November 28, 2014

Precedent cited in Philip Nitschke case overturned

Amy Corderoy, The Sydney Morning Herald

A controversial ruling that a doctor has a duty to help strangers who are not their patients has been overturned in the Supreme Court.

The decision has the potential to change the way doctors are expected to behave in emergencies, and might have ramifications for euthanasia advocate Philip Nitschke, who has been suspended for failing to stop an otherwise healthy man who was suspected of murder from taking his own life.

Leila Dekker had been found by the medical regulator to have acted improperly after she left the scene of a near-miss accident to report it to police, rather than offering medical assistance.

But the Supreme Court of Western Australia has found there was no clear evidence Dr Dekker’s decision would have been considered improper, according to the professional standards required of reputable and competent doctors.

Medical health law expert Bill Madden said the case showed there was a need for clear, unambiguous guidelines on what responsibilities doctors had to the public.

“The law itself, the common law as opposed to any ethical framework, does not recognise any legal duty to rescue,” he said. “I think there would be some merit in people in the Australian Medical Association and the Medical Board reviewing the code of conduct that does exist to see how it deals with this issue and whether it needs to be refined.”

In 2002 Dr Dekker was driving at night on a dirt road in Roebourne, outside Karratha in Western Australia, when a car came speeding towards her. She swerved out of the way and the other car crashed into a ditch.

Dr Dekker, who had no torch, medical kit or mobile phone, did not check on the occupants of the car but instead drove to a police station a minute or so away.

The Supreme Court found the WA medical tribunal erred in finding she should have stopped to help, when there were no clear guidelines at the time that dictated the responsibilities of a doctor towards someone who was not their patient at the scene of such an accident, and no experts had been called to prove she had not acted in a manner expected from her profession.

The court decided the length of time since the accident meant the case should not be sent back to the tribunal to be re-examined, and instead the decision should simply be overturned.

Barrister Ngaire Watson was surprised by the decision and said it had the potential to change the way doctors’ ethical duties to people who were not patients were assessed.

“I would have thought even a good Samaritan would have some obligation to go and look at the people who were in the car,” she said. “What if they needed resuscitation?”

The Dekker case has been key in a dispute over whether Dr Nitschke should have had his medical registration suspended for not telling WA man Nigel Brayley he should see a doctor, during an email exchange where Mr Brayley disclosed he was going to end his life.

Mr Brayley was being investigated after the death of his wife and told Dr Nitschke he had sought medical and other help but believed his life was not worth living.

Two weeks ago Dr Nitschke faced a Darwin medical tribunal to fight the medical board’s immediate suspension. He said his lawyers were writing to the tribunal to inform them of the court’s decision.

“Once the board acknowledged … there was no doctor-patient relationship [with Mr Brayley] they had to rely on precedents,” he said. “They kept drawing attention to this as really a pivotal case, so it’s quite interesting this appeal has come down now.