By Zara Officer, Special Counsel and Vahini Chetty, Associate

Dr Nitschke is a medical practitioner who was not in practice during the relevant period and who has links with the organisation Exit International, a voluntary euthanasia research foundation.

Following a story which aired on ABC’s 7:30 Report on 3 July 2014, the Medical Board of Australia (the Medical Board) received six complaints in relation to Dr Nitschke. Included in the list of complainants was the Australian Medical Association, Beyond Blue and members of the medical profession.  The law regulating health practitioners in each state contains provisions which allow the relevant medical board or council to take emergency steps to suspend a practitioner where the board or council forms the view that the practitioner poses a threat to the public that warrants immediate action.

On 23 July 2014, the Medical Board suspended Dr Nitschke’s registration under those provisions. Dr Nitschke appealed the decision in the Medical Tribunal (the Tribunal) and on 22 December 2014 the Tribunal upheld the Medical Board’s decision to suspend Dr Nitschke’s registration.

Much of the Medical Board’s reasoning to suspend Dr Nitschke had revolved around the circumstances surrounding the suicide of Mr Nigel Brayley. Mr Brayley was not a patient of Dr Nitschke’s, nor was he terminally ill. On 2 February 2014, he had purchased a copy of the Peaceful Pill Handbook, which had been co-authored by Dr Nitschke. After his purchase of the handbook, Mr Brayley met Dr Nitschke at a workshop in Perth and had briefly corresponded with Dr Nitschke by email.

There was evidence that Mr Brayley had purchased Nembutal, a lethal substance, from China and in February 2014 purchased a test kit from the Exit International website that had been linked to Dr Nitschke which he then used to ensure the Nembutal was pure. On 2 May 2014 Mr Brayley died after consuming the Nembutal.

In the Board’s view, in failing to take steps to discourage Mr Brayley from taking his own life, Dr Nitschke was acting in a manner that was contrary to the Good Medical Practice: A Code of Conduct for Doctors in Australia (the Code) which requires doctors to promote or protect the health of patients. 

Dr Nitschke lodged an appeal in the Northern Territory Supreme Court.

In the decision dated 6 July 2015, the Supreme Court overturned the Medical Board’s decision to suspend Dr Nitschke.

The Court found that Dr Nitschke did not pose a threat to the public which warranted immediate suspension. In particular, the Court stated that it could not accept that a duty could be imposed upon a practitioner to take some action in relation to a person who was not their patient. In the absence of any expert evidence to the contrary, the Court could see no just reason to uphold the Medical Board’s suspension.

The relevant paragraph of clause 1.4 of the Code provides that:

“Doctors have a responsibility to protect and promote the health of individuals and the community.”

His Honour Justice Hiley, held that in his opinion, the clause 1.4 paragraph does not impose an obligation, standard or duty, the breach of which would constitute professional misconduct or unprofessional conduct. The clause 1.4 paragraph is expressed in very general and aspirational terms. It is not couched in imperative terms and does not prescribe and identify any specific obligations, nor does it have clearly identifiable content.

Because there was no evidence, and no evidence to support an inference, that the conduct alleged by the Medical Board could be in breach of the Code or the National Law, the Tribunal could not have formed a reasonable belief that the conduct alleged could be conduct of a kind that could be the subject of the National Law. The Tribunal could not have formed a reasonable belief that because of that conduct the appellant posed a serious risk to persons nor that it was necessary to take immediate action to protect public health or safety.

As in the case of Dekker v Medical Board of Australia [2014] WASCA 216, the circumstances of the relationship between the practitioner and the patient in this instance did not give rise to a duty of care on the part of the practitioner.

This article was included in the recent Holman Webb Health Law Bulletin.  To read other articles in the September edition of the bulletin, please click here.