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After several years of controversy, and both praise and blame for his willingness to perform high-risk surgeries, neurosurgeon Charlie Teo has been subject to听听by a special committee established under health practitioner听.

So how does the process of restricting doctors鈥� medical practice work? And what did this mean for Teo?

How are health practitioners regulated in Australia?

Health practitioner regulators in Australia aren鈥檛 generally empowered to make听punitive听decisions about health professionals鈥� conduct.

Instead, Australia鈥檚 health practitioner regulations (the so-called 鈥渘ational law鈥�) require decision-makers to exercise their powers to听protect听patients. They operate in what is often called a 鈥溾��.

And though the regulator may sometimes impose fines, it is rare. That鈥檚 because it may do so only听听it is 鈥渟atisfied there is no other order, or combination of orders, that is appropriate in the public interest鈥�.

In all state听听of the national law, regulators may听听only if it鈥檚 鈥渘ecessary to ensure health services are provided safely and of an appropriate quality鈥�.

But the NSW national law includes additional wording. In all its decisions, the regulator听听the 鈥渉ealth and safety of the public鈥� as the 鈥減aramount consideration.鈥�

This can have unusual effects. As the听听acknowledges, requirements to protect the public may sometimes result in 鈥渁 determination that is harsher on the practitioner than if punishment were the sole purpose鈥�.

What happened in the Teo case?

In late 2022, proceedings commenced against Teo via two complaints by the New South Wales听听(贬颁颁颁).

The complaints concerned two brain surgeries on two patients. Both involved 鈥渞adical resections鈥� (鈥渆n bloc鈥� removals) of these patients鈥� brain tumours. Tragically, neither patient regained consciousness after the operations and both patients died 鈥� one just ten days after.

In legal terms, the complaints were based on a provision of the national law that defines certain categories of wrongdoing as听.

The HCCC alleged Teo had engaged in two categories of this wrongdoing: conduct below the standard reasonably expected of a doctor of his training and experience, and unethical conduct.

The HCCC alleged Teo鈥檚 decisions to operate were inappropriate and substandard because the risks of 鈥渘eurological morbidity鈥� (so-called brain death) outweighed the (potential) benefits of the interventions. There was no allegation that Teo鈥檚 surgical skills were substandard.

The surgeries were also unethical, it was alleged, as informed consent had not been obtained from the patients and one patient was required to pay an expensive upfront fee in circumstances of clear vulnerability.

What were the findings and consequences for Teo?

The Professional Standards Committee, made up of an experienced judge, two expert neurosurgeons and a lay member, applied the civil standard of proof 鈥� the balance of probabilities 鈥� to the evidence. Though the committee is not legally bound to听听applied in criminal courts, it decided, broadly for procedural fairness reasons, to receive and consider all of Teo鈥檚 unchallenged evidence.

In a decision of more than 100 pages, the committee found Teo guilty of unsatisfactory professional conduct. It determined to 鈥渞eprimand鈥� Teo (this means a听听noted on the public copy of his practitioner licence) and to impose four conditions on his practice.

Three conditions involve increased oversight of his practice records. But a more restrictive condition will require Teo to obtain written support from a neurosurgeon approved by the Medical Council of New South Wales for any neurosurgery involving 鈥渞ecurring malignant tumours in the brain or brain stem鈥�.

While this order was hotly contested in the proceedings, the committee determined that, for reasons including Teo鈥檚 evidenced 鈥渋solation from his peers鈥�, the condition was 鈥渘ecessary to protect the health and safety of the public鈥�.

What about patient autonomy or clinical freedom?

Difficult ethical questions arise in medical regulation. Here, the committee had to balance the practitioner鈥檚 right to practise medicine against the paramount consideration of patient health and safety and against the patient鈥檚 right to exercise autonomy.

This last right is sometimes seen as a patient鈥檚听. On these considerations, the committee relied on accepted evidence from ethical experts that proposed that, as a matter of ethics,

a surgeon does not have a licence to undertake any conceivable procedure even with the agreement or acquiescence of the patient.

Is medical regulation strict in Australia and NSW?

惭补苍测听听补苍诲听听听find the national law to be fair and appropriate, or not strict enough.

However, some scholars and representative groups including the Australian Medical Association (AMA) find some aspects听听too听听补苍诲听听to practitioners.

But a potted history of NSW medical history showcases how successive medical scandals have tended to drive strong regulatory reform. In 1984, when the tragic impacts of the shocking and unethical treatment at听听were听, NSW was the first jurisdiction globally to establish a complaints body for health consumers. Known as the Complaints Unit, this body is now the HCCC.

Another milestone occurred in the early 2000s following several scandals, including the so-called 鈥淏utcher of Bega鈥� episode. An听听into these events prompted the NSW government to introduce laws permitting medical practitioners to be immediately suspended if the regulator considered it was in the 鈥減ublic interest鈥�.

This was the first power of its kind in Australia and was only adopted into the broader national law of other states in听.

What next for Teo?

Teo may appeal the orders of the committee to the NSW Civil and Administrative Tribunal or seek a review of the conditions. But as the conditions are not subject to an end date, it appears they will otherwise continue indefinitely.

_{Image:听AAP Dan Himbrechts}

This article first appeared on听听as

It was written by听Christopher Rudge, Law Lecturer, Sydney Law School, University of Sydney.