Doctor misdiagnoses legality of assisted dying

A suspended doctor claims people who aid regulated medical suicides in Victoria are committing a jailable offence, despite the state’s voluntary assisted dying laws.

This is false. Victoria’s voluntary assisted dying laws specifically state health professionals and other people who aid another person’s suicide “in good faith” are protected from criminal liability.

Mark Hobart, a former Melbourne GP suspended from practice in 2021 after allegedly giving out fake COVID-19 vaccine exemption certificates, made the claim during a Facebook video discussion.

“Well did you know that this euthanasia, they call it in Victoria voluntary assisted dying, but basically it’s assisted suicide,” Dr Hobart says (video mark 26min 05sec).

“The doctor gives a bottle of poison to the patient. They keep it beside their bed and when they feel like killing themselves, they drink the bottle of poison.

“Now that’s in the Crimes Act in Victoria, because I looked this up just the other day, to aid or abet suicide is a penalty of five years’ imprisonment.

“So voluntary assisted dying, or suicide or whatever you like to call it, is illegal under the Crimes Act in Victoria.”

AAP FactCheck contacted Dr Hobart to ask which section of the Crimes Act he believed applied to assisted dying laws, but did not receive a response.

Victoria’s Voluntary Assisted Dying Act 2017 allows people suffering a serious and incurable condition to access a self-administered lethal dose of medication in certain circumstances.

It is true section 6B of Victoria’s Crimes Act contains provisions for a person to be jailed for up to five years for aiding or abetting suicide.

However, Ben White, a professor of end-of-life law at Queensland University of Technology, told AAP FactCheck that Victoria’s voluntary assisted dying laws included legal exemptions for those who assist another person’s death “in good faith” and in line with the act.

“Assisting a suicide is a criminal offence in Victoria, but there are specific provisions in the Voluntary Assisted Dying Act that make clear that such an offence will not apply to actions a person takes that are in accordance with the Voluntary Assisted Dying Act,” Professor White said.

“Hence, it would not be correct to say that regulated voluntary assisted dying in accordance with that act is a criminal offence.”

Prof White said the exemptions were laid out in sections 79 and 80 of the act.

Section 79 says a person “who in good faith” and “in accordance with this act” does something that would otherwise constitute an offence under any other law “does not commit the offence”.

Section 80 says a registered health practitioner who acts “in good faith and without negligence” in accordance with assisted dying laws is not guilty of an offence or liable for professional misconduct.

A Victorian government spokesman also confirmed the act included protections from liability for those who assist or facilitate assisted dying.

“The Voluntary Assisted Dying Act includes many steps and safeguards to ensure that all who take part in the process do so voluntarily,” the spokesman told AAP FactCheck.

At the time of writing, it remains a Commonwealth offence to use a “carriage service” – such as a phone, videoconference or email – to “counsel or incite committing or attempting to commit suicide”.

State governments want the federal government to amend the Commonwealth Criminal Code to ensure doctors who consult patients about euthanasia over telehealth aren’t at risk of prosecution.

Independent federal MP Kate Chaney introduced a private member’s bill in February 2024 that would exempt lawful voluntary assisted dying from the relevant federal laws.

However, Prime Minister Anthony Albanese does not believe doctors and patients should discuss the topic via telehealth.

“My personal opinion is that these issues are serious and that telehealth should not be used because I’d be concerned about some of the implications there,” he told Melbourne radio station 3AW in December 2023.

“I support voluntary assisted dying, but with very strict conditions to make sure that appropriate protections are in place.”

At the time of writing, voluntary assisted dying laws operate in all six Australian states.

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