Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mooney v Medical Council of NSW [2024] NSWCATOD 24 Hearing dates: 16 and 17 October 2023 Date of orders: 11 March 2024 Decision date: 11 March 2024 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr H North, Senior Member Dr A Eyers, Senior Member D Telford, General Member Decision: 1. The Tribunal makes a "reinstatement order" under s 163B(1)(c) of the Health Practitioner Regulation National Law in respect of Mr William Mooney. 2. Within 21 days of the date of this decision, the Medical Council of NSW is to lodge with the Tribunal and serve on Mr Mooney written submissions on the conditions that should be imposed on Mr Mooney's registration and as to costs. 3. Within 21 days of being served with those submissions, Mr Mooney is to lodge and serve written submission in reply and as to costs. Catchwords: OCCUPATIONS — medical practitioners — application for reinstatement Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Bahramy v Medical Council of NSW [2017] NSWCATOD 146 Dawson v Law Society of NSW [1989] NSWCA 58 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Mooney [2021] NSWCATOD 206 Health Care Complaints Commission v Mooney [2022] NSWCATOD 44 Jan v Health Care Complaints Commission [2021] NSWSC 350 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Nil Category: Principal judgment Parties: William Mooney (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: T Rickard (Applicant) K Richardson SC / I Fraser (Respondent) Solicitors: Health Professional Councils Authority (Respondent) File Number(s): 2023/00130761 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Since 2013, Mr Mooney has been the subject of various complaints and hearings before the Medical Council and the Tribunal. In April 2022 the Tribunal cancelled his registration as a medical practitioner and prohibited him from reapplying for 12 months: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44 (Mooney stage two). Mr Mooney now applies for his registration to be reinstated. The Tribunal's task is to determine the appropriateness of an order reinstating Mr Mooney as a medical practitioner: Health Practitioner Regulation National Law (NSW) (National Law), s 163C(1). 2. Before his registration was cancelled, Mr Mooney practised as an ear nose and throat (ENT) surgeon. He was first registered in December 1990 and worked as a Visiting Medical Officer at various hospitals from 2003 to 2017. Beginning in 2006 Mr Mooney established private practices where he offered facial and laser treatments and cosmetic injectables. He also had clinics in Melbourne and Darwin. 3. The Medical Council submits that Mr Mooney is not a fit and proper person to practise as a medical practitioner and that the Tribunal should dismiss the reinstatement application with costs: National Law, s 163B(1)(a). 4. The main basis for the Medical Council's submission is that given his past history of misleading authorities, and his allegedly dishonest or misleading conduct since his registration was cancelled, Mr Mooney cannot be trusted to practise in an ethical manner. The Medical Council relied on Mr Mooney's allegedly misleading responses to a police officer when he was arrested for possession of cocaine 6 months after his registration was cancelled. He pleaded guilty in the Local Court to possessing a prohibited drug. No conviction was recorded and Mr Mooney was sentenced to a conditional release order for 12 months. The Medical Council also relied on other examples of allegedly dishonest or misleading conduct since his registration was cancelled. 5. Mr Mooney says he has worked hard to gain insight into what he has done and has now completed that journey. He submits that the Tribunal should make a reinstatement order subject to various conditions. 6. As well as questions as to his honesty, we have addressed other areas of proven misconduct including deficiencies in Mr Mooney's treatment of patients and forming an inappropriate relationship with a vulnerable patient. Those areas were not as contentious as Mr Mooney's past history of misleading authorities and the Tribunal. 7. We have decided that it is appropriate to make a reinstatement order. 8. To explain our decision we have addressed the following questions: 1. What is the scope of the Tribunal's jurisdiction to make a reinstatement order? 2. What is the legal test for determining whether to make a reinstatement order? 3. What are the areas of misconduct that led to the cancellation of Mr Mooney's registration? 4. Is it appropriate to reinstate Mr Mooney's registration? 1. We have directed the parties to provide further written submissions as to any conditions that should be attached to Mr Mooney's registration. What is the scope of the Tribunal's jurisdiction to make a reinstatement order? 1. Mr Mooney may apply to the Tribunal for a review of the Tribunal's decision as it is a decision that his registration be cancelled: National Law, s 163A(1)(b) and see definition of "relevant order" in s 163A(4). Section 163C of the National Law sets out the nature of the Tribunal's inquiry. The review is not a review of the Tribunal's decision to make the order, or any findings the Tribunal made: National Law, s 163C(2). 2. The Tribunal's powers on review include dismissing the application or making a reinstatement order: National Law 163B. 3. Mr Mooney is applying for the Tribunal to make a reinstatement order under s 163B(1)(c) of the National Law. A reinstatement order is an order that the person may be registered if the person applies to the National Board and the National Board decides to register the person: National Law, s 163B(3). Such an order may be made subject to conditions: National Law, s 163B(4) and Jan v Health Care Complaints Commission [2021] NSWSC 350 at [64] . What is the legal test for determining whether to make a reinstatement order? 1. We must determine the "appropriateness" of an order reinstating Mr Mooney as a medical practitioner: National Law, s 163C(1). In Jan v Health Care Complaints Commission [2021] NSWSC 350 at [21], Leeming JA clarified that the Tribunal's opinion as to whether the applicant is a fit and proper person will inform its consideration of "appropriateness" but that is not the stand alone test. 2. The paramount consideration when assessing whether it is appropriate now for Mr Mooney's registration to be reinstated is the protection of the health and safety of the public: National Law, s 3B. We must also keep in mind the objectives of the national registration and accreditation scheme which include "ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3(2)(a). 3. The purpose of the jurisdiction is not to punish Mr Mooney: Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. There is no public interest in denying forever the chance of redemption and rehabilitation to a former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance: Dawson v Law Society of NSW [1989] NSWCA 58 at 16; Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. 4. The starting point for deciding whether to make a reinstatement order is to consider the findings of the previous Tribunal and determine whether the shortcomings identified have been addressed and overcome: Bahramy v Medical Council of NSW [2017] NSWCATOD 146 at [53]. 5. The onus is on Mr Mooney to demonstrate that he can practise in a competent and ethical manner: Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18]. "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461; Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. 6. Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether Mr Mooney has proved that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]. What are the areas of misconduct that led to the cancellation of Mr Mooney's registration? 1. On 10 December 2021, the Tribunal found that Mr Mooney had engaged in professional misconduct: Health Care Complaints Commission v Mooney [2021] NSWCATOD 206 (Mooney stage one). In summary, the proven misconduct was as follows: 1. forming an inappropriate personal relationship with patient C from 2013 to early 2016 and unjustifiable prescribing; 2. deficiencies in the care and treatment Mr Mooney provided to patient A and patient B; and 3. misleading authorities and breaching conditions. 1. In the stage two hearing, the Tribunal characterised this misconduct as being "egregious departures from proper standards across a broad range of duties which a doctor owes to his patients and the public": Mooney stage two at [59]. The misconduct "occurred over a lengthy period": Mooney stage two at [64]. 2. We elaborate on each of these areas of misconduct below. We deal firstly with Mr Mooney's relationship with patient C and the deficiencies in the care and treatment of patient A and patient B. 3. We then turn to the main focus of our decision which is whether the responses Mr Mooney gave to police at the time of his arrest, together with other examples of allegedly misleading conduct since his registration was cancelled, mean that he should not be reinstated. Forming an inappropriate relationship with patient C and unjustifiable prescribing Tribunal's findings 1. On 4 October 2013, when he was 47 years old, Mr Mooney commenced an inappropriate personal relationship with patient C, a 22-year-old vulnerable patient. That relationship continued for more than two years. Mr 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 had not taken steps, either before or after the prescribing, to ensure that it was safe for patient C to take the medication. 2. The Tribunal concluded that this kind of boundary crossing "is an abuse of the doctor-patient relationship" because it "undermines the trust and confidence of patients in their doctors and of the community in the medical profession". It can also cause significant and lasting harm to patients: Mooney stage 2 at [62]. Mr Mooney's evidence 1. Mr Mooney says he clearly understands the inappropriateness of his relationship with patient C and the harm it caused her. He realises that he put his needs ahead of those of a vulnerable patient. He says he is now fully aware of the risk factors, particularly when under stress and has developed a stress response plan to cope with future stress. Expert evidence 1. Dr Farago, Mr Mooney's treating psychiatrist, has seen Mr Mooney on more than 90 occasions and continues to do so on a monthly basis. He has explored at great length the issues around the inappropriate relationship with patient C. His opinion is that Mr Mooney understands that the relationship was an abuse of the doctor/patient relationship and harmed Patient C. Dr Farago is confident that Mr Mooney would not enter into another inappropriate relationship. 2. The Medical Council submits that we should give Dr Farago's evidence little or no weight. That submission relates more to Dr Farago's opinions about whether Mr Mooney is likely to be untruthful to authorities rather than whether he is likely to form inappropriate relationships. We accept Dr Farago's evidence that, for the reasons he gives, it is unlikely that Mr Mooney will enter into another inappropriate relationship. 3. Dr Farago's evidence is supported by Dr Ventura, a psychiatrist who was asked to give evidence by the Medical Council. Dr Ventura's expert opinion was that Mr Mooney did not seem to act in a predatory manner towards vulnerable people or patients. His relationship with patient C began when he was going through a stressful marital separation and was suffering from an adjustment disorder and a depressive disorder. According to Dr Ventura, Mr Mooney does have some psychological vulnerabilities which in times of stress may contribute to the potential for him to act in an unprofessional manner. For example, Mr Mooney's strong urge to please others in order to avoid an underlying profound sense of shame led him to acquiesce to patient C's request for Duromine. 4. Dr Ventura stated that Mr Mooney is aware that it was inappropriate for him to engage in a relationship with patient C but he still placed a lot of the blame for the boundary transgression on her. Dr Ventura elaborated on that opinion in oral evidence saying that while Mr Mooney could articulate that he had exploited patient C, he said that she was the one 'coming on' to him and making demands on him for scripts. The fact that Mr Mooney did not take full responsibility for his own conduct led to Dr Ventura's opinion that Mr Mooney had only "partial insight" into the reasons for his behaviour. More work is needed before it can be said that Mr Mooney has full insight. Dr Ventura recommended ongoing and more frequent psychotherapy from a person who is appropriately trained. 5. Dr Ventura's overall opinion was that there is not a high risk of Mr Mooney engaging in inappropriate relationships if he is re-registered. Conclusion 1. We agree with Dr Farago's and Dr Ventura's assessments. While there is not a high risk that Mr Mooney will engage in inappropriate relationships if re-registered, we note Dr Ventura's opinion that 'more work is needed'. In those circumstances, our preliminary view is that it would be appropriate to place a condition on Mr Mooney's registration that he engage further psychotherapy on this issue. Parties have been directed to provide further submissions as to the need for such a condition and its precise scope. Deficiencies in the care and treatment of patient A and patient B Tribunal's findings 1. When operating on patient A in February 2018 to address his snoring, Mr Mooney noticed a little bleeding but thought he had stopped it. Patient A underwent emergency surgery two days later for a recurrent haemorrhage. During the operation he had a heart attack and later died without regaining consciousness. The Tribunal found that Mr Mooney performed the operation in an inappropriately short time and did not personally review patient A on the two days patient A stayed in hospital after the operation even though he knew he had bled during the operation. 2. The Tribunal found Dr Mooney's failure to personally review patient A on those two days to be a very significant departure from 'proper' or 'reasonably expected' standards and to constitute professional misconduct: Mooney stage one at [424]. 3. Mr Mooney performed a "Simple limited redo FESS" surgery on patient B on 24 November 2017. When operating Mr Mooney penetrated the bone below the brain and disrupted an artery causing bleeding into the right frontal lobe. Patient B later died without regaining consciousness. 4. The Tribunal found that Mr Mooney had become 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. This was a very significant departure from "proper" or "reasonably expected" standards and it constituted professional misconduct: Mooney stage one at [430]. The Tribunal also found that the operation was done with "reckless haste". 5. Based on the evidence given by Mr Mooney and his supervisors at the stage two hearing, the Tribunal found that he has satisfactory medical and surgical skills in relation to the areas of practice observed by his two supervisors: Mooney stage two at [28]. The Tribunal accepted that Mr Mooney is remorseful for his role in the deaths of patient A and patient B and that he has changed his practice and procedures to address those shortcomings: Mooney stage two at [61] and [74]. Mr Mooney's evidence 1. Mr Mooney says he has fully assessed the causes and issues associated with the deaths of patient A and patient B. Both cases have had a significant effect on him and he says he is extremely remorseful. He significantly revised his surgical practices and general management of patients and presented a plan for conducting future surgeries. 2. He has also kept his medical knowledge current by completing the necessary CPD points over the last 18 months. Mr Mooney plans to continue complying with CPD requirements and would like to attend rhinology and sinus surgery courses, especially those with cadaveric dissection. 3. Mr Mooney says that he is confident that he can undertake the surgeries he was previously allowed to do under supervision, without any further supervision requirements. He points to the fact that following his initial suspension in 2018 he was allowed to continue performing surgeries under supervision and performed over 200 surgeries without any significant incident. 4. However, with regard to functional endoscopic sinus surgeries (FESS), he would like to return to that surgery but accepts that some level of supervision for those specific surgeries would be appropriate for a period. He added that a colleague, Dr Phil Jumea, has offered him an initial 'return to surgery' placement for some weeks. 5. He would like to continue the informal mentor relationship he had with Dr Ian Cole, a senior ENT surgeon. Dr Cole said that he would be happy to offer to continue to act as a mentor or supervisor for Mr Mooney if he returns to work. Expert evidence 1. Prof Eisenberg, who was Mr Mooney's supervisor from August 2018 until April 2022, said that Dr Mooney's surgical work was as good or better than many of his colleagues. He had no hesitation in endorsing what he has seen. When questioned Prof Eisenberg expressed the view that during the period he was supervising him, Mr Mooney improved his practice in many respects by reducing the hours that he worked and devoting more time to community and family activities. 2. Dr Ventura recorded that Mr Mooney had acknowledged that he was "too rushed and failed to check up on his patients" which contributed to the deaths of those patients. Dr Ventura's opinion was that Mr Mooney had some psychological insight into the reasons behind his excessive workload. He described himself as someone driven by success and having to achieve. He enjoyed being wanted by patients and colleagues and was unable to say no to requests by patients and colleagues. He said he had worked through the issues in therapy. Conclusion 1. We are satisfied on the basis of the Tribunal's findings in the stage two decision and the evidence in these proceedings, that there would be no risk to the health and safety of the public if Mr Mooney were to perform the kind of surgeries he has performed in the past. We see his commitment to operate in a less rushed manner as genuine and also accept that he will reduce his hours if he returns to practice. There is no question as to his skill and competence as a surgeon however we note that the conditions on Mr Mooney's registration prevented him from performing the type of surgery he performed in relation to patient B ("Simple limited redo FESS"). Our preliminary view is that when determining appropriate conditions to be placed on Mr Mooney's registration, some form of supervision of these kinds of surgeries will be appropriate. Parties have been invited to make further submissions on that issue. Misleading authorities and breaching conditions Breaching the conditions on his registration to attend scheduled hair drug screening and lying about the reason for the breach 1. The reason the Medical Council imposed a condition on Mr Mooney's registration requiring drug testing was an allegation by patient C about his cocaine use in early 2014. There was no complaint before the Tribunal that Mr Mooney had used cocaine or any other drug and during a hearing before the Medical Council on 1 February 2017, Mr Mooney strongly denied ever having used drugs, including with patient C. He explained to the Medical Council that he uses cocaine during rhinoplasty surgery as a vasoconstrictor (drug causing the walls of blood vessels to narrow). (Rhinoplasty surgery changes the shape of the nose for either cosmetic reasons or to improve breathing.) 2. It was not necessary for the Medical Council to make factual findings as to whether Mr Mooney had taken cocaine. Nevertheless, in order to protect the health and safety of the public, the Medical Council placed conditions on his registration. Those conditions included not to prescribe for self-medication, not to self-administer drugs of addiction (including cocaine) and to undergo thrice weekly urine drug testing. 3. On 25 June 2018, the Medical Council convened a hearing to consider evidence which contradicted the evidence Mr Mooney had given during the hearing on 1 February 2017. The Council revisited the issue of possible drug use and placed additional conditions on his registration that he practise under Category C supervision, participate in quarterly hair drug screening and be assessed by a Council appointed psychiatrist. 4. In the stage one decision, the Tribunal found that Mr Mooney had breached the conditions on his registration requiring him to attend scheduled hair drug screening because he had: failed to attend the scheduled hair drug screening; worked as a doctor on five of the days that he had been certified as unfit to attend hair drug screening; provided illness certificates which covered more than three business days and failed to provide supporting information from his treating practitioner; and failed to attend for hair drug screening on the next business day following his illness: see summary in Mooney stage two at [16]. Deliberately misleading the HCCC, the Medical Council and the Tribunal 1. On 1 February 2017 the Medical Council considered whether to take action to protect the health and safety of any person under s 150 of the National Law. The Tribunal found that Mr Mooney's conduct was improper and/or unethical when he deliberately misled delegates of the Medical Council by saying: he could not remember whether he had ever prescribed Duromine to patient C but if he had, it would be in his notes; and that he had bumped into patient C occasionally on social occasions 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 participated in 807 phone calls. 2. The Tribunal found that Mr Mooney deliberately decided not to inform the authorities of the full extent of his relationship with patient C: Mooney stage two at [14], [75] and [85]. That conduct was improper and/or unethical. 3. The Tribunal found that Mr Mooney deliberately lied to hide the fact that he had breached the hair testing condition: Mooney stage two at [75] and [89]. The Tribunal concluded that Mr 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": Mooney stage two at [63]. 4. At the stage one hearing, Mr Mooney did not admit that he had deliberately misled the Medical Council. It was only after the Tribunal made that finding, and prior to the stage two hearing, that he admitted that he had done so. In Mooney stage two at [91] and [92], the Tribunal found that this raises concerns about the extent to which Mr Mooney had reformed from an ethical and clinical perspective. The Tribunal was of the view that such conduct pointed to a defect in character and Mr Mooney would have to satisfy the Tribunal in any application for reinstatement, that he had overcome that defect. 5. It is against this background of proven dishonesty that we must assess whether Mr Mooney can now be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. Mr Mooney's conduct since registration is relevant to that question. The Medical Council highlighted the following conduct: 1. amendments to his professional website after cancellation; 2. representations to the Magistrate who sentenced him for drug possession and to the Tribunal about his drug testing history; 3. representations to the Magistrate who sentenced him for drug possession as to his attendance at Narcotics Anonymous; 4. responses to the police officer who arrested him for drug possession; and 5. the accounts he gave to treating doctors, expert witnesses and the Tribunal about his interaction with the police officer. Amendments to website after cancellation 1. Mr Mooney was advised following his deregistration that he should not hold himself out as a doctor while deregistered. He was cross-examined about the changes he made to his professional website. We find that Mr Mooney sought to minimise the impact on his reputation and any future business by amending the homepage of his website to imply that it was his choice to step away from clinical practice for a short while. That explanation was not the whole truth, but he was not obliged to tell the public on his website that his registration had been cancelled. He was also careless, rather than dishonest, in failing to amend the subsequent pages of the website to delete any reference to him being a doctor. Mr Mooney has not behaved dishonestly or unethically in these respects. Representations about drug testing history 1. Mr Mooney made two representations to authorities, one to the Local Court and one to the Tribunal. Mr Mooney's lawyers told the Magistrate at the sentencing hearing for drug possession that "there's no positive tests in any of that. He's not a drug user". According to Mr Mooney, his lawyer's advice was that he did not need to reveal the positive hair drug tests because of the small amounts involved. He only needed to tell the Local Court about the results of the urine testing. In his submission, the Magistrate was not misled in any material way as she only wanted to know whether he was a drug user. 2. Mr Mooney apologised to the Tribunal for not mentioning to the Local Court that he did have positive tests for the hair results, even if they were trace amounts. 3. Mr Mooney maintained in his supplementary statement to the Tribunal that all his drug tests were negative. Dr Mooney apologised for what he referred to as an 'oversight' in making that statement and says that he should have included the five hair tests which recorded trace positive results. He clarified in oral evidence in these proceedings that he had not had a positive test for recreational drug use in six years and that "all his test results ... have proved negative". The five hair tests returned a "trace positive" result for cocaine which he attributes to occupational exposure. 4. Mr Mooney had positive results for cocaine in hair drug tests on five occasions between October 2018 and February 2021.The results of the hair tests were as follows: testing on 9 October 2018 recorded 142 pg/mg of cocaine; testing on 24 September 2019 recorded 123 pg/mg of cocaine; testing on 8 January 2020 recorded 413 pg/mg of cocaine: testing on 29 April 2020 recorded 85 pg/mg of cocaine; and testing on 17 February 2021 recorded 205 pg/mg cocaine. 5. Mr Mooney said that the "accepted cut off" for cocaine is 50 pg/mg and his results were 40 pg/mg. There was no other evidence about what constitutes trace amounts that could be attributed to occupational exposure. We make no finding about what constitutes a trace amount or whether these readings can be regarded as trace amounts. 6. The Medical Council strongly advised Mr Mooney to take every precaution to limit contamination from his environment but took no further action in relation to any of these results. 7. Mr Mooney submits that we should accept his explanation that his understanding has always been that the primary purpose of drug testing is to detect recreational use. In that context, the use of the word "all" in his supplementary statement is accurate. In his submission, the medical authorities have known about the five positive tests and, in July 2021 the Medical Council accepted that they were the result of occupational exposure. 8. The Medical Council did not formally accept that the results were the result of occupational exposure. Their letter of July 2021 notes that Mr Mooney considered the result to be from occupational exposure and confirms that the Medical Council intends to take no further action. Nevertheless, we agree with Mr Mooney's submission that if the Medical Council was concerned that he was using cocaine recreationally, it would have taken some action instead of merely warning him to limit contamination from his environment. 9. The representations Mr Mooney made to the Tribunal and the Local Court about the results of drug tests were misleading in the sense that Mr Mooney was not telling the whole truth about those test results. However, the Medical Council did not take any action in relation to those results except to emphasise the need to take precautions to limit contamination. These matters do not reflect adversely on Mr Mooney's honesty or integrity. They do not lead us to conclude that Mr Mooney cannot be trusted to practise in a way that conforms to the professional standards expected of a health practitioner or that he presents a risk to the safety of the public and their confidence in the profession. However, we do note, and agree with, the Medical Council's advice that Mr Mooney should take every precaution to limit contamination from his environment. Representations about attendance at Narcotics Anonymous 1. In a letter written by Mr Mooney and provided to the Local Court, he stated that, "I have attended NA meetings and seen the damage and destruction that drugs cause peoples' lives. It was shocking and saddening." When asked by the Magistrate why he had attended Narcotics Anonymous if he was not a drug user, his lawyer replied that there was "a healthy degree of self-punishment, self-flagellation in all of this" and referred to Mr Mooney having to "front the Medical Board again in approximately four months' time." 2. Mr Mooney gave evidence to the Tribunal that "we did not attend as participants but viewed two meetings online for education purposes at the recommendation of my counsel". The Medical Council submits that the Local Court was provided with a picture in relation to Mr Mooney's attendance at Narcotics Anonymous that was misleading. Mr Mooney denied that he had overstated the circumstances of his "attending" Narcotics Anonymous meetings so that the Magistrate would take that into account. 3. Mr Mooney was guided by his lawyers in respect to the information provided to the Local Court. To say he had "attended" Narcotics Anonymous meetings, when he had attended two meetings online, was accurate but it did not paint the full picture. However, this is a minor and insignificant instance of a less than fully frank statement. We do not regard it as an instance of dishonesty or behaving unethically. Response to police when arrested for drug possession Evidence and credibility 1. By negotiation between the prosecution and Mr Mooney's lawyer, Mr Mooney pleaded guilty and parts of the police Fact Sheet were redacted before it was presented to the Local Court. The redacted words are in italics in the extract of the Fact Sheet reproduced below: Suspecting that a drug transaction had occurred, investigators exited their vehicle to stop the accused. Whilst walking over to the accused, investigators displayed their identification badge whilst exclaiming "police". The accused stopped on the gutter just before the footpath and was observed to reach behind his back and move his arms in a throwing motion. Investigators immediately thought he had just thrown something on the floor. The accused was directed to keep his hands in front of him and step away from the gutter and onto the footpath. Investigators introduced themselves by way of name, warrant card, badge and place of work. Police questioned the accused as to what his interaction was in the vehicle he had just gotten in for a brief moment to which he answered with words to the effect of, "I thought it was my Uber, I was going to the bottle shop, but it wasn't my Uber". Police asked the accused for identification to which he could not produce as he had left his wallet in the unit. The accused was also inappropriately dressed to go to the bottle shop as he was dressed in boxing drawers. At this stage investigators found his versions hard to believe due to their observations and suspected he may be in the possession of a prohibited drug. The accused was submitted to a search with nil find. Police directed the accused not to move and went to the gutter where he was initially stopped, located right where the accused was standing was a small sealed plastic bag containing cocaine. Subsequently, the accused was arrested and cautioned in relation to the cocaine. The accused repeatedly stated that police could not prove it was his as it wasn't found on him. 1. We find Constable Constantinou to be a credible witness. He recorded the events of that evening in a COPS Event document at 12.25 am, just over two hours after the incident. The details of what happened would have been fresh in his mind. He prepared the Fact Sheet, which was in the same terms as the COPS Event four days later. Constable Constantinou provided a statement adding further details to the version of events in the unredacted Fact Sheet and was cross-examined. 2. Mr Mooney says that he asked for the words in italics to be redacted before being presented to the Local Court, because they did not reflect his recollection of what had happened. Constable Constantinou's evidence was that he was prepared to delete those matters because they were not necessary to prove that Mr Mooney was guilty of possessing prohibited drugs. His reason for deleting them was not that he agreed they were incorrect. 3. There is one minor respect in which we do not accept Constable Constantinou's evidence. He noted in the Fact Sheet that, "The accused was inappropriately dressed to go to the bottle shop as he was wearing boxing drawers." He meant the type of shorts a person would wear to bed. He could not recall what else Mr Mooney was wearing. Mr Mooney and his partner, Ms Wright, said they were hosting a birthday party that night and that Mr Mooney was wearing shorts with pockets, a shirt and shoes. 4. We do not accept Mr Mooney's submission that Constable Constantinou has confused Mr Mooney with another person who was wearing boxing drawers. The more likely explanation is that Constable Constantinou has mistaken the kind of shorts Mr Mooney was wearing with the kind of shorts a person would wear to bed. That mistake does not materially affect the reliability of his other evidence. 5. In his supplementary statement to the Tribunal Mr Mooney wrote: The event occurred at night, in the dark, without my glasses, when a plain clothes person was suddenly running and yelling at me. I was confused and scared. I didn't understand what he was saying or who he was. I do not recall seeing ID. I immediately thought I was being mugged. I threw the drugs away. I have no recollection of saying I thought the car was an uber. I deny I was wearing 'boxing drawers'. I was wearing regular shorts with pockets, a shirt and sneakers. I have never owned a pair of boxing drawers. Having discarded the drugs, I did not have any drugs on me. I said that I did not have drugs on me when initially asked. Once the immediate confusion subsided, I was completely frank, honest and co-operative with the police. I remain contrite, embarrassed and ashamed of that event. 1. Mr Mooney wrote a detailed statement to Dr Fisher about the circumstances of his arrest. As well as repeating some of the information in his supplementary statement, he said "I think I said I got into the wrong car" but added that he has no clear recollection of saying he got into an Uber or was going to the bottle shop. He also admitted saying, he didn't have any drugs on him. He added that this was true, but could see now that it could be seen as evasive. He has no recollection of denying that the drugs were his. 2. Although Mr Mooney described the redacted Fact Sheet as his "best recollection" of the events it is not intended as a complete record of everything that happened, nor is it Mr Mooney's own account. The redaction process was the only practical option for Mr Mooney's legal team to clarify and correct the errors he said Constable Constantinou had made. Unlike Constable Constantinou, Mr Mooney did not write down his version of events shortly after the incident and he did not give evidence to the Local Court. While he now has an overall impression of what happened, he does not fully recall all the details. 3. In his supplementary statement and in representations to medical practitioners Mr Mooney has added an explanation for his behaviour that he thought he was being mugged. His statement implies that he did not know the person approaching him was a police officer when he threw the drugs away. We will call this explanation "the mugging issue". There are also two areas of inconsistency between what Constable Constantinou said happened and what Mr Mooney remembers happening. The first is that Mr Mooney "repeatedly stated that police could not prove it was his as it wasn't found on him." Mr Mooney denies saying words to that effect and says that he admitted that the drugs were his. We will call that issue, the "possession issue". Secondly, Mr Mooney admits that he told Constable Constantinou that he got into the wrong car, but does not characterise this statement as misleading. We will call that matter the "wrong car issue". The mugging issue 1. It is not contested that at about 10 pm on 22 October 2022, police observed Mr Mooney standing in the middle of the road. A car pulled up and he got in. He paid the driver $300 for what was later identified to be 0.5 grams of cocaine. Mr Mooney got out of the car and started walking towards the apartment building where he lives. 2. Suspecting that a drug transaction had occurred, Constable Constantinou got out of an unmarked police car and, dressed in plain clothes, ran for about 20 to 25 meters towards Mr Mooney. When he was approximately five meters away Constable Constantinou slowed down to a walk, exclaimed "police" and displayed his badge. It is not in dispute that when Constable Constantinou was between 3 and 5 meters away, Mr Mooney stopped on the gutter, reached behind his back and threw the cocaine away. Constable Constantinou saw that happen. 3. Mr Mooney's version is that he saw a person running towards him in the dark yelling something and he thought he was being attacked by a mugger. He did not hear "police" being said clearly. He denies that he saw a badge being displayed. 4. We are satisfied that when he saw a person running towards him, Mr Mooney did not immediately realise that he was a police officer. Constable Constantinou was in plain clothes and it was dark. We accept that Mr Mooney does not recall seeing the police officer's identification at that stage. It is plausible that, for a moment, Mr Mooney thought he was being mugged. However, contrary to Mr Mooney's evidence, we find that he heard the person say 'police' when he was about 5 meters away. At that point he panicked and threw away the cocaine. Mr Mooney did not throw the cocaine away because he thought he was being mugged. The wrong car issue 1. Mr Mooney pleaded guilty to the charge of possessing cocaine and says that once the drug packet was retrieved he was "completely frank, honest and co-operative with police". While Mr Mooney was co-operative, we accept Constable Constantinou's evidence as to what he said. For the reasons we give below, some of Mr Mooney's responses were evasive and he did not tell the whole truth. 2. After Mr Mooney threw away the cocaine, Constable Constantinou directed him to keep his hands in front of him and step away from the gutter on to the footpath. Constable Constantinou says he then introduced himself and showed Mr Mooney his badge. Mr Mooney says he cannot remember him doing so. However, by that stage, he admits that he knew the person he was speaking to was a police officer. 3. Constable Constantinou searched him but nothing was found. Mr Mooney co-operated during the search. 4. Constable Constantinou then questioned Mr Mooney about what he was doing in the car. According to Constable Constantinou, Mr Mooney said words to the effect of, "I thought it was my Uber, I was going to the bottle shop, but it wasn't my Uber." Mr Mooney denies telling Constable Constantinou that he thought it was his Uber or that he was going to the bottle shop. He told Dr Fisher that he thinks he said, "I got in the wrong car". Whether Mr Mooney said he got in the wrong car, or it wasn't his Uber, is not material. Either way he was making an excuse as to why he had got into and out of a car so quickly. The possession issue 1. Constable Constantinou told Mr Mooney not to move while he searched the area where he had seen Mr Mooney throw the package. He found a small, sealed plastic bag. It was then that Constable Constantinou arrested and cautioned Mr Mooney. According to Constable Constantinou, Mr Mooney "repeatedly stated that police could not prove it (the bag of cocaine) was his as it wasn't found on him". In the letter he wrote to psychiatrist, Dr Fisher after the initial consultation, Mr Mooney stated that he has "no clear recollection" of denying that the drugs were his. 2. Mr Mooney admits that he told Constable Constantinou that he did not have any drugs on him. Whether Mr Mooney said, 'I don't have any drugs on me' or 'you can't prove the drugs are mine', the intended effect is similar. Mr Mooney agreed that that was an evasive answer because he had thrown the drugs away, but denied that he was being misleading or not frank. In our view, telling a police officer that you do not have any drugs on you, when you have thrown them away, is not only evasive, it is also misleading. 3. Mr Mooney says that when the drugs were found he admitted that they were his. There is nothing in the COPS Event or either version of the Fact Sheet to support that assertion. Mr Mooney did not claim to have made that admission in his statement to the Tribunal and Constable Constantinou rejected it in cross-examination. While Mr Mooney did plead guilty, we are not persuaded that he admitted that the drugs were his on the night of his arrest. In these respects, Mr Mooney's characterisation of his interactions with police as "completely frank, honest and co-operative" is not accurate. Representations to medical practitioners 1. Mr Mooney described his arrest to his psychotherapist Dr Hogan as an "error of judgement when in an attempt to protect his partner he was apprehended for a minor drug possession". He told his treating psychiatrist, Dr Farago, that he thought he was being approached by a mugger and that after his initial anxiety settled he was honest in his dealings with police. He also told him that he admitted to police on the night of his arrest that he had bought the drugs. 2. Mr Mooney told Dr Ventura that he did not accept that part of the unredacted Fact Sheet where it stated, "that the police have to prove that the drugs belonged to him". He also told her that he threw away the drugs because he thought he was going to be burgled and that he told the police that, "yes, the drugs are mine." Mr Mooney also told Dr Farago that he thought he was being approached by a mugger and that he admitted on the night that he had bought the drugs. Mr Mooney similarly misled his therapist Dr Hogan and Dr Fisher. 3. Before reaching a conclusion about whether to make a reinstatement order, we will consider what Mr Mooney has done to address his unethical behaviour, the nature and seriousness of the dishonesty we have identified and the opinions of expert witnesses and referees. What has Mr Mooney done to address his unethical behaviour 1. Mr Mooney professes to have gained complete insight into his past misdeeds and says he fully appreciates the importance of being scrupulously honest with authorities. He acknowledges that during the stage one and stage two hearings he referred to various stressors as being an excuse or partial explanation for his behaviour. He says he now fully accepts that those stressors do not excuse his behaviour and that there is no excuse for misleading authorities under any circumstances. 2. In order to ensure that he complied with conditions on his registration, Mr Mooney maintained an extensive compliance log covering the period he was subject to conditions from 2019 until his deregistration. He did not miss a drug test during that period and was fully compliant with all directions. 3. In his statements, Mr Mooney has set out in detail what he has been doing since his registration was cancelled. He began with a thorough and detailed review of the Tribunal's decisions and ensured that he understood all the issues raised. He acknowledges the extreme gravity of all these issues and fully accepts and respects the Tribunal's decisions. 4. After his registration was cancelled Mr Mooney made a detailed plan with Prof Eisenberg, his previous supervisor, as to ways in which he could rehabilitate himself and win back trust and respect. One aspect of the plan was to keep a personal journal recording his thoughts and reflections. The journal was in evidence. It demonstrates that Mr Mooney has thought very carefully over a long period of time about what led him to behave in the way he did. It also demonstrates his determination not to make the same mistakes again. 5. Mr Mooney has developed a stress response plan with his psychologist. He says it involves recognising the event, immediate contact with both psychologist and psychiatrist, his supervisor and colleagues, and openly discussing matters with family and friends. He says he has implemented that plan to deal with the impact of his deregistration, loss of his business and then his personal insolvency. 6. His plan for the year included, continuing psychological and psychiatric treatment, undertaking relevant courses of study and maintaining regular contact with his peers and mentors. He has also thought a great deal about returning to practice and how to best avoid the issues that have arisen in the past. 7. Mr Mooney continued to see psycho-therapist Dr Hogan and his treating psychiatrist, Dr Farago on a monthly basis. The focus of his sessions with Dr Farago was his dishonesty to the Medical Council and gaining full insight into these matters. In particular, that included recognising stressors and taking early action to ensure that the events of the past will not be repeated. 8. Mr Mooney has attended Continuing Professional Development meetings and maintained his CPD status. He is enrolled in an undergraduate degree in Philosophy at Macquarie University. He attended a weeklong ethics course offered through Monash University. Nature and seriousness of Mr Mooney's dishonesty since his registration was cancelled 1. According to the Medical Council, Mr Mooney has no insight into his conduct in taking possession of the drugs, describing it as a "misguided act of chivalry" and that his "motive was noble". Those statements are references to Mr Mooney's decision to collect the drugs himself instead of allowing his partner, Ms Wright, to do so. Mr Mooney's version was always that he was collecting the drugs for someone else. 2. Mr Mooney says he understands that collecting the drugs was a huge mistake and a grave error of judgment. He accepts that he is fully responsible for his actions. We agree with Dr Ventura's characterisation that collecting the drugs was a spur of the moment decision "based on the fact that he wanted to protect and not displease his partner". Dr Ventura referred to the need to please as part of his psychological vulnerability. 3. We give no weight to a comment by the Magistrate who sentenced Mr Mooney to the effect that the way he "dealt with the police was absolutely shameful". That comment was made at the beginning of the hearing. The Magistrate qualified that comment by saying "that's my take on it so far". In the reasons for the decision, the Magistrate did not mention anything about Mr Mooney's behaviour with police and the earlier reference to shameful conduct does not appear to have been a consideration when sentencing Mr Mooney. 4. For the reasons we have given, the only instances of alleged dishonesty which we consider to be material to our assessment, are our findings about Mr Mooney's responses to police and the fact that he perpetuated those accounts to health practitioners and the Tribunal. 5. The Medical Council describes these incidents as "serious" and submits that Mr Mooney's conduct is at odds with a number of his statements to the effect that there is no excuse for misleading authorities under any circumstances. 6. Mr Mooney often said he could not recall doing something or qualified his answers in some other way. He did not deny that he said he had got in the wrong car or that he said he did not have any drugs on him. Apart from claiming that he threw the drugs away because he thought he was being mugged and that he admitted the drugs were his, there is nothing in his evidence which is materially inconsistent with the facts as alleged by Constable Constantinou. We do not regard those inconsistencies as particularly serious when considered in context. We agree with Dr Ventura's view that even if Mr Mooney had lied to police when he was being arrested, that appears to have been an "impulsive reaction of someone who got caught breaking the law". She says it is more frequent than not that people deny that they have done anything wrong. 7. There is a considerable difference between the brief and impulsive interaction with police when faced with the possibility of arrest, and the deliberate and planned lies that Mr Mooney told medical authorities and the Tribunal. Evidence from referees and colleagues 1. References and letters of support were provided by Dr Ian Cole, Prof Robert Eisenburg, Dr George Caponas, Prof Stephen Bell, Mr David Coventry, Mr Philip Ward, Ms Ellen Nicholl and Mr Peter Vogel. Mr Mooney's partner, Ms Wright, also provided a statement in support of Mr Mooney. 2. Each of these people spoke very highly of Mr Mooney. Four referees were called to give evidence. Dr Cole 1. Dr Ian Cole, a senior ENT surgeon with whom Mr Mooney has an informal mentoring relationship, provided a reference. In his view Mr Mooney has "complete insight". However, he had not read the Tribunal's stage one or stage two decisions, and had not discussed the cancellation of Mr Mooney's registration with him. We do not give any weight to his opinions about insight. Prof Eisenburg 1. Professor Eisenberg, Mr Mooney's supervisor, could not recall any instances of Mr Mooney being dishonest with him during the period of supervision. He did not comment in his report about Mr Mooney's conduct after that time, for example during his arrest by police in October 2022. We rely on his evidence only to the extent that it relates to his skills as a medical practitioner and his honesty during the periods of supervision. Dr Caponas 1. Mr Caponas is an anaesthetist who worked with Mr Mooney for over 20 years. He was the anaesthetist for the procedures involving patient A and patient B. He is a close friend of Mr Mooney and provided a reference stating that the past 12 months has been "particularly transformative" for him. He did not mention the incident with police in October 2022 but said in oral evidence that Mr Mooney had told him that he discarded the cocaine "to diffuse the situation". When questioned further about that comment, Mr Caponas said he could not remember exactly what Mr Mooney had told him about what had happened on that night. 2. We were left with the impression that Mr Caponas was not attempting to recall what Mr Mooney had told him about what happened when he was confronted by police because he feared that it would not put his friend in a good light. He could not provide examples of Mr Mooney's "transformative" behaviour when asked. On that basis, we have given little weight to his opinion of Mr Mooney. Ms Wright 1. Ms Wright, Mr Mooney's partner, provided a reference and gave oral evidence. That evidence was supportive of Mr Mooney but given their relationship we do not place a great deal of weight on her opinions. Psychological and psychiatric evidence Weight to be accorded to expert evidence 1. Mr Mooney provided reports from his treating psychotherapist, Dr Hogan, his treating psychiatrist, Dr Farago and from a consultant psychiatrist, Dr Fisher. The Medical Council provided a report from psychiatrist Dr Ventura. 2. Dr Hogan has been Mr Mooney's psychotherapist since 2015. He was not available to be cross-examined on the opinions he expressed in his report as he was said to be on holiday in France. Nothing was produced in response to a summons to Dr Hogan for the clinical notes of his sessions with Mr Mooney. 3. Mr Mooney's lawyers submit that we should accept Dr Hogan's report into evidence. His lawyers pointed out that the Medical Council's cross-examination of Drs Fisher and Farago concentrated on the October 2022 incident with police and it is reasonable to assume that any cross examination of Dr Hogan would have had the same narrow focus. The majority of Dr Hogan's report was about Mr Mooney gaining insight into the complaints. That evidence that was unlikely to have been challenged and is highly relevant to the issue in these proceedings. 4. The Medical Council submits that the Tribunal should not accept Dr Hogan's report into evidence because he was not available for cross-examination and the only evidence about the reason for his unavailability was given by Mr Mooney's lawyers from the bar table. Furthermore, the contention that the cross-examination would have been narrowly focused is speculative. The Medical Council lists six areas from Dr Hogan's report that warranted exploration in cross-examination. 5. In our view, Dr Hogan's report should be admitted but only to the extent that it records that Mr Mooney has consulted with him over the period stated and discussed the topics described in the report. It would be prejudicial to admit Dr Hogan's opinions as to Mr Mooney's character and level of insight when the summonsed material has not been produced, Dr Hogan did not provide an explanation for his inability to attend and the opinions he provided cannot be tested. 6. Dr Farago, Mr Mooney's treating psychiatrist since March 2019, has explored issues around honesty, ethics and trust in detail with Mr Mooney. In Dr Farago's view, Mr Mooney has accepted that he made serious errors of judgment by providing misleading information and there was no excuse for doing so. He has expressed true remorse and full insight. Dr Farago does not consider the deliberate lies Mr Mooney told to be a defect in his character. Rather, he behaved in that way because he feared that he would lose his medical career. 7. As to Mr Mooney's interactions with police when being arrested for possession of cocaine, Dr Farago expressed the view that those events were a "lapse in Mr Mooney's judgment" and "did not indicate a failure of his rehabilitation". That opinion is based, in part, on accepting Mr Mooney's account which we have found to be misleading in some respects. Because Dr Farago's opinions were not based on a fully accurate account of Mr Mooney's behaviour on that night, we give his views on that issue little weight. 8. Dr Robert Fisher, a consultant psychiatrist, provided a report dated 20 September 2023 at the request of Mr Mooney's lawyer. It came to light during the hearing that Dr Fisher had provided two earlier versions, or drafts, of this report to Mr Mooney's lawyers who had passed them on to their client. 9. In an earlier version of the report seen by Mr Mooney, Mr Fisher wrote the following in response to the question as to how he interpreted Mr Mooney's behaviour on the night of his arrest for cocaine possession (noting that Mr Mooney denies that he lied to police): Mr Mooney says that when he got out of the drug dealer's car in the dark he was approached by a person in plain clothes who was shouting at him. He says he initially thought this person might have been a mugger and that this was a set up. He says he threw the plastic bag of cocaine into the gutter. Then one of the two people approaching "explained" that he was a plain clothed police officer and when he was asked whether he had any drugs in his possession he had said no as he had discarded the drugs. One of the two Regional Enforcement Squad officers recovered the cocaine and Mr Mooney was charged with possession. Strictly speaking, according to him, when he was asked about his possession of the drug he no longer had it on his person and so he might have been deemed not to have lied in response to that direct question. Nonetheless, he had paid for and taken possession of the cocaine and it is equally possible that he threw the bag of cocaine away suspecting the person who approached him might have been a policeman. The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie. (Italics added) 1. After seeing this draft version of the report, Mr Mooney wrote to Dr Fisher to give him a further statement. In that letter, as well as setting out in detail his version of what happened on the night of his arrest, he wrote: You said, 'The worst case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie". This is a possible interpretation but I honestly believe it is not the case. Of course I respect your need for impartiality in your report but wonder if surmising on the worst-case interpretation is in my fairest interest. 1. In an email exchange with Mr Mooney's lawyers Dr Fisher said that he would not remove his opinion regarding the worst case interpretation. Despite that assurance, he deleted the words, "The worst-case interpretation of Mr Mooney's response to the police is that he was attempting to avoid being arrested and told a lie" and substituted them with the words "I suspect that such action might be taken by many people caught in this sort of situation." 2. When questioned about that amendment, Dr Fisher said that the words in the previous paragraph (that it was "equally possible that he threw the bag of cocaine away suspecting the person who approached him might have been a policeman") conveyed the same message as the deleted sentence. 3. The words in the previous paragraph do infer that Mr Mooney's motivation in throwing away the bag of cocaine was to avoid arrest, but they do not carry the inference that Mr Mooney may have told a lie. Dr Fisher removed from his report the explicit suggestion that Mr Mooney may have lied to police and added an opinion that "such action" (throwing away drugs suspecting the person approaching him might have been a policeman) "might be taken by other people caught in this sort of situation". Those two modifications, which were made following Mr Mooney's representations, are more favourable to him than the possibilities and opinions expressed in the draft report. 4. The Medical Council submits that Dr Fisher's conduct falls far short of that required of an independent expert and that he has breached NCAT Procedural Direction 3, 'Expert Evidence' which states at [14]–[16]: General duty to the Tribunal 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party. 1. The Medical Council points to the fact that Dr Fisher did not disclose that Mr Mooney had been provided with a draft report and invited to comment on it, nor that there were two earlier versions of the report in existence. The proper process if an expert changes his or her view is to issue a supplementary report. 2. The Medical Council also submits that Dr Fisher's answers in cross-examination were contrary to his obligations as an independent expert. Specifically, Dr Fisher refused to accept that he had deleted the "worst case scenario" opinion and tried to suggest that the same sentiment was reflected elsewhere in the report when it was not. 3. In our view, the extent of Dr Fisher's departure from his obligations as an independent expert are relatively minor. Nevertheless, he has modified one opinion in way that is somewhat favourable to Mr Mooney and has not disclosed that change or provided a supplementary report. In those two respects, Dr Fisher has not met the high standards of impartiality expected of an expert witness. In those circumstances, we give that particular opinion ("I suspect that such action might be taken by many people caught in this sort of situation.") no weight and do not rely on the balance of his report. Dr Ventura's evidence 1. Dr Ventura, a psychiatrist, provided a report at the request of the Medical Council. In her view, Dr Mooney does not have any kind of mental illness or personality disorder that would predispose him to behave incompetently or unethically. She does not have any specific objection from a psychiatric perspective to Mr Mooney's registration being reinstated. 2. Dr Ventura expressed the opinion that Mr Mooney was very candid as to why he had misled medical authorities before his registration was cancelled. He did so because he did not want to be de-registered and lose his income. In her view, he had good insight into that behaviour. However, she added that while insight is a popular concept in medico legal settings, gaining insight does not necessarily cause behaviour to change a great deal. 3. In her report, Dr Ventura wrote that it would be highly unlikely for Mr Mooney to repeat any of his past mistakes. In oral evidence, when asked whether Mr Mooney would lie to authorities to get out of a troublesome situation in the future, Dr Ventura said that it was possible, but that opinion is not based on her expertise as a psychiatrist. Lying to police is not indicative of a personality disorder. The research suggests that if a person copes with stress in a certain way, for example by lying, they are more likely to behave in that way in the future. 4. Dr Ventura expressed the view that Mr Mooney's "psychological vulnerabilities may predispose him to become impaired in times of crisis." Those vulnerabilities include a need to please and a sense of shame. She considered that if a person such as Mr Mooney develops maladaptive behaviours to deal with stress, they can still be taught not to behave in that way by accessing appropriate psychotherapy. Dr Ventura recommends that if Mr Mooney is reinstated to practice, he participate in regular psychotherapy from an appropriately trained and qualified professional. That is also our preliminary view, subject to further submissions as to appropriate conditions. Conclusion 1. Mr Mooney now fully appreciates why he lied to and misled authorities before his registration was cancelled. He did so because he did not want to be de-registered and lose his income. Mr Mooney has not merely articulated an understanding of his obligations; he has put a considerable amount of time and effort into addressing his past unethical behaviour. While those efforts do not guarantee that he will not lie to authorities and the Tribunal in future, they demonstrate that he is genuinely committed to not repeating that behaviour. 2. Mr Mooney does not have any kind of mental illness or personality disorder that would predispose him to behave dishonestly or unethically in the future. 3. One indication as to how a practitioner will behave in future is evidence of how he or she has actually behaved. The two categories of dishonesty we have identified as relevant are misleading police and then misleading medical practitioners and the Tribunal about the circumstances of his arrest for the possession of cocaine. In our view, there is a significant difference in the nature and seriousness of these representations compared with the deliberate and planned lies Mr Mooney told medical authorities and the Tribunal. 4. The term "defect in character" is not routinely used by psychologists or psychiatrists. However, even if the lies he told to the medical authorities and the Tribunal can be characterised in that way, the two categories of conduct that Mr Mooney engaged in after his registration was cancelled are not serious enough to meet that description. We agree with Dr Ventura that it is highly unlikely that Mr Mooney will repeat any of the mistakes of the past. 5. In our view, Mr Mooney has proven that he can be trusted to practise in an honest and ethical manner and presents no risk to the safety of the public and their confidence in the profession. Conditions 1. Mr Mooney agrees to practise as a Specialist Otolaryngologist under Category C supervision for 12 months, to practise under mentor supervision for all other non-operating theatre practice and to work no more than 35 hours a week while under supervision. He also agrees not to self-medicate and to continue to see his treating psychiatrist and psychologist. In accordance with the Medical Council's request, we have made directions for the provision of further submissions on this issue. Orders 1. The Tribunal makes a "reinstatement order" under s 163B(1)(c) of the Health Practitioner Regulation National Law in respect of Mr William Mooney. 2. Within 21 days of the date of this decision, the Medical Council of NSW is to lodge with the Tribunal and serve on Mr Mooney written submissions on the conditions that should be imposed on Mr Mooney's registration and as to costs. 3. Within 21 days of being served with those submissions, Mr Mooney is to lodge and serve written submissions in reply and as to costs. Note: a "reinstatement order" is defined in s 163B(3) of the Health Practitioner Regulation National Law ********** 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 Amendments 13 March 2024 - Paragraph 39 - "Mr Mooney's" deleted and "Mr Mooney" inserted Paragraph 111 - "not" inserted after the word "do" and before the word "place" 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: 13 March 2024