The frontyard abortion

The frontyard abortion

The abortion of a 32-week-old foetus has provoked a bitter clash over the ethics of late-term termination and a patient's claims on privacy. It's far from finished. Meaghan Shaw reports.

On a cold Sunday afternoon, nearly five years ago, the media were summoned to the Royal Women's Hospital's boardroom for an important announcement.

Grim-faced hospital managers flanked the board table and said they had referred a suspected late-term abortion to the State Coroner for investigation. Three senior doctors had been suspended over the incident. The management team appeared tense and did not volunteer further information, which had to be painfully extracted from the hospital's then medical director, Glenn Bowes.


Slowly, the picture emerged of a distressing termination at 32 weeks gestation of a foetus with an abnormality that would cause dwarfism. The mother, 40, was acutely suicidal and, after careful examination by an ultrasonologist, obstetrician, geneticist and psychiatrist, a decision was taken to terminate in February 2000. The revelation, in July that year, rekindled debate about late-term abortions.

But five years on, a further debate about patient confidentiality has emerged after a Supreme Court decision this week to force the hospital to provide the mother's medical records, without her consent, to the Medical Practitioners Board for an investigation.

The judgement, by Justice Bill Gillard, has sparked fear from experts that women worried about their privacy will no longer trust doctors and instead turn to backyard abortionists. In recent times, doctors have reportedly been turning away tricky cases for fear of prosecution.

The ruling has also led to calls for tighter controls over the distribution of confidential information to unrelated third parties and a restriction on their ability to instigate medical practice investigations.

The complaint to the Medical Practitioners Board was made by anti-abortion National Party Senator Julian McGauran, who in Parliament in November 2000 urged prosecution under an untested section of the Victorian Crimes Act, which creates an offence of child destruction after 28 weeks.

McGauran made the complaint after the State Coroner handed him a copy of the police brief that included the woman's private medical files.

In Parliament, he said the files suggested the baby did not have dwarfism, quoting a handwritten note that said: "On delivery: baby doesn't look small!"

Yesterday, he denied his pursuit of the case was politically motivated. "My focus simply is on the hospital and the doctors: how they handled this case, the process, the unprofessionalism and the legality of it."

He maintains the case was a "disaster, a mistake and a tragedy" and he hoped "someone should be held responsible". "The offending doctor is my main target," he says. "I really think he has done the wrong thing here. A lot goes to his and the hospital's culture."

McGauran rejects suggestions the ruling would lead women to backyard abortionists as "a hysterical response to a black and white legal judgement".

"This case is simply an independent body - not me by the way - seeking to investigate accusations of unprofessional or unethical behaviour," he says.

"If this triggers an alarm bell in a doctor that there is a law there, then I have no worries about that at all. There is a law and they ought to be cautious."

But alarm bells have been triggered about the way he gained access to the patient's private files, which the Medical Practitioners Board originally sought via a search warrant, and which will not be released to the board until July 22, unless the hospital appeals against the Supreme Court's decision.

McGauran says he followed police advice to obtain the police brief from the coroner Graeme Johnstone, who rejected a similar request by one of the doctors involved.

"I have kept them (the files) strictly confidential," he says. "They've never made their way into the protection of the Parliament. No names, not even the offending doctors have been mentioned in the Parliament."

He maintains he was an interested party to the case "as a public representative", having made a submission to the coroner, and was satisfied the coroner could decide who was a fit person to receive such a brief. "Mr Johnstone used his discretion wisely," he says.

But Law Institute of Victoria chief executive John Cain questions the basis on which Johnstone's decision was made and whether any other citizen could also gain access to confidential medical files. "It's a sensitive case. There's lots of emotion tied up in it and there are potentially disastrous consequences if this information gets into the wrong hands."

He says all courts handle confidential files and called on state Attorney-General Rob Hulls to help draft strict guidelines, regulations or a code of practice to determine the circumstances under which court files were made available to members of the public.

A spokeswoman for Hulls says the issue of protocols in relation to the release of court documents is being considered by the Courts Consultative Committee.

The Victorian branch president of the Australian Medical Association, Mark Yates, also called for a restriction on the ability of unrelated third parties to force the Medical Practitioners Board to investigate complaints.

The board must investigate complaints unless it finds them to be frivolous or vexatious. Any complaints that are substantiated can provide grounds for the suspension or cancellation of a medical practitioner's registration.

"The doctors don't want this investigated, the hospital where the doctors work and the ethics committee which has lay people on it say don't investigate, and the patient says, ‘no'," Yates says. "I don't see how there can be an issue of a complaint."

He says the ruling means anyone with an ideological agenda can abuse the system. "I don't think we have any confidence that the records that exist in hospitals now aren't open to anybody who wants to go trawling for reasons other than good clinical outcomes," he says.

For one of the doctors involved in the case - whose name along with the patient and other doctors has been suppressed by the courts - it has been a long and gruelling process. He says the delays to the hearing by the Medical Practitioners Board have been unacceptable and caused distress for the doctors, who have had the inquiry held over their heads for four years.

The hospital's administrative response, including its suspension of staff, has also angered the doctors who are calling on the Victorian Health Minister to investigate. The doctor hopes the legacy of the case will be a clarity of abortion laws.

"This case just demonstrates so clearly why we need abortion laws that are understood and why the antiquated and unclear laws we have now are not in the best interest of women and doctors," he says. "People don't know when it's legal to offer an abortion and therefore some women miss out and some doctors expose themselves to inappropriate legal risk."

His views were echoed by former Victorian premier Joan Kirner who told ABC radio the matter of abortion should be removed from the criminal code and into the health code.

She describes the laws as "old fashioned and it's dangerous" and says: "While it remains in the criminal code, people will be at risk from people like Julian McGauran who have their own agendas."

A spokesman for Victorian Health Minister Bronwyn Pike says the Government is satisfied the current arrangements - which uphold the principle that the decision to have a termination is a matter between a patient and her doctor - is working well.

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