Protect Our Vulnerable: Say NO to Euthanasia by ‘Telehealth’

Pressure from some states continues regarding amending the above mentioned Commonwealth Act to remove what is argued to be a restriction on access to ‘Voluntary Assisted Dying’ (VAD). It appears that there are certain State Attorneys-General who are determined to continue to press the Commonwealth Attorney-General regarding amending the Criminal Code Act 1995 (Cth).

It is critical that we contact the Commonwealth Attorney-General articulating why he should not entertain the proposed amendment to the Criminal Code Act 1995 (Cth). The key person that can hold the line on the matter is the Commonwealth Attorney-General, the Hon. Mark Dreyfus KC MP.

• VAD laws all require that the two assessing medical practitioners be satisfied that a person has terminal illness with a prognosis of six months or less to live. It is simply not possible to reach the required degree of satisfaction without seeing and examining the patient in person.
• VAD laws require that the person is acting voluntarily and is not subject to coercion. In telehealth consultations, whether by phone, email or video call (Zoom etc.) it is not possible to know whether another person is present and pressuring the person to answer in a particular way. The dangers of elder abuse in this context are real. Only face-to-face discussions with the person, in the absence of any other person who may be pressuring or influencing them unduly, are adequate for identifying red flags for elder abuse.
• VAD laws require that the person have the mental capacity to make a voluntary decision. Assessing mental capacity in the elderly and/or terminally ill via telephone or video call would be unreliable and likely to miss important cues.
• Telehealth has a valid role in routine follow-up of existing patients by a medical practitioner who knows the person well. In the case of consultations for VAD in the majority of cases at least one of the two assessing doctors will never have met the person before.
• In a telehealth consultation patients may find it more difficult to verbalise their underlying thoughts. Patients considering VAD are often experiencing underlying undiagnosed depression. There may be a complex interplay of factors relating to their physical and mental health. These factors, when patients are suffering serious physical illnesses, may be affecting their judgements and their capacity to deal with the issues and decisions facing them. Even the most skilled and experienced medical practitioner may have difficulty in eliciting these matters within the context of a telehealth consultation to which patients would be unaccustomed. The artificial situation of a remote consultation, even if it be via video, will not be one in which such grave issues can be properly resolved for the benefit of patients.
• The claim that telehealth is needed for VAD because of the difficulties of access in regional areas is misplaced. Those in regional areas are likely to have less access to gold standard palliative care. Until we ensure equal access of people in regional areas of Australia to palliative care we should not be facilitating their early deaths through telehealth VAD as a cheaper, easy-delivery alternative.
• In the US and Canada where telehealth for VAD is permitted there have been disturbing examples of a lethal substance being prescribed for a person without the prescribing medical practitioner ever meeting the person face-to-face. In one case an assessment was made by telehealth while the person was eating lunch at a steakhouse.
• In those States where there is no prohibition on a medical practitioner actively suggesting VAD to a patient without the patient ever having asked about it, allowing such a suggestion to be made during a telehealth consultation increases the real risk of vulnerable patients being steered towards VAD.

1. The Commonwealth Criminal Code 1995 s474.29A and s474.29B prohibit the use of a “carriage service” to transmit “suicide related material”. There is a maximum penalty of $275,000 for breaching this prohibition.
2. The Constitution gives the Commonwealth power to make laws “with respect to … postal, telegraphic, telephonic, and other like services”. “Other like services” is understood to include television and the internet – essentially any service which enables communication at a distance.
3. “Suicide related material” means “material that directly or indirectly counsels or incites committing or attempting to commit suicide’ or “material that directly or indirectly promotes or provides instruction on a particular method of committing suicide”.
4. Because Commonwealth law prevails over conflicting State laws, and despite the State voluntary assisted dying (VAD) laws defining actions authorised by those laws – including self-administration of a prescribed lethal substance for the purpose of causing death, NOT to be suicide – this legal pretence does not exempt VAD consultations from potentially breaching the Commonwealth prohibition.
5. When VAD became legal in Victoria, the State Government advised VAD practitioners not to use the telephone, video calls, emails etc. for VAD consultations as this could make them liable under the Commonwealth Criminal Code.
6. The Standing Council of Attorney’s-General meets quarterly to discuss law reform across Australia (and New Zealand). The Queensland Attorney-General requested discussion of the interaction between voluntary assisted dying laws and Commonwealth criminal laws by SCAG. The matter has been discussed at several meetings in the past with no resolution. The next SCAG meeting is scheduled for 22nd September 2023.
7. Only the Commonwealth Parliament can change the Commonwealth Criminal Code. As Commonwealth Attorney-General, Mark Dreyfus would be responsible for any Bill to create an exemption from the “suicide related material” offences for medical consultations under State VAD laws.
8. Correspondence to constituents who have written to their MPs about this issue suggest that “the interaction between the Commonwealth Criminal Code and varying State VAD laws is complex” – implying that this complexity may be delaying any action.
9. The task at hand is persuade Mark Dreyfus not to initiate such a Bill despite pressure from the States.
10. Professionals with experience in palliative care and geriatrics are well-placed to write to Mark Dreyfus pointing out the dangers of using “telehealth” in the context of VAD assessments and consultations.