Media release

From: Wiley

Federal law creates barriers to access for voluntary assisted dying and risks for doctors

• States across Australia have passed voluntary assisted dying (VAD) laws
• A conflict between federal and state law creates uncertainty over legality of discussing VAD over internet or phone
• Telehealth is a key part of access to VAD in rural and remote areas
• The Commonwealth Government is resistant to amending its law to protect patients and practitioners

Health professionals could be at risk of federal criminal charges if they discuss VAD with patients over the phone or using the internet, due to a clash between federal and state law, according to QUT researchers.

Researchers from the QUT Australian Centre for Health Law Research (ACHLR) said the Commonwealth Criminal Code made it an offence to ‘counsel or incite’ suicide over a ‘carriage service’, that is by telephone or internet, or to provide instructions on a method of committing suicide.

The federal offences were added to the Code in 2005 (when VAD was illegal across Australia) in response to a rise in pro-suicide internet chatrooms and Philip Nitschke’s efforts to promote ways for the terminally ill to end their lives.

ACHLR postdoctoral research fellows Dr Katrine del Villar and Dr Eliana Close said the Commonwealth Government had repeatedly refused to amend the Code, leaving significant barriers for patients and risks for doctors.

“The problem and legal risk lies in uncertainty as to whether health professionals who discuss VAD with a patient via a phone or internet would be contravening these laws,” Dr del Villar said.

“One concern is whether VAD meets the legal definition of ‘suicide’, in other words ‘intentional self-killing’.

“There are strong arguments as to why the two concepts, suicide and VAD, are distinct but no court has ever ruled on whether VAD meets the legal meaning of suicide under the Code.”

Dr Close said telehealth was now an integral part of health care and had expanded exponentially during the COVID pandemic in Australia.

“The experience in other countries suggests it could also be effective for VAD,” Dr Close said.

“Telehealth is an important part of facilitating access to VAD for patients in rural and remote areas, who may not live close to a specialist or are too ill to travel.

“Some aspects of VAD assessments can be relatively straightforward to conduct via telehealth, such as determining age and residency, and even more complex clinical aspects can be feasibly accomplished.

“This is particularly so where the doctors have been involved in the patient’s care before they made the VAD request.

“Uncertainty about liability under the Code has unfortunately restricted the use of telehealth for voluntary assisted dying in practice, which adversely affects doctors, patients and their families.”

Dr Close said state health departments had issued guidance for doctors to address this legal risk.

“In Victoria, the Government’s guidance includes an expectation that all VAD consultations occur face to face, which doctors have reported as putting an ‘immense burden’ on very sick patients to travel or, if this is not possible, requires doctors to travel large distances to see patients,” she said.

“This barrier to equitable access to VAD is particularly acute for people with motor neurone disease or respiratory conditions because doctors in these specialties who are willing to participate in VAD are concentrated in metropolitan areas.”

Dr del Villar said the legal risk was likely to cast an even darker shadow in states such as WA and Queensland which have geographically dispersed populations.

“Considering two thirds of Australians will live in jurisdictions where VAD is legal by 2023 after Queensland’s law comes into operation, the Commonwealth Government should act to protect practitioners and provide equitable access to eligible patients,” she said.

“It should amend the Code to clarify that suicide does not include voluntary assisted dying under state law or, alternatively, the Commonwealth Director of Public Prosecutions could issue guidelines barring prosecution of individuals acting lawfully under state or territory frameworks.”