The Federal Court in Australia has determined that Voluntary Assisted Dying (VAD) is considered suicide under the Commonwealth’s Criminal Code, meaning doctors could be charged under laws that prohibit using a carriage service – such as telehealth, email or phone calls – to incite or provide information about suicide.
The court confirmed this law would be applied to ending a person’s life under State VAD laws. This means, doctors consulting with patients about VAD via telehealth would be breaking the law, even if those actions had been authorised under State legislation.
According to polling conducted by the Australia Institute, 76% of Australians support VAD.
Politicians and advocates are pushing for amendments to the Commonwealth’s Criminal Code and Federal laws to allow doctors to consult with patients about voluntary assisted dying (VAD) via telehealth appointments – a means most terminally ill people in rural and remote areas rely on.
Judged by Justice Wendy Abraham, the matter was brought to the Federal Government by Victorian doctor Nicholas Carr who was seeking clarity about whether the term “suicide” mentioned in the Code included VAD as it had not stated a definition of the term.
This ruling came just days after VAD began in New South Wales – the last State in the country to allow access to the service.
Without a definition of suicide in the Criminal Code, Justice Abraham said its ordinary and natural meaning should apply. “The parliament saw fit not to define the term given that it was so firmly and universally used and understood at that point in time,” her judgement said.
“Voluntary assisted dying, while carefully regulated and a societally approved means of a person intentionally taking their own life, remains a means of a person taking their own life.”
The judgement also said Commonwealth laws should prevail in any clash between State and Federal legislation.
Doctors and advocates for VAD have long been calling for changes to Federal laws, saying it is difficult for patients who live outside of metropolitan areas and those whose conditions limit their ability to move or travel to attend in-person appointments.
Dr Carr argued that the term suicide should not apply to VAD because the service involved a legal right to intentionally take one’s life that was regulated by State law. He said he was “absolutely gutted” with the verdict further restricting General Practitioners (GPs) and claimed it would be difficult to provide comprehensive care concerning VAD without using a carriage service for at least some of that work.
According to the latest annual report from the Victorian Voluntary Assisted Dying Review Board, GPs make up 71% of practitioners in regional parts of the State.
“We so desperately need to get this changed and yet now we are stuck,” Dr Carr told ABC News.
“Remember these are people who are very unwell, some of these people are bed-bound, they are in pain, to transport by road for often hours at a time is a huge imposition.”
“If a patient rings me and says, ‘I want you there when I’m taking the medication on Friday’, and we’re having a conversation, does that mean I’m breaking the law? After this ruling, it seems any connection on a carriage service is potentially at risk,” he said, speaking with the Sydney Morning Herald (SMH).
The ruling has started new advocacy efforts and calls for amendments to the Code and changes to Federal laws by State Governments and independent MPs with spokespeople and Attorney Generals across the country voicing their disappointment with the verdict.
Queensland Attorney-General Yvette D’Ath has said she will continue to lobby for the urgent amendment of these laws to ensure Queenslanders in the regions aren’t discriminated against and their suffering unnecessarily prolonged, and Victoria’s Minister for Ageing Ingrid Stitt also raised her disappointment with the impacts of this ruling on regional communities.
Meanwhile, Federal independent MP Kate Chaney plans to introduce a private members’ bill in the new year exempting VAD appointments from the Code.
This bill is also being supported by fellow independent MP and former neurologist, Monique Ryan.
“This small amendment will remove any ambiguity and allow doctors to administer end-of-life services without fear of prosecution under an outdated law. It’s time to update our laws in line with community expectations, so that access to dignified end-of-life services doesn’t depend on your postcode,” Ms Chaney told the media.
However, some groups do not want to see the Commonwealth’s Code amended and even Prime Minister Anthony Albanese voiced concerns with patients accessing VAD counselling through telehealth.
“I support [VAD], but with very strict conditions to make sure that appropriate protections are in place,” he told 3AW radio on Friday.
“My personal opinion is that these issues are serious and that telehealth should not be used because I’d be concerned about some of the implications there.”
