Key Points
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The Court determined that Q could not comprehend the long term consequences of her decision and therefore did not have the requisite capacity to consent to the treatment.
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Due to the criminal legislation in Queensland it was necessary for the Court when deciding in relation to the termination, to determine if a termination would be lawful in the circumstances. Ultimately the Court concluded that it was.
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The Court concluded that it was in the girl’s best interest to terminate the pregnancy as the risks of continuing the pregnancy were potentially life threatening.
A recent decision of the Supreme Court of Queensland considered issues of a child’s capacity to give consent to medical treatment and whether abortion is a criminal offence.
In the recent matter of Central Queensland Hospital and Health Service v Q v [2016] QSC 89 the Supreme Court of Queensland considered an application made by a public hospital seeking authorisation to terminate the pregnancy of a 12 year old girl identified as Q.
Q had been referred to the public hospital after attending on her general practitioner seeking a termination of the pregnancy. She had seen a social worker at the hospital on numerous occasions, two specialist obstetricians and a psychiatrist. All the practitioners supported the decision to terminate the pregnancy, as did the Department of Communities, Child Safety and Disability Services. The putative father was not aware of the pregnancy.
Q’s parents believed that she would be at a real risk of self-harm or suicidal behaviour if the pregnancy continued. Q had maintained the view throughout that the pregnancy should be terminated. While risks were associated with termination of the pregnancy the specialists agreed there would be far greater risks, such as long term physical and mental health problems, if the pregnancy continued.
The Court was satisfied that the girl understood the risks involved in terminating the pregnancy or continuing with it. In determining this application the Court had to consider whether Q could consent to the termination and whether termination would constitute a criminal act.
So far as consent was concerned, the Court noted that it was necessary to determine Q’s ability to comprehend the long term consequences of her decision besides the risks associated with the procedures that may have to terminate the pregnancy. Based upon the psychiatric evidence the Court was not satisfied that Q could comprehend the long term consequences of her decision. Therefore it concluded that it was appropriate to invoke the protective jurisdiction of the Court and decide for her.
In relation to any criminal consequences, the Court found that terminating the pregnancy is reasonable to avoid danger to Q’s mental and physical health and therefore it would not be unlawful under the criminal law in Queensland to do so.
The Court concluded that it was in the girl’s best interests for the pregnancy to be terminated and it was necessary to do so to avoid danger to her physical and mental health. The Court ordered that the termination take place.
This decision highlights the complexities which present themselves when the operation of the criminal law impacts on whether a medical practitioner can carry out a procedure. The consent of the patient may protect practitioners against claims of civil assault and battery but not necessarily against a finding they have engaged in criminal conduct.
Post by David Kim and Karen Kumar