Euthanasia is not the same as suicide

Article published 6 December 2023

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Euthanasia is now legal everywhere in Australia but patients and doctors can still go to jail pending a law change.

A ruling by the Federal Court recently means that voluntary-assisted-dying schemes in all eight state and territory jurisdictions will continue to be hampered by provisions in the Commonwealth Criminal Code Act 1995 (Schedule, clauses 474.29A and 474.29B).

It was always a grey area, but now it’s clear that anyone discussing by phone or electronic mail about a voluntary, assisted death runs the risk of being convicted of a criminal offence.

What is the issue?

The Criminal Code Act says that it is a criminal offence to use a carriage service to give out suicide-related information in a case where a person is likely to use this information to commit or attempt to commit suicide.

A carriage service in Australian law is “a service for carrying communications by means of guided and/or unguided electromagnetic energy”. In other words, it’s about transmitting information electronically (phone calls, SMSs, emails, etc). Letters through the mail and in-person conversations are not covered by this definition.

The question the Federal Court recently resolved was whether a voluntary-assisted death was a suicide. The Commonwealth Criminal Code does not define suicide, which is why it was a grey area. The Federal Court’s answer was: yes, a voluntary-assisted death is a suicide.

The Federal Court’s ruling means that doctors who advise patients about voluntary-assisted dying via telehealth, email or phone consultations could face criminal charges.

It also means that telehealth consultations with medical professionals covered by Medicare cannot be used in the administration of voluntary-assisted dying. A telehealth consultation for a voluntary, assisted death would not break the laws governing Medicare, but it would be a criminal offence, nonetheless.

Why the law should be changed

Melbourne doctor Nick Carr, who is a Director of Dying with Dignity Victoria, brought the case against the federal government. He argued that the term suicide should not apply to voluntary assisted dying. He said that voluntary assisted dying involved a legal right to intentionally take one’s life that was regulated by law.

It’s hard to disagree with that. It should also be noted that the Criminal Code provisions already make it clear that a general discussion about voluntary assisted dying using a carriage service is not a criminal offence. In other words, the Criminal Code already acknowledges that there is a distinction between voluntary assisted dying as regulated at law and suicide.

Even though the clarity provided by the Federal Court ruling is not what advocates had hoped for, it is now possible and reasonable to expect the Commonwealth to apply a simple change to its Criminal Code so that patients and doctors can discuss and prepare for specific voluntary assisted deaths.

All eight state and territory governments are keen for the law to be changed, as are other interest groups, such as the powerful AMA (Australian Medical Association).

CPSA is adding its voice to all those calling for legislative change.

Until the law is changed, it will be very complicated to make arrangements for voluntary assisted deaths. This is particularly true for people who, due to their health condition or location in a regional or remote area, depend on telehealth consultations.

Although the change in the law is simple, its benefit would be immeasurable.

Write to the federal Attorney-General, Mark Dreyfus, to ask for the law to be changed urgently. Click here for an online contact form.

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