Central Queensland Hospital v Q: Access to abortion in Queensland and children’s ability to consent to medical treatment

 

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The decision in Central Queensland Hospital and Health Service v Q raises interesting issues in relation to the criminalization of abortion in Queensland and children’s ability to consent to medical treatment.

Q was a pregnant 12 year old girl who was referred to medical staff at the Central Queensland Hospital after asking her GP for an abortion. Q was finding the pregnancy “very stressful emotionally” and had run away from home, self-harmed, and attempted suicide on two occasions.

The medical specialists and counselors that had met with Q supported her decision to terminate the pregnancy, as did Q’s parents. There was evidence that continuing the pregnancy would pose significant risks to Q’s physical and mental health.

Central Queensland Hospital sought orders from the Court authorizing the termination of Q’s pregnancy. These were granted by Justice McMeekin in the Queensland Supreme Court on the 20th of April, followed by the judge’s reasons a week later.

The parens patriae jurisdiction

The Supreme Court’s parens patriae jurisdiction formed the basis for the Court’s intervention. This jurisdiction grants Supreme Courts wide powers in relation to the welfare of children, with the best interests of the child being the Court’s primary consideration.

Could Q consent to the treatment?

As I discuss in an earlier post, a child can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed,” i.e., is Gillick competent (following Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112).

Generally speaking, parents can consent to treatment on children’s behalf when they are not Gillick competent. However, there are some forms of treatment that fall outside the scope of parental consent, known as “special medical treatment.”

Justice McMeekin held that terminations are one such form of treatment (following State of Queensland v B [2008] QSC 231). Accordingly, court authorization for the treatment would be needed if Q herself was not competent to consent to the treatment.

Justice McMeekin found that Q had a good understanding of the risks involved in the procedure, but doubted that she had the maturity to fully appreciate the long-term consequences of a decision to continue with the pregnancy. Accordingly, she was unable to make a fully informed decision and was not competent to consent to the termination. As such, it was appropriate to invoke the Court’s parens patriae jurisdiction.

Could the treatment be performed lawfully?

Queensland’s Criminal Code criminalizes the termination a pregnancy, unless authorized or justified by law. Section 282 of the Code provides that a person is not criminally responsible for performing a termination so long as it is for the patient’s benefit or to preserve the mother’s life, and is reasonable in the circumstances.

Section 286 of the Code also provides that a “person who has care of a child” must provide the necessaries of life for the child, and take reasonable precautions to prevent danger to a child’s health, including their mental health. The definition of “a person who has care of a child” can include hospitals and doctors who care for children.

In determining whether the termination was lawful, Justice McMeekin followed the approach of the Victorian Supreme Court in R v Davidson [1969] VR 667, which held that an abortion would be lawful where it was believed on reasonable grounds that the abortion was necessary to prevent serious danger to the patient’s life or health, and it was not out of proportion to the danger to be averted.

Justice McMeekin held that it was clearly in Q’s best interests for termination of the pregnancy to proceed, as it was necessary in order to prevent serious danger to Q’s mental and physical health. Further, the proposed response was not out of proportion to the danger to Q’s health. Accordingly, the termination would not be considered unlawful, and it could be justified under sections 282 and 286 of the Code.

Justice McMeekin declared that: the termination of the pregnancy through the administration of drugs was lawful; Q should be permitted to undergo the termination; and the hospital’s staff be permitted to perform it. If the drugs failed to effect a termination within five days, Q’s pregnancy could be terminated using a surgical procedure.

What are the implications of the decision for access to abortion services in Queensland?

The criminalization of abortion in Queensland creates a barrier to women’s access to reproductive services. Q was forced to wait weeks for court authorization for her termination. In 2010 a young Cairns couple faced criminal charges for importing the abortion drug Misoprostol and inducing a miscarriage at home. They were ultimately found not guilty, but following that case, many doctors in Queensland stopped performing abortions.

Lucy Clark in The Guardian suggests that similar fears and uncertainties may be behind Q’s doctors’ decision to seek court authorization for her treatment. She may be right in that respect, but it must be kept in mind that the Queensland Supreme Court characterizes abortion as a form of “special medical treatment” that parents cannot consent to. Accordingly, court authorization would still be needed to perform a termination on a child that was not Gillick competent, regardless of abortion’s status under criminal law.

Kerridge, Lowe and Stewart criticize the characterization of abortion as a form of special medical treatment, arguing that it should fall within the scope of parental consent for children’s medical treatment. A change in the common law would be required in order for a termination to be performed on a non-Gillick competent child without court authorization (although the courts could still intervene under their parens patriae jurisdiction).

Nevertheless, the decriminalization of abortion in Queensland is still an important step in enhancing respect for women’s reproductive rights, and in ensuring access to abortion services.

Donors and recipients of embryos and eggs – what happens when the relationship breaks down?

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NSW Health has begun an investigation into allegations published last week by Fairfax media that the recipient of a donated embryo covered up the fact of her successful pregnancy in order to mislead IVF Australia and sever ties with the embryo donors.

Natalie Parker and her husband had three spare embryos left over from previous treatment.  They agreed to make them available to a couple who had been through multiple, unsuccessful IVF cycles.

It was a difficult decision for the Parkers because “those three extra embryos were their genetic offspring, potential siblings for their two young boys…and represented the same hopes and dreams they had for their living children”.

The embryo recipient met Ms Parker on the Embryo Donation Network, a website that “helps you to find the donor or recipient who is right for you”.

Initially both women hit it off.  The recipients agreed to the Parker’s condition for ongoing contact between the two families, and for a relationship between the genetic siblings.

However, after the embryo was transferred, contact between the Parkers and the recipient ceased.

According to Ms Parker, the recipient advised IVF Australia that the two embryos transferred to her were unsuccessful in achieving pregnancy, and that she had begun her period.

A year later, IVF Australia asked the Parkers for instructions about the storage of the last-remaining of the three spare embryos they had donated.

Ms Parker found it odd, if indeed the transfer of the first two embryos had been unsuccessful, that the recipient had not shown any interest in the third embryo, which represented a further chance for her to fall pregnant.

Some months later, Ms Parker tracked the recipient down on Facebook and was shocked to see the photo of a baby boy on the recipient’s page who bore a striking similarity to her own children, and looked to have been born around the time the donor embryos were transferred.

She felt betrayed.

Fairfax media reports that Ms Parker believes the recipient became pregnant with her donated embryo, but chose to cut off all contact, intending to deprive the resulting child of contact with his genetic siblings.

“’I trusted them’, Ms Parker said of the recipients.  “I feel taken advantage of, and incredibly sad that there is a child out there who I helped to create, and who is a part of me and my heritage, who potentially will never know where they came from”.

 

What happens when the relationship between donors and recipients breaks down?

In 2013, more than 12,600 babies were born in Australia as a result of assisted reproductive technology (ART) procedures, including in-vitro fertilisation (IVF),  donor egg, and less frequently, donor embryo.

In New South Wales, the Status of Children Act supports ART procedures by making the “birth mother” of a donated egg or embryo the legal mother, and her husband the legal father.

The Human Tissue Act prohibits trading in tissue.  This means that donors of eggs, sperm or embryos cannot be paid for making donations, although the reimbursement of reasonable expenses is permitted.

When couples who have undergone ART treatment are considering donating spare embryos that are no longer needed for their treatment, they may naturally wish to have some measure of contact with their genetic offspring.

Similarly, if a woman agrees to donate an egg to a woman or couple who need one, commercial incentives are absent.  Egg donors must be willing to undergo an IVF cycle for the sole purpose of helping someone else.

The resulting environment is a competitive one.  Recipients must compete for scarce donors and portray themselves as worthy.  It’s a matter of “please like me”, “please choose me”.  Saying this does not imply any criticism of donors.

According to Fairfax, the incident involving the un-named recipients “raises questions about the lucrative IVF industry’s commitment to ensuring the welfare of all its patients”.

To the extent that this is a criticism of IVF Australia for failing to definitively confirm whether the transferred embryos were successful in achieving pregnancy, it ignores the fact that IVF Australia had no way of “forcing” the recipient to return to IVF Australia, at her own expense, for tests to confirm whether or not the transfer of the donated embryos had failed.

Furthermore, if the result is successful, the recipient will have no further need for the services of the ART provider.  The recipient will be free to seek pre-natal care elsewhere.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from the ART provider; after all, pregnancy is the shared goal of both parties.

In this case, however, the recipient evidently wished to be free of the conditions imposed by the embryo donors, which included contact between the genetic siblings.

A recipient who feels this way will obviously need to hide their preferences in order to create the necessary rapport that enables them to be chosen by the donors in the first place.

Fairfax media notes Ms Parker’s strong feelings that it would be in the best interests of the child for him to have ongoing contact with her own children.

The child’s best interests will arise as the key consideration when a court is making a parenting order following the breakdown of a marriage.

In this case, however, the parentage of a child born as a result of a donated embryo is clear: the “birthing parents” are the legal parents.

In my view it is certainly in the best interests of a child born as a result of an ART procedure that they should have the opportunity to make contact with their genetic parents when they reach 18.  What is less clear is whether a genetically-related non-parent should be able to enforce the conditions on which they agreed to donate an egg or embryo – during childhood.

There would seem to be no reason, in principle, why the Family Court could not consider this issue under it welfare jurisdiction.

When exercising its welfare jurisdiction, the child’s interests will be paramount.  It is clear that access rights by genetic parents or enforced contact with genetic siblings would not follow automatically.  It would depend on the Court’s consideration of all the circumstances – assuming, in addition, that the welfare jurisdiction extended to making such orders.

 

Is it an offence to withhold information from an ART provider about a successful IVF pregnancy?

Fairfax reports that the recipient may have breached existing statutory requirements in NSW by providing false information to IVF Australia.

The Assisted Reproductive Technology Act requires ART providers to keep records of “the identity and any other prescribed information about each offspring born as a result of the ART treatment by the ART provider” (s 31(1)(c)).

This duty is further clarified in the Assisted Reproductive Technology Regulations (s. 14) which require the ART provider to keep records of (amongst other things) the name, sex and date of birth of each offspring born following ART treatment provided by that ART provider.

The Act contains an offence provision (s 62) for making a representation that is false or misleading in response to a request for information that (amongst other things) relates to the matters set out in s. 14 above.

This provision attracts a penalty of 200 units, currently $11,000

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When the tobacco industry dumps cheap eastern European ciggies on the Australian market, it’s time to impose mandatory reporting of sales data

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Fairfax media reports that Australian supermarkets – Coles, IGA, Foodworks – are selling cut-price smokes.

Not surprised.  Supermarkets – including Coles and Woolworths – are among Australia’s largest tobacco retailers; they also offer discounts for alcohol in the co-located alcohol chains they own.

When I hear supermarket spin-doctors talking about their commitment to health, it reminds me of the  commitment to vegetarianism shown by Bruce the shark in the film Finding Nemo.

It turns out that supermarkets are stocking a new variant of Peter Stuyvesant, a brand manufactured by Imperial Tobacco.

Actually, these days Imperial Tobacco goes by the name of Imperial Brands Plc.  They even have a webpage on responsibility where you can read about how they are opposed to slavery and stuff.

Peter Stuyvesant Originals Blue, manufactured in the Ukraine, sells for between $3 and $6 per pack cheaper in Australian supermarkets than Peter Stuyvesant Classic Blue, which is manufactured in New Zealand.

Both brand variants were supplied by Metcash Ltd, a wholesale distributor.

So…is Imperial introducing a brand extension, and using price to differentiate between Originals Blue, and Classic Blue – neither of which are blue, following mandatory plain packaging.

Or is it just dumping cheaper-to-make ciggies from Eastern Europe onto the Australian market to shore up youth sales? – what the hell, we told you it would be a free-for-all on price if you introduced mandatory plain packaging?

Raising the price of tobacco is a powerful way of reducing tobacco consumption, particularly among young people.

But when a manufacturer introduces a cut-price brand variant, which is snapped up by your family friendly local supermarket, it has the opposite effect.

Which might explain why Sarah White, director of Quit Victoria, says “The cigarette companies are not doing this to make money, they’re doing this to keep people hooked”.

 

Out of the horse’s mouth

A few years ago, the CEO of a leading Australian tobacco manufacturer told me:

We do quite a lot of work on trade marketing, which is getting the product into store fresh in the right place, in the right category, the right selection.  So we work with people like Coles, Woolworths, independents, trying to make sure that we’ve got the right selection of product for the right consumers in the area. Pricing is the other tool that we’re allowed to use…it’s a free market, the ACCC are very, very strong on competition in this jurisdiction….I would say about, about 90% of our work and our dollars are spent on getting the right pricing definitions in the marketplace.

So you have it from the horse’s mouth.  Australian tobacco companies spend much of their time and money massaging their supply chains to achieve retail prices that will maximise sales of their brands within each geographic market and market segment.

The same thing happens overseas.  Reliably late, the US Federal Trade Commission has just released their Cigarette Report for 2013.

It reveals that the tobacco industry spent US$8.95 billion on tobacco advertising in 2013.  Over 85% of this spend (US$7.6 billion) was paid to cigarette retailers in the form of price discounts.

It’s time we discovered the facts about similar behaviour by Australian tobacco manufacturers and wholesalers.

In 2011, the National Preventative Health Taskforce called for a comprehensive national surveillance system that included wholesale and retail sales datasets for alcohol and tobacco.

Gartner, Chapman and colleagues have also made the case for mandatory reporting of tobacco sales data several years ago in the Medical Journal of Australia.

Sales data is critical to evaluating the effectiveness of tobacco controls, as well as the scale of price discounting by the industry itself.

Such data is available to the industry – which uses it to constantly finesse their marketing strategies, in order to maximise cigarette sales.  However, it is not currently available to government.

Collecting such data would not mean that a company’s commercial in-confidence information was disclosed to competitors.

Tobacco is not an ordinary market.  More tobacco sales ultimately means more death and disease, more misery for families, more health care costs.

When Australian cigarette manufacturers dump cut-price ciggies from Eastern Europe into Australian supermarkets, it’s time to impose mandatory reporting of sales data for all tobacco products supplied to retailers, disaggregated by local postcode or area.

Then government would have a clearer basis for responding definitively with policies to discourage youth sales by keeping prices high.