In 2005, the Australian Commonwealth Criminal Code Act was amended to insert sections 474.29A and 474.29B pertaining to the use of a “carriage service” for suicide related materials. Stay with me now, because at least for me, this got a lot more boring before it began to make sense.
Here is the link to the actual wording of these sections, but a few points to be aware of before delving too deeply.
- “Suicide” is not defined in federal law. Therefore, although many may not believe VAD is suicide, this will not hold up in federal court; often these definitions default to dictionary definitions, which currently could be interpreted to be an overarching term that includes VAD as a subtype of suicide.
- Many of the state VAD legislations, do include sections whereby “VAD is not suicide”; however state-based definitions do not have bearing in federal law.
- A “carriage service” is defined in the federal Telecommunications Act (1997) as “a service for carrying communications through guided and/or unguided electromagnetic energy”. This can include phone calls, texts, emails, websites, etc.
- One penalty unit = $275
- Sections 3 and 4 of the amendment specifically excludes it to be an offence under these sections if the use of the carriage service is to engage in public discussion or debate around euthanasia or suicide, or advocate reform of the law relating to euthanasia or suicide IF they do not intend to use the material, or for the material to be used by another person, to counsel or incite committing or attempting to commit suicide.
- Whilst VAD practitioners should never “incite” VAD or suicide, our discussions could be seen to be interpreted as providing counsel.
Criminal Code Act (1995), section 474.29A(1):
In order to be found guilty of an offence under this section, an individual must:
- Use a carriage service to access material, cause material to be transmitted, transmit material, make material available, or publish or otherwise distribute material to a person; AND
- That material directly or indirectly counsels or incites committing or attempting to commit suicide; AND
- The individual intends to use the material to counsel or incite committing or attempting to commit suicide, or intends that the material be used by another person to counsel or incite committing or attempting to commit suicide.
Importantly, all three of the above points must be true in order to constitute an offence. The penalty if found guilty under this section is 1,000 penalty units ($275,000).
Criminal Code Act (1995), section 474.29A(2):
In order to be found guilty of an offence under this section, an individual must:
- Use a carriage service to access material, cause material to be transmitted, transmit material, make material available, or publish or otherwise distribute material to a person; AND
- That material promotes or provides instruction a particular method of committing suicide, AND
- The person intends to use the material, or intends the material to be used, or intends another person to use the materal to
- promote that method of committing suicide,
- provide instruction on that method of committing suicide, or
- commit suicide
Importantly, all three of the above points must be true in order to constitute an offence. The penalty if found guilty under this section is also 1,000 penalty units ($275,000).
Criminal Code Act (1995), section 474.29B:
In order to be found guilty of an offence under this section, an individual must:
- Have possession or control of materia, produces, supplies, obtains material
- That material directly or indirectly counsels or incites committing or attempting to commit suicide, or promotes or provides instruction on a particular method of committing suicide, AND
- The person intends that the material be used by that person or another person to commit an offence against section 474.29A.
Importantly, all three of the above points must be true in order to constitute an offence. The penalty if found guilty under this section is also 1,000 penalty units ($275,000).
What does this all mean?
- The use of a carriage service (phone, videoconference, text, email, other) poses a risk to conducting VAD assessments via Telehealth.
- There is some evidence from overseas that quality of care can be achieved with telemedicine (Dion, Wiebe, and Kelly, 2019).
- There is a growing argument for allowing the use of Telemedicine to provide equitable access to VAD in Australia, particularly in some of the geographically-dispersed states such as Western Australia and Queensland, and particularly in the context of patients who are by definition within the last six months of their lives and often too unwell to travel comfortably for assessments and who may not be in an area where home visits can be conducted.
- Currently, undertaking a consultation via telehealth without transmitting material to the patient with regards to VAD, whilst still eliciting information to determine their eligibility to access VAD is possible. This form of consultation does not lend itself to good patient care, however.
What is VADANZ’s position on VAD assessments via Telehealth?
- VADANZ acknowledges that there are distinct advantages in conducting VAD assessments in person, and this is remains the preferred modality for at least one, if not both of the VAD eligibility assessments required.
- VADANZ recognises the benefits that the use of Telehealth in VAD assessments may provide patients in facilitating their right to access health care that is relevant to their needs in accordance with the first point of the Australian Charter for Healthcare Rights.
- VADANZ advocates for an amendment of the Criminal Code Act to explicitly exclude the use of carriage services in the conduct of state-sanctioned assisted dying processes.