Abortion law reform: what it means for doctors
Amid much controversy, and after over 40 hours of debate, the NSW parliament has recently passed the Reproductive Health Care Reform Bill 2019 (NSW). Upon the bill receiving Royal Assent from the NSW Governor it will become known in law as the Abortion Law Reform Act 2019 (NSW) (‘Act’).[1] It is a debate that has sharply divided not only the chamber floors of the NSW Parliament but society as well.
Regardless of one’s moral or ethical stance on the matter of abortion; the task of lawyers is to know the law, analyse it and be sure of its effects on people as it is implemented. Therefore, this article takes the purpose of such a legal analysis remaining deliberately silent on the moral and social implications of the legal changes and seeks to expound the legal principles of the new law and its effect on those who will feel its affects mostly in their professional capacity, namely doctors, nurses and other medical and healthcare professionals.
Whilst this bill implicitly gives certain legal rights to those seeking to terminate a pregnancy, this article does not focus on the law as it applies to those seeking a termination. Rather, the new law seeks to alter the obligations of doctors and health care professionals and so it is for them that this article seeks explore the nature of the legal changes and what rights and responsibilities health care professionals have at law when dealing with a patient requesting such a service as envisaged by this new law.
Firstly, we must look at what format the new law takes. By way of a summary, the following legal changes are envisaged by the bill:
Any licensed practising medical professional may now perform a termination of pregnancy up to 22 weeks in the human gestational period;[2]
Such a termination can only be performed where there is informed consent of the patient or where they lack mental capacity by their legal guardian;[3]
A medical emergency is the only reason why the procedure could be performed without informed consent;[4]
A licensed medical practitioner who is a specialist in termination procedures may perform a termination even after 22 weeks in the gestational period where the same requirement for informed consent is met and where that specialist has consulted and obtained agreement from another specialist medical professional in this field;[5]
Notwithstanding the above requirements for terminations after 22 weeks, any licensed medical practitioner (even a non-specialist) may perform a termination procedure after 22 weeks even where there is a medical emergency (medical emergency is defined as where there is a risk to the life of the mother or another foetus where the woman is pregnant with more than one);[6]
Any termination procedure over 22 weeks must be carried out in a statutory health authority hospital or approved health facility in NSW;[7]
Where a termination procedure is to happen before 22 weeks of the gestational period, the medical professional must assess whether or not a referral to counselling would benefit the person petitioning for a termination;[8]
When a patient requests an abortion over 22 weeks the medical professional must provide all necessary information about accessing counselling;[9] unless a medical emergency is declared as described above;[10]
Other health professionals (nurses, midwives, pharmacists etc.), apart from the medical practitioner performing the termination, may also assist (the definition of assist even includes administering drugs or medication) in the procedure only where they are reasonably satisfied that the requirements above have all been met;[11]
If a person requests such a procedure and a medical professional has a ‘conscientious objection’ to the procedure, they must declare they have a conscientious objection, and must provide information to the person on where to find a medical professional who will advise and assist them to have such a procedure. In effect, this is a mandatory referral provision;[12]
Breaches of any of the above may result in a complaint about the medical professional and sanctioned under the Health Practitioner Regulation National Law (NSW) and/or the Health Care Complaints Act 1993 (NSW);[13]
If during a termination procedure, for whatever reason, the baby is born alive, nothing in these new laws prevent or prohibit the health professional from providing all reasonable medical care necessary to assist that living person; in fact, it is a requirement for the health professional to do so and their duty of care to the living baby is the same as that owed to any other patient;[14]
This new law removes the criminal offence attached to assisting in, or performing, an abortion procedure;[15]
The relevant authority responsible for licensing and appointing approved health facilities for abortion procedures after 22 weeks is the Secretary of the NSW Department of Health. It is the Secretary who will issue any guidelines and all terminations performed must be reported to the Secretary in whatsoever manner the Secretary may determine;[16] and
Finally, it is expressly against the law for any termination to be performed simply for the reason of sex-selection on the part of the parent(s) or petitioners.[17]
Evidently these new laws give a wide discretion to doctors and medical practitioners on the circumstances under which abortions may be performed. Providing information about counselling is only obligatory for terminations requested over 22 weeks; however, all practitioners have, in their discretion, the ability to refer the petitioner to a counselling service. Occasions defined as a medical emergency, where either the mother or another foetus is in danger of death, are the only exceptions to these laws.
Our experience as health and medical care lawyers tells us that where wide discretion is available to medical practitioners so too is there an absolute necessity for caution in exercising such discretion. This is even more the case with these laws given that breaches of the Act are referable as investigable complaints under the Health Practitioner Regulation National Law. Therefore, where there is the option and availability for counselling, it is wise and prudent that practitioners take all such reasonable steps before exercising the discretion available to them. Such measures serve not only to the benefit of the petitioner, but also to protect the medical practitioner from any complaints or adverse actions they later may be accused of or face.
Leaving aside the discretion medical professionals generally have, the way the Act is drafted is such that those medical professionals who consider themselves ‘conscientious objectors’, that is, those that are opposed to abortion on moral or ethical grounds, are duty-bound to declare their objection and to refer patients to other practitioners. Practitioners who breach this are also at risk of being investigated or complained about under the National Health Practitioner Regulations.
If you are a medical professional who may be affected by these laws, it is important that you know your rights and obligations, particularly if you identify as a ‘conscientious objector’. The risks of not complying with the law may have a wide-ranging impact on your career and livelihood. Our experienced medical and health care lawyers make it their business to stay abreast of the latest legal developments in these areas of the law and are best placed to assist with advice or advocacy should the need arise before the Health Care Complaints Commission or any other court or authority. Get into contact with the team at Pagin + Mak Lawyers for a free consultation . We will be more than happy to discuss any questions you may have and explain the process in greater detail.
Disclaimer:
The information above is intended as general information only and should not be relied on. You should discuss your individual situation with a lawyer.
[1] Reproductive Health Care Reform Bill 2019 (NSW).
[2] Ibid, s 5(1).
[3] Ibid, s 5(2).
[4] Ibid, s 5(3).
[5] Ibid, s 6
[6] Ibid, s 6(5).
[7] Ibid, s 6(1)(d).
[8] Ibid, s 7(1).
[9] Ibid, s 7(2).
[10] Ibid, s 7(3).
[11] Ibid, s 8.
[12] Ibid, s 9.
[13] Ibid, s 10.
[14] Ibid, s 11.
[15] Ibid, s 12.
[16] Ibid, ss 13-15.
[17] Ibid, s 16.