The law preventing telehealth in voluntary assisted dying is in the spotlight again after the Labor national conference resolved to repeal it , via a conscience vote .
Authors
- Ben White
Distinguished Professor, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of Technology
- Eliana Close
Senior Lecturer, Australian Centre for Health Law Research, Faculty of Business and Law, Queensland University of Technology
- Katrine Del Villar
Senior Lecturer in Law, Australian Centre for Health Law Research, Queensland University of Technology
The Commonwealth Criminal Code criminalises promoting, inciting or providing instructions on “suicide” over a “carriage service”. This law, passed in 2005, was originally aimed at pro-suicide websites and internet chat rooms.
But in 2023, the Federal Court concluded the code applied to the new state voluntary assisted dying laws.
While telehealth is usually an integral part of modern health care, health practitioners risk prosecution for using it in voluntary assisted dying.
To address this risk, some aspects of the voluntary assisted dying process, such as eligibility assessments, are not discussed by phone or videoconference in some states.
But “carriage service” also includes internet, email and fax, so the ban is very broad . It limits some emails between health-care practitioners and patients.
In some jurisdictions, voluntary assisted dying prescriptions are hand delivered or posted, not emailed or faxed.
The law preventing telehealth in voluntary assisted dying is problematic and should be scrapped.
How does voluntary assisted dying work?
All Australian jurisdictions, except for the Northern Territory, have voluntary assisted dying laws . The NT appears set to follow later this year.
These laws allow an adult who is suffering from a terminal condition and who has capacity to make their own decision to seek assistance to die.
They must make three separate requests and be independently assessed by at least two specially trained doctors (one can be a nurse practitioner in the Australian Capital Territory).
A person can either take the medication themselves or have a health practitioner administer it to them.
The process is highly regulated . It includes assessing whether someone has the capacity to make the decision and is doing so voluntarily, and ongoing reporting to voluntary assisted dying review boards.
When implementing voluntary assisted dying, each jurisdiction produced guidance on the Commonwealth Criminal Code for health practitioners. Some, such as Victoria , took a conservative approach and prohibited all conversations about voluntary assisted dying occurring electronically.
Others, such as Queensland , were more nuanced. It allowed telehealth for eligibility assessments, while requiring discussions about prescribing and administering medication to occur in person.
How does the prohibition impact patients?
Our research across three Australian states with all key parties – patients, families, health practitioners, health bodies and regulators – shows the code is a major barrier to accessing voluntary assisted dying.
State attorneys-general and voluntary assisted dying review boards have repeatedly called for the code’s repeal. So has the Australian Medical Association .
Without telehealth, many terminally ill patients in rural and regional areas must travel long distances for voluntary assisted dying consultations. This often causes pain and distress.
But it isn’t just an issue for regional Australia. For some terminally ill patients, any travel can be painful and difficult, requiring extensive logistical planning.
One family member in our research described their loved one “in tears and distressed and in hysterics” after having to travel to an assessment.
Doctors must also travel significant distances to consult with patients. In rural and remote Western Australia , doctors can spend two days travelling to a single patient appointment which could happen over telehealth.
Travel delays mean sometimes patients miss out on voluntary assisted dying.
What happens elsewhere?
Telehealth is commonly used in other countries that allow voluntary assisted dying. This benefits both patients and clinicians.
Some other jurisdictions such as the United States and Canada have regulations or clinical guidelines that frame how telehealth may be used in voluntary assisted dying.
But Australia is the only country that prohibits it.
What are the arguments for keeping the prohibition on telehealth?
Some arguments for maintaining the prohibition on telehealth in voluntary assisted dying are based on opposition to voluntary assisted dying itself.
One argument is that allowing telehealth will remove a barrier, so more people will choose this option. This may be so, but keeping the ban discriminates against people who live in regional and rural areas or are too sick to travel.
Other arguments are based on concerns about assessing capacity and detecting potential coercion via telehealth, important considerations that must be paid careful attention.
However, other jurisdictions effectively and safely use telehealth for voluntary assisted dying. Telehealth is also already used in Australia in a range of sensitive settings including palliative care , mental health and abortion services .
How might processes change if the ban was lifted?
Repealing the federal ban would enable health practitioners to use telehealth for voluntary assisted dying when clinically appropriate.
This might be when face-to-face appointments are not feasible because a patient is too unwell to travel.
It could also include the ability to email prescriptions, which is standard clinical practice.
The use of telehealth would still be regulated at the state and territory level, through clinical guidelines and professional standards, as in other parts of medicine.
Where there are concerns about coercion or capacity, consultations could still occur face-to-face.
Will the telehealth ban be repealed?
The legislative fix is simple. Just one sentence is needed:
In this Subdivision, “suicide” does not include voluntary assisted dying carried out lawfully pursuant to a law of a State or Territory.
More complex will be how federal members of parliament exercise what is traditionally a conscience vote.
Any reform will likely occur through a private member’s bill. Independent federal MP Kate Chaney may reintroduce her bill or the Greens may do so.
For MPs deciding their conscience vote, debates about whether voluntary assisted dying should be legal have already happened. The question now is how this legal end-of-life choice is best regulated.
There is a large body of evidence showing this ban is causing harm. Repealing it will allow states and territories to regulate the safe use of telehealth within voluntary assisted dying through their existing guidelines and regulation.
