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Five reasons why telehealth must be part of VAD provision

The Federal Court has ruled that, in the eyes of the law, voluntary assisted dying (VAD) and suicide are one and the same. This means doctors who discuss VAD with a patient via telephone, email or telehealth are at risk of prosecution and a $313,000 fine.

The Court’s ruling is a significant barrier for anyone attempting to navigate the VAD process, but especially terminally ill people in rural and remote communities. Dr Linda Swan, Go Gentle Australia’s CEO, said the decision will only exacerbate the suffering of people who cannot travel to in-person consultations.

"Dying people everywhere will be negatively affected, but especially those in rural, regional and remote areas who rely on telehealth for the bulk of their healthcare needs.”

Here are five reasons why the federal parliament must act to allow telecommunications and telehealth to be used for VAD. 

VAD is not suicide

Two sections of the Commonwealth Criminal Code prohibit the use of a carriage service (electronic communication) to incite or encourage suicide. But there is no logical reason why this should apply to VAD. Despite what the Federal Court has decided, VAD is not suicide. Health professionals know it, suicide prevention organisations know it and so does the general public. Unlike suicide, VAD is not a choice between life and death, but a choice about how we die when death is inevitable. Also, unlike suicide, VAD is planned with the support of health professionals and the health system.

Five state VAD laws explicitly state that VAD is not suicide and VAD is not treated as suicide in coronial data nor suicide statistics. The cause of death on a VAD patient’s death certificate is listed as the underlying disease, illness or medical condition, not suicide.

The prohibition causes harm

Telehealth restrictions can have damaging effects on patients and their families - as well as health professionals. They can cause unnecessary suffering and delays for terminally ill people who wish to seek VAD, hinder access for people living outside major cities, and increase complexity, stress and legal uncertainty for health professionals.

The 2022 case of 82-year-old Alan Clark shows the extent of the harm. Alan, who had the rare neurological condition progressive supranuclear palsy, or PSP, lived in Warragul in regional Victoria.

Alan was approved for VAD, but died a day before he was due to receive the VAD medication following long delays - caused in part by the ban on telehealth. His wife Zenda told ABC News,

By the time all the approvals went through, it was too late. It was just the most horrific end. Everything he dreaded happened.”

Doctors want the laws reformed

Telehealth is used every day to discuss sensitive areas of medical practice that have life and death consequences. These include psychiatry, sexual medicine, fertility counselling, termination of pregnancy, and palliative care. It is inconsistent to single out VAD and it is unjust to discriminate against dying people. The Doctors Reform Society has publicly called for the Criminal Code to be amended to reflect this.

The Australian Medical Association and its NSW chapter have also urged change. AMA federal president Dr Steve Robson said where VAD was legal "doctors who participate must be protected and not liable to prosecution". 

NSW AMA president Dr Michael Bonning said the prohibition ran counter to good medical practice:

The decision regarding whether telehealth is an appropriate form of consultation is a matter for the treating doctor and patient to discuss.” 

It's not a safeguard

The prohibition on the use of telephone, email and video for VAD discussions does not make VAD safer. VAD laws in Australia are already some of the most restrictive in the world, with more than 60 safeguards embedded in each state’s legislation. Safeguards include strict eligibility criteria, lengthy request and assessment processes, medication monitoring, a permit process (in some states), practitioner vetting, offences for non-compliance, and regular case reviews. It is these safeguards, not telehealth restrictions, that ensure VAD is accessed only by those who are eligible.

It has wide political support

The issue of telehealth reform is backed by every single state and territory Attorney General. It has been on the agenda of the Standing Council of Attorneys-General since Queensland placed it there in February 2023. It has the backing of many other senior ministers, including health ministers, and other MPs. The architect of Tasmania’s VAD law, Independent MP Mike Gaffney, called the telehealth restriction outdated and cruel, “Why would you expect someone who was in pain and suffering to board a plane or travel by car to the doctor’s?”

Go Gentle’s Dr Swan summed it up best:

It's time the Criminal Code was changed to recognise that VAD is not suicide. Eligible dying people should be able to access the care they want and need. And healthcare professionals should have the protection of the law when providing their patients with a legal and compassionate end-of-life choice."

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