Ethics and law

Voluntary assisted dying (VAD) provides a pathway to organ donation distinct from typical pathways requiring withdrawal of cardiorespiratory support. Patients considering VAD now have the option to be donors and benefit others through donation and transplantation. This is not widely known in the community. In this article, we consider the ethical issues in advising VAD patients about the option of organ donation. We balance patient autonomy against the risks of coercion and conflict of interest. All eligible patients should be advised about the option so they can make an informed decision. However, the timing and source of information are critical in ensuring that patients can make a well-considered, ethically sound choice. We propose a pathway for provision of information about organ donation for patients considering VAD.

Leo Nunnink, Melanie Jansen, Fabian Jaramillo, Wade Stedman

Genomic newborn screening (gNBS) can screen for a broad range of genetic conditions, potentially enabling early treatment and improving health outcomes. However, it remains outside publicly funded programmes due to limited evidence and substantial implementation challenges. Offering gNBS in the interim as a fee-for-service option in Australia risks creating inequitable healthcare access, fragmenting care and limiting control over genomic data. Conversely, prohibiting private access may unfairly deny potential benefits to individual infants and families. This article discusses the ethical and practical implications of offering gNBS on a fee-for-service basis prior to a decision being made regarding public funding. Although fee-for-service gNBS undermines equitable access, regulated private offerings by public genomics services could mitigate some of the risks. We emphasise the need for large-scale, well-designed research studies to inform the development and equitable implementation of robust gNBS programmes within public healthcare frameworks.

Christopher Gyngell, Sebastian Lunke, Danya Vears, Zornitza L. Stark

The development of specific professional standards and/or guidelines for doctors, coupled with education, could reduce the medicolegal risk of doctors becoming entangled in civil litigation about will validity and/or receipt of testamentary gifts

Nicole E Kroesche · Tina L Cockburn · Kelly Purser · Karen A Sullivan

Legal uncertainty constitutes a substantial barrier to efforts aimed at ensuring consistent good medical practice in relation to the provision of ante-mortem interventions during end-of-life care and facilitating opportunities for donation and transplantation

Shih‐Ning Then · Dominique E Martin · Helen I Opdam

Choice and dignity need to be deeply embedded in the daily care of residents, and risk-based decisions should be supported by effective organisational policies

Maria Foundas

Discussion of the ethical and legal difficulties in implementing voluntary assisted dying (VAD) in New South Wales correctional settings, and our approaches towards community-equivalence in VAD for terminally ill prisoners

Diya Ahluwalia · Leigh Haysom

The Office of the Australian Information Commissioner’s recently updated guidance clarifies clinicians’ discretion to assist patients with notifying their relatives about genetic risk without breaching federal privacy laws

Jane Tiller · Margaret FA Otlowski

ABC, a grieving older person, died after consuming a voluntary assisted dying (VAD) substance prescribed for their spouse. A Queensland coroner’s inquest recommended the law require self-administration to be medically supervised. This case highlights the tensions between facilitating access to VAD and community safety.

Eliana Close · Katrine Del Villar · Ben P White

Examination of the complexities of multiple organ transplant for patients with cystic fibrosis, using a hypothetical patient

Mark R Oliver · John Massie · Miranda Paraskeva · Avik Majumdar · Lynn H Gillam · Dominic JC Wilkinson

Residential aged care: proposing a shift to communities within social and ecological communities

Lachlan Green · Bridget Pratt · David Kirchhoffer

A legal analysis of off-label prescribing in Australia. Can we harmonise legislation with clinical practice?

Narcyz Ghinea

The moral and practical justification for Indigenous representation at all levels of health care provision

Kenneth JE Barns · Louis Peachey (Girrimay/Djirribal)

An alternative framework for resolving disputes over gender care for Gillick competent children and adolescents

Georgina Dimopoulos · Michelle Taylor‐Sands

Genomic tests present additional challenges compared with other pathological investigations

Michaela Cormack · Kathryn B Irving · Fiona Cunningham · Andrew P Fennell

Voluntary assisted dying is now lawful in all Australian states, with territories likely to follow.1 As this new end‐of‐life choice becomes more widely available and known, we should anticipate it arising during end‐of‐life care discussions with patients. In Australia, unlike some international models,2,3 voluntary assisted dying is not available to people without decision‐making capacity. Therefore, patients cannot request voluntary assisted dying through an advance care directive or other advance care planning document. However, some competent adult patients undertaking advance care planning may want to discuss voluntary assisted dying. Reflection is needed to prepare patients, clinicians and health services for discussions about voluntary assisted dying during advance care planning. Advance care planning is conceptually different from voluntary assisted dying As voluntary assisted dying was being debated and legalised across Australia, efforts were made to distinguish it from advance care planning.4 This conceptual work is important because the implementation of voluntary assisted dying is often accompanied by confusion and anxiety,5,6 and the two concepts are often misunderstood and conflated.7 We support educative efforts that define and distinguish voluntary assisted dying and advance care planning because this clarity enables patients to make informed choices. Advance care planning is a “process of planning for future health and personal care whereby the person's values, beliefs and preferences are made known to guide decision‐making at a future time when that person cannot make or communicate their decisions.”8 By contrast, in Australia, voluntary assisted dying provides assistance to die for adults with decision‐making capacity who meet strict eligibility criteria, for example, if the patient is expected to die within 6 or 12 months from an advanced, progressive medical condition.1 A critical difference is that voluntary assisted dying in Australia is available only to adults with decision‐making capacity, while advance care planning focuses on decision making about future care at a time when capacity is lost. Because access to voluntary assisted dying requires a person to retain decision‐making capacity throughout the process, advance requests for voluntary assisted dying cannot be given in an advance care directive (or any other advance care planning document). Nor can a person's substitute decision maker seek voluntary assisted dying on the person's behalf. This distinction is clearly reflected in law (indeed, some medical decision‐making legislation expressly excludes voluntary assisted dying) and guidance across Australia.9,10,11,12,13 Advance care planning practices and systems need to recognise voluntary assisted dying Although voluntary assisted dying is not the focus of advance care planning, clinicians and health services undertaking advance care planning need to be prepared for this topic. A pragmatic reason is voluntary assisted dying will inevitably be raised by some patients in their end‐of‐life planning. Attempts to exclude voluntary assisted dying are impractical as patients see end‐of‐life choices holistically and are unlikely to partition advance care planning and voluntary assisted dying. An ethical reason to prepare for voluntary assisted dying discussions during advance care planning is it may sometimes be appropriate to inform patients about their potential or future eligibility for voluntary assisted dying.14,15 Some patients, as with end‐of‐life discussions generally,7 may be waiting for health practitioners to initiate voluntary assisted dying discussions. Other patients may not be aware of voluntary assisted dying or their potential eligibility. Where it is legally possible to raise voluntary assisted dying (Box 1) and clinically appropriate, informing patients of all possible end‐of‐life choices would facilitate decisions that align with the values, beliefs and preferences at the heart of advance care planning. We emphasise this must be done sensitively, within the law, and guided by good clinical practice about end‐of‐life care discussions.18 Three critical issues for advance care planning systems and practices to consider Restrictions on raising voluntary assisted dying If a patient raises voluntary assisted dying during an advance care planning discussion, health practitioners are free to discuss it. However, if not initiated by a patient, Australian law (Box 1) is unusual internationally because it regulates whether, and how, a health practitioner can raise voluntary assisted dying with a patient. In Victoria and South Australia, law prohibits registered health practitioners from raising voluntary assisted dying with a patient or initiating a discussion about it. No other lawful health care option is prohibited from being raised in this way.19 Victorian doctors and family caregivers have reported confusion and access barriers as a result of this restriction.20,21 Advance care planning programs in these states should ensure health practitioners are aware of this legal duty but make it clear that voluntary assisted dying can be discussed once raised by a patient. This includes understanding when voluntary assisted dying has been raised, given reports that patients struggle to know the “right words”21 to successfully raise this topic, and the need for open questions to facilitate a lawful discussion. In all other states, doctors can raise voluntary assisted dying, as can some or all other health practitioners, depending on the state, but this is subject to providing certain information at the same time (Box 1).1 Again, advance care planning programs in these jurisdictions need to ensure their practitioners understand these laws. Individual conscience and institutional objection Advance care planning programs must address conscientious objection, which is legally protected. Some opposed health practitioners may be willing to engage in advance care planning discussions that include voluntary assisted dying, but others may not.22 However, objecting practitioners must still be aware of potential legal duties. For example, voluntary assisted dying laws in some states require that patients making a first formal request for voluntary assisted dying be provided specific information about it, including about practitioners or voluntary assisted dying services (Box 2). Professional and ethical duties imposed by bodies such as the Medical Board of Australia and the Australian Medical Association also include not hindering access to voluntary assisted dying.23,24 Institutions objecting to voluntary assisted dying can also affect advance care planning. While institutions may object to a range of practices,25,26 relevant here is an objecting institution whose advance care planning program does not permit discussion of voluntary assisted dying. Complex laws about institutional objection to voluntary assisted dying exist in New South Wales, Queensland and South Australia1 and can affect implementation of local advance care planning programs. Accessing voluntary assisted dying requires planning and time If advance care planning discussions do include voluntary assisted dying, they should ensure patients know that accessing voluntary assisted dying takes time, and requires planning20,21 (although it can be expedited in urgent cases).1 The most recent Victorian Voluntary Assisted Dying Review Board report advises voluntary assisted dying is not an emergency procedure, with a median time from first request to dispensing medication of 34 days (interquartile range, 23–53 days).27 This need to plan arises from: the time needed for the rigorous assessment and approval process; eligibility criteria that mean a person is expected to die within 6 or 12 months, and so is on a trajectory to death and reduced physical (and potentially mental) capacity; and the possibility of voluntary assisted dying requests being made late in a person's illness.21 Preparing advance care planning programs and practices for voluntary assisted dying Voluntary assisted dying will increasingly arise in advance care planning discussions now that it is legal in all Australian states. The palliative care sector has been proactive in addressing voluntary assisted dying in end‐of‐life discussions, with Palliative Care Australia, Australia's peak palliative care body, developing a position statement and guiding principles to support people providing care for individuals with a life‐limiting condition who may wish to access voluntary assisted dying. These principles state that individuals and their families and carers “must be treated with dignity and respect and supported to explore options available to them, which may include [voluntary assisted dying]”.28 Advance care planning programs, policies and practices must also explicitly recognise the impact of voluntary assisted dying, including addressing the three issues outlined above. Much of the work to date has focused on differentiating advance care planning and voluntary assisted dying. This is important, but efforts must now extend to support optimal advance care planning in the context of new voluntary assisted dying laws. This requires health systems and advance care planning programs to adapt advance care planning policies, guidelines and information to engage with how voluntary assisted dying will be discussed in advance care planning conversations (see Box 3 for a framework for such conversations). Health practitioners undertaking advance care planning should receive training on the impact of voluntary assisted dying on these discussions. Conversation guides can also help navigate lawful and patient‐centred advance care planning discussions that include voluntary assisted dying where appropriate. Processes for health practitioners to access support or escalate for advice are also needed. These responses should harness existing voluntary assisted dying resources and services where possible, such as health department voluntary assisted dying guidance and voluntary assisted dying care navigators in each state (Box 4). Advance care planning is centred on respecting a person's values, beliefs and preferences, which may now include a choice for voluntary assisted dying. Existing approaches to advance care planning must adapt to reflect this, requiring thoughtful engagement at the system, program, and practitioner level. Box 1 – Permissibility of registered health practitioners initiating discussions about voluntary assisted dying in Australia* New South Wales Queensland South Australia Tasmania Victoria Western Australia Doctors Yes, provided they inform at same time of available treatment and palliative care options and their likely outcomes Yes, provided they inform at same time of available treatment and palliative care options and their likely outcomes No Yes, provided they inform at same time of available treatment and palliative care options and their likely outcomes No Yes, provided they inform at same time of available treatment and palliative care options and their likely outcomes Nurse practitioners Yes, provided they inform at same time that palliative care and treatment options are available, and that the patient should discuss these with their doctor As above No Yes, provided they inform during discussion that a doctor would be the most appropriate person with whom to discuss the VAD process and care and treatment options No As above Other registered health practitioners As for nurse practitioners No No As for nurse practitioners No No * Note: Some voluntary assisted dying legislation also regulates the conduct of discussions by health care workers. Table adapted from Waller et al,1 Voluntary assisted dying in aged care: roles and obligations of medical practitioners,16 and Voluntary assisted dying in aged care: roles and obligations of registered nurses.17 Box 2 – Doctors’ conscientious objection obligations to patients who make a first request* for voluntary assisted dying New South Wales Queensland South Australia Tasmania Victoria Western Australia Provision of information – Contact details of a medical practitioner or service who can assist or the details of the care navigator service – Information sheet about voluntary assisted dying, and contact details of the Voluntary Assisted Dying Commission – Information sheet about voluntary assisted dying Timeframe to notify the patient of refusal of first request Immediately Immediately Within 7 days Within 7 days (plus 48 hours to decide) Within 7 days Immediately * A first request is a formal part of the voluntary assisted dying request and assessment process where a patient makes a clear request to a doctor for voluntary assisted dying. Table adapted from Waller et al1 and Voluntary assisted dying in aged care: roles and obligations of medical practitioners.16 Box 3 – Framework for discussion of voluntary assisted dying (VAD) in advance care planning (ACP) Box 4 – Selection of voluntary assisted dying health practitioner guidance relevant for advance care planning State Resource Care navigator (or equivalent) service details New South Wales NSW Voluntary Assisted Dying Clinical Practice Handbook: https://www.health.nsw.gov.au/voluntary‐assisted‐dying/Pages/practitioner‐handbook.aspx NSW Voluntary Assisted Dying Care Navigator Service: https://www.health.nsw.gov.au/voluntary‐assisted‐dying/Pages/navigator.aspx Queensland Advance care planning and voluntary assisted dying: https://www.health.qld.gov.au/clinical‐practice/guidelines‐procedures/voluntary‐assisted‐dying/information‐for‐healthcare‐workers/advance‐care‐planning‐and‐vad Queensland Voluntary Assisted Dying Support Service (QVAD‐Support): https://www.health.qld.gov.au/clinical‐practice/guidelines‐procedures/voluntary‐assisted‐dying/support/qvad‐support Queensland Voluntary Assisted Dying Handbook: https://www.health.qld.gov.au/clinical‐practice/guidelines‐procedures/voluntary‐assisted‐dying/information‐for‐healthcare‐workers/handbook Conversation guides for GPs: Voluntary assisted dying: https://www.health.qld.gov.au/__data/assets/pdf_file/0034/1195675/Conversation‐guide‐on‐voluntary‐assisted‐dying‐for‐GPs.pdf South Australia Voluntary Assisted Dying Clinical Guideline for Health Practitioners: https://www.sahealth.sa.gov.au/wps/wcm/connect/e148edcb‐134b‐449d‐8e57‐9c3f7ad21eb2/FINAL+Voluntary+Assisted+Dying+Clinical+Guideline+for+Health+Practitioners+v2.pdf?MOD=AJPERES&CACHEID=ROOTWORKSPACE‐e148edcb‐134b‐449d‐8e57‐9c3f7ad21eb2‐oK80Khi South Australian Voluntary Assisted Dying Care Navigator Service (SAVAD‐CNS): https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/services/primary+and+specialised+services/voluntary+assisted+dying/support+services/south+australian+voluntary+assisted+dying+care+navigator+service+savad‐cns Tasmania Voluntary Assisted Dying Navigation Service: https://www.health.tas.gov.au/health‐topics/voluntary‐assisted‐dying/voluntary‐assisted‐dying‐services/navigation‐service‐voluntary‐assisted‐dying Victoria Voluntary assisted dying – Guidance for health practitioners: https://www.health.vic.gov.au/publications/voluntary‐assisted‐dying‐guidance‐for‐health‐practitioners The Statewide Voluntary Assisted Dying Care Navigator Service: https://www.health.vic.gov.au/patient‐care/voluntary‐assisted‐dying Western Australia Western Australian Voluntary Assisted Dying Guidelines: https://www.health.wa.gov.au/Articles/U_Z/Voluntary‐assisted‐dying/Resources‐for‐health‐professionals Western Australian Voluntary Assisted Dying Statewide Care Navigator Service: https://www.health.wa.gov.au/Articles/U_Z/Voluntary‐assisted‐dying/Statewide‐Care‐Navigator‐Service See also “How to do advance care planning: a quick guide for health professionals” for general information about advance care planning: https://end‐of‐life.qut.edu.au/advance‐care‐directives.

Ben P White · Madeleine Archer · Casey M Haining · Lindy Willmott

Organ donation after VAD in Australia appears to be both legally and clinically feasible

Jan Bollen · Courtney Hempton · Neera Bhatia · James Tibballs

Does pregnancy change a person’s medical values and preferences?

John J Bockxmeer · Casey M Haining · Andrea Atkinson

COVID-19 vaccination seems to be precisely the sort of decision that young people should be able to make along the road to becoming independent decision makers as adults

John Massie · Georgia A Paxton · Nigel Crawford · Margie H Danchin

The laws governing treatment consent in gender dysphoria have rapidly evolved in the past two decades, with the uncertainty, and at times confusion, regarding the law resulting in volatility in clinical practice

Calina Ouliaris

Medical students continue to be involved in legally and ethically concerning intimate examination practices Terra pericolosa was the cartographical term used to denote dangerous land — regions likely to put travellers in jeopardy. Despite the degree of governance and regulation in modern health care,1,2,3 medical literature,4 student‐authored ethics reports5,6 and the media7 continue to document medical students being involved in legally and ethically concerning intimate examination practices. This article summarises the ethico‐legal aspects of medical student involvement in patient care, and reviews international best practice and the factors which influence why medical students continue to find themselves in terra pericolosa situations. Ethico‐legal and governance issues Through most of its history, medical ethics maintained a utilitarian focus, usually demonstrating scant regard for patient autonomy, with non‐disclosure being the norm; it was not until the 1950s that the term “informed consent” was coined.8 The 1980s and 90s saw the first publications questioning the ethics and legality of medical students performing examinations without consent, with students often raising their concerns about the status quo.5,9 The legal implications of performing an examination without consent are significant. Each state and territory’s criminal codes define the elements that constitute an assault, as well as various categories, including sexual assault. In general, the term “assault” refers to both “common assault” and “battery”, even though the two offences remain distinct entities. Common assault typically involves intentionally or recklessly causing a person to apprehend the imminent infliction of unlawful force, while battery refers to the actual infliction of force. The legal classifications all include lack of consent as part of their wording. Consent to medical treatment is defined by Australian common law as having three conditions: it must be voluntary, be informed, and the individual must have capacity to provide consent.10 Consent may be given in writing, orally or be implied.3 An Australian Law Reform Commission report states: “If consent is not established, there may be legal consequences for health professionals. Under the law of trespass, patients have a right not [to] be subjected to an invasive procedure without consent or other lawful justification, such as an emergency or necessity.”10 Although there is no legal mandate for written consent to be obtained for medical student involvement in intimate examinations or procedures, the principles for consent are that the riskier or more potentially litigious the procedure, the higher the standard should be to ensure that the person fully understands the nature of the procedure and that their consent can be attested to in writing.3 The Australian Charter of Healthcare Rights11 notes that a health care recipient should “be treated as an individual, and with dignity and respect” and have “clear information about [their] condition, the possible benefits and risks of different tests and treatments, so [they] can give [their] informed consent”. There is no information about health professional student involvement in their care. The Medical Board of Australia code of conduct2 defines the standards of conduct for medical doctors in Australia. The code states that regarding medical students, good medical practice involves “Making the scope of the student’s role in patient care clear to the student, to patients and to other members of the health care team” and “Informing your patients about the involvement of medical students and obtaining their consent for student participation, while respecting their right to choose not to consent”. The Australian Medical Council provides a core curriculum for both medical students and all medical doctors in Australia.3 It states: “Access to patients and their cooperation is a privilege that must not be taken for granted. … Before approaching any patient, students should generally first seek permission from those responsible for the immediate care of the patient.” Regarding physical examination, the authors note that: … when conducting a physical examination, it may be appropriate to have a nurse or medical student present who is of the same gender as the patient. Under no circumstances should medical students conduct intimate examinations — including breast, genital or rectal examinations — without supervision or an accompanying nurse of the same gender as the patient. Students need to be specifically aware of the medical school policy in regard to intimate examinations.3 In 2018, the Medical Board of Australia published guidelines on sexual boundaries in the doctor–patient relationship.1 These guidelines recognise that a patient’s cultural values and beliefs may influence what they perceive to be an intimate examination, and that before conducting a physical examination, good medical practice involves “obtaining the patient’s permission if medical students or anyone else is to be present during an examination or consultation” and that an “unwarranted physical examination may constitute sexual assault. This includes conducting or allowing others, such as students, to conduct examinations on anaesthetised patients, when the patient has not given explicit consent for the examination”.1 In summary, although Australian law is clear on the importance of consent and the implications of this regarding assault, current Australian medical governance makes some assumptions about medical school policies for intimate examinations and allows discretion regarding the requirements for written consent. What we can learn from other countries The recognition that medical students may be involved in unconsented intimate examinations4,9,12 has resulted in the introduction of specific ethical codes and guidance in many jurisdictions. The United Kingdom and New Zealand have similar ethical codes to Australia.2,12,13 The UK also provides detailed guidance on good medical practice for students.13 NZ is the most prescriptive, with specific information regarding medical student involvement in patient care documented in a national consensus statement and their Code of Rights.6,12 The NZ experience provides useful insights into the challenges of protecting patient rights during intimate examinations or procedures. Malpas and colleagues6 demonstrated that despite the national consensus statement’s introduction and related legislation, students continue to be involved in unconsented intimate examinations. In response, the authors recommended the following system changes in NZ: review consent processes to include information for patients about health professional student involvement in their care, and include specific sections in procedural consent forms for student involvement; provide the public with more information about patients’ rights and consent processes; and change the culture through increased emphasis on ethical leadership by senior health professionals in modelling best practice, and ensure zero tolerance/disciplinary processes for those who commit serious ethical breaches.6 Future directions The UK General Medical Council states that “Professionalism is not about doing the minimum — it is about doing what is necessary to protect patients”.13 When judged against this standard, most health care systems appear to have gaps. An individual’s likelihood of engaging in a behaviour is influenced by three factors: their attitudes towards the behaviour, their perceptions of the social norms, and their perceived ability to perform the behaviour.14 Although contemporary medical education and ethics actively promote patient autonomy and informed consent, students can unfortunately find themselves working in what has been described as the “weak ethical climate within the clinical workplace”.4 Most medical education and psychological research indicates that students are strongly influenced by the cultural norms of their workplace and their supervisory relationships.4,6,14,15 Fifteen years after a landmark paper by Coldicott and colleagues,9 Malpas and colleagues6 and an accompanying student‐authored editorial5 reaffirmed that the most common problems with medical student involvement in intimate examinations and procedures are not aspects of rogue student behaviour, but continue to be students struggling with the “the incongruence of what is taught … and the reality and expectations of clinical practice”,5 with students narrating specific instances of being asked by their supervisors to conduct or remain present during intimate examinations without clear and/or adequately informed patient consent. The NZ recommendations6 should positively influence students, health professionals and public attitudes and behaviours. However, unless resources are embedded in health professional educational and clinical environments to promote and facilitate speaking up for patient safety, the evidence suggests that those at the bottom of the hierarchy rarely feel safe in speaking truth to power;4,5,6,14,15 students will continue to be led into jeopardy. The UK experience with the Francis enquiry16 and other patient safety system failures provided the impetus to promote patient safety at national, local and medical school levels through General Medical Council guidance and initiatives such as “Speaking up”.13,17 To assist and empower students, some medical schools have developed web portals for their students to raise concerns.18 The lessons from the NZ work in this area and the UK initiatives indicate that although policies, processes and pedagogy are important, Australian health care and medical education providers should also critically examine their clinical workplace cultures and consider whether they adequately protect both patients and students.

Paul M McGurgan · Katrina L Calvert

Laws requiring doctors to report consensual adolescent sexual activity present legal, clinical and ethical problems Many Australian teenagers engage in consensual sexual intercourse with similar aged peers.1 They require confidential medical care, including contraception and sexually transmitted infection testing. However, adolescents’ rights to access medical care may confront legal barriers. In several Australian states and territories, new criminal laws require adults to report sexual offences against children. Other criminal laws make it an offence for adolescents aged under 16 years to engage in sexual intercourse. Accordingly, a question for clinical practice is whether the new criminal law reporting duty applies to adolescents’ confidential communications regarding consensual sexual activity. Law, ethics and practice must protect children, but must not criminalise consensual peer sexual activity or compromise clinical care. Here, we review literature regarding adolescents’ lived experience, findings from developmental science, and analyses of consensual and lawful sexual activity. We conduct a comparative analysis of Australian criminal law reporting duties for child sexual offences. We identify situations where laws inappropriately require clinicians to report adolescent sexual activity, and we make recommendations for reform. Background A 2018 national survey found 47% of 14–18‐year‐olds engaged in vaginal or anal intercourse, including 34% of those in Year 10.1 For most Year 10s (aged 14–16 years), the most recent sexual partner was a peer aged under 17 years (92%). However, 6.5% of sexually active Year 10s reported their most recent partner was aged 18–19 years. Of Year 10 females, over one‐third (37%) had engaged in intercourse, and for 10% of these their most recent partner was aged 18 years or older. General practitioners were the most trusted source of sexual health information, from whom 40.6% of females sought clinical advice.1 Clinician engagement was further evidenced by 43.5% of females using the contraceptive pill. However, adolescents experience multiple barriers in accessing health services, including perceived lack of confidentiality, and youth friendly service guidelines recommend confidential care approaches.2,3,4 The Lancet commission on adolescent health acknowledged the complex interplay of adolescent neurodevelopment and legal principles of capacity.5 Australian legal milestones differ, indicating how laws attempt to attain policy goals while grappling with scientific knowledge: 10‐year‐olds can be liable for criminal offences; 15‐year‐olds can obtain a Medicare card; and 17‐year‐olds can drive. Developmental neuroscience has shown adolescents aged 15–16 years possess adult‐like cognitive ability,8,9 while psychosocial and neurobiological maturity continues into the mid‐20s.8 It has been shown that, especially when in “calm and emotionally‐neutral contexts”,5 adolescents possess cognitive capacity to weigh costs and benefits and make reasoned judgements about courses of action, including about consenting to medical treatments involving contraception and sexual health.6,7 Much consensual peer sexual activity occurs in such settings; even in more emotionally “hot” circumstances, the capacity to consent to sex with similar aged peers is consistent with findings from developmental neuroscience. Legal requirements for consent, and the age of consent Lawful consent to sex requires full, free and voluntary agreement, and the absence of threat, intimidation and abuse of power (Box 1). Social science models of child sexual abuse are similarly premised on consent requiring full, free, voluntary and uncoerced participation.10 Laws must navigate a tension between protecting the developing adolescent and respecting and promoting their capacity and autonomy.11,12 In this setting, legislatures, as the bodies in each state and territory able to pass and amend criminal laws (legislation), must protect children and youth from sexual abuse, while allowing consensual peer sexual activity in both heterosexual and same‐sex relationships. Currently, the legal age of consent prohibits intercourse with minors under a specified age, presuming that children under this age lack capacity to provide true consent. This age is 16 years in most jurisdictions (Box 2). Legal defences embody legislatures’ acknowledgement that sex between adolescents may be consensual and permissible. Criminal laws in five jurisdictions provide a close‐in‐age defence to offences where the act involves consenting people who are both minors aged under 16 years or are similar in age (Box 2). Prosecution guidelines Similarly, official guidelines in every jurisdiction13,14 regarding prosecution of criminal offences recommend against prosecuting consensual activity between minors. These guidelines acknowledge it is against the public interest to prosecute these cases, because of the oppressive consequences, and the trivial and merely technical nature of any breach. Victoria’s guidelines are particularly strong, and specifically refer to situations where both adolescents are under 16 years of age, and where they are aged 15 and 18 years: a prosecution is contraindicated where a young person “has committed an offence in the context of a consenting sexual relationship with another young person [including] sexual penetration of a child under 16 where the offender is 18 and the complainant is 15”.13 In such cases, prosecutors should consider: the adolescents’ ages and maturity; whether they are in a relationship; whether they consented; and whether the person wishes a prosecution to proceed.13 In our hypothetical clinical case of Anna and David (Box 3), a prosecutor should conclude that despite technical commission of an offence (due to Anna and David being 15 and 18, respectively), prosecution should not occur because they are mature, near aged peers in a consenting sexual relationship with no coercion. They were responsibly acting to obtain contraception and advice from a medical practitioner, and Anna would not want David prosecuted. Prosecution is against the public interest for reasons including adverse effects on adolescents’ willingness to seek medical advice, which may result in further consequences including unintended pregnancies, sexually transmitted infections, and effects on education, employability and health. Criminal law reporting duties Child protection legislation has long required professionals to report sexual abuse to child welfare agencies.15 Recent inquiries into institutional abuse and cover‐ups catalysed recommendations for new reporting duties in criminal law, applied to all adults.16,17 Victoria, New South Wales, the Australian Capital Territory and Tasmania have since enacted new reporting duties in criminal law, advancing social norms to protect children.15 Queensland has recently enacted a duty, which has not yet commenced. (Supporting Information, Table 1). These laws require adults to report information to police about a sexual offence committed against a child. To accommodate exceptional circumstances and navigate ethical tensions, exceptions apply to requests of non‐disclosure, and confidential disclosures (Supporting Information, Table 1). Comparative analysis: six dimensions of legal inconsistency and uncertainty The relevant laws differ between jurisdictions, and exceptions are of uncertain application. Comparative statutory analysis reveals that for medical practitioners treating adolescents in consensual peer relationships, the laws present six problems. First, only NSW expressly excludes medical practitioners from the duty to report sexual offences against children (Supporting Information, Table 1). This creates a clear inconsistency: NSW practitioners are exempt from the duty, while their counterparts elsewhere are not. However, exempting NSW practitioners may mean sexual offences are less likely to be reported. Second, three jurisdictions apply the duty to report sexual offences both to situations involving two minors aged under 16 and to situations involving a minor and an adult. In contrast, Victoria only applies the duty to situations involving a minor and an adult. Accordingly, Victoria’s duty is narrower, acknowledging that otherwise it may inappropriately embrace consensual behaviour; yet it is important not to discourage Victorian practitioners from reporting non‐consensual sexual offences between minors, so this limit may be suboptimal. The problem elsewhere is that the duty may capture consensual peer activity. Third, only Victoria excludes the duty where the adolescent “victim” aged 16 or 17 requests non‐disclosure. Elsewhere, this exemption applies only to requests by victims aged 18 or over. This creates inequality in recognising adolescent capacity and autonomy. Fourth, the concept of a “reasonable excuse” for non‐reporting is not exhaustively defined (Supporting Information, Table 1). It is unclear whether a reasonable excuse for non‐disclosure includes a medical practitioner’s choice not to report a confidential disclosure in a therapeutic setting of consensual acts constituting a sexual offence. This leaves practitioners in all jurisdictions unsure whether they would be legally protected for not reporting. Fifth, Victoria, NSW and Tasmania enable prosecution only if approved by the Director of Public Prosecutions. This suggests multiple situations do not warrant prosecution. However, it is not clear when approval would be given, leaving clinicians in doubt about exemptions to the duty. The ACT lacks this mechanism, indicating higher likelihood of prosecution. Sixth, health professionals may be exempt from the duty where a patient confidentially discloses a sexual offence (Supporting Information, Table 1). This exemption is founded on the concept of professional confidential relationship privilege. However, these exemptions are unclear, rely on networks of laws, and apply to different practitioners. Tasmania and the ACT lack clear confidentiality exceptions (Supporting Information, Table 2). NSW has a clear exemption. Victoria has an express exemption if the information is a “confidential communication” as defined by other legislation (Box 4). However, in Victoria, the exemption applies only to communications from the younger adolescent (Box 4). In Anna’s hypothetical case, David attending the consultation would technically trigger the GP’s duty to report (Box 3). Discussion The new duties in criminal law to report sexual offences against children are consistent with policy values in protecting children, and with bioethical principles of justice and beneficence. Requiring adults to report child sexual offences is justified by diminishing harm to individuals, and by enhancing community protection and a protective social fabric for vulnerable children.18 Sexual activity between adults and children should generally be considered abusive, due to absence of consent and presence of coercion.10 However, legislatures must ensure an appropriate balance between protecting children and youth from sexual offences, and recognising their capacity and promoting autonomy, privacy and freedom of expression.11,12 Genuinely consensual sexual activity between under‐aged minors is not abusive.10 In addition, a grey zone of cases may involve two adolescents aged almost 16, and 18. Here, where sexual activity may be genuinely consensual, ethical analysis, findings from developmental science, and clinical needs all suggest the duty should be moderated by nuanced individual consideration by clinicians (Box 3). In our view, the central concept that should inform legal principles and practice is consent, and its presence or absence in circumstances which do not involve threat, intimidation or abuse of authority. On our analysis, three conclusions seem clear. First, legislative reforms are required so that disclosures in therapeutic contexts of clearly consensual sexual activity between similar aged peers under 16 are expressly exempt from the reporting duty. This is consistent with policy animating Victoria’s law reform requiring adults to report “a serious indictable offence involving the abuse of a child”,16 and Royal Commission recommendations.17 If protected by such an exemption, clinicians consulting with adolescents who are having sex with similar aged peers can be unhindered in providing preventive health interventions including contraception for mature minors, and screening for sexually transmitted infections.18 Clinicians routinely enquire about age of sexual partners and otherwise consider risk of abuse and patient capacity when providing treatment.7 If they reasonably conclude the adolescents are consenting, confidential treatment should be provided and this is clearly incompatible with reporting to police. Such an exemption also allows clinicians to create a safe environment to encourage adolescent help‐seeking, check for other health risks,19 explore family dynamics, and connect the adolescent with parents or others to benefit wellbeing.18,19 Second, this legislative exemption could extend to clearly consensual activity between adolescents aged 15 and 18. Legal attribution of capacity to consent to sex using simple age cut‐offs is convenient, but sometimes incongruent with developmental science, lived experience and clinical scenarios.9 In situations of clearly consensual activity, a margin of error should favour patient autonomy and clinical care. This is consistent with prosecutorial guidelines and Tasmania’s similar age exemptions. Clinicians would prefer this slight extension of the exemption so they can promote health and encourage future help‐seeking. Our hypothetical patients Anna and David would be unwilling to seek future care if the GP reported David to police. Third, the different models for exempting clinicians as recipients of confidential information are complex, uncertain and unsatisfactory. Legislative reforms are required to create a clear, unified approach. Any legislature that seeks to include an exemption for confidential disclosures about abusive incidents made to medical practitioners within therapeutic contexts should enact a specific exemption, using the NSW model. This would solve difficulties ascertaining whether this constitutes a “confidential communication” or is protected by privilege. It would also solve problems in the requested non‐disclosure exemptions; for abusive incidents, application only to those over 18 is inconsistent with developmental science, which suggests Victoria’s age 16 is justifiable, and could be extended to those aged 15. This three‐pronged approach aligns with clinicians’ duty of confidentiality in codes of ethics,20 and organisational policy on sexual and reproductive health.21 National principles recognise medical practitioners’ central role in supporting sexual and reproductive health through confidential care, with youth a priority population.18,21 This medico‐legal context is increasingly complex. Our analysis has focused on adolescent peers in genuinely consensual relationships whose ages mean technically they are committing an offence, exemplified by peers aged 15 and 18 years (Box 1). We unequivocally support duties to report child sexual abuse,15,22 and do not here consider other situations where different outcomes may transpire. We also caution that where disclosures of abusive incidents may be exempt from the criminal duty, a clinician may have a separate overriding legal duty to report. For example, Victorian doctors may be exempt under s 327(7)(c) of the Crimes Act 1958 from disclosing a 10‐year‐old’s confidential disclosure of sexual assault, but must report under child protection legislation.15 Health practitioners therefore need to know their responsibilities under different laws, and need ongoing professional education to promote legal literacy. Progress towards reform may require several steps. Since legislative limitations differ, agencies representing medical practitioners could urge reform at state and territory level, informed by research and clinical experience. However, ideally, a harmonised national approach should be adopted. National medical regulatory bodies and government ministries could mobilise to support a single model law that balances the need to protect Australian children from sexual offences, while promoting adolescents’ rights to consensual sexual activity. Box 1 – Requirements of consent to sexual intercourse, by Australian states and territories Conditions for consent to sexual intercourse Jurisdiction Free and voluntary agreement Not by threat, intimidation, or abuse of authority Australian Capital Territory Crimes Act 1900, s 67 (not expressly defined) s 67(1): consent to sexual intercourse with another person is negated if that consent is caused: “(a) by the infliction of violence or force on the person, or on a third person …; or (b) by a threat to inflict violence or force on the person, or on a third person …; or (c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or (d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or … (h) by the abuse by the other person of his or her position of authority over … the person” New South Wales Crimes Act 1900, s 61HE(2): “A person ‘consents’ to a sexual activity if the person freely and voluntarily agrees to the sexual activity” s 61HE(5)(c): A person does not consent to a sexual activity if the person consents “because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person)” s 61HE(8): “The grounds on which it may be established that a person does not consent include … (b) if the person consents to the sexual activity because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person consents to the sexual activity because of the abuse of a position of authority or trust” Northern Territory Criminal Code Act 1983, s 192(1): “consent means free and voluntary agreement” s 192(2): “Circumstances in which a person does not consent to sexual intercourse … include circumstances where: (a) the person submits because of force, fear of force, or fear of harm of any type, to himself or herself or another person” Queensland Criminal Code 1899, s 348(1): “consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent” s 348(2): “consent to an act is not freely and voluntarily given if it is obtained—(a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority …” South Australia Criminal Law Consolidation Act 1935, s 46(2): “a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity” s 46(3): a person does not freely and voluntarily agree to sexual activity if “(a) the person agrees because of (i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or (ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person” Tasmania Criminal Code 1924, s 2A(1): “‘consent’ means free agreement” s 2A(2):”a person does not freely agree to an act if the person … (b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or (c) agrees or submits because of a threat of any kind against him or her or against another person; or … (e) agrees or submits because he or she is overborne by the nature or position of another person” Victoria Crimes Act 1958, s 36(1): “consent means free agreement” s 36(2): ”Circumstances in which a person does not consent to an act include, but are not limited to, the following—(a) the person submits to the act because of force or the fear of force, whether to that person or someone else; (b) the person submits to the act because of the fear of harm of any type, whether to that person or someone else” Western Australia Criminal Code Compilation Act 1913, s 319(2)(a): “consent means a consent freely and voluntarily given” s 319(2)(a): “a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means” Box 2 – Close‐in‐age defence for sex with a minor under the legal age of consent, where intercourse is consensual Jurisdiction Legislation Age of consent Express defence for intercourse with someone under the legal age of consent if similar in age, and consent is provided Australian Capital Territory Crimes Act 1900, s 55(2) 16 Yes — if accused was not more than 2 years older than the child, and the child was aged 10 or over: s 55(3)(b) New South Wales Crimes Act 1900, s 66C(3) 16 Yes — if accused was not more than 2 years older than the child, and the child was aged 14 or 15: s 80AG Northern Territory Criminal Code Act 1983, s 127(1) 16 No Queensland Criminal Code Act 1899, s 215(1) 16 No South Australia Criminal Law Consolidation Act 1935, s 49(3) 17 Yes — if accused was under 17, and child was 16: ss 49(4)(a) and (4)(b)(i) Tasmania Criminal Code Act 1924, s 124 17 Yes — age gap not more than 5 years, if child was aged at least 15: s 124(3)(a); and age gap not more than 3 years, if child was aged at least 12: s 124(3)(b) Victoria Crimes Act 1958, s 49B 16 Yes — if accused was not more than 2 years older than the child, and the child was aged 12 or over: s 49V Western Australia Criminal Code Act 1913, s 321(2) 16 No Box 3 – Hypothetical clinical case study Anna is 15 years of age and in Year 10 at a co‐educational high school in Victoria. She has been getting good grades and has a part‐time job at a supermarket. David is 18 years of age, in Year 12 at Anna’s school, and works at the same supermarket. They have been dating for 3 months. Anna presents to her general practitioner for contraceptive advice. She has become sexually active with David and wants contraception additional to condoms. Her GP confirms Anna is a mature minor, since she understands fully the range of contraceptive options open to her, how they work, and their side effects. She has carefully considered all options with David, and has chosen a long‐acting reversible contraceptive implant. She intends to inform her mother, but she is not quite ready yet. She is certain she does not want to experience an unintentional pregnancy. Anna describes her relationship with David as very positive. She feels completely safe with him and under no coercion. She feels she could stop the relationship at any time if she wanted to, and so could he. The age of consent for sexual intercourse in Victoria is 16. Where sex involves a minor aged 12–15, no offence is committed if the other person is less than 2 years older than the minor, and the sex is consensual. Technically, David is committing a sexual offence by having sex with Anna, because he is 3 years older than her; if he was 17 there would be no offence. However, the GP is satisfied this relationship is consensual, and previously would not have reported this situation under either criminal law or child protection law. However, the criminal law on failure to disclose that commenced in Victoria in 2014 has now presented a dilemma for the GP. These laws aim to protect children from sexual abuse and require adults to report knowledge of a sexual offence with a child under 16 years to police. Anna has not expressly stated to the GP that she does not want the situation reported to police, since it has not occurred to her that anything wrong has happened. The GP studies the government website on the new laws to understand what she should do. She is relieved to learn health practitioners are exempt from the criminal law duty to report if they are told about the offence in the course of a confidential consultation. However, because of other legal definitions (Box 4), this exemption only applies if consulting exclusively with the person against whom the offence has been committed. The next day, Anna and David consult the GP together for a baseline sexually transmitted infection screen. The GP was happy to see them, but was perplexed that the exemption did not apply if consulting with the offender, in this case David. She was very reluctant to call the police about David and Anna, due to her knowledge about the consensual nature of their relationship, and their responsible behaviour in obtaining contraception. The GP also understands that other adults who know about the situation, such as Anna’s and David’s parents and school teachers, would appear to be required to report by the criminal law duty, since no clear exemptions apply to them. Box 4 – Health Practitioner Regulation National Law: definitions and application In Victoria, a “confidential communication” is “a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client”: Evidence (Miscellaneous Provisions) Act 1958, s 32B. Under the Health Practitioner Regulation National Law Act 2009 (Qld) Schedule s 5, “health practitioner means an individual who practises a health profession”. A “registered health practitioner means an individual who (a) is registered under this Law to practise a health profession, other than as a student; or (b) holds non‐practising registration under this Law in a health profession”. A “health profession” is defined to include a list of 15 professions (including recognised specialties in these), and most relevantly here includes the following professions: medical, nursing, pharmacy, and psychology. In Victoria, a “registered medical practitioner” under the Health Practitioner Regulation National Law is defined through the application of the Health Practitioner Regulation National Law Act 2009 (Qld) Schedule s 5. Victoria incorporated the Queensland Act into Victorian law, through the Health Practitioner Regulation National Law (Victoria) Act 2009, s 4 (Application of Health Practitioner Regulation National Law). The Health Practitioner Regulation National Law is also incorporated into other jurisdictions’ laws: Health Practitioner Regulation National Law (Tasmania) Act 2010, s 4; Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), s 4; Health Practitioner Regulation National Law (ACT) Act 2010, s 6.

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Is a policy of mandatory vaccination for health care workers permissible under Australian law?

Dev AS Kevat · Danielle CA Panaccio · Sam C Pang · Jessica M Dean · Caitlin C Farmer · Patrick D Mahar