Murray Hindle VP, Kate Chaney MP, Dr Richard Lugg
DWDWA Annual General Meeting – Guest Speaker Kate Chaney MP
On 16th October 2024, Dying with Dignity WA was privileged to have Kate Chaney, Independent Federal member for Curtin, as its guest speaker at the AGM.
The Telehealth Issue
Kate spoke about the vexed ‘telehealth issue’ – a 2005 amendment to the Criminal Code 1995 (Cth) (the Code) that makes it a crime to counsel or incite suicide using a carriage service. This includes any electronic or audio-visual means of communication such as internet, phone, fax, email, or, most importantly, telehealth, which is the approved method of communication used for medical consultations.
The intention of the relevant section in the Code was to stop pro-suicide websites, internet chatrooms and cyberbullying. It was not directed at voluntary assisted dying (VAD) which was far from being legislated – the first such law being passed in Victoria years later in 2017. Since then, all the other Australian states and the ACT have passed laws that permit VAD subject to stringent eligibility criteria.
There are powerful arguments that differentiate VAD from suicide. In a ruling made in November 2023, however, the Federal Court rejected those arguments and found that VAD is a form of suicide, and accordingly that the Code applies to telehealth consultations about VAD. This ruling has the effect of denying access to a lawful end-of-life choice to many Australians who don’t have ready face to face access to a VAD practitioner. It also puts doctors at risk of prosecution if they use telehealth to discuss VAD with patients.
The WA Voluntary Assisted Dying Act 2019 includes an explicit provision that VAD is not suicide, but federal law overrides state law. The relevant provisions of the Code therefore effectively prohibit the use of telehealth to access VAD in WA and the rest of the country - apart from the Northern Territory, which is now the only jurisdiction without current VAD legislation.
If in due course Parliament changes the Code to provide that VAD is not suicide, then the Federal Court in future will have to interpret VAD laws accordingly.
Medical practitioners attending the Go Gentle Australia conference in 2023 voted the telehealth issue as the biggest barrier to equitable access to VAD in Australia.
Process leading to the Private Member’s Bill
As Kate observed, change is not linear, and it was a confluence of events that led to her tabling a private member’s bill (PMB) in February 2024 to address the telehealth issue. The first such event was a visit from Steve Walker, one of her constituents and the president of DWDWA, and two of his colleagues. They explained why VAD is not suicide, and this presented a simple solution to a simple but vexatious problem.
Kate then listened to arguments on both sides. She corresponded with Michael Petrovski (Chief Pharmacist, SCGH), and Gareth Wahl (Emergency Physician SCGH), both of whom confirmed the seriousness of the issue. She heard “heartbreaking stories of terminally ill people travelling long distances in agony to see a doctor in person, or both doctor and patient travelling for hours to have a consultation halfway in a carpark”. She heard VAD practitioners “being forced to choose between compassionate and convenient care for their patients and the risk of being prosecuted”.
She had many briefings with other interested parties – the Australian Centre for Health Law Research; Linda Swan, CEO of Go Gentle Australia; the Clem Jones Group; and others.
She wrote to the Attorney General and met with him in person to advise him that she was intending to introduce a PMB. He asked if she had the support of the state attorneys-general and within a few days she had the written support of one, and the more cautious verbal support of two others who said that they did not want to get their premiers into trouble with the Prime Minister. This was the first warning sign that politics were intervening.
What is a Private Member’s Bill
In the lower house of parliament, an MP who is not in government can introduce a PMB and it’s up to the government to decide whether that bill gets debated. Because this hardly ever happens it leads people to ask what the point is of doing it at all.
The answer to this is that once the Bill is presented it’s then on the record and publicly accessible as a possible solution to a particular problem. This encourages advocates to support and lobby the government to take action. An example of how effective a PMB can be was Helen Haines’s bill about a federal integrity commission. Although it was not debated it later became the standard that the national anti-corruption commission was based on.
A PMB therefore has a symbolic significance even if it does not become law. If it is subsequently re-introduced by a government MP, it is usually called something different, and the origin is not necessarily acknowledged. But if the outcome is achieved, who gets the credit doesn’t matter. Not if you are Kate Chaney, anyway.
In February 2024 Kate introduced the PMB into Parliament
The substantive provision of Kate’s PMB is an amendment that makes it clear that VAD services are not within the definition of suicide and can therefore be accessed via telehealth. This was the solution to the problem – simple as stated above but with a massive negative impact on the equity of access to VAD throughout Australia.
Once the PMB had been tabled in Parliament, the Attorney-General said that he would have to take a position to cabinet on the Bill, which seemed to be a tacit acknowledgment that it was an effective strategy to get the issue back on the agenda. Many relevant stakeholders also progressed the matter by getting their members to write to their MPs.
Kate also raised the issue in a meeting with the Prime Minister, and discovered that he opposed and would block the progression of the Bill. He appeared to be concerned about getting religious groups offside and losing votes in consequence: another clear example of politics overriding policy and allowing a nonsensical situation to persist for political reasons.
Subsequently five of the six state AGs gave support to the Bill in writing, with the NSW AG giving in principle support but being unwilling to openly contradict the PM. At this point – given the PM’s opposition - it was apparent that it would not be fruitful to push the issue in this term of Parliament. Having spoken to various advocacy groups, Kate felt that early in the next Parliament - without the distraction of an imminent election - would be a good time for stakeholders to write again to their MPs across the political spectrum to build a body of support to change an untenable status quo.
What Kate learned from this experience
Kate met with and spoke to many passionate and committed people (like the members and supporters of DWDWA) who will keep driving the change that is needed. She was overwhelmed by the support and care from everyone she met, and the generosity with which they shared their stories. From this experience she saw how the telehealth issue affects people all over the country by reducing access and equity of access to VAD.
Time and again she saw politics triumph over policy, with MPs who supported the PMB being unwilling to speak up because they had to toe the party line. Not for the first time she felt frustrated by the party-political system where individual MPs are not free to express a diversity of views because the party line prevails over community interests and democratic principles. Power becomes more important than integrity and the national interest.
The telehealth issue is evidence that having a clear problem with a workable solution is not enough: it also needs to line up with political will. There are ways for the system to work better and the cross bench is part of that, because its members think more about policy than politics and it’s their job to make laws better, not to sit around and wait until it’s their turn to be the boss. Despite the talk about the chaos and uncertainty of a minority government, the crossbench can be effective in getting worthwhile things done.
Kate remains an advocate and an ally of DWDWA. If re-elected, she will continue to support the change initiated by the PMB, and to push for a rational solution to the problem. Access to telehealth for legitimate medical purposes should not be determined by the criminal system: it’s for health professionals to decide how it should be used to provide medical services in the most appropriate way.
Dying with Dignity WA sincerely thanks Kate Chaney MP for her valiant attempt to effect change through the agency of her Private Member’s Bill, for her presentation at the AGM, and for her support.