Obstetrician David MacFarlane says court ruling in the case of a 12-year-old girl sets a damaging precedent that makes law reform even more urgent

This article is more than 4 years old

This article is more than 4 years old

More children with unwanted pregnancies will be forced to go before Queensland courts or travel interstate to seek abortions after a recent legal ruling on a 12-year-old girl, according to a doctor involved in the case.

Obstetrician David MacFarlane said the case of the girl, known as Q, who had to go before a supreme court judge in April to gain approval a month after first seeking an abortion, had set a “damaging” new precedent that made the need for legal reform in Queensland “even more urgent”.

MacFarlane, in a scathing submission to a state parliamentary inquiry into proposed reforms prompted by her case, said the court’s ruling that its intervention was appropriate was a “disaster for [girls] like Q”.

Justice Duncan McMeekin found that a typical 12-year-old was unable to give informed consent, effectively overruling Queensland health guidelines that girls that age had the right to be assessed by their doctors for legal abortions, MacFarlane said.

This put an estimated 50 girls of the same age “and presumably even greater numbers of 13- and 14-year-olds” with unwanted pregnancies every year into the same “appalling” predicament as Q if going through the public hospital system, he said.

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“As a result of this ruling they are all forced to endure the delays, the embarrassment, the humiliation and the interference of the courts in decisions that until now have been theirs to make in conjunction with their local health care providers,” MacFarlane said.

MacFarlane sought approval to carry out the abortion for Q while working as a locum obstetrician at the Rockhampton public hospital.

Papers tabled with the committee show MacFarlane challenged a hospital executive who cited legal advice that a court order would be necessary.

The executive referred to legal risks in establishing informed consent from children under 14 and “no evidence” the legal test for abortion had been “formally met” in Q’s case.

Abortion – unless deemed necessary by a doctor to avoid risks to a woman’s mental and physical health – is a criminal offence in Queensland attracting jail sentences of up to seven years for a patient, 14 years for a doctor and three years for anyone who assists.

McMeekin ruled the evidence was “all one way” in favour of Q undergoing an abortion.

MacFarlane said he was “certain that Q has been harmed by these added delays, interrogations by various court-appointed parties, intrusive assessments by a psychiatrist and others, the unwanted disclosures to and involvement of her estranged father, and the intimidatory supreme court experience itself”.

“[She] came to her local public hospital for sympathetic care, something that I wanted to provide but was prevented from doing so by a system that treated her as a thing, as a case to be probed and examined”, he said.

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“She was made a pariah, and I know that both Q and her mother felt rejected by the system.”

MacFarlane said he was now the subject of an “unspecified complaint” to the Australian Health Practitioner Regulation Agency about an “undisclosed aspect of my conduct in relation to this case”.

He said the illegality of abortion in Queensland led to hospital staff having “an exaggerated level of anxiety, compounded by confusion and ignorance about what the laws relating to abortion mean and permit, and as this case demonstrates this results in appalling outcomes for women needing sensitivity and compassion at a time of crisis in their lives”.

Medical practitioners would now be “even more nervous about managing women in the same predicament as Q”, MacFarlane said.

“They are going to have to refer them to the supreme court, or more likely advise leaving the state altogether, and seek assistance elsewhere,” he said.

Independent MP Rob Pyne says ‘the hurdles that had to be jumped [in Q’s case] were certainly not acceptable to Dr MacFarlane and I think most Queenslanders’. Photograph: PR

“It can only be regarded as a disgrace that state law operates in such a way that young vulnerable women are being driven from their communities and their support networks to seek medical help that Queensland health has made accessible only by undergoing intolerable indignities.

“Any young woman in Q’s predicament, having seen the appalling way Q was treated when presenting to her local health facility for help will certainly now think twice about doing the same thing.”

Independent MP Rob Pyne, appearing on Wednesday before the inquiry into his proposed abortion law reforms in the wake of Q’s case, said “the hurdles that had to be jumped were certainly not acceptable to Dr MacFarlane and I think most Queenslanders”.

Pyne’s bill proposes striking abortion laws from the criminal code – Queensland and NSW are the only Australian states not to have done so.

He said there was a “two tier” system of access, given most abortions were done in 10 private clinics across the state, seven in the south-east corner, and only an estimated 1% were done in public hospitals.

Some public hospitals refused to perform them on “women with exacerbating circumstances, including severe domestic or sexual violence, homelessness, substance abuse and extreme medical or health problems”.

Cairns GP Heather McNamee told Guardian Australia in private practice she “would have no problem referring a 12-year-old with supportive parents or adults” for possible abortion without court approval.

But Caroline de Costa, an obstetrics and gynaecology professor at James Cook university and abortion law reform advocate, said any child “who goes to the public system will be told they have to go to the supreme court”.

“The administrators are just so anxious.”

Pyne told the committee he accepted if his bill was to pass it would need amendments such as limits on late term abortions, but these should be in the Health Act not in criminal law.

But concerns about late-term abortions increasing were a “furphy”, he said, because they “invariably stem from the foetus being unviable and a severe risk to the pregnant woman” and no private clinicians would perform them after 24 weeks, he said.

Pyne rejected “outright” Labor committee member Joe Kelly’s contention that “any doctor in Queensland currently that’s performing [abortion] procedures is doing them in line with current laws”.

“We’d better get about the business of either changing laws so it reflects contemporary practice – but if you don’t want to do that … maybe we should start arresting doctors on a regular basis because that’s how often this is being breached,” Pyne said.

McNamee said the grey area in the laws requiring doctors to assess “psycho-social distress” in women meant that Pyne and Kelly “are kind of both right”.

“We’re depending on case law to protect us, but if we had an extreme conservative government come into power … they could come in and raid my records and say that the grounds for termination didn’t meet the law,” she said.