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Decision reserved on abortion advice

Doctors with a conscientious objection to abortion have asked the court to stop the Medical Council from requiring them to give patients more information than they consider reasonable.

The council’s Beliefs and Medical Practice statement misinforms doctors on their obligations toward women seeking abortion, according to Tawa Medical Centre GP Catherine Hallagan and a group called the New Zealand Health Professionals Alliance.

They were the applicants in a judicial review hearing in the High Court at Wellington last month. Justice Alan MacKenzie reserved his decision.
The Medical Council had got it wrong, said Harry Waalkens QC on behalf of the applicants.

The council’s most recent statement, kept confidential until the hearing, tells doctors with a conscientious objection to abortion that, if consulted by a pregnant woman who wishes to have an abortion, they must arrange for another practitioner to consider the case.

The court heard much dispute about the meaning of “arrange” in the Contraception, Sterilisation and Abortion Act as amended by Parliament in 1978.

For the council, Mary Scholtens QC argued that it is not sufficient simply to refer to Family Planning or another doctor, as suggested by Dr Hallagan.

The health and disability consumers’ code of rights means a woman must be given information on her options.

The council’s statement recognises a doctor’s right to conscientious objection but limits in “a very reasonable way” the negative impact on the patient’s right to access the requested or needed service, Ms Scholtens said.

Mr Waalkens said Parliament amended the act to make it “black and white” that a woman’s own doctor could talk with her about her case before referring her to another doctor.

The act excluded the offering of advice on abortion services, he said. If advice facilitated the patient obtaining an abortion, that would wrongly involve the doctor with the conscientious objection in the pursuit of an abortion or abortion service.

The statement also used mandatory language when it had no status in law, Mr Waalkens said. Disciplinary processes could follow a breach.

He said the Bill of Rights Act right of freedom of conscience and belief without interference must trump the Medical Council statement.

Ms Scholtens’ submission asserts the statement gives effect compatibly to both doctors’ and patients’ rights.

Professional standards impose additional obligations on top of statutory ones, she said.

The act imposed a duty to arrange consideration, and the council’s statement gave additional steps appropriate for the conscientiously objecting doctor, she agreed under questioning by Justice MacKenzie.

Mr Waalkens said there was no evidence women were being denied abortions or that, if they were, it was because of conscientiously objecting doctors.

A Women’s Health Action Trust submission to the council referred to research suggesting some women denied advice or care on the basis of their doctor’s personal beliefs did not know what was available to them.