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Law Council of Australia

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Full medical not a given when deciding to end one's life

Opinion piece by Law Council President, Mr Greg McIntyre SC, first published in The Canberra Times, 19 January 2024. 


Voluntary assisted dying (VAD) is now legal in every state in Australia and our territories have been granted the right to pass their own VAD laws.

However, a loophole created by our federated legal system is impacting the ability for some Australians to receive professional advice about their options, particularly those living in rural areas who may be considering this exceedingly difficult and personal choice.

Voluntary assisted dying is when an eligible person chooses medical assistance to end their life because they have an advanced medical condition that causes intolerable suffering. While VAD has been legislated in most Australian jurisdictions, a national law – the Criminal Code Act 1995 (Cth) – is preventing healthcare professionals from providing advice and support in some instances.

Recently, the Federal Court of Australia, in Carr v Attorney-General (Cth) [2023] FCA 1500, found that the term ‘suicide’ as used in sections 474.29A and 474.29B of the Criminal Code extends to the use of a carriage service to provide information about particular methods of ending a person’s life.

This means doctors or other related workers who communicate via telephone, email or other online platforms with terminally ill persons wishing to self-administer a lethal substance under their own state-based laws, face the risk of criminal liability.

Most affected by this situation are communities outside of our major cities. People living in rural, regional and remote parts of the country who are in a terminal stage of their illness may be too unwell to travel to their nearest qualified health professional.

A health professional who wants to assist is more likely able to spend the time needed with an individual in their own consultation space, than to devoting the additional hours or days needed to travel to a rural, regional and remote area.

The outcome is that the medical assistance referred to in the definition of VAD in Australia, is not readily available to all.

End-of life decisions are not easy or straightforward and having a health professional at the centre of this decision making is deliberate. As the Commonwealth’s own healthdirect website points out “your doctor or medical team can give you information and support while you consider VAD”.

It is also only eligible healthcare practitioners who can prescribe and dispense VAD medicines.

Not being able to seek assistance from a medical professional can limit people’s ability to fully discuss and weigh all their options and access approved VAD medicines. To ensure Australians considering VAD can do so armed with all the medical knowledge and support they deserve, the Criminal Code must be urgently amended to allow for consultations on VAD to occur via a carriage service.

The Law Council of Australia has proposed a provision be inserted into the Criminal Code declaring ‘suicide’ does not include voluntary assisted dying as lawfully carried out pursuant to state or territory legislation.

We must ensure all Australians, regardless of where they live, have the same rights, capacity, choice and control over their own end-of-life decision making.

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