Religious discrimination in Australian health law: hype or reality?

Queensland has passed the Voluntary Assisted Dying Act 2021.

I’m disappointed in Queensland’s Parliament, not for passing assisted dying legislation, but for consciously trampling over the religious beliefs of Catholic and other religious healthcare organisations.

Catholic hospitals are right to be aggrieved.  It’s entirely predictable that church institutions are now considering civil disobedience. (See “Catholic Hospitals’ Revolt on Euthanasia” Weekend Australian 21-22 August 2021, p 4. See also here).

I mean, if you genuinely believe that intentional killing is wrong, you don’t just help it along because a bunch of politicians told you to, do you?

Catholic moral beliefs preclude intentional killing, yet Queensland’s law will force Catholic hospitals to open their doors and to facilitate actions to end the lives of patients in their care, on their premises, by non-credentialed doctors who do not share their moral values.

The passage of assisted dying laws in Victoria (2017), Western Australia (2019), Tasmania (2021), South Australia (2021), and now Queensland illustrates the growing heft of personal autonomy as a secular value in Australian life.

(I call this the “Dombrink thesis”, after American scholar Professor John Dombrink, who demonstrated the resilience of libertarianism, through – and despite – America’s culture wars.  See here, here, and here.)

Recent assisted dying laws follow on the heels of two decades of reform that have greatly liberalised abortion laws in every State and Territory; see eg here, here, and here.

But if personal autonomy means anything, it ought to extend to those who, despite these changes, have a sincere, morally-grounded opposition to killing and assisted suicide.

In my view, co-opting religious health care organisations to facilitate euthanasia is a step too far.

For further detail on what Queensland’s new law will force religious health care facilities to do, see below.

 

Sharing the love? The importance of singing in church in the middle of a pandemic

Let’s be clear: not all complaints of discrimination or oppression, by churches, in Australia’s largely tolerant democracy, are worthy.

For example, in a Facebook post on 2 July, Pastor Brian Houston of Hillsong fame dismissed Covid delta outbreak restrictions that prohibited singing in church as “religious discrimination…so archaic it’s hard to believe”.

He urged his followers: “Let’s make a stand”.

Judging by their responses, some of Houston’s followers are primed for persecution and reluctant to see themselves as beholden to earthly laws (that is, emergency public health orders).

On 16 June 2021, an outbreak of the insanely infectious delta variant of the Covid virus began in New South Wales.  Daily cases are currently averaging over 1200; see here.

On 20 June, masks became mandatory in “places of public worship, being used for public worship or religious services”, in 7 local government areas.

On 23 June, singing in non-residential premises – including places of worship – was banned. However, a number of exceptions applied, including singing in a performance or rehearsal, singing in educational institutions, singing for the purposes of instruction in singing, or if “the premises are a place of public worship, and the persons singing are members of a choir”.

On 26 June, the exception for choirs was eliminated.

In response to questions raised at a Religious Communities Forum held on 28 June, NSW Health advised forum members by email that the delta outbreak restrictions operating at that time (the Public Health (Covid-19 Temporary Movement and Gathering Restrictions) Order 2021, dated 26 June 2021) did, indeed, prevent singing in places of worship, even if a religious leader was singing to a largely empty church or place of worship as part of a livestream.  Masks must also be worn.

The intent of the restrictions, NSW Health advised, was to prevent transmission between, for example, a singing pastor, and people providing technical assistance during the livestream, given previous evidence of tansmission via singing in a place of worship.

NSW Liberal MP Tanya Davies raised Houston’s concern with Premier Gladys Berejiklian and Health Minister Brad Hazzard.  Hazzard granted an exemption on 3 July, with specified safeguards: see here.

I suspect that quiet diplomacy by Houston would have been equally effective, if the need for religious leaders to sing directly to camera outweighed the importance of protecting others present in the venue from the risk of acquiring the highly infectious delta variant.

I notice one comment on Pastor Houston’s post:

“It’s time people stopped seeing everything as an attack or discrimination. Seriously we are in a pandemic.  Christian leaders should be setting a good example”.

Amen to that. As to which, see here, and here.

 

Moral arm-twisting in Queensland’s voluntary assisted dying legislation

While some complaints of discrimination by religious leaders are over-blown, I would put Part 6 of Queensland’s Voluntary Assisted Dying Act in a different category.

The new Act respects the right of a health practitioner not to provide information about voluntary assisted dying, nor to participate in the assessment process for lawful access to assisted dying that the legislation makes available (s 84).

However, Part 6 co-opts health practitioners and forces them to facilitate that assessment process, irrespective of their personal beliefs about the ethics of killing.

Let’s count the ways.

Firstly, a health practitioner with a conscientious objection must either refer a patient requesting information on assisted dying to an officially approved “navigator service” for assisted dying, or to a health practitioner who is known not to have moral scruples about assisted dying and may be willing to assist (s 84(2)).

Secondly, a “relevant entity” (meaning a health care establishment such as a hospital, hospice or nursing home) must not hinder a person’s access to information about assisted dying.

In order not to do so, the health facility must provide entry to a registered health practitioner, or member or employee of an approved navigator service in order to “provide the requested information to the person about voluntary assisted dying” (ss 90, 156).

Thirdly, the new Act requires a health care facility operated by a church or religious organisation to provide access to an (external) medical practitioner who is willing to act as the patient’s “coordinating medical practitioner” for the purposes of facilitating assessment and taking the various actions required by the legislation in response to the patient’s first, second and final requests for assistance to die (ss 9, 92-93).

If the medical practitioner requested by the patient is unable to attend, the religious health care organisation must facilitate the transfer of the patient to and from a place where the patient can formally request assistance from a medical practitioner who is willing to act as the coordinating medical practitioner (ss 9, 92(3); 93(3)).

Fourthly, the religious health care facility must facilitate the coordinating medical practitioner (or their delegate) to carry out a “first assessment” of the patient’s eligibility for dying assistance under the Act, either by permitting this to occur within the facility, or by facilitating transfer of the person to and from a place where the assessment can take place (ss 9, 19, 94).

The same obligations apply to the second, independent “consulting assessment” that occurs if the coordinating medical practitioner concludes from the first assessment that the patient is eligible for voluntary assisted dying (ss 9-10, 30, 95).

After making a third and final request, and undergoing a final review, an eligible patient may decide to self-administer a voluntary assisted dying drug or, if advised that this is inappropriate, may choose to have the drug administered by the coordinating practitioner (ss 50, 56).

This step triggers a number of authorisations, including the right to prescribe, supply, possess and self-administer, or administer the drug overdose to the patient (ss 52-53).

Again, the legislation requires a religious health care facility to provide access to the coordinating practitioner so that the patient can choose how the drug will be delivered – whether within the facility, or by assisting transfer and travel to a place outside the facility where these decisions can be made (s 96).

The facility must then provide access to the administering practitioner and witnesses to enable assisted dying to take place on the premises, and must not hinder self-administration if the patient has made a self-administration decision (s 97).

These statutory requirements honour the voluntary assisted dying principle that “a person should be supported in making informed decisions about end of life choices” (s 5(f)), and that “access to voluntary assisted dying…should be available regardless of where a person lives in Queensland” (s 5(e)).

Another principle recognised in the legislation is that “a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected” (s 5(h)).

However, by forcing religious health care facilities to cooperate in processes whose central aim is intentional killing, (I am not here debating the rigour of safeguards) the legislation tramples over well-known and defended moral values that lie at the heart of professional, competent, yet religiously-informed health care.

The bottom line

Like abortion, assisted dying is one of the enduring ethical fault lines in medicine.

Politicians can’t legislate it away.

Part 6 of Queensland’s Act seems hell-bent on making victims of doctors and religious organisations that have long-standing, deeply felt moral objections to intentional killing.

There ought to be room in Australia’s liberal democracy for religious hospitals and hospices to offer their services, including high-quality palliative care, in accordance with long-standing ethical values, without putting euthanasia on the menu.

Patients who request assessment for assisted dying should be transferred to a facility where such actions do not offend long-standing institutional values, as provided in South Australia’s legislation, which recognises a right of conscientious objection for hospitals and other health care establishments (see s 11, although this does not extend to nursing homes).

Abortion law reform and conscientious objectors in NSW

New South Wales is on the cusp of reforming its decades-old abortion laws.

Reproductive Health Care Reform Bill 2019 which passed the State’s Legislative Assembly last week abolishes the triumvirate of criminal offences for abortion in the Crimes Act 1900 (ss 82-84), together with any residual common law liability for performing an abortion.

It creates a new offence for an unqualified person to perform or assist in the performance of an abortion.

New requirements for lawful abortion

The version of the Bill passed by the Legislative Assembly includes a number of requirements that were absent from the Bill as originally introduced by Independent MP Alex Greenwich.

The Bill follows Queensland legislation in authorising a medical practitioner to perform an abortion on a consenting woman who is not more than 22 weeks pregnant.

Before doing so, the doctor must consider whether the pregnant woman would benefit from counselling about the proposed abortion, and if so, must provide her with information about how to access such counselling, including publicly-funded counselling (s 7).

Beyond 22 weeks, an abortion may only be performed in a hospital or other approved facility (ss 6(1)(d), 12).

A woman seeking an abortion beyond 22 weeks must first consult a “specialist medical practitioner”, defined to mean a specialist registered in obstetrics and gynaecology, or alternatively – and rather vaguely – “a medical practitioner who has other expertise that is relevant to the performance of the termination, including, for example, a general practitioner who has additional experience or qualifications in obstetrics.”

The first specialist medical practitioner must consult with a second specialist medical practitioner and both must conclude that “in all the circumstances, the abortion should be performed”, having considered the pregnant woman’s medical circumstances, her current and future physical, psychological and social circumstances, and professional standards (s 6).

However, these requirements (including the requirement for the doctor to be a specialist) do not apply if the doctor believes that the abortion is necessary to save the woman’s life or save another foetus (s 6(4)).

The Bill authorises medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners to assist in abortions in the practice of their health profession, provided they comply with the requirements summarised above (s 8).

Conscientious objectors

Then comes the bit about conscientious objectors.

The NSW Bill follows abortion liberalisation laws in other States, including Queensland, Victoria, and Tasmania, in recognising a medical practitioner’s conscientious objection to advising about, assisting or performing an abortion.

However, the Bill requires conscientious objectors who have been asked to perform or advise about an abortion to refer the woman to another medical practitioner (or health service) whom they believe “can provide the requested service and does not have a conscientious objection to the performance of the termination” (s 8).

To me, that looks a lot like compelling a doctor to participate in facilitating an abortion, irrespective of their moral beliefs.

The Bill is oddly worded, but s 10 appears to indicate that failure to perform one’s statutory duty and to refer a woman seeking an abortion to a medical practitioner who is happy to provide one, is something that can be taken into account in considering complaints made against that doctor to the Medical Council of NSW, or complaints to the Health Care Complaints Commission.

So why privilege the conscience of doctors when it comes to abortion, as distinct from treating abortion like any other medical service?

Stop and think about it.

Because abortion is only one of the most long-standing and bitterly contested medical ethics issues of all time, and medical practitioners who sincerely believe that abortion is morally wrong all or most of the time are hardly newcomers to the health system.

Because the foetus is not nothing – just ask the thousands of women out there who would do anything to fall pregnant, or stay pregnant – and if the foetus is not nothing then a medical practitioner ought to be given the moral space to decide whether and under what circumstances they will participate in the process that leads to killing it.  As courts have said in other contexts, a foetus is not just tissue of the woman in the same way as, say, a diseased appendix or diabetic limb.

Rather than recognising that we live in a pluralistic society where fundamental disagreement persists around issues like abortion and assisted dying, the Bill adopts a triumphalist, winner-takes-all approach, presumably in order to eliminate obstacles to access.

It is hardly surprising that in Victoria, where a similar law was introduced in 2008, some conscientious objectors have not complied with their legal obligations.

Triumphalist legislation

The willingness of Australian Parliaments to liberalise abortion laws reflects the gradual strengthening of personal autonomy and individualism as dominant values in Australian life.

(Moral conservatives in the neoliberal camp, with their Thatcherite view of the world, their easy slogans like “personal responsibility” and “nanny state” have, ironically, helped to create the conditions where progressive abortion laws can now be passed).

But the point is that doctors have personal autonomy too.  As professionals – meaning highly skilled and ethically reflective people with a commitment to the ideals of their profession – doctors have never been mere servants to the designs of their patients.

By all means over-ride a doctor’s conscience if an abortion is necessary to save the pregnant woman’s life.  But otherwise, why threaten the right to practice of a doctor who, for deeply felt moral reasons, cannot participate in a referral system for killing unborn babies?

As I read the legislation, the Bill creates an offence for failing to refer a woman to another doctor who “does not have a conscientious objection to the performance of the termination” that has been requested in the circumstances.

It co-opts not only “right-to-lifers”, but others who believe that the moral status of an abortion depends on the circumstances.

A doctor might believe, for example, that terminating a foetus because it is a girl rather than a boy, is wrong.

In response to concerns about sex selection abortion, the Bill requires the Minister to conduct an inquiry on this issue within 12 months.  However, it doesn’t exempt a doctor who might refuse to refer a couple who want to terminate their foetus because it is the wrong sex.

As it stands, most of the reforms in the Reproductive Health Care Reform Bill 2019 are welcome.  But where is the public interest in requiring conscientious objectors to cross moral boundaries?

Some will feel that it ushers in religious discrimination.

And they won’t comply.  They might well say: since when did the State have the authority to require me to be part of a referral system for killing the unborn?

Accessing assisted dying in Victoria: how will it happen, exactly?

Last November, Victoria passed the Voluntary Assisted Dying Act, becoming the first Australian State to legalise assisted dying.

The Act comes into force on 19 June 2019.

How will a person lawfully use the Act?  This post provides a brief walk through the procedure established by the Act.

This is not the first time Victoria has been at the vanguard of law reform on a hotly contested bioethical issue.  In 1988, Victoria introduced Australia’s first advance directives legislation, the Medical Treatment Act (it was repealed on 12 March 2018, replaced by the Medical Treatment Planning and Decisions Act 2016).  Earlier, in 1984, Victoria passed the Infertility (Medical Procedures) Act 1984, the world’s first legislation regulating IVF and human embryo research,  now replaced by the Assisted Reproductive Treatment Act 2008.

Can’t talk about it

Prior to the Parliamentary vote, former Prime Minister Paul Keating argued passionately against the Act, writing that “The experience of overseas jurisdictions suggests that pressures for further liberalisation are irresistible”.

The Act is said to contain 68 safeguards to guard against abuse.

One of the most interesting safeguards is section 8(1), which states that a medical practitioner must not initiate a discussion with a patient that is “in substance about voluntary assisted dying”.

A doctor who does so engages in unprofessional conduct under (Victoria’s version of) the Health Practitioner Regulation National Law.

Section 75 of the Act also imposes mandatory notification requirements [to the Australian Health Practitioner Regulation Agency] on a medical practitioner who reasonably believes that another registered health practitioner has initiated a discussion about voluntary assisted dying, or offered to provide voluntary assisted dying in a manner that is not in accordance with the Act.

Mandatory notification requirements are imposed on an employer in the same circumstances (s 76).

Before assisted dying was legalized in Victoria, there was nothing unlawful about talking to a terminally ill person about assisted dying.  The topic was not “off the table”, so long as no action was taken.

But now, drawing a person’s attention to a lawful course of action under an Act of Parliament apparently amounts to reportable misconduct, in order to ensure that zealous health care workers do not nudge sick and distressed, aging or disabled people towards “euthanasia”.

Right to opt-out

There is no obligation on a medical practitioner to assist a patient to die under the Act.

Under section 7, a medical practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to provide information about assisted dying, to participate in the process the Act establishes, and to supply drugs or be present at the time an assisted dying substance is administered.

A complex process

With 143 sections, the Voluntary Assisted Dying Act is a complex piece of legislation.

This is intentional: the legislative requirements that must be satisfied before assistance in dying can lawfully be given are intended to act as safeguards against misuse.

Eligibility

Victoria’s assisted dying regime is only open to adults who have been resident in Victoria for at least 12 months – this is clear from section 9 [s 9(1)(b)].

This is intended to prevent Swiss-style euthanasia tourism – the kind of tourism illustrated in the film “Me before You” starring Emilia Clarke and Sam Claflin.

A person doesn’t meet the eligibility criteria for assistance unless they are suffering from an incurable disease that has reached such an advanced state that death is expected within 6 months, and the disease is causing suffering that is intolerable to the person [s 9(1)(d)].

One exception to this is in s 9(4), which allows a person to access assistance if they have a neurodegenerative disease that will cause death within 12 months.

Coordinating medical practitioner

The process of assisted dying under the Act begins when a person makes a “first request” for access to voluntary assisted dying to a registered medical practitioner (s 11).

This request may be verbal.  The medical practitioner may accept or refuse the request, but if they accept they must record the request, and become the patient’s coordinating medical practitioner (ss 13-15).

A coordinating medical practitioner must be either a medical specialist, or a vocationally registered general practitioner.

[A vocationally registered GP attracts higher Medicare rebates and special Medicare item numbers.  There are a variety of pathways to accessing these higher rebates, including through membership of the Royal Australasian College of GPs, or by meeting requirements for vocational registration by the General Practice Recognition Eligibility Committee.]

The coordinating medical practitioner must carry out approved assessment training and then assess whether the patient meets the eligibility criteria set out in s 9. (Approved assessment training must be approved by the Secretary of the Department of Health and Human Services [see s 114]).

In order to be eligible for voluntary assisted dying, a person must have “decision-making capacity” in relation to voluntary assisted dying: s 9(1)(c).

The term “decision-making capacity” is defined in s 4, and it requires a person to be able to understand information, retain it, and use it or weight it in order to reach a decision.  The person must also be able to communicate their decision to a medical practitioner.

The coordinating medical practitioner must be satisfied that the patient is acting voluntarily and without coercion, and that their request for assistance to die is enduring (s 20).

If they are assessed as eligible, the coordinating medical practitioner must report to the Voluntary Assisted Dying Review Board (established under s 92 – see s 21) and refer the patient for a consulting assessment (s 22).

Consulting assessment

The consulting medical practitioner who carries out the this assessment must have  completed “assessment training” (s 26) and must be a specialist or vocationally registered GP with at least 5 years’ experience and have “relevant expertise and experience in the disease, illness or medical condition expected to cause the [patient’s] death” (ss 23-24).

If the consulting medical practitioner concludes that all the eligibility criteria are met, they must notify the person and also notify the Board (s 30).

Formal written request

At that point, the patient may make a written declaration requesting access to voluntary assisted dying which meets the requirements set out in s 34.

This request must be signed by the patient in the presence of 2 witnesses and the coordinating medical practitioner.

Witnesses need to meet requirements set out in s 35 and must also sign a certificate dealing with matters set out in s 36.

Final request

The patient may then make a final request under s 37.  This final request must be at least 9 days after their first request (made under s 11), and at least one day after they were assessed by the consulting medical practitioner as eligible (s 38).  However, the requirement for at least 9 days of reflection following the first request may be shortened if the person’s death is imminent and they are likely to die within that 9 day period.

Following the final request, the patient must then appoint a contact person who, amongst other things, must return unused assisted dying drugs to pharmacists (ss 39-40).

The coordinating medical practitioner must then review all the documentation and certify that the request and assessment process complies with the Act.  They must give the completed final review form to the Board (s 41).

Voluntary assisted dying permits

This enables the coordinating medical practitioner to apply for a “voluntary assisted dying permit” for the patient (s 43).

There are 2 kinds of voluntary assisted dying permit.

The coordinating medical practitioner can apply for a “self-administration permit” under s 47 if the patient is physically capable of self-administering the drug or poison.  The drug in question must be specified in the permit.

Under s 45, a “self-administration permit” authorises the coordinating medical practitioner to prescribe and supply a quantity of drug for self-administration by the patient in sufficient quantity to cause death.  It also authorises possession of the drug by the permit holder, and possession by the contact person of unused drug – for the purposes of returning it to a pharmacist.

Alternatively, the coordinating medical practitioner can apply for a practitioner administration permit where the patient is physical incapable of self-administering or ingesting the poison or drug (s 48).

As you might expect, a practitioner administration permit authorises the coordinating medical practitioner to administer the drug in the presence of a witness only if the patient is physically incapable of doing so and the patient has decision-making capacity at the time the request for administration of the drug is made (s 46(c)).

This means that a patient cannot make an advance directive for assisted dying.

The decision to issue a permit is made by the “Secretary” ie the Head of the Department of Health and Human Services, doubtless under delegation (s 49).

Section 57 sets out the information that the coordinating medical practitioner must give the patient before prescribing a drug under a self-administration permit.  This includes information about how to self-administer the “voluntary assisted dying substance”, and the fact that the person is under no obligation to fill the prescription or to use it.  The drug itself must be stored in a locked box that satisfies prescribed specifications.

The Act also contains labelling and storage requirements, and requirements imposed on pharmacists.

Administration requests

Section 64 states that the patient may make an administration request to the coordinating medical practitioner, in the presence of a witness, to administer the drug specified in a practitioner administration permit.

The person making the request must be the subject of the permit, they must have decision-making capacity in relation to voluntary assisted dying, and they must understand that the drug is to be administered immediately after the request is made.

The coordinating medical practitioner will only have a practitioner administration permit if the person is physically incapable of self-administering the drug to themselves (s 46).

The drug can then be administered.

The witness and the coordinating medical practitioner must jointly fill out a form called the “coordinating medical practitioner administration form”, which must be sent to the Board (ss 65-66).

After the death

The death must be reported as voluntary assisted dying under the Births, Deaths and Marriages Registration Act 1966 (s 67).  The Coroner must also be routinely informed of such deaths (s 67(2)).

Section 80 protects a medical practitioner who acts in accordance with the Act from any kind of liability, including liability for unprofessional conduct or professional misconduct.

Part 8 of the Act includes a range of offences for people who take actions otherwise than in accordance with the Act.

Will doctors choose to participate in the process?

It remains to be seen whether Victorian medical practitioners regard the procedures established by the Act as so complex or cumbersome that they prefer to provide assistance informally, rather than triggering the Act’s processes and subjecting themselves to scrutiny.

I’d be surprised if there were not at least a few doctors who adopt this course of action.

The legislation is complex.  Doctors may also – again, for reasons of self-protection – confine themselves to traditional forms of palliative care.  Those who take a conservative view on the legalization of assisted dying may urge doctors to do this.

For example, if a coordinating medical practitioner administers a drug to a person who is the subject of a practitioner administration permit otherwise than as authorised by that permit, they are liable to life imprisonment (life or such other term as fixed by the Court) (s 83).

It is an offence to fail to give copies of forms to the Board (s 90) and for a contact person to fail to return the unused portion of a euthanatic drug to the pharmacist who dispensed it (s 89).

Using this new legislation is not for the faint-hearted.  Doctors who choose to do so will need to know what they are doing.

Are you interested in health law?  Sydney Law School offers a Master of Health Law that is open to lawyers, health professionals and other qualified applicants.  Click here and here for more information, or click here for information on the units of study on offer in 2018 and 2019.

Abortion law reform on the horizon in NSW and Queensland

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Contrary to popular belief, abortion is not available “on demand” in NSW.

The Crimes Act 1900 (NSW) contains three criminal offences relating to abortion.

Section 83 creates an offence for unlawfully administering a drug or using any instrument or other means to procure a woman’s miscarriage,

Section 82 creates an offence for a woman to unlawfully procure her own abortion (eg by taking abortion drugs), while section 84 creates an offence for unlawfully procuring drugs for the purposes of an abortion.

The scope of these offences reflect the limits of the law’s protection for the life of the foetus in the face of a decision by the pregnant woman to terminate her pregnancy.

However, the question of whether the doctor’s actions – or those of the woman or another person – are “lawful” has been left to the common law.  The leading decision is a District Court case from 1971 called R v Wald ([1971] 3 DCR (NSW) 25).

According to Wald, lawfulness turns on whether the jury (or judge) accepts that the person who performed the abortion believed on reasonable grounds that their actions were: “necessary to preserve the women…from serious danger to their life, or physical or mental health, which the continuance of the pregnancy would entail” (going beyond the usual dangers of childbirth), and secondly that the actions taken were not out of proportion to that danger.

Courts have elaborated on a number of issues that emerge from the principles set out above.

For example, in CES v Superclinics (Australia) Pty Ltd [1995] NSWSC 103, Justice Kirby wrote that the economic and social stresses that pregnancy and, in due course, motherhood might impose on the woman were relevant to the doctor’s conscientious belief on reasonable grounds that the abortion was necessary to preserve the physical or mental health of the mother (thereby negativing an offence under section 83 of the Crimes Act).

 

Removing abortion from the criminal law

Greens MP Mehreen Faruqi MLC has introduced the Abortion law Reform (Miscellaneous Acts Amendment) Bill 2016 into the NSW Parliament.

The Bill seeks to do four main things.

Firstly, the Bill would remove abortion from the Crimes Act 1900 (NSW) by repealing the three criminal offences in the Act that relate to abortion.

Secondly (to the extent that it exists), the Bill would abolish any remaining rule of common law creating an offence for procuring a woman’s abortion.

 

Abortion and the duty to refer

Thirdly, having banished abortion from the criminal law, the Bill would impose new requirements on doctors that would take effect through the Health Practitioner Regulation National Law – the statutory framework through which the medical profession enforces norms of professional conduct against medical practitioners.

Section 139C of the National Law, in its application to NSW, sets out the matters which may constitute “unsatisfactory professional conduct”.

Under the Greens Bill, a doctor who was approached by a patient seeking advice about abortion would be guilty of “unsatisfactory professional conduct” if they:

  • failed to tell the person about any conscientious objections to abortion that they had;
  • failed to refer the person in a timely manner to another health practitioner who the doctor knew did not have a conscientious objection to abortion, or to the local Woman’s Health NSW Centre, in order to ensure the woman had “full information about all of the person’s options in relation to the pregnancy”.

The intention of this amendment is appropriate.  It ensures that women are not kept in the dark about their options in ending a pregnancy because the doctor morally disapproves of their choice.  Victoria’s Abortion Law Reform Act 2008 contains a similar provision (s. 8).

Nevertheless, under the Greens Bill, a doctor would apparently be in breach of their professional obligations if they failed to refer the woman to someone who had no objections to abortion, irrespective of the woman’s circumstances and the reasons why she wanted the abortion.

So, to take an extreme example, a pro-life doctor would (obviously) be in breach of their professional obligations if they refused to provide a referral for a pregnant teenager who had been raped.

But so would a pro-choice doctor who nevertheless felt it was wrong to help a woman achieve an abortion because she wanted a boy, but had ended up pregnant with a girl.

This last scenario recalls the experience of Dr Mark Hobart, a Melbourne GP who was investigated for potentially breaching section 8 of the Victorian Act for failing to cooperate in an abortion.

“They wanted the abortion because they wanted a boy and they found out it was a girl” Dr Hobart told Ben Fordham on radio 2GB.

The woman was 18 and a half weeks pregnant.

As it turned out, Dr Hobart held a conscientious objection to all or perhaps most abortions.

In his words: “I guess I believe that life begins at conception, that human life is sacred….I know that other people [don’t hold views as strong as that] but that’s what I believe, I find it a big problem if someone asks me to refer them for an abortion”.

When I documented an “underground” in illicit euthanasia among health professionals working in HIV medicine in the late 1990s, in the book Angels of Death, one of the common ways that doctors, nurses, psychologists and others facilitated euthanasia was by referring people who requested it to others whom they knew would provide it.

Those who facilitated euthanasia in this way might have felt it was the right thing to do.  But they didn’t pretend they weren’t morally involved.

Impediments to access to abortion services are real (see eg Heather Rowe et al, “Considering Abortion: A 12 Month Audit of Records of Women Contacting a Pregnancy Advisory Service” (2009) 190 Medical Journal of Australia 69-72).

But requiring a doctor who has explained that they feel morally conflicted in facilitating the abortion in the circumstances of the case – to help the patient achieve it elsewhere – smacks of triumphalism.

The decision a woman reaches about her pregnancy should be respected.

But doctors should not be treated as moral slaves to their patients, especially in the case of this procedure, the moral character of which is notoriously contested.

There ought to be room for a more sensitive balance between the freedom that a woman ought to have to make decisions about her pregnancy, and the sincerely felt moral beliefs of the clinician.

It’s possible that euthanasia may be legalised in an Australian State within the next few years, if not sooner.  Will it also be “unsatisfactory professional conduct” for a doctor who has moral objections to euthanasia to fail to refer a patient to a colleague who is willing to provide a hot-shot?

 

Safe access zones for abortion

The fourth thing the Greens abortion law reform Bill would do is to implement a 150 metre “safe access zone” around abortion clinics.

A similar exclusion zone exists under the Victorian legislation.

Safe access zones were introduced to protect women who wish to access abortion services, and the staff of abortion clinics, from harassment, obstruction and humiliation by protestors.  In some cases, these protests have been carried on for decades.

 

Abortion law reform in Queensland

Two Bills to amend Queensland’s abortion laws have also been introduced into the Queensland Parliament.

Like NSW, Queensland has criminal prohibitions for “unlawfully” performing an abortion, unlawfully supplying drugs or instruments to procure an abortion, or in the case of a woman herself, unlawfully administering any “poison or noxious thing” to procure a miscarriage (sections 224-226).

However, the common law’s articulation of the circumstances in which an abortion is lawful is considered to be narrower in Queensland than in NSW.

In 2010, a young woman and her boyfriend were prosecuted under section 225 for procuring and self-administering RU486.  It took less than an hour for a jury to find them not guilty.

Two years earlier, in a remarkable judgment, a Justice of the Queensland Supreme Court found that parents lacked legal capacity to authorise an abortion for a 12 year old girl who was 18 weeks pregnant.  Rather, court approval was required.

The first Bill, the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 (Qld) would effectively take abortion out of the criminal law by repealing sections 224-226 of the Queensland Criminal Code.

The Health (Abortion Law Reform) Amendment Bill 2016 then sets out a new regulatory regime for abortion within the Health Act.

The Bill states that abortion procedures must only be performed by qualified medical practitioners, assisted by qualified nurses who may administer drugs at the written request of a doctor.

No limitations are imposed on the performance of abortions before 24 weeks: these procedures would effectively be available upon demand from a willing medical practitioner, as in Victoria.

Abortions after 24 weeks could only proceed when a doctor had consulted with at least 1 other doctor and both believed that continuing the pregnancy would involve “greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated”.

Nor is there any duty imposed on a medical practitioner to perform or assist in an abortion (except in an emergency, in order to save the woman’s life or to prevent serious physical injury).

The Bill provides protection from harassment, intimidation and obstruction for persons entering or leaving an abortion facility which the Minister has declared to be a protected area.

The Bill also prohibits protests, “by any means”, between the hours of 7.00am-6.00pm or for such other period   as the Minister declares.  The protected area must extend outwards at least 50m from the abortion facility.

In summary: I would be surprised if either the NSW or Queensland Bills are successful.  Already, a Parliamentary Committee of the Queensland Parliament has recommended that the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 should not be passed.

Rather than seeking to reverse all the perceived problems of current law in a single legislative episode, abortion law reformers may find it more effective to adopt an incremental approach.

In jurisdictions where the public mood remains more conservative, it might be wiser for law reformers to set out to achieve less.

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  You do not need a law degree to apply.  Click here for further details.

Muzzling health and welfare professionals in the name of national security: Australia’s Border Force Act 2015

Posted by Roger Magnusson and Cameron Stewart

This is the view from the top of Table Mountain in Cape Town, South Africa.  Take it in.  It helps to have a sense of perspective.

The view from Table Mountain, Cape Town (1)
The view from Table Mountain, Cape Town (1)

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The view from  Table Mountain, Cape Town (2)
The view from Table Mountain, Cape Town (2)

It’s now more than 21 years since apartheid ended.  These days, few people would criticise anyone for having broken those racially motivated laws that were part of South Africa’s statute book during the period of white minority rule.  But why do people feel that way?

For some, it may be the patent absurdity of discriminating against entire classes of people based on the colour of their skin, or whether or not they passed the “pencil test” .

For others, it may be the fact that laws constructing systematic racial discrimination were inconsistent with a higher moral law, or with international human rights instruments that give protection from discrimination on grounds such as race, colour, sex, language, religion, and national or social origin .

With apartheid in mind, let’s return to Australia.  The Box below describes some key features of the Australian Border Force Act 2015 (Cth).  The application of this Act to health and welfare professionals caring for children in immigration detention has attracted a great deal of attention.

Rightly so.

As law professors, health law specialists, and parents, we know we are not alone in believing that whatever sense of obligation we feel to obey the law is eclipsed by the moral imperative to protect children from harm.  Some of the worst abuses of children, causing lifelong harm and distress, are the result of institutional indifference to instances of abuse.  If you think you care about children, or if you have any children of your own, then consider how the Australian Border Force Act will impact on them.

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The Act creates the Australian Border Force, integrating immigration and customs functions into a single entity within the Department of Immigration and Border Protection.

Amongst other things, the Act appears designed to improve the control of information, to prevent leaks, and to reduce unwelcome media scrutiny of the operation of immigration detention facilities arising from public disclosures by Immigration and Border Protection workers.

The Act creates an offence, carrying a penalty of imprisonment for 2 years, if an “entrusted person” makes a record of, or discloses “protected information” (s. 42).

An “Immigration and Border Protection Worker” includes government employees, as well as consultants – doctors, nurses, social workers – engaged by the Department to work inside immigration detention centres.  “Protected information” means “means information that was obtained by a person in the person’s capacity as an entrusted person”.

The Act authorizes the Secretary of the Department to authorize an entrusted person (let’s say a doctor) to disclose protected information (let’s say allegations of sexual assault against a child in immigration detention) to the Department, to police, or to any other authorized body or person.  However, the Secretary may attach written conditions to the permission to make such disclosures (s. 44).

The Act does authorize disclosure of protected information to “prevent or lessen a serious threat to the life or health of an individual” (s. 48).  However, this would not extend to disclosures to the media relating to the systemic conditions in which children are living in detention, or the impact of incarceration on their mental and physical health and wellbeing.

In summary, the Act appears designed to muzzle health and welfare professionals from reporting any information they obtain in the course of their duties (extending, for example, to allegations of sexual assault against children in immigration detention), except with the permission of a bureaucrat.

The culture operating within the Department of Immigration and Border Protection is likely to mean that Secretarial permission will rarely, if ever, granted.

The likely result of the Act is that it will become more difficult for the government’s accountability for the health, welfare and protection of children in immigration detention to be tested in the political arena.

Whatever you think about the merits of mandatory detention of the children of asylum seekers, the constraints on health and welfare professionals appear to strike at the heart of freedom of speech.  The Act might well infringe the implied constitutional freedom of political communication that all Australians enjoy.  No doubt this will be tested soon.

The Australian Border Force Act does not mention the Public Interest Disclosure Act 2013 , but if – as the government asserts – the former Act is subject to the latter , persons speaking out would need to navigate a thicket of statutory conditions in order to escape prosecution.  The intent of the Australian Border Force Act is to change the culture within which services are delivered to persons in immigration detention: that much seems clear.

It is not surprising that health and welfare professionals have pointed to the contrast between the Australian Border Force Act and the protections that apply to Australian children outside immigration detention.

In NSW, the Children and Young Persons Care and Protection Act 1998 imposes mandatory reporting on health and welfare professionals when they have reasonable grounds to suspect a child is being abused or is at risk of significant harm .  On the other hand, unless the Secretary gives their permission, doctors and welfare workers could be committing a criminal offence if they reveal anything at all about the conditions in which children in immigration detention are living.

Writing in the Guardian, over 40 “entrusted persons” have called for civil disobedience:

“We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable”.

As law professors employed by one of Australia’s oldest law schools, we live and breathe law, and care about the rule of law.  Frankly, however, we don’t care about it enough to stand by while government tries to muzzle dedicated professionals working in difficult conditions to protect the safety and dignity of children.

Parliament makes the rules.  It decides what is lawful and unlawful.  But when the moral compass goes astray and laws are designed to ensure that the public never even gets to hear about the harm that children are suffering in immigration detention, then that is a step too far.

The President of Australia’s Human Rights Commission, Professor Gillian Triggs, points out that Australia is alone in the world in indefinitely locking up the children of asylum seekers. The Commission’s Forgotten Children report found that this practice violates the right to health that children enjoy under the Convention on the Rights of the Child.  It also ignores the substantial body of evidence of the harm that immigration detention is causing to children.

“Entrusted persons” face difficult choices in the months ahead.  In deciding how to reconcile their professional ethics, moral intuitions and legal obligations, they can at least stand assured that there can be no moral obligation to stand by and do nothing while children are being harmed.

The Australian Border Force Act 2015 needs a radical overhaul.  Otherwise it belongs in the bin.  Both parties ought to think again.

Take another look at the view from Table Mountain.  In the distance you can see Robben Island, where Nelson Mandela spent 18 of his 27 years of imprisonment.

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