Saturday, 27 September 2008

Qld: Supreme Court authorises abortion for 12 year old

In the recent Queensland Supreme Court case of State of Qld v B, the court had to consider an application by the State to allow an abortion to be performed on B, a 12 year old girl, who was 18 weeks pregnant. B was described as having intelligence of a very low normal range. Her obstetrician described her intelligence as being that of a 6 year old.

The court authorised the abortion.

Both the parents consented to the abortion, and the whereabouts of the father were not known. Because the father was unrepresented, and supported the application, her Honour appointed another barrister as amicus curiae, or friend of the court, to provide a differing perspective to the court to assist it in its considerations.

The starting point in the judgment was a discussion of the parens patriae jurisdiction. Her Honour Justice Wilson held:

The history and nature of the parens patriae jurisdiction were succinctly
described by Chesterman J in State of Queensland v Nolan[1] -
“[7] The jurisdiction appealed to is that which was
formally vested in the Sovereign but was transferred in centuries past to the
Lord Chancellor and from him personally to the Courts of Chancery and then to
those courts which, like the Supreme Court, exercise the jurisdiction of that
court. It is exercised to protect the person and property of subjects,
particularly children who are unable to look to their own interests. The court
has a wide power in relation to the welfare of infants. The dominant factor in
the exercise of the jurisdiction is always what is in the best interests of the
child in question. In a passage approved by Brennan J in Marion’s Case[2] it was described by Lord Esher MR in R v Gyngall[3]:
‘The court is placed in a position by reason of the
prerogative of the Crown to act as supreme parent of children, and must exercise
that jurisdiction in the manner in which a wise, affectionate, and careful
parent would act for the welfare of the child.’
The power is to be exercised
for the protection of those whose plight enlivens it. See also Fountain v
Alexander[4].”
[4] The court's parens patriae
jurisdiction clearly extends to B, but it does not extend to her unborn child.[5]

Her Honour also noted that there were offences in Queensland for unlawfully terminating a pregnancy.

Her Honour held:

I accept the considered opinions of the two psychiatrists and the
obstetrician who have examined B that the continuation of her pregnancy would
pose serious danger to her mental health and well-being, beyond the normal
dangers of pregnancy and childbirth. In their opinions the termination of her
pregnancy is the only way to avert that danger, and it would not be a
disproportionate response to that danger.
[13] It is
proposed to administer a drug misoprostol, which would induce labour, resulting
in the termination of the pregnancy by the expulsion of the foetus. Misoprostol
is a man-made form of the protein prostaglandin. It would be administered to B
orally in five doses over 12 hours, and the foetus would be expected to be
expelled in the next 12 hours. If it were not, the procedure would be repeated.
There is a less than 5% possibility that a third attempt would be required,
after a week. Common side effects of the drug include nausea, vomiting,
diarrhoea, hot flushes, abdominal pain and mild fever.
[14] The risks of using alternative procedures to terminate
B’s pregnancy are far higher. The procedure of dilatation of the cervix and
evacuation of the uterus in pregnancies beyond 14 weeks carries a higher risk of
damage to the cervix or the uterus. It is generally not undertaken in public
hospitals. The risks of a surgical procedure (a hysterotomy) are higher than
those associated with a delivery; the morbidity rate is high, particularly in
children.
[15] B has told those who have been caring
for her and those who have examined her at the hospital that she wishes to have
her pregnancy terminated, and her parents both consent to that course. But in my
view this is one of those cases where B is incapable of giving informed consent
to the termination of her pregnancy and it is beyond her parents' powers to do
so.
[16] B is only 12 years old. It seems unlikely
that a 12 year old child of average intelligence and maturity could fully
understand the significance of a termination of pregnancy, including the
immediate and long term risks to herself as the mother of the baby. But I am
satisfied that B is of less than average intelligence and maturity. Her father
has described her intellectual capacity and emotional maturity as being similar
to that of her nine year old sibling. Her obstetrician has likened her
intellectual functioning to that of a child half her chronological age. A
psychiatrist who has performed a mental status examination of her has said that
her intellect is in the very low normal range, possibly even lower. Another
psychiatrist who has examined her considers that she does have full
understanding of the nature of the proposed termination, but I reject that
opinion as against the weight of the evidence.

Her Honour then turned her mind to whether the approval of the abortion would be permitting an illegal act. Justice Wilson concluded that it was not. She held:

[18] The question of the lawfulness of conduct intended to terminate a
pregnancy goes beyond whether consent is given by or on behalf of the mother of
the unborn baby.
[19] The Court cannot authorise what
would otherwise be criminal conduct. Moreover, it would not be in B’s best
interests to subject her to an unlawful act, especially a criminal act.[9]
Section 282 of the Criminal Code
provides –
“282 Surgical operations
A person is not criminally
responsible for performing in good faith and with reasonable care and skill a
surgical operation upon any person for the patient’s benefit, or upon an unborn
child for the preservation of the mother’s life, if the performance of the
operation is reasonable, having regard to the patient’s state at the time and to
all circumstances of the case.”
[21] A medical
practitioner who performs a surgical operation on a pregnant woman is not
criminally responsible for the death of the foetus if the operation is for the
preservation of the mother’s life: K v T;[10] Re Bayliss.[11] In B’s case there are sound medical reasons for not
performing a surgical procedure. Therefore, s 282 is not applicable here.
Section 286(1) of the Criminal Code provides –
“286 Duty
of person who has care of child
(1) It is the duty of every person who has
care of a child under 16 years to —
(a) provide the necessaries of life for
the child; and
(b) take the precautions that are reasonable in all the
circumstances to avoid danger to the child’s life, health or safety; and
(c)
take the action that is reasonable in all the circumstances to remove the child
from any such danger;
and he or she is held to have caused any consequences
that result to the life and health of the child because of any omission to
perform that duty, whether the child is helpless or not.”
In my view, danger to a child’s health includes danger to
her mental health. A “person who has care of a child” is extensively, but not
exhaustively, defined in subsection (2), as follows –
“(2) In this
section—
person who has care of a child includes a parent, foster parent,
step parent, guardian or other adult in charge of the child, whether or not the
person has lawful custody of the child.”
Applying the
approach of Chesterman J in State of Queensland v Nolan,[12] that definition is capable of extending to the hospital and
doctors who have undertaken the care of B.
[23] In
the circumstances of this case, the administration of the drug misoprostol in
order to terminate B’s pregnancy would be reasonable to avoid danger to her
mental health, and so it would not be unlawful. It would be in B’s best
interests for termination of her pregnancy by that means to proceed.

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