Health Care Complaints Commission v Mooney

Health Care Complaints Commission v Mooney - [2021] NSWCATOD 206 - NSWCATOD 2021 case summary — Zoe

Contents REASONS FOR DECISION Background History with regulatory authorities The evidence before us The Surgery Complaint Complaint One Patient A The events leading up to and including the operation on 15 February 2018 Complaint One particular 1 Complaint One particulars 1 (a) and 1 (b) Findings - Complaint One particulars 1 (a) and 1 (b) Complaint One particular 1 (c) Findings - Complaint One particular 1 (c) Complaint One particular 1 (d) Findings - Complaint One particular 1 (d) Complaint One particulars 1 (e) and (f) Findings - Complaint One particulars 1 (e) and (f) After the operation Complaint One particulars 2 (a) and (b) Findings - Complaint One particulars 2 (a) and (b) Complaint One particulars 3 (b) and (c) Findings - Complaint One particulars 3 (b) and (c) Complaint Two Complaint Three Patient B The events leading up to operation on 28 September 2017 Complaint Three particular 1 (c) Findings - Complaint Three particular 1 (c) The events leading up to the last operation on 24 November 2017 Complaint Three particular 2 (a) Findings - Complaint Three particular 2 (a) Complaint Three particular 2 (b) Findings - Complaint Three particular 2 (b) The operation on 24 November 2017 Complaint Three particular 2 (c) Findings - Complaint Three particular 2 (c) Complaint Three particulars 2 (d) and (e) Complaint Three particulars 2 (f) Findings - Complaint Three particular 2 (f) Complaint Three particulars 2 (g) and (h) Findings - Complaint Three particulars 2 (g) and (h) Complaint Three particulars 2 (i) and (k) Finding - Complaint Three particulars 2 (i) and (k) Complaint Three particular 3 (a) Finding - Complaint 3 particular 3(a) Additional matters Appropriate emergency response Findings - appropriate emergency response Failure to use ECG Findings - ECG Complaint Four Patient C Factual findings Complaint Four particular 1 Findings - Complaint Four particular 1 Complaint Four particular 2 Findings - Complaint Four particular 2 Finding Complaint Four particular 2 Complaint Four particular 3 Findings - Complaint Four particular 3 Complaint Four particular 4 Finding - Complaint Four particular 4 Complaint Four particular 5 Finding - Complaint Four particular 5 Complaint Four particular 6 Complaint Four particular 7 Finding - Complaint Four particular 7 Complaint Five Complaint Five, particular 1 (a) - patient A Findings - Complaint Five particular 1 (a) Complaint Five, particular 2 - patient B Finding - Complaint Five particular 2 Complaint Five, particular 3 - patient C Complaint Six Complaint Six particular 1 Complaint Six particular 2 Complaint Six particular 3 Complaint Seven The Conditions Complaint Complaint One Complaint One particular one Findings - Complaint One particular 1 Complaint One particulars 2 to 8 Findings - Complaint One particulars 2 to 8 Complaint Two Complaint Two particulars 1 to 5 Findings - Complaint Two particulars 1 to 5 Complaint Two particular 6 Finding - Complaint Two particular 6 Professional misconduct Patient A Patient B Relationship with patient C and prescribing to patient C Misleading regulatory authorities Breach of condition 8 on Dr Mooney's registration Finding - professional misconduct Legal Principles Onus of proof Conduct below standard Improper or unethical conduct Medical terminology Attachment One - the Surgery Complaint Patient A Patient B Patient C Attachment Two - the Conditions Complaint

[4]

REASONS FOR DECISION

Dr Mooney is an ear nose and throat surgeon.
The Health Care Complaints Commission has filed two Applications for Orders against Dr Mooney. Orders have been made for the two matters to be heard together.
The first Application for Orders (described in these proceedings as the Surgery Complaint being proceedings no. 2019/294814) relates to the treatment of three patients - who have been referred to as patients A, B and C. Patients A and B died after undergoing operations performed by Dr Mooney.
In the Surgery Complaint, the HCCC asserts that Dr Mooney is guilty of unsatisfactory professional conduct because: 1. In performing an operation on patient A on 15 February 2018, the knowledge, skill and/or care he exercised was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; 2. In performing operations on patient B on 28 September 2017 and 24 November 2017 the knowledge, skill and/or care he exercised was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or was improper or unethical conduct relating to the practice of medicine. 3. His conduct in forming a personal relationship with and prescribing medication to patient C demonstrated that the knowledge, skill or the care he exercised was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or was improper or unethical conduct relating to the practice of medicine. 4. He contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 by failing to make adequate records for patients A, B and C. 5. He engaged in improper or unethical conduct relating to the practice of medicine by misleading Council delegates on 1 February 2017 in statements he made concerning patient C.
In the Surgery Complaint the following Orders were made: 1. Pursuant to s64(1)(a) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW): 1. The publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited. 2. The disclosure of the contents of any document lodged with the Tribunal in relation to the patients set out in the Schedule to the Complaint is restricted to the parties to the proceedings.
In the second Application for Orders (described in these proceedings as the Conditions Complaint), being proceedings no. 2019/4400872, the HCCC asserts that Dr Mooney is guilty of unsatisfactory professional conduct because: 1. He breached several conditions on his registration. 2. He engaged in improper or unethical conduct relating to the practice of medicine by making misleading statements to the Medical Council and the HCCC.
In both the Surgery Complaint and the Conditions Complaint the HCCC says that the conduct, when considered together, is professional misconduct.
In the Conditions Complaint the following Order was made: 1. Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication by any person or entity of the name of the patients set out in the Schedule to the Complaint is prohibited.
The full text of each of the two Complaints (without the schedules and annexures) are Attachments One and Two to these Reasons.
Some of the matters asserted in the Complaints have been admitted by Dr Mooney.
We have, at the end of these Reasons, set out a dictionary of the medical terms we have used.
We have also, later in these Reasons, discussed the relevant legal principles we exercised in making our decisions.
This matter proceeded as a Stage One hearing which means we have been asked to determine whether the HCCC has established each of the particulars of the two Complaints. We will later, at the Stage Two hearing, decide on the Orders which should be made as a result of our findings.

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Background

Dr Mooney was first registered as a medical practitioner in Australia on 10 December 1990 after graduating from Monash University. In 2001, Dr Mooney was admitted as a Fellow of the Royal Australasian College of Surgeons (FRACS) and completed a Facial Plastic Surgery fellowship with the Australasian Facial Plastic Surgery Association in Sydney.
Dr Mooney completed the additional following fellowships between 2001 and 2003: 1. Head and Neck fellowship at the Royal National Throat, Nose and Ear Hospital in London. 2. Rhinoplasty fellowship at the Royal National Throat, Nose and East Hospital in London. 3. Head and Neck visiting fellowship at the Memorial Sloan Kettering Cancer Centre in New York. 4. Visiting Voice and Laryngology Fellowship with Jean Abitol, Voice Clinic in Paris. 5. Visiting Cosmetic Facial Fellowship with Frank Kamer, Lasky Clinic in Los Angeles.
Dr Mooney worked as a Visiting Medical Officer at various hospitals from 2003 to 2017.
Dr Mooney first established his private practice in 2006 at Bankstown. Over the years Dr Mooney's practice expanded to three locations; Bankstown, Bondi Junction and Bondi Beach. Dr Mooney's private practice included 'Medi-Spas' at each location, which offered facial and laser treatments and cosmetic injectables. Dr Mooney also had satellite clinics in Melbourne and Darwin. Dr Mooney employed two junior doctors and 40 staff.
Dr Mooney's private practice work involved him performing functional rhinoplasty procedures and cosmetic surgery, including eyelid surgery, thread lifts, facial implants and otoplasty. Dr Mooney also consulted with patients for general ENT issues, including issues related to sleep apnoea and sinus, head and neck cancer and adenoid and tonsillectomy problems.
Although Dr Mooney consulted with patients at his private practice locations, the surgical procedures took place at one of the hospitals at which he had visiting rights.
According to Dr Mooney, at the time of these Complaints he was performing approximately 200 rhinoplasty procedures per year, 100 functional endoscopic sinus surgeries (FESS) per year and approximately 40 other minor surgeries per year, such as tonsillectomies and grommets.

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History with regulatory authorities

Section 150 of the Health Practitioner Regulation National Law (the National Law) provides that the Medical Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons or if satisfied the action is otherwise in the public interest, either suspend a doctor's registration or impose conditions on his or her registration.
On 1 February 2017 the Medical Council, pursuant to s 150, convened an inquiry to consider a Complaint which had been made in relation to Dr Mooney's treatment of and relationship with patient C. After hearing from Dr Mooney, the delegates imposed conditions on his registration that he not prescribe for self-medication, not self-administer drugs of addiction and that he attend for thrice-weekly urine drug testing.
Section 150A of the National Law enables a doctor to apply for the review of a decision of the Council. Dr Mooney did so. After a hearing on 22 August 2017, the delegates determined that the thrice-weekly urine drug testing was no longer necessary. That condition was removed.
On 15 March 2018 another s 150 hearing undertook an Inquiry into the matters raised in relation to patients A and B. The delegates placed a number of additional conditions on Dr Mooney's registration including precluding him from performing a number of procedures, requiring him to attend sessions with a mentor and to have his practice audited.
Another s 150 hearing was held on 25 June 2018 because the HCCC received evidence which it considered contradicted the evidence provided by Dr Mooney at the s 150 hearing on 1 February 2017 and during the HCCC investigation. The delegates determined that while they remained very concerned about discrepancies in his evidence, they considered that Dr Mooney was unlikely to repeat the same conduct. They revisited the issue of possible drug use and placed additional conditions on Dr Mooney's registration, including practising under Category C supervision, quarterly hair drug screening and assessment by a Council-appointed psychiatrist.
Another s 150 hearing was held on 7 November 2018 to inquire into issues which overlap with the breach of conditions now the subject of proceedings number 2019/400872. Dr Mooney's registration was suspended.
Dr Mooney applied for a review of the suspension and a hearing took place on 23 May 2019. The suspension was set aside and a number of conditions were imposed on Dr Mooney's registration. These included most of the earlier conditions and added requirements for category A supervision in the operating theatre and otherwise category C supervision, treatment by a psychologist, random urine drug screening (rather than thrice weekly), and working no more than 35 hours a week.
By letter dated 11 June 2019 the HCCC notified the Medical Council that it had obtained further information contradicting Dr Mooney's evidence to Council delegates. A s 150 inquiry was held on 28 June 2019. The delegates declined to find that there was a contradiction and were not satisfied that it was appropriate to take any action.
On 20 October 2020, the Council amended the conditions on the registration of Dr Mooney to add that if a patient was undergoing a paranasal sinus procedure being performed by another doctor, Dr Mooney must not perform any other procedure on the patient in same episode of surgery and the level of supervision in the operating theatre was changed from category A to category B.

[9]

The events leading up to and including the operation on 15 February 2018

Complaint One concerns patient A. In February 2018 patient A was 24 years of age. Patient A was referred to Dr Mooney for management of his snoring.
Dr Mooney saw patient A on 14 February 2017. He had a grossly deviated septum and a blocked nasal airway. He suspected that patient A's palate and tonsils were contributing to the snoring. He explained to patient A that the options for treatment were conservative treatment with medication or surgery.
Initially patient A elected to trial conservative management with medication. However it did not help his snoring.
Patient A returned to see Dr Mooney on 2 February 2018. Patient A felt his condition was worse. They discussed the surgical procedures of septoplasty (a procedure to straighten the bone and cartilage dividing the space between the two nostrils), uvulopalatopharyngoplasty (UPPP) (a procedure to remove excess tissue in the throat to make the airway wider) and tonsillectomy (the removal of his tonsils).
At the next consultation on 8 February 2018, they again discussed the surgery and on 9 February 2018 patient A completed a patient admission form on which he confirmed that he did not take anti-coagulants and confirmed that he did not have a bleeding disorder.
The operation took place on 15 February 2018.
Patient A arrived in theatre at 14.45 and was fully anaesthetized at 15.00.
Dr Mooney applied cocaine which had been mixed with Drixine onto gauze and then inserted the gauze into patient A's nostrils for local anaesthesia.
The surgery commenced at 15.05. Dr Mooney said that while he was operating on the right tonsil, he noted a little bleeding from a branch of the right lower pole lingual artery. He asked the nurse to apply pressure to assist in identifying the source of the bleeding. He identified the bleeding vessel, applied forceps monopolar diathermy (an electric current) and the bleeding stopped. He was satisfied that he had stopped the bleeding but over-sewed the area of the vessel with a suture with four passes. He inspected the vessel and saw no bleeding then or at any other stage.
There is a statement from the scrub nurse. She recalled that during the tonsillectomy, Dr Mooney said to her that the patient's tonsils were adhered "like cement" possibly because of past recurrent infection. She saw Dr Mooney was having difficulty cutting into the right tonsil. Shortly afterwards the right plane started to bleed. Dr Mooney instructed her to hold the suction on the tonsil bed to increase the visibility of the bleed. Dr Mooney said he thought the bleed was spurting. She saw Dr Mooney begin to cauterise the bleed while she suctioned the area. Dr Mooney said to her that it was an arterial bleed of a branch of the sublingual artery, applied external pressure to patient A's lower jaw and requested suture ties. The scout nurse had to get them from a store room at the other end of theatre. While they waited, she placed pressure on the sublingual area and Dr Mooney attempted to cauterise the tonsil bed with bipolar diathermy forcep. After two minutes the sutures arrived and Dr Mooney sutured and tied the bleed. She saw that Dr Mooney attempted to suture the bleed twice unsuccessfully. On the third or fourth attempt Dr Mooney sutured the bleed, and an additional stitch was applied. Once the branch of the sublingual artery had been tied she suctioned the site so he could check for bleeding. Dr Mooney confirmed the bleeding had stopped, however he continued to suction and observe the right tonsil bed for several minutes. He checked for a facial pulse and blood loss of approximately 150 mls was recorded in the clinical notes. He then observed the area for several minutes to confirm the tonsil bed had ceased bleeding.
In these proceedings Dr Mooney agreed that the tonsils had been adhered like cement but did not remember having had any difficulty in removing the right tonsil.
Dr Mooney said that after he was satisfied that the right tonsil bed was no longer bleeding, he removed the other tonsil, trimmed the palate and performed an UPPP. The whole palate was then oversewn with sutures and he used a sucker to check for any bleeding. When he was satisfied there was no bleeding, patient A was placed in a head up position for the septoplasty and inferior turbinate reduction.
Dr Mooney said he corrected the deviation, trimmed the inferior turbinates and cauterized them to stop bleeding. When he was satisfied there was no bleeding, he placed splints inside patient A's nose. The surgery ended at 15.38 or possibly earlier.

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Complaint One particular 1 (c)

This particular relates to Dr Mooney's conduct at the commencement of the operation - that it was unsatisfactory professional conduct for Dr Mooney to insert gauze into patient A's nose which had been soaked in a solution to assist with vasoconstriction, without ascertaining what the gauze had been soaked in by either preparing the solution himself or viewing the ampoule(s) from which it had been prepared.
In his Amended Reply Dr Mooney admits he did not prepare the solution himself but says he sighted the cocaine ampoule, which is routinely placed next to the decanted solution.
The evidence establishes that on occasions, including this operation, Dr Mooney used cocaine mixed with Drixine for vasoconstriction and analgesia and that the use of cocaine for nasal vasoconstriction in nasal surgery is accepted medical practice. The cocaine was mixed with Drixine in what was described as a galley pot. A piece of gauze was soaked in that mixture and inserted by Dr Mooney into patient A's nose.
The issue is whether Dr Mooney put the gauze soaked in this cocaine mixture into patient A's nose when he did not know what exactly what the gauze had been soaked in. He did not record this information in his operative notes.
He was first asked about this at the s 150 hearing on 15 March 2018. When asked about the administration of the cocaine he said "In that hospital the nursing staff puts the Drixine in the bottle for me". Later on he said "I normally turn up, come into the operating theatre …I'll speak to her and she's already prepared the solution for me which is Drixine, I'm just topically (indistinct)". And again later on he said "At that hospital, the nursing staff makes the solution and puts the gauze in it for me, so I walk into the theatre, the lignospan is ready to go and I just grab the stuff, inject first, do the blocks, and put the gauze into the nose".
This procedure was strongly criticised by Dr Altmann who described it as basic intern or first year doctor level management. Doctors are taught not to inject (or in this case pack into a cavity) a substance they have not drawn up themselves, or if a nurse has drawn it up, view the ampoule from which the substance came.
In a statement dated 2 August 2018 Dr Mooney provided further details. He said that the cocaine had been removed from the safe by the anaesthetic nurse and double signed out. It was then given to the anaesthetist Dr Caponas who had delivered it directly to him, or via the scout nurse. It was decanted directly to ¼ inch gauze in a galley pot and mixed with Drixine.
In his statement dated 1 June 2020 Dr Mooney was uncertain as to the procedure followed in patient A's operation. He said "The mixture was applied to gauze which was inserted into patient A's nose. I cannot recall applying the cocaine mixture to the gauze. However my usual practice was to apply it myself."
There is then the statement in the Amended Reply in which Dr Mooney admits he did not prepare the solution himself but says he sighted the cocaine ampoule, which is routinely placed next to the decanted solution. This is the first reference to Dr Mooney saying he had checked the substance by viewing the ampoule.
In his evidence before us Dr Mooney said that the cocaine was usually handed to him and he usually decanted it himself into the galley pot and mixed it with the Drixine. He did not, however, remember what had occurred with patient A. He was also unclear as to whether he had sighted the cocaine ampoule next to the decanted solution as asserted in the Amended Reply, said he had no clear recollection of this part of this operation and agreed that "technically" he did not know the exact contents of the gauze.
Dr Cole said, when giving evidence, that Dr Mooney should have known what had been placed on the gauze and should have recorded it.

[15]

Complaint One particular 1 (d)

The next issue is whether Dr Mooney performed the operation in a period of time which was inappropriately short. The total operative time was between 23 minutes (according to the scout nurse) and 33 minutes (shown on the operative record).
Dr Mooney admits in the Amended Reply that he did perform the procedure in an inappropriately short time.
At the s 150 inquiry on 15 March 2018 Dr Mooney told the delegates that an uncomplicated UPPP with a tonsillectomy would take him 45 minutes to an hour. In relation to this estimation by Dr Mooney, we note that extra time would have been needed for the operation on patient A firstly, as it was complicated by the bleeding from the site of the right tonsil, and, secondly, these were not the only procedures performed by Dr Mooney on patient A.
In these proceedings Dr Mooney accepted that the operation on patient A had taken half the normal time and that he had been too fast. He denied being in a hurry or overconfident. He thought it was because, at the time, he was overworked and operating on too many patients. He answered "no comment" when he was asked whether he had a habit of working too quickly.
Dr Altmann described it as an "astonishingly short" time and believed it suggested that little time could have been spent on achieving control of the brisk arterial bleeding which had occurred. He would have expected the operation which involved three procedures to take approximately 90 minutes surgical time (perhaps 70 minutes surgical time at a bare minimum) in the most experienced, expert and efficient surgical hands without having to deal with arterial bleeding which would have added further time to the procedure.
Dr Cole said that the time taken was too fast as normally a UPPP with dissection tonsillectomy would take at least 30 - 40 minutes on its own. An addition of 30 minutes would be normal for the septoplasty and turbinate reduction with no complicating factors.
In their joint report Dr Altmann and Dr Cole agreed that the time taken was significantly below standard.

[19]

After the operation

Complaint One particulars 2 and 3 relate to the treatment of patient A after the operation. He was woken from anaesthesia and Dr Mooney checked his pupils and facial artery pulse. The pulse was present and patient A's pupils were of normal diameter and appearance.
The total fluid collected was approximately 150mls and would have been comprised of blood, saliva, prep from the gauze, and saline.
Dr Mooney said he walked with patient A and the anaesthetist to recovery and then checked on patient A several times. He wrote up his notes about 15 minutes later and checked patient A again. Dr Mooney considered that patient A's condition was very good, he was waking up well, his analgesia was adequate, his observations were in the stable/normal range and he had no evidence of any significant bleeding.
Dr Mooney said he also reviewed patient A on the ward, just as he was arriving back from recovery. He was satisfied that patient A had no further bleeding, was in an appropriate post-operative status and was haemodynamically stable.
Dr Mooney said he had great confidence in the nursing staff and their ability to manage a post op UPPP/septoplasty patient.
Dr Mooney said he had patient A's haemoglobin level checked on 16 February 2018 because there had been bleeding during the surgery and the result was well within normal range.
As we have said the operation took place on 15 February 2018. Patient A remained in the ward until 17 February 2018 when he was discharged.
Dr Mooney did not review patient A on either 16 or 17 February 2018 but only spoke by phone to a nurse, the ward doctor and to patient A.
Dr Mooney said that over those two days patient A was reported to be in good health, with no bleeding, adequate analgesia, good urine output and he was eating and drinking. An episode of vomitus was reported but there was no report of blood. He had minimal ooze from his nose and in 24 hours, his nasal bolster had been changed twice. The patient was in good spirits. His analgesia was adequate, he had begun eating, and he did not report any bleeding. He had asked if he could go home.
Dr Mooney said he suggested a second night in hospital because patient A had undergone a double procedure. On 17 February 2018 a nurse had told him that there had been no bleeding, patient A was haemodynamically stable, mobilising around the ward, eating and drinking, and in minimal pain. Dr Mooney discharged him with nasal sprays, analgesia and antibiotics.
Patient A's partner, who was not required for cross examination has made a statement. Patient A had texted her from the ward early in the morning on 16 February 2018 saying he had vomited two bags of blood and that the nurses had given him tablets to stop the vomiting. However the text messages are in evidence. They do refer to throwing up, but do not mention blood.
Patient A's partner said that after he was taken home on 17 February 2018 and had something to eat, he started to vomit up blood which came out of his nose and mouth. Dr Mooney had given them emergency contact telephone numbers but they did not answer. When patient A fainted, they called 000 and an ambulance took him to his local hospital, Canterbury Hospital.
A doctor at Canterbury Hospital told her that Dr Mooney had told him that an artery had been hit during patient A's surgery. Patient A's family had not been told about the incident by Dr Mooney or anyone else at the hospital where the operation had taken place.
Canterbury Hospital did not have an Ear, Nose and Throat specialist and patient A was transferred to Concord Hospital. He was taken into the surgery theatre and during the preparation for surgery, he was intubated. Patient A went into cardiac arrest. CPR was performed for 45 minutes and he suffered massive haemorrhaging and multiple organ failure. On 2 March 2018 patient A was pronounced brain dead and on 3 March 2018 he passed away.
There was an autopsy. At autopsy, suture material was found in the right tonsillar fossa. The report says that the cause of death was recurrent haemorrhage following the operation. However the site of the bleeding was not identified.

[20]

Complaint One particulars 2 (a) and (b)

Complaint One particular 2 (a) asserts that Dr Mooney's conduct was significantly below standard because he failed to re-consider having patient A admitted to a high dependency unit (HDU) or an intensive care unit (ICU) postoperatively. Dr Mooney admits he did not do so but denies that this was significantly below standard. Complaint One particular 2 (b) asserts that Dr Mooney's conduct was significantly below standard because he failed to have having patient A admitted to an HDU or ICU postoperatively. Dr Mooney admits he did not do so but denies that this was significantly below standard.
Dr Altmann has said that there is debate in the published studies as to whether combining an UPPP procedure with nasal surgery leads to an increased incidence of mortality. He is of the view that Dr Mooney should have, at the initial consultation, preoperatively considered ICU or HDU admission as possibilities for patient A's post operative care. Dr Cole does not believe admission to HDU or ICU is absolutely essential after this type of operation. This aspect of their opinions is not the subject of any criticism by the HCCC.
Dr Altmann is of the view that Dr Mooney should have considered this again immediately after the operation. Dr Altmann says that: 1. Dr Mooney checking patient A's facial pulse and pupil size after the operation indicated that Dr Mooney did not believe that it had been an uncomplicated procedure. 2. It is not standard practice after an uncomplicated tonsillectomy with only 150mls blood loss to check the haemoglobin level the next day which again suggests that Dr Mooney was concerned about greater blood loss or the potential for ongoing blood loss. 3. These actions demonstrated Dr Mooney had serious concerns with patient A's surgery. He should have arranged the admission of patient A to the ICU of Strathfield Hospital immediately after the operation.
Dr Mooney confirmed in his evidence in these proceedings that checking patient A's haemoglobin level was not routine and he had done it because he had an ongoing concern to ensure that nothing untoward was happening.
The experts concluded the conduct in Complaint One particulars 2 (a) was below standard but not significantly and in 2(b) was not ideal care but did not fall significantly below standard.

[25]

The events leading up to operation on 28 September 2017

Complaint Three concerns patient B. In 2017 patient B was 41 years of age.
Dr Mooney first treated patient B twice in 2010 in relation to concerns about his nasal function. On 25 March 2010, patient B underwent a septoplasty and FESS procedure carried out by Dr Mooney. On 19 May 2010, Dr Mooney performed a septoplasty revision procedure. Neither of these operations are the subject of this Complaint.
In 2017 patient B was referred back to Dr Mooney by his general practitioner. That general practitioner, in the referral, said patient B had complained of a yellow nasal discharge and a blockage of the right side of his nose. The general practitioner had tried medication to treat his symptoms, which had resulted in some improvement. The general practitioner had also arranged for patient B to have a CT scan on 28 August 2017 CT scan which showed "evidence of acute right maxillary sinusitis" and "mild paranasal sinus disease elsewhere with no specific pattern".
When Dr Mooney saw patient B on 25 September 2017, patient B told him that between 2010 and 2017 he had nasal surgeries in Lebanon. The patient could not give him details of those operations.
Dr Mooney considered patient B to be obese and on examination found gross changes which Dr Mooney concluded were caused by inflammation.
Dr Mooney told the s 150 delegates on 15 March 2018 (which was only six months after that consultation) that after seeing patient B he had organized a CT scan, trialled patient B on maximum medical treatment and given him sprays. The patient came back not after the prescribed six or eight weeks, but at four weeks, saying that the sprays had not worked and asked for surgery.
Dr Mooney's records and his report to the general practitioner show that this account is obviously incorrect. Patient B brought the CT scan with him to the consultation. At that consultation Dr Mooney did not trial patient B on medication but provided patient B with an estimate of fees for a "Revision Bilateral FESS & Turbinates x 4". Dr Mooney operated on patient B three days later, on 28 September 2017.
Complaint Three originally asserted that Dr Mooney's conduct in performing the September operation only three days after the first consultation without a trial of medical therapy was below standard, however those particulars [being particulars 1 (a) and (b)] of the Complaint were withdrawn.
Dr Mooney concluded that patient B's middle turbinate was the primary obstructive intra-nasal pathology. Most people have superior, middle and inferior turbinates. They are shell shaped networks of bones, vessels, and tissue within the nasal passageways. Dr Mooney said that he decided to reduce the middle turbinates to provide a "window" so that, after the operation, patient B would be able to treat any ongoing symptoms with nasal irrigation which could pass through that window. Dr Mooney says that, in the operation on 28 September 2017, the middle turbinates were reduced in size but not removed and the root of each middle turbinate was retained.

[28]

The events leading up to the last operation on 24 November 2017

Patient B attended his first post-operative appointment on 3 October 2017, and observations of minimal swelling were documented.
Although there is no consultation note for 19 October 2017, Dr Mooney's medical records contain a pathology report showing Dr Mooney referred patient B for a nasal swab which showed patient B had developed a "heavy growth of Methicillin Resistant Staphylococcus Aureus". It was successfully treated with antibiotics.
On 23 October 2017 Dr Mooney referred patient B for a CT scan of his paranasal sinuses which reported: "Interval surgery including bilateral middle turbinectomies. There has otherwise been progression of the paranasal sinus disease since August 2017".
Patient B attended appointments 6 November 2017, 13 November 2017, 16 November 2017 and 17 November 2017. The treatment for the infection was continuing, and patient B signed an informed consent form for a 'Revision Bilateral FESS procedure.
Dr Mooney advised the s 150 delegates on 15 March 2018 that he elected to return patient B to surgery, as the repeat CT scan "showed that he just had frontal recess polyposis" and when he used a scope to examine patient B, "I could see the polyps sitting on both sides…". Dr Mooney said he "really didn't want to have to operate on him again", however multiple weeks of conservative treatment to remove the polyps had failed. Dr Mooney said "… I was throwing everything I had from my medical armamentarium to try and obviate surgery, and also try and make him better".
In his statement made on 1 June 2020 Dr Mooney said that at the consultation on 17 November 2017, it was clear to him that medical treatment had failed. The patient gave a history of unremitting, not improving frontal headaches. A repeat nasendoscope showed clear obstruction of the frontal recesses with polypoid material. They decided to proceed with minor limited revision FESS surgery.
On 23 November 2017 patient B was seen by Dr Choroomi for a second opinion. The notes do not suggest that patient B had polyps on both sides. They say: …Examination: clean sino nasal on right Left frontal recess few small polyp ?inflammatory or post op
Dr Mooney said he did not see the note and spoke to Dr Choroomi who only said to him that he concurred with the planned surgery.
The operation took place on the next day, 24 November 2017.

[33]

The operation on 24 November 2017

At approximately 7:10am on 24 November 2017, patient B was admitted to Eastern Sydney Private Hospital and prepared for the 'revision limited bilateral FESS procedure'. Patient B was transferred to the surgery theatre at 8:54am and at 8:55am he was given general anaesthetic by anaesthetist, Dr Caponas. The surgery commenced at 9:02am. Dr Mooney applied topicalisation to the patient's nose and airway with gauze but did not use cocaine for this procedure.
Dr Mooney said he carefully curetted the polyps from patient B's frontal recesses bilaterally and used a powered shaver to further reduce his inferior turbinates. He then took tissue from the frontal recess to send to pathology.
Approximately 20 minutes into the procedure patient B was noted to be making spontaneous ventilator efforts which caused patient movement. At this time it was also noticed that the blood pressure cuff was not taking complete readings. A nurse thought that the Velcro on the cuff may be failing and the cuff not inflating properly. The cuff was moved from the patient's right arm to his calf however they could still not obtain a blood pressure reading. The cuff was moved to his left arm. The nurse said it took him approximately 10 - 15 minutes before he was able to successfully obtain another blood pressure reading.
Both Dr Caponas and Dr Mooney say that when the blood pressure reading was finally taken, it gave a reading of 280/155mgHg. Dr Mooney told the s150 delegates that this was the highest blood pressure reading he has ever seen, stating "…and I still don't know why".
Dr Caponas administered a dose of Alfentayl which he said was to suppress the patient's ventilatory efforts and blunt the response to any stimulation that may have been contributing to a hypertensive response.
Dr Mooney said the "extreme hypertension continued for 5 - 10 minutes intraoperatively".
The surgery ended at 9:35am so that the total operating time was 32 minutes.
Dr Mooney said he continued to observe patient B in the surgery theatre to ensure there was no bleeding. He asked Dr Caponas to "Valsalva the patient and there was still no bleed or CSF to see."
Dr Mooney's post-operative instructions were documented as: "Routine post op care, FESS, obs. Keep systolic blood pressure <120".
Dr Mooney's hand-written operation report made just after the operation ended does not mention the blood pressure difficulties. Later on this was added: "Of note: Blood pressure was problematic throughout the case. There was a long period in the middle of the case when no blood pressure was taken. When the blood pressure cuff was placed on calf, systolic blood pressure was noted to be up to 300 systolic".
Patient B was then transferred to the recovery ward.
The sequence of events in the recovery ward is unclear.
Dr Mooney told the delegates at the s 150 inquiry on 15 March 2018 that when patient B was taken to recovery he still had "a LMA [a laryngeal mask airway which had been keeping his airway open] in situ, because he was pretty ironed out, and so we waited around. He sort of came to, he came out of anaesthesia badly and sort of spat out of his LMA, so we put the LMA back in, he was now stable, his blood pressure was okay, there was no bleeding, I checked his eyes, his pupils were normal, reactive, there was no bleeding, no CSF, I was happy that from my perspective he was stable, from a cardiac perspective he was stable, from an anaesthetic perspective he was stable, so I felt he was okay".
Dr Mooney said he then left the recovery ward. While he was operating on the next patient, the anaesthetic nurse came in and said, "That guy's not right".
In his statement dated 20 August 2019, Dr Mooney said that the incident with the LMA occurred when he was recalled to the recovery ward.
In his evidence to the s 150 inquiry Dr Mooney said that when he and Dr Caponas returned to the recovery ward it was clear the patient was not right, he was making tonic-clonic movements and his eyes were deviating. It was quite clear then to Dr Mooney that some major intracranial event had occurred.
The first thing he did with Dr Caponas was to stabilise the patient. They then intubated the patient and an ECG was performed. Dr Mooney examined his nose with a scope. There was no bleeding, there was no CSF leak, the inside of his nose was okay, but his general neurological status caused Dr Mooney great concern, and he feared a hypertensive post-operative stroke. Dr Caponas also thought this was a likely diagnosis.
They found an ICU bed at Prince of Wales Hospital, and Dr Mooney spoke to ENT staff at that hospital while they waited for the ambulance.
At Prince of Wales Hospital a CT spiral angiography with contrast found an extensive subarachnoid haemorrhage, with a clot extending through a defect in the right cribiform plate. The cribiform plate is a bone which is adjacent to the frontal sinus from which Dr Mooney had intended to remove tissue. Above the cribiform plate is the brain.
The CT scan findings are consistent with the later findings on autopsy where the pathologist found "a 0.6cm diameter, round iatrogenic [ie caused by medical treatment] bone defect over the right-sided cribriform plate centred 3.5cm to the right of the midline". Microscopic examination of the "free floating tissue from around the perforated cribriform plate" showed "two irregular pieces of tissue … showing brain material along with necrotic brain material … and multiple small bone fragments". The pathologist concluded there was no suggestion of any underlying natural disease causing or contributing to these changes.
Another CT scan conducted at approximately 12pm on 12 December 2017 showed there was no blood flow to the brain.
At 10:30am on 13 December 2017, patient B passed away at Prince of Wales Hospital.
The coroner concluded that the instrument used during surgery had caused the 0.6 diameter bone defect in the cribriform plate and disruption of the right anterior cerebral artery accompanied by a haemorrhagic defect in the right frontal lobe.

[37]

Complaint Three particulars 2 (f)

In Complaint Three particular 2 (f) the HCCC says that Dr Mooney should have consulted the films of the most recent CT scans of patient B's sinuses in the operating theatre during the procedure.
In the Amended Reply, Dr Mooney admits he did not consult the CT scans in the operating theatre. He says that the scans were in the operating theatre and that he reviewed the scans before he performed the operation.
Dr Mooney, Dr Caponas and a nurse all said it was the practice of Dr Mooney to review the scans in the operating theatre prior to performing FESS surgery.
We are satisfied that the most likely explanation for the injuries to patient B is because Dr Mooney became disoriented while performing the operation and was in the cranial cavity when he thought he was in the frontal sinus. He then inserted an instrument into his endoscope, and while moving that instrument, probably with some force, made a hole in cribiform plate and damaged an artery. Some brain tissue containing bone shards moved into the hole in the cribiform plate.
In these proceedings Dr Mooney agreed that it had been a potentially very complicated procedure. He confirmed in these proceedings (as he said in his statement made on 1 June 2020) "The sentinel event, I believe, was that once patient B had moved, I did not take sufficient time to re-orientate myself properly. I should have thoroughly re-checked my landmarks, reviewed the CT scan, proceeded more slowly and with great caution or perhaps not have continued the surgery. I did none of those things. Regrettably, I proceeded to use sharp and dangerous instrumentation at the base of the skull in a high-risk position".
The effect of the expert evidence, which we accept, is that the CT scans are a very important tool in that a surgeon should continually refer to them throughout the procedure to confirm that the instrument is where the surgeon intends it to be.
Dr Altmann, Professor Sacks and Professor Harvey all said they would not do this operation without continually consulting the CT scans which they would have in front of them.
The experts considered that the conduct in Complaint Three particular 2(f) is significantly below standard.

[41]

Complaint Three particulars 2 (i) and (k)

In Complaint Three particular 2 (i) the HCCC says that Dr Mooney failed to provide appropriate care and treatment to patient B by failing to identify that patient B suffered any intraoperative complication.
Dr Mooney admits that he failed to identify the intraoperative complication during the surgery but denies that the failure to identify the complication was, of itself, a failure to provide appropriate care and treatment.
In Complaint Three particular 2 (k) the HCCC says that Dr Mooney failed to provide appropriate care and treatment to patient B by failing to have proper regard to patient B's blood pressure reading of 280mmHg systolic.
This is denied by Dr Mooney.
It is the HCCC's case that the weight of the evidence supports an inference that Dr Mooney did not to any meaningful extent during the operation actually identify that the patient had suffered an intracranial event, and that to suspect something (if he did) fell short of "identifying" and "proper regard" respectively (being the words used in the particulars). They invited us to find that Dr Mooney moved on to another operation and was only really alerted to the fact of an intracranial event by the nurses in recovery.
Dr Mooney now concedes that the two events during the operation - the sudden escalation of patient B's blood pressure and the patient's involuntary movement were in direct response to the injuries he had caused.
We accept that it was reasonable for Dr Mooney to consider that the movement of patient B and the rise in blood pressure were signs of the anaesthesia wearing off. It is possible that hole in the cribiform plate would have been difficult to see if obscured by brain tissue and a blood clot. And the Valsalva test at the end of the operation was consistent with there not being any leak of cerebro-spinal fluid. However we consider that, in addition, Dr Mooney should have identified the very real likelihood that there had been an intraoperative complication.
Professor Sacks said that the blood pressure reading should have been 90mmHg systolic and that 280mmHg systolic was extremely unusual and extraordinary and he had never encountered it. Combined with the movement of the patient, it was clear that something had gone wrong - caused by either the surgery or the anaesthetic. Dr Altmann added that, at that time, Dr Mooney should have thought "I've just caused a major complication, what have I done". It was also reasonable to suspect that there could have been a problem with the anaesthetic.
We are satisfied that the weight of the evidence establishes that Dr Mooney did not identify that he may have caused a serious injury until patient B's condition deteriorated in recovery and even then he initially thought it was a stroke not an iatrogenic injury. This was partly because he did not have proper regard to the blood pressure reading. The failure to identify that he may have caused a serious injury is consistent with the operating notes Dr Mooney completed immediately after finishing the operation where he wrote "simple limited re-do FESS". He said that, at the time, he had known that he could accidentally damage the cribiform plate and dura and that it should have been at the front of his mind.
At the s 150 hearing on 15 March 2018 Dr Mooney he said he did not think initially there had been an intracranial event. When the patient was stabilised in recovery he examined his nose with a scope. There was no bleeding and there was no CSF leak, but his general neurological status caused Dr Mooney great concern, and he realised immediately that something terrible had gone wrong. As we have already said it was at this time that he feared patient B had suffered a hypertensive post-operative stroke. He discussed this with the anaesthetist who also felt it was the likely diagnosis.
Dr Altmann found it astounding that an experienced ENT Surgeon who had just operated in the frontal ostia of a patient who had had multiple previous sinus operations with distorted anatomy would consider any possibility other than that he had just caused an iatrogenic intracranial surgical complication as the first, second and third most likely possibilities before even imagining other potential causes for the patient's poor neurological status and seizures in recovery.
In their joint report the experts said that the conduct of Dr Mooney in particulars 2(i) and (k) was significantly below standard.

[50]

Patient C

In Complaint Four the HCCC says that Dr Mooney is guilty of unsatisfactory professional conduct because his conduct in relation to patient C was significantly below the standard of his peers and also because it was improper and unethical conduct.
The Council convened the first proceedings under s 150 on 1 February 2017 in response to a complaint received from a psychiatrist summarising information disclosed to the psychiatrist by patient C concerning her relationship with Dr Mooney.
There was no statement from patient C in evidence, nor did she give oral evidence. The documents in evidence establish the following: 1. Patient C was referred to Dr Mooney by a general practitioner. The referral dated 12 October 2009 informs Dr Mooney that patient C was then aged 22, had suffered from anorexia-bulimia on and off since the age of 11 and had a rhinoplasty in 2004. 2. Dr Mooney first saw patient C on 12 November 2009 and diagnosed chronic tonsillitis. He performed surgery, saw her once post-operatively, and there were no complications. 3. On 24 September 2010 Dr Mooney performed cosmetic injections of Botox to patient C's lips and forehead. On 25 January 2011 Dr Mooney again performed cosmetic injections on patient C. 4. On 15 February 2011 patient C consulted Dr Mooney and complained of snoring and having difficulty breathing. Dr Mooney performed a cosmetic assessment and noted that her nose was not in keeping with "the elegance of her other facial features". He suggested a revision septorhinoplasty. 5. On 14 October 2011, patient C had Botox injections to her forehead and brow and a filler injected into her lips by a nurse at Dr Mooney's practice. On 23 March 2012 Patient C underwent further Botox and filler injections, performed by a nurse at Dr Mooney's practice. 6. Patient C was referred back to Dr Mooney in 2012 for review re- revision of nasal surgery. The referral discloses that one of her current medications was a tricyclic anti-depressant. 7. Dr Mooney performed a rhinoplasty on 25 July 2012. 8. On 21 December 2012 Dr Mooney saw patient C after she had been involved in an incident with her fiancé and he gave her diazepam and steroids. 9. On 5 March 2013 patient C had a cosmetic procedure performed by Dr Mooney.
Dr Mooney told the delegates at the s 150 inquiry on 1 February 2017 that the final time he saw patient C as a patient was on 15 October 2013. The entry for the date says "comp top up cheeks nose looks amazing we agreed it was the perfect nose". We are satisfied that Dr Mooney gave the delegates the impression that his interaction with patient C up to October 2013 had been brief. He said all consultations had been about five or 10 minutes each with a senior registered nurse chaperone present in the room.
Dr Mooney has made statements on a number of occasions as to the extent of his relationship with patient C between October 2013 and January 2016.
At the s 150 inquiry on 1 February 2017, Dr Mooney told the delegates that, after he stopped treating patient C he bumped into her occasionally socially and got on well with her. She was nice and appeared sane. He said they were friends. At around this time his marriage started to dissolve. In mid 2014 patient C asked him out. They had drinks, then dinner and then went to a hotel room. Dr Mooney told the delegates he had drunk wine and his memory was unclear, but he did not have any memory of "sexual congress". He said "Did we kiss? Perhaps." He woke up in his own bed at home. Dr Mooney said this was the one liaison he had with patient C, and his memory of it was blurry at best.
Dr Mooney told the delegates on 1 February 2017 that he had continued to see patient C but only as a friend. He noticed her behaviour was becoming unusual. When she became more erratic, he asked her to no longer attend his rooms. There are records of attendances for cosmetic treatments in 2011, 2012, 2013, 2014, 2015. Dr Mooney said she was treated by other staff members.
On 21 June 2016, there had been an incident at his rooms when patient C arrived without an appointment and demanded to see Dr Mooney. Security, and then police, were called. A record was made by a staff member who described patient C as an unpredictable, unstable and erratic patient who often turned up without an appointment and walked straight into Dr Mooney's office. Another entry for the same date describes Dr Mooney as the provider. It records that Dr Mooney refused a request for a prescription and reminded patient C that she was no longer a patient.
Dr Mooney told the delegates on 1 February 2017 that he now realised that he had erred in meeting patient C for dinner in 2014 but he then believed that the guidelines only prevented him from entering into a relationship with a patient and she had not been his patient since October 2013.
He said they "had been not friends for a while, we had been friends for a while and it was one liaison, brief at best, tainted by alcohol and I realise - I am remorseful and ashamed about it and I realise it was the wrong thing to do."
On 2 March 2018 the HCCC sought answers to a number of questions. The reply dated 22 March 2018 from Dr Mooney relevantly says: "14. Provide details of all of your social interactions with [patient C] between October 2013 and January 2015. During this period I spoke to [patient C] infrequently by telephone and bumped into her when we were both independently attending the same social event."
The Health Care Complaints Commission obtained records from Telstra and another s 150 inquiry was held on 25 June 2018. That information was the following: 1. Between 4 October 2013 and 19 January 2016, 3,425 text messages were sent between Dr Mooney and patient C; 2. Between 4 October 2013 and 19 January 2016, 807 phone calls were made between Dr Mooney and patient C.
The telephone and SMS records are in evidence.
Dr Mooney told the delegates that he knew that he had called patient C more than was normal, but the volume in the records was utterly excessive and shocked and horrified him. He described it as a non-stop banter to and fro between the two of them. He denied it was a romantic, sexual, situation but said it was rather a mutual flirtation. He had been completely lost at that time in his life.
Dr Mooney conceded the evidence was in stark contradistinction to the few calls he admitted to at the last s 150 hearing. He denied deliberately lying. He said most of the calls had been made late at night, he had probably been drinking and "trying to find some shard of happiness". He described it as a crazy friendship of two interdependent people that should not have occurred.
Dr Mooney said he accepted that the friendship was wrong because of the number of calls to an ex-patient who was clearly quite unstable by the end.
Another issue in this Complaint is the prescribing of Duromine, a weight loss medication, to patient C. When Dr Mooney was asked by the delegates on 1 February 2017 whether he had ever prescribed Duromine to patient C he said he could not remember, but if he had, it would be in his notes.
After he gave this evidence to the delegates, the Health Care Complaints Commission obtained some prescribing records which disclosed that Dr Mooney had prescribed Duromine to patient C: 1. Once on an unknown date and the prescription was filled on 21 June 2017; 2. On 14 August 2014 and the prescription was filled on 28 August 2014. It had one repeat which was filled on 10 September 2014. 3. On 10 October 2014 and the prescription was filled on that day. It had two repeats which were filled on 23 October 2014 and 11 February 2015. 4. On 11 August 2015 and the prescription was filled on 12 August 2015. It had two repeats which were filled on 1 September 2015 and 15 September 2015.
At the s 150 inquiry on 25 June 2018 Dr Mooney was asked about these prescriptions. He agreed he had previously said that if he had prescribed for patient C he would have had a record of it, but conceded he had not made a record. At first he said he did not have a clear memory of prescribing those Duromine scripts to her. Later he said patient C had asked him repeatedly for the medication and he had acquiesced. She had been concerned at having yo-yoing weight that she couldn't control and asked him for Duromine. Dr Mooney said he would not zip off a script for Duromine without thinking about it in any other situation and he did not know why he had done so.
Dr Mooney said he understood it was boundary crossing.

[55]

Findings - Complaint Four particular 2

In relation to Complaint Four particular 2 (i), we find that the HCCC had established that Dr Mooney did not provide appropriate advice to patient C about the side effects and risks of Duromine for these reasons: 1. The prescribing did not occur in a formal setting and Dr Mooney did not make any note about giving such advice. He now does not recall giving such advice. 2. Dr Mooney said he does not regularly prescribe the drug. He told the delegates on 1 February 2017 that he had heard it was okay for weight loss but after he prescribed it four to six times, two patients told him that it made them go crazy so he did not prescribe it again. As Dr Ellis said, Duromine has a long list of significant adverse effects. This information given by Dr Mooney to the delegates does not suggest that he had any familiarity with those side effects at the time of prescribing. 3. In these proceedings Dr Mooney said that, at the time he prescribed Duromine (a weight loss medication) to patient C he had forgotten that one of the general practitioner's referrals had informed him that she had a lengthy history of anorexia-bulimia. This is again inconsistent with Dr Mooney being able to give informed, correct, comprehensive or clear advice about side effects and risks. 4. In these proceedings Dr Mooney did not know that a medication listed in one of the general practitioner's referrals concerning patient C was an anti-depressant and he conceded he was unaware of what medication patient C was taking in 2014, which is again inconsistent with his being able to give informed, correct, comprehensive or clear advice about side effects and risks. Dr Ellis advised that the information regarding potential side effects of Duromine would have been easily available to Dr Mooney. 5. The admissions in Dr Mooney's statement dated 1 June 2020 which we have set out above.
In relation to the other sub-particulars the HCCC relies on the opinion of Dr Ellis and Dr Altmann.
Dr Ellis described a number of issues: 1. The prescription of any medication for weight loss would normally be done after a proper medical consultation. The consultation would involve a thorough review of the patient's background including medical and surgical history, allergies, regular medications, and a thorough social history. The medical history usually includes any past mental illness. There was no evidence in Dr Mooney's records of his having taken a history. 2. After taking a history, the usual next step would be an examination and in the case of a weight loss consultation this requires a measurement of BMI and or waist-hip ratio. There was no entry in those records which measured patient C's BMI or waist-hip ratio. At least one of these measurements would be essential prior to prescribing Duromine to a patient. 3. The general practitioner's records showed that patient C weighed 58kg on 22 March 2014. For patient C to have had a BMI greater than 27 and qualify for a prescription of Duromine, she would need to have been 140cm tall - about the height of an 8 year old child. Dr Ellis could see no evidence that patient C met the criteria for the prescription of Duromine for weight loss. 4. The January 2009 referral informed Dr Mooney that patient C had a history of anorexia-bulimia for many years. This would usually be a contraindication to the prescription of Duromine. 5. The letters of referral from her general practitioner had a list of current medications. A doctor should realise that a patient who is being medicated with anafranil, lasix and Prozac, could have body image problems at the very least, and trigger a detailed consultation with regards to her concerns about weight. It was inappropriate to simply write a prescription for Duromine. 6. After an initial consultation it would be standard practice to counsel the patient on diet and lifestyle changes to optimise long-term weight loss. After diet and exercise have been attempted, with a time frame in place for review of the patient, and usually only in circumstances where weight loss is refractory to diet and lifestyle changes would medication or other options such as surgical intervention for weight loss be considered. Many GPs would use a dietician to educate a patient. It is very unusual for an ENT surgeon to undertake such a consultation or prescribe such medication and it would likely be far more appropriate, that the surgeon refer the patient back to the GP for a specific weight loss consultation. 7. After commencing any patient on any weight loss program, it is absolutely necessary to follow the patient up within an agreed time frame. In this case Dr Mooney should have reviewed the patient and documented his findings in the patient's notes. No review occurred because no correct approach to the prescription of Duromine occurred at the outset. 8. Whilst a doctor may write a prescription for a friend in an emergency, it should be a one off script with no repeats on the prescription. It is however highly unusual and would not be considered good practice to write multiple scripts for a friend over a long period of time. It puts the patient at risk of inadequate follow up and places the doctor at risk of perhaps missing a serious clinical problem. In the case of Duromine, Dr Ellis believes it would be highly unusual for any general practitioner to write a script for a friend, because its use is controversial and it is a medication that can cause significant side effects. Without a full background history it would be impossible to safely prescribe Duromine to a friend.
Dr Altmann is of the view that: 1. Enabling patient C to access seven packets of 30 tablets over a two month period (because of the repeats on two prescriptions) of a medication which it appears are meant to be taken once daily and without appropriate initial consultation for weight loss, lack of documentation and lack of appropriate clinical follow-up, shows clinical judgement which falls significantly below what is reasonably expected of any doctor. 2. Prescribing Duromine to a person considered by the doctor to be a friend while engaging in social contact with that person falls significantly below what is reasonably expected.

[73]

Complaint Six particular 1

In Complaint Six particular 1 the HCCC asserts that on 1 February 2017 at a s150 hearing convened by the Medical Council of NSW Dr Mooney misled the Council delegates in that he stated he had not seen patient C in a clinical setting after 15 October 2013 in circumstances where Dr Mooney was aware he had: 1. provided a cosmetic treatment to and/or consulted with patient C on 20 July 2015; 2. prescribed Duromine to patient C on the dates and in the quantities and dosages set out in Schedule A. Dr Mooney does not admit that he provided cosmetic treatment to or consulted with patient C on 20 July 2015. He does admit that he prescribed Duromine to patient C on the dates and in the quantities and dosages set out in Schedule A.
In respect of particular 1 (a), the entry in Dr Mooney's notes for that day relevantly says, "S/B Dr Mooney".
Dr Mooney denies that "S/B" means "seen by" and says it means "scripted by" because he had, on an earlier occasion, written the original prescriptions for the cosmetic materials used.
There is no evidence to the contrary. We do not accept the submission made by counsel for the HCCC that providing that prescription on an earlier date amounts to seeing the patient in a clinical setting on the later date. We decline to find that the HCCC has proven that Dr Mooney provided that treatment to patient C on that day being Complaint Six particular 1 (a).
In relation to Complaint Six particular 1 (b) we have set out the history Dr Mooney gave to the delegates in our outline of the facts in Complaint Four. In summary, Dr Mooney said he could not remember whether he had ever prescribed Duromine to patient C but if he had, it would be in his notes
However Dr Mooney had prescribed Duromine to patient C on four occasions and the prescribing is not recorded in the patient notes.
We are satisfied that Dr Mooney was well aware, on 1 February 2017, that he had prescribed Duromine to patient C and he had not made any record of his notes. We have made this finding based on the evidence given by Dr Mooney to the s 150 inquiry on 25 June 2018 that patient C had asked him repeatedly for the medication, he recalled that she had been concerned at having yo-yoing weight that she could not control and he did not know why he had acquiesced to her requests.
We are accordingly satisfied that Dr Mooney deliberately misled the delegates on 1 February 2017 and that this was improper and unethical.
Accordingly the HCCC has established that the Dr Mooney's evidence to that s 150 inquiry, in respect of the prescription of Duromine, is unsatisfactory professional conduct.

[74]

Complaint Six particular 2

In Complaint Six, particular two the HCCC asserts that at that same s 150 hearing Dr Mooney misled the Council delegates when he stated that his social interactions with patient C were limited when he was aware that between 4 October 2013 - 19 January 2016 there was a combined total of: 1. 3,425 text messages sent between them; Dr Mooney admits Complaint Six particular 2 (a). 1. 807 phone calls made between them. Dr Mooney admits Complaint Six particular 2 (b).
The transcript shows that at the commencement of the inquiry Dr Mooney was told that the proceedings had been convened to determine whether any action should be taken to either suspend him from practising medicine or by imposing conditions on his registration because material had been provided to the Medical Council alleging, inter alia, an inappropriate relationship with patient C.
We have previously recounted, in relation to Complaint Four, the evidence given by Dr Mooney to the s 150 inquiry on 1 February 2017 about that relationship after 15 October 2013. We are satisfied that his evidence to the delegates was to the effect that his interaction with patient C between October 2013 and January 2016 had been infrequent and emotionally distant. For example he said he had never met her socially apart from one dinner, otherwise he had only seen her by chance.
Dr Mooney resiled from this account when confronted by the evidence concerning the telephone calls and text messages. He said at the later s 150 inquiry that he had made those statements at the earlier s 150 inquiry because he had been petrified that he would be de-registered which would mean that he would lose his income and be shamed. He then described it as "not a romantic relationship. It was a crazy friendship of two interdependent people that shouldn't have occurred."
In a statement dated 1 June 2020, Dr Mooney said, in relation to his statements at the 1 February 2017 inquiry: "When I gave evidence at the Inquiry as to the extent of my social contact with Patient C knew that I had spoken Patient C by phone and texted her on many occasions, although I did not really realise the frequency of the calls or texts. I did not disclose this information when I gave evidence. I knew it would be harder to explain this contact to the panel at the inquiry and regrettably, I made the decision not to do so. I did not have a clear recollection as to the extent of my telephone contact with Patient C at the time of the Inquiry on 1 February 2017. It was not until I received the list of calls and text messages shortly prior to the s150 Inquiry on 25 June 2018, that I realized the extent of my contact with Patient C. I was shocked when I saw the list. I found the extent of the contact bewildering and far in excess of what I recall."
He gave the same explanation in these proceedings. He said that at the first s 150 inquiry he had known that he had been in contact more often with patient C than he had stated in his evidence and that he had chosen not to disclose it.
All of these later statements by Dr Mooney show that he made a deliberate decision to mislead the delegates on 1 February 2017.
The s 150 inquiry had been called after the regulatory authorities received a Complaint. The purpose of the inquiry was to decide whether steps should be taken to protect the public. Dr Mooney chose to mislead the inquiry to protect his registration. We are satisfied that Dr Mooney's conduct in misleading the delegates was improper and unethical.
Accordingly the HCCC has established that the Dr Mooney's evidence to the s 150 inquiry on 1 February 2017, in relation to his social interactions with patient C from 4 October 2013 to 19 January 2016, is unsatisfactory professional conduct.

[75]

Complaint Six particular 3

In Complaint Six, particular 3 the HCCC asserts that on 22 March 2018, in written correspondence Dr Mooney misled the Commission in that he stated that his social interactions with patient C were limited in circumstances where he was aware that between 4 October 2013 - 19 January 2016 there was a combined total of: 1. 3,425 text messages sent between them; Dr Mooney admits Complaint Six particular 3 (a). 1. 807 phone calls made between them. Dr Mooney admits Complaint Six particular 3 (b).
Section 34A of the National Law is entitled "Power of Commission to obtain information, records and evidence". When investigating a complaint, the HCCC is empowered to seek information which would assist in its investigation, by a request in writing. Failure to comply has a maximum penalty of 20 penalty units.
As we have said in relation to Complaint Four, Dr Mooney told the HCCC on 22 March 2018 in answer to a request for information under s 34A of the National Law, that his social interactions with patient C between October 2013 and January 2015 were infrequent telephone conversations and bumping into her when they were both independently attending the same social event.
In his statement dated 1 June 2020 Dr Mooney said: "On 22 March 2018, in response to a letter from the HCCC, I instructed my Avant solicitor to send a letter to the HCCC in which I stated that my social interactions with Patient C were limited. I acknowledge that the information provided to the HCCC was wrong and misleading, because my involvement with Patient C was more extensive than my responses suggested."
In these proceedings he agreed that he had chosen not to be frank and conceded that his evidence had been very inaccurate.
The HCCC is a regulatory authority which has a role in determining whether steps should be taken against a doctor to protect the public.
We are satisfied that Dr Mooney's conduct in misleading the HCCC was improper and unethical.
Accordingly the HCCC has established that the Dr Mooney's statement to the HCCC dated 22 March 2018, in relation to his social interactions with patient C from 4 October 2013 to 19 January 2016, is unsatisfactory professional conduct.

[78]

Complaint One particular one

On 25 June 2018 a condition was placed on Dr Mooney's registration requiring him to practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision.
Dr Mooney was informed of the conditions on his registration by email dated 28 June 2018.
Pursuant to that policy, he was required to provide the full name and contact details of the proposed supervisor by 19 July 2018. He did not do so. On 25 July 2018 he was reminded of his obligation and asked to nominate his supervisor by 30 July 2018. Dr Mooney responded on 30 July 2018 saying he had spoken to Professor Sacks who had "essentially agreed but wanted to get all of the details of the role". Dr Mooney said he would speak to him in the next 24 hours to confirm.
On 31 July 2018 the Council advised Dr Mooney that it could provide the proposed supervisor with the details of supervision, and requested Dr Mooney's response "by close of business today".
The Council then wrote to Dr Mooney on 1 August 2018 saying he was in breach of the condition and asking for a response by 3 August 2018. In an email dated 1 August 2018 Dr Mooney said he did not "believe I am in breach" because he had responded in a timely fashion and he would be seeing the proposed supervisor on 3 August 2018 to meet the new deadline. He referred to the non-compliance as a "perceived breach".
By reply email, Dr Mooney was informed he was considered to be in breach of the supervision condition and he was asked to contact Professor Sacks as a matter of urgency. On 3 August 2018, Dr Mooney was advised the Council would write to Professor Sacks to obtain his consent.
On 15 August 2018 Dr Mooney was advised that he was in breach of the supervision condition and that the Council would be referring the matter as a complaint to the HCCC as Professor Sacks had declined to accept the nomination as supervisor.
On 28 August 2018 a supervisor was appointed.
By way of explanation, Dr Mooney says he had been overseas from 5 to 27 July 2018 and he had tried to progress the issue but had difficulty contacting the HCCC. Professor Sacks had told him on 12 July 2018 that he wanted to discuss the matter in person before making a decision and they met on 2 August 2018. Dr Mooney said that, at that meeting, he believed that Professor Sacks had agreed to be his supervisor and he had told the HCCC the next day. He said he only found out that Professor Sacks had declined to accept that role when he received the email dated 15 August 2018 and then he found another doctor who agreed to assume that role.
Dr Mooney admits he failed to provide to the Council the full name and contact details of a practitioner who had agreed to act as his Category C supervisor by 19 July 2018 in breach of Condition 2 on his registration.

[80]

Complaint One particulars 2 to 8

These particulars all arise out of the condition placed on Dr Mooney's registration on 25 June 2018 to attend hair drug screening which says he is: 8. To comply with the Medical Council's Drug Screening policy and Participant Procedure; drug screening (as varied from time to time) and attend for: a. 3 monthly hair drug screening
The HCCC says: (2) Dr Mooney failed to attend his scheduled hair drug screening on 27 September 2018 after being directed by the Council to make and attend the appointment in breach of Condition 8. Dr Mooney admits particular 2. (3) Dr Mooney failed to attend for 3 monthly hair drug screening within the required timeframe, being 3 months after 28 June 2018, in breach of Condition 8. Dr Mooney admits particular 3. (4) Between 20 September 2018 and 5 October 2018, Dr Mooney worked as a doctor on the dates he was certified by two general practitioners as unwell, in breach of condition 8, as he had breached paragraph 9.1 of the Procedure when: 1. on 21 September 2018, he saw 7 patients; 2. on 2 October 2018, he saw 11 patients; 3. on 3 October 2018, he saw 4 patients; 4. on 4 October 2018, he saw 15 patients; 5. on 5 October 2018, he saw 7 patients. Dr Mooney admits particular 4. (5) Dr Mooney provided illness certificates to the Council which covered more than 3 business days, in breach of condition 8, as it was contrary to paragraph 9.1 of the Procedure, because the illness certificates were for the period: (a) 20 September 2018 to 29 September 2018; (b) 21 September 2018 to 2 October 2018; (c) 21 September 2018 to 5 October 2018. Dr Mooney admits particular 5. (6) Dr Mooney failed to provide supporting information to the Council from his treating practitioner about his illness, whether any substance had been advised, prescribed or administered and when he would be able to return to screening after remaining ill, in breach of Condition 8, as it was contrary to paragraph 9.1 of the Procedure, for the following periods for which he had an illness certificate: (a) 20 September 2018 to 29 September 2018; 1. (b) 21 September 2018 to 2 October 2018; 2. (c) 21 September 2018 to 5 October 2018. Dr Mooney admits particular 6. (7) Dr Mooney failed to attend for hair drug screening on 8 October 2018 which was the next business day following his illness leave of absence on 5 October 2018, in breach of Condition 8 as it was contrary to paragraph 9.1 of the Procedure. Dr Mooney admits particular 7. (8) Dr Mooney failed to have hair that was 3cm in length when he attended for drug hair screening on 9 October 2018 as a result of cutting his hair soon after the hair drug screening condition was imposed on 28 June 2018 knowing his hair to be slow growing, in breach of Condition 8, as it was contrary to paragraph 7.2 of the Procedure. Dr Mooney denies particular 8.
Particulars 2 to 8 all relate to the one chain of events. In summary the HCCC says that the condition on Dr Mooney's registration meant he was subject to hair drug testing pursuant to the "Participant Procedure: Drug Screening" referred to in the Complaint. That Procedure relevantly provided that Dr Mooney's hair should be 3 cm in length when he attended for each test and the first test should be done within three months. Dr Mooney did not attend the test arranged for 27 September 2018. The Procedure provides that if a doctor cannot attend a hair drug test due to illness, the doctor must obtain an illness certificate in the format attached to the Procedure. Dr Mooney obtained three illness certificates in that format which together covered the period 20 September 2018 to 5 October 2018. The HCCC says that those certificates did not comply with the Procedure because each of them covered more than three business days. Further, the HCCC says, the Procedure provides that if a doctor cannot attend a hair drug test because of illness, they must do so on the first day they are certified fit for work. In this case Dr Mooney provided illness certificates which said he was too ill to attend for hair drug testing up to 5 October 2018 and but had only attended for the test on 9 October 2018. He should have attended on the next business day, 8 October 2018. In addition, the HCCC says that Dr Mooney breached the Procedure because he worked on days covered by those certificates, being 21 September and 2, 3, 4 and 5 October.
Dr Mooney's account of what occurred is set in one of his statements dated 1 June 2020.
Dr Mooney says that, after the s 150 inquiry on 25 June 2018, he did some research into hair testing. He became concerned that his handling of cocaine while performing surgery while not wearing gloves might result in the hair test being trace positive for cocaine. He was already in a stressed and anxious situation. He thought if he cut his hair short, it would re-grow to 3cm by the time of testing and his regrown hair would be "clean". He had his cut short in a "buzz cut" on 26 June 2018.
Dr Mooney was notified that he was required to attend for hair drug screening between 14 and 28 September 2018. He made a booking for 27 September 2018. However in the week commencing 16 September 2018, he said he experienced a number of stressors, including issues with his ex-wife and financial difficulties. He began feeling very anxious and suffered from insomnia and panic attacks.
On 21 September 2018 he had a severe anxiety attack at work and attended his general practitioner who provided an illness certificate and prescribed Valium. The general practitioner's notes are in evidence. They confirmed that Dr Mooney attended on that day complaining of anxiety. She did prescribe Valium. We were not taken to any illness certificate dated 21 September 2018. The certificate from that general practitioner certifying him ill from 21 September 2018 to 2 October 2018 is dated 2 October 2018. The illness certificate format does not require the certifying doctor to specify the nature of the illness. The certificate notes that Dr Mooney missed the screening on 27 September 2018 and certifies him ill from 21 September 2018 to 5 October 2018.
Dr Mooney says that after he saw his general practitioner on 21 September 2018, he flew to Melbourne to be with his family. He spent the next days in a severely anxious, depressed and tearful state, consulting regularly with his psychologist. He said he tried taking the Valium prescribed by the general practitioner but felt really tired and lethargic after taking it and only used it twice.
By email dated 26 September 2018, Dr Mooney's solicitor advised the Council that Dr Mooney was unwell and unable to attend for hair testing the following day. The Council requested an illness certificate form.
On 27 September 2018 Dr Mooney consulted a general practitioner in Victoria. The certificate issued by that doctor is in evidence. Dr Mooney was certified as ill from 20 September 2018 to 29 September 2018.
On 2 October 2018 Dr Mooney returned to Sydney and admits he went to work that day. It is now admitted that he saw 11 patients. He said he had an anxiety attack and could not cope with work. He consulted his general practitioner later that day who gave him an illness certificate.
As we have said, that illness certificate is in evidence. The general practitioner's notes confirm that Dr Mooney attended on 2 October 2018 at 16.45 complaining of not coping and feeling very anxious and teary. He had taken Valium twice but it had made him feel lethargic so he was trying not to take it. She strongly recommended he commence Sertraline (which is an antidepressant). The general practitioner's notes do not mention that he had given a history of having worked that day. They say: Was due for hair drug testing. Too anxious to do - was pacing round the room today, shaking, teary. I agree not well enough to do this. Paperwork completed. Discussed possibility inpatient stay to manage anxiety - will consider this."
Dr Mooney said that at this time he started taking the Sertraline which had been prescribed for him.
On 3 October 2018 Dr Mooney went to work and performed surgery on four patients.
On 4 October 2018, Dr Mooney went to work and saw 15 patients.
On 5 October 2018, Dr Mooney went to work and saw seven patients.
Dr Mooney said on that day he became acutely unwell and left work. Later that day, he had a consultation with his general practitioner by phone and she provided an illness certificate. That certificate says that the date of illness was 21 September 2018 to 5 October 2018. The entry in the general practitioner's notes says: "Paperwork completed and emailed Phone consult Started sertraline Feeling a bit better Will review next week"
Dr Mooney said that at that time he thought that if he was unwell and unable to attend for screening, he was required to attend for testing within 24 hours of returning to work. He accordingly attended for testing on 9 October 2018.
For completeness, we note that a report from Dr Mooney's treating psychologist dated 5 November 2018 is in evidence which relevantly says: "I have been Dr Mooney's treating psychotherapist sporadically for a number of years. Dr. Mooney returned for treatment earlier this year to deal with a number of significant life stressors including his work, divorce proceedings, media scrutiny and dealings with the medical board. These stressors escalated towards the end of September 2018, to a point where Dr. Mooney was dealing with acute anxiety symptoms. These symptoms were at a level which stopped Dr Mooney from being able to effectively work. It is my understanding that Dr Mooney then went to Melbourne to receive support from his family. During that time I had a number of phone sessions. During one session, I encouraged Dr Mooney to consult with his GP about whether or not he could benefit from medication support. I understand he did that when he returned in early October and that he was prescribed a SSRI (antidepressant). It is my understanding that when Dr Mooney attempted to return to work he saw a couple of patients each day, however he had to stop working due to his anxiety symptoms. As a result, he returned again to Melbourne on the 5th October for more family support. On the 8th October Dr Mooney returned to Sydney to start working again. After reviewing Dr Mooney on 31st October it appeared that his anxiety symptoms were manageable to a point where he is able to return to work. It is my intention to remain available to Dr Mooney for further support throughout this very stressful period of this life.
At the s 150 inquiry on 7 November 2018 Dr Mooney told the delegates that during the period he was unwell and unable to attend for a hair test, he only went to work to see emergency cases. He defined ENT emergencies as posing an immediate risk to a patient's life and/or significant short or long term health implications.
In a letter to the HCCC dated 20 December 2018, Dr Mooney said he acknowledged he had breached the conditions on his registration by not complying with the hair drug screening policy and working while providing certificates for non-attendance for hair testing, and said the breaches occurred at a time when he was suffering acute anxiety and a degree of reactive depression so that he was intermittently unable to cope with his day to day activities. In addition he did not understand his obligations under the Policy.

[81]

Findings - Complaint One particulars 2 to 8

Our first finding is in respect of the suggestion that any of the patients Dr Mooney saw on 2, 3, 4 or 5 were an "emergency".
We do not propose to recount all of the evidence, which is lengthy. The issue is also raised in Conditions Complaint - Complaint Two. However ultimately it was only suggested by Dr Mooney that two of the patients were an emergency presentation. We have, as discussed later in these Reasons, accepted the evidence of Dr Altmann and decline to find that any of the patients he treated on those days was an "emergency" or an "ENT emergency".
We accordingly find that Dr Mooney saw a total of 33 patients over three days and operated on 4 patients on another day. None of the consultations were an emergency.
Further, during those four days when he was working Dr Mooney was presenting at a general practitioner on 2 and 5 October 2018 and obtaining certificates certifying him too ill to attend for hair testing. This is in contravention of para 9.1 of the Procedure which says a practitioner must not work while certified as too ill to attend testing. Further, each of those two certificates (and the third certificate issued in Victoria) covered more than three business days in contravention of the Procedure.
Additionally, Dr Mooney failed to provide supporting information to the HCCC from his general practitioner about his illness as to whether any substance had been advised, prescribed or administered and when he would be able to return to screening, in breach of paragraph 9.1 of the Procedure.
Lastly, the certificates certified him as unfit to attend testing until 5 October 2018. The next business day was 8 October 2018. He did not attend for testing until 9 October 2018 which is in breach of paragraph 9.1 of the Procedure.
We decline to find that the HCCC has shown that Dr Mooney failed to have hair that was 3cm in length when he attended for drug hair screening on 9 October 2018. This is not supported by the documents in evidence.
We accordingly find that Dr Mooney has contravened condition 8 on his registration as set out in Complaint One particulars 2 to 7.
We are satisfied that the HCCC has established unsatisfactory professional conduct in respect of Complaint One particulars 2 to 7.

[83]

Complaint Two particulars 1 to 5

Particulars 1 - 5 of Complaint Two arise out of the following statements made by Dr Mooney to the Medical Council on 7 November 2018 in relation to the patients he saw on 2, 4 and 5 October 2018 being days covered by illness certificates he had submitted certifying he was too unwell to attend hair drug testing: "I attempted to see patients mainly at the behest of my staff who said they had emergencies. I was functional to see patients I thought but quickly, after seeing one or two patients on each of those days, pretty quickly fell in a heap and was non-functional. I couldn't drive home. My partner - my sister had to come and pick me up from work on all those days. My staff will happily give you statements to that end. I only attended because they were emergency cases and I've submitted those notes to you. I know they're not accident emergency type emergencies but for my specialty ENT torrential bleeding, epistaxis, crushing sinus headaches, acute airway obstruction in a child and malignancy, head and neck cancer, acute severe headaches, acute sinusitis, 25 for me these constituted patients that in my training I should see straightaway."
The particulars of Complaint 2 are the following: 1. On 7 November 2018, Dr Mooney misled the Council when he advised that on 2, 4 and 5 October 2018 he only saw emergency patients in circumstances when he actually saw the following patients, not all of whom were emergencies: 1. On 2 October 2018, Dr Mooney saw 11 patients; 2. On 4 October 2018, Dr Mooney saw 15 patients; 3. On 5 October 20108, Dr Mooney saw 7 patients. In relation to particular 1, Dr Mooney admits that he saw that number of patients on those days. 1. On 7 November 2018, Dr Mooney misled the Council because he performed the following non-emergency surgical procedures on 4 October 2018: 1. Nasal haemorrhage, arrest of during an episode of epistaxis by cauterisation or nasal cavity packing or both on patient H; 2. Nasal haemorrhage, arrest of during an episode of epistaxis by cauterisation or nasal cavity packing or both on patient I. Dr Mooney denies particular 2 and says that the procedures he performed on patients H and I were emergency surgical procedures. 1. On 7 November 2018, Dr Mooney misled the Council when he failed to advise that he worked on 3 October 2018. Dr Mooney admits particular 3. 1. On 7 November 2018, Dr Mooney misled the Council when he failed to advise that he saw patients D, E, F and G in hospital on 3 October 2018. Dr Mooney admits particular 4. 1. On 7 November 2018, Dr Mooney misled the Council when he failed to advise that he performed the following surgical procedures in a hospital on 3 October 2018: 1. Turbinates, submucous resection on patient D; 2. Nasal septum, septoplasty or submucous resection or closure of septal perforation on patient D; 3. Turbinates, submucous resection on patient E; 4. Nasal septum, septoplasty or submucous resection or closure of septal perforation on patient E; 5. Turbinates, submucous resection on patient F; 6. Nasal septum, septoplasty or submucous resection or closure of septal perforation on patient F; 7. Turbinates, submucous resection on patient G. Dr Mooney admits particular 5.

[84]

Findings - Complaint Two particulars 1 to 5

We are satisfied that the HCCC has shown that Dr Mooney deliberately misled the s 150 inquiry on 7 November 2018.
On some occasions Dr Mooney has said that he did not tell the delegates about all of the patients he had seen on those days because he had only obtained copies of the records for the patients named in a letter he had received from the Medical Council, he did not recall at that time that he had seen any additional patients on those three days or that he had worked on 3 October 2018 and he had not checked to see whether he had seen any other patients.
However the first relevant letter from the Medical Council is dated 10 October 2018, which is only five days after 5 October 2018. The letter says: "The Council has reviewed data from Medicare Australia for the above period to monitor the information you provided to the Council. The data indicates that you provided services for the following dates …" and then lists services provided to four patients on 2 October 2018, three patients on 4 October 2018 and one patient on 5 October 2018. Dr Mooney was asked to provide a response.
In his reply dated 12 October 2018, Dr Mooney said to the Council "On 2, 4 and 5 October 2018, I … attempted to work as I had urgent patients to see …. However I did not feel able to cope with remaining at work on these days and I went home after a short period of time. I am now aware that according to the Medical Council's protocol, I should not have attempted to return to work while I remained unwell and unable to undergo hair testing."
We are satisfied that Dr Mooney was being less than frank when he sent this reply as we do not accept that in such a short time frame he had forgotten the number of patients he had seen, the number of days on which he had seen patients, the fact he had operated on one of those days and the fact that they could not all be described as urgent patients.
The conduct which is the subject of Complaint Two particulars 1 to 5 occurred: 1. only one month after Dr Mooney had seen those patients; and 2. four weeks after the issue had been brought to his attention in the correspondence we have just discussed.
We are satisfied that on 7 November 2018 Dr Mooney must have known he had seen more patients over the period 2 - 5 October 2018 than he disclosed to the delegates.
We are also satisfied that on 7 November 2018 Dr Mooney must have known that not all of the patients he saw from 2 to 5 October 2018 were urgent or emergency or ENT emergency patients. In his Reply he now says that only patients H and I were emergencies.
The expert evidence, which we accept, is that those two patients were not emergencies.
Patient H had a long standing problem with nose bleeds and his referral to Dr Mooney is dated 13 September 2018, that is three weeks before he saw Dr Mooney. Dr Mooney cauterised some blood vessels. Dr Altmann said, and we accept, that the records showed that, in the past, the patient had small volume bleeding over months, which was a chronic and not an acute condition. The patient was not actively bleeding at the consultation until Dr Mooney induced bleeding. It was not an emergency and the patient could have been seen by another ENT one or two weeks later.
Dr Mooney recorded, in relation to Patient I that he had suffered from "torrential" nosebleeds in the past. Dr Altmann noted that the referral was dated 11 September 2018, which also was three weeks before the consultation with Dr Mooney. Dr Altmann said, and we accept, that patient I was not an emergency because his nose was not bleeding when he arrived and he could have been seen by another ENT within the next week.
The purpose of the s 150 inquiry was to ascertain whether Dr Mooney had breached conditions which had been placed on his registration to protect the public. In giving evidence to that inquiry, which took place only one month after the alleged breach, Dr Mooney did not disclose the actual number of patients he had seen, the actual number of hours he must have worked each day to see so many patients, the number of days he had worked and misleadingly sought to give the impression that he had only briefly treated emergency patients. We are satisfied that Dr Mooney that this failure to disclose was a deliberate attempt to avoid further disciplinary consequences.
We are satisfied that Dr Mooney's conduct set out in Complaint Two particulars 1 - 5 is improper and unethical and is unsatisfactory professional conduct.

[87]

Professional misconduct

In Complaint Seven of the Surgery Complaint and Complaint Three of the Conditions Complaint the HCCC says that Dr Mooney is guilty of professional misconduct under section 139E of the National Law because he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation his registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. Dr Mooney does not admit he is guilty of professional misconduct.
In determining whether the HCCC has established professional misconduct we have examined the seriousness of the conduct established in both the Surgery Complaint and the Conditions Complaint.
The matter was discussed in submissions and ultimately there was no submission from either counsel that the conduct in the Surgery Complaint and the Conditions Complaint should be considered separately.
Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of Dr Mooney's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of Dr Mooney's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]).
Also: "Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences" (Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200).
This is of particular relevance to these proceedings where some of the conduct is likely to be related to the death of patient A or B.
Next: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal" (Chen v HCCC [2017] NSWCA 186 at [20]).
We consider that each of the following matters is of a sufficiently serious nature to justify suspension or cancellation of Dr Mooney's registration. We also take into account our previous findings earlier in these Reasons.

[91]

Misleading regulatory authorities

The regulatory authorities including the Medical Council and the HCCC have been created to regulate doctors and to provide for the protection of the health and safety of the public (s 3 of the National Law).
In HCCC v Shrimpton [2019] NSWCATOD 25, the Tribunal held: "It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities" (at [72]).
In Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56, the Tribunal held: "Lying to the regulatory authority has the potential to undermine the system for the regulation of medical practitioners, which is a statutory system conducted principally for the protection of the health and safety of the public" (at [49]).
We have found: 1. On 1 February 2017 Dr Mooney misled the Medical Council when he said at a s 150 inquiry that he had not treated patient C after 15 October 2013. On 1 February 2017 he again misled the Medical Council at that hearing when he said his social interactions with patient C were limited between 4 October 2013 and 19 January 2016. On 22 March 2018, he misled the HCCC in written correspondence when he said his social interactions with patient C between 4 October 2013 and 19 January 2016 were limited. (Surgery Complaint - Complaint Six) 2. Dr Mooney misled the Medical Council on both 7 November 2018 and 20 December 2018 when he said that he had only treated emergency patients on 2, 4 and 5 October 2018, minimized the number of patients he said he had seen on those days and did not disclose that he had operated on 3 October 2018. He also later misled the HCCC when he failed to disclose he had also worked on 3 October 2018. (Conditions Complaint - Complaint Two).
In relation to patient C, in his statement dated 1 June 2020, Dr Mooney said his evidence to the s 150 inquiry was "not the complete picture" as it was likely that he had continued to treat patient C after October 2013. He had given this evidence because he had only been given one or two days' notice to attend at the inquiry so that he had little time to collect his thoughts about what had happened with patient C. We are not persuaded that this lack of time could possibly account for Dr Mooney's gross minimization of his relationship with patient C.
We have already recounted how, in that same statement, Dr Mooney conceded that he deliberately withheld information about the relationship to avoid his registration being suspended.
Dr Mooney knew his relationship with patient C breached professional standards and deliberately withheld details of that relationship from the regulatory authorities which are charged with protecting the public and maintaining professional standards.
In relation to the breach of condition 8 on his registration, we have found that, after the Medical Council discovered that Dr Mooney had been working in contravention of the Policy, Dr Mooney deliberately misled the s 150 inquiry on 7 November 2018 as to the extent to which he had worked while certified unfit to attend for hair drug testing.
We have found that Dr Mooney has, on several occasions, chosen to deliberately withhold information from the regulatory authorities which are charged with protecting the public and maintaining professional standards. This is a very significant departure from 'proper' or 'reasonably expected' standards.

[92]

Breach of condition 8 on Dr Mooney's registration

At the s 150 inquiry on 25 June 2018 the delegates informed Dr Mooney that the Medical Council would impose a condition requiring him to attend for hair testing analysis for drug use at three monthly intervals. The Order made required Dr Mooney to comply with the Medical Council's Drug Screening policy and Participant Procedure; drug screening (as varied from time to time). That Policy wording was provided to Dr Mooney on 2 July 2018.
The condition had been placed on Dr Mooney's registration to protect the public and to enable the regulatory authorities to monitor whether he may have used illicit drugs. Conditions imposed on registration must be scrupulously observed (Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74]).
Dr Mooney did not comply with the condition in relation to the maximum length of absence to be certified in each illness certificate (3 days), by working on four days covered by those certificates (2, 3, 4 and 5 October 2018) and by not attending for hair drug testing on the first day after the certified absences (8 October 2018).
Dr Mooney says that from 27 September 2018 to 8 October 2018 his judgment and ability to work was clouded by stress and anxiety caused by various stressors in his life. We have already recounted some of this evidence.
We accept that Dr Mooney would have been under some stress at this time but do not accept this as an explanation for his failure to comply with the conditions on his registration and his failure to disclose the extent of his ability to work on 2, 3, 4 and 5 October 2018.
It is not possible to reconcile the debilitating condition described by Dr Mooney to various inquiries and in these proceedings and given by Dr Mooney to his general practitioner and his psychologist with his ability to treat so many patients on four consecutive days, including one day where he operated on four patients at a hospital. We note by way of example that Dr Mooney told his psychologist (as we have already said) before 5 November 2018 that his "symptoms were at a level which stopped Dr Mooney from being able to effectively work … It is my understanding that when Dr Mooney attempted to return to work he saw a couple of patients each day, however he had to stop working due to his anxiety symptoms". In fact on the four days Dr Mooney worked he saw 11, 4, 15 and 7 patients.

[96]

Improper or unethical conduct

Where we have found that Dr Mooney's conduct was improper and/or unethical, we are applying another definition of unsatisfactory professional conduct in s139B of the National Law which says in subs (1)(l) that it is "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession".
In deciding whether conduct is improper and/or unethical, we have had regard to the following principles: 1. The words "improper" and "unethical" are not defined in the National Law. They are to be understood in their ordinary meaning. 2. The relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller of Customs (2009) 83 ALJR 494). 3. If Dr Mooney's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper (R v Byrne (1995) 193 CLR 501 at 514-515). 4. Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct. In Office of Local Government v Toma [2015] NSWCATOD 21 the Tribunal held: "25. Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v UNet Limited (No 3) [2015] FCA 422 at [5] Perram J said, aptly for present purposes: "The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. 26. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical conduct." 1. Lies to or concealing information from regulatory authorities can amount to improper conduct (Health Care Complaints Commission v Kauser [2020] NSWCATOD 42).

[109]

PARTICULARS OF COMPLAINT FOUR 1. From about 2013 to early 2016, the practitioner acted inappropriately in forming a personal relationship with and disclosing information about his personal life to Patient C in circumstances where the practitioner was providing treatment to her. 2. Between 2014 - 2015, the practitioner failed to provide appropriate care and treatment to Patient C in that he prescribed Duromine to Patient C on the dates and in the quantities and dosages set out in Schedule A: 1. without taking an adequate history from patient C; 2. without conducting an appropriate assessment of Patient C; 3. in excessive quantities; 4. in excessive dosages; 5. without an appropriate therapeutic purpose; 6. where it was not clinically indicated; 7. without appropriate monitoring; 8. without referral to a general practitioner and/or dietician; 9. without providing appropriate advice about side effects and risks; 10. in circumstances where he had a personal relationship with Patient C. 1. In the third quarter of 2014 the practitioner acted inappropriately in that he went to dinner with Patient C in circumstances where the practitioner: 1. first met Patient C as her treating medical professional; 2. had provided treatment to Patient C over a period of years; 3. was still treating Patient C as a patient of his private practice; 4. was providing Patient C with treatment from time to time including by way of prescriptions for medication. 1. In the third quarter of 2014, the practitioner acted inappropriately in that he went to a hotel room and engaged in intimate behaviour with Patient C in circumstances where the practitioner: 1. first met Patient C as her treating medical professional; 2. had provided treatment to Patient C over a period of years; 3. was still treating Patient C as a patient of his private practice; 4. was providing Patient C with treatment from time to time including by way of prescriptions for medication. 1. Around July - August 2015, the practitioner failed to provide appropriate care and treatment to Patient C by prescribing Duromine and Diazapam concurrently to Patient C. 2. On 15 July 2015, the practitioner acted inappropriately in that he went to dinner with Patient C in circumstances where the practitioner: 1. first met Patient C as her treating medical professional; 2. had provided treatment to Patient C over a period of years; 3. was still treating Patient C as a patient of his private practice; 4. was providing Patient C with treatment from time to time including by way of prescriptions for medication. 1. Between 4 October 2013 - 19 January 2016, the practitioner acted inappropriately in that he engaged in sending and receiving telephone calls and text messages with Patient C in circumstances where the practitioner was providing treatment to Patient C which included a combined total of: 1. 3,425 text messages sent between the practitioner and Patient C; 2. 807 phone calls made between the practitioner and Patient C.

[120]

PARTICULARS OF COMPLAINT ONE 1. The practitioner failed to provide to the Council the full name and contact details of a practitioner who had agreed to act as the practitioner's Category C supervisor by 19 July 2018 in breach of Condition 2. 2. The practitioner failed to attend his scheduled hair drug screening on 27 September 2018 after being directed by the Council to make and attend the appointment in breach of Condition 8. 3. The practitioner failed to attend for 3 monthly hair drug screening within the required timeframe, being 3 months after 28 June 2018, in breach of Condition 8. 4. Between 20 September 2018 - 5 October 2018, the practitioner worked as a medical practitioner on the dates he was certified by Dr Michaela Sorenson and Dr Varun Kommidi as unwell, in breach of Condition 8. More specifically this breached Paragraph 9.1 of the Procedure being: 1. on 21 September 2018, the practitioner saw 7 patients; 2. on 2 October 2018, the practitioner saw 11 patients; 3. on 3 October 2018, the practitioner saw 4 patients; 4. on 4 October 2018, the practitioner saw 15 patients; 5. on 5 October 2018, the practitioner saw 7 patients. 1. The practitioner provided illness certificates to the Council which covered more than 3 business days, in breach of Condition 8. More specifically contrary to Paragraph 9.1 of the Procedure, in that the illness certificates were for the period: 1. 20 September 2018 - 29 September 2018 from Dr Varun Kommidi; 2. 21 September 2018 - 2 October 2018 from Dr Michaela Sorenson; 3. 21 September 2018 - 5 October 2018 from Dr Michaela Sorenson. 1. The practitioner failed to provide supporting information to the Council from his treating practitioner about his illness, whether any substance had been advised, prescribed or administered and when he would be able to return to screening after remaining ill, in breach of Condition 8. More specifically contrary to Paragraph 9.1 of the Procedure, for the following periods for which the practitioner had an illness certificate: 1. 20 September 2018- 29 September 2018; 2. 21 September 2018 - 2 October 2018; 3. 21 September 2018 - 5 October 2018. 1. The practitioner failed to attend for hair drug screening on 8 October 2018 which was the next business day following his illness leave of absence on 5 October 2018, in breach of Condition 8. More specifically contrary to Paragraph 9.1 of the Procedure. 2. The practitioner failed to have hair that was 3cm in length when he attended for drug hair screening on 9 October 2018 as a result of cutting his hair soon after the hair drug screening condition was imposed on 28 June 2018 knowing his hair to be slow growing, in breach of Condition 8. More specifically contrary to Paragraph 7.2 of the Procedure.

[123]

PARTICULARS OF COMPLAINT TWO 1. On 7 November 2018, the practitioner misled the Council when he advised that on 2, 4 and 5 October 2018 he only saw emergency patients in circumstances where the practitioner actually saw the following patients, not all of whom were emergencies: 1. On 2 October 2018, the practitioner saw 11 patients; 2. On 4 October 2018, the practitioner saw 15 patients ; 3. On 5 October 2018, the practitioner saw 7 patients. 1. On 7 November 2018, the practitioner misled the Council because he performed the following non-emergency surgical procedures on 4 October 2018: 1. Nasal Haemorrhage, Arrest of during an episode of epistaxis by cauterisation or nasal cavity packing or both (Item Number 41677) on Patient H; 2. Nasal Haemorrhage, Arrest of during an episode of epistaxis by cauterisation or nasal cavity packing or both (Item Number 41677) on Patient I. 1. On 7 November 2018, the practitioner misled the Council when he failed to advise that he worked on 3 October 2018. 2. On 7 November 2018, the practitioner misled the Council when he failed to advise that he saw Patients D, E, F and G in Hospital on 3 October 2018. 3. On 7 November 2018, the practitioner mislead the Council when he failed to advise that he performed the following surgical procedures in a Hospital on 3 October 2018: 1. Turbinates, Submucous Resection (Item Number 41692H) on Patient D; 2. Nasal Septum, Septoplasty or Submucous resection or closure of septal perforation (Item 41671H) on Patient D; 3. Turbinates, Submucous Resection (Item Number 41692H) on Patient E; 4. Nasal Septum, Septoplasty or Submucous resection or closure of septal perforation (Item 41671H) on Patient E; 5. Turbinates, Submucous Resection (Item Number 41692H) on Patient F; 6. Nasal Septum, Septoplasty or Submucous resection or closure of septal perforation (Item 41671H) on Patient F; 7. Turbinates, Submucous Resection (Item Number 41692H) on Patient G. 1. On 20 December 2018, the practitioner misled the Commission when, after reviewing his records, he failed to disclose that he also worked on 3 October 2018, including performing surgical procedures on Patients D - G, when he was issued with an illness certificate.

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