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Abortion Law in Australia – Recent Concerns and Controversies
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Abortion Law in Australia – Recent Concerns and Controversies


Dr Douglas Keeping, Obstetrician & Fertility Specialist, from FRANZCOG has presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the …

Dr Douglas Keeping, Obstetrician & Fertility Specialist, from FRANZCOG has presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the website: http://bit.ly/10xh1iO

Published in Health & Medicine
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  • 2. Douglas Keeping• 600 – 700 deliveries per year• One of the partners of Queensland FertilityGroup since 1982• Opinion in about 350 medico-legal cases
  • 3. MORALITY OF T.O.P.• A spectrum of views often passionatelyheld• Most people have a fairly strongly heldopinion• I have my own views• None of these is addressed in this talk
  • 4. PURPOSE OF THE TALK• T.O.P. happens and will continue tohappen – it is a “given” in thispresentation• How is it organised and what are theoutcomes and problems?• From a medico-legal perspective
  • 5. REASONS FOR T.O.P.• Because a woman requests one• A medical condition so severe as to makecontinuation of the pregnancy likely to leadto death is very rare• Can be “dressed up” as psycho-socialaspects – looks / sounds medical• Ultimately because a woman requests one
  • 6. METHODOLGY OF T.O.P.• Early T.O.P. (up to 12-14 weeks)-Suction / D&C : G.A.,L.A., Sedation-Prostaglandin (PG) drugs – D.I.Y.• Later T.O.P. (16 weeks onwards)-D&E – a bigger scale D&C usually withPG drugs to soften the cervix-PG drugs to induce a “mini labour”
  • 7. AN ANECDOTE• Aberdeen Scotland 1973• A woman from Glasgow on holiday inAberdeen in a caravan park with husbandand 4 kids• Admitted to gynae ward with septicmiscarriage• Klebsiella septicaemia : D&C andantibiotics and started to get better• Denied it was an DIY T.O.P.
  • 8. ANECDOTE (cont)• 2 days later unable to open jaw• Valium, tongue depressor: still unable• Next day diagnosed with Tetanus• Ventilator, ICU• Transferred to Glasgow• Died in their ICU• Irony that she had come from Glasgow whereT.O.P. was not allowed to Aberdeen where itwas allowed to have an illegal T.O.P.
  • 9. QUEENSLAND : THE LAW• Criminal Code 1899 – Section 224Any person who, with intent to procure themiscarriage of a woman…uses any meanswhatever, is guilty of a crime, and is liableto imprisonment for 14 years• Subsequent “case law” has resulted in asmorgasbord of interpretation andconfusion
  • 10. HISTORY OF T.O.P. INQUEENSLAND1985• Peter Bayliss runs a T.O.P. clinic in a house inGreenslopes• The government, the D.P.P., the police raid theclinic.• They take away instruments, bits of placentaand fetus from the drains and 20,000 patientrecords• Peter Bayliss and Dawn Cullen are charged
  • 11. HISTORY (cont.)• Not guilty verdict• Judge McGuire• “For the preservation of the mother’slife…having regard to the patient’s state atthe time and to all the circumstances ofthe case”
  • 12. HISTORY (cont)• “The law in this state has not abdicated itsresponsibility … to the unborn. It should rightlyuse its authority to see that abortion on whim orcaprice does not insidiously filter into oursociety.• There is no legal justification for abortion ondemand.”
  • 13. HISTORY (cont)• Judge McGuireThe present abortion law in Queensland isuncertain and more imperative authority,either the Court of Appeal or Parliamentwould be required to effect changes toclarify the law.
  • 14. HISTORY (2)2010 Cairns• 25 years after the Bayliss case• The cavalry (the DPP and the police) arestill alive and kicking• Teagan Leach is charged with procuringher own miscarriage• Sergie Brennan is charged with procuringdrugs (PG) for an abortion
  • 15. HISTORY (2) (cont)• The Crown case is that it is illegal to havean abortion unless there are serious risksto the health, to the mental or physicalhealth of a woman and that did not exist inthe case of Tegan Leach• Detective Senior Sergeant A.W. foundblister packs with foreign writing in thewardrobe… from the Ukraine
  • 16. HISTORY (2) (cont)• Verdict : Not guilty• 1985 – 2010• Plus ca change plus c’est la meme chose• There is an unexpected sequel in the leadup• The doctors at RWH who perform TOP’sfor fetal anomaly stop doing them on thegrounds that they too may be prosecuted
  • 17. HISTORY (2) (cont)• The Queensland Government makes achange to Section 282 of the CriminalCode to protect these doctors• “A person is not criminally responsible forperforming…a surgical operation ormedical treatment … if performing it isreasonable, having regard to the patient’sstate at the time and to all circumstancesof the case”
  • 18. T.O.P. in QLD NOWMainstream Hospitals• Fetal anomaly or major medical disease inthe mother• Suction / D&C for early T.O.P.’s• Induction of “mini-labour” with PG as anin-patient in hospital for late abortions• The other 95% go to clinics outsidehospital
  • 19. T.O.P. in QLD NOW (cont)The outside clinics – for the 95%• Suction / D&C for early T.O.P.’s• D&E’s with priming of the cervix with PGdrugs for late T.O.P.’s• They have no in-patient facility• So they cannot induce mini-labours• And there can only be a short intervalbetween PG and D&E
  • 20. THE CASES• That was a long preamble• The following four cases have been pickedfrom a much bigger number to illustratethe continuing problems in Queensland• I have picked them because they aremedico-legal cases in which I have givenan expert opinion
  • 21. CASE 1• A 17 year old girl from out west requests aT.O.P. at 8 weeks at Peter Bayliss’s clinicat Greenslopes• He sees her on a Friday : rigid nulliparouscervix• He puts a laminaria tent into the cervix andshe goes home for the weekend to returnon Monday for a suction D&C T.O.P.
  • 22. CASE 1 (cont)• Over the weekend she goes to the A&Eout west. She has vomiting, later atemperature and abdominal pain• It takes a while for it to become obviousthat she has an infection which progressesto a gram negative septicaemia and she isbecoming very ill• There is no clear history of what hadhappened to her cervix in Brisbane
  • 23. CASE 1 (cont)• She is put into an ambulance with I-Vantibiotics to be transported to a biggerhospital• The ambulance breaks down in the middleof nowhere• The patient arrests at the same time• She dies in the ambulance at the roadside
  • 24. CASE 1 (cont)OPINION• There is no question of negligence ..at thecountry hospital or in the ambulance• I would criticise the idiosyncratic treatmentin Brisbane with inadequate arrangementsfor care over the next 3 days in a remotearea
  • 25. CASE 1 (cont)• I would criticise the State of Queenslandfor having a law and a system whichresults in just this sort of tragedy. Thetragedy is all the worse in that in allprobability it would not have happened if aproper service were available in properhospitals
  • 26. CASE 2• Medical Board case• 23 weeks pregnant• Would not qualify for T.O.P. in hospital• Day clinic• PG given : 4 doses between 9am & 12md• 12.50 D&E. Cervix dilated to Hegar 21• Near the end of the procedure it is realisedthat the uterus has been perforated
  • 27. CASE 2 (cont)• Transferred to QE2 Hospital• Laparotomy• 1000mls of blood in abdomen• Large laceration through right side of theuterus with fetal skull embedded in it• Laceration repaired. Uterus conserved
  • 28. CASE 2 (cont)Opinion• The customary opinion from “down south”that induction of mini labour with PG wouldbe the method used “down south” and thatthe D&E was not acceptable practice
  • 29. CASE 2 (cont)My opinion• There would be very few OB/GYNS whohave not perforated a uterus• I believe that Dr W is very experienced inconducting terminations• As such… the damage in this case is“acceptable”. This does not mean that it isnot a terrible experience for the patient orimply any lack of sympathy….
  • 30. CASE 2 (cont)• I would agree with Dr (down south) that if itwere available …. the use of PG to inducemini-labour would be the preferredmethod…although it is not devoid of risk.• It is fairly obvious from Dr D.S.’s opinionthat he is unaware of the issues andpolitics in Queensland.
  • 31. CASE 2 (cont)(cont)• As such it would be more appropriate forhim to confine his opinions to Victoria orperhaps to acquaint himself of thesituation in Queensland
  • 32. CASE 2 (cont)• It is a recurrent theme in many of thesecases that an interstate expert criticisesthe management as being less than ideal• But the ideal is not available inQueensland• So is it acceptable practice to perform theless than ideal?• The Judiciary has a problem getting itshead around that
  • 33. CASE 3• Aged 39, 2nd pregnancy• Amniocentesis 16 weeks (her request)• Trisomy 21 (Down’s syndrome)• Now 17 weeks• Request for T.O.P.• Declined by RWH because of current localpolitics (impending case in Cairns)
  • 34. CASE 3 (cont)• Impending case in Cairns• Young couple being charged withprocuring miscarriage with DIY PG• The doctors at RWH were nervous that thecase in Cairns might revolve around themedical induction rather than the illicitprocurement of DIY PG drugs• So no PG mini-labours were done at RWH
  • 35. CASE 3 (cont)• Patient referred to Westmead Hospital• Others went to various hospitals interstate• T.O.P. performed with PG by sympatheticstaff• Cost of interstate travel etc paid by couple• Having to go interstate adds an extradimension of guilt – that it is somehowillicit in Queensland
  • 36. CASE 4• A prostitute, 19 weeks pregnant with a4 year old child. Exhausted and desperate• Referred to Dr Adrienne Freeman• PG (Prostaglandin) given as out-patient• Instructions as to what to do subsequentlywhen she aborts including if and when toattend hospital
  • 37. CASE 4 (cont)• Bleeding and pain• Attends hospital: The Mater• Cannot continue with TOP there• Dr David Watson tries RWH: they decline• Patient still has supply of PG• Scan at Mater shows dead fetus• Proceeds to mid-trimester miscarriage
  • 38. CASE 4 (cont)• Dr David Watson reports Dr Freeman toThe Medical Board of Queensland• ? “Unsatisfactory professional conduct”• The safety of such out-patient PG TOPrevolves around the protocol ofmanagement during the miscarriageincluding admission to hospital if it isnecessary
  • 39. CASE 4 (cont)• To The Health Practitioners Tribunal• Is this the ideal method of mid-trimesterTOP?• Is it an “acceptable” management?• Is it “unsatisfactory professional conduct?
  • 40. CASE 4 (cont)The “down south” expert opinion• The basis of Dr G E’s report is that inVictoria they would do it differently –inpatient induction of mini labour with PG.So would I if I were in Victoria orelsewhere. Things are different inQueensland. The choice of method whichhe (and I) would advocate as ideal is notavailable in Queensland. Fullstop.
  • 41. CASE 4 (cont)• The choice in Queensland is very simple• To have a potentially traumatic mid-trimester D&E evacuation or not toperform the procedure at all• Dr Freeman has responded to this byintroducing a semi-outpatient, semi-inpatient procedure
  • 42. CASE 4 (cont)• I agree with Dr E that this is a less than idealapproach.• There is in my view a wide gap between“less than ideal” and “unsatisfactory professionalconduct”• I think that Dr Freeman is misguided andperhaps a little naïve…but she is motivated bygenuine compassion for the patient andfrustration at the archaic view of TOP inQueensland
  • 43. CASE 4 (cont)• The Tribunal: Guilty• The Appeal Court: set aside the decision• A New Tribunal: Guilty• The Appeal Court: appeal dismissed• Leave to appeal to High Court: refused• The penalty: registration suspended forfour months but the whole of this to besuspended for two years
  • 44. CONCLUSIONS-1• From a medico-legal overview where arewe now?• There is a base of law from the 1800’s• There are ad hoc band-aids: “case law”• More band-aids from the Government –modifications of the Criminal Code• The nett result resembles a badlyassembled piece of Ikea furniture
  • 45. CONCLUSIONS-2• The medical profession is stumblingaround trying to work out which casesmight be conducted inside mainstreammedicine• The majority of cases will then beconducted outside the mainstream• The circumstances may often be less thanideal – is that acceptable?
  • 46. CONCLUSIONS-3• The constabulary and the DPP aredigging up drains in Greenslopes andchecking on wardrobes and bedrooms inCairns• With all the finesse of dinosaurs in a chinashop
  • 47. CONCLUSIONS-4• The legal profession is stumbling aroundtrying to interpret the vagaries of an 1800’spiece of Ikea furniture which has beenbadly assembled with band-aids
  • 48. CONCLUSIONS-5• The Judiciary is confused – the meat inthe sandwich• It too has difficulty interpreting the Ikeamess• It has difficulty getting its head around theconcept of what is acceptable in a lessthan ideal Queensland world• It is easier to stick with Mayo Clinic goldstandards
  • 49. CONCLUSIONS-6• The patients• Are victims of this medico-legal shambles• The anxiety and guilt which most womenseeking a TOP feel is compounded bybeing excluded from mainstream medicine• To be part of what seems to be backstreet,covert and quasi legal• And riskier than it should be
  • 50. CONCLUSIONS-7• Assumption: that TOP happens and will continueto happen – whether you approve of it or not• Because of the legal situation in Queensland it isoften performed in less than ideal circumstances• If appendicectomy, cholecystectomy orhysterectomy were performed in a similarfashion there would be outrage and demands fora commission of enquiry• Where does the buck stop?
  • 51. THE FINAL CONCLUSIONThe current medico-legal shamblesexists because successiveQueensland governments havelacked the balls to address acontroversial problem