Preventing serious physical and mental harm: Queensland Supreme Court authorises 12-year-old to undergo abortion
Central Queensland Hospital and Health Service v Q [2016] QSC 89
On 20 April 2016, the Central Queensland Hospital and Health Service (“CQHHS”) applied to the Supreme Court of Queensland seeking orders authorising the termination of 12-year-old “Q’s” pregnancy. Exercising the Court’s parens patriae jurisdiction, McMeekin J held that that the termination of Q’s pregnancy was necessary to avoid danger to Q’s mental and physical health, and was therefore lawful.
Facts
Twelve-year-old Q fell pregnant in early 2016 and attended her general practitioner, who referred her to CQHH. At CQHH, Q saw a social worker, specialist obstetricians and a psychiatrist. Q consistently conveyed that she wished to terminate the pregnancy. In April, when Q was nine weeks pregnant, CQHH applied to the Supreme Court of Queensland seeking orders that terminating Q’s pregnancy was lawful. Each of Q’s counsellors and specialists, and the Department of Communities, Child Safety and Disability Services (appearing as amicus curiae) supported the termination. It was clear that Q would be at serious risk of self-harm or suicidal behaviour if the pregnancy continued, based on past behaviour.
CQHH proposed to terminate the pregnancy by the administration of the drugs Mifepristone and Misoprostol. If this did not successfully terminate the pregnancy, CQHH proposed surgery as an alternative.
Decision
Legal principles: invoking the parens patriae jurisdiction
In this case, the Supreme Court of Queensland was called upon to exercise its parens patriae jurisdiction, which is exercised to protect people who are unable to look after their own interests. The dominant consideration in determining whether to exercise this jurisdiction is what is in the best interest of the child. This does not include the interests of an unborn child.
In deciding whether to exercise this jurisdiction, McMeekin J identified the following considerations as relevant:
- whether Q could give informed consent to the procedures proposed; and
- questions surrounding criminal law and responsibility.
Regarding criminal responsibility, sections 224, 226 and 226 of the Queensland Criminal Code make it unlawful to administer a drug or to perform a surgical or medical procedure intending that it bring about the termination of a pregnancy, unless the conduct is authorised, justified or excused by law. However, R v Davidson [1969] VR 667 (Davidson), provides that the use of an instrument intending to procure a miscarriage is lawful if the accused honestly believed, on reasonable grounds, the act was:
- necessary to preserve the woman from serious danger to her life or her physical or mental health; and
- not out of proportion to the danger to be averted (Davidson had previously been adopted in Queensland: see, eg, K v T (1983) 1 Qd R 396).
Additionally, section 282 of the Criminal Code provides that there will be authorisation or justification to perform a surgical operation on a person or an unborn child for the patients benefit, if providing that medical treatment is “reasonable”, having regard to the patient’s state at the time and other circumstances of the case.
Application of principles: termination of pregnancy
Justice McMeekin held that Q had capacity to consent, as she understood the risks of the procedures. However, his Honour noted that very few 12-year-olds could have the maturity to comprehend the long term impacts of the decision to terminate a pregnancy. Nevertheless, his Honour held that it was appropriate to invoke the jurisdiction of the court in these circumstances.
Justice McMeekin declared that the termination of Q’s pregnancy was necessary in order to avoid danger to Q’s mental and physical health (satisfying the first requirement of Davidson). His Honour ordered that Q be permitted to undergo termination of the pregnancy by the therapeutic administration of drugs and that the QCHH be permitted to administer these drugs. In satisfaction of the second requirement of Davidson, his Honour considered this proposed medical action was proportionate to the danger of the procedure.
If the administration of the drugs did not terminate the pregnancy, McKeekin J ordered that QCHH perform the required surgical procedures deemed necessary to effect the termination. The proposed surgical procedure satisfied section 282, as it was “reasonable”, having regard to Q’s state of mind and the circumstances of the case.
With reference to Wilson J’sanalysis in State of Queensland v B (2008) 2 Qd R 562 (State of Queensland v B), McMeekin J considered the following factors in determining that the termination be ordered:
- the term of the pregnancy;
- the maturity and intellect of the child;
- the potential harm that would befall the child if the pregnancy was not terminated; and
- whether surgery is proposed as an alternative.
Q was only nine weeks pregnant. Additionally, a psychiatric report indicated that Q was a very mature child with a level of maturity greater than her chronological age in some respects. Importantly, Q’s views were her own, and not due to pressure from others.
The specialists who dealt with Q confirmed she was at serious risk of both physical and psychological harm if the pregnancy continued. Justice McKeekin noted the potential risks to Q were “life threatening” if the pregnancy continued, whereas the risk of serious complications associated with the termination were very small. His Honour noted that there was no risk to future fertility, and whilst there might be some pain associated with the procedure, it could be controlled with anaesthesia.
Commentary
This decision affirms the factors relied on in State of Queensland v B. However, this case does not test the limits outlined in that case because the facts were even more conducive to a finding that the termination of the pregnancy was reasonable in the circumstances of the case.
The full text of the decision can be found here.
Helena Kanton is a Law Graduate at King & Wood Mallesons.