In July 2014 the Medical Board of Australia suspended the registration of Dr Nitschke as a medical practitioner under section 156 of the National Law. Dr Nitschke appealed to the Northern Territory Health Professional Review Tribunal, which has now confirmed the suspension following a de novo hearing: Nitschke v Medical Board of Australia [2014] NTHPRT 5.

The conduct which formed the basis for the initial suspension was the interaction between Dr Nitschke and person, Dr Brayley and the failure to respond to Mr Brayley’s stated intention to suicide within 2 weeks. Mr Brayley was aged 45 years and was not terminally ill.

At [20] Dr Nitschke submitted that he had done nothing wrong, including as:

  • Suicide is a lawful activity [22];
  • He was not in a doctor patient relationship with Mr Brayley [23];
  • There was a false premise that Mr Brayley was mentally ill [23];
  • The conduct complained of was not related to his registration as a medical practitioner [24];

The Tribunal accepted at [29] that there was no doctor patient relationship. Although there may therefore have been no common law duty to Mr Brayley, the Medical Board’s argument focused on breach of the Good Medical Practice Code of Conduct: [34].

Relevant misconduct is not restricted to the doctor patient relationship: [44]. The information provided by Dr Nitschke had a medical aspect to it (at [51]) and so there was a sufficient connection to Dr Nitschke’s profession: [54].

The Tribunal held at [77], referring also to the Code of Conduct:

The idea that it really is none of the medical profession’s business if competent people wish to kill themselves even while suffering elements of depression does not fit well with the responsibility to protect and promote the health of individuals and the community.

Although there was no evidence from doctors that the conduct of Dr Nitschke posed a serious risk to persons, the need for evidence referred to in the recent Dekker decision did not apply as the ethical obligations had been formed into a Code: [90] – 92]. The Code at 1.4 relevantly provides that a medical practitioner has a responsibility to protect and promote the health of individuals and the community.

The Tribunal noted, obiter, that advice about end of life pathways may not be in breach of the Code of Conduct for those who are terminally ill: [93] – [94].

The Tribunal concluded that it was necessary to take immediate action (suspension) to ensure that Dr Nitschke’s interactions with persons through the media or otherwise, was not accompanied by the serious risks of him conducting those activities as a registered medical practitioner.

Media reports foreshadow an appeal from the Tribunal’s decision.