Key Facts:
- The Australian College of Nursing (ACN) has written to Prime Minister Anthony Albanese calling for amendments to the Commonwealth Criminal Code, which currently puts registered health practitioners at risk of criminal prosecution and fines exceeding $360,000 for delivering lawful voluntary assisted dying (VAD) care via telehealth.
- Sections 474.29A and 474.29B of the Criminal Code Act 1995, originally enacted in 2005 to address the promotion of suicide online, were never intended to capture VAD care, as no Australian jurisdiction had VAD legislation at that time.
- The current legal contradiction means that whilst nurses may lawfully administer VAD substances in several jurisdictions, they cannot safely discuss that same care with patients by telephone or respond to emailed enquiries from remote families.
- ACN is particularly concerned about the impact on patients in rural and remote areas, who already face greater barriers to specialist care, and argues that federal law should not further restrict access to lawful end-of-life care.
- The ACN stresses that the proposed amendment would not remove any existing safeguards within state and territory VAD schemes, which already require multiple independent assessments, formal witnessed declarations, and mandatory reporting to review boards.
The Australian College of Nursing (ACN) has written to Prime Minister Anthony Albanese calling for the Commonwealth Criminal Code to be amended so that registered health practitioners are no longer at risk of criminal prosecution for delivering lawful end-of-life care by telehealth.
At issue are sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth), enacted in 2005 to address the promotion of suicide on websites and in chatrooms. Following a 2023 Federal Court decision, those provisions now capture voluntary assisted dying (VAD) care that is lawful under state and territory law - meaning health practitioners risk criminal sanction and fines in excess of $360,000 for using a carriage service in the course of that care.
"This represents an inadvertent drafting artefact, rather than an expression of policy intent," Adjunct Professor Zeitz said. "No Australian jurisdiction had a voluntary assisted dying law in 2005. Parliament cannot have intended these provisions to reach a clinical process established twelve years in the future."
"The result is a legal contradiction that nurses are left to navigate. A nurse practitioner may lawfully administer a voluntary assisted dying substance in several jurisdictions, but cannot safely discuss that same lawful care with the patient by telephone. A care navigator cannot confidently answer an emailed question from a family in a remote community."
"Clarity and continuity in communication is vital to nursing care at the end of life", said Chair of the ACN End-of-Life Care Faculty, Professor Jason Mills. "Models of care such as VAD are no exception, where the need for nurses to communicate with calm, compassion, and confidence is paramount."
ACN's letter emphasises that the College takes no position on whether any individual should choose voluntary assisted dying, describing that as a matter for the person, their family, and their clinicians within the frameworks their parliament has enacted.
"ACN's concerns are for people enduring needless suffering at the end of their lives who wish to access VAD, their families, and for nurses," Adjunct Professor Zeitz said. "Nurses should not face federal criminal liability for care their own state or territory authorises."
"It is people at the end of their lives who wish to access VAD who pay the price for this inconsistency. It means agonising trips for people too unwell to travel. Australians in the bush already wait longer and travel further for almost every form of specialist care - Federal law should not be making that worse."
The change ACN is seeking would leave every existing safeguard intact. State and territory schemes require multiple independent assessments, formal witnessed declarations, repeated confirmation of decision-making capacity and voluntariness, and mandatory reporting to review boards.
"Nursing is consistently the most trusted profession in Australia," Adjunct Professor Zeitz said. "Advocating for the best outcomes for patients is core to nursing practice. Nurses have been clear that Australians who wish to access VAD must be able to access it by telehealth, and we ask that their experience inform the Government's position."
The letter, signed by ACN Chief Executive Officer Adjunct Professor Dr Kathryn Zeitz FACN, has also been copied to Attorney-General Michelle Rowland and Minister for Health and Ageing Mark Butler.
