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NSW Medical Council’s conditions imposed on a cardiothoracic surgeon were stayed under the National Law.
In issue
- Dr Pankaj Saxena, a specialist cardiothoracic surgeon, brought an appeal under s 159 and 159B of the Health Practitioner Regulation National Law (NSW) 2009 (National Law). Dr Saxena sought a stay of a series of conditions imposed by the Medical Council of New South Wales in accordance with s 150 of the National Law.
The background
In May 2025, the Head of Cardiothoracic Surgery at the John Hunter Hospital in Newcastle raised concerns regarding Dr Saxena’s practice. This led to an unparticularised complaint regarding Dr Saxena’s treatment of four cardiothoracic surgical patients. The hospital subsequently engaged two external independent cardiothoracic surgeons to carry out an investigation that spanned over many months, and withdrew Dr Saxena’s operating privileges in the meantime. The investigation came to an abrupt end when the two experts removed themselves from the investigation for reasons unknown, and the hospital was unable to substantiate the facts that justified the withdrawal of Dr Saxena’s professional privileges.
Despite this outcome, the hospital proceeded to refer the four patient cases in question to the Medical Council for investigation. The Council decided to convene an urgent s 150 hearing on 3 December 2025 regarding the unparticularised 'serious performance concerns'. John Hunter Hospital failed to provide any expert evidence or witness statements regarding the care provided by Dr Saxena to the four patients under review. As a result, the discussion at the s 150 hearing was not based on grounded evidence, but rather on anecdotal or irrelevant facts. In addition, the Tribunal noted with interest that the delegates in the hearing stated 'Hunter New England Local Health District is basically waiting on the Council’s decisions to address its internal [unparticularised] concerns [with Dr Saxena] rather than the other way around which is how things normally occur. But that’s the situation we’re in and to which we think it’s appropriate to respond.'
Despite the fact that Dr Saxena had been restricted from carrying out any cardiac surgical practice since July 2025, the Medical Council concluded that the surgeon’s alleged, yet unspecified conduct posed a risk to the health and safety of the public.
The decision at trial
S 150 of the National Law grants the Medical Council with emergency power to make orders for the protection of the health and safety of the public, such as by imposing conditions on a medical practitioner’s practice. The Tribunal found that the Medical Council had misapplied its emergency power in placing conditions on Dr Saxena’s practice in circumstances where there was no urgency as his operating privileges had already been withdrawn by the hospital.
Further, the Tribunal noted that the hospital’s decision to withdraw Dr Saxena’s privileges without providing him the particulars of the complaint against him, and without allowing him the opportunity to show cause amounted to a lack of procedural fairness.
The Tribunal commented:
Ultimately, the Tribunal ordered a stay of the Medical Council’s decision to impose conditions on Dr Saxena’s practice pending appeal and awarded costs to Dr Saxena.
Implications for you
We assist medical practitioners with matters before the Medical Council on a regular basis. We acknowledge that they can be very stressful for practitioners, especially when s 150 proceedings have been commenced. This is a helpful decision as it reinforces the requirement that there must be a threat to the health and safety of the public in order for the Council to place conditions on the registration of a practitioner.
Always reach out to your MDO for assistance should you find yourself faced with urgent action proceedings.
Saxena v Medical Council of New South Wales [2026] NSWCATOD 33
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