Nitschke v Medical Board of Australia  NTSC 39
On 6 July 2015, the Northern Territory Supreme Court reinstated Dr Philip Nitschke's registration to practise medicine. His registration was suspended in July 2014 by the Medical Board of Australia for failing to take steps to prevent the suicide of Nigel Brayley, a 45 year-old Perth man.
The decision was made on the basis of procedural fairness and the Court's interpretation of the Good Medical Practice: A Code of Conduct for Doctors in Australia.
The decision highlights that the Codes apply to health practitioners even outside of the practitioner/patient relationship, however the duty to protect and promote the health of individuals and the community found in the Code does not extend to all members of the public at all times.
Dr Nitschke is the founder of the pro-voluntary euthanasia organisation, Exit International. He is also a supporter of the controversial notion of "rational suicide", according to which healthy people should be able to decide to end their life without being questioned.
Between February 2014 and April 2014, Nigel Brayley purchased a handbook and a Nembutal (a lethal substance that can be self-administered) testing kit from Exit International. In April, he told Dr Nitschke that, despite not being terminally ill, he intended to take his own life within two weeks and that he would send Dr Nitschke a copy of his final statement. Dr Nitschke's response to that disclosure was to simply say: "Thank you very much for your information, and I will be interested in your final statement".
Mr Brayley died after consuming Nembutal on 2 May 2014.
Decision of the Medical Board of Australia
In July 2014, the ABC's 7:30 aired a story about Mr Brayley's death, in which Dr Nitschke was interviewed. Following the program, the Medical Board of Australia received six complaints about Dr Nitschke. Shortly thereafter, the Board met to decide whether or not to take immediate action under s 156(1) of the National Law. Section 156 permits the Board to immediately suspend a medical practitioner's registration (and therefore the ability to practise his or her profession) if it "reasonably believes" that:
- because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and
- it is necessary to take immediate action to protect public health or safety.
On 23 July 2014, the Board told Dr Nitschke that it was taking immediate action under s 156 and that his registration was suspended. The reasons given by the Board for forming a belief that it was necessary to take immediate action to suspend Dr Nitschke were that he had:
- professional responsibilities as a registered medical practitioner, which he failed to appropriately discharge
- formed a clinical judgment about Mr Brayley's capacity to decide to commit suicide
- failed to respond in an appropriate manner to Mr Brayley's stated intent to take his own life within two weeks, knowing that Mr Brayley was 45 years old, not terminally ill and had described himself as suffering
- failed to take steps to obtain much (if any) information from Mr Brayley, assess any medical condition, including depression, or provide treatment for that condition (if Dr Nitschke considered one existed) or refer Mr Brayley to assessment, specialist care or treatment, and
- not exercised the care and skill expected of a registered heath practitioner under clause 1.4 of the Code, which provides that doctors have a responsibility to protect and promote the health of individuals and the community.
Appeal to the Health Professional Review Tribunal
Dr Nitschke appealed to the Health Professional Review Tribunal and sought to tender a folder containing various articles and correspondence, which he described as "a collection of professional journal articles [that] touch on the issue of rational suicide". The Tribunal refused to accept those materials as evidence on the basis that they were not relevant.
In addition to the reasons given to Dr Nitschke in their decision, the Board also submitted to the Tribunal that the following factors contributed to their reasonable belief that Dr Nitschke posed a serious risk and that immediate suspension was necessary to protect the public:
- Dr Nitschke overly promotes and provides advice on methods of suicide, including advocating a person's right to choose suicide even if not terminally ill, through the Exit International website and videos published on that and other websites, an online forum on the website, the Peaceful Pill Handbook and Exit Workshops
- Dr Nitschke makes that information and material available to anyone and advocates for the right of a person to choose suicide, which goes beyond the voluntary euthanasia debate
- in the case of Mr Brayley, when considered against the backdrop of Dr Nitschke's general advocacy for access to methods of suicide, Dr Nitschke's strong personal view that people have the right to choose suicide has taken over from his responsibility as a doctor, and
- in this context it is very likely that what occurred with Mr Brayley will occur again and therefore the Board reasonably believed Dr Nitschke posed a serious risk to the health and safety of the public.
These factors were accepted by the Tribunal as relevant. The Tribunal also considered the rights and wrongs of voluntary euthanasia, the ability to make rational decisions about ending one's life and the likelihood of such a person having depression.
The Tribunal treated Dr Nitschke's conduct as "supporting persons such as Mr Brayley (who are not terminally ill) to take their own lives" and therefore "inconsistent with the responsibility to protect and promote their health and promote their life". The Tribunal implied that Dr Nitschke should have enquired as to Mr Brayley's motives, assessed his suffering and the reasons for it, encouraged him to pursue alternatives and entered into some dialogue with a view to further referral or assessment.
Accordingly, the Tribunal upheld the Board's decision and held that Dr Nitschke posed a serious risk to other persons by providing "an alternate pathway to ending life" and that "people may elect to follow the pathway to suicide believing it to be a pathway sanctioned by a medical practitioner and perhaps the medical profession generally".
Appeal to the Supreme Court of the Northern Territory
Dr Nitschke successfully appealed the Tribunal's decision on the following grounds:
- the Tribunal misconstrued the Code in holding that it imposed an obligation on Dr Nitschke to promote or protect the health of Mr Brayley and to assess, treat or refer Mr Brayley in circumstances where he was not a patient of Dr Nitschke
- in making its decision, the Tribunal denied Dr Nitschke procedural fairness by expanding the "conduct" based upon, which it was argued a reasonable belief had been formed that immediate action was required under s 156, without giving Dr Nitschke opportunity to respond in circumstances where the Board had deliberately confined its case, and
- the Tribunal erred in the construction of the Code by holding that advocacy about suicide and providing information to persons who might chose to end their own life was in breach of the Code.
The Court also found that:
- Dr Nitschke was not given adequate opportunity to respond to the broader range of conduct ultimately relied upon by the Tribunal (noting that when he did attempt to tender additional materials, his attempt was refused for the reason that they were not relevant to the issues raised by the Board)
- the only issues that the Tribunal was required to determine were:
- did Dr Nitschke's conduct after he received Mr Brayley's emails in April 2014 breach the Code, particularly cl 1.4, and
- as a result of that conduct, whether the Tribunal reasonably believed that:
- Dr Nitschke posed a serious risk to persons, and
- it was necessary to take immediate action to protect public health or safety
- the medical practitioner's "conduct" does not have to be connected with medical practice, but rather can occur in whichever capacity the medical practitioner is acting in at the time
- notwithstanding the above, there was no basis for applying the same general standards to Dr Nitschke and Mr Brayley that apply in a doctor/patient relationship
- clause 1.4 does not prescribe and identify any specific obligations, including the obligation to promote or protect the health of any person, irrespective of their relationship with the doctor
- the "responsibility to protect and promote health of individuals and the community" in cl 1.4 of the Code does not impose an obligation, standard or duty—the breach of which would constitute professional misconduct or unprofessional conduct
- the Tribunal's findings may well be inconsistent with other express provisions in the Code, including supporting the autonomy of a patient to make decisions to obtain or refuse treatment
- where the allegation is one of a failure to act rather than an action, legal principles or expert evidence would ordinarily be required to establish the existence and content of the duty to act
- in the absence of any legal principles or expert evidence supporting the allegation that Dr Nitschke had professional obligations to take the steps identified by the Board after receiving Mr Brayley's emails, it cannot be found that such obligations exist, and
- because there was no evidence that the conduct alleged by the Board could be in breach of the Code or the National Law, the Tribunal could not have formed a reasonable belief that, because of his conduct, Dr Nitschke posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety.
As a result of his successful appeal, the Board's decision was reversed and Dr Nitschke's registration was reinstated.
How this will affect health practitioners
The Supreme Court of the Northern Territory's decision in this matter was based on the facts and circumstances of the Nitschke case. It does not change the need for all practitioners registered to practise a health profession in Australia to abide by the Codes, and not just in the course of a practitioner/patient relationship.
What this matter does highlight is the need for practitioners to be given the opportunity to respond to a complaint, including the conduct and other facts and circumstances relied on by medical Boards and Tribunals, before a decision is made.
It also provides a legal precedent for the proposition that for the Board to take immediate action to suspend a practitioner under s 156, the practitioner's conduct must be capable of being found to be professional misconduct or unprofessional conduct and the Board's decision must be able to be supported by legal principle or expert evidence.