Ruling on assisted dying drug Nembutal sets important precedent

Just before Christmas 2016, the Victorian Civil and Administrative Tribunal (VCAT) handed down a historic judgement in a case brought by the veteran advocate for assisted dying, Dr Rodney Syme.

This followed a decision, which was then referred to its immediate action committee by the Medical Board of Australia, to prevent Syme from “engaging 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”.

Syme appealed to VCAT where a panel comprising a judge and two medical practitioners overruled the Medical Board. The panel declared Syme could continue to supply the rapidly acting drug Nembutal (generic names pentobarbital or pentobarbitone) to patients he assessed would get significant psychological or existential relief from it.

Reported to the Medical Board

In January 2016, a doctor who had been treating Erica reported Syme’s contact with Erica to the Medical Board, which convened a hearing to consider whether it should take action. It ruled that Syme posed a serious risk to persons generally and to this patient in particular.

It upheld its decision on further investigation, causing Syme to appeal to VCAT in an attempt to overturn the Medical Board’s ruling.

The core of Syme’s appeal, which VCAT agreed with, was his:

"… practice is a form of palliative care that is directed to the palliation of the psychological and emotional suffering experienced by some patients in the end stages of terminal disease. In particular, a sense of having control over the end of one’s life is one of the most powerful tools for the relief of that psychological and existential suffering. Dr Syme’s practice therefore is directed to providing support, including information and advice, which gives that sense of control to patients."

VCAT accepted that Syme’s primary purpose in providing Nembutal was therefore palliative care in the form of psychological relief to the dying patient who may or may not decide to eventually take the drug. The primary purpose was not to assist such patients to end their own lives, however likely this might be. However, significantly, VCAT concluded that the provision of Nembutal to provide psychological relief could have the “double effect” of ending a patient’s life.

Community support

With surveys like this one repeatedly showing that very large proportions of the community support assisted suicide for the terminally ill who wish to end their lives at a time of their choosing, it is likely that those accessing the drug will increase, particularly as the population ages.

Many people imagine such a scenario for themselves, so acquiring the drug is likely to become more common if customs continue to turn a blind eye. Legislative reform may soon put an end to people needing to break the law to make this happen.

VCAT’s decision is of immense importance. Its decisions can be cited in evidence and so may be used as legal precedents. VCAT accepted Syme’s defence (that his supply of Nembutal to dying patients was a legitimate and important part of palliative care). This means that other doctors around Australia may seek and perhaps succeed in using a similar argument should they be questioned by disciplinary authorities like the Medical Board or the police.

Those with terminal illnesses wanting the right to end their own life using Nembutal have a lot for which to thank Rodney Syme.

If this article has raised issues for you or if you’re concerned about someone you know, call Lifeline on 13 11 44 or beyondblue on 1300 22 4636.

This article originally appeared on The Conversation