VAD telehealth ruling ‘incoherent’ and ‘devastating’

4 minute read

The Federal Court’s decision to rule VAD as legally equivalent to suicide makes a grey area even cloudier. With up to $200k in fines at stake to boot.

The Federal Court of Australia has ruled that voluntary assisted dying is equivalent to suicide in the eyes of the law, making the use of telehealth consultations for the service officially illegal. 

Speaking to TMR, Professor of Health Law at Queensland University of Technology Lindy Willmott said although she was not surprised by the ruling, it left health practitioners “operating under a cloud”. 

“[Doctors] know now that a death under the voluntary assisted dying regimes constitutes suicide under the Commonwealth Criminal Code act,” she said. 

 “So some of the activity that they lawfully do under the state legislation, through telephone, email, internet, telehealth, could potentially constitute a breach under the criminal code act. 

“Obviously, that’s undesirable for the doctors and also for their patients.” 

The use of telehealth for voluntary dying assisted consultations has been a grey area for practitioners since the relatively new process came into play across the country, with this year’s inaugural national VAD conference voting telehealth as the greatest barrier to VAD services. 

Subsequently, Dr Nicolas Carr, one of the first GPs to provide VAD care, decided to pursue clarification of the definition of suicide in the commonwealth criminal code and how it applies to state-based laws, which shape VAD processes. 

Yesterday, the Federal Court ruled that VAD was synonymous with suicide as far as the law was concerned, meaning using a “carriage service” such as phone, videocall or email to “counsel” or “incite” suicide, or VAD, was illegal and punishable by up to $200,000 in fines. 

“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,” Dr Carr said in response to the ruling. 

“There was no place for the human experience, and the right to access a medically available, legal procedure.  

“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.” 

But Professor Willmott told TMR that the grey zone persists. 

According to Professor Willmott, while services such as discussing VAD as an end-of-life option via telehealth, or email, are “highly unlikely” to constitute a breach, “because they’re not counselling or inciting suicide, or promoting or providing an instruction”, services at the other end of the VAD process, regarding medication, are “very much at risk of breaching the code”. 

“What this effectively means is that to avoid breach of the code the doctor, in certain situations, has to travel to the patient, or the patient has to travel to the doctor,” she said. 

“And when you’re talking about people at the end-of-life, travel is often painful. And it is completely unnecessary to have those conversations face to face.” 

This is likely to particularly disadvantage rural and remote patients but will likely cause distress for patients and their families from metropolitan areas too, said Professor Willmott. 

For some patients, the delay caused may mean they are no longer eligible for VAD by the time they see a doctor, as they have lost the capacity, she added. 

According to Professor Willmott, the irony was this ruling only applies to some people undertaking voluntary assisted dying.  

Practitioner-administered voluntary assisted dying, which constitutes more than 50% of the VAD provision in WA where Professor Willmott resides, would not be considered suicide under the law, meaning that patients pursuing practitioner rather than self-administration would be able to discuss services over a carriage service. 

One fix would be a simple amendment to the commonwealth criminal code that could be enacted by the Attorney General, to clarify that the clause currently prohibiting the use of carriage services for discussion of suicide excludes activities performed as part of lawful VAD practices, said Professor Willmott. 

“It’s that simple.” 

But the problem lies in a “lack of political will”, she said. 

All statutory bodies around the country have recommended allowing the use of telehealth for VAD service provision, said Professor Willmott, as have many state attorney generals. 

Professor Willmott is hopeful that the change to the commonwealth code is an inevitability.  

She looked to MP Kate Chaney, who has said she will table the change via a private member’s bill, but this will likely only be discussed next year in February. 

“I really hope it does not take a doctor to be charged for breach of the code for the Commonwealth to act,” added Professor Willmott. 

Dr Carr has said he does not plan to appeal the Federal Court’s decision. 

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