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Telehealth VAD Consultations Ruled Illegal

by | Mon, Dec 4 2023

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The Federal Court has effectively outlawed telehealth consultations for euthanasia because legally, voluntary assisted dying (VAD) is considered suicide. Under a Commonwealth law that bans the use of the phone, email or internet “to incite or provide information about suicide,” a judge ruled telehealth advice to clients is a criminal offence.

Justice Wendy Abraham found a Melbourne GP would be breaking the law by consulting a patient online. Dying with Dignity board member Dr. Nicholas Carr sought the Federal Court ruling on the ‘grey’ area. “I was seeking absolute clarification. We needed to know for sure. Either the Commonwealth provision did cover [voluntary assisted dying] laws, or it did not,” he told the Australian Associated Press (AAP).

In his submission, Dr. Carr said the criminal law was there to prevent harm to vulnerable people from being pressured, but the VAD laws recognised the person’s own intentions to take their own life. He argued the terms “committing suicide” and “assisted dying” were two separate forms of death and should not be construed as meaning the same thing.

Dr. Carr also contended that the federal law would undermine VAD laws in several states. Federal Attorney-General Mark Dreyfus who was the respondent to the Federal Court application, contended that when the criminal code was introduced in 2005, “commit suicide” referred to the intentional taking of one’s life, regardless of the circumstances in which that occurred.

Justice Abraham ruled on the side of the Commonwealth, stating the definition of assisted dying was consistent with suicide under criminal law in that it is “the intentional taking of one’s own life, and the act of doing so.” She  asserted: “Assisting a person to commit suicide via a carriage service, regardless of the circumstances, was an offence.”

The judge found that there was a “direct inconsistency between state and Commonwealth laws” and explained that where such inconsistency existed, the constitution gave the Commonwealth laws “paramountcy.” She made clear the ruling only applied to ‘carriage service’ consultations and that doctors will still be permitted to provide voluntary assisted dying to patients who meet the criteria under ‘in-person’ consultations..

Dr. Carr characterised the decision as not about human beings and medical care, but dictionary definitions and use of language. He feared the judgment could disadvantage people who were very sick and at the end of their lives, particularly in regional and rural areas of Australia. “I’d be very worried that there will be people in more isolated parts of Australia who say I can’t make that journey, I have to do it my way,” he told AAP.

A spokesperson for Mr. Dreyfus said “The government will consider the court’s judgment.” States are expected to pressure the Federal Attorney-General to write an exemption for voluntary assisted dying into the Commonwealth’s criminal code, so that doctors don’t risk prosecution. Queensland Health Minister Shannon Fentiman accused the Commonwealth of “standing in the way of Queenslanders getting access to voluntary assisted dying via telehealth”.

The Australian Christian Lobby is urging the federal government to retain the ban on telehealth appointments for voluntary assisted dying.