Introduction
Dr Teo has been registered as a medical practitioner in Australia since 1981 and a Fellow of the Royal Australasian College of Surgeons since 1993. He has held various professorships at the University of New South Wales, Duke University Medical Centre (USA) and Hanoi Medical University (Vietnam). He specialises in difficult brain surgeries and is outspoken about his ability to achieve outcomes that other surgeons cannot.
The Health Care Complaints Commission (HCCC) investigated two complaints made regarding Dr Teo pursuant to the Health Practitioner Regulation National Law 2009 (NSW) (the National Law).
The HCCC’s investigation into Dr Teo has been well publicised. Dr Teo has shown he is not afraid of the media and is willing to engage with public commentary. This has given an insight into the regulatory process that is often missing, as health practitioners generally avoid drawing attention to proceedings alleging they have engaged in unsatisfactory professional performance or conduct.
On 12 July 2023, a Professional Standards Committee (a Committee) constituted under Part 8 of the National Law handed down their findings regarding the HCCC’s investigation and allegations. This followed 8 days of hearings, spread over 2 months, as well as additional written submissions made by Dr Teo’s representatives and the HCCC.
The Committee made findings of unsatisfactory professional conduct, decided to reprimand Dr Teo and imposed conditions on his registration as a medical practitioner.
The complaints
The HCCC received complaints regarding Dr Teo’s management of and conduct regarding two patients, identified in the proceedings as Patient A and Patient B.
Patient A
Patient A was born on 14 March 1977 and diagnosed with a diffuse Stage IV tectal midbrain glioma (also referred to as a brainstem glioma or a glioblastoma multiforme). She was a resident of Perth, Western Australia.
Patient A was reviewed by two neurosurgeons in Perth who both considered that surgical resection of the tumour was inappropriate, as there was a high risk of causing neurological deficits without improving Patient A’s long-term prognosis. The second opinion was provided to Patient A on 22 October 2018.
On 23 October 2018, Patient A travelled to Sydney and consulted with Dr Teo in the presence of her husband. Patient A and her husband discussed the risks of the procedure with Dr Teo and agreed to undergo surgery on the following day, as Dr Teo was travelling to India at the end of that week and time was of the essence. Dr Teo recommended a radical resection and stated he aimed to remove up to 95% of the tumour. There was a dispute about what risks were disclosed by Dr Teo during this consultation.
Patient A paid Dr Teo $35,000 for the procedure.
Dr Teo performed the procedure on Patient A on 24 October 2018. After the procedure, Patient A was not responsive to stimuli and was transferred to the Intensive Care Unit. She did not regain full consciousness and was transferred to Fiona Stanley Hospital in Western Australia on 15 November 2018.
Post-operative scans showed that Patient A had residual tumour in her midbrain, extending up into both thalami. Her condition deteriorated and she passed away on 5 April 2019.
Chief Medical Officer of the Department of Health (WA), Dr Michael Levitt, made a complaint to the HCCC on 25 March 2019, asserting that Dr Teo had “offered and provided surgery to a patient that is not in accordance with contemporary evidence for best care for the patient’s presenting condition”.[1]
Patient B
Patient B was born on 13 April 1957 and was diagnosed with a diffuse Stage II astrocytoma, IDH wild-type in August 2018. She was referred for adjuvant therapy. Patient B was a resident of Victoria.
On 19 February 2019, Patient B consulted with Dr Teo in the presence of her husband. By this time, Patient B’s condition had deteriorated and she was paralysed down her left side and was in a wheelchair. Dr Teo recommended a radical resection of the tumour with the objective of extending Patient B’s life. Patient B agreed to undergo the procedure the following week. There was a dispute about what risks were disclosed by Dr Teo during this consultation.
Patient B paid Dr Teo $35,000 for the procedure.
Dr Teo operated on Patient B on 25 February 2019. Patient B did not regain full consciousness following the procedure and was repatriated to Victoria on 20 March 2019. Patient B passed away on 30 March 2019.
Patient B’s husband made a complaint to the HCCC on 29 April 2019. Chief Medical Officer of Epworth HealthCare, Associate Professor Luis Prado, also made a complaint to the HCCC on 25 September 2020 following a Mortality and Morbidity review of Patient B’s case at the Epworth Hospital, Geelong.
The findings
Expert evidence
As commonly occurs in complex clinical matters, both the HCCC and Dr Teo relied heavily on independent evidence from medical experts.
The expert evidence focused on two broad themes:
- Dr Teo’s clinical competence in the recommendation and performance of the relevant surgeries; and
- Whether the consent process for Patients A and B was sufficient to allow Dr Teo to obtain informed consent.
With respect to Dr Teo’s clinical competency – the HCCC relied on the opinions of consultant neurosurgeon Associate Professor Andrew Morokoff. Dr Teo relied on reports from consultant neurosurgeons Professor Bryant Stokes and Professor Paul D’Urso.
As to the consent process – the HCCC relied on the opinion of consultant physician Professor Paul Komesaroff. Dr Teo relied on reports from Dr Glenn Farrow and consultant psychiatrist Associate Professor Christopher Ryan.
The Committee also relied on the opinions of other registered medical practitioners who were involved in the care of Patients A and B.
It is noteworthy that all experts provided reports based on assumed facts provided by the parties’ legal representatives. This was commented on by the Committee in their decision at multiple places, and ultimately affected the weight the Committee placed on Dr Teo’s expert evidence.
Patient A
The HCCC’s complaint regarding Patient A was detailed and, in summary, alleged:
- Dr Teo’s decision to operate was inappropriate in circumstances where the risk of neurological morbidity outweighed any potential benefits from the surgery.
- Dr Teo failed to obtain informed consent from Patient A as he did not provide her with sufficient or accurate information about the risks associated with the surgery, nor a sufficient amount of time to process this information.
- Dr Teo failed to warn Patient A about the additional costs that would be associated with an adverse surgical outcome, such as the costs associated with rehabilitation and repatriation from New South Wales to Western Australia.
- Dr Teo breached another patient’s privacy by introducing Patient A to her in his waiting room as “a good example of successful brain stem surgery”.
Decision to operate
Dr Teo submitted that the decision to operate on Patient A was appropriate. He referred to the reports of Professor Stokes, which stated it was appropriate for a practitioner of Dr Teo’s experience to consider the relevant procedure on a focal tumour and based on the documents provided to him he considered Dr Teo had “stayed within the tumour” when operating.
The HCCC argued the decision to operate was inappropriate in circumstances where the risks associated with the procedure outweighed any potential benefits. They referred to Associate Professor Morokoff’s opinion that a radical resection of this kind of tumour was unlikely to be possible without significant neurological deficit, as the tumour was diffuse rather than focal, and that the international consensus was that these types of tumours should be treated by obtaining a biopsy, then treatment with radiotherapy and chemotherapy.
In conclave, Professor Stokes accepted that Patient A’s pre-operative scans demonstrated that the tumour started as a focal tumour but was no longer focal and was diffuse at the time of surgery. Both Associate Professor Morokoff and Professor Stokes agreed that there had been a radical resection of the tumour and that this carried a very high risk of mortality as well as morbidity. They also agreed that, assuming the procedure was a radical resection of a high-grade brainstem glioma, to tell a patient that there were potential benefits of the surgery would not be supported by statistical data, medical literature or clinical guidelines.
The Committee accepted the expert evidence that Patient A’s tumour was diffuse, and a radical resection of the tumour carried a high risk of mortality and morbidity. They found that Dr Teo’s decision to recommend and perform the procedure was inappropriate and the risks associated with the surgery outweighed any potential benefits. The Committee stated the surgery would not have been recommended or carried out even by a responsible minority of neurosurgeons and the rationale for the procedure was “substantially experimental”.
Informed consent
Dr Teo submitted that he had obtained informed consent from Patient A prior to performing the procedure, referencing the opinion of Professor Stokes and Associate Professor Ryan. Dr Teo stated that Patient A was clearly aware of the significant risks of the procedure as two other neurosurgeons had also discussed these risks with her.
The HCCC argued that Dr Teo had failed to obtain informed consent as the information provided to Patient A in the consent process was not accurate. The HCCC referenced evidence from Patient A’s husband that they were informed Dr Teo would aim to remove “95%” of the tumour and that there was a “5%” risk of death, paralysis or locked in syndrome. The HCCC noted Associate Professor Morokoff’s opinion that there was little evidence that the benefits of the procedure outweighed the risks and attached significance to Professor Komesaroff’s opinion that a ‘cooling off period’ would have been appropriate given the significance of the decision to operate on Patient A and her vulnerability.
In conclave, Professor Komerasoff and Associate Professor Ryan agreed that it is important for a patient to be given sufficient time to provide consent, that solely describing a surgery involving the risk of death or profound neurological deficits as ‘high-risk’ was insufficient and that a ‘cooling off’ period is unnecessary in urgent cases.
The Committee found that Dr Teo failed to obtain informed consent as he failed to adequately explain the ‘high-risk’ nature of the procedure and he failed to provide sufficient time for Patient A to consider and assess information pre-operatively (noting the surgery was performed 1 day after Patient A’s initial consult with Dr Teo).
The Committee did not find that Dr Teo failed to obtain informed consent by not advising Patient A about the costs of post-operative rehabilitation or repatriation, although noted that providing this information would be commendable.
Introduction of Patient A to another of Dr Teo’s patients
As Patient A was leaving the initial consult with Dr Teo, Dr Teo introduced her to a young patient in the waiting room and stated that this patient was “a good example of successful brain stem surgery”. The HCCC argued that introducing Patient A to the other patient without first obtaining consent to disclose that patient’s medical history constituted a breach of the patient’s privacy.
Dr Teo accepted he introduced Patient A to the patient, but denied this was a breach of privacy and stated he had implied consent to do so. Dr Teo submitted he was aware the patient regularly posted information about her diagnosis and treatment journey on social media. Dr Teo stated that as he had been told his conduct in introducing the patient without prior consent was inappropriate, he would not repeat that conduct.
All experts agreed that Dr Teo had breached the patient’s privacy by introducing Patient A to her without her prior, explicit consent.
The Committee found that Dr Teo had breached the patient’s privacy due to the manner Patient A was introduced to her.
Patient B
The HCCC’s complaint regarding Patient B was detailed and, in summary, alleged:
- Dr Teo’s decision to operate was inappropriate in circumstances where the risk of neurological morbidity with the procedure performed outweighed any potential benefits from the surgery.
- Dr Teo’s performance of the surgery failed to exercise proper skill, as the extent of the resection performed was excessive and included removal of health brain tissue.
- Dr Teo failed to obtain informed consent from Patient B as he did not provide her with sufficient or accurate information about the risks associated with the surgery.
- Dr Teo failed to warn Patient B about the additional costs that would be associated with an adverse surgical outcome, such as the costs associated with rehabilitation and repatriation from New South Wales to Victoria.
- Dr Teo inappropriately slapped Patient B across her face in the presence of her family on 26 February 2019 in an attempt to wake her from an unconscious state.
- Dr Teo charged a fee of $35,000 for the procedure, which was inappropriate as Patient B was vulnerable, Dr Teo failed to discuss the fee with the patient and required payment prior to the surgery.
- Dr Teo failed to make appropriate records regarding his management of Patient B.
- Dr Teo’s communication with Patient B and her family was inappropriate on two occasions.
Decision to operate and operation performed
Dr Teo submitted that the decision to operate was appropriate and the goal was to debulk the tumour to reduce intracranial pressure. He referred to the opinion of Professor Stokes, who stated that a procedure to reduce the bulk of the tumour to give more room within the cranial cavity was appropriate.
Dr Teo also referenced the opinion of Professor Paul D’Urso, who stated that a minority of neurosurgeons would consider debulking the tumour as a reasonable option that may prolong Patient B’s life. Professor D’Urso also noted, however, that the extent of resection performed was excessive to reduce intracranial pressure and would not be considered reasonable by a majority of neurosurgeons.
When giving evidence, Dr Teo accepted that the resection was significant and, under cross-examination, agreed the right frontal lobectomy was excessive because of the poor neurological outcome Patient B experienced. Dr Teo also conceded that it was unlikely he told Patient B he would remove a large part of her right frontal lobe but noted that by telling Patient B that her paralysis would be worse, the implication was that he would be taking out functional brain.
The HCCC submitted that the decision to operate on Patient B was inappropriate as the risks of the procedure outweighed any potential benefits. The HCCC relied on the opinion of Associate Professor Morokoff, who stated that the surgery would offer no likely benefit due to the diffuse nature of the tumour, which was widespread through Patient B’s brain. Associate Professor Morokoff noted that Dr Teo had resected a significant amount of brain tissue, which caused the neurological outcome Patient B experienced, rather than debulking the tumour (which was the initial plan explained to Patient B). Associate Professor Morokoff referred to pathology reports which confirmed that, of 38 pieces of tissue removed during the procedure, only 2 contained tumour only (with the rest also containing brain tissue).
In conclave, Associate Professor Morokoff, Professor Stokes and Professor D’Urso all agreed that Patient B’s tumour was diffuse and had spread into areas of the brain that are not normally resectable, such as the thalamus, brain stem and corpus callosum. The resection was one of the most extensive they had seen and involved the removal of a lot of non-tumour brain tissue, with a significant amount of tumour left behind. All experts agreed that a majority of neurosurgeons would say the way the operation was carried out was not sound and that the information given to Patient B in the consent process was probably not adequate.
The Committee found that the decision to operate on Patient B was inappropriate and the surgery involved excessive removal of tissue, which resulted in a devastating outcome for Patient B. The Committee found that standard practice would be to debulk the right occipital lobe, rather than to perform an excessive resection of the right frontal lobe, the corpus callosum, the thalamus and the right posterior frontal white matter. Overall, the Committee determined the risks of the actual operation performed outweighed any potential benefits.
Informed consent
Dr Teo submitted that he had obtained informed consent from Patient B and that it is standard practice for neurosurgeons to not tell patients that surgery also involves the removal of healthy brain tissue.
The HCCC submitted that the procedure carried out (a significant resection) differed to the procedure informed consent was obtained for (debulking of the tumour), stating it was necessary for Dr Teo to explain the functions of the frontal lobe and risks of hemiplegia and akinetic mutism if a resection was performed. They also stated that Dr Teo failed to inform Patient B of the specific nature and magnitude of the risks associated with the surgery.
The Committee found that Dr Teo failed to obtain informed consent as he did not explicitly inform Patient B the procedure would involve a resection of her frontal lobe and the removal of healthy brain tissue. The Committee found that Patient B consented to a resection of the tumour itself, which was not the procedure ultimately performed.
The Committee also accepted evidence from Patient B’s husband that Dr Teo told them that Patient B would be “dead by Friday” if she did not undergo the surgery, which was not supported by the expert evidence and exaggerated the severity of Patient B’s situation. The Committee found this statement undoubtedly influenced Patient B’s decision to undergo the procedure.
The Committee did not find that Dr Teo failed to obtain informed consent by not advising Patient B about the costs of post-operative rehabilitation or repatriation.
Alleged slap to Patient B’s face
It was alleged that on 26 February 2019, Dr Teo slapped Patient B across the face in an attempt to wake her up following surgery. Patient B had been unconscious since the procedure. Patient B’s husband stated Dr Teo “shook the living daylights out of her” and Patient B’s daughter described Dr Teo slapping and forcefully shaking Patient B.
Dr Teo admits he slapped Patient B on the face, but submitted it was a light slapping motion as opposed to a “Will Smith type of slap”.
Professor Stokes initially stated that facial stimulation does occur and may be acceptable in some instances but is not a technique he would use. In conclave, Professor Stokes conceded that it was not appropriate to slap a patient’s face to rouse them.
Professor D’Urso stated that, on occasion, it may appear that a neurosurgeon was being ‘rough’ or ‘uncaring’ in their contact with a patient when trying to rouse them, but this is accepted practice. The Committee noted it was unclear if Professor D’Urso was specifically informed that the allegation was that Dr Teo “slapped” Patient B.
Associate Professor Morokoff was critical of Dr Teo’s actions in slapping Patient B’s face in an attempt to rouse her.
The Committee found that it may sometimes be necessary to assess an unconscious patient by eliciting a pain response, however slapping a patient was unacceptable and significantly below the standard expected of a medical practitioner. The Committee found that Dr Teo did not “violently” slap Patient B and a light slap, as demonstrated by Dr Teo during the proceedings, is an action that has been widely used by the profession. The Committee stated that conducting this action in the presence of Patient B’s family members was inappropriate, but did not find the HCCC had proved this allegation.
Allegations of inappropriate communication
The HCCC alleged that Dr Teo used inappropriate language in his communications with Patient B, her husband and her daughter.
With respect to Patient B and her husband, the HCCC alleged that Dr Teo stated words to the effect of:
- “I’m not going to bullshit anything. If you don’t have this operation by Tuesday, you’ll be fucking dead by Friday.”
- “What the fuck are you crying about? I’m here to fix you, you should be happy.”
- “Brain tumours are the best fucking way to die. You’ll just slip into a coma. No fucking pain. You’ll just gradually fall asleep.”
Patient B’s husband gave evidence that the above comments were made during Patient B’s initial consultation with Dr Teo.
Dr Teo submitted that even if the above comments were made – they were not sufficient to warrant a reprimand or conditions being imposed on his registration.
With respect to Patient B’s daughter, the HCCC alleged that Dr Teo and Patient B’s daughter had a heated telephone conversation post-procedure, during which Dr Teo told her words to the effect of:
- “You’re asking the wrong fucking question.”
- “Would I do it all over again? Fucking oath I would. You should be grateful. I’ve given the family extra fucking time.”
Patient B’s daughter gave evidence that Dr Teo used the above language. Patient B’s daughter stated she was herself abusive and used derogatory language towards Dr Teo during this conversation.
Dr Teo denied using the above language towards Patient B’s daughter.
The Committee referenced evidence from consultant neurosurgeon Dr Christos Profyris, who at the time of Patient B’s surgery was completing a Fellowship under Dr Teo. Dr Profyris stated that Dr Teo does, at times, swear when interacting with patients, but he had never heard Dr Teo swear in the manner alleged.
The Committee found that it was likely that Dr Teo had used the language alleged by Patient B’s husband and daughter. They noted that the tenor of the statements allegedly made during the initial consultation were consistent with Dr Teo’s other evidence that Patient B’s death was “imminent”. The Committee stated they preferred the evidence of Patient B’s daughter to Dr Teo and it was likely Dr Teo responded in this manner due to the hostile language from her.
Fee for procedure
The HCCC argued that the fee charged by Dr Teo for Patient B’s procedure was inappropriate, particularly given her inherent vulnerability. The HCCC noted the evidence from Professor Komesaroff that fees charged for procedures must be “reasonable” under the Medical Board of Australia’s Code of conduct and Associate Professor Morokoff’s opinion that $35,000 was at the highest end of the range of fees for this kind of procedure.
Dr Teo accepted that he charged Patient B $35,000 and required payment prior to the surgery, however noted the quantum of surgical fees is not regulated or set by legislation in NSW. Dr Teo stated that Patient B’s vulnerability was inherent and he had not created this vulnerability.
The Committee found that it was inappropriate for Dr Teo to charge Patient B $35,000 for the surgery in circumstances where she was so vulnerable she was “unable to make a rational decision about the fee to be charged or seek to negotiate a lower fee or different basis of charging”. The Committee placed weight on the evidence of Patient B’s husband that Patient B considered Dr Teo “was God” and was anxious to extend her life given news her tumour had grown.
Outcome
The Committee found that Patients A and B were both vulnerable patients facing the prospect of death from their respective brain tumours. Their vulnerability placed a great responsibility on Dr Teo to ensure that they each truly understood the magnitude of the risks they would undertake in having surgery and, more significantly, the decision to refuse surgery if the risks of surgery outweighed the benefits.
The Committee found Dr Teo’s actions constituted unsatisfactory professional conduct which warranted a reprimand being imposed.
The Committee also considered it appropriate to impose conditions on Dr Teo’s registration that require him to, in summary, prior to proposing any recurrent malignant intracranial tumour and brain stem tumour surgical procedures obtain a supportive written statement from a neurosurgeon approved by the Council with at least 15 years’ experience. Dr Teo is also required to maintain a log of all patients for whom a supportive written statement was obtained, including specified details, and to submit to an audit of his practice.
Insights and reflections
Practitioners at the ‘leading edge’ of their specialty
The Committee’s decision is a cautionary tale for practitioners who are at the leading edge of their practise or specialty.
With respect to Patient A – the Committee found that Dr Teo’s “attitude to and rationale for conducting this type of surgery is substantially experimental and is the type of surgery which should be conducted in a clinical trial setting or subject to other ethical scrutiny”. This was due to a lack of evidence supporting his assertion that the benefits of the treatment outweighed the risks for patients in Patient A’s circumstances. The Committee reiterated this sentiment in their concluding remarks, stating that “surgery should be evidence based and not purely experimental or a learning exercise because of a lack of tier one evidence contradicting such surgery”.
The Committee recognised that a practitioner’s actions do not have to be accepted by a majority of their peers to be appropriate. In Australia, it is sufficient that the treatment or management would be considered acceptable by a reputable minority of the practitioner’s peers. Medical advancements are frequently made by well-regarded practitioners operating in this space.
It is fundamental however that the risks and benefits of the treatment are communicated to and accepted by the patient prior to the treatment being provided. This includes a frank discussion about the evidence supporting the proposed approach to management.
If there is a lack of evidence supporting the proposed treatment – practitioners should consider whether it is appropriate to proceed with the surgery at all. Informed consent can only take you so far and no one is entitled to ‘experiment’ on their patients in Australia in a normal surgical setting.
Assumed facts and expert evidence
It is common for health practitioners to submit expert evidence in regulatory proceedings that was provided with reference to assumed facts. This provides clear evidence on whether that party’s position on the relevant performance or conduct met the expected standard and was reasonable based on their version of events.
However, the risk of obtaining expert evidence on the basis of assumed facts is that the opinion may be afforded little or no weight as evidence if those assumed facts are ultimately found to be incorrect. The HCCC argued that the evidence of Professor Stokes and Associate Professor Ryan should be given little weight, as the assumed facts they based their evidence on were not accurate.
In this instance, most of the experts gave evidence in conclave, meaning they met and responded to questions about the matter concurrently. Conclaves allow the experts to freely discuss their opinions, which often results in parties changing their positions or making concessions based on the discussion.
With respect to Patient B for example – in conclave, all experts agreed that a minority of neurosurgeons may have offered to debulk the tumour. However, the surgery actually performed involved excessive removal of tissue from Patient B’s right frontal lobe with significant tumour left behind. On this basis, the HCCC successfully argued that neither Professor Stokes’ or Professor D’Urso’s gave evidence about the actual surgery performed being different to the surgery Patient B consented to.
The outcome in this matter belies the importance that should be placed on the manner in which experts are briefed to provide opinions in complex clinical matters. It should be assumed that the expert will be required to give concurrent evidence at some point in the proceedings and care should be taken to ensure their opinion will stand up to criticism.
Inter-state patients and complications
It is reasonably common for patients to travel inter-state for medical treatment, whether this is to access the services of a practitioner with specialised experience or for other practical considerations.
The HCCC argued that Dr Teo’s failure to inform Patients A and B about the potential costs of rehabilitation and repatriation in the event of an adverse event contributed to the failure to obtain informed consent.
We consider this argument was likely related to the fact complaints regarding both Patient A and Patient B were made by senior figures from reputable interstate medical organisations, who were concerned about the care their organisations were required to provide post-operatively. We also note the fact it was common for patients to seek Dr Teo out for a second opinion when they had been refused surgery in their home state.
We suspect there was a perception that Dr Teo had failed to ensure continuity of care for post-operative complications that were reasonably foreseeable given the high-risk nature of the relevant surgeries. We note the following statements from Dr Elizabeth Ann Lewis referenced in the Committee’s decision:
- “It is wrong to offer patients and families major surgery which will not help the patient and then just send the patient back to a local hospital when things do not go well. It shows a complete lack of compassion and responsibility for appropriate care of people.”
- “This is not a single incident. There have been a number of complaints [regarding] this doctor’s management of patients, his lack of communication with the original treating doctor and his ‘I am the best attitude’.”
It is noteworthy that the Committee found that it will not always be mandatory or practical to discuss these costs with patients as part of the informed consent process. However – the Committee did state that, in line with the High Court of Australia’s reasoning in Rogers v Whitaker, a medical practitioner has a duty to warn a patient about any risks that a reasonable person in the patient’s position are likely to attach significance to. They stated that a discussion about the potential costs of rehabilitation and repatriation may be appropriate if it was a material matter for the patient.
We consider that the Committee’s comments should be given significance by any surgeons who routinely see patients who usually reside in other States. While the fact that there would be a cost associated with repatriation in the event of an adverse outcome is somewhat implicit, it is important for surgeons to consider what significance this poses for their patients on an individual basis and to address this if necessary. It may be that simply referring a patient to consider and obtain advice on the issue is enough to meet a practitioner’s obligations.
It is also important to consider who will take over a patient’s care when they return to their home State in the event of an adverse outcome. Practically, it would not have been possible for Dr Teo to maintain care of Patient A and B after they left New South Wales. However, there did not appear to be a clear handover of care or communications from Dr Teo to Patient A’s or Patient B’s subsequent treating practitioners. The Committee noted that Dr Teo gave evidence that, since these incidents, he requires his patients to obtain a signed consent form from a practitioner in their home state who agrees to take over their care in the event of a complication.
This decision is a timely reminder for practitioners who regularly see patients who reside in other states of the importance of ensuring continuity of care and communicating with a patient’s other treating practitioners. It appears frustration regarding a perceived failure to communicate by Dr Teo built up over time and contributed to the concerns that were raised with the HCCC.
Costs of procedures
The Committee found that it was inappropriate to charge Patient B $35,000 for the surgery, largely due to her vulnerability and because of the power-imbalance between her and Dr Teo. This finding also relied on the evidence from Associate Professor Morokoff that $35,000 was at the highest end of the range of fees for this kind of procedure and that Dr Teo sometimes conducts ‘no gap’ procedures for his patients.
The decision suggests that a similar allegation was pursued regarding Patient A – but ultimately withdrawn by the HCCC. It was unclear based on the decision why this allegation was withdrawn and what distinguished Patient A’s circumstances from Patient B’s.
In our experience, it is unusual for regulators to pursue allegations that health practitioners have set inappropriate fees. We find that experts frequently decline to comment on whether a fee is appropriate and note that it is up to the practitioner to set their fees and for patients to determine whether this fee is reasonable for them.
As correctly identified by the Committee, there is no legislation specifically regulating fees for service by private medical practitioners and to some extent the market dictates what a “reasonable” fee is. Ultimately, an agreement regarding costs for a procedure is a civil matter between the patient and their doctor, under the broad expectation that fees will be ‘reasonable’.
There are many factors which may determine what a reasonable fee is in each case. For example, a leading expert in their field that undertakes procedures considered by their peers to be ‘risky’ can reasonably charge significantly more than a less experienced specialist with a more straight forward practice. This may be to account for more expensive equipment required for the procedures, to recognise the practitioner’s increased training and experience or to address higher insurance premium costs.
Medical practitioners also have a discretion regarding whether they choose to ‘bulk bill’ or otherwise accept reduced fees for a procedure for specific patients.
The power imbalance between Dr Teo and Patient B was inherent and difficult for Dr Teo to mitigate. The Committee’s reasons do not outline what they consider a reasonable fee for the surgery would have been or what steps Dr Teo should have taken to address the power imbalance.
Recognising the public interest in medical practitioners charging reasonable fees – we consider the finding that Dr Teo’s fees were inappropriate should be cause for reflection for practitioners who charge higher than average fees for complex procedures. It is important that practitioners are able to justify the costs of procedures and are up front with patients about any relevant costs. If a practitioner works in an area that inherently involves dealing with vulnerable patients, strategies to address this power imbalance and clear avenues to negotiate fees should be part of the financial consent process.
Summary
The Committee’s findings are significant and will undoubtedly affect Dr Teo’s capacity to continue to practise in Australia.
Dr Teo does have a right to apply for a review of the decision by the NSW Civil and Administrative Tribunal, however media reporting since the decision was handed down suggests that he may not appeal the decision due to financial constraints and may pursue employment opportunities overseas.[2] At the date of this article, the statutory time frame to apply for review of the decision has passed and we are not aware of any appeal proceedings.
The Committee’s decision is a cautionary tale for health practitioners who consider they are at the leading edge of their practise. Dr Teo has undoubtedly assisted many patients achieve a longer life, where other neurosurgeons declined to operate. In this instance however, the Committee found that the procedures performed on Patient A and Patient B were not supported by evidence and the risks associated with them outweighed any potential benefits.
It is true that in some instances, a practice that is not accepted by a majority of a medical practitioner’s peers will still be appropriate and accepted by a reputable minority of those same peers. However, the appropriateness of such a practice is still fundamentally linked to the risks and benefits of the practice being communicated to the patient sufficiently to obtain informed consent. Further, medical practitioners are not entitled to perform any surgical procedures that lack an evidentiary basis.
The Committee’s decision is also a reminder of the importance of maintaining professional behaviour in practice – regardless of your reputation.
Overall, the Committee’s decision has given the public a rare insight into the lengthy and complex nature of health practitioner regulation in Australia. It took over 4 years for the HCCC to fully investigate the matter and for the Committee to hand down their decision, which is usual for a clinically complex matter such as this. This would have been an undoubtedly difficult period for Dr Teo and the patient’s families – who we consider are all likely grateful to see what appears to be the end of the matter.
[1] Committee’s decision, [32].
[2] AusDoc, No future for me here’: Dr Charlie Teo says move to China beckons dated 17 July 2023. Available at: https://www.ausdoc.com.au/news/dr-charlie-teo-says-china-move-beckons-with-no-future-for-him-in-australia/
