Abortion Law in Australia – Recent Concerns and Controversies
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Transcript of Abortion Law in Australia – Recent Concerns and Controversies
TERMINATION OF
PREGNANCY IN
QUEENSLAND:
A MEDICO-LEGAL SHAMBLES
Douglas Keeping
• 600 – 700 deliveries per year
• One of the partners of Queensland Fertility
Group since 1982
• Opinion in about 350 medico-legal cases
MORALITY OF T.O.P.
• A spectrum of views often passionately
held
• Most people have a fairly strongly held
opinion
• I have my own views
• None of these is addressed in this talk
PURPOSE OF THE TALK
• T.O.P. happens and will continue to
happen – it is a “given” in this
presentation
• How is it organised and what are the
outcomes and problems?
• From a medico-legal perspective
REASONS FOR T.O.P.
• Because a woman requests one
• A medical condition so severe as to make
continuation of the pregnancy likely to lead
to death is very rare
• Can be “dressed up” as psycho-social
aspects – looks / sounds medical
• Ultimately because a woman requests one
METHODOLGY OF T.O.P.
• Early T.O.P. (up to 12-14 weeks)
-Suction / D&C : G.A.,L.A., Sedation
-Prostaglandin (PG) drugs – D.I.Y.
• Later T.O.P. (16 weeks onwards)
-D&E – a bigger scale D&C usually with
PG drugs to soften the cervix
-PG drugs to induce a “mini labour”
AN ANECDOTE
• Aberdeen Scotland 1973
• A woman from Glasgow on holiday in Aberdeen in a caravan park with husband and 4 kids
• Admitted to gynae ward with septic miscarriage
• Klebsiella septicaemia : D&C and antibiotics and started to get better
• Denied it was an DIY T.O.P.
ANECDOTE (cont)
• 2 days later unable to open jaw
• Valium, tongue depressor: still unable
• Next day diagnosed with Tetanus
• Ventilator, ICU
• Transferred to Glasgow
• Died in their ICU
• Irony that she had come from Glasgow where
T.O.P. was not allowed to Aberdeen where it
was allowed to have an illegal T.O.P.
QUEENSLAND : THE LAW
• Criminal Code 1899 – Section 224
Any person who, with intent to procure the
miscarriage of a woman…uses any means
whatever, is guilty of a crime, and is liable
to imprisonment for 14 years
• Subsequent “case law” has resulted in a
smorgasbord of interpretation and
confusion
HISTORY OF T.O.P. IN
QUEENSLAND
1985
• Peter Bayliss runs a T.O.P. clinic in a house in
Greenslopes
• The government, the D.P.P., the police raid the
clinic.
• They take away instruments, bits of placenta
and fetus from the drains and 20,000 patient
records
• Peter Bayliss and Dawn Cullen are charged
HISTORY (cont.)
• Not guilty verdict
• Judge McGuire
• “For the preservation of the mother’s
life…having regard to the patient’s state at
the time and to all the circumstances of
the case”
HISTORY (cont)
• “The law in this state has not abdicated its responsibility … to the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society.
• There is no legal justification for abortion on demand.”
HISTORY (cont)
• Judge McGuire
The present abortion law in Queensland is
uncertain and more imperative authority,
either the Court of Appeal or Parliament
would be required to effect changes to
clarify the law.
HISTORY (2)
2010 Cairns
• 25 years after the Bayliss case
• The cavalry (the DPP and the police) are
still alive and kicking
• Teagan Leach is charged with procuring
her own miscarriage
• Sergie Brennan is charged with procuring
drugs (PG) for an abortion
HISTORY (2) (cont)
• The Crown case is that it is illegal to have
an abortion unless there are serious risks
to the health, to the mental or physical
health of a woman and that did not exist in
the case of Tegan Leach
• Detective Senior Sergeant A.W. found
blister packs with foreign writing in the
wardrobe… from the Ukraine
HISTORY (2) (cont)
• Verdict : Not guilty
• 1985 – 2010
• Plus ca change plus c’est la meme chose
• There is an unexpected sequel in the lead
up
• The doctors at RWH who perform TOP’s
for fetal anomaly stop doing them on the
grounds that they too may be prosecuted
HISTORY (2) (cont)
• The Queensland Government makes a change to Section 282 of the Criminal Code to protect these doctors
• “A person is not criminally responsible for performing…a surgical operation or medical treatment … if performing it is reasonable, having regard to the patient’s state at the time and to all circumstances of the case”
T.O.P. in QLD NOW
Mainstream Hospitals
• Fetal anomaly or major medical disease in
the mother
• Suction / D&C for early T.O.P.’s
• Induction of “mini-labour” with PG as an
in-patient in hospital for late abortions
• The other 95% go to clinics outside
hospital
T.O.P. in QLD NOW (cont)
The outside clinics – for the 95%
• Suction / D&C for early T.O.P.’s
• D&E’s with priming of the cervix with PG
drugs for late T.O.P.’s
• They have no in-patient facility
• So they cannot induce mini-labours
• And there can only be a short interval
between PG and D&E
THE CASES
• That was a long preamble
• The following four cases have been picked
from a much bigger number to illustrate
the continuing problems in Queensland
• I have picked them because they are
medico-legal cases in which I have given
an expert opinion
CASE 1
• A 17 year old girl from out west requests a
T.O.P. at 8 weeks at Peter Bayliss’s clinic
at Greenslopes
• He sees her on a Friday : rigid nulliparous
cervix
• He puts a laminaria tent into the cervix and
she goes home for the weekend to return
on Monday for a suction D&C T.O.P.
CASE 1 (cont)
• Over the weekend she goes to the A&E out west. She has vomiting, later a temperature and abdominal pain
• It takes a while for it to become obvious that she has an infection which progresses to a gram negative septicaemia and she is becoming very ill
• There is no clear history of what had happened to her cervix in Brisbane
CASE 1 (cont)
• She is put into an ambulance with I-V
antibiotics to be transported to a bigger
hospital
• The ambulance breaks down in the middle
of nowhere
• The patient arrests at the same time
• She dies in the ambulance at the roadside
CASE 1 (cont)
OPINION
• There is no question of negligence ..at the
country hospital or in the ambulance
• I would criticise the idiosyncratic treatment
in Brisbane with inadequate arrangements
for care over the next 3 days in a remote
area
CASE 1 (cont)
• I would criticise the State of Queensland
for having a law and a system which
results in just this sort of tragedy. The
tragedy is all the worse in that in all
probability it would not have happened if a
proper service were available in proper
hospitals
CASE 2
• Medical Board case
• 23 weeks pregnant
• Would not qualify for T.O.P. in hospital
• Day clinic
• PG given : 4 doses between 9am & 12md
• 12.50 D&E. Cervix dilated to Hegar 21
• Near the end of the procedure it is realised that the uterus has been perforated
CASE 2 (cont)
• Transferred to QE2 Hospital
• Laparotomy
• 1000mls of blood in abdomen
• Large laceration through right side of the
uterus with fetal skull embedded in it
• Laceration repaired. Uterus conserved
CASE 2 (cont)
Opinion
• The customary opinion from “down south”
that induction of mini labour with PG would
be the method used “down south” and that
the D&E was not acceptable practice
CASE 2 (cont)
My opinion
• There would be very few OB/GYNS who have not perforated a uterus
• I believe that Dr W is very experienced in conducting terminations
• As such… the damage in this case is “acceptable”. This does not mean that it is not a terrible experience for the patient or imply any lack of sympathy….
CASE 2 (cont)
• I would agree with Dr (down south) that if it
were available …. the use of PG to induce
mini-labour would be the preferred
method…although it is not devoid of risk.
• It is fairly obvious from Dr D.S.’s opinion
that he is unaware of the issues and
politics in Queensland.
CASE 2 (cont)
(cont)
• As such it would be more appropriate for
him to confine his opinions to Victoria or
perhaps to acquaint himself of the
situation in Queensland
CASE 2 (cont)
• It is a recurrent theme in many of these cases that an interstate expert criticises the management as being less than ideal
• But the ideal is not available in Queensland
• So is it acceptable practice to perform the less than ideal?
• The Judiciary has a problem getting its head around that
CASE 3
• Aged 39, 2nd pregnancy
• Amniocentesis 16 weeks (her request)
• Trisomy 21 (Down’s syndrome)
• Now 17 weeks
• Request for T.O.P.
• Declined by RWH because of current local
politics (impending case in Cairns)
CASE 3 (cont)
• Impending case in Cairns
• Young couple being charged with
procuring miscarriage with DIY PG
• The doctors at RWH were nervous that the
case in Cairns might revolve around the
medical induction rather than the illicit
procurement of DIY PG drugs
• So no PG mini-labours were done at RWH
CASE 3 (cont)
• Patient referred to Westmead Hospital
• Others went to various hospitals interstate
• T.O.P. performed with PG by sympathetic
staff
• Cost of interstate travel etc paid by couple
• Having to go interstate adds an extra
dimension of guilt – that it is somehow
illicit in Queensland
CASE 4
• A prostitute, 19 weeks pregnant with a
4 year old child. Exhausted and desperate
• Referred to Dr Adrienne Freeman
• PG (Prostaglandin) given as out-patient
• Instructions as to what to do subsequently
when she aborts including if and when to
attend hospital
CASE 4 (cont)
• Bleeding and pain
• Attends hospital: The Mater
• Cannot continue with TOP there
• Dr David Watson tries RWH: they decline
• Patient still has supply of PG
• Scan at Mater shows dead fetus
• Proceeds to mid-trimester miscarriage
CASE 4 (cont)
• Dr David Watson reports Dr Freeman to
The Medical Board of Queensland
• ? “Unsatisfactory professional conduct”
• The safety of such out-patient PG TOP
revolves around the protocol of
management during the miscarriage
including admission to hospital if it is
necessary
CASE 4 (cont)
• To The Health Practitioners Tribunal
• Is this the ideal method of mid-trimester
TOP?
• Is it an “acceptable” management?
• Is it “unsatisfactory professional conduct?
CASE 4 (cont)
The “down south” expert opinion
• The basis of Dr G E’s report is that in Victoria they would do it differently –inpatient induction of mini labour with PG. So would I if I were in Victoria or elsewhere. Things are different in Queensland. The choice of method which he (and I) would advocate as ideal is not available in Queensland. Fullstop.
CASE 4 (cont)
• The choice in Queensland is very simple
• To have a potentially traumatic mid-
trimester D&E evacuation or not to
perform the procedure at all
• Dr Freeman has responded to this by
introducing a semi-outpatient, semi-
inpatient procedure
CASE 4 (cont)
• I agree with Dr E that this is a less than ideal approach.
• There is in my view a wide gap between
“less than ideal” and “unsatisfactory professional conduct”
• I think that Dr Freeman is misguided and perhaps a little naïve…but she is motivated by genuine compassion for the patient and frustration at the archaic view of TOP in Queensland
CASE 4 (cont)
• The Tribunal: Guilty
• The Appeal Court: set aside the decision
• A New Tribunal: Guilty
• The Appeal Court: appeal dismissed
• Leave to appeal to High Court: refused
• The penalty: registration suspended for
four months but the whole of this to be
suspended for two years
CONCLUSIONS-1
• From a medico-legal overview where are
we now?
• There is a base of law from the 1800’s
• There are ad hoc band-aids: “case law”
• More band-aids from the Government –
modifications of the Criminal Code
• The nett result resembles a badly
assembled piece of Ikea furniture
CONCLUSIONS-2
• The medical profession is stumbling
around trying to work out which cases
might be conducted inside mainstream
medicine
• The majority of cases will then be
conducted outside the mainstream
• The circumstances may often be less than
ideal – is that acceptable?
CONCLUSIONS-3
• The constabulary and the DPP are
digging up drains in Greenslopes and
checking on wardrobes and bedrooms in
Cairns
• With all the finesse of dinosaurs in a china
shop
CONCLUSIONS-4
• The legal profession is stumbling around
trying to interpret the vagaries of an 1800’s
piece of Ikea furniture which has been
badly assembled with band-aids
CONCLUSIONS-5
• The Judiciary is confused – the meat in the sandwich
• It too has difficulty interpreting the Ikea mess
• It has difficulty getting its head around the concept of what is acceptable in a less than ideal Queensland world
• It is easier to stick with Mayo Clinic gold standards
CONCLUSIONS-6
• The patients
• Are victims of this medico-legal shambles
• The anxiety and guilt which most women
seeking a TOP feel is compounded by
being excluded from mainstream medicine
• To be part of what seems to be backstreet,
covert and quasi legal
• And riskier than it should be
CONCLUSIONS-7
• Assumption: that TOP happens and will continue
to happen – whether you approve of it or not
• Because of the legal situation in Queensland it is
often performed in less than ideal circumstances
• If appendicectomy, cholecystectomy or
hysterectomy were performed in a similar
fashion there would be outrage and demands for
a commission of enquiry
• Where does the buck stop?
THE FINAL CONCLUSION
The current medico-legal shambles
exists because successive
Queensland governments have
lacked the balls to address a
controversial problem