The Medical Council has overstepped the law in its draft statement on how doctors who hold a conscientious objection to abortion must respond to a patient requesting an abortion.
The statement must be amended, says a ruling from High Court judge Alan MacKenzie, released today.
The judge has accepted some of the arguments of conscientiously objecting doctors who say the statement wrongly requires them to give advice that might facilitate the patient obtaining an abortion.
His decision arises from last month’s judicial review hearing, on application from Tawa GP Catherine Hallagan and the New Zealand Health Professionals Alliance.
Justice MacKenzie says the council’s “Beliefs and Medical Practice” statement overstates doctors’ duty in one instance and, in another, imposes obligations beyond those imposed by law.
A maximum obligation exists in law
The judge rules when a woman requests abortion, the proper course for a doctor who has a conscientious objection is to decline to embark upon the process, and inform the woman she can obtain the service from another health practitioner or from a family planning clinic.
“This must be seen as a maximum obligation [of the Health Practioners Competence Assurance Act], and not one which may be supplemented by the imposition of professional standards,” Justice MacKenzie says.
The doctor is not obliged to “arrange” for the case to be considered by another doctor, as argued by the council.
This arranging, the council said in court, included ensuring the doctor referred to could provide the woman with information on all her options.
Three paragraphs at issue
The judge orders two paragraphs of the draft statement must be amended so that they do not go this far. They must “make clear the doctor’s ability to decline to become medically involved”, he says.
He orders a third paragraph also be changed because it overstates the HPCAA obligations.
Medical Council chair John Adams says time is needed to digest the judgement before reworking the paragraphs for consideration by the council early next year.
Dr Adams is not sure more consultation is necessary, saying the judgement acknowledges there was extensive consultation toward the draft statement.
The council thought it had achieved some clarity around the majority opinion and felt it was representative of good practice, he says.
He says he is pleased the judgement accepts the council can produce a statement in this area, one that “bumps into the intersection of law with personal beliefs”.
Dr Hallagan has not yet returned New Zealand Doctor’s call.