Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mooney v Medical Council of New South Wales [2024] NSWCATOD 157 Hearing dates: On papers after 9 September 2024 Date of orders: 26 September 2024 Decision date: 26 September 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) A hearing is dispensed with. (2) The reinstatement order made on 11 March 2024 is subject to the following conditions: (i) To obtain Medical Council of NSW approval prior to changing the nature or place of practice. (ii) To practise only in an accredited teaching hospital approved by the Medical Council of NSW. (iii) To practise no more than a total of 35 hours per week. (iv) Prior to undertaking any surgical procedures, the practitioner must submit to the Medical Council of NSW written confirmation from the Royal Australasian College of Surgeons (RACS) that he has been approved to undertake a re-training/re-skilling program in accordance with the RACS, Re-skilling and Re­entry Program Guidelines. (a) The practitioner must also provide the Council with: (i) a copy of the RACS approved re-training/re-skilling program and (ii) evidence to the Council that a copy of the reports which led to this condition being imposed has been provided to RACS to inform the development of the re-training/re-skilling program. (b) The practitioner must not undertake any surgical procedures until he has provided evidence of approval to undertake a re-training/re-skilling program in accordance with the RACS, Re-skilling and Re-entry Program Guidelines, and confirmation that Council has noted this evidence to its satisfaction. (v) To practise under category B supervision for all other non-operating theatre practice in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) The terms of the Compliance Policy — Supervision are varied so that the practitioner is to meet with the Council-approved supervisor for a minimum of 1 hour face-to-face on a fortnightly basis for the first 6 months of supervision, and then monthly thereafter. (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: - Appropriate prescribing practices - Clinical outcomes - Medical record reviews - Surgical practice, including technique, decision-making, outcomes, complications, post-operative care, timing and patient-selection - Overall patient care and management - Progress with RACS Re-training/Re-skilling program (c) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other relevant report/decision as determined by Council. (d) Not to practise until a supervisor has been approved by the Council (vi) Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all surgical procedures performed in the operating theatre in the last month. The record must include the following: (a) the full name and date of birth of the patient (b) the date and start and finish time of each surgical procedure (c) the name and nature of the surgical procedure (d) Medicare item number (e) The facility where the surgical procedure was undertaken (f) any complications arising during and/or as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection). (vii) To undergo a Performance Assessment within 12 months of recommencement of practice. (viii) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. (ix) Not to prescribe for self-medication. (x) Not to self-administer any: (a) prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or (b) Narcotic derivative, non-prescription compound analgesic or cold medication; unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within seven days of being prescribed any such medication by his treating practitioner, the practitioner must: - notify the Medical Council of NSW. - provide written confirmation of the treatment from the treating practitioner to the Council. (xi) To attend for treatment by a psychiatrist. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: - Failure to attend for treatment; - Termination of treatment; or - A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. (c) authorise the Council to provide a copy of any relevant decisions which imposed this condition to the treating practitioner. (xii) To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: (a) urine drug screening three times per week, and (b) quarterly hair drug screening. (xiii) Not to possess, handle, supply or administer cocaine. Catchwords: OCCUPATIONS – medical practitioners – conditions on registration following reinstatement order - Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Mooney v Medical Council of NSW [2024] NSWCATOD 24 Category: Consequential orders Parties: William Mooney (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Rickard (Applicant) K Richardson SC / I Fraser (Respondent) Solicitors: Unsworth Legal (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2023/00130761 Publication restriction: Nil REASONS FOR DECISION Background 1. Mr Mooney was an otolaryngologist, also known as an ear nose and throat (ENT) specialist. On 21 April 2022 the Tribunal cancelled his registration as a medical practitioner and prohibited him from applying to be re-registered for 12 months: Health Care Complaints Commission v Mooney [2022] NSWCATOD 44 (the Stage 2 decision). When Mr Mooney applied to be re-registered, the Tribunal made a reinstatement order: Mooney v Medical Council of NSW [2024] NSWCATOD 24 (the reinstatement decision). In the reinstatement decision, the Tribunal directed the parties to provide submissions on the conditions that should be imposed on Mr Mooney's registration and who should pay the costs of the reinstatement application. 2. The Tribunal removed those directions after the Medical Council appealed from the Tribunal's Stage 2 decision. On 30 July 2024 the Court of Appeal delivered judgment dismissing the Medical Council's appeal: Medical Council of New South Wales v Mooney [2024] NSWCA 180 (the appeal decision). In the appeal decision at [138], the Court of Appeal concluded that: No error has been shown in the conclusion reached by NCAT that Mr Mooney is, subject to the imposition of appropriate conditions, able to be reinstated to practice in the medical profession. 1. The remaining issue is the conditions that should be imposed on Mr Mooney's registration as a medical practitioner when he is reinstated. We have decided that it is necessary to protect the health and safety of the public to impose several conditions. 2. As neither party applied for costs, we make no costs order. Each party will bear their own costs. 3. We have dispensed with a hearing and rely on the parties' written submissions: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50. Principles relating to the imposition of conditions Power to impose conditions 1. The Tribunal has power to impose conditions on a reinstatement order: Health Practitioner Regulation National Law (NSW) (National Law), s 163B(4). In deciding what conditions are appropriate, regard must be had to the objectives and guiding principles in the National Law. The most relevant objective is in s 3(2)(a): (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; 1. The main guiding principle is that "the protection of the health and safety of the public must be the paramount consideration": National Law, s 3A(1). Other guiding principles include that: (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. In summary, the Tribunal should impose conditions on Mr Mooney's registration which are necessary to protect the health and safety of the public. Circumstances leading to cancellation 1. The circumstances leading to the cancellation of Mr Mooney's registration are contained in Health Care Complaints Commission v Mooney [2022] NSWCATOD 44) (the Stage 1 decision) and the Stage 2 decision. In the reinstatement decision at [19] – [22], we briefly summarised the proven areas of misconduct: 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. 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]. Court of Appeal's observations 1. As to the appropriate conditions, the Court of Appeal made the following observations in the appeal decision at [139]: Mr Mooney is not a perfect individual, far from it. He continues to suffer from the flaws identified in the hearing before NCAT, and in particular, there is a chance he may continue to mislead professional authorities. But there was ample evidence to conclude, as NCAT did, that he can be trusted to practise in an honest and ethical manner, that he presents no risk to safety, and that his predilection to mislead may be addressed by appropriate treatment. As already noted, the absence of a risk to safety was found by NCAT and was not the subject of any challenge in this Court, while the conditions proposed (Category C supervision for Specialist Otolaryngological practice, mentor supervision for all other non-operating theatre practice, and, especially, to work no more than 35 hours a week while under supervision) appear to go far to address the remaining risks. 1. We must come to our own view about the conditions that are necessary to protect the health and safety of the public. Mr Mooney should only be able to practise in an accredited teaching hospital 1. The Medical Council submits that Mr Mooney should practise only in an accredited teaching hospital approved by the Medical Council. As well as public hospitals, there are a number of private hospitals which are accredited teaching hospitals. They include two major private hospitals, Norwest Private and Lingard Private, which Mr Mooney says would be keen to have his services. 2. The condition that Mr Mooney only practise in an accredited teaching hospital is appropriate to ensure that Mr Mooney returns to practise in a supported environment. Mr Mooney should only be able to work 35 hours a week 1. Both the Medical Council and Mr Mooney propose that he practise no more than 35 hours a week. We agree that that condition is necessary to protect the health and safety of the public. It will go some way to addressing the finding that Mr Mooney was operating in a rushed manner when performing surgery on patient A and patient B. 2. Mr Mooney also proposes that after 12 months (when he anticipates that any supervision or mentoring conditions would end) there should be no restriction on the hours he can work. The Medical Council submits that the condition about hours of work should not be time limited. Rather, a decision as to whether Mr Mooney can safely work longer hours should be made when he has been practising for some time. We agree that an assessment needs to be made on the basis of current information after a reasonable period of practice. Mr Mooney should undergo Performance Assessment 1. Mr Mooney proposes the following condition: To undergo a Performance Assessment within 12 months, at which time any deficiencies in practice can be assessed, and the need for all remaining conditions can be reviewed. 1. The Medical Council also proposes that Mr Mooney undergo a Performance Assessment within 12 months of recommencing practice. That condition will provide an opportunity to assess the whole of Mr Mooney's performance ensuring that any identified deficiencies in his practice have been addressed. Scope of practice, re-training and supervision Surgical issues leading to cancellation 1. In the Stage 1 decision, the Tribunal identified the following surgical issues: inappropriate assessment of procedural complexity, inappropriate timing and speed for procedures, the preparation of cocaine and drixine for ENT procedures, a failure to recognise intraoperative complications, a failure to provide appropriate post operative care, inappropriate delegation of post-operative consultation and failure to appropriately consult CTs or use ECG. 2. In the Tribunal's reinstatement decision at [32] – [36] we outlined the deficiencies in the care and treatment Mr Mooney provided to patient A and patient B: 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. 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]. 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. 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". 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]. 1. In the Stage 2 decision at [60] and [61], the Tribunal made the following findings: We accept that Dr Mooney has exhibited satisfactory technical skills in performing the limited operations currently permitted by the conditions on his registration. 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. 1. After summarising Mr Mooney's evidence and the expert evidence, we came to the following conclusion in the reinstatement decision at [44]: 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. Scope of practice 1. The Medical Council does not propose any restriction on the kinds of surgery Mr Mooney can perform subject to first completing a retraining course and being subject to supervision. In our view, as long as the retraining and supervision conditions which we identify below are in place, it is not necessary for the protection of the health and safety of the public to further restrict Mr Mooney's scope of practice. Re-training 1. In relation to surgical practice, Mr Mooney highlights the fact that the deficiencies when treating patient A and patient B were not substantially about a lack of technical surgical skill. Nevertheless, he acknowledges that he has not practised since his registration was cancelled on 16 April 2022. By the time Mr Mooney is reinstated, it will be more than two years since he performed any kind of surgical procedure. Mr Mooney maintains that surgical skills are not something one loses in such a short time, but agrees that he should complete the Royal Australasian College of Surgeons (RACS) return to surgery program as soon as practical. He says he will provide the Medical Council with a copy of the retaining and reskilling program together with confirmation that he has successfully completed the program. 2. The Medical Council proposes that before undertaking any surgical procedure Mr Mooney must confirm that he has been approved to undertake a re-training/re-skilling program in accordance with the RACS, Re-skilling and Re-entry Program Guidelines. The RACS website contains those guidelines which include the following aim of the Re-skilling and Re-entry program: Under the RACS Program, the Executive Director for Surgical Affairs (EDSA) will select and gain agreement with an appropriate supervisor to coordinate a clinical attachment focusing on the key areas of concern. 1. The Program Guidelines go on to state that: If re-skilling is considered appropriate, the EDSA will select and gain agreement with an appropriate supervisor to coordinate a clinical attachment focusing on the key areas of concern. 1. In accordance with the parties' proposal, it is our view that Mr Mooney should provide proof that he has been approved to undertake a Re-skilling and Re-entry program in accordance with the RACS guidelines. Successful completion of a clinical attachment will ensure that he is competent to carry out the kinds of surgery performed by an ENT surgeon. Supervision 1. In the Council's view, the immediate in-theatre supervision should be able to be provided as required by the supervisor of the RACS reskilling/re-entry program. As long as Mr Mooney is approved to undertake the RACS retraining program, and successfully completes that program, the Medical Council does not propose any further supervision conditions when conducting surgery. 2. We are also of the view that, if Mr Mooney successfully completes the RACS reskilling/re-entry program, it will not be necessary in the public interest for any further supervision condition conducting surgery. 3. As for supervision for all other non-operating theatre practice, the Medical Council proposes that Mr Mooney practise under Category B supervision as described in the Medical Council's Compliance Policy. The Compliance Policy describes Category B supervision in the following terms: The supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required. 1. Under Category B supervision, the supervisor is required to practise at the same location as the practitioner. The Medical Council envisages that, ideally, the supervisor would be the same person who has supervised the RACS reskilling/re-entry program. If that person was appointed as a Category B supervisor during and after the completion of the RACS program, he or she would be obliged to report to the Medical Council including about progress with the RACS program. The Medical Council submits that the Category B supervision as described in the Compliance Policy should be varied so that Mr Mooney would be required to meet with the supervisor for at least one hour, face to face every fortnight for the first 6 months and then monthly after that. 2. The Medical Council has proposed the following list of topics for discussion in each supervision meeting: Appropriate prescribing practices Clinical outcomes Medical record reviews Surgical practice, including technique, decision making, outcomes, complications, post-operative care, time and patient selection Overall patient care and management 1. Rather than Category B supervision for non-operating theatre practice, Mr Mooney proposes a condition that he practise under a mentor condition, in accordance with the Medical Council's Compliance Policy – Mentor, for 12 months. Under that Compliance Policy practitioners who are the subject of mentor conditions must: 1. Nominate a proposed mentor to the Council within 21 days of the date of imposition of the conditions. The practitioner must nominate a mentor who they believe fulfils the criteria found in the Mentor Approval Position Statement. The Council will not automatically approve a nominated mentor and approval cannot be assumed. Practitioners must have received confirmation of approval of any mentor to ensure compliance with their conditions. In the event that a nomination is declined, the practitioner is required to nominate another proposed mentor within 21 days. 2. 3. 4. 5. 6. 7. 2. Participate in face-to-face and/or telephone meetings with the Council-approved mentor at a frequency determined by the mentor. 3. Authorise the mentor to inform the Council (in an approved reporting format, at a frequency required by the condition) that these meetings have occurred, and ensure that the mentor does in fact provide those reports. 4. Authorise the mentor to inform the Council immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or his/her compliance with any conditions on his/her registration. 5.Meet all costs associated with mentorship. 6. Inform the Council if the mentor is or will be unavailable for two or more consecutive meetings within the reporting period. 7. Immediately nominate a proposed replacement mentor to be approved by the Council if the approved mentorship arrangement ends or is suspended. 1. Mr Mooney proposes that the mentoring arrangements would be that: The practitioner is to have review meetings with his Council-approved mentor each month for at least one hour and authorise the Council approved mentor to provide reports to the Council (in a Council approved format) on a 3 monthly basis. At each mentor meeting the practitioner is to review and discuss his practice with his approved mentor with a particular focus on: Boundaries with patients Appropriate prescribing practices Clinical outcomes Medical record reviews Workload and work related stress Overall patient care and management. 1. In our view the closer monitoring and formal discussion associated with Category B supervision is necessary to protect the health and safety of the public. Restrictions in relation to specified substances and seeing a psychiatrist 1. In the reinstatement decision at [23]- [24], the Tribunal summarised the findings relating to Mr Mooney forming an inappropriate personal relationship with patient C and unjustifiably prescribing Duromine. 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. 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]. 1. The Medical Council proposes the following condition: Not to possess, supply, administer or prescribe: Phentermine, Orlistat, Liraglutide, Topiramate, Phentermine/Topiramate combination, Nalterxone/bupropion combination, Lorcaserin. 1. These substances are the active ingredients in weight loss medications. For example, phentermine is the active ingredient in Duromine. According to the Medical Council, there is no apparent reason for Mr Mooney to be prescribing such medications in the course of his normal practice as an ENT surgeon. 2. Mr Mooney submits that the prescription of Duromine to patient C, over a decade ago, was a consequence of his inappropriate relationship with her. As a registered doctor, he should be allowed to prescribe any medication he thinks appropriate for his patients whether those medications have a direct link to ENT surgery or not. The Medical Council's response is that Mr Mooney's past conduct in prescribing that medication means that it is an area of risk. 3. Whether or not there is a reason for Mr Mooney to prescribe weight loss medications in the course of practising as an ENT surgeon is not the point. The question is whether this condition is necessary to protect the health and safety of the public. On the topic of forming inappropriate relationships, the Tribunal found at [31] of the reinstatement decision that there was not a high risk that Mr Mooney will engage in inappropriate relationships if re-registered. Nevertheless, noting Dr Ventura's opinion that 'more work is needed', the Tribunal concluded that it would mitigate any risk that Mr Mooney will engage in such a relationship if he engages in further psychotherapy on that issue. 4. Mr Mooney's conduct in inappropriately prescribing Duromine to a vulnerable patient 10 years ago does not persuade us that there is any risk that he will do so in future. Both parties agree that Mr Mooney should continue to see a psychiatrist to address the issue of inappropriate relationships. That is a more targeted approach to the issue than banning him from prescribing a substance which he happened to provide in the course of his relationship with patient C. Health conditions – drug taking 1. Drug testing conditions were imposed on Mr Mooney after an allegation by patient C that he was using cocaine. His urine test results were all negative. Mr Mooney returned four low level positive hair strand tests which he has always said were not because he had taken cocaine, but probably as a result of workplace exposure. At [48] of the reinstatement decision, the Tribunal summarised Mr Mooney's breaches of the drug screening conditions: 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]. 1. After his registration was cancelled, Mr Mooney was arrested for possession of cocaine. He pleaded guilty and no conviction was recorded. 2. Mr Mooney proposes the following health conditions: 1. Not to prescribe for self-medication. 2. Not to self-administer any: Prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or Narcotic derivative, non-prescription analgesic medication Unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. 3. To attend his treating psychiatrist, Dr Ricardo Farago, at a frequency and period decided by the treating doctor and until that treating doctor is satisfied with his progress. 4. To not handle, possess, supply or administer cocaine. 1. Rather than nominating a particular psychiatrist, the Medical Council proposed that Mr Mooney attend for treatment by "a psychiatrist" at a frequency determined by that psychiatrist. Mr Mooney agrees with this condition. 2. In addition to these requirements, the Medical Council proposes the following conditions: Within seven days of being prescribed by his treating practitioner, the practitioner must: Notify the Medical Council Provide written confirmation of the treatment from the treating practitioner to the Council. 1. These agreed conditions are necessary to protect the health and safety of the public. Health conditions – drug screening 1. The Medical Council proposes that Mr Mooney comply with their Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time). Mr Mooney would be required to attend for urine drug screening three times a week and quarterly hair drug screening. 2. The Medical Council submits that despite the fact that it has never been established that Mr Mooney has used cocaine since commencing practice, the circumstances "reasonably give rise to lingering safety concerns as to potential drug use". Multiple events connecting Mr Mooney to cocaine, in particular the fact that he was prepared to lie to authorities in order to avoid drug testing, are sufficient evidence to justify a testing condition at least initially. It is the Medical Council's submission that if testing remains negative following a period after Mr Mooney's return to practice, drug screening can be reviewed. 3. Mr Mooney strenuously objects to the need for him to continue drug testing. He emphasises that there is no evidence that he has ever taken cocaine for recreational use. The Medical Council's response is that Mr Mooney told Dr Ventura that he had taken cocaine for recreational use two or three times in the 1990s, but acknowledged that that evidence is not of great significance. 4. Over a 6 year period since 2017 Mr Mooney says he has undertaken some 400 urine tests which were all negative. He also did hair tests every three months from October 2018 until April 2022, returning 11 negative tests. Apart from the four trace positive hair tests, his drug tests have been negative. 5. We appreciate that Mr Mooney has been subject to a drug screening condition for several years. Nevertheless, in the past he lied to authorities to avoid drug testing and pleaded guilty in the Local Court to possessing cocaine. A further period of drug screening is necessary to ensure that there is no risk that Mr Mooney is taking prohibited drugs. The length of this condition is a matter for the Medical Council, but if Mr Mooney is fully compliant there should be no reason for it to be in place for longer than 12 months. Administrative, reporting and monitoring conditions 1. The Medical Council proposes various reporting and monitoring conditions which are not contested or controversial. Costs 1. Neither party applied for costs. In those circumstances there is no order for costs. Orders 1. A hearing is dispensed with. 2. The reinstatement order made on 11 March 2024 is subject to the following conditions: (i) To obtain Medical Council of NSW approval prior to changing the nature or place of practice. (ii) To practise only in an accredited teaching hospital approved by the Medical Council of NSW. (iii) To practise no more than a total of 35 hours per week. (iv) Prior to undertaking any surgical procedures, the practitioner must submit to the Medical Council of NSW written confirmation from the Royal Australasian College of Surgeons (RACS) that he has been approved to undertake a re-training/re-skilling program in accordance with the RACS, Re-skilling and Re­entry Program Guidelines. (a) The practitioner must also provide the Council with: (i) a copy of the RACS approved re-training/re-skilling program and (ii) evidence to the Council that a copy of the reports which led to this condition being imposed has been provided to RACS to inform the development of the re-training/re-skilling program. (b) The practitioner must not undertake any surgical procedures until he has provided evidence of approval to undertake a re-training/re-skilling program in accordance with the RACS, Re-skilling and Re-entry Program Guidelines, and confirmation that Council has noted this evidence to its satisfaction. (v) To practise under category B supervision for all other non-operating theatre practice in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) The terms of the Compliance Policy — Supervision are varied so that the practitioner is to meet with the Council-approved supervisor for a minimum of 1 hour face-to-face on a fortnightly basis for the first 6 months of supervision, and then monthly thereafter. (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: - Appropriate prescribing practices - Clinical outcomes - Medical record reviews - Surgical practice, including technique, decision-making, outcomes, complications, post-operative care, timing and patient-selection - Overall patient care and management - Progress with RACS Re-training/Re-skilling program (c) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other relevant report/decision as determined by Council. (d) Not to practise until a supervisor has been approved by the Council (vi) Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all surgical procedures performed in the operating theatre in the last month. The record must include the following: (a) the full name and date of birth of the patient (b) the date and start and finish time of each surgical procedure (c) the name and nature of the surgical procedure (d) Medicare item number (e) The facility where the surgical procedure was undertaken (f) any complications arising during and/or as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection). (vii) To undergo a Performance Assessment within 12 months of recommencement of practice. (viii) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. (ix) Not to prescribe for self-medication. (x) Not to self-administer any: (a) prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or (b) Narcotic derivative, non-prescription compound analgesic or cold medication; unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within seven days of being prescribed any such medication by his treating practitioner, the practitioner must: - notify the Medical Council of NSW. - provide written confirmation of the treatment from the treating practitioner to the Council. (xi) To attend for treatment by a psychiatrist. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: - Failure to attend for treatment; - Termination of treatment; or - A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. (c) authorise the Council to provide a copy of any relevant decisions which imposed this condition to the treating practitioner. (xii) To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: (a) urine drug screening three times per week, and (b) quarterly hair drug screening. (xiii) Not to possess, handle, supply or administer cocaine. ********** 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: 26 September 2024