Allow Telehealth Consultations for Voluntary Assisted Dying

Author: Christopher Noonan | Publish date: 07/09/2024

Problem Identification: 

In Australia, telehealth consultations for Voluntary Assisted Dying (VAD) are illegal . 

Section 474.29A of the Commonwealth Criminal Code 1995 (Cth) prohibits the use of a ‘carriage service’ to counsel or incite suicide, or to provide instructions on particular methods for committing suicide.

This means that patients in regional areas, or those who are immobile, face significant barriers to accessing VAD services. This could delay or prevent access to the necessary consultations and support, especially for those patients living in regional areas. 

Context: 

VAD allows terminally ill patients to have a medical professional assist them in ending their lives. VAD is currently legal in all Australian states, and will likely be available in both territories sometime soon. In order to receive VAD, patients must make multiple requests and be assessed by various medical professionals. 

Section 474.29A of the Commonwealth Criminal Code 1995 prohibits the use of a ‘carriage service’ to counsel or incite suicide, or to provide instructions on particular methods for suicide. Carriage services include electronic communication methods like phones, the internet, and video-calling services.  These prohibitions were introduced in 2005,12 years before VAD was legalised, to combat suicide chatrooms. However, this provision makes it illegal for patients to use telehealth for VAD consultations. VAD consultations are therefore legally required to occur in person. 

There are limited specialists who are able and willing to conduct VAD consultations, which means regional areas often lack the medical professionals required for VAD. As a result, patients in regional areas are often required to travel significant distances to receive VAD, especially in states with vast geographies. 

In order to be eligible for VAD, patients must be assessed as being within 6-12 months of death. Voluntary Assisted Dying Australia and New Zealand report that VAD patients are often immobile, or in extreme pain. Go Gentle Australia argues that, for these patients, the requirement to travel to receive VAD constitutes a significant barrier to access. 

For these reasons, organisations like Voluntary Assisted Dying Australia and New Zealand, Go Gentle Australia, Dying with Dignity Victoria, every Voluntary Assisted Dying Review Board in Australia, and experts like Ben White, Lindy Willmott, Casey Haining, Eliana Close, and Katrine Del Wallar have recommended amending the Commonwealth Criminal Code so that it no longer prohibits telehealth consultations for VAD. 

There is international precedent for allowing telehealth consultations to access VAD. New Zealand, the USA, and Canada all make use of telehealth consultations for VAD. 

Solution Identification: 

Amend section 474.29A of the Commonwealth Criminal Code 1995 (Cth) to specify that Section 474.29A does not consider actions, that are carried out in line with VAD laws, to be suicide.

This could remove significant barriers for patients looking to access VAD. 

Advice:

The Attorney General should seek to amend the Commonwealth Criminal Code 1995 (Cth) to legalise telehealth consultations for VAD at the next opportunity. 

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Public Support: 

1. Katherine Waller 

2. Ben White 

3. Lindy Willmott

4. Casey Haining

5. Eliana Close

6. Dying with Dignity Victoria

7. Go Gentle Australia 

8. Voluntary Assisted Dying Australia and New Zealand

Where to go to learn more: 

1. White, B., Willmott, L., Haining, C., Del Villar, K., & Close, E. (2023). Commonwealth telehealth ban is an unfair barrier to seeking voluntary assisted dying.https://eprints.qut.edu.au/244543/1/Commonwealth_telehealth_ban_is_unfair_barrier_to_VAD_Research_briefing.pdf 

2. Go Gentle Australia, Joint Statement: Electronic communications must be available for voluntary assisted dying (Aug 2024). https://assets.nationbuilder.com/gogentleaustralia/pages/3036/attachments/original/1722389765/Joint_statement_Electronic_communications_and_VAD.pdf?1722389765 

3. Davey, M., Kolovos, B., & editor, M. D. M. (2023, November 30). Telehealth consultations for voluntary assisted dying are illegal under Australian law, court finds. The Guardian. https://www.theguardian.com/australia-news/2023/nov/30/voluntary-assisted-dying-bill-australia-telehealth-illegal 

Human Perspective:

Tom’s Story: Tom was a 79-year-old with lung cancer in far-north Queensland who requested access to Voluntary Assisted Dying. This involved being assessed by two separate doctors to determine Tom’s eligibility. Tom was too ill to travel, and telehealth consultations were prohibited. The first doctor therefore had to travel 3000km to assess Tom, followed by a second doctor a week later who traveled 2,500km. The first doctor then made the 3000km journey once more to witness Tom’s final request for VAD. The teleheath ban means that prescriptions for the life-ending medication have to be hand-delivered, and so the pharmacy only received Tom’s prescription after his final request was witnessed. Tom died before his prescription could be delivered. Instead of the autonomy and dignity that Tom could have been afforded through VAD, Tom spent his final days uncertain and in pain. This could have been avoided if telehealth was available to expedite his application. 

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a.

Support 

If your organisation would like to add your support to this paper, or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Assisted dying assessment processes – Health New Zealand | Te Whatu Ora. (2018). Govt.nz. https://www.tewhatuora.govt.nz/health-services-and-programmes/assisted-dying-service/assisted-dying-information-for-the-public/assisted-dying-assessment-processes/

Australia’s Suice Prevention Leaders. (Nov 2023). Voluntary Assisted Dying Should Not Be Described as Suicice. In www.assets.nationbuilder.com. Go Gentle Australia. https://assets.nationbuilder.com/gogentleaustralia/pages/2982/attachments/original/1702513241/Joint_statement.pdf?1702513241  https://assets.nationbuilder.com/gogentleaustralia/pages/2982/attachments/original/1702513241/Joint_statement.pdf?1702513241.

Close, E., Del Villar, K., Willmott, L., & White, B. P. (2021). Voluntary assisted dying and telehealth: Commonwealth carriage service laws are putting clinicians at risk. Medical Journal of Australia. https://doi.org/10.5694/mja2.51287

Commonwealth Criminal Code, 1995. 

Davey, M., Kolovos, B., & editor, M. D. M. (2023, November 30). Telehealth consultations for voluntary assisted dying are illegal under Australian law, court finds. The Guardian. https://www.theguardian.com/australia-news/2023/nov/30/voluntary-assisted-dying-bill-australia-telehealth-illegal

Del Villar, K., White, B. P., Close, E., & Willmott, L. (2022). Voluntary Assisted Dying by Practitioner Administration Is Not Suicide: A Way Past the Commonwealth Criminal Code? Journal of Law and Medicine, 29(1), 129–141. https://eprints.qut.edu.au/229735/

Dion, S., Wiebe, E., & Kelly, M. (2019). Quality of care with telemedicine for medical assistance in dying eligibility assessments: a mixed-methods study. CMAJ Open, 7(4), E721–E729. https://doi.org/10.9778/cmajo.20190111

Directorate, J. and C. S. (2023, February 7). Voluntary assisted dying laws in the ACT. Www.justice.act.gov.au. https://www.justice.act.gov.au/justice-programs-and-initiatives/voluntary-assisted-dying-laws-in-the-act

HealthLeaders. (2022). Vermont Amends Assisted Suicide Law to Include Telemedicine. Healthleadersmedia.com. https://www.healthleadersmedia.com/telehealth/vermont-amends-assisted-suicide-law-include-telemedicine

K, W., K, D. V., L, W., & BP, W. (2023). Voluntary assisted dying in Australia: a comparative and critical analysis of state laws. UNSW Law Journal , 46(4).

May, N., & Luca Ittimani. (2024, August 11). Too complex, too late: the guardrails acting as roadblocks to voluntary assisted dying across Australia. The Guardian; The Guardian. https://www.theguardian.com/australia-news/article/2024/aug/12/too-complex-too-late-the-guardrails-acting-as-roadblocks-to-voluntary-assisted-dying-across-australia

Payne, H. (2024, February 13). New bill to legalise telehealth VAD - Medical Republic. Medical Republic. https://www.medicalrepublic.com.au/new-bill-to-legalise-telehealth-vad/105082

Submission to the Centre for Evaluation and Research Evidence at the Victorian Department of Health. (2024). Dying with Dignity Victoria . https://www.dwdv.org.au/wp-content/uploads/2024/02/DWDV-submission-to-Victorian-VAD-5-Year-Review.pdf 

Telehealth continues to be illegal for terminally ill people seeking Voluntary Assisted Dying – Dying With Dignity Victoria. (2023, November 30). Dwdv.org.au. https://www.dwdv.org.au/telehealth-continues-to-be-illegal-for-terminally-ill-people-seeking-voluntary-assisted-dying/

Vermont Ethics Network (n. d.). Medical Aid in Dying, Act 39: Patient Choice and Control at the End of Life. www.vtethicsnetwork.org https://vtethicsnetwork.org/palliative-and-end-of-life-care/medical-aid-in-dying-act-39#:~:text=In%20May%20of%202023%2C%20Vermont,in%20which%20they%20legally%20reside.  

Voluntary Assisted Dying Australia and New Zealand. (2024). Submission to Review of the operation of the Voluntary Assisted Dying Act 2017 (Victoria). https://www.vadanz.com.au/content/uploads/VIC-VAD-Review-VADANZ-submission.pdf

Voluntary assisted dying (VAD) in the Northern Territory | Have Your Say Northern Territory. (n.d.). Haveyoursay.nt.gov.au. https://haveyoursay.nt.gov.au/vad 

Voluntary Assisted Dying Review Board. (2023). Annual Report July 2022 to June 2023. In www.safercare.voc.gov.au. Safer Care Victoria. https://www.safercare.vic.gov.au/sites/default/files/2023-08/VADRB%20Annual%20Report%202022-23.pdf 

White, B., Willmott, L., Haining, C., Del Villar, K., & Close, E. (2023). Commonwealth telehealth ban is an unfair barrier to seeking voluntary assisted dying. https://eprints.qut.edu.au/244543/1/Commonwealth_telehealth_ban_is_unfair_barrier_to_VAD_Research_briefing.pdf