Didone engaged in inappropriate physical contact with OFX by positioning himself behind her when she was seated, rubbing her shoulders and knowingly pressing his abdomen against her back. This conduct reasonably made OFX feel uncomfortable.
   • From about October 2020 MFG was employed at the Store and had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with MFG by knowingly touching her clothed breast in removing a hair from her clothing (October 2020); knowingly touching her buttocks (October 2020); and massaging her shoulders (October 2020). MFG felt some of this conduct was sexualised and made her feel uncomfortable, and Mr Didone accepted this was a reasonable interpretation.
   • WNU was employed at the Store sometime prior to October 2020 and had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with WNU by rubbing her hands (October 2020).
   • UJI was employed at the Store in or around January 2020 and had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with UJI by running his finger or two fingers from her buttock to the back of her knee in the context of discussion about her back pain (November 2020).
   • In or around September 2020 Mr Didone met ORU in the course of her employment at the Store, and she had regular professional contact with Mr Didone. Mr Didone engaged in inappropriate physical contact with ORU in or about November 2020, by running his finger from her ear to her neck. Mr Didone accepted this made ORU feel uncomfortable.
   • Mr Didone was made aware by some of these colleagues that physical contact was unwelcome, inappropriate, or made them feel uncomfortable. Nevertheless some of this conduct was repeated in respect of these colleagues despite this advice to Mr Didone.
   • No later than December 2018 UJI told Mr Didone that she did not want him (or anyone) to touch her, and told him to "fuck off" when he offered to massage her shoulders. No later than August 2019 AQG told Mr Didone she had strict personal boundaries and asked Mr Didone not to touch her as this made her uncomfortable.
   • In or around June 2019 a manager at the Store told Mr Didone that AQG had reported that Mr Didone had made inappropriate contact with her waist and told Mr Didone to "give AQG space".
   • On occasions between April or May 2019 and December 2020, UJI told Mr Didone he should stop touching NEK's face.
   • On occasions between April or May 2019 and December 2020 NEK had told Mr Didone not to touch her face and to "back off", indicating that the physical contact was unwelcome and inappropriate.
   • In or around October 2020, MFG told Mr Didone when he massaged her shoulders, that she did not like being touched.
   • In or around October 2020 when Mr Didone touched her buttocks, MFG said to him, "are you kidding?" and "what are you doing?", indicating that the physical contact was unwelcome and inappropriate.
   • In the period between April or May 2019 and December 2020, MSL told Mr Didone on a number of occasions that making physical contact with his colleagues was inappropriate.
   • On an occasion sometime between January 2020 and December 2020 Mr Didone accessed NEK's live location, when she was absent from work, via an app, and showed her location as recorded on the app to OFX and UJI, and said "I don't think she's sick".
3. We note that Mr Didone has made certain admissions concerning these facts. In particular, we note that he has admitted that his conduct in engaging in inappropriate physical contact with MSL, AQG, NEK, OFX, MFG, WNU, UJI, and ORU, as described above, constitutes unprofessional conduct in each case.
4. In addition, we note he has admitted that the conduct, taken together, constitutes professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct in cl 5 of the National Law.
5. We are satisfied that Mr Didone made inappropriate physical contact with his female colleagues on numerous occasions. We accept that this contact was not sexually motivated, and this is not what is alleged by the Board. Nevertheless, it was inappropriate and unwelcome, and Mr Didone continued to make inappropriate physical contact with his female colleagues despite being advised on numerous occasions by them and others that the conduct was unwelcome and inappropriate, and that in some cases it made his colleagues feel uncomfortable. We are satisfied that much of this conduct was performed knowingly by Mr Didone (that is, it was not accidental contact). We note that the physical confines of the working space shared by Mr Didone with his colleagues made it a cramped area, and it was likely some physical contact might occur. However, the contact the subject of the allegation was not accidental or incidental, but knowing and deliberate contact by Mr Didone. Many of the contacts complained of occurred after Mr Didone had been told his conduct was inappropriate, or not welcome, and that it made the recipients uncomfortable.
6. It is our view that such conduct is unacceptable, and each circumstance of such conduct is appropriately regarded as unprofessional conduct, and should be characterised as such within the meaning of the National Law.
7. It is these numerous inappropriate contacts with his female colleagues that, taken together, are alleged to amount to professional misconduct.
8. In our view, the ongoing and repeated examples of inappropriate physical contact, despite being told such contact was both inappropriate and unwelcome, and made some of his colleagues feel uncomfortable, demonstrates a significant absence of both insight by Mr Didone into his behaviour and his professional relationships, and real lack of respect for his female colleagues.
9. We are satisfied, in these circumstances, that, taken together, this conduct is properly to be characterised as professional misconduct within the meaning of cl 5(b) of the National Law.
10. In relation to the second allegation, we are satisfied this constitutes unprofessional conduct. We note this conduct is inconsistent with the Board's National Board Policy for Registered Health Practitioners: Social Media Policy (effective from 17 March 2014), which applied to Mr Didone. This Policy requires practitioners to act in a professional manner, and consistently with other obligations, such as privacy legislation.
11. Taken together with the other admitted conduct in respect of Allegation 1, we are satisfied that, when viewed as a whole, Mr Didone's conduct constitutes professional misconduct within the meaning of paragraph (b) of the definition of professional misconduct in cl 5 of the National Law.
12. We also note the assessment of Mr Didone's character and circumstances in the psychological reports of Dr Lim and Dr Carroll. We accept the assessment they provide, and note that Mr Didone is a relatively young and inexperienced practitioner, who has had a fairly limited and sheltered background, in the sense that he appears to have largely socialised within his family and with longstanding friends, thereby probably limiting his exposure to wider appreciations of acceptable professional conduct. This does not mean of course that he is not responsible for his own conduct: as a professional person there is an expectation and obligation that he act towards colleagues, as well as patients and customers, in a professional manner, showing them respect and according them dignity and agency.
13. We also note however that Mr Didone has undertaken psychological treatment and has engaged in personal education and reflection. Dr Carroll and Dr Lim report that this has enabled him to obtain a significant improvement in his level of insight into his past conduct and to appreciate its inappropriateness and to develop strategies to improve his professional and working conduct. Dr Carroll and Dr Lim have formed the view that Mr Didone is safe to return to practice as an optometrist, with certain safeguards in place to assist and support him and to ensure the safety of the public.
14. We accept there are issues for the safety of the public which arise from Mr Didone's unacceptable conduct. While there are no allegations in this complaint that Mr Didone's conduct was motivated by sexual or other inappropriate purpose, and it did not extend to patients or customers, nevertheless Mr Didone's colleagues with whom he worked in the Store are entitled to have a safe place to work, and not be subject to unwelcome physical contact which might alarm them, and did make some of them feel uncomfortable. Such unwelcome conduct, especially when repeated and ongoing (as this was), with its underlying lack of respect for its recipients, presents issues of workplace safety for Mr Didone's colleagues, who are, in this respect, members of the public: Mr Didone's connection with them was established because of his registration and work as an optometrist.
15. We also note, however, that since the suspension of his registration, Mr Didone has worked in a Salvos Store. It appears from the information before us that his work conduct in this environment has been positive. Mr Didone has provided statements in support of him from four current co-workers: they all speak highly of him in terms of his respectful attitudes, his integrity and quality as a colleague. All referees make it clear they are aware of the circumstances of this complaint.
16. We acknowledge these references and accept they appear to demonstrate that Mr Didone has gained significant insight into appropriate professional behaviour at work and has changed his work behaviours.
17. The Board submitted that Mr Didone's conduct should also be characterised as constituting professional misconduct within the meaning of paragraph (a) or (c) (or both) of the definition of professional misconduct under cl 5 of the National Law, while conceding that such characterisation was not necessary for either a characterisation of the conduct as professional misconduct, or in respect of a determination of the relevant disciplinary sanctions. However, Mr Hurburgh submitted that characterisation under paragraphs (a) or (c) would serve the public interest by clearly indicating the degree to which certain conduct departs from proper professional standards, and the types of conduct that are inconsistent with being a fit and proper person to hold registration as an optometrist.
18. Mr Doyle, for the respondent, opposed this approach. He submitted that to make this characterisation would not add to the clear condemnation of Mr Didone's conduct apparent in the broad characterisation of professional misconduct, or the determination that the conduct was not consistent with holding registration as an optometrist, given that Mr Didone's registration has been cancelled since 3 May 2021.
19. Mr Doyle submitted, in addition, that given Mr Didone's relative lack of experience and sophistication, and the absence of any sexual or other inappropriate intent, Mr Didone's unprofessional conduct in its separate examples should not be taken to demonstrate conduct which fell substantially below the standard of a health practitioner of his training or experience.
20. Clause 5 of Schedule 2 of the National Law provides three definitions of "professional misconduct". It was agreed by the parties, and we accept, that Mr Didone's conduct demonstrates 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. This is the definition provided in (b) of cl 5.
21. Paragraph (a) defines professional misconduct as 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 paragraph (c) refers to the 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.
22. It is our view that Mr Didone's conduct is to be characterised as professional misconduct within the meaning of cl 5(b) of the National Law. We conclude that in the circumstances of this matter, each episode of Mr Didone's relevant conduct should be regarded as amounting to episodes of unprofessional conduct. It is conduct which demonstrates a lack of appropriate professional respect for working colleagues, and which, taken 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. It is our view this characterisation best reflects the nature of the conduct, as being inappropriate and unprofessional in its individual occurrences, and constituting professional misconduct when seen as a course of conduct, especially in the context of repeated and ongoing unwelcome behaviour.
23. We do not consider that Mr Didone's conduct should be characterised with respect to either cl 5(a) or (c) of the National Law. These definitions do not, in our view, reflect the character of the conduct as appropriately as cl 5(b) of the National Law.
24. We do not consider that each of these episodes of unprofessional conduct, in this case, amount to an appropriate characterisation of the conduct as professional misconduct under paragraph (a) of cl 5 of the National Law, as amounting to behaviour substantially below the standard reasonable expected of a junior, relatively inexperienced optometrist; or within paragraph (c), as demonstrating conduct inconsistent with being fit and proper to hold registration as an optometrist. Taking all the circumstances of this case into account, we are comfortably satisfied that the appropriate characterisation of the conduct is as professional misconduct within the meaning of paragraph (b) of cl 5 of the National Law.

1. The final issue to be considered by the Tribunal is the appropriate sanction to be applied in respect of Mr Didone's conduct. We note the parties have agreed on proposals as to appropriate disciplinary sanctions, taking into account Mr Didone's admissions, as well as the requirements and purpose of the National Law, and we take these into account in our considerations, but ultimately the Tribunal must make a determination of the appropriate disciplinary sanction.
2. The central issue in relation to sanction is an assessment of the risk to the public, and in considering this the Tribunal must bear in mind the purpose of such sanctions under the National Law. These general principles are set out in the judgement of Doyle CJ in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553 (Craig):

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

3. Any disciplinary action must also be proportional and appropriate to all the circumstances of the case.
4. These principles are widely accepted and applied in the case law, recognising that the purpose of disciplinary proceedings is to protect the public, maintain proper professional standards, and to assure the public that proper standards are being maintained in the relevant profession. A disciplinary sanction also assists in upholding the public trust and confidence in the profession, bringing home to the practitioner the seriousness of their conduct, deterring the practitioner from any future departures from appropriate standards, deterring other members of the profession from acting in a similar manner, and imposing restrictions on the practitioner's right to practice so as to ensure the public is protected.
5. The Tribunal notes that the parties have agreed on sanctions proposed to be applied to Mr Didone, including a reprimand; the imposition of specified conditions on Mr Didone's registration (set out in an attached schedule); and payment of the Board's costs. It was also proposed that the suspension applied in respect of Mr Didone's registration in the immediate action taken by the Board, should be revoked.
6. Agreement between the Board and the practitioner concerning appropriate sanctions obviously is useful for the Tribunal to take into account in considering an appropriate sanction as it demonstrates the sanction that the Board considers appropriate to effectively address the objects of the National Law to protect the public and maintain professional standards and confidence in the profession, as well as that the practitioner recognises and appreciates the deficiencies in his conduct and its inappropriate nature, and is taking responsibility for it.
7. Nevertheless, the Tribunal must be satisfied as to the appropriate sanctions to apply to achieve these ends in the particular case before it. Accordingly, to adopt the sanctions proposed and agreed by the parties, the Tribunal must be satisfied they address the concerns of the National Law, of protecting the public, and maintaining professional standards and confidence in the profession.
8. In making an assessment of the risk Mr Didone's conduct might pose in this respect, the Tribunal takes into account the 12 points identified in Medical Board of Australia v Singh, [2017] WASAT 33(s) (Singh) as relevant in considering the issue appropriate disciplinary action. The Tribunal adopts the considerations articulated in Singh as appropriate in this matter, appreciating they are neither prescriptive nor exhaustive.
9. The factors identified in Singh are as follows:
   • Any need to protect the public against further misconduct by the practitioner.
   • The need to protect the public through general deterrence of other practitioners from similar conduct.
   • The need to protect the public and maintain public confidence in the profession ... [including] an emphatic indication of ... disapproval.
   • In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
   • Whether the practitioner has breached any (a) Act; (b) Regulations; (c) Guidelines or Code of Conduct...; and (d) whether the practitioner has done so knowingly.
   • Whether the practitioner's conduct demonstrated incompetence ... .
   • Whether or not the incident was isolated ... .
   • The practitioner's disciplinary history.
   • Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or lack thereof) ... .
   • The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction.
   • ... other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness.
10. It is clear, taking into account the guidance from the principles set out in Craig and Singh, that disciplinary sanctions should be directed to maintaining proper ethical and professional standards for the protection of the public, as well as for the protection of the reputation of the profession; they are not intended as punitive in nature, but should serve the objectives of both specific and general deterrence; an assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination; and the nature and seriousness of the conduct, any evidence of contrition, the degree to which the practitioner has acquired insight into the conduct, evidence of rehabilitation, and character evidence, may all be relevant factors. Matters personal to the practitioner as a consequence of the conduct and the disciplinary sanction imposed, such as shame, personal embarrassment, and financial difficulty, are of little relevance.
11. In relation to Mr Didone, the Tribunal notes that his conduct demonstrates there is a need to protect the public (colleagues, patients and customers) in relation to possible future professional misconduct by Mr Didone; and, considering the nature of the conduct, there is a need to ensure that other optometrists are deterred from such workplace conduct. Public confidence in the profession is also of significance in this respect.
12. We note also the evidence before us which we are satisfied demonstrates that Mr Didone has developed insight into his conduct, and his actions in improving his conduct and developing awareness of appropriate conduct and professional boundaries. This is clear in the assessments of Dr Lim and Dr Carroll, who both consider he is safe to return to optometry practise, with ongoing support; in Mr Didone's own reflective report and successful participation in a relevant educational program, undertaken of his own initiative and at his own cost; and the very supportive and positive references from four women who now work with him, attesting to his respectful workplace conduct and his integrity. We consider these matters relevant to Mr Didone's fitness to practise, and the appropriate protection of the community should he do so.
13. Other than the protection of the public, the most significant purpose of disciplinary sanctions in this matter, in the Tribunal's view, is to demonstrate to the public and to other members of the profession, that such conduct is neither acceptable nor accepted. The Board has established the requirement for appropriate ethical and professional standards in its Code of Conduct, and if a practitioner does not comply with those requirements, significant sanctions will be imposed to support those requirements.
14. We note that Mr Didone has admitted the conduct and agreed to the sanctions proposed, and these admissions and agreement in itself demonstrates a significant degree of awareness and contrition in respect of the conduct. He has also undertaken education in respect of professional boundaries, and has provided a reflective report concerning this which demonstrates his significantly increased insight into his conduct and circumstances.
15. We also note that a very significant sanction has already effectively been applied to Mr Didone through the suspension of his registration since 3 May 2021.
16. Taking these considerations into account the Tribunal is satisfied that the sanctions proposed and agreed by the parties are appropriate to address the concerns of the National Law: that is, of protecting the public; providing a specific deterrence to Mr Didone and a general deterrence to other members of the profession; maintaining professional standards; and maintaining public confidence in the profession.
17. The sanctions proposed are a reprimand, and a revocation of the suspension imposed on Mr Didone on 3 May 2021, but subject to conditions. In addition, Mr Didone is to pay the Board's costs of these proceedings. Mr Didone has agreed to these disciplinary sanctions, and in our view they are appropriate and address the purpose of disciplinary sanctions under the National Law.
18. A reprimand pursuant to s 196(2)(a) of the National Law is a serious sanction which demonstrates professional condemnation and public denunciation in respect of the conduct, and we consider it an appropriate sanction in this matter.
19. It was agreed that the suspension applied in respect of Mr Didone's registration as an optometrist from 3 May 2021 should be revoked. We agree this is appropriate and we will make such an order. In our view this is appropriate, taking into account the long period of the suspension of registration; his insight and remorse in respect of his conduct; and the education into professional boundaries and appropriate workplace behaviour he has undertaken, along with his ongoing treatment and psychological support.
20. We note it has been agreed that ongoing conditions should be applied in respect of Mr Didone's restored registration. These conditions are set out in the Schedule of Conditions attached to the Agreed Draft Minutes of Order jointly submitted by the parties, and we will not repeat them in all their detail here.
21. However, those conditions require that, before Mr Didone returns to practice as an optometrist, he must undergo Board approved education focussed on sexual harassment and appropriate behaviour in the workplace, following which he is to provide a reflective practice report to the Board's satisfaction.
22. Upon returning to practice, Mr Didone is required to:
    • practise only from locations approved by the Board;
    • engage in treatment with a clinical psychologist, followed by a further assessment by Dr Lim with a report as to her assessment to be provided to the Board;
    • be indirectly supervised while at work (requiring a supervisor to always be present at the workplace); and
    • engage in ongoing mentoring.
23. We accept that these ongoing conditions attached to Mr Didone's registration addresses any issue of any possible recurrence of the conduct, and provides appropriate protection to public, and in addition makes a clear statement of disapproval in relation to the conduct, and that it is not acceptable.
24. We are satisfied that there is no longer any risk to workplace colleagues or the public if Mr Didone returns to work subject to these conditions, and we note there have been no complaints concerning inappropriate conduct in relation to patients (other than the first notification), or in respect of Mr Didone's knowledge or skill base.
25. We are also satisfied the agreement that Mr Didone pay the Board's costs is appropriate, and we will make such an order.

1. The Tribunal is satisfied that the Respondent has behaved in a way that constitutes professional misconduct within the meaning of s 196(1) of the National Law.

1. The Respondent is reprimanded.
2. The suspension of the Respondent's registration imposed on 3 May 2021 is revoked as of the date of this Order;
3. The conditions in the agreed Schedule of Conditions filed by the parties are imposed on the Respondent's registration;

1. The Respondent must pay the costs of the Board in these proceedings to be agreed or, failing agreement, determined by the Tribunal.
2. Publication of the names, addresses, or any material identifying the patients, or family members of the respondent, referred to in the complaint or in any document before the Tribunal, is prohibited.