VAD: Federal Court rules telehealth illegal

Doctors who give patients information about euthanasia over the phone could face criminal charges, the Federal Court ruled.

Federal Court Justice Wendy Abraham on Thursday ruled the term "suicide" as used in the Commonwealth Criminal Code Act 1995 applies to the ending of a person’s life by voluntary assisted dying (VAD).

This means it is an offence for a doctor to use a carriage service to counsel or incite another into ending their life, meaning doctors using telehealth, email, or phone calls could be found to have broken the law.

Previously considered to be a grey area, the ruling came after a challenge by Melbourne doctor Nick Carr, who is authorised to undertake the functions of a "co-ordinating and consulting medical practitioner" for people seeking assistance with euthanasia.

Dr Carr asked the court if the word "suicide", as used in the Criminal Code Act, applied to the ending of a person’s life in accordance with the Voluntary Assisted Dying Act 2017 and the Voluntary Assisted Dying Regulations 2018 (Vic).

He claimed "suicide" was not defined in the criminal code; the word did not apply to such acts, and he asked the Federal Court to make an alternative declaration.

Dr Carr submitted there was a "constructional choice" to be made in interpreting the word "suicide" and to resolve the matter by changing the wording.

The doctor proposed the declaration be changed to: "The term 'suicide', as used in … the Criminal Code Act 1995 (Cth), does not apply to the ending of a person’s life in accordance with, and by the means authorised by, the Voluntary Assisted Dying Act 2017 (Vic) and Voluntary Assisted Dying Regulations 2018 (Vic)".

Justice Abraham rejected Dr Carr’s arguments and found assisting someone to die over the phone would be committing an offence.

Instead, she agreed with the federal government, which argued that "when the criminal code provisions were introduced, ‘commit suicide’ simply referred to the intentional taking of one’s own life, regardless of the circumstances in which that occurred".

The judge found authorised medical practitioners under the VAD act, as Dr Carr is, are variously permitted or required to provide information to a person who has requested access to voluntary assisted dying if they meet the eligibility criteria.

"The provision of information in accordance with those provisions would amount to making information available to the other person that provides instruction on a particular method of committing suicide," Justice Abraham wrote in her judgement.

"If that communication is undertaken using a carriage service, that would breach the Commonwealth Offence Provisions but be authorised under the VAD Act."

"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."

Justice Abraham made it clear giving assistance to a person under the VAD Act using a mode of communication "other than a carriage service" would not be an offence.

The ruling came just two days after NSW became the last state to allow VAD after similar legislation was first passed in Victoria in 2017.

Dr Linda Swan, chief of Go Gentle Australia, said the law would now exacerbate suffering and confusion – especially for those in rural and regional Australia.

"It is a judgement that is out of step with both contemporary medicine, and contemporary Australia," Dr Swan said.

"It is a retrograde decision that reflects the 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."

Dr Swan reiterated the ban on electronic discussion was discriminatory as no other areas of practice was excluded from telehealth.

"Doctors are subject to the same Medical Board of Australia standards, irrespective of whether consultations happen in person or via telehealth."

"Whether telehealth is appropriate for a patient being assessed for VAD should be a matter of clinical judgement, as it is in all other areas of telehealth."

"A ban on their use means doctors must deliver scripts in-person and make repeated journeys to visit patients at home, often at great personal cost and expense."

VAD has been a subject of debate for many religious institutions, with the Anglican Church's Synod advising its aged care homes to discourage residents from accessing the VAD and adopt the bare minimum compliance.

Bishops welcomed the ruling, with Melbourne Archbishop Peter Comensoli welcoming it as a "significant" win for common sense and clarity.

"The ruling underscores that VAD is not a health service but an intentional ending of someone's life," the Archbishop said.

"People at the end of their lives are at their most vulnerable."

"What they deserve is our compassion, care and accompaniment, not euthanasia."

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