Tomorrow, Australiaโs Attorneys-General will discuss a Commonwealth law that is making the deaths of some Australians harder, for no defensible reason.
In 2005, it became a crime to use a phone, email or video call to promote material that encourages someone to take their own life.
The law was written twelve years before any Australian parliament legalised voluntary assisted dying. But as VAD became legalised, there was a question of whether it captured VAD. The Federal Court has confirmed it did.
How it translates practically is that while an authorised practitioner can lawfully have a VAD conversation with a patient across a desk, they risk a maximum fine of $330,000 for having the same conversation by telephone or video.
It’s for these reasons – the barrier is a criminal provision, a criminal penalty, and a Federal Court judgment construing it – that this matter sits with first law officers.
The consequences are not hypothetical. The people it punishes are the frailest in the country. Andrew Denton has described powerful, tragic experiences on 7.30 and in his article in The Guardian this week.
And yet, against documented harm, and an emphatic vote at the Labor National Conference to overturn it, this week the public’s been offered a series of speculative reasons for further delay:
That telehealth is inherently risky. That we need strong evidence and rigorous additional safeguards. That telehealth should be permitted only in exceptional circumstances and subject to an even higher threshold. That there are risks of coercion and impersonation. That a review is needed.
Let’s work through these.
๐๐ป๐ต๐ฒ๐ฟ๐ฒ๐ป๐๐น๐ ๐ฟ๐ถ๐๐ธ๐
The Medical Board’s telehealth standards would still bind practitioners, and the AMA has been explicit that the decision should be a matter of clinical judgement, subject to the same regulation and accountability as any other setting.
(The Medical Board’s telehealth standards currently govern remote psychiatric assessment, capacity assessment, Schedule 8 prescribing and medical termination of pregnancy.)
Telehealth would be what it is everywhere else in medicine: what you use when the alternative is no care at all.
๐ง๐ต๐ฒ ๐ป๐ฒ๐ฒ๐ฑ ๐ณ๐ผ๐ฟ ๐๐๐ฟ๐ผ๐ป๐ด ๐ฒ๐๐ถ๐ฑ๐ฒ๐ป๐ฐ๐ฒ
This argument fails on two counts.
First, the provision was enacted in 2005 with no evidence about voluntary assisted dying, because voluntary assisted dying did not exist in Australian law.
Second, an Australian evidence base on telehealth-assisted VAD cannot be generated while telehealth-assisted VAD is prohibited, because generating it is a criminal offence.
Where the evidence does exist is documented, extensive harm being caused by the prohibition on telehealth.
๐ง๐ต๐ฒ ๐ป๐ฒ๐ฒ๐ฑ ๐ณ๐ผ๐ฟ ๐ฟ๐ถ๐ด๐ผ๐ฟ๐ผ๐๐ ๐ฎ๐ฑ๐ฑ๐ถ๐๐ถ๐ผ๐ป๐ฎ๐น ๐๐ฎ๐ณ๐ฒ๐ด๐๐ฎ๐ฟ๐ฑ๐
Allowing telehealth would not remove or weaken a single VAD safeguard: Two independently trained assessors, mandatory training that uniquely in Australian medicine includes coercion detection, three separate requests over set periods, two witnesses who cannot be family or beneficiaries, permit systems, board oversight, and inducement offences in every one of our Acts. So the real question is: what safeguard does telehealth require that an in-person consultation does not?
๐๐ถ๐ด๐ต๐ฒ๐ฟ ๐๐ต๐ฟ๐ฒ๐๐ต๐ผ๐น๐ฑ ๐ถ๐ ๐ฟ๐ฒ๐พ๐๐ถ๐ฟ๐ฒ๐ฑ ๐ณ๐ผ๐ฟ ๐๐ฒ๐น๐ฒ๐ต๐ฒ๐ฎ๐น๐๐ต ๐๐ผ ๐ฏ๐ฒ ๐ฝ๐ฒ๐ฟ๐บ๐ถ๐๐๐ฒ๐ฑ
VAD already has an exceptionally high threshold. Adding another test based solely on whether a patient can physically reach an authorised practitioner would fall hardest on people who are frail, in severe pain, immobile or living far from a participating practitioner.
๐ฃ๐ฎ๐๐ถ๐ฒ๐ป๐๐ ๐ฑ๐ฒ๐๐ฒ๐ฟ๐๐ฒ ๐๐ผ ๐ต๐ฎ๐๐ฒ ๐ฒ๐ป๐ฑ ๐ผ๐ณ ๐น๐ถ๐ณ๐ฒ ๐ฐ๐ผ๐ป๐๐ฒ๐ฟ๐๐ฎ๐๐ถ๐ผ๐ป๐ ๐ณ๐ฎ๐ฐ๐ฒ-๐๐ผ-๐ณ๐ฎ๐ฐ๐ฒ
It’s a furphy to imply the provision is what ensures face-to-face consultations occur about VAD. It has no power to.
Whether telehealth is clinically appropriate should be determined by the authorised practitioner under the relevant VAD and telehealth laws.
When a practitioner cannot use a carriage service, one of three things happens: the patient travels, the authorised practitioner travels, or the conversation does not occur
๐๐, ๐ฑ๐ฒ๐ฒ๐ฝ ๐ณ๐ฎ๐ธ๐ฒ๐, ๐ฐ๐ต๐ฎ๐๐ฏ๐ผ๐๐ ๐ฎ๐ป๐ฑ ๐ถ๐ป๐ฐ๐ถ๐๐ฒ๐บ๐ฒ๐ป๐ ๐ผ๐ณ๐ณ๐ฒ๐ป๐ฐ๐ฒ๐ ๐ฎ๐ฟ๐ฒ ๐ฟ๐ถ๐๐ถ๐ป๐ด – ๐๐ผ ๐๐ฒ๐ฎ๐ธ๐ฒ๐ป๐ถ๐ป๐ด ๐๐ต๐ฒ ๐ฝ๐ฟ๐ผ๐๐ถ๐๐ถ๐ผ๐ป ๐ฐ๐ฟ๐ฒ๐ฎ๐๐ฒ๐ ๐ฟ๐ถ๐๐ธ
What we’re pushing for is not a weakening but an exception for conduct already authorised under a state or territory VAD law, performed by a registered practitioner who has completed mandatory training, holds a statutory permit, and answers to a review board. A chatbot is not a coordinating practitioner under any law. A deepfake cannot manufacture a terminal diagnosis, a complete medical history and compliance with every statutory step.
๐ฅ๐ถ๐๐ธ๐ ๐ผ๐ณ ๐ถ๐บ๐ฝ๐ฒ๐ฟ๐๐ผ๐ป๐ฎ๐๐ถ๐ผ๐ป ๐ฎ๐ป๐ฑ ๐ฐ๐ผ๐ฒ๐ฟ๐ฐ๐ถ๐ผ๐ป
Identity is not established merely by looking at someoneโs face on a screen. Practitioners rely on identification, medical records, documented diagnoses, prior clinical contact, repeated requests and independent assessments.
Nor does a video consultation erase the practitionerโs obligation to assess capacity, voluntariness and possible coercion. VAD practitioners undertake mandatory training that includes these matters. A consultation can also be paused or discontinued whenever identity, privacy or voluntariness cannot be satisfactorily established.
๐ง๐ฒ๐น๐ฒ๐ต๐ฒ๐ฎ๐น๐๐ต ๐ฏ๐ฒ๐ถ๐ป๐ด ๐ฝ๐ฒ๐ฟ๐บ๐ถ๐๐๐ฒ๐ฑ ๐ณ๐ผ๐ฟ ๐ฝ๐ฎ๐น๐น๐ถ๐ฎ๐๐ถ๐๐ฒ ๐ฐ๐ฎ๐ฟ๐ฒ ๐ถ๐ ๐ป๐ผ๐ ๐ฎ๐ป ๐ฎ๐ฟ๐ด๐๐บ๐ฒ๐ป๐ ๐ณ๐ผ๐ฟ ๐ถ๐ ๐๐ผ ๐ฏ๐ฒ ๐๐๐ฒ๐ฑ ๐ณ๐ผ๐ฟ ๐ฉ๐๐
The seriousness of VAD explains why it is governed by extensive, dedicated safeguards. While VAD is different from palliative care, the distinction between VAD and palliative care does not justify forcing gravely ill people to travel when a practitioner considers telehealth safe and appropriate. People eligible for VAD are also already on a trajectory towards death. They must have an advanced condition expected to cause death within the period prescribed by the relevant law.
๐ช๐ฒ ๐ป๐ฒ๐ฒ๐ฑ ๐ฎ ๐ฟ๐ฒ๐๐ถ๐ฒ๐
Another review should not become a device for indefinitely delaying reform while dying people continue to bear the consequences