A nurse practitioner may lawfully administer a voluntary assisted dying substance in several Australian jurisdictions. According to the Australian College of Nursing, that same nurse cannot safely discuss the care with the patient over the phone. The College has now written to the Prime Minister asking him to fix it.
The rule nurses say is getting in the way was never written with end-of-life care in mind. It dates from the early days of the internet. Sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) were created in 2005 to deal with the promotion of suicide online, on websites and in chatrooms. At the time no Australian state or territory had a VAD scheme.
A 2023 Federal Court decision changed how the provisions apply. According to the College, they now capture VAD care that is lawful under state and territory law, so health practitioners face criminal prosecution and fines exceeding $360,000 for using a carriage service, such as a phone or email, in the course of that care.
The College’s chief executive, Adjunct Professor Kathryn Zeitz, calls the situation “an inadvertent drafting artefact, rather than an expression of policy intent”. Parliament, she says, cannot have meant the provisions to reach a clinical process established twelve years later.
Her description of the practical effect is specific. A nurse practitioner can administer a VAD substance but cannot safely talk about it by telephone. A care navigator cannot confidently answer an email from a family in a remote community. Professor Jason Mills, who chairs the College’s End-of-Life Care Faculty, says nurses need to communicate with “calm, compassion, and confidence” at the end of life.
The College stresses it takes no position on whether anyone should choose VAD. Its concern, it says, is for people it describes as enduring needless suffering, for their families and for nurses. It also says the change it wants would leave existing safeguards intact: state and territory schemes already require multiple independent assessments, witnessed declarations, repeated confirmation of capacity and voluntariness, and mandatory reporting to review boards.
Anthony Albanese says he supports VAD but opposes telehealth access, and has said he is concerned that telehealth conversations would “undermine” it. Labor’s national conference backed reform in July despite his opposition. When the government stopped debate on independent MP Kate Chaney’s bill in the House, Health Minister Mark Butler told parliament the safeguards around telehealth weren’t adequate.
The College’s examples are a nurse’s phone call and an emailed enquiry from a remote family. Some states already allow telehealth within their VAD schemes, but federal law overrides those provisions, according to Kate Chaney’s office.
The pressure is not coming from nurses alone. The Australian Medical Association has also called for the ban to be scrapped. Greens Senator Sarah Hanson-Young has introduced a similar bill in the Senate, where independents and minor parties have more power to bring a bill to a vote. The Prime Minister has said the final decision is a matter for cabinet.
The College’s letter went to Albanese, with copies to Attorney-General Michelle Rowland and Health Minister Mark Butler. Those are the three people with the most say over whether the law changes.
