The cost of legal action has led the Medical Council to abandon its proposed statement on the advice doctors should give when they have a conscientious objection to abortion.
Having spent more than $214,000 defending its draft statement in court, the council decided it must balance financial prudence with the desire to provide guidelines, chair John Adams says.
The council will not continue its appeal against last year’s High Court ruling from Justice Alan MacKenzie (New Zealand Doctor, 15 December 2010).
The decision has prompted dismay from a prominent sexual health physician, Carol Shand, but relief from legal challenger, Catherine Hallagan. Both are Wellington GPs.
Dr Adams says the end result, no guideline, was not what the council wanted. It felt there was some difficulty for doctors trying to interpret their obligations.
Anecdotally, there were also concerns about access to appropriate services for women in isolated areas with limited choice of doctor, which made the advice to those seeking an abortion particularly important.
Countries such as the UK had guidance similar to that proposed by the council, says Dr Adams.
But here, the judgement of Justice MacKenzie stands.
The council was seeking to advise that doctors who object must arrange for the woman to be seen by another doctor, one who could weigh up the abortion request and take steps for it to be assessed.
However, the judge ruled that the doctor who objects can simply inform the woman she can obtain the service from another health practitioner or from a family planning clinic; or, if it is not against their conscience, can refer to another doctor.
The council cannot add professional requirements on top of the legal ones, he ruled.
Dr Hallagan says: “[D]octors, troubled by referring patients for consideration of an abortion because of a conscientious objection to providing that service, can be reassured that they do not have to make such a referral.”
Via email, she told New Zealand Doctor she had been shocked by the council’s statement.
As lead plaintiff, the second plaintiff being a group called the New Zealand Health Professionals Alliance, Dr Hallagan sought a judicial review which, she says, “validated the lawful right of a medical practitioner to practise independently in accordance with his or her conscience”.
A cross appeal had also been filed against aspects of the judge’s decision and had now been dropped.
Dr Shand says the outcome will be damaging delays for a minority of pregnant women having to start from scratch and seek a doctor who will refer to certifying consultants.
Some women could find themselves going to several doctors, and some, who do not understand the system, could end up having babies they had not wished to have, she says.
The ruling does not support women’s right to independent consideration of her circumstances and what she wants, and what is in a woman’s best interests under the Contraception, Sterilisation and Abortion Act, Dr Shand says. A certifying consultant herself, she would have liked the matter tested in the country’s highest courts.
Meanwhile, Dr Adams is pointing to the council’s Good Medical Practice standard, stating (in part): “Your personal beliefs should not affect your advice or treatment…If you feel [they] might…you must explain this to patients and tell them about their right to see another doctor.”