The Federal Court has clarified what was considered by some to be a grey area of the law and has ruled that providing certain information to do with voluntary assisted dying (VAD) via a carriage service is unlawful.
A carriage service is any form of electronic communication method, regardless of whether it uses wires or electromagnetic energy. This includes telephones, mobile services (calls and texts), radio waves (UHF and CB) and internet and intranet services.
If doctors, pharmacists and allied health workers engage in telemedicine to provide VAD related information to a patient, or any other person, they could be committing an offence under the Criminal Code Act 1995 (Cth) and be subject to significant financial penalties. As a matter of caution all VAD related information or material should not be communicated through a carriage service.
The Issues to be Decided
Her Honour Justice Abraham handed down her judgment in the matter of Carr v Attorney‑General (Cth)  FCA 1500 on 30 November 2023.
The matter involved an application made by Dr Nicholas Carr, a doctor authorised to undertake the functions of a 'coordinating medical practitioner' and 'consulting medical practitioner' under the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act).
The issue to be considered was a discrete one, i.e., is a voluntary death under the VAD Act 'suicide' as used in sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) (the offence provisions).
Dr Carr’s contention was that it did not apply to such acts and he sought a declaration in the following terms:
The Attorney-General for the Commonwealth as the named respondent accepted that he was an appropriate contradictor and advanced submissions to the court as to the proper meaning of the provisions in the Criminal Code Act 1995 (Cth) ( the Criminal Code). The Attorney-General submitted that:
The Criminal Code
Section 474.29A of the Criminal Code deals with the use of a carriage services for suicide-related material. The section provides that a person commits an offence if the person uses a carriage service to:
- Access material;
- Cause material to be transmitted to a person;
- Transmit material;
- Make material available; or
- Publish or otherwise distribute material,
where the material directly or indirectly counsels or incites the committing of, or attempting to commit, suicide.
It is also an offence under section 474.29A of the Criminal Code to use a carriage service to promote a particular method of committing suicide or to provide instruction on a particular method of committing suicide.
Section 474.29B deals with possessing, controlling, producing, supplying or obtaining suicide related material through a carriage service. It provides that a person commits an offence if the person has possession or control of material, or produces, supplies or obtains material which directly or indirectly:
- Counsels or incites committing or attempting to commit suicide;
- Promotes a particular method of committing suicide; or
- Provides instruction on a particular method of committing suicide,
and the person who has that possession or control or engages in the production, supply or obtaining of the material intends that it be used by him or her or another person in committing or attempting to commit suicide.
The VAD Act
The VAD Act establishes a scheme for Victorian residents to voluntarily end their life if they are suffering from a terminal illness and are expected to have less than 6 months to live (12 months in the case of neurodegenerative condition). There are strict requirements placed on medical practitioners to provide the eligible patient or their contact person with certain information at certain times.
The VAD Act specifically provides that a person who acts in accordance with the legislation does not commit a criminal offence (ss79, 80 VAD Act).
Her Honour’s consideration of whether an offence is committed under the Criminal Code turned upon the meaning of 'suicide' in the offence provisions. Suicide is not defined in the Criminal Code. The applicant contended that the legal meaning of the phrase 'commit suicide' in the specific context of the offence provisions, is to intentionally take one’s life other than in the exercise of a legal right to do so confirmed and regulated by law.
Because the term 'suicide' is not defined in the Criminal Code, Her Honour observed that the term is to be given its ordinary and natural meaning. She referred to the Macquarie and Oxford Dictionaries which defined suicide respectively as 'the intentional taking of one’s own life' and 'the action or an act of taking one’s own life'.
Her Honour did not accept the applicant’s contention that the meaning to be given to the term should be the intention of taking of one’s own life other than in the exercise of a legal right to do so conferred and regulated by law.
The applicant also contended that the use of the term 'commit' in the phrase 'commit suicide' in the offence provisions meant that the legislator had intended to confine the meaning of suicide to an act which is unlawful. Her Honour held that the use of the term 'commit' was merely a verb to convey the doing of (or attempt to do) the act (of suicide) rather than the committing of a crime or unlawful act.
So far as the inconsistency between the Criminal Code and the VAD Act is concerned, Her Honour referred to section 109 of the Constitution which states 'when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid'.
Her Honour held that Parliament had not intended for the term 'suicide' to be interpreted other than in accordance with its ordinary meaning. For this reason, Her Honour made a declaration in accordance with that put forward by the Attorney-General that:
- The term 'suicide', as used in ss474.29A and 474.29B of the Criminal Code Act 1995 (Cth), does 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 Regulations 2018 (Vic).
The decision applies not only to the Victorian VAD Act but all VAD legislation across the country. The provision of information in accordance with VAD legislation nationwide will invariably be directed to the steps preceding the patient’s voluntary death and the taking of the VAD substance. Most communications will probably fall with the very broad meaning given to 'inciting' or 'counselling' suicide, or 'providing instruction on a particular method of committing suicide' under the Criminal Code. Where that communication is undertaken using a carriage service, the medical practitioner will have committed a criminal offence under the Criminal Code. As would the patient or the patients contact person because they would have 'obtained' suicide related material by way of a carriage service.
The penalty for the commission of an offence under sections 474.29A and 474.29B is 1000 penalty units. At the moment, a penalty unit is worth $313.00 which makes each offence punishable by a penalty of up to $313,000. Multiple offences may be committed by the one communication under the offence provisions. Each offence will carry a penalty of 1000 penalty units.
Unless and until amendments are made to the Criminal Code, authorised medical practitioners, pharmacists and allied health workers must not provide VAD material by electronic means at all as to do so will make them liable to be prosecuted for an offence under the Criminal Code, as well as potential action by the Regulator that may impact on the medical practitioner’s ability to provide VAD medical services and their registration more generally.
The solution to the issue is to include a definition of 'suicide' in the Criminal Code which exempts voluntary assisted dying under State and Territory VAD legislation.
In many cases, persons wishing to avail themselves of VAD are not in a physical condition where they can easily travel to a doctor to receive the information that is required to be provided to them under the VAD legislation. Persons living remotely will be disproportionally impacted, as will First Nations People. This is against a background of patients generally finding it difficult in many areas to find doctors willing and qualified to assess them for voluntary assisted dying.
Independent MP Kate Chaney has confirmed that she will introduce a private members Bill to amend the Criminal Code to remove the prohibition on providing VAD information by way of telemedicine.
Pharmacists are an important part of multidisciplinary teams in the provision of VAD services around the country. The Society of Hospital Pharmacists of Australia (SHPA), the peak professional pharmacy body representing more than 6100 hospital pharmacists across the country, recently issued a statement welcoming independent MP Kate Chaney’s push to amend the Criminal Code. SHPA President Tom Simpson is quoted as saying:
- Patients seeking assessments for VAD, especially those from rural and remote areas, are uniquely disadvantaged by the current Code as most States only have one VAD service centre and pharmacy. Without telehealth options, these very ill and vulnerable patients, or the VAD practitioners themselves, are forced to travel long distances to access or provide treatment.
- This is an unnecessary and inhumane hurdle these patients, their families and their care teams should not face.
- As a VAD credentialled pharmacist myself, I know firsthand the challenges faced not just by patients, but by practitioners who want certainty that they are practising within the law. If a doctor phones a pharmacist for advice on administering a VAD medication, the answer currently is “I can’t tell you that over the phone” – an answer that puts the focus on not breaching the Code, rather than recognising that there is a doctor and a patient at the other end of the line. In effect, VAD practitioners must currently choose between patient‑centred care, and legal-centred care.
One would not expect there to be any or any significant objection to the amendment of the legislation now that VAD is available nationwide. Delay, however, is inevitable.