On the Case: Issue 14

Court Authorisation of Abortion for a 12-Year-Old Girl

In this edition of On the Case Adjunct Associate Professor Anna Walsh, who teaches Mental Health Law at The University of Notre Dame Australia, School of Law, Sydney, discusses the recent decision of Central Queensland Hospital and Health Service v Q¹ where the Supreme Court of Queensland authorised a hospital to perform an abortion on a 12-year-old girl. The case demonstrates the contemporary application of abortion law in Queensland and touches upon the capacity of a minor to consent to abortion, as well as the court’s power to authorise such a medical procedure under its parens patriaejurisdiction.

The Facts

The tragic circumstances of this case involved a 12-year-old girl, ‘Q’, nine weeks pregnant and seeking an abortion. The applicant, the Central Queensland Hospital and Health Service (‘the hospital’), applied to the court for orders that it be permitted to perform a medical abortion on Q, and in the event this was not successful in causing miscarriage, that it be permitted to perform a surgical abortion on Q. The respondents to the application were Q, through her mother as litigation guardian, Q’s father as the second respondent, and Q’s mother as the third respondent.

The evidence at hearing was that Q wanted an abortion and did not want to be a mother². The alleged father of the child was of similar age to Q and was not aware of the pregnancy³. Q’s parents supported the abortion. Both gave evidence that since their separation, Q had significant problems adjusting, with a history of running away from home in times of emotional distress, self-harm, and two suicide attempts⁴. In their opinion, Q would be unable to care for the child and that she would be at a real risk of self-harm and suicidal behaviour, if the pregnancy continued⁵, with Q’s mother noting that Q lived with her, and her two siblings and that she would not be able to assist Q with raising the child⁶.

Q consulted with a number of health professionals including a general practitioner, social worker, two obstetricians, and a psychiatrist. All health professionals were of the opinion that abortion was in Q’s best interests. In particular, the psychiatrist who assessed Q concluded that given the history of self-harm⁷, continuation of the pregnancy would likely precipitate further episodes of self-harm and suicide attempts and that abortion would reduce that risk⁸. The obstetrician advising Q believed that the risks to Q of continuing with the pregnancy far outweighed the risks involved in abortion⁹. The clinical recommendation of the obstetrician was that hospital staff be permitted to administer to Q the medications Mifepristone and Misoprostol to induce a miscarriage. If this method proved unsuccessful in causing miscarriage, then Q would undergo a surgical abortion at the Hospital.

The Law

Under the Criminal Code Act 1899 (Qld) (‘the Code’), unlawful abortion remains a criminal offence in Queensland with harsh penalties, not just for the person performing or assisting with the unlawful abortion, but for the pregnant woman as well. Section 224 of the Code provides that ‘any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years’. Section 225 of the Code provides that any ‘woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years’. Section 226 of the Code provides that the unlawful supply of drugs or instruments to procure an abortion is an offence.

Exceptions apply, however, for medical and surgical abortions performed in circumstances deemed to be ‘lawful’. Under s282(1) of the Code, a person ‘is not criminally responsible for performing or providing, in good faith and with reasonable care and skill, a surgical operation on or medical treatment of— (a) a person or an unborn child for the patient’s benefit; or (b) a person or an unborn child to preserve the mother’s life; if performing the operation or providing the medical treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case’.

Accordingly, the hospital sought orders from the court to ensure that the proposed abortion was lawful under s282(1) of the Code. In terms of the hospital’s standing to bring the application, s286(1) of the Code provides that a person who has care of a child under 16 years of age must, amongst other things, ‘take precautions that are reasonable in all the circumstances to avoid danger to the child’s life, health or safety and take the action that is reasonable in all the circumstances to remove the child from any such danger’, otherwise ‘he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not.’ Existing precedent confirms that mental harm to a child satisfies the requirement that a child’s health is in danger, and the duty of a person who has care of a child has also been held to apply to a hospital or doctor undertaking care of a child in Q’s situation¹⁰.

Capacity of a Child to Consent to Abortion

The court affirmed the accepted legal principle that a child obtains the capacity to consent when the child ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’¹¹. Consequently the existence of capacity depends upon the maturity of the particular child, with no fixed age at which all children obtain capacity. In this case, McMeekin J was satisfied that Q’s desire for an abortion was her independent view and not due to real or imagined pressure from others. His Honour was satisfied that Q had a good understanding of what was involved with a medical and surgical abortion, but was not satisfied that she had a good understanding of the process of pregnancy or of the demands involved in caring for a child¹², noting that very few 12 year olds could have the maturity to comprehend the impact a decision like this might have on them in the longer term¹³.

Notwithstanding the consent of Q’s parents and the uncontested medial evidence of the risk of physical and mental harm, consistent with accepted legal principles, McMeekin J affirmed that neither the consent of Q nor of her parents was sufficient to permit abortion¹⁴. The court’s parens patriae jurisdiction gave it wide powers in relation to the welfare of infants, especially those who are unable to look after their own interests. Accordingly, His Honour confirmed that the court’s parens patriae jurisdiction clearly included Q and held that it was appropriate to invoke the jurisdiction of the court to resolve the matter¹⁵.

The Decision

His Honour referred to a number of decisions regarding the test for lawfulness, with particular emphasis on the judgment of Menhennit J in the seminal Victorian abortion case of R v Davidson¹⁶. In this case, abortion was considered lawful ‘if the accused honestly believed on reasonable grounds that the act was ‘(a) necessary to preserve the woman from serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and (b) in the circumstances, not out of proportion to the danger to be averted’¹⁷.

This approach to lawful abortion has been adopted by the courts in Queensland in previous cases, most notably R v Bayliss¹⁸ and State of Queensland v B¹⁹, where serious risk of harm to the mother’s mental health was considered to be sufficient for the abortion to be lawful. Here, Q had evidence of a risk of both mental and physical harm should the pregnancy continue. McMeekin J also noted judicial support for the interpretation of dangers to the pregnant woman’s health extending beyond the duration of the pregnancy, with the future impact on her health considered to be a reasonable consideration²⁰. Importantly, His Honour noted that ‘in any case the test is not so demanding.²¹’

Accordingly, in applying the Menhennit test to Q’s situation, McMeekin J held that abortion would be lawful on the basis that the dangers continuation of the pregnancy posed to Q’s mental and physical health were greater than the dangers posed by medical and surgical abortion, thus satisfying s282 of the Code, and justifying the hospital’s servants and agents in performing the abortion pursuant to s286(1) of the Code.

Why This Case is Worth Knowing About?

Abortion law is not uniform in Australia, with each jurisdiction having its own criteria for when it is lawful. In Queensland, unlawful abortion is still a crime, however medical and surgical abortion carried out by a doctor may be lawful where it can be shown the risk of harm to the pregnant woman’s health or life from the pregnancy outweighs the risk of harm from the medical or surgical abortion. The contemporary application of this approach permits abortion for concerns that go beyond saving the life of the mother, and extend to harm to her physical and mental health should the pregnancy continue, and arguably to any future harm she might experience. The legal approach to abortion in Queensland does not concern itself with the morality of abortion – effectively the State has determined that “lawful” abortion is morally acceptable to the State. This approach also ignores any consideration of the impact of abortion on the foetus because the law focuses solely on maternal health considerations. This case is particularly useful for those interested in understanding the legal position of a minor who is pregnant and seeking abortion. The case affirms the principle that abortion involving a minor in Queensland is a serious medical decision requiring the involvement of the court before the procedure can proceed, notwithstanding that the child, their parents and medical professionals consider that the procedure is in the child’s best interests.

¹ [2016] QSC 89 (26 April 2016)(‘Central Queensland’).
² Central Queensland [11].
³ Central Queensland [13].
⁴ Central Queensland [14].
⁵Central Queensland [12].
⁶ Central Queensland [14].
⁷ Ibid.
⁸ Central Queensland [15]. 
⁹ Central Queensland [16]. 
¹⁰Central Queensland [28]-[29]. See also, State of Queensland v B [2008] 2 Qd R 562.
¹¹ Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112. See also Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218.
¹² Central Queensland [30]–[31].
¹³ Central Queensland [32].
¹⁴ Central Queensland[20]. See also State of Queensland v B [2008] QSC 231; [2008] 2 Qd R 562 where Wilson J reached the same conclusion regarding parental incapacity to authorise a termination of pregnancy based on Department of Health and Community Services v JWB and SMB (Marion’s Case) 1992) 175 CLR 218. 
¹⁵ Central Queensland [18]. 
¹⁶ R v Davidson [1969] Victorian Reports 85; [1969] VR 667.
¹⁷ Ibid 672.
¹⁸ (1986) 9 Queensland Lawyer Reports 8.
¹⁹ [2008] 2 Queensland Reports 562.
²⁰ Veivers v Connolly [1995] 2 Queensland Reports 326.
²¹ Central Queensland [42].