8 Other Legal and Policy Issues

  1. 8.1 Many issues associated with reform of the abortion laws were raised through consultations, submissions, and the commission’s research. Some were outside our terms of reference, and are discussed below for completeness and for further consideration by government. For those within the terms of reference the commission makes recommendations about how they can be best addressed, regardless of the model chosen for abortion laws.

Issues where Legal Change is Justified

Conscience Clause

  1. 8.2 Conscience clauses arise as an issue in abortion law reform because there is a general expectation that practitioners will provide medical services.1Abortion laws in some other places excuse people from providing these services when they have strong religious or ethical objections to the practice.
  2. 8.3 ‘Conscience’ is generally taken to mean a conviction or belief based upon a moral assessment, rather than a mere prejudice.2 A conscience clause is a provision within the law ’which relieves persons whose conscientious or religious scruples forbid their compliance with it’.3
  3. 8.4 Abortion conscience clauses are sometimes called refusal clauses.4 Such clauses are included in legislation to make it clear that no medical practitioner is under a duty to perform an abortion if doing so would go against his or her conscience. While conscience clauses exist in many jurisdictions, their scope varies.

Australian Examples

  1. 8.5 Conscience clauses feature in abortion laws in the ACT, Northern Territory, South Australia, Tasmania, and Western Australia. In all instances, the provision applies only in non-emergency situations.
  2. 8.6 In the ACT, Northern Territory, and Tasmania, the conscience clause attaches to individuals and includes those assisting with the procedure, such as nurses and anaesthetists.5 In South Australia, the person relying on the clause carries the onus of proof as to its application.6 In contrast, the Western Australian provision also attaches to health institutions.7
  3. 8.7 In NSW, conscientious objection to abortion is included in the NSW Health Policy Directive Framework for Terminations in New South Wales Public Health Organisations, which applies to all public health settings. It includes an obligation to transfer the care of the patient to another medical specialist (or health professional) onsite or at another Area Health Service facility.8

International Examples

  1. 8.8 Section 4 of the Abortion Act 1967 (UK) is broadly similar to the South Australian provision. It provides that a health worker who declines to participate in the provision of abortion services because of a conscientious objection bears the burden of proving that objection in any subsequent legal proceedings.9 Once again, it does not apply in emergencies, for example to save the life of the pregnant woman. Nor does it apply to treating the results of an abortion, for example after care.10
  2. 8.9 National Health Service regulations11 require medical practitioners to make an effective referral in circumstances where they have a conscientious objection to certifying approval for lawful abortion.12
  3. 8.10 The House of Lords has considered section 4. In that case, a receptionist working in a health centre refused to type a letter referring a patient for an assessment of whether the pregnancy should be terminated. The receptionist claimed that section 4 applied as she had a strong moral objection to abortion on religious grounds, and that the typing of the letter fell within the definitional scope of participation. The court found against the receptionist, holding that the term ‘participate’ should be given its ordinary meaning, which is, actually taking part in the treatment.13 Thus, the proximity test for the UK conscience provision is reasonably narrow, covering only those involved in the treatment team.14
  4. 8.11 In New Zealand a doctor, nurse, or other person who has a conscientious objection to abortion is not required to assist in the performance of an abortion.15 The doctor has an obligation to refer the woman on for assessment if requested.16
  5. 8.12 The New Zealand legislation also contains a non-discrimination provision for those who refuse to undertake abortions on the grounds of conscience.17 If people suffer loss due to such unlawful discrimination, they are entitled to receive damages.18
  6. 8.13 Abortion laws in the US vary from state to state. The Californian conscience provision applies to any person with staff privileges at a hospital or medical facility. They must have first filed a written statement with the employer indicating their refusal to participate on moral, ethical, or religious grounds.19 The protection extends to non-profit hospitals and facilities operated by religious organisations and corporations, as long as they have posted notice of their refusal to provide abortions in an area open to prospective patients.20 The conscience clause does not apply in emergencies.21
  7. 8.14 A non-penalty clause protecting individuals, including medical students, is included in the Californian scheme.22 An employer may not refuse employment to a person based on their refusal to participate in abortions, unless that person would normally be assigned to that part of the medical facility where abortion patients are cared for. It is therefore lawful to enquire whether a potential employee would refuse to participate in abortions on conscience grounds.23

Current Law and Practice in Victoria

  1. 8.15 In Victoria there is no statutory conscience provision for abortion; however, a conscience provision does attach to the performance of assisted reproductive technology in Victoria.
  2. 8.16 Section 152 of the Infertility Treatment Act 1995 states:

(1) Despite any Act, law or agreement to the contrary, a person who has a conscientious objection to research involving the use of gametes or embryos or to a treatment procedure does not have to participate in that research or procedure unless it is necessary to do so because it is likely that a person who is or was a participant in the research or procedure will otherwise die.24

  1. 8.17 Professional codes of ethics apply to abortion, in common with all other medical procedures. The Australian Medical Association’s Code of Ethics

articulates and promotes a body of ethical principles to guide doctors’ conduct in their relationships with patients, colleagues and society. This code has grown out of other similar ethical codes stretching back into history including the Hippocratic Oath.25

  1. 8.18 The code contains a conscience provision:

[W]hen a personal moral judgement or religious belief alone prevents you from recommending some form of therapy, inform your patient so that they may seek care elsewhere …

Recognise that you may decline to enter into a therapeutic relationship where an alternative health care provider is available, and the situation is not an emergency one.

Recognise that you may decline to continue a therapeutic relationship. Under such circumstances, you can discontinue the relationship only if an alternative health care provider is available and the situation is not an emergency one. You must inform your patient so that they may seek care elsewhere.26

  1. 8.19 The assumptions underpinning these provisions are that the conscience provision applies to individual practitioners and that it includes a corresponding obligation to ensure an alternative provider is available. The AMA conscience provision is not absolute. In cases of emergency, practitioners must set aside their objections and perform the procedure.

Community Views

  1. 8.20 The commission sought community views on this issue by including a question in the Information Paper.
  2. 8.21 Some people did not think a clause was necessary because no medical practitioner is forced to perform a procedure in practice. However, mindful of access issues, most did not object to a provision being included in legislation as long as it included a duty to refer the patient to another provider.27 Some felt that practitioners should have a sign in their waiting room explaining that they did not undertake the procedure.28
  3. 8.22 Several, including the Health Services Commissioner, remained opposed on the basis that it duplicated existing ethical standards.29 The Australian Medical Association did not support the inclusion of a conscience clause.30
  4. 8.23 Among others, there was strong support for a conscience clause based on respect for freedom of religion and thought.31 There was some divergence about content. A small minority argued that a practitioner should not be under a duty to perform an abortion in any circumstances.32 Others allowed for emergencies, for example if the woman’s life is at risk.33
  5. 8.24 Some took the view that a practitioner should not be required to make a referral, as that would also go against the conscience of the practitioner.34
  6. 8.25 Some argued that the provision should extend to all health professionals and that specific non-discrimination provisions should be included to protect the career prospects of practitioners who invoke the conscience clause.35
  7. 8.26 Some also argued that the conscience provision should extend to chemists (contraception and morning-after pill), educational institutions, and teaching hospitals.36

Policy Issues

  1. 8.27 It is important to balance the rights of individuals to operate within their own moral and religious beliefs with the equally important ethical consideration doctors have to act in the best interest of patients. It is also important to minimise unintended consequences, for example exacerbating inequities in access, or increasing the risk of delay.
  2. 8.28 Evidence gathered in consultations suggests that significant geographic inequities exist in access to abortion by women living in rural and regional Victoria.37 The problem may be exacerbated by a practitioner’s refusal if he or she is the only practitioner in an area, or if all or most practitioners in an area refuse to provide services. This inequity is further entrenched if major regional public facilities do not provide abortion, or if the practitioner refuses to make a referral.38
  3. 8.29 While conscience provisions are relatively common in abortion laws, there is significant variance as to their scope. In framing a provision, it is important not to trivialise the important ethical consideration of the best interests of the patient.
  4. 8.30 A well-drafted conscience provision should ensure that conscientious objection is based on adequate justification and not mere prejudice. It should operate in a transparent manner to minimise the risk of women being demeaned or poorly treated if they seek abortion.39
  5. 8.31 In particular, it should strike an appropriate balance between people within the therapeutic team complying with their personal moral values and those individual moral values not becoming institutional or geographic barriers to the timely provision of safe services.40
  6. 8.32 As freedom of conscience is generally understood to be held by individuals, the conscience provision should not extend to corporations.41 This is consistent with existing conscience provisions in other Victorian laws.42
  7. 8.33 The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.43
  8. 8.34 A conscience provision should only cover the abortion procedure itself. It should not prevent the effective after-care of women who have had abortions. Nor should it encourage health providers to avoid giving women accurate information about abortion, including alternative providers. As a minimum standard of care, practitioners should refer the woman appropriately.44
  9. 8.35 Changing anti-discrimination laws to protect the rights of people who choose to rely upon a conscience clause seems unnecessary. While existing anti-discrimination laws protect people from discrimination on religious grounds, a person’s objection to abortion may not necessarily be religious.45 If the law of abortion established moral values or conscience as a ground of discrimination, it would significantly extend the scope of current equal opportunity law into areas of great uncertainty.46 Changing equal opportunity law in this way is well beyond the terms of reference of this inquiry.
  10. 8.36 During the commission’s consultations, no firm evidence was provided which established that health workers are discriminated against because they choose to avoid the provision of abortion services. It is unlikely that a person with a moral objection to abortion would want to work in a private clinic providing that procedure. Within public hospitals, the moral decisions of staff members are respected and no person is forced to perform an abortion.
  11. 8.37 Similarly, there is no evidence that career paths are affected by refusing to participate in abortion procedures.47 Several hospitals, including some regional public hospitals, do not perform abortions at all and do not suffer a penalty as a result.
  12. 8.38 Our terms of reference require us to ensure the maintenance of current clinical practice standards. If legislative provision is made for people who have a conscientious objection to providing abortion services, the content of any new law is best guided by the principles contained in the AMA Code of Ethics. That code requires medical practitioners to inform patients of their refusal. The code also requires practitioners to provide women with sufficient information so they may seek and find treatment elsewhere. This simple rule provides an appropriate balance between the needs of the practitioner and the patient.

Recommendation

3. The Health Act 1958 should be amended to include a provision as follows:

Issues Adequately Dealt with by Existing Law and Practice

Mandatory Information

  1. 8.39 The general standard of disclosure by a medical practitioner embodies the principle that doctors must provide information that a patient would consider relevant before deciding whether to have a particular medical procedure. This includes the nature, risks, and benefits of any medical procedure and availability of alternatives.48
  2. 8.40 A significant number of anti-decriminalisation pro-forma submissions to the commission argued that the law should require a person to be given additional mandatory information in cases of abortion. They proposed that visual images of the fetus, gestational age information, and a list of medical risks be provided to women before they can lawfully terminate a pregnancy.49 Some also included pictures of abortions in the list of items women must be shown.50
  3. 8.41 Medical practitioners and professional associations tended to think the existing law of disclosure, which requires practitioners to advise of risks, was adequate. Many people did not consider the provision of additional mandatory information to be necessary.51

Overseas Experience

  1. 8.42 Mandatory information schemes do not feature in abortion laws in the UK or New Zealand, although they are a common feature of abortion laws in the US. They are often associated with compulsory counselling and cooling-off periods.
  2. 8.43 In the US, 33 states have a specific law or policy on informed consent for abortion. Ten of these re-state existing standards on informed consent. The other 23 have mandated additional information, which is typically developed by the state’s health agency.
  3. 8.44 Information ranges from ultrasounds of the fetus52 and footage of an abortion, to written medical risk information. Some of this risk information is heavily contested, for example, six states include information about the alleged link between abortion and breast cancer.53 Some states, such as Texas, also require information to be given that states there is a link between future infertility and abortion.
  4. 8.45 While medical practitioners are allowed to distance themselves from the materials in four of these states, they are still required to give them to patients.54
  5. 8.46 In all 23 states the woman is required to be given information about the particular abortion procedure she has requested. This is in line with the general standard of consent. In 18 states, information about abortion techniques that the woman will not be having is also given. For example, information about techniques used at later gestations is mandated, even though the majority of women have terminations in the first trimester.
  6. 8.47 Similarly, in 22 states, written information is given about the development of the fetus at two weekly intervals throughout the entire pregnancy. ‘With nearly 90% of all abortions occurring at or before 12 weeks, information on the development of a fetus after that point is generally not germane to most patients.’55

Australian Examples

  1. 8.48 No Australian legislation mandates additional information specific to abortion.56
  2. 8.49 Two states specify that informed consent is required before abortionand then define the attributes of that consent. For example, the Western Australian legislation requires a medical practitioner to adequately advise on risks of abortion and proceeding with the pregnancy.57 In Tasmania, a medical practitioner must provide the woman with ’counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term’.58

Current Law and Practice in Victoria

  1. 8.50 Doctors in Victoria, like the remainder of the Australian medical community, have a duty to disclose material risk under the common law.59
  2. 8.51 The Wrongs Act 1958 applies to all medical procedures, including abortion. It provides that a person satisfies the duty of care only if he or she takes reasonable care in giving a warning or information about risk.60
  3. 8.52 Medical risks and procedure information about abortion is available on the Victorian Government website the Better Health Channel.61 This website also provides information about abortion counselling.

Policy Issues

  1. 8.53 Current law requires practitioners to inform women of the nature, risks, and benefits of medical procedures, including abortion. Requiring mandated information to be given to women before they can access abortion does little to further the underlying values of the existing law. It would be a symbolic measure only.
  2. 8.54 Mandating abortion-specific information risks opening the law to ongoing controversy, as to both the mode and content of the information. Information may be contested, inaccurate, or not germane.
  3. 8.55 During consultations, some decriminalisation opponents argued that the medical profession is currently failing to advise women of the full risks of abortion. In particular, they alleged a strong link between abortion and breast cancer, infertility, depression, and suicide.62 Some argued that there was a ‘post abortion syndrome’;63 however, the current medical and scientific consensus is that these are not material risks.64
  4. 8.56 Every patient is different; legally required information risks both under-and over-inclusiveness. The commission believes that appropriately qualified medical practitioners, rather than legislators, can best determine the relevant information to be given to a patient after bearing in mind the questions asked and concerns raised by each individual.65While there is a reasonable community expectation that women seeking abortion are provided with accurate and balanced information, it is doubtful that many people would support women having to view what most would consider distressing images.66
  5. 8.57 There is a risk that information may aim to encourage women to reach a particular decision. Experience of mandated information in the US is that the policy purpose is to dissuade women from proceeding with abortion.67 This does not fit the policy aim of allowing people to make informed decisions based on accurate information.
  6. 8.58 The current law that governs all medical procedures deals appropriately with the issues of information, consent, and the clinical appropriateness of the procedure. The commission is therefore of the view that there is no requirement for mandated information provisions within any new law of abortion.

Recommendation

4. Any new abortion law should not contain mandated information provisions.

 

Counselling

  1. 8.59 Counselling was an important issue in consultations. There was strong consensus that women should be supported in decision making. However, there was a divergence about what counselling means. There was also a range of views about whether the law should compel women to attend counselling before having an abortion.

What is Counselling?

  1. 8.60 Professional counselling utilises ‘a set of advanced interpersonal skills which emphasise processes of facilitation’. It enables people to develop self-understanding and to make changes or decisions. It may involve working with current problems, immediate crises, or long-term difficulties.68
  2. 8.61 Counselling in a clinical setting is not giving advice. ‘A counsellor does not suggest, advise or persuade.’69 In this regard, counselling is fundamentally different to a doctor’s duty of disclosure about the risks and benefits of a procedure. That is better defined as information provision rather than counselling. Some commentators refer to this as ‘pre-procedure counselling’.70
  3. 8.62 Counselling is an integral feature of abortion services and may include emotional support in decision making. This is sometimes referred to as ‘options counselling’ or ‘decision-making counselling’.
  4. 8.63 A woman may also require emotional support at times of particular stress. This is sometimes called ‘support counselling’.71 This counselling can take place at any time before and/or after the abortion. It is not about decision making but instead assists the woman to work though issues as they arise. For example, the woman may need support in her relationship with her partner or family.
  5. 8.64 A woman may need ongoing support, which may include therapeutic counselling after the procedure (post-abortion counselling). Therapeutic counselling ‘aims to help people with the consequence of their decision and to help them resolve problems which may arise as a result’.72This counselling may be short or long term.
Decision-making Counselling
  1. 8.65 Decision-making counselling ‘focuses on the meaning of information to the woman respecting her individual ethical values and beliefs as well as the likely consequences of her decision-making’.73 It necessarily involves the consideration of alternatives: continuing the pregnancy, relinquishing for adoption, and abortion.
  2. 8.66 Even though there may be significant overlap between pre-procedure information and decision-making counselling, their aims are quite distinct. As a matter of common sense, a woman cannot consider all her options without having adequate information, but if a woman has already reached a decision, she may not wish to have decision-making counselling and it cannot be forced upon her. Pre-procedure information may be all that is required.
  3. 8.67 Decision-making counselling is ‘client centred and non-directive’.74 It aims to assist a person in making a decision by providing emotional support, space, and time to talk through options and consequences in the context of the woman’s individual value system and relationships with others. This is consistent with the ethical principles underpinning professional practice.

Regulation of Counsellors

  1. 8.68 In Australia, counselling is largely unregulated in that any person, or organisation, may describe himself or herself as a counsellor; however, there are professional associations that set minimum standards for education, clinical supervision, and continuing professional development.75 In addition, professions that undertake counselling activities, such as social work, also have their own professional bodies and standards.76 Organisations such as the Royal Women’s Hospital also have clinical guidelines that contain specific benchmarks.77
  2. 8.69 The Psychotherapy and Counselling Federation has published professional standards that include ethical guidelines.78 These guidelines include principles of respect for human dignity; recognition of diversity; privacy; confidentiality; informed consent; professional competence and lawful conduct. They include ethical responsibilities to avoid harm, to promote autonomy, and consider the social context of their clients and connections to others.79
  3. 8.70 The Australian Association of Social Workers’ Code of Ethics also emphasises self-determination and autonomy of clients.80 Therefore, ‘within any counselling setting, an unbiased, non-judgemental, respectful and evidence based approach by the counsellor is ethically and professionally mandated’.81

Current Law and Practice in Victoria

  1. 8.71 The UK’s Royal College of Obstetricians and Gynaecologists has prepared clinical guidelines for people who provide abortion services. These guidelines include the need for some people to have support in decision making.82 This includes psychosocial aspects such as counselling. It also requires culturally and disability-sensitive service delivery, including the provision of interpreters to assist women who may need them.
Counselling Service Provision
  1. 8.72 There is a diverse range of providers of pregnancy information and counselling services in Victoria. These include public and private abortion providers, community-based sexual and reproductive health services, and non-government organisations such as Family Planning Victoria. Counselling is also undertaken by pregnancy and family support organisations which consider abortion generally to be morally wrong.83
  2. 8.73 Providers determine their own clinical approaches and service ethos. Some are members of professional bodies, such as the Australian Association of Social Workers, and others are not.
  3. 8.74 Medicare payments are available for pregnancy support counselling by general practitioners and, on referral, by other health professionals. Victorian women may also use the Commonwealth-funded National Pregnancy Support Telephone Helpline.84
  4. 8.75 In public hospitals and private abortion clinics, women are offered further counselling to support them in their decision making. Women may receive additional counselling or therapy before and after the procedure.85 For example, at the Fertility Control Clinic the woman may attend multiple counselling sessions and may consult the clinical psychologist.86 Similarly, at the Women’s Clinic on Richmond Hill patients may see a counsellor or external psychologist.87 Psychologists and counsellors are also available at the Monash Medical Centre.88 In the only private clinic providing late abortions, counselling must be offered to all patients. A psychological assessment is required before a late abortion proceeds.89
  5. 8.76 As part of general clinical standards ‘[f]ollow up appointments are offered to virtually all women who terminate a pregnancy, although many women choose not to attend’.90 This consultation will check physical recovery, contraceptive needs and an assessment of general emotional state. Follow-up counselling may be arranged.91
  6. 8.77 The major public provider of abortions in Victoria is the Royal Women’s Hospital. Its Pregnancy Advisory Service (PAS) provides a range of services to women experiencing unplanned or unwanted pregnancy.92 The PAS Intake Service, which is the initial contact point, coordinates each woman’s care. Support includes working through options of adoption, abortion, and continuing with the pregnancy. Pre- and post-abortion counselling is offered to all women using the service.93
  7. 8.78 The particular needs of women having abortions following diagnosis of fetal abnormality requires specialist support, including access to skilled counselling services and time to consider their decision.94The Women’s, Monash, and Mercy Hospital for Women all have fetal management units where specialist counselling and support is available. The Women’s and Monash include the option of abortion, which is provided within those hospitals. The Mercy does not perform abortions.95
Women’s Views of Counselling
  1. 8.79 There is consensus among providers that the

majority of women who seek an abortion are informed, have considered their decision thoughtfully and for some time, and are clear in their decision not to continue this particular pregnancy at this particular time in their life for a set of unique and individual reasons.96

  1. 8.80 The Key Centre in Women’s Health in Society at the University of Melbourne is conducting research with PAS at the Women’s, funded by the Australian Research Council and VicHealth.97 This research examines the experiences of women who have contacted PAS during the 12 months ending 10 September 2007. It includes an audit of information collected by PAS social work staff from 3827 women using the service.98 In-depth interviews with 60 women are also being undertaken.
  2. 8.81 Interviews conducted as part of the research suggest that reasons for seeking abortion are complex and contingent upon individual circumstances.99 Preliminary data found that women value counselling that enables them to consider all their options but does not try to dissuade them from decisions they have made.100 The audit found that 12.5% of women accepted counselling.101
  3. 8.82 Thus, while women are offered additional counselling, many choose not to have it, having already made up their minds.102
  4. 8.83 This is consistent with the Marie Stopes International commissioned survey of women who experienced unplanned pregnancy.103 This survey found that 75% of women did not wish to speak to a counsellor before deciding how to proceed.104 Among survey participants, the most common place to obtain counselling was an abortion clinic (45%). Of those women who obtained counselling, 46% said the most helpful thing was that counselling was non-judgmental; 80% expressed satisfaction with the service provided.105
Psychological Effects and Counselling
  1. 8.84 Some people, such as Melinda Tankard-Reist, believe strongly that current counselling provision is inadequate.106 Others claim that ‘for some women abortion results in mild, moderate or severe psychological and emotional harm’.107
  2. 8.85 It is important not to denigrate the experience of some women who do find abortion to have an emotional impact; however, this does not necessarily equate with psychological harm.
  3. 8.86 It is generally recognised by health bodies that the vast majority of women do not suffer psychological harm from abortion.108 Some may express feelings of relief afterwards.109
  4. 8.87 The Royal Australian and New Zealand College of Obstetricians and Gynaecologists reports:

[P]sychological studies suggest: there is mainly improvement in psychological wellbeing in the short term after termination of pregnancy; there are rarely immediate or lasting negative consequences; there may be an association between termination of pregnancy and some adverse mental health markers: these may reflect pre-existing conditions.110

  1. 8.88 In 2007 the UK House of Commons Science and Technology Committee reviewed the evidence on psychological risks of abortion. It identified the strengths and limitations of various studies, and concluded that there is no strong evidence to contradict the Royal College of Obstetricians and Gynaecologists’ guidelines on the risk to mental health of induced abortion.111 Those guidelines state:

[S]ome studies suggest that rates of psychiatric illness or self-harm are higher among women who have had an abortion compared to women who give birth and to non-pregnant women of similar age. It must be borne in mind that these findings do not imply a causal association and may reflect a continuation of pre-existing conditions.112

Experience in Other Jurisdictions

Overseas Legislation
  1. 8.89 In the US, 32 states have mandatory counselling; however, most of this is related to mandated information. Seven states require counselling to be delivered in person, at least 18 hours before the procedure; 17 states require women to be given a list of agencies that provide counselling or other services to help women carry their pregnancies to term.113
  2. 8.90 Mandatory counselling is not a feature of abortion laws in other countries, such as the UK, New Zealand, or Canada.
  3. 8.91 The New Zealand Abortion Supervisory Committee regulates the provision of counselling. A licence to provide abortion services is granted only if the committee is satisfied that ‘adequate counselling services are available to women considering having an abortion in the institution, and are offered to such women whether or not they ultimately have an abortion’.114 Women are not forced to attend such counselling.
  4. 8.92 The committee is also charged with the duty of ensuring that sufficient and adequate counselling facilities are available throughout New Zealand forwomen who may seek advice on abortion.115 It is empowered to approve agencies for the provision of such counselling services.116
Australian Legislation
  1. 8.93 The Tasmanian Criminal Code requires amedical practitioner to counsel a woman seeking an abortion about the medical risks involved and refer her to counselling.117 The woman is not compelled to attend counselling.
  2. 8.94 In Western Australiait is lawful for a medical practitioner to perform an abortion up to 20 weeks gestation if a woman has given ‘informed consent’.118 That term is defined to include:

(a) counselling on medical risk of termination and pregnancy;

(b) the opportunity of referral for further counselling;

(c) available post procedure or post birth counselling.119

  1. 8.95 While medical risk counselling is mandatory, reflecting the general duty of disclosure, women are not compelled to attend counselling under (b) or (c).120
  2. 8.96 Counselling must be undertaken by a person other than the practitioner (or the practitioner’s assistants) carrying out the abortion.121
Clinical Guidelines and Administrative Regulation
  1. 8.97 Non-legislative measures that aim to promote best practice in abortion care have been adopted in some jurisdictions. These range from administrative regulations (policy directives), to professional standards (clinical guidelines), and best practice frameworks adopted across all providers (practice guidelines). These generally include counselling.
  2. 8.98 The Framework for Terminations in New South Wales Public Health Organisations sets the boundaries of local protocols on the delivery of abortion services. This policy directive requires that all women seeking an abortion in public health settings are offered counselling, before and after the procedure.122
  3. 8.99 The New Zealand Abortion Supervisory Committee has also produced counselling standards that cover qualifications, ethics, and supervision.123
  4. 8.100 British Columbia has a comprehensive set of guidelines: Best Practices in Abortion Care—Guidelines for British Columbia. This set of care principles provides detailed guidance on counselling associated with abortion, including decision-making counselling, post-abortion counselling, contraception counselling, and counselling and care for women with a history of experiencing violence, including sexual violence.
  5. 8.101 The Royal College of Obstetricians and Gynaecologists’ Clinical Guideline, The Care of Women Requesting Induced Abortion, deals with patient support and counselling. It recommends that care pathways be available to women with additional support needs, including those with psychiatric history, poor social support, or where there is evidence of coercion.124 It also recommends referral for further counselling after the abortion be available.125
  6. 8.102 The Royal Australian and New Zealand College of Obstetricians and Gynaecologists’ publication, Termination of Pregnancy: Resource Guide for Professionals,126 states that ‘supportive non-judgemental counselling should support decision-making prior to termination of
    pregnancy …’127 It goes on to say ‘a follow up appointment should be arranged and strongly encouraged, to include … arrangements for further review and counselling as necessary’.128

Community Views

  1. 8.103 As described in Chapter 5, community consultations revealed strong consensus for supporting women in decision making. Many people highlighted the desirability of good quality, non-directive counselling.
  2. 8.104 This is consistent with community attitudes as measured by the SCBI Survey 2004,129which found that 80% of participants thought that counsellors ‘should not try in any way to influence the woman’s decision’.130
  3. 8.105 Among consultation participants, views on how far the law should intervene in the clinical practice of counselling were divergent. The issue of compulsory counselling was highly contentious.
  4. 8.106 Most organisations had a strong preference that non-directive counselling be available but not compulsory. Women’s Health West, noting personal experience of counselling in a mandatory setting, said ‘we found that compulsory counselling not only reinforced a lack of control, it sparked anger among women that they were assumed to be incapable of making a considered decision’.131 It was argued that compulsion and counselling was an oxymoron, and that mandated counselling would be an unnecessary legal addition.132
  5. 8.107 Some people raised concerns about what they saw as ‘truth in advertising’ regarding counselling services, so that women were made aware that a counsellor was from an organisation or value system opposed to abortion on principle.133 This is discussed in more detail later in this chapter.
  6. 8.108 Other people took the view that abortion services were under-regulated.134 They were often concerned that counselling is undertaken by the same organisation providing the abortion, particularly private clinics.135 Some felt legislation should prohibit this practice.136
  7. 8.109 Some people wanted legislation to require compulsory counselling, mandated information and cooling-off periods.137 These tended to be people who also took an absolute position opposing abortion.138A few looked to examples from the US, where in addition to the usual standards of consent, additional obligations are placed upon the doctor and patient before an abortion may proceed.
  8. 8.110 Among others there was some preference for the law to include a requirement for referral to counselling, without it being compulsory for women to attend. This was an important feature in Dr Tonti-Filippini’s model and was supported by the Respect Life Office.139

Policy Issues

  1. 8.111 Comprehensive service delivery and care in the area of abortion includes ‘the provision of accurate, balanced information and access to counselling which provides for the exploration of all options in a supportive, non judgemental manner’.140
  2. 8.112 The commission believes that any woman seeking counselling about abortion, including post-abortion counselling, is entitled to receive it. Only those counsellors operating within the professional and ethical standards discussed earlier should provide such counselling. Counselling should be individually tailored to the needs of the woman and responsive to her cultural and social identity, economic or material circumstances, and personal values system.
  3. 8.113 Women who have existing emotional distress may require additional support, for example, if the pregnancy is the result of rape. Women who are substance dependent or have a mental health disability may also require additional support.141
  4. 8.114 The ability of a woman to obtain counselling should not be constrained by her geographic location, disability, language, cultural background, or age. To achieve the goal of access and equity in service provision, more resources may be required.
  5. 8.115 The commission encourages DHS to initiate the development of uniform standards of practice to inform pregnancy and abortion counselling services, and to encourage accountability and quality. These could potentially form part of a more comprehensive set of best practice standards.142While such benchmarks are not a legal matter, they could promote best practice in the field and would be consistent with existing policy commitments to promote sexual and reproductive health.143
Independence
  1. 8.116 The independence of counsellors was an issue for some people who participated in our consultations. On the face of it, requiring counsellors to be independent of providers may seem attractive;144 however, research cited in the NHMRC Information Paper on Termination of Pregnancy suggests that women are ‘less concerned with the settings in which counselling is provided than about the quality of counselling’.145
  2. 8.117 Independent counselling is already provided and is publicly funded. Funding rules for Medicare payments for pregnancy support counselling and the National Pregnancy Support Telephone Helpline specify that ‘counselling may not be undertaken by professionals with links to abortion providers’.146
  3. 8.118 Take up rates for the Telephone Helpline appear to have been much lower than the tender process scoping expected.

In its first seven months of operation, the helpline received 2238 calls—an average of about 320 a month for its 11 plus counsellors. It had fewer than 150 calls in its first two months and while an advertising campaign brought about a surge of calls in July and August, demand fell back to 376 calls in November.147

  1. 8.119 Since most women use in-house counselling services, in either public hospitals or private clinics, a legal requirement that counselling be limited to external providers would mean a significant change in current practice. Women seeking counselling would have to access at least two services—the medical provider and a separate counsellor—creating a more complex care pathway.
  2. 8.120 A prohibition on counselling in abortion provider settings would mean that abortion would stand alone as a medical procedure where those with the most experience in a procedure are viewed as those least able to talk to patients about it.148Such a requirement would potentially apply to major public providers, including the Women’s. It would also require a prohibition on pregnancy counsellors who are morally opposed to abortion, as this would equally offend the principle of independence.
  3. 8.121 A few groups inferred that counsellors in abortion clinics, or public hospitals providing abortion services, have a stake in promoting abortion.149 This was not borne out in evidence given to the commission. Data from the Women’s indicates that of known outcomes for women using PAS, 88% proceeded with an abortion through the hospital.150 The remainder either cancelled, did not attend for the procedure, or were known to have continued with the pregnancy.151
Compulsion
  1. 8.122 The commission did not find evidence that forcing women into counselling is necessary or advisable. Abortion counselling is a clinical, service delivery issue rather than one to be directed by law.
  2. 8.123 In arguing for compulsory counselling, people generally came from the position that abortion is such a traumatic event, with long-term consequences, that women need counselling regardless of whether they request it. This suggests that women are not fully capable of making their own decisions and require protection.152
  3. 8.124 The commission recognises that abortion is a decision of deep moral significance for many people. The woman herself is the best person to make such a decision. This includes deciding upon the nature or extent of any counselling she needs, in consultation with her clinician.
  4. 8.125 Compelling a person who has already determined a course of action to attend counselling is unlikely to do much good, but has the potential to do harm.
  5. 8.126 Professional counselling processes are based on an ‘ethos of respect for clients, their values, their beliefs, their uniqueness and the right to self determination’.153 They are, by their very nature, non-directive and non-coerced. As Dr Tonti-Filippini notes in his submission, ‘[c]o-oerced counselling is not counselling’.154
  6. 8.127 Mandating counselling also runs the risk of establishing a legal barrier to abortion because counselling services may not exist in a particular geographic area. Mandating counselling may result in women having to travel long distances for multiple medical assessments and counselling sessions before they can proceed. This would exacerbate existing inequities.
Referral
  1. 8.128 A small number of people called for mandatory referral for counselling. Dr Tonti-Filippini recommended a statutory requirement for independent counselling requirements that reflect a distinction between supportive decision-making counselling and pre-procedure counselling, and which require referral to properly trained pregnancy counsellors for the former (as is required under the Infertility Treatment Act) and provision of the latter according to information that are evidence-based.155
  2. 8.129 In examining this proposal, the commission noted three elements: an interrelationship with existing disclosure duties, consistency with other areas of health law, and the efficacy of mandating referral.
Relationship with Medical Risk Information and Consent
  1. 8.130 As Dr Tonti-Filippini notes, despite being quite separate issues, information provision is often conflated with counselling. This may result in ‘counselling’ having multiple meanings in legislation. For example, in the Western Australian legislation the term ‘counselling’ is used to describe both the duty of disclosure to achieve effective consent in one section156 and an ongoing therapeutic relationship in the next.157
  2. 8.131 This creates confusion about the role of the medical practitioner and adds unnecessary complexity to the law, which was noted in the review of the Western Australian legislation. It was reported that medical practitioners were directing women to attend counselling services in the mistaken belief that it was mandatory to do so to access abortion services.158
  3. 8.132 Greater clarity is achieved by treating information provision and counselling as separate issues. Information provision is primarily a legal issue, while counselling is a therapeutic matter.
  4. 8.133 A medical practitioner must provide a patient with evidence-based information about abortion as part of the legally mandated duty of care to a patient.159 Failure to fulfil this duty exposes the practitioner to a claim in negligence and professional sanction.
Consistency with other Victorian Laws
  1. 8.134 The commission is mindful that counselling and information provision is mandatory for consent under the Infertility Treatment Act 1995 and associated regulations.160 While both ART and abortion deal with potential human life, ART is a relatively recent activity that raises unique issues.
  2. 8.135 The consequences of a having a child through ART are complex. Legal issues associated with ART that require specific consideration include donor interests and information rights of the child once born.
  3. 8.136 Decisions about research using embryos is another important consideration when contemplating ART.161
Efficacy of Referral as a Legal Requirement
  1. 8.137 It is difficult to determine the practical value of a statutory requirement to refer to counselling, since referrals can already be made and such a provision could not compel women to undertake counselling.
  2. 8.138 While a compulsory referral for counselling might have symbolic value, it does little to further the underlying values of the existing practice. It risks delving into areas of clinical judgment and patient autonomy that need not be disturbed by the law.
  3. 8.139 While counselling is important, it is a clinical matter best left to professional judgment based on a woman’s particular circumstances. The commission therefore believes that the law should not include a requirement for compulsory counselling, or for compulsory referral to counselling.
  4. 8.140 The commission encourages the Minister for Health to initiate the development of uniform standards of practice to inform pregnancy and abortion counselling services, and to encourage accountability and quality.

Recommendation

5. Any new abortion law should not contain a requirement for mandatory counselling or mandatory referral to counselling.

Cooling-off Periods

  1. 8.141 In places where the law mandates compulsory counselling, a minimum time between counselling and the abortion procedure is often included. This is often referred to as a cooling-off period.
  2. 8.142 Twenty-four US states have a cooling-off period; generally, 24 hours.162 There is no cooling-off period in any Australian jurisdiction, in the UK or New Zealand.163
  3. 8.143 In Victoria there is no legislatively mandated cooling-off period; however, proper professional practice dictates that women should not be pressured into making decisions and are encouraged to take the time they need to reach a decision.
  4. 8.144 Indirect cooling-off periods may already occur due to resource limitations in public hospitals, access issues for rural and regional women, and costs associated with private abortions.

Community Views

  1. 8.145 In the commission’s consultations, decriminalisation opponents tended to support the inclusion of a cooling-off period. A a wide range of times was suggested (between 24 hours and three weeks).164
  2. 8.146 This is consistent with SCBI survey data, which claimed that among people surveyed 79% supported a cooling-off period; 40% believed a seven-day period was appropriate; 24% said two days was appropriate; and 10% thought one day was sufficient.165
  3. 8.147 The survey question was preceded by another question that included this preliminary statement: ‘a pregnant woman can go directly to an abortion clinic, without consulting anyone first, ask for an abortion, and have the abortion that day, without any questions asked about the reasons or the circumstances’.166 The framing of the question in this way may have provoked a response supporting cooling-off periods.
  4. 8.148 There was strong opposition to legislated cooling-off periods from others, including AMA Victoria.167 Among some women’s groups it was felt that the concept of ‘cooling off’ was ‘dangerously naïve and disrespectful, given the reality of women’s lives, the urgency of the problem pregnancy and the barriers and time delays already experienced by women’.168
  5. 8.149 Others felt that cooling-off periods were unnecessary, ‘as few women choose to, or are able to access abortion immediately’.169 It was further argued that imposed cooling-off periods may delay access to safe first trimester abortion. There was particular concern about rural and regional women who could face additional travel and accommodation costs if they had to make multiple journeys to Melbourne.

Policy Issues

  1. 8.150 The policy goal of informed decision making protects principles of personal wellbeing and autonomy.170 To fully consent, a woman needs capacity, free choice, and adequate, appropriate information to make her decision. The time taken to make the decision is unique to each woman because every woman and her circumstances are different.
  2. 8.151 ‘Cooling off’ implies that a decision would otherwise be made abruptly or in the heat of the moment.171 It assumes the woman’s judgment is flawed or that she requires further time or information to reach a different decision.
  3. 8.152 Evidence suggests that most women are firm in their decision. A PAS audit found that of 3636 responses, 306 women reported being ambivalent or undecided.172 The audit found that 72% of the women had a partner in pregnancy who was ‘aware and supportive’ of the woman’s needs in the situation.173
  4. 8.153 The commission believes that women should be able to take the time they need to reach their own decision about whether to have an abortion. This matter should be governed by good clinical practice rather than legislation. This point was made by the Fetal Management Unit at the Women’s, which felt that ‘a fixed or legislated period distorts the flexibility required in clinical practice where time to contemplate and work through issues needs to be tailored to the woman and those who are supporting her’.174
  5. 8.154 The commission believes the current law governing all medical procedures deals appropriately with the timing of consent. No further legislative requirement is necessary.

Recommendation

6. Any new abortion law should not contain a compulsory delay or cooling-off period before an abortion may be lawfully performed.

Targetted Regulation of Abortion Providers

  1. 8.155 During consultations, some people expressed concern that abortion facilities are under-regulated. Their concerns tended to focus on private clinics, ranging across clinical standards, counselling provision, and the commercial activities of some clinics.
  2. 8.156 They proposed several additions to the current regulatory framework. These included restrictions on where abortions could be performed, additional data and reporting requirements, changes to the law of consent, and targeted anti-coercion legislation. Generally, decriminalisation supporters did not share these concerns. They noted existing legal requirements and health regulations, which they considered were adequate.175

Current Regulation in Victoria

  1. 8.157 The regulation of abortion services was discussed in detail in Chapter 3.
  2. 8.158 Abortion services in public hospitals are required to meet the clinical and service standards of public health services in Victoria. In common with all other public hospitals, they are regulated by the Health Services Act. Hospitals may also operate local protocols and benchmarks.176
  3. 8.159 Private clinics are regulated by DHS under the Health Services (Private Hospitals and Day Procedure Centres) Regulations. These regulations include: staffing levels; registers and record keeping; care and management of patients; complaints procedures; suitability and upkeep of premises and equipment; and infection control. DHS may include additional requirements for individual clinics as part of their conditions of licence.
  4. 8.160 The Health Professions Registration Act requires medical practitioners to be registered by the Medical Practitioners Board of Victoria. This legislation establishes a scheme for dealing with professional conduct and performance. Relevant professional association standards, including codes of ethics, also apply. Complaints can also be made to the Health Services Commissioner.177
  5. 8.161 A person must not hold himself or herself out to be a registered health professional if not lawfully registered.178 A non-registered person commits an assault if consent is given in the mistaken belief that the person was registered.179 If a woman consented to an abortion, knowing that the person was not registered, the offence of abortion would occur.180

Should there be Limits on where Abortions are Performed?

  1. 8.162 Some people sought a blanket prohibition on private clinics providing abortions.181 Others argued that abortions should only be undertaken in public hospitals by salaried doctors.182 Some suggested a licensing system.183 It was claimed these changes were necessary for several reasons.
  2. 8.163 Dr Tonti-Filippini summarised the allegations made about private providers:

[T]ermination of pregnancy may occur in coercive circumstances or by private for profit practitioners in circumstances of conflict of interest and possibly lacking services and support, and thus akin to backyard abortion, or in circumstances in which there has been insufficient opportunity for the woman to explore the nature of her decision…184

Experiences in Other Jurisdictions

  1. 8.164 Historically, the policy aim of limiting abortions to prescribed facilities was to ensure proper medical standards and hygiene. Laws of general application now deal with these important issues in most places.
  2. 8.165 In some jurisdictions abortions must be performed in facilities licensed especially for that purpose. In most Australian jurisdictions this may include public and private providers.
  3. 8.166 In the ACT, the Health Act provides that abortions may be carried out only in an approved medical facility.185 The minister approves facilities and may not unreasonably refuse or delay a request for approval.186 There is no prohibition on private clinics.187 Nor is there a prohibition in Queensland.
  4. 8.167 In Western Australia there is a mix of providers. ‘Over 90% of abortions in Western Australia were carried out in the private sector in 2005.’188 Abortions after 20 weeks may only be performed in facilities approved by the minister.189 Currently, this is the King Edward Memorial Hospital.190
  5. 8.168 The Northern Territory legislation requires abortions to be carried out in a hospital as declared by the minister.191 Similarly, in South Australia abortions may be carried out only in a hospital or class of hospital declared by regulation.192
  6. 8.169 In the UK, abortions may be undertaken in National Health Service hospitals, primary care trust services, and in places approved by the minister.193 This includes private clinics such as those operated by the British Pregnancy Advisory Service.
  7. 8.170 In New Zealand, the Abortion Supervisory Committee undertakes licensing of abortion providers.194 Both public and private providers are licensed. Section 19 of the Contraception, Sterilisation and Abortion Act allows for abortions under 12 weeks gestation to be carried out in a facility with a ‘limited licence’.195 For those over 12 weeks gestation, the procedure must be carried out in a facility with a full licence, that is, where there are, among other things, facilities for an overnight stay.196 The District Health Boards, which are responsible for the delivery of public health services at a regional level, are required by their service agreements with the New Zealand Ministry of Health197 to ensure that abortion services are provided to women who meet the criteria for lawful abortion.198
Medical Abortion (RU486)
  1. 8.171 When abortion legislation was introduced in other jurisdictions, it was a surgical procedure; however, as medical abortion has become more common new legal issues have arisen.
  2. 8.172 Problems arose in New Zealand following the introduction of mifepristone (RU486) in 2001 because of uncertainty about the definition of ‘performing’ an abortion.199 The High Court decided that with respect to medical abortions, women must take the medication in a licensed facility but they do not need to remain at the facility between the sets of tablets.200 Nor is it compulsory for them to stay in a licensed hospital or clinic until the fetus is expelled and the abortion is complete.201
  3. 8.173 Following the recent House of Commons Scientific and Technology Committee inquiry, UK legislation may now be changed so women do not have to visit a clinic to obtain the second dose of medication. In the US, the second stage of a medical abortion is frequently self-administered by the woman in her own home.202
  4. 8.174 The committee concluded that:

[s]ubject to providers putting in place the appropriate follow up arrangements, there is no evidence relating to safety, effectiveness or patient acceptability that should serve to deter Parliament passing regulations which would enable women who chose to do so taking the second stage of early medical abortion at home, or that should deter Parliament from amending the Act to exclude the second stage of early medical abortion from the definition of ‘carrying out a termination. This would enable a trial to take place.203

Policy Issues

  1. 8.175 In Victoria, about two-thirds of all abortions are undertaken in private clinics.204 Prohibiting abortion from taking place in these clinics, which are appropriately regulated under existing laws, would represent a major change to service patterns. It would also require significant additional public hospital resources because demand for abortion services would shift to the public sector.205
  2. 8.176 Restricting abortion services to public hospitals would be appropriate only if there was evidence that practitioners in private settings are less able to meet clinical standards or have a conflict of interest which impacts upon the quality of service.206 That evidence does not exist. Private clinics are inspected by DHS, which has appropriate regulatory powers that permit intervention if there are clinical concerns.
  3. 8.177 The commission was advised that private clinics have referral arrangements with tertiary hospitals for complex cases.207 Clinics also follow adverse event reporting and management.208
  4. 8.178 The commission notes the view of AMA Victoria that limiting a procedure to a particular category of registrant is neither practical nor desirable.209 ‘Clinical data would support the availability of a range of settings, as complication rates are low in both free standing clinics and hospitals, whether in the public or private sectors, and whether staff are specialists or general practitioners.’210
  5. 8.179 It is important that the law does not restrict the development of best clinical practice for either surgical or medical abortion.
  6. 8.180 The commission believes appropriate regulation of private providers of abortion services currently occurs under the Health Services (Private Hospitals and Day Procedure Centres) Regulations. No further regulation is necessary.

Recommendation

7. Any new abortion law should not contain restrictions on where abortion procedures may be performed. Existing health regulation is sufficient.

 

Who Can Perform Abortions?

  1. 8.181 Some laws expressly provide that only registered medical practitioners may perform abortions.211 This has been interpreted to include circumstances where people acting under the supervision of a registered practitioner participate in an abortion.212
  2. 8.182 The commission has not received any information which suggests that unqualified people, often referred to as ‘backyard abortionists’, are offering abortion services in Victoria. There is little doubt, however, that backyard abortionists have operated in Victoria in the past.213
  3. 8.183 The commission believes it should be an offence for an unqualified person to perform an abortion in any circumstances and has included this in each of the legislative options described in Chapter 6.214
  4. 8.184 There are two legislative options available to penalise unqualified abortion practitioners.

 

Option 1—Health Act
  1. 8.185 The first option is to insert a provision into the Health Act stating that an abortion can only be lawfully performed by a medical practitioner. This would activate the provision in the Health Professions Registration Act, which renders it unlawful for an unqualified person to perform services that must be performed by a medical practitioner.215
  2. 8.186 It should be noted that the penalty for this offence is 60 penalty units.216 Some people may not consider this adequate given the risk of harm associated with unqualified abortion.217
Option 2—Crimes Act
  1. 8.187 The other option is to create a stand-alone offence in the Crimes Act. Such an offence would include the following elements:

a. A person commits an offence if he or she performs an abortion when they are not a medical practitioner or a person acting under the supervision of a medical practitioner.

b. Performing an abortion includes a reference to attempting to perform an abortion; and doing any act with intent to procure an abortion, whether or not the woman concerned is pregnant.

  1. 8.188 Under the models proposed in Chapter 6, this would be the only abortion-related offence in the Crimes Act.
No Penalties for the Woman
  1. 8.189 The commission is unaware of any woman being charged in Victoria, since 1969, with attempting to perform an abortion upon herself or charged as an accessory to an abortion performed upon herself by another person. It seems appropriate, though, to render it quite clear that a woman cannot be:
  • charged with performing an abortion upon herself
  • charged as an accessory to an unlawful abortion performed by an unqualified person
  • liable to any legal sanction if she knowingly permits a medical practitioner to perform an unauthorised abortion upon her.
  1. 8.190 The commission believes new abortion legislation should be drafted to make it clear that a woman commits no legal wrong if a non-qualified person performs her abortion. Each of the legislative options set out in Chapter 6 applies this principle.

Recommendation

8. The Crimes Act 1958 should be amended to include a provision that it is unlawful to perform an abortion unless it is performed by, or under the supervision of, a registered medical practitioner

or

9. The Health Act 1988 should be amended to include a provision that an abortion can only be lawfully performed by a medical practitioner, or under the supervision of a medical practitioner.

It should not be an offence for a woman to perform or attempt to perform an abortion upon herself.

10. It should not be possible for a woman to charged as an accessory to an unlawful abortion performed upon her by an unqualified person.

11. A woman should not be liable to any legal sanction if she knowingly permits a medical practitioner to perform an unauthorised abortion upon her.

Notification Schemes

  1. 8.191 Another issue raised in consultations was the accuracy and publication of abortion data. The related but separate issue of adverse event reporting was also considered.

Data Notification

  1. 8.192 We discussed incidence of abortion in Chapter 3. There is no accurate data about the rate of abortion in Australia because ‘there is no uniform method of data collection, collation or publication, and all the data sources that are available have deficiencies’.218
  2. 8.193 There are significant limitations with obtaining abortion data from Medicare records, hospital separations records, or extrapolating from South Australian data.219 South Australia, and more recently Western Australia, are the only Australian states or territories that collect and routinely publish comprehensive data on abortions because their abortion laws include a notification requirement.220 South Australian data is used for extrapolations because it has been collected for over 10 years.
  3. 8.194 An AIHW study notes the shortcomings of existing data sets, which do not include a wider range of information on the circumstances and clinical outcomes of abortions. The existing national routinely collected data sets do not uniformly include information on the diagnosis, reason/indication for the induced abortion, complications, gestation, anaesthetics, socioeconomic characteristics, or category of medical practitioner undertaking the procedure. They also do not include comprehensive information on pre- and post-abortion services, such as counselling and contraception, or on risk factors.221
  4. 8.195 The AIHW study suggests ways to develop the National Hospital Morbidity Database, Medicare data, the Australian Bureau of Statistics perinatal mortality data, data on abortions for congenital anomalies, and voluntary or mandatory reporting by non-hospital facilities.222

Existing Data Collection in Victoria

  1. 8.196 In Victoria since 2002–03, all private abortion providers must be registered as day procedure centres or private hospitals.223 As part of that registration, clinics are required to provide detailed statistical returns to DHS.224 This includes: the patient’s record number; admission date; admission source; date and country of birth; indigenous status; postcode and locality; marital status and sex; type of care received and procedures carried out; health fund and level of insurance; Medicare number; date of discharge; discharge destination; and final diagnoses on discharge. The last two requirements would disclose any adverse events resulting from an abortion. A penalty of 40 units applies for failure to provide the required information every month.
  2. 8.197 As the effect of this requirement is to provide mandatory reporting of data to DHS, the commission does not believe it is necessary to create any further legislative requirement for reporting the incidence of abortion. It would simply replicate existing requirements; unnecessary legislation is undesirable.
  3. 8.198 Public health services and other public hospitals are required under the conditions of funding to report information to DHS; this includes the same kind of information that private hospitals report. Denominational hospitals also report this information as a condition of funding.
  4. 8.199 As reporting is already occurring in Victoria, the remaining issue is dissemination of abortion data. The data currently collected by DHS is not published. Many submissions and consultations discussed the importance of such data being available for future policy development, some seeing it as particularly important for the development of strategies to reduce the number of abortions.225
  5. 8.200 Failure to disseminate abortion data does not encourage informed discussion of issues, or targeted, well-informed policy making for abortion, reproductive health, and education. Clinical policy and health policy in this area would be assisted by the routine publication of this information. The Health Act contains a general provision requiring the DHS Secretary to ensure comprehensive health data is collected and to ‘analyse and disseminate this information widely to m embers of the public’.226
  6. 8.201 If accurate national data is to become available, Victoria must enter an agreement with other states and territories to improve and standardise data. The AIHW notes that essential components for enhanced routine reporting are:
  • national agreement on the aims and objectives of the collection
  • the scope of collection, including gestation
  • the data elements to be collected
  • process and outcome measures
  • the definition of induced abortion.
  1. 8.202 It suggests a program of data development, ideally occurring under the auspices of the National Health Information Agreement governance arrangements to ensure national standardisation of data.

 

Recommendation

12. Mandatory reporting of abortions and outcomes by private providers occurs under the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2002, and by public providers as part of their responsibilities under funding agreements. No further legislative requirement is necessary.

 

Adverse Events Register

  1. 8.203 Some people227 suggested that in addition to general data collection, there be a specific, additional requirement for abortion providers to keep and submit records of outcomes of procedures so that information can be published that would assist future patients to make informed decisions.228
  2. 8.204 Adverse events are usually understood to be in the context of medical mishap or mistake rather than a feature of a general data collection. The AIHW defines them as ‘incidents in which harm resulted to a person receiving health care’.229

Current Regulation

  1. 8.205 In Victoria, private hospitals and day procedure centres are required to maintain adverse event records on site. These are inspected by DHS as part of the renewal of a clinic’s registration under the Health Services (Private Hospitals and Day Procedure Centres) Regulations.230A medical management meeting or committee, independent of the clinic, may also review reports of adverse events.231 Evidence of ongoing quality improvement activities is an expectation for renewal of registration of all facilities
  2. 8.206 Public hospitalsnotify any major incidents to the DHS Sentinel Event Reporting System. There are also internal hospital procedures that deal with adverse events, including a weekly review of the surgical list and an annual audit of cases.232
  3. 8.207 Patient records include outcomes of abortion procedures where known. If a patient does not attend a follow-up consultation or does not advise of a complication this information cannot be captured. The Austin Hospital reports: ‘Our unit has not had a sentinel event. Our audit shows a very low rate of complication which is commensurate with the published rate in the medical literature’.233

Policy Issues

  1. 8.208 There is no evidence that adverse events are common. Nor is there evidence that the current regulatory framework for notifying and dealing with adverse events is inadequate.

Recommendation

13. Adverse event reporting and management occur under existing public health protocols and as a condition of registration under the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2002. No further legislative requirement is necessary.

 

Additional Consent Requirements

Father’s Consent

  1. 8.209 Some people felt that the father should have to give consent before the woman could proceed with an abortion.234 They cast this as an equality issue.235
  2. 8.210 AMA Victoria did not agree, stating: ‘The patient, in consultation with her medical practitioner, should be making decisions about their own care. Any third party involvement will have the potential to compromise best patient care’.236
  3. 8.211 Although there is not a significant amount of research in this area, the most recent data from the Women’s suggests that nearly three-quarters of partners are informed and supportive of the woman’s decision. The following table provides information about partner knowledge of abortion.
Table 8237 - Partner Attitude Towards Abortion

Partner in pregnancy aware and supportive

2370

72%

Partner in pregnancy aware and unsupportive

292

9%

Partner in pregnancy aware; attitude unknown

139

4%

Disclosure that partner in pregnancy violent/abusive

83

3%

Partner in pregnancy not aware

368

11%

Separation

27

1%

Total

3279

100%

 

 

  1. 8.212 A father’s consent is not required in any other Australian statutory schemes. The issue was considered in the High Court 25 years ago, when an application by a man for an injunction to restrain an abortion was refused.238 The court found a man cannot compel a woman to continue with a pregnancy; the decision is consistent with cases in other jurisdictions.239
  2. 8.213 The commission believes there is no reason to disturb this principle.

Young People and People with Disability

  1. 8.214 Some people sought additional notification and consent requirements for young people seeking abortion. For example, people who sent pro-forma submissions argued that parents of young people should be required to give consent.240 Some people said the permission of the Family Court should also be required for people ‘under age’.241
  2. 8.215 The Endeavour Forum argued that medical practitioners should be required to notify police of all requests for an abortion by young women under 16 years of age.242
  3. 8.216 The Youth Affairs Council of Victoria was strongly opposed to mandated parental consent for all young women under 16 years. Along with Family Planning Victoria, it argued that the existing law of consent should apply. It was also concerned that health information privacy principles be observed for competent minors, citing community consultation research indicating that health privacy and confidentiality is a significant concern of young people.243
Current Law and Practice in Victoria
  1. 8.217 The law of consent was discussed in Chapter 2. In summary, the legal age of maturity in Victoria is 18. The capacity of a young person below this age to legally consent to medical treatment is determined by applying the competency test laid down in Gillick244and confirmed by the High Court in Marion’s Case.245
  2. 8.218 The Medical Practitioners Board of Victoria has published guidelines for practitioners that outline the practical application of the Gillick test. The doctor must be satisfied that the young person has the capacity to understand and appreciate the proposed procedure and the consequences of having or not having the treatment.246These guidelines also set out relevant privacy and confidentiality considerations.
  3. 8.219 A young person with an intellectual disability may not be able to consent to medical treatment. In these circumstances, the parent may generally consent.247

Relationship Between Competency and Confidentiality

  1. 8.220 Medical practitioners have a legal and ethical duty to maintain the confidentiality of a competent young person. The AMA has adopted the position ‘that if a young person is able to make autonomous decisions regarding medical treatment and wishes the treatment to remain confidential, his or her doctor must respect and maintain that confidentiality’.248
  2. 8.221 The Privacy Act 1988 (Cth) does not contain specific provisions for young people but is generally understood to give the same rights and protections to competent young people as those enjoyed by adults.249 The privacy principles contained in the Health Records Act 2001 are observed for a competentyoung person.250
  3. 8.222 Medicare records can include the type of service received and the medical speciality of the practitioner.251 The written consent of a young person aged 14 years and over is required before parents can access their child’s Medicare and Pharmaceutical Benefits Scheme records. Parents who cannot gain their child’s authorisation may request that Medicare pass on their request to the medical practitioner.252

Other Jurisdictions

  1. 8.223 In NSW, young people aged 14 and over can consent to medical treatment without undergoing a Gillick mature minor assessment.253 In South Australia competency to consent to medical treatment, including abortion, occurs at 16 years.254
  2. 8.224 In the Northern Territory, a woman must be over 16 years to lawfully consent to an abortion.255
  3. 8.225 In Western Australia, a young woman under 16 years is not regarded as having given informed consent to an abortion unless a custodial parent or guardian has been informed that abortion is being considered. The parent or guardian must be given the opportunity to participate in the counselling process and medical consultations.256 If these provisions are met, the young woman may give her consent, even if this is not consistent with the parent or guardian’s wishes.257
  4. 8.226 To vary the parental requirements, a dependent minor must seek the permission of the Children’s Court.258 Twenty-six such applications were made between 1998 and 2002. All were approved. Reasons given for granting orders included fears of violence, retribution, cultural and religious reasons.259
  5. 8.227 Parental notification and consent requirements feature strongly in the US:260 22 states require parental consent only. By default this includes notifying parents:261 11 states require parental notification only.262
  6. 8.228 Six states permit a minor to obtain an abortion if a grandparent or other adult relative is involved in the decision and 14 states allow a minor to obtain an abortion in cases of abuse, assault, incest or neglect.
  7. 8.229 All of the 35 states have a judicial bypass procedure, which allows young women to obtain approval from a court.

Policy Issues

  1. 8.230 The Gillick principle of the mature minor is the basis for assessing competency for medical procedures in Victoria.263 To move from this principle would mean that individual determinations of capacity are not made. Instead, a fixed age becomes the proxy for competency. In an area as sensitive as medical treatment for young people, proceeding by way of individual determinations of competency is the preferred approach.264
  2. 8.231 As discussed in Chapter 2, the commission believes that the current common law rules concerning the competency of minors to consent to medical treatment are appropriate.
  3. 8.232 Maintaining the confidentiality of a mature minor’s medical treatment is essential. ‘The provision of confidential medical care goes hand in glove with acknowledging their right to consent to medical treatment: minors mature enough to consent are medico-legally owed the same duty of confidentiality as adults’.265
  4. 8.233 It is also important not to deny the central role parents play in supporting young women in their decisions, and that most young women turn to their parents for support when dealing with unwanted pregnancy. Overseas studies show that most adolescents turn first to their parents for health care concerns;266however, mandating parental notification risks some young women not accessing health services out of fears about confidentiality.267
  5. 8.234 While the Western Australian legislation allows young women to seek an order from the Children’s Court, such a process is dependent upon young women knowing the option is available, and the subsequent provision of effective legal advice.268 This is a cumbersome way to deal with circumstances where the young woman wishes her case to be kept confidential. It also undermines the first principle that a mature minor patient’s confidentiality is as important as that of an adult.
  6. 8.235 The commission notes that registered medical practitioners and nurses are under an existing obligation to notify DHS and /or Victoria Police if they believe on reasonable grounds that a person aged under 17 years is in need of protection.269 The commission does not think it necessary that medical practitioners be legally required to notify Victoria Police of all women aged under 16 years seeking abortion.
  7. 8.236 The Guardianship and Administration Act applies to people with a disability who are not competent to give lawful consent to abortion. No further legislation requirement is necessary.

Recommendations

14. The existing law governing consent and confidentiality for young people is adequate. No further legislative reform is required

15. The Children, Youth and Families Act 2006 requires registered doctors and nurses to notify the Department of Human Services or Victoria Police if they are of the reasonable belief that a person under 17 years is in need of protection. No further legislative requirement is necessary.

 

Anti-coercion Legislation

  1. 8.237 There was consensus throughout the consultations that coercion should not be tolerated. ‘Coercion either to have the child, or not have the child is contrary to what the community wants or expects in terms of women’s free choices.’270
  2. 8.238 There was specific concern that the decision-making capacity of women with a disability be respected.271 Negative stereotypes about the parenting abilities of people with a disability, together with attitudes that question the capacity of women with a disability to make reproductive decisions, were identified.272 The Victorian Women with Disabilities Network also expressed concern that there may be coercion to continue with a pregnancy from groups opposed to abortion.273
  3. 8.239 Some people suggested that partners, parents, and doctors regularly coerce women into abortion.274 Some of these people, while generally supportive of requiring parental consent, were concerned that parents may actively coerce young women into abortions. Some claimed financial inducements were provided by clinics.275 No firm evidence of coercion was provided to the commission.
  4. 8.240 Abortion providers said they are mindful of the risk of coercion, and will not proceed with an abortion if the woman appears to be ambivalent or under pressure.276 This is consistent with the practitioner’s existing ethical duty to gain valid consent.
  5. 8.241 The Endeavour Forum277 recommended the introduction of specific anti-coercion legislation based on draft Bills under consideration in some US states.278 These Bills define specific actions as criminal if they are intended to coerce a pregnant woman into seeking an abortion. They require doctors to screen patients for coercion. They sometimes require signs to be put in waiting rooms explaining that coercion and intimidation is illegal.
  6. 8.242 Anti-coercion legislation does not exist in any Australian jurisdiction. Nor does it exist in the UK or New Zealand, where the general law of consent applies. In the absence of evidence indicating that coercion is a problem, the commission does not think specific anti-coercion legislation is necessary. The current law governing all medical procedures deals appropriately with issues of consent. No further legislative requirement is necessary.

Recommendation

16. Any new abortion law should not include a specific ‘anti-coercion’ provision.

 

 

Substantive Issues Beyond the Scope of this Reference

Truth in Advertising

Community Views

  1. 8.243 Women seeking information and counselling about pregnancy may approach a pregnancy counselling service. These may be telephone services, community health or family planning services, or counsellors linked to hospitals or GPs. Generally, services will provide women with information about all three options: abortion, adoption, or continuing the pregnancy and keeping the child.
  2. 8.244 Some people expressed concern about the accuracy of information provided by some pregnancy counselling services operating in Victoria. They argued that some counselling advertisements mislead women into believing that they offer abortion advice, when the agency is run by groups that oppose and stigmatise abortion.279
  3. 8.245 Women’s Health and people in regional areas were particularly concerned about this issue.280 They suggested that a law be introduced to ensure transparency in advertising to clearly identify counsellors from particular organisations, or with value systems opposed to abortion.281

Current Law and Practice

  1. 8.246 As noted, anyone may describe themselves as a counsellor, regardless of qualifications or membership of a professional body.
  2. 8.247 Professional associations such as the Australian Association of Social Workers and the Psychotherapy and Counselling Federation have published standards and ethical codes. These state clearly that a counsellor or agency should accurately describe their service. For example, the Psychotherapy and Counselling Federation of Australia standards state:

[A]ny publicity material and all written and oral information should reflect accurately the nature of the service offered and the training, qualifications and relevant experience of the counsellor.282

  1. 8.248 There is no requirement that an individual counsellor or service be a member of an organisation that has standards of this nature.
  2. 8.249 The Health Professions Registration Act regulates the practice of health professionals, including nurses, pharmacists, doctors, and Chinese medice practitioners. The Act prohibits registered health professionals from engaging in false, misleading, or deceptive advertising;283 however, counselling is not a registered profession for the purposes of the legislation and so is not bound by the prohibition.
  3. 8.250 No legislation regulates advertising by counsellors who do not charge for their services. Section 52(1) of the Trade Practices Act 1974 (Cth) states: ‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. The Fair Trading Act1999 similarly regulates the conduct of persons other than corporations.284 A service that provides free counselling or information is not engaged in trade or commerce. Consequently, it is not governed by the relevant provisions in the Trade Practices Act or the Fair Trading Act.
Attempts at Federal Reform
  1. 8.251 Many people who raised this issue referred to the Transparent Advertising and Notification of Pregnancy Counselling Services Bill 2005, introduced as a private member’s Bill into federal parliament by Senator Stott Despoja.285
  2. 8.252 The Bill sought to make pregnancy counselling service providers who are exempt from the Trade Practices Act subject to the same principles as those engaged in trade or commerce. It included significant penalties and required organisations in receipt of Commonwealth funding to comply with the Bill.
  3. 8.253 The Bill was referred for inquiry by the Senate Community Affairs Legislative Committee. It reported that it ‘received many case studies from people who felt they had been misled by some pregnancy counselling services’.286
  4. 8.254 Reporting in August 2006, the committee did not make specific recommendations on the Bill; however, it did acknowledge that transparency in advertising is an important issue. It concluded that ‘the community is in favour of transparent advertising but how this is best achieved remains the challenge for policy makers and politicians’.287
  5. 8.255 Given the complexities of the issue and its terms of reference, the commission has not had the time or resources to canvass this issue; however, there is community concern about truth in advertising by pregnancy counselling services.
  6. 8.256 The commission encourages the Minister for Health to address this issue by considering appropriate regulatory options.

Bubble Zones

Community Views

  1. 8.257 During consultations, several people raised the issue of protestors outside abortion clinics. There was concern that the safety and wellbeing of patients and staff were being jeopardised by intimidation and harassment from protestors.288 Several people reminded the commission of the fatal shooting of a security guard at a clinic in 2001.
  2. 8.258 The Fertility Control Clinic described the issue as a ‘chronic and serious situation of daily harassment’.289 It took the view that no person should be able to obstruct a woman from accessing health care, including abortion.
  3. 8.259 A woman, who wished to remain anonymous, described her own experience as one where she was in ‘no position to defend myself from such a cowardly attack at a vulnerable time in my life’. She felt there was a lack of protection for women and their friends, partners, families, and support people and said this was of ‘grave concern’. She submitted that the law should provide protection for workers at and clients of abortion services.290
  4. 8.260 The Victorian Women with Disabilities Network noted that women with disabilities use clinics for a variety of reproductive health services. It reported that women may be confronted by protestors regardless of their reasons for using the clinic.291
  5. 8.261 A medical practitioner, who claimed to have received a death threat in the past, said one of the reasons for local specialists in regional areas not performing abortions is the ‘concern about verbal or physical attacks’. Women’s Health Victoria reported similar problems.292
  6. 8.262 The Helpers of God’s Precious Infants strongly defended their activities outside abortion clinics. They describe their activities as ‘encouragement and assistance’ and state that they ‘always act within the law and we never incite or instigate violence’. They said ‘no-one has ever been dissatisfied with the help we have given them’.293

Current Law and Practice

  1. 8.263 The Women’s has a permanent injunction against Right to Life Victoria and people named in the schedule to a Supreme Court of Victoria order made on 20 July 1992. This injunction applies to the hospital’s current premises.294
  2. 8.264 The commission was informed that Victoria Police can issue on-the-spot notices for breaches of Melbourne City Council by-laws for obstruction or public nuisance.295

Examples from Other Jurisdictions

  1. 8.265 The use of intervention orders to stop protestors is seen by some people as a piecemeal approach to what is arguably a broader issue of equitable access to health care. Since no other medical procedure attracts the number and persistence of abortion protestors, some people say that a more comprehensive approach is needed.
  2. 8.266 Several people suggested ‘bubble zone’ legislation.296 This is also referred to as ‘buffer zone’ or ‘moving-on’ legislation. In contrast to existing Victorian law, which requires a hospital or clinic to seek intervention orders or injunctions against particular people, bubble zone legislation establishes a physical zone around a clinic or hospital that protestors may not enter, and/or where their speech or action is restricted. If they do so, they commit an offence.296
  3. 8.267 In Canada, the British Columbia buffer zone statute—the Access to Abortion Services Act 1995—was established following the shooting of an abortion provider and the bombing of a clinic. It creates access zones around facilities which provide abortion services, homes and offices of doctors who provide abortion services, and the homes of other abortion service staff. Within these access zones, a person may not engage in sidewalk interference; protest; beset; or intimidate or attempt to or physically interfere with staff or patients.297
  4. 8.268 The legislation has been subject to several constitutional challenges on free speech grounds, none of which have been successful.298
  5. 8.269 The US Freedom of Access to Clinic Entrances (FACE) Act 1994 does not automatically create buffer zones around clinics; however, its provisions for granting injunctive relief permit judges to order such exclusion zones under appropriate circumstances.299 Three states, Massachusetts, Montana and Colorado, have specific buffer zone legislation,300 all of which have attracted constitutional challenge.301
  6. 8.270 There is no bubble zone legislation in the UK or in any Australian state or territory.

Policy Issues

  1. 8.271 The safety and wellbeing of women using abortion services, and any other medical facilities, is a matter of significant importance.
  2. 8.272 Bubble zone legislation raises several complex legal and policy issues which fall outside our terms of reference.
  3. 8.273 There is understandable community concern about the safety and wellbeing of staff and patients at the hospitals and clinics where people protest or stage vigils because of their views about abortion. The commission encourages the Attorney-General to consider options for a legislative response to this issue.

Footnotes

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