Background
The practitioner, a cardiothoracic surgeon, had his operating privileges withdrawn by the hospital following an unparticularised complaint regarding his treatment of four high risk patients. This triggered an investigation by the hospital in June 2025, which failed to yield results due to delays, lack of clarity, and the withdrawal of appointed external experts.
Rather than complete its investigation, the hospital “sidestepped” this requirement by referring the matter to the Medical Council of New South Wales. The Medical Council then convened an urgent s 150 hearing, despite no emergency basis or risks posed to patient safety arising due to the prior suspension of the practitioner’s operating privileges.
The s 150 hearing involved discussion and direct questioning of the practitioner by the Council delegates. However, the Council did not have expert knowledge of the procedures the subject of the complaints and their questioning of the practitioner lacked reference to evidence-based practice considerations and delved into irrelevant details. Ultimately the Council decided to impose practice conditions on the practitioner’s registration.
Throughout the process, the practitioner was denied procedural fairness as he was not provided with specific particulars of the complaints or the allegations against him, nor the basis for concerns about his clinical management of the patients in question.
The practitioner appealed the Medical Council’s decision and sought a stay of the practice limiting Orders which had been imposed upon him pursuant to the emergency powers.
Tribunal findings
In its reasons for decision in granting the stay, the Tribunal raised significant criticisms of both the hospital and the Medical Council.
It was found that on the available evidence, the hospital’s decision to withdraw the practitioner’s clinical and operating privileges was made without providing him with a procedurally fair opportunity to show cause as to why such withdrawal of privileges was warranted. The Tribunal described this as a failure of clinical governance procedures at the hospital.
It was also noted that the “reputational effects” associated with the decision meant he was unable to perform cardiothoracic surgery at any hospital.
The Tribunal also found that the members of the Medical Council misapplied the emergency power under s 150 of the National Law, as the practitioner’s operating privileges had already been withdrawn by the hospital, and there was no evidence before the Council that the practitioner posed a current or imminent risk to public health or safety.
The Medical Council was also criticised for failing to provide procedural fairness to the practitioner during the s 150 hearing, as he was not provided with appropriate notice or details of the specific allegations against him, which limited his ability to present a proper defence to the claims.
The Tribunal held that the failures in procedural fairness were further compounded by opaque investigatory practices by the hospital and its referral of unsubstantiated and unparticularised performance concerns to the Medical Council.
The Medical Council’s decision was therefore stayed pending the hearing of the Appeal against the decision.
Comment
Procedural fairness is the legal requirement that decisions affecting a person’s rights, interests, or legitimate expectations are made using fair, unbiased, and transparent processes. It focuses on the procedure followed, not the fairness of the outcome, ensuring a fair hearing and the absence of bias.
It is imperative that hospitals and other health organisations ensure that their process for investigating practitioners when required, provide the practitioner with properly particularised allegations which are factually based and supported by rationally expressed peer expert criticism of the clinical care in issue. An appropriate opportunity to respond to the allegations must also be provided. The failure to do so may cause the investigation process to be criticised and any decision with respect to restriction of privileges, overturned.
A link to the decision can be found here
