January 11, 2015
Philip Nitschke Heads to Supreme Court
Helen Davidson, The Guardian
The voluntary euthanasia advocate Philip Nitschke will take the Australian medical tribunal to the supreme court after it upheld the suspension of his medical licence. The move comes after the suicide of a depressed but otherwise healthy man with whom Nitschke had been corresponding.
In findings made shortly before Christmas, the Northern Territory health professional review tribunal dismissed Nitschke’s argument that his interactions with the 45-year-old Perth man were not unlawful, and upheld the original suspension because Nitschke’s actions went against a doctor’s code of conduct.
The tribunal said Nitschke posed “a serious risk” in that he was a medical practitioner providing “an alternate pathway to ending life to persons” and people may elect to “to follow the pathway to suicide believing it to be a pathway sanctioned by a medical practitioner and perhaps the medical profession generally”.
Nitschke welcomed the opportunity to go to the supreme court.
“Voluntary euthanasia and rational suicide are very challenging issues for the medical profession,” he said in a statement.
“It is cases such as this which will hopefully encourage them to get their heads out of the sand and face the harsh reality that many elderly people, and some who are not, believe it is their fundamental right to exit this planet when they choose.
“We might not like or agree with such decisions but they cannot be interpreted as meaning that person is depressed or mentally incompetent. Nothing could be further from the truth.”
The tribunal’s decision comes after several days of hearings in November last year. Nitschke’s medical licence was suspended by the South Australian branch of the Australian medical board at an emergency meeting in July 2014, after complaints when ABC 7.30 reported that Nitschke had counselled Nigel Brayley, who later took his life with a euthanasia drug. The two had met twice, briefly, and Brayley emailed Nitschke before he died, offering to send the doctor his final correspondence.
During the hearing, Nitschke had argued there was no case to answer and that he was being targeted because of his work as the head of the pro-euthanasia organisation Exit International.
His legal team did not contest the circumstances of Brayley’s death, but said that he had done nothing wrong or unlawful, and that there was no doctor-patient relationship between the two which might prompt some obligation on Nitschke’s part.
“Given the crown admitted on day 1 of the trial that there was no doctor-patient relationship, and that I was therefore under no legal duty to intervene in Nigel Brayley’s stated intention to rationally suicide more than what I did, I find it hard to understand the law the tribunal have used to dismiss my appeal,” Nitschke said in a statement on Tuesday.
In its decision the medical tribunal said there was “little doubt” that there was no doctor-patient relationship between Nitschke and Brayley and agreed he had no obligation to help “a stranger”.
However, “The issue is not whether what Dr Nitschke did and is doing is lawful or unlawful, or for that matter whether it is helpful to people and the community or not.
“In essence, whether Dr Nitschke has done anything wrong is to be judged by whether his conduct conforms to the code of conduct for the medical profession.”
The tribunal found Nitschke’s controversial promotion of the concept of “rational suicide” was inconsistent with the medical profession’s code of conduct. The idea that it is “none of the medical profession’s business” to step in if competent people who are suffering elements of depression wish to kill themselves “does not fit well with the responsibility to protect and promote the health of individuals and the community”, the tribunal found.
“It is difficult to find any argument to overcome the seeming inconsistency of such conduct with the code of conduct, where the person who is supported to take his own life is 45 years of age, possibly suffering depression for a period of nine months and has no terminal illness.”
Nitschke’s lawyer, Peter Nugent, accused the tribunal of failing to “accept the evidence on the contentious issue of rational suicide” and said he would ask the supreme court to examine the tribunal’s actions.
“In particular we believe [the tribunal’s] view to be counter to existing legal guidelines which govern the relationship between doctors and members of the public,” he said.
“We’re absolutely confident that the supreme court will look at the case in terms of its legal merit,” Nugent told Guardian Australia.
“We think there are good grounds on which the appeal should succeed, which include the failure of the tribunal to consider any material [on] rational suicide.”
Nugent said Nitschke took the only legal option in his dealings with Brayley.
“He offered to counsel [Brayley], to refer him, and that wasn’t done. The only other step is to have him certified … That would have been illegal because he formed the view that [Brayley] wasn’t sick.
It is expected the case will be listed for the supreme court in Darwin in the coming months.
It was also revealed during the November hearing that Nitschke had been referred to the tribunal for another 12 alleged cases of misconduct, which Nitschke’s partner, Fiona Stewart, described as a “tactic”.