In the lead up to new reforms in force from 3 December 2018, legalising pregnancy terminations, our Queensland team outlines your responsibilities and rights for doctors who conscientiously object to terminations.
On 17 October, the Queensland Parliament passed a historic vote supporting the new legislation which removes termination of pregnancy from the criminal code where it was classed as an “offence against morality” in order to reclassify the treatment as a health issue.
Under the Termination of Pregnancy Act 2018, a doctor can perform a termination on a patient up to 22 weeks’ gestation and after 22 weeks, if the doctor in consultation with another doctor, agrees the termination should be performed after considering all the:
- relevant medical circumstances
- woman’s current and future physical, psychological and social circumstances
- professional standards and guidelines that apply to the doctor in relation to the performance of the termination.
In an emergency, a doctor may perform a termination on a woman who is more than 22 weeks pregnant without these conditions, if they consider it is necessary to perform the termination to save the woman’s life or the life of another unborn child.
Doctors’ rights: conscientious objection
We have received some calls to our Medico-legal Advisory Service from members regarding their ability to conscientiously object to providing or assisting in terminations and the legal implications if they refuse to refer a patient for termination.
While the new laws recognise conscientious objection and the right of doctors not to perform, assist, make a decision or advise about a termination, this is balanced against the rights of women, particularly the right to reproductive health and autonomy. Under the legislation, doctors are required to inform the patient of their conscientious objection and either refer the patient or transfer their care to another health practitioner or health service provider who they believe can provide the termination and does not have a conscientious objection.
However, the exceptions above do not exempt a registered health practitioner from their duty to provide or assist in performing a termination in an emergency.
Legal implications for non-compliance
Reinforcing the principle that termination should be classified as a health issue, there are no offences or penalties for a doctor’s failure to comply with the requirements for a lawful termination, or a doctor who contravenes the conscientious objection provisions. The Queensland Law Reform Commission’s Review of Termination of Pregnancy Laws Report considered that in this respect, health practitioners should be subject to the same professional and legal consequences that apply in relation to other medical procedures.
However, doctors should be mindful that they do not have the right to prevent a patient from seeking a termination if that is the patient’s choice and must provide a referral to another treatment provider who will offer the requested termination – particularly in rural or remote locations.
Doctors who conscientiously object can minimise their risk of a complaint by approaching a practitioner in their local area who is willing to accept patient referrals for terminations from them. Alternatively, doctors can meet their obligations under the legislation by referring to another health service provider or facility which is known to offer the service.
Failure or refusal to comply with the conscientious objection provisions may put doctors at risk of a complaint being made to the Office of the Health Ombudsman. This could result in an investigation or referral to the Australian Health Practitioner Regulation Agency and may ultimately lead to disciplinary action.
If you require expert advice regarding the new legislation, contact our Medico-legal Advisory Service on 1800 128 268, available 24/7 in emergencies.
This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision-making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. © Avant Mutual Group Limited 2018.