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04 Jan 2017
The Victorian Civil and Administrative Tribunal (the tribunal) has set aside the decision of the Medical Board of Australia (the Board) to impose a condition on the registration of medical practitioner Dr Rodney Syme as a form of immediate action.
The Board imposed the condition following a mandatory notification from a patient’s general practitioner who reported that his patient who was terminally ill with cancer had disclosed that Dr Syme was to assist the patient end his life.
The Board (via its Immediate Action Committee) considered the notification and proposed to take immediate action by imposing a condition on Dr Syme’s registration which required him 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.
As required by the National Law1, the Board invited Dr Syme to make a submission about the proposed immediate action and advised him that it was proposing to take this action because it reasonably believed that because of his alleged conduct, he posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety. The Board stated any action by a medical practitioner (anticipated or otherwise) that has the primary intent and effect of bringing about the end of a person’s life constitutes a significant departure from accepted professional standards and presents a serious risk to that person, such that immediate action is required. It also stated that it is relevant that any action that results in the intentional death of a person may be a possible criminal offence and in view of this, the notification suggested that Dr Syme may be about to engage in conduct, in his capacity as a medical practitioner, that has the primary intent and effect of ending a person’s life.
Dr Syme attended a meeting before the Board’s Immediate Action Committee (IAC) and oral submissions were made on his behalf. Dr Syme informed the IAC (among other things) that he told the patient that if he sought to end his life he would help him, by giving him medication (Nembutal) which he could take by mouth to end his life. He also submitted that the patient may choose to never take the Nembutal and it was not his intention that the patient take it. Dr Syme clarified that his intention was to provide relief to the patient from the psychological distress associated with the loss of control over how his life might end and he considered that the mere act of providing the Nembutal would provide this relief. Dr Syme further clarified that the patient may never ask for Nembutal and he may never have to give it.
Shortly afterwards, the Board notified Dr Syme that it had decided to impose a condition on his registration, in the form set out above.
Dr Syme appealed the Board’s decision to impose the condition and in a decision dated 20 December 2016, the tribunal granted Dr Syme’s application for review of the Board’s decision. The tribunal determined that the decision of the Board to impose a condition on Dr Syme’s registration as a medical practitioner, as a form of immediate action, be set aside.
The tribunal found the Board’s decision did not satisfy the terms of section of the National Law2 that defines the requirements for taking immediate action, finding no evidence to support a reasonable belief that Dr Syme posed a serious risk to persons generally or his patient in particular. In reaching its decision, among other things, the tribunal accepted that Dr Syme’s intention in either promising to provide and subsequently providing Nembutal (in some cases) was not for the primary purpose of ending life.
The tribunal noted the provision of Nembutal has a palliative effect, and was satisfied the conduct of Dr Syme did not pose a risk of harm to the patient in that it was not consistent with an intention to assist the patient to end his life. The tribunal noted the offer to provide Nembutal was intended to and did in fact provide significant palliative care, and neither the offer of the drug nor its actual provision carries with it the necessity that the drug will be taken.
The decision is published on the AustLII website.
1The Health Practitioner Regulation National Law, as in force in each state and territory
2s.156 of the National Law