Dr Nitschke is a medical practitioner who was not in practice
during the relevant period and who has links with the organisation
Exit International, a voluntary euthanasia research foundation.
Following a story which aired on ABC's 7:30 Report on 3 July
2014, the Medical Board of Australia (the Medical
Board) received six complaints in relation to Dr Nitschke.
Included in the list of complainants was the Australian Medical
Association, Beyond Blue and members of the medical profession. The
law regulating health practitioners in each state contains
provisions which allow the relevant medical board or council to
take emergency steps to suspend a practitioner where the board or
council forms the view that the practitioner poses a threat to the
public that warrants immediate action.
On 23 July 2014, the Medical Board suspended Dr Nitschke's
registration under those provisions. Dr Nitschke appealed the
decision in the Medical Tribunal (the Tribunal)
and on 22 December 2014 the
Tribunal upheld the Medical Board's decision to suspend Dr
Nitschke's registration. Much of the Medical Board's
reasoning to suspend Dr Nitschke had revolved around the
circumstances surrounding the suicide of Mr Nigel Brayley. Mr
Brayley was not a patient of Dr Nitschke's, nor was he
terminally ill. On 2 February 2014, he had purchased a copy of the
Peaceful Pill Handbook, which had been co-authored by Dr Nitschke.
After his purchase of the handbook, Mr Brayley met Dr Nitschke at a
workshop in Perth and had briefly corresponded with Dr Nitschke by
There was evidence that Mr Brayley had purchased Nembutal, a
lethal substance, from China and in February 2014 purchased a test
kit from the Exit International website that had been linked to Dr
Nitschke which he then used to ensure the Nembutal was pure. On 2
May 2014 Mr Brayley died after consuming the Nembutal.
In the Board's view, in failing to take steps to discourage
Mr Brayley from taking his own life, Dr Nitschke was acting in a
manner that was contrary to the Good Medical Practice: A Code
of Conduct for Doctors in Australia (the
Code) which requires doctors to promote or protect the
health of patients.
Dr Nitschke lodged an appeal in the Northern Territory Supreme
Court. In the decision dated 6 July 2015, the Supreme Court
overturned the Medical Board's decision to suspend Dr Nitschke.
The Court found that Dr Nitschke did not pose a threat to the
public which warranted immediate suspension. In particular, the
Court stated that it could not accept that a duty could be imposed
upon a practitioner to take some action in relation to a person who
was not their patient. In the absence of any expert evidence to the
contrary, the Court could see no just reason to uphold the Medical
The relevant paragraph of clause 1.4 of the Code provides that:
"Doctors have a responsibility to protect and promote the
health of individuals and the community." His Honour
Justice Hiley, held that in his opinion, the clause 1.4 paragraph
does not impose an obligation, standard or duty, the breach of
which would constitute professional misconduct or unprofessional
conduct. The clause 1.4 paragraph is expressed in very general and
aspirational terms. It is not couched in imperative terms and does
not prescribe and identify any specific obligations, nor does it
have clearly identifiable content.
Because there was no evidence, and no evidence to support an
inference, that the conduct alleged by the Medical 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
The Tribunal could not have formed a reasonable belief that
because of that conduct the appellant posed a serious risk to
persons nor that it was necessary to take immediate action to
protect public health or safety.
As in the case of Dekker v Medical Board of Australia 
WASCA 216, the circumstances of the relationship between the
practitioner and the patient in this instance did not give rise to
a duty of care on the part of the practitioner.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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