A Melbourne GP is taking legal action against the federal Attorney-General to fight what he calls an "extraordinarily prohibitive" law that prevents doctors from communicating via modern technology with terminally ill patients about assisted dying.
Dying with Dignity Victoria board member Nick Carr said he had pursued legal action in the Federal Court to clarify the definition of suicide in the Commonwealth Criminal Code 1995.
Under the code, it is illegal for a person to discuss suicide through a carriage service, which includes phones, text messages, emails and telehealth services.
Dr Carr said he filed the affidavit after federal Attorney-General Mark Dreyfus did not respond to a letter warning legal action would be taken if the code was not clarified.
He also said former Attorney-General Michaelia Cash wrote to him in February saying she would not change the code.
Big fines for breaking the law
To be approved for Victoria's assisted dying scheme, two doctors need to verify a patient has less than six months to live for a physical illness and 12 months for a neurological condition.
But breaking the communication laws can result in fines of up to $222,000 for individuals or $1,110,000 for businesses.
Dr Carr, who was one of the first GPs trained in Victoria to provide voluntary assisted dying support, said current laws were "extraordinarily prohibitive" for people living with disability and in regional or rural areas.
"If it changes, what it means is that it will make it much easier for patients to be able to access voluntary assisted dying — and crucially it removes doubt for practitioners," he said.
"At the moment if we make a single phone call, text message or email to a patient, there is doubt about whether or not that could be crossing a legal boundary, and we could be at risk of prosecution.
"We desperately need that to be clarified so that we can make those calls, emails and contacts with patients, which is an integral part of this process."
Lobbying for two years
Dr Carr said he had been lobbying current and previous Victorian state and federal attorneys-general for nearly two years about clarifying the law.
"All have either passed the buck or said they have no intention of changing the Commonwealth Criminal Code Act," he said.
"And having not had response from the new Attorney-General Mark Dreyfus, we felt that there was no choice other than to go down the legal path.
"Even if the court does decide that assisted dying services are restricted by the criminal code, medical practitioners will at least then have necessary clarity … and the issue of whether there should be any restriction will be squarely a legislative issue."
Dr Carr said he would argue assisted dying was not suicide, which is a widely held consensus in the medical community.
"Suicide is usually done in private, and it's not supported by family or friends who are devastated when it happens," he said.
"Voluntary assisted dying is about giving patients who are already dying a choice about how to die."
An Attorney-General spokesperson told the ABC he was not able to comment while the matter was before the courts.
Doctors are 'too cautious'
Victorian crossbench MP Fiona Patten, who was central to Victoria's voluntary assisted dying legislation in 2019, said she did not believe legal action needed to be taken.
She referred to advice from barristers Robert Richter QC and William Stark in 2020, who concluded it was "extremely unlikely" a doctor would face criminal charges under the code.
"It was an absolute unintended consequence of the legislation, but I think the doctors are being too cautious," she said.
Ms Patten added, however, that the law had not yet been tested in court.
While she said the Victorian government would look at the state legislation "in the next year or two" when the voluntary assisted dying program is scheduled for review, the federal government could "easily clarify it".
"Given every state in Australia has legislated assisted dying, that would be a practical solution," she said.
A Victorian government spokesperson said it had made "numerous requests to the former federal government to make changes to the code".
"Working with other jurisdictions, we are continuing this advocacy and look forward to working with the new Commonwealth government on this issue," the spokesperson said.
Western Australia implemented its voluntary assisted dying laws in a way that allowed telehealth consultations, according to Dying With Dignity WA.
It is understood voluntary assisted dying will be discussed in a meeting between the state and federal attorneys-general next week.
