: Abortion before the courts again

Abortion before the courts again

Kate Galloway

In April, McMeekin J of the Queensland Supreme Court heard an application by the litigation guardian of a 12-year-old girl seeking an abortion. The girl was nine weeks pregnant. The decision is reported in Central Queensland Hospital and Health Service v Q [2016] QSC 89 (26 April 2016).

There were two issues before the Court. The first invoked its parens patriae jurisdiction, seeking a declaration that the girl had sufficient capacity to consent to an abortion. The Court found that the child was clearly of sufficient maturity to give informed consent to the procedure, applying the test for Gillick competence and relying heavily on the judgment of Wilson J in State of Queensland v B [2008] 2 Qd R 562.

It might be argued that this aspect of the application is not overly surprising given the child's age and the importance of informed consent to medical procedures. Of note however, the order involved in the first place, 'termination of Q's pregnancy by the therapeutic administration of the said drugs' (Mifepristone and Misoprostol). Only if the termination was unsuccessful did the order provide for surgical abortion.

The question is why this child was required to obtain a court order to secure medical attention, when surgery such as a tonsillectomy, or administration of drugs such as steroids or cancer drugs would not require the imprimatur of the state. The reason relates to the second aspect of the judgment, namely a declaration that the termination would be lawful under Queensland's outdated Criminal Code. Q's consent to the procedure does not make the termination lawful. The doctors — and Q herself — might face 14 years imprisonment for an unlawful termination.

The Criminal Code allows for a termination if it is in the patient's best interests in all the circumstances, or to preserve the mother's life. In this case, the Court found that not only would the girl likely suffer long-term mental health issues if the pregnancy were to proceed, but that she risked physical injury from the pregnancy. In these circumstances, the Court found that a termination would be lawful.

This case highlights the inadequacy of the criminal law in Queensland. Were abortion to be decriminalised, it is unlikely that Q would have needed to endure a court hearing to prove that she was capable of consent. Either her parents' consent might have been sufficient, as it would be for almost any other medical procedure on a child, or the medical team caring for Q could have made its own assessment of her capacity and her needs. The criminal law as it stands however, makes this a risky approach for the medical staff.

Coincidentally earlier this year Member for Cairns, Rob Pyne, indicated that he will be tabling a private member's Bill to decriminalise abortion in Queensland. Stay tuned.

KATE GALLOWAY teaches law at Bond University.
(2016) 41(2) AltLJ 138
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