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Voluntary assisted dying is considered suicide under law, the federal court has ruled, meaning doctors who give patients information about euthanasia using telehealth, email or phone calls could face criminal charges.

The ruling was delivered by federal court justice Wendy Abraham on Thursday and will clarify a previously grey area for medical practitioners and patients just two days after NSW became the final state in Australia to allow terminally ill people to choose the timing of their death.

Voluntary assisted dying is considered suicide under law, the federal court has ruled.Credit: Getty

It follows a federal court challenge from Melbourne doctor Nick Carr, who was concerned that the Commonwealth Criminal Code Act, which makes it an offence for someone to use a carriage service to counsel or incite another into committing suicide, applied to doctors using telehealth for voluntary assisted dying support that was otherwise now legal under state laws.

The word “suicide” is not defined in the criminal code, and Carr argued it should not apply to voluntary assisted dying because the latter involved a legal right to intentionally take one’s life that was regulated by law.

But the court ruled that the term “suicide” as used in the criminal code does apply to ending a person’s life under state voluntary assisted dying laws, meaning doctors who consulted patients about euthanasia using carriage services such as phone, email or telehealth were breaking the law.

The ruling would apply to doctors even if they had been authorised to consult with patients under state voluntary assisted dying legislation.

Carr used Victorian legislation to challenge the attorney-general and assert that voluntary assisted dying should not constitute suicide for three main reasons.

First, because the purpose of the criminal offence was to prevent harm to vulnerable people from being subjected to pressure or coercion, a harm he said voluntary assisted dying legislation had already recognised did not apply when a person had intentionally decided to end their own life.

Second, he argued words in statute should be interpreted in the context of their contemporary meaning, and that “committing suicide” and “assisted dying” were recognised as different forms of death in society.

He also said that including voluntary assisted dying in the criminal code’s definition of suicide would cut across state legislation, contradicting the savings provision in the Commonwealth criminal code that says it should not exclude or limit other state and territory laws.

‘This finding is sad and frustrating and will impede provision of best-practice care for terminally ill individuals.’

But the court rejected those arguments and sided with the federal government, which argued that “when the criminal code provisions were introduced, ‘commit suicide’ simply referred to the intentional taking of one’s own life, regardless of the circumstances in which that occurred”.

Justice Abraham said that, without a definition in the criminal code, that ordinary and natural meaning of suicide should apply.

“The parliament saw fit not to define the term given that it was so firmly and universally used and understood at that point in time,” her judgment said.

“Voluntary assisted dying, while a means carefully regulated, and a societally approved means of a person intentionally taking their own life, remains a means of a person taking their own life.”

Attorney-General Mark Dreyfus will consider the ruling.Credit: Alex Ellinghausen

The judgment also said Commonwealth laws should prevail in any clash between state and federal legislation.

A spokesman for federal Attorney-General Mark Dreyfus said he was aware the judgment had been delivered on Thursday.

“Submissions concerning the proper interpretation of provisions of the Criminal Code were made on the attorney-general’s behalf. The government will consider the court’s judgment,” he said.

Independent MPs Kate Chaney and Monique Ryan have said they would take up the issue.

“This finding is sad and frustrating and will impede provision of best-practice care for terminally ill individuals,” Ryan said.

Carr said it was frustrating that attorneys-general had not resolved the issue sooner. He said he was “massively disappointed” by the federal court outcome, which had been his final attempt to resolve the issue after more than three years of advocacy that began when voluntary assisted dying was only legal in Victoria.

“Now there’s voluntary assisted dying in every state, this is an issue that affects the entire country,” he said.

“People in regional areas, who are already disadvantaged in healthcare, have very little access to voluntary assisted dying qualified practitioners. They will be forced to travel huge distances when they’re sick and frail at the end of their lives, when some of this could be done by telehealth.

“At least any ambiguity has been removed. We were always told it was a grey area but you’ll probably be ok.”

He said that, in a practical sense, it was difficult to provide comprehensive care in the voluntary assisted dying space without using a carriage service for at least some of that work.

“If a patient rings me and says, ‘I want you there when I’m taking the medication on Friday’, and we’re having a conversation, does that mean I’m breaking the law? After this ruling it seems any connection on a carriage service is potentially at risk.”

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