Doctor who promises Nembutal to a patient not a risk to public
In December 2016, a medical practitioner who promised Nembutal to a terminally ill patient was found not to pose a serious risk to persons generally or his patient.
The Victorian Civil and Administrative Tribunal (the Tribunal) reviewed the doctrine of double effect. When applied to palliative care, this doctrine permits medical treatment that is designed to relieve suffering where death is an unintended but foreseeable consequence. The doctrine is consistent with the AMA's position that all dying patients have the right to receive relief from pain and suffering, even where this may shorten their life, but that medical practitioners should not be involved in interventions that have as their primary intention the ending of a person’s life.
Facts of the case
The doctor’s conduct was investigated by AHPRA following the notification by a patient’s general practitioner. The notification alleged that the doctor was assisting his patient, a 71 year old male who was terminally ill with tongue and lung cancer, to end his own life.
The Medical Board investigated the doctor’s conduct and in January 2016 wrote to him advising that it proposed to take immediate action pursuant to the National Law to impose a Condition on his registration. The Condition was to:
‘not 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’.
The doctor was invited to make submissions in relation to the proposed action and the patient also provided submissions stating he was not at risk from the doctor. The doctor attended a meeting before the Immediate Action Committee and it was determined that it was necessary to take immediate action to protect public health or safety. A Condition was put on his registration as outlined above with immediate effect.
The doctor appealed the decision of the Medical Board to the Tribunal.
The Doctor’s Position
The doctor confirmed that he had agreed to support the patient in the terminal phase of his illness, including by providing him with Nembutal in the future if requested to do so. The doctor admitted that he had counselled approximately 1700 patients in relation to end-of-life care, of whom approximately 10% were given Nembutal and 40% of those who had been given Nembutal actually took the drug.
He explained that the subset of patients he provides assistance to is very unique and they have exceptional circumstances. He said he is contacted by patients for assistance and he provides assistance only to those with cancer in the terminal phase and those with severe neurological illnesses. Patients are screened by the doctor to ensure they are rational, competent, not influenced by family, and to assess their degree of suffering. His treatment is not limited to end-of-life counselling, but also includes taking a detailed history, contacting the treating medical team if necessary and encouraging the patient to take advantage of options for further treatment and palliative care.
The doctor stated that when he first started providing end-of-life care, it was his intention to allow a person to end their life. As time went on however, his intention changed to relieving, to the extent possible, the psychological suffering of those with terminal illnesses.
In relation to the provision of Nembutal, the doctor submitted that it was his primary intention to give patients a sense of control, thereby reducing their suffering. He explained that the provision of Nembutal had a direct palliative effect, as giving patients the option to end their own life had a profoundly positive psychological impact.
The doctor submitted that the provision of Nembutal to patients was for the primary purpose of palliating suffering. Most importantly, he stated that he will typically tell his patients that it is not his intention that they in fact take the drug and it is his hope that they will not need to take the drug.
Two palliative care experts provided reports and evidence before the Tribunal.
The first expert provided a significant amount of information about barbiturates and explained that Nembutal is not an approved drug in Australia . He agreed that obtaining a 9g dose of Nembutal may provide some sense of ‘control’ for the patient, however he said that ingesting the drug had only one purpose and that was to end life. He told the Tribunal that he had difficulty accepting that obtaining Nembutal would relieve patient suffering and the doctor did not intend that the patient would actually use Nembutal to end his life.
The second expert was supportive of the treatment and advice provided by the doctor to the patient. He noted that the patient was ‘fiercely independent and strong minded’ when confronting his illness and was aware of the options available to him. This expert concluded that it was reasonable to assume that the ‘primary purpose’ of the doctor’s conduct was to relieve suffering rather than to cause death. The expert noted that the intention of the clinician is inherently subjective, but it can also be inferred from the type of care provided.
The question the Tribunal determined when considering the appeal was whether there was sufficient evidence before the Medical Board to form a reasonable belief that the conduct of the doctor posed a serious risk to persons and as a consequence immediate action was warranted to protect public health or safety.
The Tribunal considered it significant that both experts who gave evidence agreed that there was a role for palliation of psychological distress and existential suffering through the provision of control. The Tribunal was also ‘significantly assisted’ by the statements provided by the patient in support of the doctor’s treatment.
The Tribunal rejected the Board’s argument that the only purpose of the doctor providing Nembutal was to cause death. It was found that there was a logical analogy with the principle of double effect used in palliative care, which is where treatment can be administered to relieve suffering even if it is known that that treatment may hasten death. The Tribunal found the only difference in this case was one of timing. The Tribunal held that the doctor’s approach was entirely inconsistent with a primary intention to end a patient’s life. It said that those patients who chose to take the drug did so by independent voluntary decision, without the presence, knowledge or assistance of the doctor. As such, the intention to end their life was the patient’s own and not the subjective intention of the doctor.
The Tribunal considered whether the doctor would be a risk to the public and determined that since only a small subset of patients sought out his care, and only those facing death from a terminal disease were provided care, the overall risk to the public was low. It therefore found that the doctor did not pose a serious risk to persons that warranted immediate action to be taken.
Currently, if medical practitioners expedite a patient’s death they are at risk of criminal prosecution, such as a charge of murder, manslaughter or aiding and abetting suicide. In June 2016, the Legislative Council published an Inquiry into End of Life Choices (Inquiry). The Inquiry recommended that the Government enact the common law doctrine of double effect into legislation to strengthen the legal protection for medical practitioners who provide end of life care.
While this case was a vindication for the doctor and his patient, it involved a very unique set of circumstances. In particular, the doctor promised the provision of a drug that remains illegal to import and prescribe in Australia, he comprehensively assessed and counselled patients over a long period of time and only a small subset of patients could be promised or given Nembutal.
This case was also a review of a decision by the Medical Board to take immediate action and it was not concerned with questions as to whether the doctor’s conduct was legal or whether it constituted professional misconduct or unprofessional conduct. The investigation in relation to the doctor’s conduct will therefore not be at an end as a result of the Tribunal’s decision.
The legal landscape in relation to end of life care may change at the end of 2017, when the Victorian Government will introduce a Bill to legalise assisted dying.
This case represents a small step forward for euthanasia advocates as it recognises that having the choice about time and place of death can relieve the psychological suffering of those with a terminal illness.
Despite this, medical practitioners providing palliative care should not view the case as a blanket right to provide any measures that are intended to relieve psychological suffering when those measures unintentionally hasten a patient’s death.
Anjali Woodford, Senior Associate
Beth Altson, Senior Associate