What the Supreme Court Decision Means

July 13, 2015

If anyone was wondering what the Northern Territory Supreme Court really means, here it is. According to Exit International lawyers, the decision is a scathing account of the behaviour of the Medical Board of South Australia and the NT Medical Tribunal. Both failed miserably to apply the law.

The following was first published by Sparke Helmore Lawyers: Briohny Coglin and Mark Doepel and posted on Lexocology.

The full account is accessible via the Lexocology link above

Dr Philip 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 Philip Nitschke to promote or protect the health of Mr Nigel 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.

Dr Fiona Stewart

(who is currently completing her final year of the LLB at Charles Darwin University, Darwin Australia)

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