Voluntary assisted dying is now lawful in every Australian state and will soon begin in the Australian Capital Territory.

However, it’s illegal to discuss it via telehealth. That means people who live in rural and remote areas, or those who can’t physically go to see a doctor, may not be able to access the scheme.

A federal private members bill, introduced to parliament last week, aims to change this. So what’s proposed and why is it needed?

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What’s wrong with the current laws?​

Voluntary assisted dying doesn’t meet the definition of suicide under state laws.

But the Commonwealth Criminal Code prohibits the discussion or dissemination of suicide-related material electronically.

This opens doctors to the risk of criminal prosecution if they discuss voluntary assisted dying via telehealth.

Successive Commonwealth attorneys-general have failed to address the conflict between federal and state laws, despite persistent calls from state attorneys-general for necessary clarity.

This eventually led to voluntary assistant dying doctor Nicholas Carr calling on the Federal Court of Australia to resolve this conflict. Carr sought a declaration to exclude voluntary assisted dying from the definition of suicide under the Criminal Code.

In November, the court declared voluntary assisted dying wasconsidered suicide for the purpose of the Criminal Code. This meant doctors across Australia were prohibited from using telehealth services for voluntary assisted dying consultations.

Last week, independent federal MP Kate Chaney introduced a private members bill to create an exemption for voluntary assisted dying by excluding it as suicide for the purpose of the Criminal Code. Here’s why it’s needed.

Not all patients can physically see a doctor​

Defining voluntary assisted dying as suicide in the Criminal Code disproportionately impacts people living in regional and remote areas. People in the country rely on the use of “carriage services”, such as phone and video consultations, to avoid travelling long distances to consult their doctor.

Other people with terminal illnesses, whether in regional or urban areas, may be suffering intolerably and unable to physically attend appointments with doctors.

The prohibition against telehealth goes against the principles of voluntary assisted dying, which are to minimise suffering, maximise quality of life and promote autonomy.

Some people aren’t able to attend doctors’ appointments in person. Jeffrey M Levine/Shutterstock

Doctors don’t want to be involved in ‘suicide’​

Equating voluntary assisted dying with suicide has a direct impact on doctors, who fear criminal prosecution due to the prohibition against using telehealth.

Some doctors may decide not to help patients who choose voluntary assisted dying, leaving patients in a state of limbo.

The number of doctors actively participating in voluntary assisted dying is already low. The majority of doctors are located in metropolitan areas or major regional centres, leaving some locations with very few doctors participating in voluntary assisted dying.

It misclassifies deaths​

In state law, people dying under voluntary assisted dying have the cause of their death registered as “the disease, illness or medical condition that was the grounds for a person to access voluntary assisted dying”, while the manner of dying is recorded as voluntary assisted dying.

In contrast, only coroners in each state and territory can make a finding of suicide as a cause of death.

In 2017, voluntary assisted dying was defined in the Coroners Act 2008 (Vic) as not a reportable death, and thus not suicide.

The language of suicide is inappropriate for explaining how people make a decision to die with dignity under the lawful practice of voluntary assisted dying.

There is ongoing taboo and stigma attached to suicide. People who opt for and are lawfully eligible to access voluntary assisted dying should not be tainted with the taboo that currently surrounds suicide.

So what is the solution?​

The only way to remedy this problem is for the federal government to create an exemption in the Criminal Code to allow telehealth appointments to discuss voluntary assisted dying.

Chaney’s private member’s bill is yet to be debated in federal parliament.

If it’s unsuccessful, the Commonwealth attorney-general should pass regulations to exempt voluntary assisted dying as suicide.

A cooperative approach to resolve this conflict of laws is necessary to ensure doctors don’t risk prosecution for assisting eligible people to access voluntary assisted dying, regional and remote patients have access to voluntary assisted dying, families don’t suffer consequences for the erroneous classification of voluntary assisted dying as suicide, and people accessing voluntary assisted dying are not shrouded with the taboo of suicide when accessing a lawful practice to die with dignity.

Failure to change this will cause unnecessary suffering for patients and doctors alike.

This article was first published on The Conversation and was written by Michaela Estelle Okninski, Lecturer of Law, University of Adelaide, Marc Trabsky, Associate professor, La Trobe University, Neera Bhatia, Associate Professor in Law, Deakin University

 

[Ezzy]

This is a big hurdle to get over & will possibly comedown to a conscience vote in Parliament.

The world has changed from how it was 50 or 60 years ago. People demand the right to choose the time they die if they are unable to enjoy a reasonably happy life for numerous reasons.

Last year l attended the Memorial Service of a very dear friend who had decided she had had enough. Her & her hubby were experienced Ballroom dancers & had travelled extensively doing this. When l came to know her she was fairly fit & very flexible with her legs, but over the years she became racked with bad pain & eventually saved up her medications, & with her families knowledge, took her life one night.

l believe this Law will be passed to satisfy the needs of a new era.

We never know if we will want to make this decision ourselves one day.

l personally am undecided about the rights or wrongs of this Law, but like everyone else there may come a time to make this decision one day & knowing it is legal is peace of mind.