On 12 July, the Professional Standards Committee formed under the Health Practitioner Regulation National Law (NSW) issued its decision on allegations of unsatisfactory professional conduct against neurosurgeon Professor Charles Theo.

The hearings, held in February and March 2023, attracted significant public attention. This attention stemmed from Professor Teo’s prominence as a highly skilled neurosurgeon, his reported willingness to perform surgeries involving significant risks based on patient choices, and the controversies surrounding his charges and patient interaction.

Supporters and detractors offered comments to the media, while several individuals were present outside the hearing venue every day. Media reporting varied between objective coverage and agenda-driven narratives. The initial criticisms of Professor Teo’s conduct were raised and amplified through media reports, and this tone continued in many headlines and editorials about the hearings.

Professor Teo was found to have engaged in unsatisfactory professional conduct, specifically related to his decision-making process regarding certain surgeries and the resulting poor outcomes for two patients. The findings also highlight departures from evidence-based approaches, inadequate communication of risks and benefits, insufficiently informed consent, and excessive fees charged.

As a consequence, he received a reprimand and had conditions imposed on his practice. These conditions require him to obtain written approval from another nominated neurosurgeon when performing certain types of surgery. This is likely to restrict Professor Teo’s ability to carry out surgeries that deviate from conventional approaches and push the boundaries of standard practice.

Overall, this development will have an impact, either positive or negative, on Professor Teo’s capacity to perform unconventional surgeries in the future.

Professor Teo’s case is one of many professional conduct cases heard by professional boards, commissions, tribunals and courts each year. Commonly, health practitioners, legal practitioners, building practitioners, real estate agents and other regulated professionals who receive complaints become subject to regulatory and administrative proceedings. This may be to examine their conduct or to review initial decisions made by professional bodies. In particular, health practitioners and legal practitioners, who are very heavily regulated under state or national laws, may be required to respond to relatively minor allegations or potentially career-ending proceedings.

Here are 5 lessons distilled from our work in representing practitioners on the subject of professionally conducting proceedings, several of which were highlighted in Professor Teo’s case:

1. Seek help early

Practitioners asked to participate in investigations or respond to allegations should seek help before submitting a substantive response. Firstly, it is helpful to consider whether the practitioner is insured and whether the insurer will provide or fund legal representation. In some instances, responding to complaints before notifying the insurer and seeking advice may be disentitle a professional from cover or may limit the protections provided.

Secondly, in our experience, responses to allegations provided early in the process often define whether proceedings are commenced at all, the scope of the allegations and how any defense can subsequently be challenged. Seeking legal advice from reputable lawyers experienced in professional conduct matters can significantly affect the chances of defending allegations or minimizing their impact on professional registration and practice. Unfortunately, many practitioners seek to resolve the matter by themselves first and only seek help later. Given the specialized nature of professional conduct matters, early advice and intervention are essential to obtain the best possible outcome.

2. Insight and development matter

While each case is different, there can often be accusations which are completely denied, while others may in part be admitted. At other times, the formal allegation is denied, but the aspects of an underlying complaint are valid, even if they do not amount to misconduct.

Where a practitioner demonstrates an ability to reflect on matters raised and adjust their practice, this can be a powerful mitigating factor. Doing so does not mean admitting that unsatisfactory professional conduct, or misconduct, occurred; simply that a practitioner is open to improvement and has genuinely reflected on matters raised. This will almost invariably be seen as protective of the public and reflects well on the practitioner’s conduct.

3. Protection of the public and profession is paramount

Invariably, the statutory framework for professional conduct proceedings emphasizes that they are intended to protect the public and maintain trust and confidence in the profession. While they may be perceived as punitive in nature by the practitioner, understanding the legal purpose of the proceedings will assist the practitioner and their lawyers to conduct the case most effectively.

4. Beware of groupthink

The decision-makers in professional proceedings may include experienced professionals (practitioner members), legally qualified members and community/consumer representatives. Frequently, members of such decision-making bodies hear many similar matters, often presented by lawyers routinely appointed by insurers or the body bringing the allegations. In such multidisciplinary settings, there can be deference to the legally qualified members in respect of legal tests and procedures, deference to appropriate practice as conceptualized by practitioner members and deference to community expectations as described by the community or consumer representative.

A review of published decisions suggests that legal principles frequently appear to be applied and cited in an almost ‘cut and paste’ fashion unless specific submissions are made to persuade the decision makers to depart from a standard approach. Similarly, evidence of recommended practice will often be obtained from a small pool of known experts and sometimes comparisons are made with conduct described in other cases.

Where there is a predictable allocation of roles between members of a decision-making panel, a degree of familiarity or repetition around the principles relating to expected professional conduct, there is a risk of groupthink and a reinforcement of orthodox approaches. While this can be expedient and at times protective of the public, it makes it very difficult for practitioners who depart from professional norms by applying valid but alternative ways of practice or newer innovations to have this recognized and accepted. In cases involving complaints of atypical or innovative practice, it is the role of the practitioner to identify a sound basis for their conduct and the role of their lawyer to persuade the decision-making body to depart from ingrained approaches. Often evidence from reputable expert witnesses with recognized knowledge on new or alternative practices will also be needed.

5. Expertise matters

Professional conduct proceedings differ from most legal processes. It is important to engage experienced legal representatives in this type of matter. Where a practitioner is insured, the insurer may appoint a legal representative from an internal or external panel. Often, these practitioners are highly experienced and well suited to such matters, especially where the allegations are fairly routine. They are, however, likely to be constrained by the insurer’s policies and interests.

In cases involving unusual circumstances, alternative approaches to practice or where an insurer will not respond, choosing an independent lawyer early on in the process can be invaluable in obtaining the best possible outcome. A lawyer who understands misconduct proceedings and is not overly constrained by standard approaches can provide a significant advantage where practitioners face complex or unusual allegations.

As Professor Teo’s matter demonstrates, professional conduct proceedings can be complex, high-profile and can involve competing narratives within close-knit professions. In some instances, an adverse outcome can end a career, restrict freedom of practice or at least significantly constrain how a practitioner provides services. Obtaining advice and early assistance is crucial for practitioners to obtain a favorable outcome.

At PCL Lawyers we have successfully assisted clients with misconduct claims. Our experienced team excels in handling complex reputational issues, swiftly identifying key matters and strategizing a favorable resolution for our clients.

About The Author – Roland Müller

Roland Müller leads our commercial litigation team. He is a highly-experienced lawyer, an accredited specialist in commercial litigation and a nationally-accredited mediator. Equally comfortable…