November 13, 2014
Philip Nitschke hearing is told doctors’ letters may have been procured
Euthanasia advocate’s lawyers question medical board role in ‘procuring doctors to write letters’ of complaint about Nitschke
Letters of complaint from doctors about the euthanasia advocate Philip Nitschke may have been procured by the South Australian medical board, Nitschke’s lawyers have told a tribunal in Darwin.
On Monday, the medical tribunal began hearing Nitschke’s appeal against the suspension of his medical registration.
Nitschke, the director of the pro-euthanasia group Exit International, had his registration suspended in July, under emergency powers exercised by the South Australian division of the Medical Board of Australia. The board’s action followed an allegation in an ABC TV report that Nitschke had counselled a depressed but otherwise healthy man, Nigel Brayley, to take his life.
Nitschke and Brayley had met only briefly at an Exit International workshop in Perth.
The board said at the time it took the interim action to “keep the public safe while other investigations or processes continue”. This week’s hearing does not relate to those investigations.
Nitschke successfully lobbied for the hearing to be held in the Northern Territory.
On Monday, the lawyer acting for Nitschke, Peter Nugent, questioned what weight should be given to some evidence from the Australian Health Practitioner Regulation Agency (Ahpra), and queried the South Australian medical board’s role in “procuring doctors to write letters [of complaint about Nitschke] to the board”, which were then used as a basis for the board’s decision to hold an inquiry.
Lisa Chapman, for the Medical Board of Australia, objected to the allegation.
“With respect that is quite a serious allegation to make and one would want something other than mere assertion and speculation to then be permitted to proceed in regard to something as serious as that,” she said.
Nugent said the questions were prompted by an email which suggested someone from Ahpra had called a doctor, Peter Bradley, before Bradley wrote a letter of complaint, but the name of the caller had been redacted.
Ahpra’s senior legal adviser, Bradley Williams, confirmed he was responsible for the redaction, but he could not recall the caller’s name.
“In preparing the affidavit in general I made a number of redactions … in order to protect the confidentiality of particular people,” Williams said. He said the notification from Bradley to Ahpra may have come via phone, and he assumed that was the phone call referred to.
Nugent pointed out that Bradley’s letter said: “Thanks for calling this morning.”
Williams could not explain that comment and said it might have referred to someone returning a call, but that was “pure speculation” on his part.
Nugent called for the original, unredacted document, and the tribunal chair said it could be obtained and first given to Chapman.
At times the appeal against Nitschke’s suspension threatened to become a debate about the issue of voluntary euthanasia and definitions of “rational” versus “irrational” suicide.
The medical board claims Nitschke should have intervened when Brayley emailed Nitschke outlining his intention to end his own life. Nitschke’s lawyers maintain he was never Brayley’s doctor, did not counsel him, and that the suspension was based on the board’s dislike of his views and work on voluntary euthanasia.
Nugent said in his opening submission that the case was about “the dangerous idea [of] whether a person who is contemplating rational suicide ought to be required by a medical doctor not to do so”.
He said the tribunal needed to consider if there was such a concept as rational suicide, and if it accepted that, then what it meant for a doctor’s professional obligations to a person who was not their patient.
“What – if any – duty does a person who is a doctor but not in a doctor-patient relationship, owe that person?” said Nugent.
“As a matter of law and logic … it depends on whether the [suicidal] ideation is rational or irrational,” he said. “It’s clear from the material that Mr Brayley was contemplating a rational suicide.”
Chapman said Nugent’s argument “misses the point”.
“One thing on which Mr Nitschke has remained consistent is that he obtained scant info about Mr Brayley before Mr Brayley died,” she said.
She said any attempt by Nitschke to diagnose Brayley posthumously based on information he had since received was leading the tribunal down a path that was not the focus of the hearing.
“Today is not a debate about voluntary euthanasia … or rational suicide. It’s not a debate about the role of the medical profession in regard to voluntary euthanasia or rational suicide,” Chapman said.
“This is a very precisely focused interim hearing in regard to Mr Nitschke’s conduct regarding Mr Brayley.”
“That’s why it’s so important. He did nothing.”
Chapman said it was important to understand the level at which Dr Nitschke provided advice to people and the likelihood that his conduct would occur again.
“Namely, failing to respond to that clear intention of suicide by a middle-aged man with no terminal illness, other than saying [in an emailed reply]: ‘I look forward to receiving your final statement’.”
Outside the hearing on Monday morning, Nitschke said he was hopeful about his team’s arguments that the medical board used its emergency powers in a way “they had no right to do, certainly not to address the issues they claim existed”.
“The law is quite complicated but in some ways it’s also very simple,” he told media. “We have a right to suicide. Suicide is not a crime, so in a way, talking about that issue which is not a crime should in no way be a crime, nor reflect on a person’s professional abilities,” he said.
The tribunal also heard that Brett Judd, an investigator for the SA medical board, set up a pseudonym and credit card under the name Franklin Lebrowski to buy and download Nitschke’s book The Peaceful Pill from the Exit International website. He also set up a fake Facebook account with only Nitschke connected as a friend.
“It’s the only investigation of this magnitude which has required this kind of passive monitoring,” Judd told the tribunal when asked about precedents for such action.