Telehealth consultations about voluntary assisted dying are illegal, the federal court has ruled in a judgment on an aspect of law that has long been considered a grey area.
The ruling means doctors may face criminal charges for conducting such consultations, as sections of the commonwealth criminal code make it an offence to use a carriage service such as a telephone, videoconference call, or email to counsel or incite someone to suicide.
As states have passed voluntary assisted dying legislation, these federal laws have led to confusion about whether patients seeking permission to access it, or granted access to it, can use telehealth services for some of their medical appointments.
Doctors and advocates for voluntary assisted dying have long been calling for changes to the law to make it clearer, saying it affects patients who live in rural and remote areas, and those whose conditions limit their movement or make travel painful, to attend appointments.
It prompted Nicholas Carr, a Melbourne doctor and one of the first GPs to provide voluntary assisted dying care, to pursue legal action in the federal court to clarify the definition of suicide in the commonwealth criminal code, and whether it applies to state legislation.
On Thursday, justice Wendy Abraham found the term suicide, as used in the criminal code, does apply to the ending of a person’s life through voluntary assisted dying.
“We are devastated that we haven’t managed to resolve this issue and I am extremely disappointed, because the whole legal argument was about words and definitions,” Carr said.
“There was no place for the human experience, and the right to access a medically available, legal procedure. But this has been a grey area for a long time, so at least this does provide clarity and sets the stage for pursuing change via a private member’s bill.”
Earlier in November, independent MP Kate Chaney said she would push to amend the federal laws via a private member’s bill.
“I will now do all I can to assist Kate Chaney in doing that,” Carr said.
In her reasons, Abraham acknowledged inconsistencies between state and federal legislation. But section 109 of the constitution resolves that conflict by giving the commonwealth law paramountcy and rendering the state law inoperative, her judgment said.
The judgment states that, under state legislation, “authorised medical practitioners are permitted to provide information about voluntary assisted dying to patients who request it if they meet eligibility criteria”.
“If that communication is undertaken using a carriage service, that would breach the Commonwealth Offence Provisions but be authorised under the VAD [Voluntary Assisted Dying] Act,” the judgment said.
“It follows that in so far as the VAD Act purports to authorise medical practitioners to provide information about particular methods of committing suicide via a carriage service, it purports to authorise them to engage in conduct that the Criminal Code has criminalised.
“In those respects, the VAD Act detracts from or impairs the operation of the commonwealth law.”
The decision prompted Queensland’s attorney general, Yvette D’Ath, to call on the federal government to “urgently act to amend commonwealth laws that are standing in the way of people’s lawful access to voluntary assisted dying”.
“Medical professionals should not face prosecution for fulfilling their duties, nor should people be denied access to medical support based on where they live,” she said in a statement.
A Victorian government spokesperson said the ruling is “incredibly disappointing, especially for regional Victorians and one we have been advocating to change for years”.
The CEO of voluntary assisted dying advocacy group Go Gentle Australia, Dr Linda Swan, said the ruling would exacerbate suffering and confusion. She shared the story of one patient who was desperate to be assessed for voluntary assisted dying and was driven to an in-person appointment in the boot of a car because it was the only way they could lie flat and cope with the pain of being moved.
“The court has effectively said healthcare professionals can only discuss voluntary assisted dying in-person and face to face,” Swan said.
“It is a judgment that is out of step with both contemporary medicine, and contemporary Australia.”
• In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, you can call or text the National Suicide Prevention Lifeline on 988, chat on 988lifeline.org, or text HOME to 741741 to connect with a crisis counsellor. Other international helplines can be found at befrienders.org
