Brennan v Medical Council of NSW

Solicitors: Michael Evers & Co (Applicant) Medical Council of NSW (Respondent) File Number(s): 2019/00323530 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication of the name of any of the patients referred to in the evidence in the hearing in this matter, is prohibited.

Background

1. Keith Ian Brennan (hereafter referred to as "Dr Brennan" or "the Applicant") filed a "General Application" form on 16 October 2019. That application is opposed by the Medical Council of NSW. The application seeks a "Reinstatement Order". The order is stated to be sought pursuant to section 149E of the Health Practitioner Regulation National Law (NSW) (hereafter called "the National Law"). Section 163B is also relied upon.
2. Section 149E of the National Law is as follows: 149E Effect of cancellation and disqualification decisions of Tribunal [NSW] (1) Despite any other provision of this Law, each of the following persons cannot make an application for registration as a health practitioner unless the Tribunal has made a reinstatement order under section 163B with respect to the person - (a) a person whose registration as such a health practitioner has been cancelled by the Tribunal under this Law; (b) a person who has been disqualified from being registered as such a health practitioner by the Tribunal under this Law. (2) Subsection (1) and Division 8 continue to apply in respect of a disqualified person and the disqualification order even if the period of disqualification has expired or specified conditions for the cessation of the disqualification have been complied with.
3. Section 163B is as follows: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
4. Dr Brennan was self-represented when he filed his application in October 2019. He was represented in the hearing before this Tribunal.
5. The application is necessary because of the order made by the tribunal on 11 April 2018. That order cancelled the registration of Dr Brennan and ordered that he was not able to apply for review of the cancellation until after 14 July 2018.
6. Order 4 made on 11 April 2018 was in the following form: "If the respondent intends to make such an application, the Tribunal recommends that he undertake a course in medical ethics with particular emphasis on professional boundaries."
7. Attached to the application document is a certificate issued by "The Ethics Centre". The certificate evidences that Dr Brennan participated in the Ethics Counsel program provided by the centre. A description of what was covered in the course includes the following: "Through an intensive, experiential process the participant explores past conduct and situations, taking account of core values and principles, moral sensitivity and relational and situational ethics. This reflection on past action helps build self-awareness and provides a basis for development of the participants ethical awareness and their capacity for ethical action and leadership."
8. Dr Brennan also annexed to his application a copy of a certificate of attendance issued by the University of Sydney, advising of his attendance on the professional development course of Clinical Ethics. The certificate is dated June 2016. We note this certificate predates the order of the Tribunal, namely, 11 April 2018 and post-dates Dr Brennan becoming aware of the complaint made to the Health Care Complaints Commission (HCCC) which was the subject of the May 2017 findings made against him by the Tribunal.
9. In support of his application, Dr Brennan relied on a folder of documents which was marked as exhibit A2. The first of the documents, contained in the folder, is a statement made by Dr Brennan, dated 20 February 2020. During the hearing further documents were added to the statement and included in the exhibit A2.
10. We note the following from the statement dated 20 February 2020.
11. Dr Brennan is 56 years of age. He is of Aboriginal heritage, as his mother is an Aboriginal woman from NSW. He was raised by his adoptive parents who also adopted two other Aboriginal sons and a daughter of Italian heritage.
12. At 17 years of age, Dr Brennan joined the Australian Army Reserve and then the Australian Defence Force (ADF). He served in those forces for 30 years. Since 2004 Dr Brennan has served as a Medical Officer in the ADF, including overseas service.
13. In 1984 Dr Brennan joined the NSW Police Force. He was medically discharged in 2002. Whilst in the police force, he studied medicine. He graduated from Newcastle University in 2003 with a Bachelor of Medicine degree.
14. Having completed his internship with the Hunter New England Area Health Service, Dr Brennan undertook GP training in the semi-rural areas of Maitland and Cessnock. He passed the RACGP exams in 2009. He worked with Primary Health until 2014 and then contracted with IPN to work on the Central Coast of NSW. Dr Brennan also worked in Emergency Departments of Central Coast hospitals. Additionally, he undertook work as an after-hours doctor.
15. In 2016 Dr Brennan commenced practise in a suburb of Newcastle. He worked in a group medical practice. He worked every second week at the medical practice and the other week he worked at a hospital in rural NSW.
16. During the time he has held GP qualification, Dr Brennan has worked in many hospitals in NSW as a Senior Medical Officer in Emergency Departments.
17. Dr Brennan is the father of six children aged 20, 19, 17, 15, 9 and 6. He has been, and continues to be, involved in the care of those children.
18. Dr Brennan set out details about his health. He said that, in July 2017, following the NCAT proceeding which gave rise to findings of professional misconduct, he was admitted to the Woodlands ward of the Toronto Private Hospital, Mental Health Unit, for six weeks. He was placed under the care of Dr Arvind Kendurkar, psychiatrist, at that time.
19. After discharge from the Toronto Private Hospital, Dr Brennan completed a course on alcohol abuse. At that time Dr Brennan stated that he ceased drinking alcohol and has not had any desire to consume alcohol since that time. He intends to remain alcohol free into the future.
20. Dr Brennan is a diabetic and administers insulin on a daily basis.
21. Arising from his work as a police officer and member of the military, Dr Brennan said that he suffers from PTSD. In order to control that condition, Dr Brennan takes medication daily and attends counselling with a psychologist, Ms Jodie Poole. He also continues to see Dr Kendurkar. He also suffers from gastro-oesophageal reflux disease (GORD) and has undergone three gastroscopies without any significant pathology being found. He takes medication for that condition. His medications are prescribed by his general practitioner. Dr Brennan also suffers from pain in his neck and back arising from work-related injuries in his past employment with the police force and also the army.
22. Dr Brennan says that during the last 12 months his overall health has improved greatly, with the improvement of his PTSD. This has allowed him to focus on improving his physical health.
23. In 2018 Dr Brennan sought assistance from Dr Stuart Saker, a consultant psychiatrist and requested he provide ongoing mentoring to Dr Brennan. Dr Brennan's first mentoring meeting with Dr Saker occurred in April 2018, and since then Dr Brennan has seen him on a number of occasions over two years.
24. During the meetings Dr Brennan has had with Dr Saker, they have discussed professional boundaries which exist in the practise of medicine. They have specifically discussed the errors made by Dr Brennan with a former patient, which led to the original NCAT hearing. Dr Brennan said that his discussions with Dr Saker have given him a better understanding of the power imbalance which exists between a medical practitioner and a patient.
25. Dr Brennan described his personal circumstances at the time he had a relationship with the patient (Patient A), the subject of the complaint in the NCAT proceeding which led to the cancellation of his registration. He accepts that there were a number of major factors and stressors, which were occurring in his life at that time and which led to the exercise of poor judgment on his part.
26. One of the significant stressors in his life, at the time of his interaction with Patient A, was the purchase of a hotel in Newcastle in 2013. Despite having engaged a manager for that business, Dr Brennan continued to have a large role in managing the hotel, in addition to working as a doctor. He sold the hotel in 2017.
27. Dr Brennan acknowledges that he has behaved very badly in many areas of his life and he accepts full responsibility for it. He acknowledges that he allowed friends to become patients and became friends with existing patients. His membership on Facebook complicated his relationship with patients even further. He acknowledges that he should have taken active steps to keep his private and social life as separate as possible from his professional life.
28. Notwithstanding the Tribunal having found that he had conducted a sexual relationship with Patient A, Dr Brennan continued to deny that was the case. However, he accepts the determination of the Tribunal and the orders which it made. He accepts that his transgression of the professional boundaries caused harm to many people, including to Patient A.
29. Dr Brennan said: "Finally, I disgraced myself and in doing so, my profession. I abused the trust placed in me as a medical practitioner, and in the profession which I love, which I deeply and sincerely regret."
30. Dr Brennan stated that he has been greatly affected by his de-registration. His membership of the College of GPs was cancelled. He was discharged by the Australian Army. His membership of a local Returned Service club was cancelled. He has been significantly financially affected, as he was unable to work.
31. Dr Brennan has undertaken a course at the Ethics Centre in Sydney which commenced in April 2018 and concluded in February 2019. This involved nine 1 ½ hour sessions with his course facilitator.
32. In addition to the ethics course undertaken by Dr Brennan, he has also completed further education and accumulated 217 points which included a mandatory CPR course. He has completed courses in the following:

• Best practice in prescribing medicinal cannabis;
• Orthopaedic GP workshop;
• Best practice clinical essentials software calls;
• Substance use and mental health in general practice.

1. If Dr Brennan is permitted to return to practise as a General Practitioner, he proposes to ensure that his work/life balance is different to that he experienced prior to his de-registration. He recognises that the work/life balance, which he exercised in the past, is not appropriate for him in the future.
2. Dr Brennan provided a further document which he titled "supplementary statement". This document is dated 8 April 2020. This statement is largely a response to the report obtained by the Medical Council of NSW, from Dr Ventura. We will return to consider the "supplementary statement" of Dr Brennan, after we have considered the evidence provided by the Medical Council.
3. Dr Brennan relied upon a report provided to his solicitor from his psychiatrist Dr Kendurkar, dated 9 December 2019. In the opening paragraph of the letter, Dr Kendurkar made clear that the report is provided by him as a "treating doctor" and is not intended to be an objective medico-legal assessment.
4. Dr Kendurkar stated that Dr Brennan has attended upon him since June 2017. Dr Kendurkar stated he had seen Dr Brennan on various occasions, both as an inpatient and an outpatient. He opined that Dr Brennan's current diagnosis conforms to Post Traumatic Stress Disorder and Major Depressive Disorder, according to the DSM-V. Dr Kendurkar reported that Dr Brennan has received treatment in the form of both inpatient and outpatient treatment: "The treatment has involved various medications, including anti-depressant medications. Additionally he has also received extensive psychological therapy both as individual psychotherapy and group psychotherapy, both as an inpatient and outpatient. He is currently a part of treatment plan which involves me, outpatient therapy group, his psychologist and GP."
5. Dr Kendurkar opined that Dr Brennan has suffered from PTSD for many years, but had struggled to seek medical help. Dr Kendurkar said: "I believe that having that emotional vulnerability due to underlying and untreated PTSD could have contributed to his impairment of judgement and transgression of boundary. However, he has taken steps to seek adequate treatment as well as support and training to remediate the issue. I believe that following his de-registration from the board, which was a significant catastrophic event in his life, lead him to having an episode of Major Depressive Disorder. The episode of Major Depressive Disorder seems to have resolved completely and he is addressing the Post Traumatic Stress This order as I mentioned with support from me and his GP as well and (sic) psychologist and outpatient therapy. In addition, during the episode depression, after losing registration, he struggled with alcohol, which have (sic) completely resolved and are (sic) in remission for more than two years now, with nil concerns."
6. In relation to his future medical concerns, Dr Kendurkar said: "seeing Mr Brennan's significant progress in the last 24 months I am optimistic that Mr Brennan will be able to achieve significant remission in his symptoms and will be able to maintain his recovery…. I would be supportive of him to be able to return to his employment if he wishes to, in the near future."

• Failure to maintain proper professional boundaries in circumstances where Dr Brennan maintained a social relationship with Patient A as well as a professional relationship.
• That Dr Brennan made inappropriate comments to Patient A during a consultation.
• That at the conclusion of consultations, Dr Brennan occasionally hugged Patient A.
• That Dr Brennan added Patient A as a friend on Facebook and sent her private messages.
• That Dr Brennan breached patient confidentiality by telling his wife that Patient A had suffered a miscarriage.
• That Dr Brennan proposed to Patient A that he and she have an amorous relationship.
• That Dr Brennan, in mid-2014, sought to pursue a personal, intimate and sexual relationship with Patient A. A number of episodes of communication between Dr Brennan and Patient A were relied upon to support this ground.
• That Dr Brennan communicated with Patient A via text messages and thereby failed to maintain proper professional boundaries.
• Dr Brennan failed to adequately document the cessation of the therapeutic relationship with Patient A following her last consultation with him.

1. Complaint Two was a claim that Dr Brennan was guilty of unsatisfactory professional conduct. The Particulars allege Dr Brennan provided misleading information to the HCCC.
2. Complaint Three alleged that Dr Brennan was guilty of professional misconduct under s 139E of the National Law. It was alleged that the conduct was of sufficiently serious nature as to justify the suspension or cancellation of Dr Brennan's registration. The Particulars supporting Complaints One and Two were relied upon to support Complaint Three.
3. As stated earlier, the Tribunal concluded on 17 May 2017, that the HCCC had established its case against Dr Brennan. Two days after the decision of the Tribunal was published in May 2017, Dr Brennan offered to the Medical Council to consent to the cancellation of his registration. On 14 July 2017 his registration was suspended by a consent order made by the Tribunal.
4. On 11 April 2018 the Tribunal handed down its order. The effect of the order was to be a period of twelve months out of practice, which included the period of time following the consent order for suspension of his registration.
5. The judgment of 11 April 2018 warrants careful reading, as did the judgment of 17 May 2017, for a different reason. It is clear that the Tribunal was overwhelmed by the evidence which was provided by Dr Brennan when it came to consider the order which needed to be made. In this case we take the extraordinary course of including in this judgment paragraphs 30 to 56 of the judgment of the Tribunal made on 11 April 2018. The earlier paragraphs of the judgment are largely devoted to setting out the events which had occurred after the stage one decision given on 17 May 2017. These paragraphs set out evidence of the deterioration of Dr Brennan's health and his hospitalisation under the care of his psychiatrist, Dr Kendurkar. Adjournment after adjournment was sought and Dr Brennan was given a number of indulgences. Eventually the matter had to be concluded, which it was.
6. On 11 April 2018, the Tribunal, in dealing with stage two, determined that the findings it made against Dr Brennan warranted the imposition of cancellation with an exclusion period of three months, to 14 July 2018.
7. We now set out paragraph 30 to 56 of the judgment of 11 April 2018: "Evidence from Patients and Others: 30. There were statements from 27 persons who were patients of the practitioner including some who were one of a couple or a member of a family who were all patients of the practitioner. There were supportive statements by numerous others. 31. The occupations of the patients included retirees, students, a real estate agent, two solicitors, a radiographer, business people and police officers. Some of the patients were long-standing friends of the practitioner or had become friends of him more recently. 32. The evidence in the statements group clearly establishes that the practitioner is an exceptional medical practitioner. He has excellent diagnostic skills, clinical skills and treatment skills. It also establishes that he has excellent skills in communicating with his patients, keeping them fully informed, and being empathetic in his dealings with patients, dealing with them in ways that ensure they have excellent health services and are confident that he will ensure that occurs. 33. The pharmacist who provided a statement dispenses prescriptions by the practitioner for many of his patients. He described his experience of being "overwhelmed by his patients' unanimous praise and their endorsement of his professionalism and commitment to quality medicine". He says that the practitioner is available for contact by the pharmacy at any time by telephone to discuss patients and medications. He describes the practitioner as "an asset to the medical profession and an excellent general practitioner". 34. The physiotherapist in his statement has known the practitioner for five years as a patient. They met through social contact. His clinic is next door to that of the practitioner. He commends the practitioner's professional approach and says he is always "thorough", "supportive" and "positive". He also commends the practitioner's support in the community of returned service people. He says "In my experience he has always been a very honest and caring person who is always extremely driven and motivated to succeed with whatever task he has set his mind to" He describe the practitioner as "a strong advocate for those who need an extra voice". 35. The clinical psychologist who provided a statement has known the practitioner for 29 years, having originally met him as a member of the Police force. He has been a patient of the practitioner for six years. He describes the practitioner as "unambiguously focused on positive outcomes for his patients" and "vigilant in addressing the mental health needs of many people who may have otherwise not have access to psychology". The clinical psychologist has had close contact with patients referred by the practitioner and on many occasions has heard "their unsolicited feedback in relation to Dr Brennan and his professional caring interactions with them". 36. Like many others of the practitioner's patients, he describes the practitioner as "very thorough" and as being attentive to the patient needs. He said "he takes a real interest in their well-being across the bio-psychosocial spectrum. I am aware that many of these people socialise with each other and that has led to the situation where they have specifically wanted Dr Brennan to be their family GP." He also describes the practitioner as a "caring and thoughtful GP". He says that he has always found the practitioner to be "honest, open and dedicated to enabling his patients to have a full, valuable and meaningful life". 37. In his career as a general practitioner, the practitioner has worked in three different locations in the outlying suburbs of Newcastle. There is evidence that establishes that a large number of patients have followed him each time he has moved. 38. One reference is from a general surgeon to whom the practitioner has referred many patients and who has known the practitioner for more than 15 years since when the practitioner was a medical student. Later the practitioner was his intern at the John Hunter Hospital. They became good friends. The surgeon testified that he "noticed that this guy had what it took to be a great doctor possibly due to his maturity. He was kind to patients, had good diagnostic skills and was keen to learn whatever he could in the ward". 39. He says that the practitioner is very thorough in his investigations and that his patients that he has referred to the surgeon "all sing his praises". He says "Keith is similar to a Medical Sherlock Holmes. If a patient has an issue he will pursue the problem until he has the answer and can help the patient". He has said that the practitioner's referrals to the surgeon "are well thought through". 40. He says "I love his passion for the work and his commitment to his patients. Over all he is a good caring doctor who is committed to the art of healing and improving his patient's lives". 41. There is a statement by a urological surgeon, who has known the practitioner for about 18 years, has received referrals of patients since the practitioner commenced practising as a general practitioner in the Newcastle area in about 2007. He has often had communications with the practitioner by correspondence or telephone calls and at meetings of medical practitioners. He says in his statement that the practitioner's patients "speak very highly of him and the care that he has provided. Certainly by the quality of his work, he has demonstrated a good rapport with his patients and he is very thorough in managing their medical issues". 42. There is also a statement by a senior medical officer in the Australian Defence Forces. He speaks very highly of the practitioner. He has known him for about 10 years. The practitioner has achieved a rank of major and is the officer commanding of One Health Company, Combat Support Service Battalion, located in Newcastle. He has known the practitioner since about 2007 when they both were medical officers in the ADF. Since 2015, he has had contact with the practitioner through the Army Reserve. 43. He described the practitioner's performance as a medical officer in the ADF as "very professional" and said "he has a caring attitude towards soldiers and goes out of his way to assist in any way he can. He had a tour of Iraq and Timor as a MO and his performance was of a high standard. He works very hard at the One Health Coy, working weekends and Tuesday nights. He is outstanding as a MO and an Army Officer. I would employ him any time for overseas duties and any medical duties as required". 44. He also speaks very highly of the practitioner's character, his integrity, and his excellent reputation. 45. He says "he demonstrates high values and principles of a medical officer. Further, he demonstrates command presence, positively influences peers, promotes professional development of subordinates; leads by example; is accountable for words and actions. He is an effective performer and a team player. He is a highly respected member of the unit". 46. The patients that have given statements have known the practitioner for periods of about two years to about 10 years. 47. A Detective Superintendent of NSW Police, who met the practitioner more than 25 years ago while working together in the NSW Police Force and Australian Army Reserve, says that he finds the practitioner to be "intelligent, hardworking professional and a person of the utmost integrity". He has become a close family friend of the practitioner. He is not a patient of the practitioner. 48. He commends the practitioner's excellent reputation in the Police, Emergency Service and Army for the provision of high quality medical care, particularly in relation to psychological illness, including Post Traumatic Stress Disorder, which affects many people in those organisations. 49. He says that in his statement: "Keith has a gregarious compassionate and infectious personality that draws people to him. He is also extremely loyal, trusting and simply enjoys helping people. If Keith has a fault then it is his inability to say no to people close to him. This can make him somewhat naïve at times. I have seen many facts of his professional and personal life that have been complicated by these personality traits. Both Keith and his lawyers have made me aware of the nature of the complaints he is facing. He has been extraordinarily honest to me in respect to this. I cannot help but feel that some of his personality traits have contributed to these complaints. Having said that, I am confident that he is the type of character who would admit to any wrongdoing, learn from his experience and ensure that he did not make the same mistakes into the future." 50. The evidence before the Tribunal establishes that the nature of the findings of the unsatisfactory professional conduct and professional misconduct are matters that are completely inconsistent with the excellent character and integrity that his patients and others who deal with him have generally observed. The Outcome 51. The Tribunal finds that essentially the unsatisfactory professional conduct by the practitioner was his breach of professional boundaries and subsequent conduct in seeking to defend himself when those breaches became the subject of investigation. 52. There have been serious consequences for the practitioner including some prior to the Stage 2 hearing, largely as a result of the proceedings and publicity of the Stage 1 findings in a newspaper which was referred to in the statements of witnesses and this has contributed to his mental health problems and hospitalisation. 53. In addition the practitioner has suffered a substantial financial loss by way of loss of income since suspension of his registration. That is continuing. 54. In addition, the Tribunal has taken into account that the practitioner volunteered to submit to cancellation of his registration on 19 May 2017, the day before the newspaper article of 20 May 2017. He consented to an order on 14 July 2017 suspending his registration, was suspended on 14 July 2017 and had remained suspended almost 5 months at the time of the Stage 2 hearing in December. 55. As at 12 December 2017, the Tribunal was aware that he had been unable to practise since the suspension order. The Tribunal decided that a cancellation period that would provide an appropriate outcome of the proceedings would be one that would serve the need to deter the practitioner and other practitioners from such conduct, and protect the reputation of the profession and the trust the community has in the profession. The orders of 12 December with the earlier suspension would result in the practitioner's registration being suspended and cancelled for a total period of one year plus any period after 14 July 2018 till any application to review the cancellation is filed, processed and determined. The Tribunal has taken onto account that because the practitioner is such an excellent clinician, any period of cancellation or suspension will deny his patients his excellent services for that period and in that regard is contrary to the public interest. 56. The Tribunal also decided to offer advice for the practitioner suggesting he undertake a course which might assist him to better understand and adhere to ethical issues regarding his relationships with patients.

Oral evidence of Dr Brennan

1. Dr Brennan gave oral evidence. Our assessment of him as a witness is as follows.
2. Dr Brennan was led through some oral evidence by his counsel and then he was cross-examined by counsel for the Medical Council, Mr Fernandez.
3. The applicant presented as contrite and remorseful for the actions, on his part, which led to the findings by the Tribunal made in the decision dated 17 May 2017.
4. There were occasions when the applicant became teary and it was necessary to pause so he could recover his composure.
5. In the hearing before the earlier Tribunal, giving rise to the cancellation of his registration, the applicant had denied some of the allegations made against him by Patient A. The Tribunal found in favour of the patient and did not accept the denials of the applicant. That circumstance was canvassed by the counsel for the Medical Council and the applicant was pressed to concede/confess to that action, which he had previously denied. He was pressed on that matter on a number of occasions, albeit in different ways, and the evidence the applicant gave was the same on each occasion. He told the Tribunal that while clearly conceding some of the conduct which was established against him in the earlier hearing, he could not and would not confess to conduct he did not commit. He was forthright in his denials and consistent in relation to same.
6. Generally, the applicant was very cooperative with the Tribunal and the cross-examiner. We felt he did his best to answer questions which largely took him back to his conduct in 2014 and following. That conduct gave rise to his facing the Tribunal and also to a rapid degeneration of his mental health. He was hospitalised for six weeks in 2016 suffering from PTSD, alcohol use disorder and severe depression.
7. The medical evidence led by both the applicant and the Medical Council shows how the applicant's health has gradually improved since 2014. The applicant told the Tribunal it had not been until 2019 that he has felt able to reapply for registration, even though the earlier Tribunal set a date, before which he could re-apply, as July 2018.
8. On balance we found the applicant to deliver his evidence with candour and he did not, in our observation, apparently seek to mislead this Tribunal or to be untruthful with his evidence to it.
9. We now turn to consider that part of the oral evidence of Dr Brennan which we consider important and of assistance to us.
10. Dr Brennan ceased to practise medicine around 27 May 2017. He had consented to an order being made on 11 April 2018 which cancelled his registration as a medical practitioner.
11. Dr Brennan told the Tribunal that he had refrained from making the current application until he was satisfied his health had repaired.
12. He was asked, "What have you learnt from the findings of the Tribunal made in May 2017?" He replied: "I had a hard lesson to learn. I was in a very dark place. It affected Patient A and Patient B and it affected my family as well. I totally respect the findings of the Tribunal. I cannot admit to things I did not do. I accept the blame lies with me."
13. If permitted to return to practice, Dr Brennan proposed "not leading the life I was leading before. I will ensure I do have a work life balance. I would work maximum hours. I would not work on weekends or after-hours. I have now been able to spend time with my family and I now know what I was missing with seeing them grow."
14. Dr Brennan said that he is not consuming alcohol and has not missed it. He no longer takes medication for sobriety. He continues to see his psychiatrist.
15. During the time he has not been working, Dr Brennan has undertaken volunteer work. He has been fishing and connecting with former associates in the Veterans Motorcycle Club and the Ex-Police Motorcycle Club.
16. Dr Brennan was cross-examined by counsel for the Medical Council.
17. Dr Brennan agreed he had been diagnosed with adult ADHD in 2013. He took medication for three or four months. The medication did not agree with him. Dr Kendurkar did not consider he suffered from that condition.
18. Many of the questions and propositions put to Dr Brennan in cross-examination were about his conduct leading to the determination by the earlier Tribunal on 17 May 2017. We understand that it was a necessary course to take in testing whether Dr Brennan has developed insight into the behaviour which led to his registration being cancelled. It was further important to test whether Dr Brennan clearly understands the constraints of practising medicine, so far as they relate to keeping proper professional boundaries with patients. We are grateful to counsel for the Medical Council for the task he undertook to assist us. We will, however, not repeat all the evidence given by Dr Brennan in relation to the pre-May 2017 conduct he undertook, unless an answer provides us with information as to how he would conduct himself in the future were he to be permitted re-registration.
19. Asked about the commencement of his relationship with Patient B, Dr Brennan said she was now his partner. He had commenced his relationship with her when she worked in the same practice as he worked. He commenced treating her as a patient. He had a sexual relationship with her at the same time. He agreed he knew at the time that was wrong. He agreed he had known it was wrong to have an intimate relationship with a patient since medical school.
20. Dr Brennan was asked that, if he knew it was wrong to have a sexual relationship with a patient, why did that occur with Patient B? He replied: "It was a terrible time. And I was consuming alcohol. I am very sorry that occurred."
21. Dr Brennan was questioned about the time he had seen Dr Fogarty as his mentor. This was a time prior to the May 2017 determination by the Tribunal. It was put that he had not told Dr Fogarty that he was having a sexual relationship with Patient B and also treating her as a patient. He said he had introduced Patient B to Dr Fogarty. He did not recall if he told Dr Fogarty he was also treating Patient B during their relationship. It was put to him that he did not tell Dr Fogarty all that was relevant about his relationship with Patient B. Dr Brennan could not recall if this was the case.
22. Dr Brennan denied he was trying to trivialise the nature of his doctor/patient relationship with Patient B when he spoke to Dr Ventura.
23. When questioned about having personal relationships with patients in the past, Dr Brennan agreed he had given patients his private phone number. He agreed he invited some patients to become friends with him on Facebook. He agreed some patients became friends and friends became patients. He admitted that he consulted with some patients, who were also friends, at his private residence. He also admitted that he has visited friends' homes, who were also patients, to discuss medical matters.
24. Dr Brennan explained that he had long standing friends in organisations he belonged to who also knew he was a doctor. They sought his services as a doctor. He found he could not turn them away.
25. Dr Brennan also confirmed he had lent money to a patient. This was disclosed in the hearing in 2017. He also agreed that on some occasions he gave patients money to help them out of a financial predicament.
26. Dr Brennan agreed he would be assisted by psychological therapy, as suggested by Dr Ventura. He said he had already established such a relationship.
27. Dr Brennan was asked: "Did you tell Dr Kendurkar about the Tribunal's finding that you had a sexual relationship with Patient A?" Dr Brennan replied: "I don't accept the Tribunal finding re sex with Patient A. I try not to think about the comments made by the Tribunal about me."
28. Asked about his request of Dr Saker to act as a mentor, Dr Brennan said he had asked for him to take on a supporting role "To bounce things off him. To have someone who I could also discuss medicine and aspects of life with." He said he had met with or spoken by phone with Dr Saker on about six occasions commencing in about April 2018.
29. Dr Brennan said he had chosen to speak with Dr Saker as they had been overseas together (in service) and he felt Dr Saker was a person he could relate to.
30. Dr Brennan has not, as yet, selected a person to act as his mentor, were he permitted to practice.
31. Dr Brennan was asked about his statement to the Tribunal that he had "very rarely used alcohol over the last five years". He agreed that was wrong. He agreed he made the statement under oath. When asked why he had done that he said: "I said it because it was very embarrassing for me to disclose to the world I had a drinking problem. I underplayed it. As a doctor the last thing I wanted to do was to show I had a weakness."
32. In relation to the evidence Dr Brennan had given before the Tribunal in 2017 and before this Tribunal about ownership of a hotel, he was asked what time he spent at the hotel in 2014 and following. He said he would take over shifts from his partners. He would be present between 6pm and 10pm each night. He undertook other tasks associated with the running of the hotel. The work involved increased after he acquired the interests of his partners.
33. Dr Brennan was asked about the vulnerabilities of Patient A when he first became aware she was attracted to him. He explained the dilemma he faced at that time because of his relationship with Patient A as a patient and as a friend. Because of his friendship with her he was aware of the difficulties she was experiencing in her relationship with her husband. He stated his regret about the circumstances and his actions in contributing to those circumstances. He stated his belief as to the action he should have taken and failed to do so.
34. Dr Reid, one of the Senior Tribunal sitting members, asked Dr Brennan questions. The questions posed scenarios which Dr Brennan might meet were he to commence practice again.
35. Dr Reid asked: "If a female patient asks for your phone number 'just in case', what would you do?" Dr Brennan answered: "I would say the practice is not to give out phone numbers. I would advise her to call the after-hours number if necessary or go to the hospital."
36. Dr Reid asked: "What would you do if a patient wants to give you a hug?" Dr Brennan responded: "I would say I am unable to give you a hug."
37. Dr Reid asked: "A female partner of a member of a motorbike club to which you belong tells you she is suffering domestic violence at the hands of that person. What would you do?" Dr Brennan said: "I would ask her to call the police and support services for domestic violence victims. I would see if she needed treatment and see that she gets to safety. I would document in the notes. I would keep confidentiality."
38. Dr Reid asked: "Would you consider continuing to treat her?" Dr Brennan said: "If I saw a conflict of interest, I would recommend she see another member of staff. I would say to her the ongoing relationship of patient and doctor could be a problem in the future."
39. Dr Reid asked: "A member of your motor bike club asks to see you as a patient?" Dr Brennan responded: "I would say, 'In the past that has caused a problem and I cannot see you'".
40. Dr Reid asked: "What if a patient called in the night and asked for a script for Endone or for that drug itself?" Dr Brennan responded: "I would say I can't do that. Go to the local hospital or see one of the after-hours clinics."
41. Dr Reid asked: "What would you do if an ex-police officer who had been a colleague of yours asks you about your own experiences with PTSD?" Dr Brennan said: "I would be empathic with him but would not give any personal detail."
42. Dr Reid asked: "A member of the local indigenous population comes to you and says she is sleeping rough and she does not have any money to buy baby formula. What would your response be?" Dr Brennan said: "I would see if I had any samples of baby formula I could give her. I would refer her to organisations I know of who could help her. I would ask about her children. I would tell her the local hospital can provide her with formula. You can use 'Closing the Gap' to write a script, however you need to see the children first."
43. Dr Reid asked: "What if she says 'I can't afford that'"? Dr Brennan said: "The practice could have funds. The local Land Council does have transport or could provide a Taxi voucher."
44. Dr Reid asked: "At your local club you see a couple you know. They are patients. They ask you to join them for dinner. What would you do?" Dr Brennan said: "I would thank them for their invitation and then inform them I cannot join them. I would tell them I cannot take charity. I would tell them I can't do that because it is against the guidelines."
45. Dr Reid asked: "You receive a text from a female patient you have treated. She asks 'Can we catch up'. What would you do?" Dr Brennan said: "Firstly I would want to know how she obtained my private number. I would tell her I cannot meet her."
46. Dr Brennan told Dr Reid he now feels he has the confidence to deal with the types of situations she presented to him. He said that having to go through the Tribunal hearings, having to address his circumstances, and having undertaken the two courses he has completed (ethics), he feels he is ready to resume practice.
47. Dr Aitken, one of the Senior Tribunal sitting members, asked Dr Brennan some questions.
48. Dr Aitken asked: "You said you should have acted sooner with Patient A. At what point would you have acted to end the doctor/patient relationship?" Dr Brennan responded: "When Patient A made an appointment which was not needed. When she was calling at my home. When she was asking personal questions". Dr Brennan said: "In this case there were red flags and I ignored them."
49. Dr Aitken asked: "Have you had to end a relationship with a patient?" Dr Brennan responded: "Yes. A patient seeking drugs. I was threatened with a baseball bat."
50. Dr Aitken asked: "Do you think you are still vulnerable to demanding patients?" Dr Brennan said: "After three years away from work as a doctor, I am not prepared to allow it to happen again."
51. Dr Aitken asked: "How did you respond to dexamphetamine?" Dr Brennan said: "I suffered palpitations, could not sleep, it did not help my concentration." The question was asked following earlier evidence that Dr Brennan had been prescribed dexamphetamine for a diagnosis made a number of years ago of ADHD. He said he had been prescribed dexamphetamine however; he had not been able to tolerate the medication.
52. Ms Kelly, the general member of the Tribunal asked some questions. She asked Dr Brennan: "What would you do if your partner asked you to treat your children?" He responded: "She would not ask. She knows what I have been through".
53. Ms Kelly asked: "How would you recognise if symptoms of your illnesses started to re-emerge?" Dr Brennan responded: "I did see a psychologist straight after a friend died in front of me. I arranged to see my psychologist and that helped me to not go down. Also, if I am not sleeping, I would know. Also, my wife knows what to look for".

Oral Evidence of Dr Wright

1. Dr Wright gave oral evidence.
2. Dr Wright told the Tribunal that his opinion is now that Dr Brennan is fit to return to practise, subject to conditions.
3. Dr Wright confirmed his opinion that there is no risk to the public by Dr Brennan returning to practise. He said that if Dr Brennan continued in therapy, that will manage the risk of his health deteriorating and him becoming less capable of managing doctor patient boundaries.
4. Dr Wright was cross-examined by counsel for the Medical Council. In response to questions he confirmed that Dr Brennan had told him one of his work colleagues was a patient. He said Dr Brennan had spoken about social contact he had with some patients. He did not tell Dr Wright he had loaned money to patients or that he had given money to patients.
5. Dr Wright was asked if he agreed with Dr Ventura's opinion of Dr Brennan when she said that his personality style may be a future risk factor. He said he would agree if there was emphasis on the word "may".
6. Dr Wright was asked: "Did you discuss with him how he attends to treatment of his personality style?" Dr Wright responded: "His recent therapy has been to address PTSD. This helps him to reflect upon his actions so he has insight into problems. I did not ask if he has had specific therapy in relation to his personality style."
7. Dr Wright was taken to his second report and in particular where he disagreed with the report of Dr Ventura. In particular he took a different view to Dr Ventura about the superficiality of Dr Brennan's understanding of doctor/patient boundaries. Dr Wright was asked if he had discussed with Dr Brennan detail of his understanding of the boundaries. He said he had. He said he discussed with Dr Brennan what happened in the past and how he would deal with that situation now. Dr Wright said Dr Brennan, in his opinion, did have a good understanding of professional boundaries. On reflection of what had occurred in the past and what he needed to do in the future, he considered he would be able to maintain proper boundaries.
8. In relation to Dr Wright's last report he was asked: "What did Dr Brennan tell you he was remorseful about?" Dr Wright said: "A multitude of things. His treatment of Patient A and boundary transgressions. He was remorseful about embarking on a relationship with Patient A"
9. It was put to Dr Wright that even in his opinion there remains a low risk of a future transgression. Dr Wright agreed however he said: "That low risk can be satisfactorily managed by conditions."
10. Dr Wright was asked questions by Dr Reid. She asked about the use of dexamphetamine in PTSD patients. She asked would that have added to poor judgement. Dr Wright opined that it could.
11. Dr Kendurkar gave oral evidence. He was asked questions by council for Dr Brennan. Dr Kendurkar said it was his opinion that Dr Brennan will continue to improve in dealing with interpersonal relationships and setting boundaries. He said he first saw Dr Brennan in June 2017 and, in the last three years, he has shown substantial improvement. Dr Kendurkar said it will be really important that Dr Brennan continues to see Dr Kendurkar and also his psychologist.
12. Dr Kendurkar said he had read the report of Dr Wright. He said he had seen the suggested conditions to be applied to Dr Brendan's registration should he be permitted to return to practise, and he agreed with those conditions. Dr Kendurkar said he would continue to help Dr Brennan into the future.
13. Dr Kendurkar was cross-examined by counsel for the Medical Council.
14. Dr Kendurkar was asked to look at the report provided by Dr Ventura. He was asked questions about disclosure by Dr Brennan to him when he first saw him. Dr Kendurkar did not recall being told that Dr Brennan had received treatment for adult ADHD or that he had been prescribed dexamphetamine.
15. He was asked about information provided by Dr Brennan in relation to his use of alcohol prior to the end of 2016. Dr Kendurkar said he had been told by Dr Brennan that he was a user of alcohol prior to that time, however it had not become a disorder.
16. Dr Kendurkar was asked about Dr Ventura's view about Dr Brennan's personality style, and whether he agreed it could be a risk in relation to the future practise by Dr Brennan, so far as keeping appropriate boundaries was concerned. Dr Kendurkar said that he agreed with the view, to an extent. He said "Dr Brennan is a very caring person so he would want to please his patients." He said "The risk is in interpersonal relationships. The risk may always be there. We have discussed interpersonal boundaries and the risks which might apply to Dr Brennan. He does not have a personality disorder."
17. Dr Kendurkar said that he has been treating Dr Brennan for mental health disorders. This included PTSD and alcohol use disorder. In recent times, he said he had discussed with Dr Brennan boundary transgressions.

Submissions provided by Dr Brennan

1. Dr Brennan makes an application for reinstatement pursuant to section 163A of the National Law. That section, together with sections 163, 163B and 163C, are relevant to the exercise we are required to undertake in determining the application. 163 Appropriate review body [NSW] (1) For the purposes of this Division, the appropriate review body is - (a) if the order being reviewed provides that it may be reviewed by a Council, the Council; or (a1) if the Tribunal List Manager decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or (b) if the Tribunal List Manager decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or (c) otherwise, the Tribunal. (2) An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered. (3) The Executive Officer must refer the application to the appropriate review body. 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of - (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made - (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section - decision-making entity means the following - (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C(1)(f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision making entity - (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
2. The sections set out above, permit the Tribunal to hear the application brought by Dr Brennan.
3. Dr Brennan seeks the following order and conditions: Minute of Order 1. Pursuant to s 163B(1)(c) [NSW] of the Health Practitioner Regulation National Law (National Law), the Tribunal grants the applicant's application for reinstatement. 2. Pursuant to s 163B(4) [NSW] of the National Law, the Tribunal imposes the following conditions on the applicant's registration as a medical practitioner: 1. To practise under Category C supervision in accordance with the Council's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved supervisors with: (i) A copy of the decision of the NSW Civil and Administrative Tribunal of NSW which imposed these conditions (NCAT decision). (ii) A copy of the decision of the NCAT decision of Health Care Complaints Commission v Brennan [2017] NSWCATOD 75. (iii) A copy of the decision of the NCAT decision of Health Care Complaints Commission v Brennan (No. 2) [2018] NSWCATOD 51 (b) At each supervision meeting, the practitioner is to review and discuss his practise with his approved supervisor with particular focus on: (i) The doctor/patient relationship; (ii) Workload and work/life balance. 2. To consult or treat up to a maximum of 4 patients per hour. 3. To practise no more than 36 hours per week. 4. To practise within a geographical area not further than 1.5 hour's driving from his residence. 5. Within seven days of the end of each calendar month, he is to provide the Council with a record of the number of hours worked per week. The report must include the following: (a) The number of hours of patient consultation; (b) The number of hours spent in direct discussion with the supervisor. The report is to be signed by the Council-approved supervisor 6. To nominate an experienced general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved mentors with each of the decisions referred to in condition 2(a). (b) At each mentoring meeting the practitioner is to (initially) include discussion of the following: (i) Professional boundary issues; (ii) The doctor/patient relationship; (iii) Peer support; (iv) Workload and work/life balance. Thereafter any personal and/or medical practise issues that may arise. (c) To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, or personal wellbeing. 7. To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. Private health conditions 8. To remain abstinent from alcohol. 9. To attend for treatment by a psychiatrist and psychologist of his choice, at a frequency to be determined by the treating psychiatrist and psychologist. To authorise the treating psychiatrist and psychologist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 10. At each meeting with his treating psychiatrist and psychologist, the following should be discussed: (i) Professional boundary issues; (ii) Personality vulnerabilities; (iii) Peer support; (iv) Workload and work/life balance. Additional orders 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 2. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practise is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.
4. In his submission, Dr Brennan provided reference to the National Law and to decided cases for the benefit of the Tribunal. The submission is set out under the heading of "The National Law" as follows: "The National Law 17. The applicant seeks an order for review of the cancellation order, under s163A of the National Law. The primary objective, is set out in s3A of the National Law: "[i]n the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 18. The National Law provides relevantly, at s163B, that the Tribunal must conduct an inquiry into an application for review. Having conducted an inquiry into the application, the Tribunal may, inter alia: dismiss the application, make a reinstatement order or impose conditions on the person's registration: s 163B. 19. To practise as a health practitioner a person must, be a "fit and proper person for general registration" and be able to practise his or her profession competently and safely: per s55(1)(h) of the National Law. 20. In conducting that inquiry, the Tribunal cannot review the original decision to make a cancellation order or any findings of fact made by the first Tribunal in connection with that decision, per s163C(2). Rather, the Tribunal's task is "to determine the appropriateness, at the time of the review, of the order concerned": per s163C(1). 21. The question for this Tribunal is the applicant's fitness at the time of this application, not the time of the original misconduct found by the first Tribunal. 22. It is germane to note the clear statement of the NSW Court of Appeal in Lee v HCCC [2012] NSWCA 80, at [20] that in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: "1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist." 23. It is submitted the underlined comments in Lambert are apposite in this case. 24. Importantly, in Prakash v HCCC [2006] NSWCA 153, Basten JA commented at [101] "[t]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". 25. The principles to be considered on an application for reregistration set out in Zepinic v HCCC (No 2) [2018] NSWCATOD 166 are as follows:"[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms:We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of 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 (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) While the health and safety of the public is the paramount consideration, the consequences of any disciplinary orders for the applicant are also relevant. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order". (4) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that 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]; (5) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (6) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. 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; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (7) '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. In this respect, the applicant is 'in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made': Ameison at [24]. (8) It is not 'a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future'. The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]" 26. To the statement of principles in Zepinic can be added that it cannot be assumed that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. "If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man": Ex Parte Tziniolis; The Medical Practitioners Act [1967] 1 NSWR 357, Holmes JA at 461.27. In Chen v HCCC [2017] NSWCA 186, the NSW Court of Appeal noted:[65] …regulation of legal practitioners continues to be based upon the test of "good fame and character", unlike the position under the National Law for medical practitioners where there is no such requirement….[67] The statutory language in the National Law does not involve any element of moral turpitude…. there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner.28. The standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (see Scully v HCCC [2013] NSWNMT 7 [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13)."
5. We agree that the reference to the decided cases set out by Dr Brennan, appropriately state the guidelines which this Tribunal needs to comply with when determining the subject application.
6. In his submission Dr Brennan addressed aspects of "Character and Credit". He cited evidence from Dr Wright who opined that the findings of the Tribunal published in May 2017 were out of character with Dr Brennan's character and integrity, which he had observed.
7. The submission highlights the contrition, candour and genuineness of Dr Brennan's evidence. It submitted the Tribunal should accept the evidence of Dr Brennan.
8. Dr Brennan addresses the circumstances which befell him as his life unravelled in the time leading to the decision of the Tribunal in May 2017. He submits the Tribunal would accept his evidence and that of his witnesses as to the change in his mental health and life circumstances since that time.
9. In relation to the findings which had been made by the Tribunal in May 2017 in relation to the misleading information provided by Dr Brennan to the HCCC, Dr Brennan refers to the evidence of Dr Wright who opined there "is a very low likelihood of circumstances where the applicant would provide misleading responses to the Commission and a very low likelihood of transgressions in the future."
10. Dr Brennan submits that considerable time has passed since he provided that misleading information to the Commission, and he has since undergone extensive treatment with his psychiatrist and his psychologist. He submits that the Tribunal can be satisfied that he is a different person today then he was when he misled the Commission.
11. In his submission, Dr Brennan canvassed aspects of the evidence given in the hearing. Much of the evidence he addressed we have set out in these reasons.
12. Dr Brennan submits that the Tribunal would find that, in the hearing before us, he has demonstrated integrity in many facets of his life since the findings of professional misconduct. He urged the Tribunal to find that the conduct found against him by the Tribunal in May 2017 was out of character. It is submitted that Dr Brennan has demonstrated significant insight, regret and remorse. His medical condition is clearly, on the evidence of his witnesses, well controlled by his continuing engagement with his psychiatrist and his psychologist. He intends to continue that in the future.
13. It is submitted by Dr Brennan that the issues of vulnerability of personality addressed by Dr Ventura as potentially contributing to his conduct, are in the process of being addressed and will continue to be addressed in treatment.
14. It is submitted by Dr Brennan that the jurisdiction is not one to punish, but to protect the public. It is submitted that the public interest has been served by the orders made by the Tribunal in 2018. Dr Brennan submits that he is now a fit and proper person to return to practise.
15. Dr Brennan addressed the expert evidence that had been called in the hearing. We do not repeat those submissions here as the evidence he refers us to has been substantially set out earlier in these reasons. We are, none the less, grateful to Dr Brennan for directing our attention to the expert evidence he relies upon and addresses in his submission.
16. In the written submission, under the heading "This Tribunal's Consideration", Dr Brennan referred the Tribunal to a number of decisions which dealt with application's similar to that being made by Dr Brennan. From those decisions, principles are distilled and it is submitted by Dr Brennan that the decisions give rise to the following questions which should be considered by the Tribunal: 1. Does the applicant have adequate insight into his misconduct? 2. Has the applicant satisfied the tribunal that it is unlikely that he will re-offend?
17. Dr Brennan addressed the topic of "insight". It is submitted the evidence establishes, to the Tribunal's satisfaction, that Dr Brennan has developed insight into the circumstances which gave rise to the transgressions identified by the finding of the Tribunal in May 2017. It is submitted that he has undertaken the recommended courses in Ethics and he has sought and undertaken treatment by his psychiatrist and his psychologist. He has sought out advice from a fellow medical practitioner with whom he served as a member of the Australian forces overseas. He explained the reason why he chose that medical practitioner as a confidante.
18. It is submitted that Dr Brennan has developed good insight into the circumstances which gave rise to his failure to maintain proper boundaries with his patients.
19. Dr Brennan submits that the risk to the public of any "unsafe practise" by him, should he be permitted to practise as a medical practitioner again, is minimal and within the boundaries of acceptable. It is further submitted that the risk of unsafe practise is contained by the imposition of appropriate conditions upon his registration.
20. Dr Brennan acknowledges what was said in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, by the Tribunal at [24] "The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a medical practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the medical profession."
21. It is submitted that: "The Tribunal would be satisfied that the applicant's previous misconduct is adequately explained by a combination of mental ill health, alcoholism and overwork. Given his abstinence from alcohol, sustained improvement in his mental health, positive changes in his lifestyle and his commitment to working part time, it is unlikely he would again find himself in a similar situation. Importantly, each of these factors can be controlled".
22. Dr Brennan, in his submission, refers to the evidence of Dr Wright and Dr Kendurkar and the positive prognostic indicators which were referred to. Dr Brennan has identified those factors as follows: "The positive prognostic factors, motivations and also strategies which have been implemented to avoid the risk of recurrence include: (a) Abstinence from alcohol which itself speaks of discipline and commitment; (b) Extensive treatment for PTSD, major depression; (c) Much improved physical health; (d) Selling the hotel, commitment to life balance, relationships and not overworking; (e) Re-engagement with relationships and commitment not to jeopardise relationship with his youngest children amongst others; (f) Continued focus on personal vulnerabilities (Dr Ventura); deficits (Dr Kendurkhar); (g) Protective benefit to be obtained from mentoring, supervision and support group; (h) Very significant level of insight, and accountability (according to Dr Wright); (i) Good insight into his personal and patient risk factors (according to Dr Ventura); (j) Acceptance of responsibility for his conduct with Patient A and Patient B; (k) Forthright and frank manner of the applicant's evidence before this Tribunal; (l) A chance to redeem his reputation given previous humiliation, and embarrassment; (m) Strong motivation to care for those less fortunate, to 'help the underdog' and serve the community, including the Aboriginal community, in an appropriate manner."
23. Dr Brennan addressed the heading "Public interest." He drew to the attention of the Tribunal the following extract: "There is no public interest in denying forever the chance of redemption and rehabilitation…. 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." Coe v HCCC [2013] NSWNMT 12 at [23].
24. Dr Brennan submitted "In balancing the public interest, the Tribunal would weigh heavily the following: (a) to the extent there is a public interest in deterrence, it is submitted the sanctions have had a deterrent effect on the applicant, and the public interest has been served; (b) the findings of the first Tribunal in relation to public interest: [R2 p81 at 55] "The Tribunal has taken into account that because the practitioner is such an excellent clinician, any period of cancellation or suspension will deny his patients his excellent services for that period and in that regard is contrary to the public interest"; (c) the Tribunal also heard the evidence of Dr Ventura that it may be in the public interest for the aboriginal community to have access to a practitioner such as the applicant, as an aboriginal practitioner they can identify with and relate to, accessing his services in a safe and appropriate manner."
25. Dr Brennan submits: "Having previously exhibited deficiencies in standards of conduct, it is submitted the required 'clear proof' to show he has established himself as a "different man" and "reformation of character" per Ex Parte Tziniolis is starkly evident in this case: (a) the applicant has shown great discipline in abstinence from alcohol; (b) he has committed to medical treatment, his major depression and PTSD are in remission, and he has effected substantial changes to personal life and boundaries; (c) to the extent he may have had symptoms as a result of Adult ADHD, or Dexamphetamine, that is no longer the case; (d) he has sold the hotel, engaged in hobbies and interests outside of work and is committed to not over-working and maintaining a work/life balance; (e) he has re-engaged with relationships, such as with his young children which he does not want to jeopardise and is in a stable relationship with a solid support base; (f) he is motivated by having lived the experience of harrowing disciplinary proceedings, public humiliation, loss of livelihood, maintaining his relationships, his love of the profession and his clear motivation to help and serve his community."
26. Lastly in his submission, Dr Brennan addressed the conditions he said would be appropriate and welcomed, should the Tribunal consider he is fit person to again be registered as a medical practitioner. We have set out the conditions he proposes earlier in these reasons.

Submissions provided by the Medical Council

1. The respondent provided a written submission.
2. The respondent's primary submission is that Dr Brennan should not be reinstated as a registered medical practitioner. If the Tribunal is against that submission, then the Medical Council would propose that his registration be subject to conditions. We will set out those conditions later after considering the submission of the Medical Council.
3. The Medical Council submission is that the power to reinstate should be exercised with great caution and only upon solid and substantial grounds. What is in question in this application, submits the Medical Council, is whether Dr Brennan is a fit and proper person to be held out to the rest of the profession, to patients and to the whole of the community, as a person worthy of their confidence.
4. The Medical Council submits that the standard of proof is that contained in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3, and that by reason of the seriousness of the allegations and the gravity of the consequences, the Tribunal must be comfortably satisfied that what Dr Brennan has to prove has been established.
5. It is submitted by the Medical Council that: "Dr Brennan is not a fit and proper person to practise medicine because: (a) His understanding of boundaries is superficial. (b) He has not addressed a personality defect that was a part of his initial boundary violations, namely his inability to say no. (c) He lied on oath at his first Tribunal hearing. He did so to present himself in the best light at those proceedings. (d) He has not been candid with this Tribunal. He has deliberately withheld information from this Tribunal. He has misrepresented facts to this Tribunal. (e) His continuing denial of his conduct is relevant to his future risk."
6. The Medical Council submits that the Tribunal will assess Dr Brennan's worthiness and reliability to practise medicine in the future. It submits the assessment is central to the reinstatement application.
7. The Medical Council submits the Tribunal should be circumspect about the many answers Dr Brennan gave in his evidence about his being in a "bad place" previously and having little memory of important details.
8. In relation to Dr Brennan's understanding of boundaries and their submission that such an understanding was superficial, the Medical Council submits that on many occasions during his evidence, Dr Brennan repeated that it was wrong to cross over boundaries. That in its self is not sufficient to establish that he understands what proper boundaries with patients actually entail.
9. The Medical Council referred to the evidence of Dr Ventura who stated that his understanding of doctor/patient boundaries was superficial. It submitted that the evidence of Dr Ventura should be preferred to that of Dr Wright on this matter.
10. The Medical Council submitted there are two clear examples of Dr Brennan having a superficial understanding of boundaries. The first example is when he nominated his own general practitioner as a possible mentor. The second example was cited by Dr Ventura where she reported that Dr Brennan had told her, in an over-familiar manner, that she reminded him of his first wife both in looks and behaviour. The Medical Council submits that the Tribunal would be sceptical about his explanation of the circumstances surrounding the statement made to Dr Ventura.
11. As a matter of fairness, the Medical Council referred to the evidence of Dr Wright when asked about Dr Brennan nominating his general practitioner as a mentor. The Medical Council included the following quote from the evidence of Dr Wright: "I wouldn't use the word poor understanding. I think to call it poor understanding is a bit excessive".
12. The Medical Council submitted that Dr Brennan continues to diminish the seriousness of treating patient B while in a relationship with her.
13. In support of that submission, the Medical Council refer to the evidence surrounding Dr Brennan's lack of reference to his relationship with Patient B when speaking to Dr Fogarty. He also did not inform Dr Kendurkar that he had treated Patient B at a time when he was in a relationship with her.
14. In the submission of the Medical Council, references were made to the evidence of Dr Ventura where she reported an answer given by Dr Brennan as trivialising his treatment of Patient B, by reference to the supply of prescriptions as the only treatment he had provided to her during the course of the relationship. In the transcript that is attached to the submission, an extract of the explanation given by Dr Brennan to the suggestion that he was trivialising the matter, is included. There, Dr Brennan acknowledges that it was "totally wrong" to treat a Patient B whilst in a relationship with her.
15. The Medical Council submitted that Dr Brennan has not addressed a personality style that in part contributed to his boundary violations, namely his inability to say "no". In support of the submission, the Medical Council referred to the evidence of Dr Ventura. The Medical Council submitted that examples of this personality style identified by Dr Ventura, included Dr Brennan seeing patients out of hours and on weekends and lending money to his patients. This included one of $48,000 albeit for a short time.
16. It was submitted that the evidence did not disclose any current therapy being received by Dr Brennan for the "personality style" identified by Dr Ventura.
17. The Medical Council addressed the submission that Dr Brennan had lied at his first Tribunal hearing. It was submitted that Dr Brennan lied on oath and he did so to benefit himself. It is submitted that the act of lying on oath is fundamentally inconsistent with the high standard of conduct which the community requires of a doctor. The lying on oath was identified as relating to the use of alcohol and to his involvement in the hotel business at the time he conducted a relationship with Patient A.
18. The Medical Council submitted that the evidence given by Dr Brennan indicated the level of deliberateness and deception involved in his conduct. His answer that he was "very embarrassed" should be rejected as a poor attempt to explain his lying.
19. It was submitted by the Medical Council that Dr Brennan has not been candid with the Tribunal. In support of that submission, it is stated that Dr Brennan had not advised the Tribunal of his diagnosis of adult ADHD. It is submitted that the failure to disclose that diagnosis was a conscious decision not to fully disclose his medical history.
20. It was submitted that Dr Brennan described Dr Saker as a "mentor" in his written statement. Further, it is submitted that given the nature of the reinstatement proceedings, Dr Brennan must have understood the importance of the word "mentor" in this application. It is submitted that Dr Brennan's explanation that he used the word "mentor" in an attempt to make his statement formal, should not be accepted. It is submitted that Dr Brennan could have simply set out the true nature of this relationship with Dr Saker.
21. The Medical Council submits that Dr Brennan's continuing denial of his conduct in relation to Patient A is relevant to his future risk. It is submitted that Dr Brennan maintains he did not have a relationship or any physical or sexual contact with Patient A. The Medical Council further submitted that the evidence of both Dr Ventura and Dr Wright spoke of the impact on the future risk, which might attend Dr Brennan practising medicine, if his denials were incorrect.
22. It was further submitted that in order for Dr Brennan to receive successful treatment for his illness, he needs to be candid with his treating doctors. It is submitted that he has not been candid with Dr Kendurkar about his history. The Medical Council cited large portions of the transcript of evidence given by both Dr Kendurkar and Dr Brennan about his disclosure of the onset of inappropriate use of alcohol.
23. The final submission of the Medical Council is as follows:- "Conclusion. 64. The purpose of the jurisdiction this Tribunal exercises is "not punishment or further punishment". Rather, the jurisdiction that is exercised is for the protection of the public. 65. There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance. 66. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community, as a person worthy of their confidence. 67. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession. What is at stake is not so much the reputation of the applicant, but the Tribunal's assessment of the applicant's character, uprightness, honour and trustworthiness. 68. Dr Brennan's superficial understanding of boundaries, demonstrated by his nominating his GP to be his mentor, and by his continued justifying of his treatment of Patient B while he was in a relationship with her, are evidence that Dr Brennan has not affirmatively proved his reform. Dr Brennan has not adequately dealt with a risk factor, which is his personality style of an inability to say no. 69. Dr Brennan lied under oath in the NCAT proceedings, about his use of alcohol and about how much time he was spending at the hotel he invested in. Dr Brennan's lying under oath is a serious breach of his professional obligations. Dr Brennan has not been candid with this Tribunal about all of the circumstances relevant to his current situation. 70. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus. An applicant must in effect displace the decision for deregistration which has been made. 71. To practise as a health professional this Tribunal must find that Dr Brennan is a "fit and proper person for general registration". The practitioner must be able to practise his or her profession competently and safely: s. 55(1)(h). 72. For the reasons set out in these submissions, Dr Brennan is not a fit and proper person for registration.
24. The Medical Council submitted that if the Tribunal was minded to allow the reinstatement of Dr Brennan, then it would submit the conditions to attend such reinstatement should include the following: "ANNEXURE: PROPOSED CONDITIONS IF DR BRENNAN IS TO BE REINSTATED 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner): (a) Where the patients and patient records are shared between the medical practitioners; (b) Where there is always one other registered medical practitioner on site. Limiting Practice 3. To practise no more than 35 hours per week and no more than 5 days per week. 4. To treat no more than 4 patients per hour or 25 patients in any one day. Supervision 5. To practise under category B supervision 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 Council's Compliance Policy - Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for a minimum period of one hour. (b) At each supervision meeting, the practitioner is to review and discuss his practise with his approved supervisor with particular focus on: •Professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; • Recent developments in clinical practice; • Workload management; • Clinical performance; • Medical record reviews; • Clinical outcomes. (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 relevant Council decision or report. (d) Not to practise until a supervisor has been approved by the Medical Council of NSW. Mentoring 6. To nominate an experienced General Practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each mentoring meeting the practitioner is to include discussion of the following: • Personal and/or professional development • Personal and/or medical practise issues as they arise • Personal and/or professional boundary issues • Work/life balance and personal wellbeing (b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. Notification and Monitoring 7. 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. 8. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health conditions 9. To attend for treatment by a general practitioner of his choice. 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: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). (b) Must provide the Council with the professional details of the treating practitioner. 10. To attend for treatment by a psychiatrist of his choice. 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: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). (b) Must provide the Council with the professional details of the treating practitioner. 11. To take any medication as prescribed by his treating practitioners. 12. The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council-appointed practitioners. 13. To abstain completely from the consumption of alcohol. 14. To comply with the Medical Council's Alcohol Screening Policy and Participant Procedure: EtG screening (as varied from time to time) and attend for EtG screening (urine) 2 times per week. 15. To attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW. 16. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Council. 17. To authorise the Medical Council of NSW to forward copies of the decision which imposed this condition and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his/her treating practitioners."

CONCLUSION

1. We have carefully considered the evidence and the submissions in this matter, and we conclude, on balance, that it is appropriate for Dr Brennan to be reinstated as a medical practitioner. Our conclusion is based on the following findings and conclusions.
2. Dr Brennan has shown his commitment to continuing to practise medicine by undertaking continuing medical education (accumulating 217 CPD points) together with completing a course in Ethics conducted by the Ethics Centre in Sydney.
3. Dr Brennan has continued to address his mental health issues by attendance upon his psychiatrist, Dr Kendurkar and his psychologist, Ms Poole.
4. Dr Brennan has attended to his physical health by exercise, abstinence from alcohol use and improved diet. He has improved his life interests by engaging with his family members and finding enjoyment in being able to spend time with his children. We accept he is committed to embracing a different work/life balance, to that he had when he last practised, if he is permitted to return to practise. He will no longer embrace the arduous and frenetic work schedule he had undertaken before his de-registration.
5. We find that during the period he was transgressing, Dr Brennan was affected by PTSD, a condition which was not controlled or treated, and later by alcohol use disorder. By the time he was admitted to hospital in mid-2017, he was also suffering a Major Depressive Disorder. We are satisfied that those three conditions have changed now to a point where he does not consume alcohol and his mental health has improved. We are satisfied that conditions can be imposed upon the registration of Dr Brennan, should he return to practise, which will safely guard against his practising medicine, whilst suffering with any of the aforementioned disorders, should any re-occur.
6. We have had regard to the complaints, made against Dr Brennan, which the Medical Council has provided as part of exhibit R2. We reach the following conclusion in relation to those complaints. Firstly, we acknowledge that any complaint against a medical practitioner needs to be seriously investigated by the Medical Council or the HCCC when received. We are satisfied that is what occurred, in relation to the complaints (contained at tabs at the conclusion of exhibit R2 three in total), which were made in 2011, 2012 and 2013. Each complaint has been addressed by Dr Brennan in lengthy letters to the HCCC. No action has been taken by the Medical Council or HCCC against Dr Brennan in relation to any of the complaints. It is not suggested by the Medical Council or HCCC that any of the complaints address doctor/patient boundary violations.
7. The number of complaints, which the Medical Council and HCCC has been able to place before the Tribunal, needs to be measured against the testimonials from patients and medical practitioners, which were referred to in the decision of the Tribunal published on 11 April 2018. The number of complaints also needs to be considered alongside the number of patients Dr Brennan must have seen over a lengthy number of years, when he was working at an excessive pace and over a number of different practices/hospitals/medical outlets.
8. Dr Kendurkar supports Dr Brennan being reinstated to medical practise.
9. We accept the evidence of Dr Wright, which we have referred to earlier. In particular we take note of the following: The report provided by Dr Wright is dated 28 January 2020. In this report we note the following: "He is an empathic person and is strongly driven with the feeling to "protect his patients" which may have contributed to the transgression of boundaries." He further said: "In summary, I believe that Mr Brennan had shown substantial change and commitment in terms of his mental health symptoms, as well as his personal life and boundaries, in the last two years. He has attended various courses on ethics and boundaries. He has also volunteered with the Retired Service League and the Uniting Services Club to help other veterans. Mr Brennan shows great commitment towards the medical field and has been a medically competent clinician. I believe that with adequate support, structured processes and supervision, he may be able to practise safely as a medical practitioner."
10. We accept the advice of Dr Wright which we noted earlier as: "In relation to future recommended treatment, Dr Wright opined that the current regime of treatment being received by Dr Brennan, "should continue until the target symptoms of EMDR (eye movement desensitisation and reprogramming) are completely resolved and I would expect Dr Brennan to stay in contact with a psychiatrist for review for the foreseeable future given the potentially recurring nature of PTSD."
11. We also accept Dr Wright's evidence about the possible re-emergence of the conduct, on the part of Dr Brennan, which led to his providing misleading and deliberately untrue responses to the HCCC. Dr Wright said: "In my opinion his improved mental state, his abstinence from alcohol, his significant levels of insight and his recognition of the factors that contributed to the transgression lead me to conclude that there is a very low likelihood of transgression in the future and a very low likelihood of circumstances where Dr Brennan would provide misleading responses to the Commission."
12. We accept the following evidence of Dr Wright, which we have set out earlier and which we repeat here: "Dr Ventura indicated that she did not agree with my conclusion that the risk of boundary transgressions in the future was low, and instead indicated that there was "a small to moderate risk that he may breach in the future unless he has in place a proper network of professional supervision and support." Dr Wright reaffirmed the opinion provided by him in his report and added the following: "I would however, agree with the inference in Dr Ventura's report that, should Dr Brennan return to clinical practice, it would be important to ensure that he continued in treatment with a psychiatrist, that he abstain from alcohol or recreational drugs, that he work under supervision, and that he be required to meet regularly with a mentor, who was neither one of his treating practitioners, nor was directly associated with the practice in which he worked. I would also suggest that, given the likely relevance of Dr Brennan's habit of working excessive hours at multiple jobs in the past, consideration should be given to imposing conditions that limit the number of hours worked and the number of patients seen each day."
13. Dr Brennan's psychologist, Ms Poole, supports Dr Brennan returning to the practise of medicine. We accept her report, which we have detailed earlier.
14. Dr Jones, who is Dr Brennan's GP, opined that Dr Brennan was now fit to return to work as a medical practitioner.
15. The Tribunal, when making protective orders on 11 April 2018, took into account that Dr Brennan had not practised medicine since May 2017 and had surrendered his registration on 14 July 2017. The Tribunal considered an appropriate order would be a cancellation of registration and imposed a period during which he could not apply for reinstatement, which would expire on 14 July 2018 (a mere three months after the Tribunal made its order). The Tribunal also stated it understood there would be a time lag following 14 July 2018, during which Dr Brennan would have to wait to have his application for reinstatement heard by the Tribunal, due to the delays which were then experienced between the date of filing an application in the Tribunal and having it determined. What we draw from the orders, made by the Tribunal on 11 April 2018, is that the requirements of the National Law had been met by a cancellation period of 12 months, together with, the understanding that when Dr Brennan did apply again to the Tribunal, he would be required to satisfy the Tribunal, his circumstances had changed to such an extent, that it would be appropriate to make a reinstatement order.
16. We have had regard to the evidence of Dr Ventura. In particular, we note the following opinions she provided in her report:

• There was some evidence of over-familiarity with the examiner when he told her she reminded him of his first wife;
• He had a good intellectual understanding of what constitutes professional boundaries;
• His understanding of professional boundaries did not appear complete.
• There were some inconsistencies between the documented history provided by the HCCC to Dr Ventura and the history provided by Dr Brennan;
• She found no evidence of psychosis;
• He was grossly cognitively intact;
• If the allegations, denied by Dr Brennan, yet made by Patient A to the first hearing, were true, then Dr Brennan demonstrates "an unwillingness to take responsibility for his own actions and puts him at risk of future boundaries violations";
• Dr Ventura was of the view that Dr Brennan's understanding of professional boundaries was superficial. She considered some of his statements in the interview demonstrated "some fragility of interpersonal boundaries";
• That Dr Brennan appears to have good insight into his personal and patient risk factors which led to his failure to maintain proper professional boundaries. He recognised the role of overworking;
• Dr Ventura found no evidence of major depressive illness. She found minimal evidence of any PTSD symptoms;
• She said he appears to have a personality style that leads him to want to please people. This can be a positive feature, however, it may indicate a risk factor. Psychotherapeutic intervention may be useful;
• She opined that without ongoing monitoring and appropriate therapy it is likely that Dr Brennan may transgress in times of personal stress";

1. Her final opinion is noted as "In my view, should Dr Brennan be permitted to practise medicine there is a small to moderate risk that he may breach boundaries in the future unless he has in place a proper network of professional supervision and support."
2. We have considered the totality of Dr Ventura's evidence and we conclude that she was, in some of her evidence, over cautious in her view about the possibility of Dr Brennan breaching professional boundaries in the future. We do prefer the opinion of Dr Wright; however, we conclude there was very little difference between their positions in relation to the possibility of Dr Brennan again not keeping proper professional boundaries, should he be permitted to return to practise. They both agreed he will need support from both psychiatric and psychological professional services and we accept that opinion.
3. In reaching our conclusion we have acted in compliance with s 3A of the National Law, which requires that: "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." We are also cognisant of the requirement that to practise medicine a person must be a "fit and proper person for general registration" and be able "to practise medicine competently and safely."
4. We have taken account of the decision in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and also the decision of Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] as we have set out earlier in these reasons.
5. We have also considered the words of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 where he stated at [101]: "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
6. We have considered the principles to be adopted when considering an application of reinstatement, as set out in the decision in Zepinic v Health Care Complaints Commission (No 2) (Zepinic) [2018] NSWCATOD 16. We have set those principles out earlier in these reasons.
7. The decision in Zepinic emphasises the Tribunal's assessment of the applicant as an underlying consideration in the determination.
8. We have had a considerable period of time, during the hearing, to see and hear from Dr Brennan. We have been able to ask him our own questions, to listen to others ask him questions and to observe him cross-examined by a skilled counsel. We have heard a great deal of evidence about Dr Brennan as a person and as a medical practitioner. We consider, based upon all that evidence, that he is now a person of integrity, who has applied himself with great purpose to reform and again practise medicine in a manner beneficial to his patients and in a manner which complies with all the conditions which attend the good and ethical practise of medicine. We determine he does have a great deal to offer the community in which he practises medicine and he may well fulfil a special need for the local Aboriginal people who could feel more comfortable attending upon a medical practitioner with the same heritage.

• To obtain the approval of the Medical Council of NSW prior to changing the nature or place of his practice.
• That Dr Brennan be abstinent from alcohol and to attend for testing, with the Medical Councils Alcohol Screening Policy and Participant Procedure: EtG screening. The testing is to be twice weekly and then as required by the Medical Council of NSW.
• To practise no more than 35 hours per week and no more than 5 days per week.
• Otherwise than where an emergency unscheduled presentation of a patient occurs, to treat no more than 4 patients per hour or 25 patients in any one day.
• Within seven days of the end of each calendar month, provide to the Medical Council, a record of the number of hours worked, the number of patients seen and the number of hours spent in direct consultation with his supervisor, during that month.
• To have a mentor approved by the Medical Council under the Medical Council of NSW Compliance Policy-Mentoring.
• To authorise Medicare to provide information, requested by the Medical Council of NSW, as may be necessary for the Medical Council to monitor compliance by Dr Brennan with these conditions.
• To attend for assessment and treatment by a General Practitioner and psychiatrist of his choice at a frequency determined by those practitioners and to authorise those practitioners to provide details to the Medical Council as is necessary to establish compliance with these conditions and also to inform the Medical Council of any deterioration in his mental health, which can reasonably be predicted to have an adverse impact upon his ability to function as a medical practitioner.
• To take any medication prescribed by his treating practitioners and to act upon their recommendations in relation to his professional medical duties.
• To attend upon a Medical Council of NSW appointed psychiatrist for assessment as directed by the Medical Council.
• To attend a Medical Council of NSW Review Interview on a three monthly basis or as directed by the Medical Council of NSW.
• To practise in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners, in addition to Dr Brennan and where there is usually one other registered medical practitioner working in the practice at the same time as Dr Brennan.

1. We propose that pursuant to s 163, the appropriate review body should be the Medical Council of NSW. We propose further to provide that ss 125 to 127 of the National Law are to apply whilst the practitioner's principle place of practice is anywhere in Australia other than New South Wales. The review body would then become the Medical Board of Australia.
2. There is a difference between the Medical Council and Dr Brennan as to whether category B supervision (sought by the Medical Council) or category C (as sought by Dr Brennan), in accordance with the Medical Council of NSW Compliance Policy- Supervision, should be imposed as a condition. We have considered the requirements of each of those categories, as published by the Medical Council of NSW. We consider that category B supervision is required in the circumstances of this case to protect the public. Dr Brennan had a very severe illness and a significant alcohol disorder when he was last in practice. It is therefore necessary, we conclude, for the protection of the public, that a more comprehensive form of supervision be imposed in the first place, than would be available under category B. Upon review by the Medical Council of NSW, that form of supervision can be varied as the Medical Council of NSW considers necessary and appropriate.
3. We propose to adopt the conditions submitted by the Medical Council, unless we consider any too onerous for the circumstances of the case, or unreasonably onerous for compliance by Dr Brennan. It cannot be in the interests of the practise of medicine generally, or the wellbeing of Dr Brennan, to impose conditions which, because they have such an onerous impact upon him, exacerbate his mental health and reduce his ability to optimally perform as a medical practitioner. Where we consider there is a potential for that to eventuate, we will either modify the condition or not impose same.
4. One of the conditions sought by the Medical Council and also Dr Brennan is that he be totally abstinent from alcohol. We conclude such a condition necessary for so long as the Medical Council of NSW deems that condition is necessary. We will also require Dr Brennan to comply with the Medical Council's Alcohol Screening Policy and Participant Procedure. That will require EtG screening (urine) commencing twice weekly until the Medical Council of NSW determines that should change. We understand that requirement will be onerous and possible demeaning for Dr Brennan as it will need to be supervised, however, we consider that regime of testing is required having regard to the historical intake of alcohol, as has been evident in this case.
5. In relation to the number of patients which Dr Brennan can see on any one day, we propose to limit that to 25 patients in a face to face consultation.
6. In relation to the number of patients Dr Brennan will be permitted to see in any one day, we note that will not prevent Dr Brennan attending to the treatment of a patient in an emergency as defined in s.139C(c) of the National Law.
7. We propose that the Medical Council of NSW will be the review body for the conditions we impose. We anticipate that body will review the conditions we have imposed from time to time and that as Dr Brennan satisfies the Medical Council that it is appropriate to modify or extinguish any of the conditions it will do so.

Orders 1. ORDER under s 163(1)(c) of the Health Practitioner Regulation National Law ("the National Law") that Keith Ian Brennan ("the practitioner") may apply to the Medical Board of Australia for registration as a medical practitioner. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 3. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 4. ORDER that upon the practitioner becoming registered on the register of practitioners maintained by the Australian Health Practitioner Regulation Agency on behalf of the Medical Board of Australia the following conditions are imposed on his registration. 5. Practice conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) and where there is predominantly one other registered medical practitioner always on site. 3. To practise no more than 35 hours per week and no more than 5 days per week. 4. To treat, no more than 4 patients per hour or 25 patients in any one day 1. This condition does not prohibit the practitioner from providing emergency medical services to a patient in compliance with section 139C(c) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 5. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a statement of the hours worked, the number of patients seen and the number of hours spent in consultation with his supervisor in the preceding month. 6. To practise under category B supervision 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. 1. The terms of the Council's Compliance Policy - Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for the first 12 weeks of the practitioner recommencing practice, with the provision of monthly reports to the Medical Council of NSW during the first 12 weeks. 2. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: * professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; * recent developments in clinical practice; * workload management; * clinical performance including review of medical record and clinical outcomes. 1. 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 relevant Council decision or report. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 3. To be supervised for a minimum period of two (2) years and as subsequently determined by the Council. 7. To nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the Medical Council of NSW. 1. At each mentoring meeting the practitioner is to include discussion of the following: * Personal and/or professional development * Personal and/or medical practice issues as they arise * Personal and/or professional boundary issues * Work/life balance and personal wellbeing 1. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 2. To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. 3. To be mentored for a minimum period of two (2) years and as subsequently determined by the Council. 8. 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. 9. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions 10. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. Must provide the Medical Council of NSW with the professional details of his treating practitioner. 11. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. Must provide the Medical Council of NSW with the professional details of the treating practitioner. 12. To take any medication as prescribed by his treating practitioners. 13. To act upon the advice of his treating practitioners so that the extent of his professional medical duties is guided by his health status and the advice of his treating and Council-appointed practitioners. 14. To abstain completely from the consumption of alcohol. 15. To comply with the Medical Council's Alcohol Screening Policy and Participant Procedure: EtG screening (as varied from time to time) and attend for EtG screening (urine), commencing with twice-weekly screening. 16. To attend for review by a Council-appointed psychiatrist at the conclusion of his first three months of practice and thereafter on a three-monthly basis or as otherwise directed by the Medical Council of NSW. 17. To attend a Medical Council of NSW's Review Interview on a three-monthly basis or as otherwise directed by the Council. 18. To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions, and any subsequent Council Review Interview or other reports, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating practitioners. 1. The parties are to forthwith commence consultation for the purpose of endeavouring to reach agreement as to a cost order, which might be made by consent. In the event of agreement, the parties are to file the form of consent order to be made. In the event of no agreement being reached, then any cost order being sought is to be filed and served, with short submission attached, within 21 days from the date hereof. The party receiving service of that application and submission, is to respond by filing and serving a response within a further 21 day period.

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 14 September 2020 - Amendment made to Solicitors. 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: 14 September 2020