A case involving a surgeon, Charlie Teo, has been well covered in the press, and it has generated responses well above warmth in surgeons I have discussed it with.

I here mention just three issues, because some touch on my consideration of similar processes in my profession by a regulator and the Judicial Commission.

First, the press says that former supporters of Teo ‘turned up in their dozens’ and gave him ‘a hero’s welcome’.  The press also says the accused briefs and thanks his supporters outside the court. 

That in my view was a colossal ego-driven misjudgment from a man charged with making ego-driven misjudgments.  It is hard to see how the tribunal might look favourably at this conduct.  When I was hearing a case at the Fire Brigade where dismissal was on the cards, the union wheeled in mum and the kids.  It was so blatant that it was embarrassing, and I told them to cut it out.  (I would not be surprised if now the union said that was inappropriate – or if the regulator agreed with it.) 

I can easily imagine a number of epithets crossing the minds of a panel of professional people faced with such an outburst of populism – and all of them would be against the accused.

I might also say that the views of Steve Waugh on Charlie Teo as a surgeon would be worth about the views of Steve Waugh’s GP on his capacity as captain of the Australian XI.

Secondly, the press says Teo said the risk of death of one patient undergoing a procedure was 5 per cent.  (He said that to a husband whose trust in Teo was such that he took contemporaneous notes – like a copper with a suspect.) 

I cannot speak for the medical profession, but I think it is wrong for lawyers to give odds or percentages for the outcome of litigation, which is a licensed form of lottery.  Perhaps I might refer to what I said in the book What’s Wrong?

On the other hand, civil litigation is more like a boxing match – if you put draws to one side, on average one out of two litigants has to lose. Now that does not mean that in every case, each party starts at even money. It is very, very dangerous and potentially misleading to try to assess odds or percentages in litigation – but common sense suggests that long odds are very rare in a two-horse race. There are also problems with odds in medicine. It follows that people like brokers, lawyers or doctors who give professional advice about risk have to be careful to do so sensibly. People who get so frightened that they are determined to take the course of least possible risk – by, say, burying their wealth at the bottom of the garden, or refusing to have surgery for any purpose – may not be acting in their own best interests.

And I might refer to a case I was in more than forty years ago.  Aggrieved aboriginals got a temporary injunction restraining Alcoa from proceeding with a billion-dollar project.  We were asked to assess their prospects – or Alcoa’s risk.  The plaintiffs faced alpine hurdles.  I said the Americans would want a quote on their risk.  I said the plaintiffs were about twenty to one.  The junior silk, Michael Black, QC, gave them a 5% chance.  The senior silk, Brian Shaw, QC, was, thank God, wiser than both of us.  He said we would say no such thing because it was vulgar, and it was misleading.  It was misleading because it suggested that there was some logic or science that made it reasonable to express risk in mathematical terms.  He said there wasn’t. and I agree with him.  I have avoided such quotes since, and I blush now to think of that one.  (The next week a horse got up in the Cup at more than 20 to 1.)

But if The Age report is correct, this case is worse.  ‘He [Teo] offered that for him a 5 per cent risk of death was very high.’  If that is his opinion, then Teo has a curious way of assessing the value of human life.

Thirdly, the regulator is not seeking to rub this surgeon out.  He is currently restricted by the regulator.  The Age says he is in effect banned because of the risk he poses.  He wants the restrictions lifted.  He can’t operate without the written consent of other neuro-surgeons, but those ‘who volunteered to supervise were told their malpractice insurance would not cover them.’

It is an old saying but true.  Lawyers don’t bury their mistakes.  We are talking about life and death.  More than that – we are talking about the dignity that attaches to human life.  This is not a time or place to pussy-foot or play games.

A magistrate has been stood down pending investigation into an allegation of misconduct.  He has form for a finding of ‘inappropriate’ behaviour by the Judicial Commission.  That led me to say:

He [the magistrate] has been taken out – publicly.  What does the punter think when he is reinstated?  ‘We had our concerns about him, but we have had a quiet word and he should be OK now.’

The High Court has said more than once that in disciplining a professional person, the issue is not the hardness of the case of the professional whose conduct is impugned, but the welfare of the public and maintaining high professional standards.  (One case is Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 (2 July 1957)  There is another case to the same effect about a barrister rubbed out for overcharging.)

The conduct of this surgeon in the past shows that he poses a risk to the public if he is allowed to practise as a surgeon without at least the current limitations.  People whose business it is to assess such risks have declined to accept them even on payment of a premium.

The regulator will be charged with maintaining professional standards and protecting would-be patients.  On what possible basis could a regulator ask the people of Victoria to accept any risk at all that must inevitably arise if this man is allowed to go on as before the regulator imposed the current restrictions?  If the status quo holds, that is adequate.  But otherwise people will be at risk.