Australia: Euthanasia drugs characterised as palliative care rather than end-of-life treatment

Last Updated: 20 June 2017
Article by Shannon Mony and Will Goodheart

Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150

Key Points

  • Dr Syme, an 81-year-old urologist and vice-president of advocate group Dying with Dignity supplied Nembutal as part of his counselling services to terminally ill patients.
  • Disputing a condition placed on his licence by the Medical Board of Australia, Dr Syme fought for his right to provide terminally ill patients with Nembutal.
  • The Victorian Civil and Administrative Tribunal noted that it is not their role to determine acceptable standards of medical practice with respect to physician assisted death or what 'is or is not legal' in relation to end-of-life medication. These issues were only examined to provide relevant context.
  • Dr Syme was successful, with the Tribunal's decision potentially representing a new direction in the characterisation of euthanasia drugs as 'palliative care' rather than 'end-of-life treatment'.


Dr Syme is a practitioner of both general and specialist registration. Over the course of his career as an urologist, he has consulted and headed up a department for male trauma victims. Through this experience, he developed counselling skills "beyond the experience and expertise" of most urologists, despite not having any psychiatry specialisation. Dr Syme has counselled terminally ill patients on their end of life wishes since 1974 and has provided approximately 170 patients with Nembutal as part of counselling in this time.

On 27 January 2016, the Medical Board of Australia received a mandatory notification from a general practitioner stating that his patient, Bernard Erica, who was terminally ill with cancer, had disclosed that Dr Syme intended to assist Mr Erica end his life by providing him with Nembutal.

As a result of the mandatory notification, Dr Syme had a condition placed on his medical licence by the Medical Board of Australia, pursuant to s156 of the Health Practitioner Regulation National Law (Victoria) Act 2009, in relation to counselling he was providing to patients. The Board ordered Dr Syme not to "engage in the provision of any form of medical care, or any professional conduct in his capacity as a medical practitioner that has the primary purpose of ending a person's life."

Dr Syme appealed this decision. On 20 December 2016, the Victorian Civil and Administrative Tribunal handed down a decision in favour of Dr Syme in removing the restrictions placed on his medical licence. A crucial consideration of the Tribunal was the palliative effect of Dr Syme's provision of Nembutal, along with Dr Syme's evidence as to the reasons behind offering this Nembutal during counselling.

The Law

The Tribunal accepted Dr Syme's submission that the primary purpose in supplying Nembutal was not in fact to cause death, but rather, to ease psychological suffering. This was consistent with the widely accepted, though acutely difficult to apply, principle of "double effect". Professor Maddocks, a consultant in palliative medicine, explained that the term "double effect" is commonly invoked to describe the distinction between intended death, which is euthanasia, versus a death that is merely foreseen as a consequent side-effect. Consistent with Clause 1.4(c) of the Australian Medical Association's Code of Ethics, medication may be given to palliative patients to relieve their pain and suffering despite it being foreseeable, and even inevitable, that the treatment will hasten death.

The Tribunal held that given an important aspect of palliative care is to relieve 'existential suffering and psychological pain', the supply of Nembutal can be seen as more than the simple supply of a drug. Rather, Nembutal has been shown to improve both the physical and psychological suffering of terminally ill patients simply due to the knowledge that they do have the option to end their pain and the burden to loved ones if they choose to do so. While the Nembutal will clearly hasten death if it is ingested, Dr Syme's position was that ingestion of the drug is not always necessary, and often, the supply of it will be enough to ease the suffering of his patients.

The fact that Dr Syme's practice is limited to advising and assisting patients who are in the final stages of terminal illness and have themselves sought his help was a relevant consideration. Dr Syme does not advertise for patients and therefore has contact only with patients who may not find traditional palliative care suitable. As such, it was submitted that there cannot be said to be a degree of 'public risk' as there is no 'public contact', with the only patients in Dr Syme's care being the very small segment of the public who do not find traditional palliative care suitable.

In addition, Dr Syme's evidence emphasised that he does not provide Nembutal to every terminally ill patient who approaches him. Rather, there is mandatory counselling and contact with the patient's family before Nembutal will be offered. In addition, Dr Syme does not seek to replace the patient's treating doctors, he merely offers a counselling service in addition to whatever medical treatment is being undertaken.

Lessons Learnt

In determining that Dr Syme's practice and counselling is intended to relieve suffering and not primarily aimed at ending a person's life, the Tribunal was "satisfied that the holistic approach adopted by Dr Syme is entirely focused upon supporting the patient in life rather than pre-empting the patient's death."

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Shannon Mony
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions