The Commonwealth Criminal Code: Will it restrict access to voluntary assisted dying in South Australia and is there a way forward? (V)
Julia Matteo1, Michaela Okninski1, The University of Adelaide 1The University of Adelaide South Australia , Australia
Abstract
South Australia’s Voluntary Assisted Dying Act (‘VAD Act’) 2021 commenced operation on 31 January 2023. However, one unresolved issue that may impede implementation of the law is the existence of ss 474.29A and 474.29B of the Commonwealth Criminal Code Act (‘Criminal Code’), which prohibits the use of a ‘carriage service’ to promote or provide instructions about suicide. Despite attempts to clarify whether voluntary assisted dying (VAD) meets the legal definition of suicide for the purposes of the Criminal Code, medical practitioners may still face criminal liability for breaching the Criminal Code prohibition. If this is the case, this may significantly restrict access to VAD in South Australia for patients (especially rural patients) who meet the strict eligibility criteria, thus, practical solutions are required.
This paper explores practical solutions to overcome this issue, including whether the Commonwealth Director of Public Prosecutions could issue prosecutorial charging guidelines to specify that medical practitioners or dispensing pharmacists who are acting in compliance with South Australia’s VAD Act will not be prosecuted under ss 474.29A or 474.29B of the Criminal Code. Alternatively, South Australia could follow Western Australia’s lead in introducing a Regional Access Support Scheme (RASS) to fund travel for rural patients to access a practitioner where there is no suitable practitioner based rurally. However, one of the more feasible solutions is to make an amendment to the Criminal Code itself to clarify that any references to suicide under the Criminal Code does not apply to a VAD law of a State or Territory.
Biography
Julia Matteo is a penultimate Law and Health and Medical Sciences (Advanced) student at the University of Adelaide. She was awarded an Adelaide Summer Research Scholarship in 2022, undertaking a 6-week research project about the impact of the Commonwealth’s Criminal Code ‘carriage services’ offences on the implementation of South Australia’s new voluntary assisted dying laws.
Michaela Okninski is a lecturer and ECR at Adelaide Law School, University of Adelaide. Her research interests include voluntary assisted dying and decision making in healthcare.