Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44 Hearing dates: 29, 31 March, 1 April 2022 Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Dr D Pohl, Senior Member Dr A Dermikol, Senior Member S Lovrovich, Senior Member Decision: (1) Pursuant to s 149C(1)(b) of the National Law, Dr Mooney's registration as a medical practitioner is cancelled. (2) Pursuant to s 149C(7) of the National Law, Dr Mooney may not apply for a review of Order 1 for a period of 12 months from the date of this decision. (3) Dr Mooney to pay the costs of the HCCC of the proceedings. Catchwords: OCCUPATIONS – Medical practitioners – Misconduct and discipline – Protective Orders Legislation Cited: Health Practitioner Regulation National Law (NSW) s3A, 149A, 149B, 149C, Schedule 5D Cases Cited: Chen v HCCC [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 HCCC v Buys (No 3) [2020] MSWCATOD 102 HCCC v Do [2014] NSWCA 307 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Oladiran [2020] NSWCATOD 56 HCCC v Philipiah [2013] NSWCA 342 HCCC v Shrimpton [2019] NSWCATOD 25 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Texts Cited: Good medical practice: a code of conduct for doctors in Australia, Guideline issued by the Medical Board of Australia Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr William Mooney (Respondent) Representation: Counsel: P Aitken (Applicant) C Jackson (Respondent) Solicitors: B Chisholm (Director of Proceedings HCCC) (Applicant) Avant Mutual (Respondent) File Number(s): 2019/00294814; 2019/00400872 Publication restriction: 2019/00294814 (1) Pursuant to s 64(1)(a) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW): (a) The publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited. (b) The disclosure of the contents of any document lodged with the Tribunal in relation to the patients set out in the Schedule to the Complaint is restricted to the parties to the proceedings. 2019/00400872 Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited. REASONS FOR DECISION 1. Dr Mooney is an ear, nose and throat surgeon. The Health Care Complaints Commission (HCCC) filed two Applications for Orders against Dr Mooney. 2. We have previously finalised Stage 1 of the proceedings and determined which particulars of the Complaints had been established by the HCCC. [1] 3. It is now our role in Stage 2 of these proceedings to decide on the protective Orders which should be made as a result of our findings. 4. The HCCC submits that the appropriate protective Order is cancellation of Dr Mooney's registration for 12 months. 5. Dr Mooney's primary position is that the appropriate protective Order is a severe reprimand with conditions imposed on his registration. However, if it is determined that a period of suspension is necessary, Dr Mooney says three months would be appropriate and sufficient. Summary of Stage 1 findings 1. The findings in Stage 1 which are relevant to Stage 2 are the following. This summary of our findings of unsatisfactory professional conduct [2] is only intended to enable an understanding of this Stage of the proceedings and is not in substitution for our previous detailed findings. 2. Dr Mooney performed an operation on patient A on 15 February 2018 to fix his snoring. During the operation Dr Mooney noticed a little bleeding but thought he had stopped it. Patient A underwent emergency surgery two days later for a recurrent haemorrhage. During that operation he had a heart attack and later passed away without regaining consciousness. 3. In relation to patient A, we found Dr Mooney's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience because: 1. Before starting the operation, Dr Mooney inserted gauze into patient A's nose. The gaze had been soaked in a solution intended to constrict the blood vessels. Dr Mooney had not checked which solution had been used nor the quantity, either by preparing the soaked gauze himself or by viewing the ampoule from which it had been taken. 2. Dr Mooney performed the operation in an inappropriately short time. 3. Dr Mooney did not review patient A on the two days patient A stayed in hospital after the operation, when Dr Mooney knew he had bled during the operation. 1. While operating on patient B, Dr Mooney penetrated the bone below the brain and disrupted an artery causing bleeding into the right frontal lobe. Patient B later passed away without regaining consciousness. 2. In relation to patient B we found Dr Mooney's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience because: 1. Dr Mooney had operated on patient B two months earlier. He should have continued conservative treatment, rather than operating again, until he could be sure that any swelling in the nasal passages was not a temporary response to that earlier operation. 2. Dr Mooney had expected that the operation would be simple and short and performed it too quickly but it was an inherently difficult procedure fraught with potential serious risks. 3. Dr Mooney became disoriented while he was operating. He did not have patient B's CT scans in front of him during the operation. He should have been continually consulting those CT scans to check that the instrument being passed through the nasal passages was where he thought it was. 4. Dr Mooney did not identify that he may have caused a serious injury until patient B's condition deteriorated in recovery and even then he thought it was a stroke, not an injury he had caused. This was partly because he did not have proper regard to patient B's blood pressure reading during the operation. 1. Patient C became Dr Mooney's patient in 2009. We found Dr Mooney's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of experience and, in some cases improper and unethical conduct, because: 1. Dr Mooney acted inappropriately in forming a personal relationship with patient C and disclosing information about his personal life. In assessing the seriousness of Dr Mooney's conduct, we found Dr Mooney exploited his position of authority as a 47 year old ENT surgeon treating a 22 year old vulnerable patient. He allowed that relationship to continue for over two years, during which they were in frequent contact by telephone and SMS. 2. Dr Mooney inappropriately prescribed Duromine, a weight loss medication, to patient C when he should have known that she had a long standing eating disorder. The prescribing was not clinically justified, he had not taken an adequate history, he had not advised her about the possible side effects and he took no steps, either before or after the prescribing, to ensure that it was safe for her to take the medication. 1. In relation to the adequacy of Dr Mooney's records we found him guilty of unsatisfactory professional conduct because: 1. In relation to patient A, Dr Mooney had not documented whether he had a history of easy bleeding or bruising; 2. In relation to patient B, Dr Mooney had not made notes of some of the consultations; 3. In relation to patient C, Dr Mooney had not made a record of prescribing Duromine. 1. Next, we found Dr Mooney's conduct was improper and/or unethical when he deliberately misled delegates of the Medical Council by saying: 1. He could not remember whether he had ever prescribed Duromine to patient C but if he had, it would be in his notes. 2. He had bumped into patient C occasionally socially and they were friends, when he was aware that, in that period of just over two years, they had exchanged 3,425 text messages and 807 phone calls. 1. We also found Dr Mooney's conduct was improper and/or unethical when he deliberately misled the HCCC on 22 March 2018 after they had asked him to provide details of his relationship with patient C. 2. In 2018 a condition was placed on Dr Mooney's registration requiring him to practise under supervision. We found that he breached that condition by not providing the name and details of his proposed supervisor by a certain date. 3. We found Dr Mooney breached the conditions on his registration requiring him to attend scheduled hair drug screening because he: 1. Failed to attend the scheduled hair drug screening. 2. Worked as a doctor on five of the days that he had been certified as unfit to attend hair drug screening. 3. Provided illness certificates which covered more than three business days and failed to provide supporting information from his treating practitioner. 4. Failed to attend for hair drug screening on the next business day following his illness. 1. We also found that Dr Mooney's conduct was improper or unethical when he misled the s150 Inquiry on 7 November 2018 investigating the breaches of the hair drug testing condition. He told them that, after he had seen one or two patients each day, he "fell in a heap and was non-functional. I couldn't drive home … I only attended because they were emergency cases". However, he had seen 33 patients over three days, none of them was an emergency, and he had not told the Inquiry that he had performed operations on patients on the fourth day. 2. We also found Dr Mooney's conduct was improper or unethical when he deliberately misled the HCCC on 20 December 2018 when he told them, by letter, that he had seen some additional patients, but did not tell them that he had operated on four patients on the fourth day. 3. We also found Dr Mooney guilty of professional misconduct because the unsatisfactory professional conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration. [3] Evidence from Dr Mooney Patients A and B 1. Dr Mooney made a statement for this Stage 2 hearing and gave evidence. 2. Dr Mooney accepts that patient A died because of the surgery he performed. He has prepared an audit of patients on whom he performed the same procedure to check for complications. He checks the vaso-constrictor before it is decanted onto the gauze. It is now his invariable practice to see every patient immediately after surgery in recovery. 3. In relation to patient B, Dr Mooney is currently not permitted to perform this type of operation. He has read surgical papers and texts about intracranial trauma during sinus surgery. Again he has prepared an audit of patients on whom he performed the same procedure to check for complications. He intends to enrol in an ENT surgical skills course. He now understands the role of medical management before surgery. He acknowledges that this type of surgery is complex as it is performed in a very high risk area and can be complicated by previous surgery. He would ensure the CT scans are displayed in theatre and would refer to the scans during the procedure. He now ensures he can monitor a patient's blood pressure during an operation. 4. Dr Mooney also admits that in 2017 and 2018 he had been completing surgery in an inappropriately short time. This was because there had been a slow incremental increase in his workload over several years and he had not stopped to consider whether it was manageable or impacting on the quality of care he was providing. He is no longer under those pressures as he performs fewer operations and works shorter hours. 5. Dr Mooney's two supervisors, Dr Eisenberg and Dr McGuiness consider that he is now a more careful surgeon. 6. Dr Eisenberg said he has been supervising Dr Mooney for three years during which he has watched Dr Mooney operate, Dr Mooney has watched him operate and they have had many discussions about the surgical process and the procedures used by Dr Mooney in his rooms. Over that time none of Dr Mooney's patients have suffered a significant complication. Dr Eisenberg described Dr Mooney as a careful, meticulous and utterly safe surgeon whose judgment and surgical skills are very good. He said that Dr Mooney has consciously slowed down while performing operations and, while he is a rapid surgeon, he does not operate too quickly. 7. Dr McGuiness described Dr Mooney's preoperative preparation and consent process as thorough and meticulously documented and he has an excellent rapport with his patients. His surgical decision-making is appropriate and well informed. He described Dr Mooney as a naturally skilled and efficient surgeon whose operations are carried out quickly and efficiently. 8. Dr Mooney's records were audited once in 2018. The auditor concluded that Dr Mooney is a speedy surgeon, but he felt that the timings were understandable and reasonable given his expertise. 9. We are satisfied that the evidence establishes that Dr Mooney has satisfactory medical and surgical skills in relation to the areas of practice observed by Dr Eisenberg and Dr McGuiness. Boundary violation 1. Dr Mooney now concedes he knew, at the time, that his relationship with patient C was inappropriate but he nevertheless allowed it to happen. He says he was experiencing major life stressors and he made the very serious error of relying on a patient as a personal support. He acknowledges it was a clear boundary transgression and a boundary violation and that he put his needs before those of his patient when she was vulnerable herself. 2. Dr Mooney says, after reflecting on his conduct and doing courses, he now has a much better understanding of professional boundaries. He has implemented changes to his practice to ensure he is never alone with a female patient and does not give his personal mobile or email to any patient. 3. He has been seeing a psychiatrist, Dr Farago, since March 2019 and they have had extensive discussions about patient boundaries and the ethical guidelines and frameworks around doctor patient interaction and the mistakes he made regarding his relationship with patient C. Misleading information & Breach of Conditions 1. Dr Mooney deeply regrets his non-compliance with the conditions on his registration and says he has no excuse for his conduct. He understands the conditions are to protect his patients and that by complying with the conditions, he provides the Council with reassurance that he is safe to continue practising. 2. Each month he sends a summary of his compliance to the Council for his own benefit and to demonstrate to the Council his determination to be compliant. 3. Dr Mooney is ashamed of having provided false and misleading information to the Medical Council and to the HCCC and says there is no excuse for his conduct. 4. Dr Mooney attributes his conduct to his mental health at the time as he was in denial, shocked and anxious. Medical records 1. Dr Mooney says he now spends significantly more time completing patient records. 2. Dr Eisenberg is satisfied with Dr Mooney's procedures in his practice. 3. The auditor listed a couple of issues he found with Dr Mooney's records. Dr Mooney has addressed those issues by making changes to his note taking. No further audit has been conducted. Other matters 1. Dr Mooney is practising under supervision with conditions on his registration restricting the type of work he can do and the number of hours he can work a week so he is no longer under the same time pressures. He enjoys spending more time performing surgery and is able to double check that all aspects of the surgery have been performed optimally. He has no desire to increase his hours of work, or the number of surgeries. 2. Dr Mooney believes that as a result of improved work life balance, he is healthier, both physically and mentally and much more able to handle stress and challenging situations more effectively. 3. Dr Mooney now performs less cosmetic surgery and more general ENT work. Dr Eisenberg supports Dr Mooney's decision to scale back his celebrity status as a cosmetic surgeon. 4. Dr Mooney has for many years been active in Indigenous outreach. He currently does pro bono work for the Aboriginal and Torres Strait Islands ENT Committee which involves attending meetings, conducting research and visiting regional communities and clinics. 5. Since mid-2021 Dr Mooney has been attending the Goulburn Health Hub to conduct two ENT clinics each fortnight. 6. Dr Mooney has an interest in helping domestic violence victims with facial and nose trauma, particularly those who cannot afford surgery. He is in the course of establishing a monthly pro bono clinic for facial injury treatment following domestic violence. He plans to offer appropriate patients surgery. 7. Dr Mooney has undertaken courses and attended meetings including a self -education program, focusing on ethics and patient interaction, scripting and consenting, and prescribing education. 8. Dr Mooney meditates daily, exercises regularly and surfs or attends the gym daily. He spends time every day reading and reflecting as part of a psychiatric management plan prepared with Dr Farago to ensure he maintains good mental and physical health. That plan involves ongoing psychiatric treatment, maintaining ongoing close professional supervision, the development of a strong support network and constant honest self-assessment. They have also devised a stress response plan which addresses techniques to deal with difficult patients and to manage professional and personal stressors. He claims that he has successfully used this plan to cope with the stress of our Stage 1 decision. He is now confident he can manage stressors in his life more effectively. 9. Dr Mooney also consulted a psychologist for five years. He will re-engage with him in the future if necessary. 10. The divorce proceedings with Dr Mooney's ex-wife have now been finalized and they now have a congenial co-parenting relationship. He is now in a new relationship and his partner is a great support to him. He is also supported by his supervisor, his psychiatrist, many colleagues, a group of long-term friends and a close family. He admitted that he abused alcohol after the recent stress of the Stage 1 hearing, and consulted a Drug and Alcohol Psychiatrist twice and has commenced voluntary urine testing to confirm his voluntary sobriety. 11. Dr Mooney has the support of a number of referees. 12. They include his Practice Manager who has worked with Dr Mooney since September 2018. She considers him to be thorough, approachable, concerned and kind and committed to the practice being at the highest professional standards. She has noticed he has been very affected by the events which are the subject of these proceedings and has been concerned on occasions that his remorse will engulf him. 13. Dr Choroomi is an ENT/Head and Neck Surgeon. He works as a locum in Dr Mooney's practice. He has observed Dr Mooney to be well mannered, pleasant and liked by his staff and patients. He has seen Dr Mooney show remorse and be deeply affected by and saddened by the two patients' deaths. The negative media publicity caused him difficulties socially and affected his family life and surgical practice. Legal principles 1. As we have made a finding of professional misconduct [4] , we may suspend Dr Mooney's registration for a specified period or cancel his registration [5] . If an Order for cancellation is made, it may "provide that an application for review… may not be made until after a specified time". [6] 2. The other available Orders are a caution, reprimand, or the imposition of conditions on Dr Mooney's registration, or Orders to undergo treatment or education; to report on the practice or to seek and take advice on practice management, [7] or a fine. [8] 3. We then turn to the principles which inform our decision in determining the appropriate protective Orders. 4. The paramount consideration is set out in s 3A of the Health Practitioner Regulation National Law (NSW) (the National Law) which provides: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 1. The Orders are not intended to punish the practitioner, but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186; HCCC v Litchfield (1997) 41 NSWLR 630). 2. An explanation of the matters which can be relevant to the objective of protecting the public were discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." Consideration Gravity of the conduct 1. In our earlier decision we made findings as to the seriousness of Dr Mooney's conduct. [9] We rely on those findings in assessing the seriousness of the conduct for the purpose of making the protective Orders. We also make the following additional findings. 2. This is not a situation where a practitioner has failed to act in accordance with expected standards or depart from ethical standards on one occasion, or in respect of one course of conduct. Dr Mooney has committed acts which are egregious departures from proper standards across a broad range of duties which a doctor owes to his patients and the public. 3. We accept that Dr Mooney has exhibited satisfactory technical skills in performing the limited operations currently permitted by the conditions on his registration. 4. However the issues which arose in Dr Mooney's treatment of patients A and B were not caused by a lack of those skills. They were caused by rushing the operations, failing to take care during the operations and failing to care of patient A after his operation. These are all inconsistent with Dr Mooney's commitment to making the care of patients his first concern and to practising medicine safely and effectively. [10] 5. The type of boundary crossing for more than two years, exhibited in relation to patient C, is an abuse of the doctor-patient relationship. It undermines the trust and confidence of patients in their doctors and of the community in the medical profession. It can cause significant and lasting harm to patients particularly in circumstances where it involved the prescribing of medication which was not clinically justified and which was probably contra-indicated. 6. Dr Mooney's conduct in breaching conditions on his registration, and then deliberately lying to the Medical Council and the HCCC about those breaches and other matters, is completely inconsistent with his duty as a medical practitioner to be honest, ethical and trustworthy. As we have already said in our Stage 1 decision: 437 In HCCC v Shrimpton [2019] NSWCATOD 25, the Tribunal held: "It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities" (at [72]). 438 In Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56, the Tribunal held: "Lying to the regulatory authority has the potential to undermine the system for the regulation of medical practitioners, which is a statutory system conducted principally for the protection of the health and safety of the public" (at [49]). 1. We also take into account, in assessing the gravity of his conduct, that it occurred over a lengthy period. The relationship with patient C commenced in October 2013 and continued until January 2016. Dr Mooney misled the Medical Council about the extent of his relationship with patient C in February 2017. The operation on patient B occurred in November 2017 while the operation on patient A occurred in February 2018. In March 2018 Dr Mooney misled the HCCC about the extent of his relationship with patient C. In October 2018 Dr Mooney saw patients while providing illness certificates to avoid hair drug testing. In November 2018 he misled the Medical Council about seeing those patients and in December 2018 he misled the HCCC by not revealing that he had operated on patients in 3 October 2018. 2. It is not our role to measure Dr Mooney's conduct against the misconduct of other doctors. In HCCC v Litchfield (1997) 41 NSWLR 630 the Court held: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. indirectly establish the standards applied by the Tribunal. [11] 1. We are satisfied that the conduct of Dr Mooney was a very significant and serious departure from proper standards. 2. The role of deterrence is one of the relevant factors to be considered by us. In Law Society of NSW v Foreman (1994) 34 NSWLR 408 at the Court held at p 441: "In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done." 1. We consider our finding, as to the extent of Dr Mooney's departure from proper standards, to be of very great weight in our consideration of the appropriate protective Orders which must have the effect of denouncing such misconduct as a deterrent to Dr Mooney, as well as to the general body of practitioners and to also maintain public confidence in the standards of the profession. (see Do). Insight, remorse and reform 1. Dr Mooney asks us to accept that he now has insight into the wrongfulness of his actions, is remorseful and has reformed. 2. As we have said, we have evidence and statements from people who have had a close relationship with Dr Mooney and they have seen that he has made improvements to his lifestyle which have improved his mental state, and they believe him to be remorseful for his actions. 3. We take into account that, as we have recounted, Dr Mooney has attempted to reflect on his mistakes, to gain insight into the errors he made and to implement measures to ensure he do not make the same errors in future. 4. In addition we accept that Dr Mooney has, through his pro bono work, demonstrated a commitment to giving back to communities in which there is significant unmet need. 5. We accept, as recounted by several witnesses and Dr Mooney himself that there were many serious stressors on his life which escalated from early 2017 to late 2018. These included separation from his then wife in around 2014 followed by acrimonious Family Court proceedings, the deaths of patient A and patient B, the consequential extensive adverse media publicity, professional shaming, the damage to his practice, death threats and the loss of a defamation case. 6. We also accept that Dr Mooney is now remorseful for his role in the deaths of patient A and patient B. He has made changes to his practice to address the shortcomings in his practice and operation procedures. We of course take these into account in formulating the appropriate protective Orders. 7. We do not however place as great weight on Dr Mooney's insight and remorse in relation to the other matters, being the boundary violation with patient C and his breaching of conditions and misleading the authorities. 8. When Dr Mooney misled the s 150 Inquiry on 1 February 2017 about his relationship with patient C, he also told the delegates that he was remorseful and ashamed and realised it was the wrong thing to do. On 25 June 2018, after he was confronted with the telephone records, he accepted that the friendship was wrong and said he understood it was boundary crossing. 9. Dr Mooney told us that he knew his relationship with patient C was inappropriate even before they had started texting each other. 10. We are satisfied that Dr Mooney knew his conduct was wrong when it occurred. 11. The last issue is Dr Mooney's breach of conditions and the misleading of the authorities in 2017 and 2018. 12. Counsel for Dr Mooney asked us to find that as a result of the stressful events in all domains of his life at that time, Dr Mooney's judgement and capacity to give accurate information was affected. He relied on the opinion of Dr Farago. In his first report Dr Farago concluded that: "Specifically in the period from June 2018 to December 2018 Dr Mooney at times had overwhelming anxiety. As such his ability to recall facts in detail, when put under stress such as that occurring in a disciplinary hearing would have been impaired. Further, his condition would have impacted his understanding of the need to strictly and fully adhere to registration conditions." 1. When giving evidence Dr Farago added that, by reason of this stress, Dr Mooney was impaired by a psychological defence mechanism which impacted on his judgment and recall of events. 2. While there may be such a mechanism, we do not consider it useful in understanding the conduct of Dr Mooney. 3. We do not accept that it explains why Dr Mooney chose to mislead the Medical Council in February 2017 about the extent of his relationship with patient C. When giving evidence, Dr Farago said he thought the stress of giving evidence would have caused a psychological defence mechanism. We note that in his report, Dr Farago said Dr Mooney's overwhelming anxiety started in June 2018. Insofar as Dr Farago could be suggesting that any such condition had started earlier and impacted on Dr Mooney's recall of events in February 2017, we prefer the explanation given by Dr Mooney in his statement dated 1 June 2020 when he said: "270 At the time I gave evidence at the Inquiry on 1 February 2017, I was shocked and confused about what was happening. I had been informed of the proceedings either on Friday 27 January or Monday 30 January and I had little time to collect my thoughts about what had happened with Patient C. I was aware that my registration as a medical practitioner could possibly be suspended at the Inquiry. I felt very embarrassed and ashamed at possibly having to explain to my family, staff and colleagues that I could no longer work as a medical practitioner. I was very concerned about how I would manage financially and how I would support my two children. 271 When I gave evidence at the Inquiry as to the extent of my social contact with Patient C I knew that I had spoken Patient C by phone and texted her on many occasions, although I did not really realise the frequency of the calls or the extent. I did not disclose this information when I gave evidence. I knew it would be harder to explain this contact to the panel at the inquiry and regrettably, I made the decision not to do so." 1. Further, Dr Mooney accepted, at the Stage 2 hearing, that in February 2017 and March 2018 he made a deliberate decision not to inform the authorities of the full extent of his relationship with patient C. 2. We accordingly have already found that Dr Mooney made a deliberate decision to mislead the authorities in relation to patient C. While we accept that Dr Mooney would have found the investigation stressful, his evidence shows that, at the time, he weighed up the possible consequences of a finding against him and chose not to disclose the situation. We take this conduct into account in formulating the appropriate protective Orders. 3. Lastly there is Dr Mooney's conduct from October 2018 in relation to breaching the conditions on his registration and then misleading the authorities in relation to those breaches. 4. Again, we decline to find that this occurred because Dr Mooney was impaired by a psychological defence mechanism which impacted on his judgment and recall of events for the following reasons. 5. We take into account the qualifications Dr Farago volunteered in relation to this diagnosis. He said his sessions with Dr Mooney had focused on the future, not the past. When he was asked about Dr Mooney's condition at a particular date he said there is no need to look at minutiae. He conceded that when Dr Mooney told the Medical Council that he had only seen a couple of patients and went home early this could have been due to either a psychological defence mechanism or a deliberately misleading of the Council. 6. In our view, as conceded by Dr Wright, a psychiatrist qualified to give evidence in these proceedings, Dr Mooney's conduct can be explained either by deliberate lying or by poor decision making caused by his mental state. 7. We are satisfied that Dr Mooney deliberately lied to try and hide his breach of the hair testing condition for the following reasons: 1. He did not just omit or minimise facts. He told the Medical Council he was sick while in fact he was doing his usual work. 2. He did not just mislead the Medical Council when under the stress of being asked to explain what had happened, he misled his treating general practitioner twice and his psychologist as to his work capacity at the time. [12] 3. In addition Dr Mooney misled the HCCC in writing, in circumstances where we consider he would have been under less stress and, we infer, would have had more time to reflect on the accuracy of his answer. 4. We accept the opinion of Dr Wright who said that Dr Mooney was not used to being challenged and did not treat the Inquiries with the respect they deserved. The fact that he had done so on multiple occasions in multiple ways was consistent with Dr Mooney being antagonistic and angry with the process. It was not until matters had escalated to a formal hearing (being these proceedings) that he appreciated the significance of his deceptions. We take this conduct into account in formulating the appropriate protective Orders. 1. In addition, we are satisfied that Dr Mooney's failure to concede at the Stage 1 hearing that his misleading of the Medical Council was deliberate shows that, at that time, he still did not fully accept responsibility for or appreciate the criticism of his conduct. Further, there is no satisfactory explanation for Dr Mooney acknowledging, two months later in a statement made for the Stage 2 hearing, that it was deliberate. We accept the submission made by counsel for the HCCC that this raises concerns about the extent to which Dr Mooney has properly or completely reformed, from both an ethical and clinical perspective. We make this finding solely in relation to Dr Mooney's insight and reformation on this issue, acknowledging that a practitioner is not to be punished for seeking to put the HCCC to proof or defending aspects of a Complaint. 2. In making our decision we bear in mind one of the relevant considerations in a case such as this, where the practitioner's conduct points to a defect of character in the legal, not the medical sense: "Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct". [13] Extra curial punishment 1. There is evidence that the deaths of the two patients and the consequent publicity had a significant impact on Dr Mooney's practice and his mental health. 2. In Health Care Complaints Commission v Buys (No 3) [2020] MSWCATOD 102 at [17], the Tribunal commented: "The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made" 1. We find that in this case, this issue has very little weight. In one sense it flows from the misconduct. In addition it is inconsequential in proportion to Dr Mooney's misconduct. [14] Specialist expertise 1. The HCCC accepts that the availability of a practitioner's special skills may be a relevant consideration when determining appropriate protective orders. 2. We accept the submission made by counsel for the HCCC. We have already accepted that Dr Mooney has, through his pro bono work, demonstrated a commitment to giving back to communities in which there is significant unmet need. We acknowledge other work that he is already doing and plans to do will be of great benefit to other communities. However the evidence is not to the effect that, unless he does that work, it will not be done at all. 3. This consideration needs to be weighed in the balance of matters contributing to our decision. Decision 1. Dr Mooney has shown a commitment to addressing the issues raised by the Complaints. However, taking into account the seriousness of the conduct, the need for general deterrence, the maintenance of confidence in the medical profession and the necessity to give Dr Mooney an opportunity to complete the journey into gaining full insight we have decided to cancel, not suspend, his registration. We disqualify him from being registered in the medical profession for a period of one year from the date of these Orders. Costs 1. The HCCC seeks its costs of both the Stage 1 and Stage 2 hearings. 2. Clause 13 of Schedule 5D of the National Law provides: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. 1. As a general rule, costs of proceedings before the Tribunal should follow the event. [15] 2. There are factors which might militate against the recovery by the HCCC of all of its costs in particular proceedings. [16] Counsel for Dr Mooney did not submit that there were any such factors in these proceedings. Orders 1. Pursuant to s 149C(1)(b) of the National Law, Dr Mooney's registration as a medical practitioner is cancelled. 2. Pursuant to s 149C(7) of the National Law, Dr Mooney may not apply for a review of Order 1 for a period of 12 months from the date of this decision. 3. Dr Mooney to pay the costs of the HCCC of the proceedings. ********** Endnotes 1. Health Care Complaints Commission v Mooney [2021] NSWCATOD 206 (Stage 1 decision). 2. As in the Stage 1 decision, we have used the expression "unsatisfactory professional conduct" to refer to the definitions in s139B of the National Law. See Stage 1 decision at [454]. 3. Stage 1 decision at [421] – [450]. 4. Stage 1 Decision at [452]. 5. Health Practitioner Regulation National Law (NSW) (National Law), s 149C(1)(b). 6. National Law, s 149C(7). 7. National Law, s 149A. 8. National Law, s 149B. 9. Stage 1 decision at [421] – [450]. 10. Good medical practice: a code of conduct for doctors in Australia, Guideline issued by the Medical Board of Australia at 2.1. 11. At 638C. 12. Stage 1 decision at [375], [380] and [382]. 13. Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. 14. Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 at [195] – [196]. 15. HCCC v Philipiah [2013] NSWCA 342 at [42]. 16. HCCC v Philipiah [2013] NSWCA 342 at [42]. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2022