Published today were the reasons in Nitschke v Medical Board of Australia [2015] NTSC 39.

Dr Nitschke had appealed (on a question of law) against a decision of the Health Professional Review Tribunal which had upheld a decision of the Immediate Action Committee, to suspend his registration as a medical practitioner: [4].

The present appeal concerned whether the conduct relied upon by the Board could be conduct within the scope of the National Law and whether because of that conduct the practitioner posed a serious risk and whether immediate action was necessary. The Tribunal needed to have a reasonable belief about each of these three components: [38]

Conduct not limited to doctor patient relationship but must be capable of being professional misconduct or unprofessional conduct

Although the doctor argued that the conduct referred to in s 156(1)(a)(i) is confined to conduct occurring in the course of a doctor patient relationship or in connection with the practice of the profession, the court did not agree: [41] – [42]. See in particular [89] where the court said:

In many cases, unless the conduct does have some connection with the medical practice, it will be unlikely to be such as to cause the practitioner to pose a serious risk to persons warranting immediate action. Examples might include numerous driving convictions or persistent failure to pay bills. On the other hand it is not difficult to envisage conduct which, although unconnected with medical practice, may lead to a conclusion that the medical practitioner poses a serious risk and that immediate action is necessary. An example might be allegations of sexual misconduct totally unrelated to the practice, but raising serious concerns about the practitioner posing a serious risk to the health or safety of patients.

The court held at [91] that the conduct must be such as to be capable of being professional misconduct or unprofessional conduct. This is because a practitioner’s conduct can only result in action in relation to his or her registration where there has been conduct of the kind regulated by the National Law, namely conduct that can be found to be professional misconduct or unprofessional conduct upon the ultimate determination of the complaint.

The court disagreed with the doctor’s argument that section 156 only applies to conduct that is undertaken in the capacity of a medical practitioner or that occurs in the context of a doctor/patient relationship: [92] – [93]:

Although the conduct itself may have nothing to do with the practice of medicine, in order to take immediate action the relevant body would have to hold a reasonable belief that because of that conduct there would be a serious risk to public health or safety unless immediate action was taken in relation to that person’s registration as a medical practitioner. In this regard there does need to be a connection between the practitioner and the practice of medicine in which he or she was registered to engage.

What was the relevant conduct

The relevant conduct was held (at [73]) to be as follows:

The Medical Board allege that having received Mr Brayley’s emails in mid April 2014, Dr Nitschke, as a registered medical practitioner:

  1. Failed to respond in an appropriate manner to Mr Brayley’s stated intent to take his own life within two weeks, knowing that he was 45 years old, not terminally ill and had described himself as suffering. Dr Nitschke’s only response to Mr Brayley’s stated intention to suicide in two weeks was ‘I will be interested in your final statement’.
  2. Failed to take steps to obtain any information from Mr Brayley to assess any medical condition (including depression), provide any treatment of that condition (if he considered one existed) or refer him to assessment, specialists care or treatment.

At [109] the court concluded that:

By taking into account conduct other than that identified in [13] of the Reasons in the course of considering whether the appellant’s conduct could have been conduct of the kind proscribed by the National Law, the Tribunal erred in law because it took into account irrelevant considerations.

Clause 1.4: Doctors have a responsibility to protect and promote the health of individuals and the community

The Board relied primarily upon the Code of Conduct clause 1.4 paragraph: Doctors have a responsibility to protect and promote the health of individuals and the community.

The court held at [117] that the clause 1.4 paragraph does not impose an obligation, standard or duty the breach of which would constitute professional misconduct or unprofessional conduct. Such an obligation, standard or duty needs to be found elsewhere in the Code or shown to be an obligation, standard or duty generally. It is not couched in imperative terms and does not prescribe and identify any specific obligations. It has no clearly identifiable content: [119]. At [120] the court

As counsel for the appellant pointed out, if the clause 1.4 paragraph was to impose professional obligations upon every doctor irrespective of his or her relationship with a particular person or community, every doctor would be liable to sanction every time he or she became aware that a person or community was not acting to the best of his, her or its health. Counsel gave the example of a doctor becoming aware that a person who was not his or her patient was proposing to smoke or do something else that may not be good for his or her health. Moreover, such a doctor would be under such broad and unspecified obligations even where the person does have, and indeed may have been treated by, his or her own doctor.

Generally accepted standard requires evidence

The existence and content of a generally accepted standard or duty would usually need to be established by calling expert evidence from a person of good repute and competence within the medical profession. It would need to be established that there was a specific professional duty on a medical practitioner to take the kind of action that the Board contended and the Tribunal considered the appellant should have taken, and not to do the kind of things that the Tribunal decided the appellant should not have done, in the particular circumstances of his various interactions with Mr Brayley: [134] – [135].

The court ultimately concluded at [139] – [140], allowing the appeal:

In the present matter there was no evidence before the Tribunal that there were general or specific obligations accepted within the medical profession either of the kind asserted by the Board or of the kind assumed by the Tribunal.

Because there was no evidence, and no evidence to support an inference, 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 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 and it was necessary to take immediate action to protect public health or safety.

Outcome

The decision of the Tribunal was set aside and the decision of the Immediate Action Committee was also set aside.

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