The ruling means nurses and other clinicians who discuss VAD with patients via phone, video, or email, could face criminal charges and a $220,000 fine under the Commonwealth Criminal Code Act 2005, which prohibits the use of a carriage service to send ‘suicide related’ materials.
Go Gentle Australia’s CEO, Dr Linda Swan, said voluntary assisted dying, now legal across all Australian states, being considered suicide would exacerbate suffering and add to confusion, especially in rural, regional and remote areas.
The court has effectively said healthcare professionals can only discuss voluntary assisted dying in-person and face-to-face,” Dr Swan said.
“It is a judgment that is out of step with both contemporary medicine and contemporary Australia. It is a retrograde decision that reflects Australian society of the 1970s, not of today.
“Dying people everywhere will be negatively affected, but especially those in rural, regional and remote areas who rely on telehealth for the bulk of their healthcare needs.”
The Federal Court ruling was handed down as part of a case brought forward by GP Nicholas Carr, who pursued legal action to clarify the definition of suicide in the Commonwealth Criminal Code Act and whether it applied to Victorian VAD legislation. The Federal Court rejected the application, concluding that the term “suicide” as used in the Criminal Code Act, and by means authorised by state VAD legislation, does apply to the ending of a person’s life.
Dr Swan warned that the decision would compromise VAD access for terminally ill people who cannot travel to in-person consultations.
“We have heard stories of people dying in great pain and anguish before they could access VAD, simply because of delays imposed by the telehealth prohibition.
One patient, desperate to be assessed for VAD, was driven to an in-person appointment in the boot of a car because this was the only way they could lie flat and cope with the pain of being moved.”
In October, hundreds of clinicians who attended the country’s first national VAD conference in Sydney, run by Go Gentle and Voluntary Assisted Dying Australia and New Zealand (VADANZ), listed improved access to telehealth, through changing the law to make VAD consultations via telehealth no longer illegal, as the number one thing that would make VAD work long-term in Australia.
According to Dr Swan, the prohibition is illogical and discriminatory, with no other area of medical practice excluded from telehealth.
“State VAD laws explicitly differentiate voluntary assisted dying from suicide. Suicide prevention organisations, health practitioners and the general public understand the difference. The federal Parliament must act swiftly to end this discrimination against people who are dying.”
Go Gentle and VADANZ are now calling on federal politicians to support making VAD exempt from the Criminal Code Act.
We call upon federal MPs to listen to the expert voices and not those with vested interests in stifling access to VAD,” VADANZ president, Dr Cameron McLaren said.
“It is important to note that in every Australian state in which VAD is active (Victoria, Western Australia, Tasmania, South Australia, and Queensland), the respective Voluntary Assisted Dying Review Boards have all recommended allowing VAD eligibility assessments through telehealth.
“We now need the federal parliament to act to provide us with legislative protection to continue to uphold the Australian Charter of Healthcare Rights that says all patients have rights to information and to access healthcare that is relevant to their needs.”
