TERMINATION OF

PREGNANCY IN

QUEENSLAND:

A MEDICO-LEGAL SHAMBLES

Douglas Keeping

• 600 – 700 deliveries per year

• One of the partners of Queensland Fertility

Group since 1982

• Opinion in about 350 medico-legal cases

MORALITY OF T.O.P.

• A spectrum of views often passionately

held

• Most people have a fairly strongly held

opinion

• I have my own views

• None of these is addressed in this talk

PURPOSE OF THE TALK

• T.O.P. happens and will continue to

happen – it is a “given” in this

presentation

• How is it organised and what are the

outcomes and problems?

• From a medico-legal perspective

REASONS FOR T.O.P.

• Because a woman requests one

• A medical condition so severe as to make

continuation of the pregnancy likely to lead

to death is very rare

• Can be “dressed up” as psycho-social

aspects – looks / sounds medical

• Ultimately because a woman requests one

METHODOLGY OF T.O.P.

• Early T.O.P. (up to 12-14 weeks)

-Suction / D&C : G.A.,L.A., Sedation

-Prostaglandin (PG) drugs – D.I.Y.

• Later T.O.P. (16 weeks onwards)

-D&E – a bigger scale D&C usually with

PG drugs to soften the cervix

-PG drugs to induce a “mini labour”

AN ANECDOTE

• Aberdeen Scotland 1973

• A woman from Glasgow on holiday in Aberdeen in a caravan park with husband and 4 kids

• Admitted to gynae ward with septic miscarriage

• Klebsiella septicaemia : D&C and antibiotics and started to get better

• Denied it was an DIY T.O.P.

ANECDOTE (cont)

• 2 days later unable to open jaw

• Valium, tongue depressor: still unable

• Next day diagnosed with Tetanus

• Ventilator, ICU

• Transferred to Glasgow

• Died in their ICU

• Irony that she had come from Glasgow where

T.O.P. was not allowed to Aberdeen where it

was allowed to have an illegal T.O.P.

QUEENSLAND : THE LAW

• Criminal Code 1899 – Section 224

Any person who, with intent to procure the

miscarriage of a woman…uses any means

whatever, is guilty of a crime, and is liable

to imprisonment for 14 years

• Subsequent “case law” has resulted in a

smorgasbord of interpretation and

confusion

HISTORY OF T.O.P. IN

QUEENSLAND

1985

• Peter Bayliss runs a T.O.P. clinic in a house in

Greenslopes

• The government, the D.P.P., the police raid the

clinic.

• They take away instruments, bits of placenta

and fetus from the drains and 20,000 patient

records

• Peter Bayliss and Dawn Cullen are charged

HISTORY (cont.)

• Not guilty verdict

• Judge McGuire

• “For the preservation of the mother’s

life…having regard to the patient’s state at

the time and to all the circumstances of

the case”

HISTORY (cont)

• “The law in this state has not abdicated its responsibility … to the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society.

• There is no legal justification for abortion on demand.”

HISTORY (cont)

• Judge McGuire

The present abortion law in Queensland is

uncertain and more imperative authority,

either the Court of Appeal or Parliament

would be required to effect changes to

clarify the law.

HISTORY (2)

2010 Cairns

• 25 years after the Bayliss case

• The cavalry (the DPP and the police) are

still alive and kicking

• Teagan Leach is charged with procuring

her own miscarriage

• Sergie Brennan is charged with procuring

drugs (PG) for an abortion

HISTORY (2) (cont)

• The Crown case is that it is illegal to have

an abortion unless there are serious risks

to the health, to the mental or physical

health of a woman and that did not exist in

the case of Tegan Leach

• Detective Senior Sergeant A.W. found

blister packs with foreign writing in the

wardrobe… from the Ukraine

HISTORY (2) (cont)

• Verdict : Not guilty

• 1985 – 2010

• Plus ca change plus c’est la meme chose

• There is an unexpected sequel in the lead

up

• The doctors at RWH who perform TOP’s

for fetal anomaly stop doing them on the

grounds that they too may be prosecuted

HISTORY (2) (cont)

• The Queensland Government makes a change to Section 282 of the Criminal Code to protect these doctors

• “A person is not criminally responsible for performing…a surgical operation or medical treatment … if performing it is reasonable, having regard to the patient’s state at the time and to all circumstances of the case”

T.O.P. in QLD NOW

Mainstream Hospitals

• Fetal anomaly or major medical disease in

the mother

• Suction / D&C for early T.O.P.’s

• Induction of “mini-labour” with PG as an

in-patient in hospital for late abortions

• The other 95% go to clinics outside

hospital

T.O.P. in QLD NOW (cont)

The outside clinics – for the 95%

• Suction / D&C for early T.O.P.’s

• D&E’s with priming of the cervix with PG

drugs for late T.O.P.’s

• They have no in-patient facility

• So they cannot induce mini-labours

• And there can only be a short interval

between PG and D&E

THE CASES

• That was a long preamble

• The following four cases have been picked

from a much bigger number to illustrate

the continuing problems in Queensland

• I have picked them because they are

medico-legal cases in which I have given

an expert opinion

CASE 1

• A 17 year old girl from out west requests a

T.O.P. at 8 weeks at Peter Bayliss’s clinic

at Greenslopes

• He sees her on a Friday : rigid nulliparous

cervix

• He puts a laminaria tent into the cervix and

she goes home for the weekend to return

on Monday for a suction D&C T.O.P.

CASE 1 (cont)

• Over the weekend she goes to the A&E out west. She has vomiting, later a temperature and abdominal pain

• It takes a while for it to become obvious that she has an infection which progresses to a gram negative septicaemia and she is becoming very ill

• There is no clear history of what had happened to her cervix in Brisbane

CASE 1 (cont)

• She is put into an ambulance with I-V

antibiotics to be transported to a bigger

hospital

• The ambulance breaks down in the middle

of nowhere

• The patient arrests at the same time

• She dies in the ambulance at the roadside

CASE 1 (cont)

OPINION

• There is no question of negligence ..at the

country hospital or in the ambulance

• I would criticise the idiosyncratic treatment

in Brisbane with inadequate arrangements

for care over the next 3 days in a remote

area

CASE 1 (cont)

• I would criticise the State of Queensland

for having a law and a system which

results in just this sort of tragedy. The

tragedy is all the worse in that in all

probability it would not have happened if a

proper service were available in proper

hospitals

CASE 2

• Medical Board case

• 23 weeks pregnant

• Would not qualify for T.O.P. in hospital

• Day clinic

• PG given : 4 doses between 9am & 12md

• 12.50 D&E. Cervix dilated to Hegar 21

• Near the end of the procedure it is realised that the uterus has been perforated

CASE 2 (cont)

• Transferred to QE2 Hospital

• Laparotomy

• 1000mls of blood in abdomen

• Large laceration through right side of the

uterus with fetal skull embedded in it

• Laceration repaired. Uterus conserved

CASE 2 (cont)

Opinion

• The customary opinion from “down south”

that induction of mini labour with PG would

be the method used “down south” and that

the D&E was not acceptable practice

CASE 2 (cont)

My opinion

• There would be very few OB/GYNS who have not perforated a uterus

• I believe that Dr W is very experienced in conducting terminations

• As such… the damage in this case is “acceptable”. This does not mean that it is not a terrible experience for the patient or imply any lack of sympathy….

CASE 2 (cont)

• I would agree with Dr (down south) that if it

were available …. the use of PG to induce

mini-labour would be the preferred

method…although it is not devoid of risk.

• It is fairly obvious from Dr D.S.’s opinion

that he is unaware of the issues and

politics in Queensland.

CASE 2 (cont)

(cont)

• As such it would be more appropriate for

him to confine his opinions to Victoria or

perhaps to acquaint himself of the

situation in Queensland

CASE 2 (cont)

• It is a recurrent theme in many of these cases that an interstate expert criticises the management as being less than ideal

• But the ideal is not available in Queensland

• So is it acceptable practice to perform the less than ideal?

• The Judiciary has a problem getting its head around that

CASE 3

• Aged 39, 2nd pregnancy

• Amniocentesis 16 weeks (her request)

• Trisomy 21 (Down’s syndrome)

• Now 17 weeks

• Request for T.O.P.

• Declined by RWH because of current local

politics (impending case in Cairns)

CASE 3 (cont)

• Impending case in Cairns

• Young couple being charged with

procuring miscarriage with DIY PG

• The doctors at RWH were nervous that the

case in Cairns might revolve around the

medical induction rather than the illicit

procurement of DIY PG drugs

• So no PG mini-labours were done at RWH

CASE 3 (cont)

• Patient referred to Westmead Hospital

• Others went to various hospitals interstate

• T.O.P. performed with PG by sympathetic

staff

• Cost of interstate travel etc paid by couple

• Having to go interstate adds an extra

dimension of guilt – that it is somehow

illicit in Queensland

CASE 4

• A prostitute, 19 weeks pregnant with a

4 year old child. Exhausted and desperate

• Referred to Dr Adrienne Freeman

• PG (Prostaglandin) given as out-patient

• Instructions as to what to do subsequently

when she aborts including if and when to

attend hospital

CASE 4 (cont)

• Bleeding and pain

• Attends hospital: The Mater

• Cannot continue with TOP there

• Dr David Watson tries RWH: they decline

• Patient still has supply of PG

• Scan at Mater shows dead fetus

• Proceeds to mid-trimester miscarriage

CASE 4 (cont)

• Dr David Watson reports Dr Freeman to

The Medical Board of Queensland

• ? “Unsatisfactory professional conduct”

• The safety of such out-patient PG TOP

revolves around the protocol of

management during the miscarriage

including admission to hospital if it is

necessary

CASE 4 (cont)

• To The Health Practitioners Tribunal

• Is this the ideal method of mid-trimester

TOP?

• Is it an “acceptable” management?

• Is it “unsatisfactory professional conduct?

CASE 4 (cont)

The “down south” expert opinion

• The basis of Dr G E’s report is that in Victoria they would do it differently –inpatient induction of mini labour with PG. So would I if I were in Victoria or elsewhere. Things are different in Queensland. The choice of method which he (and I) would advocate as ideal is not available in Queensland. Fullstop.

CASE 4 (cont)

• The choice in Queensland is very simple

• To have a potentially traumatic mid-

trimester D&E evacuation or not to

perform the procedure at all

• Dr Freeman has responded to this by

introducing a semi-outpatient, semi-

inpatient procedure

CASE 4 (cont)

• I agree with Dr E that this is a less than ideal approach.

• There is in my view a wide gap between

“less than ideal” and “unsatisfactory professional conduct”

• I think that Dr Freeman is misguided and perhaps a little naïve…but she is motivated by genuine compassion for the patient and frustration at the archaic view of TOP in Queensland

CASE 4 (cont)

• The Tribunal: Guilty

• The Appeal Court: set aside the decision

• A New Tribunal: Guilty

• The Appeal Court: appeal dismissed

• Leave to appeal to High Court: refused

• The penalty: registration suspended for

four months but the whole of this to be

suspended for two years

CONCLUSIONS-1

• From a medico-legal overview where are

we now?

• There is a base of law from the 1800’s

• There are ad hoc band-aids: “case law”

• More band-aids from the Government –

modifications of the Criminal Code

• The nett result resembles a badly

assembled piece of Ikea furniture

CONCLUSIONS-2

• The medical profession is stumbling

around trying to work out which cases

might be conducted inside mainstream

medicine

• The majority of cases will then be

conducted outside the mainstream

• The circumstances may often be less than

ideal – is that acceptable?

CONCLUSIONS-3

• The constabulary and the DPP are

digging up drains in Greenslopes and

checking on wardrobes and bedrooms in

Cairns

• With all the finesse of dinosaurs in a china

shop

CONCLUSIONS-4

• The legal profession is stumbling around

trying to interpret the vagaries of an 1800’s

piece of Ikea furniture which has been

badly assembled with band-aids

CONCLUSIONS-5

• The Judiciary is confused – the meat in the sandwich

• It too has difficulty interpreting the Ikea mess

• It has difficulty getting its head around the concept of what is acceptable in a less than ideal Queensland world

• It is easier to stick with Mayo Clinic gold standards

CONCLUSIONS-6

• The patients

• Are victims of this medico-legal shambles

• The anxiety and guilt which most women

seeking a TOP feel is compounded by

being excluded from mainstream medicine

• To be part of what seems to be backstreet,

covert and quasi legal

• And riskier than it should be

CONCLUSIONS-7

• Assumption: that TOP happens and will continue

to happen – whether you approve of it or not

• Because of the legal situation in Queensland it is

often performed in less than ideal circumstances

• If appendicectomy, cholecystectomy or

hysterectomy were performed in a similar

fashion there would be outrage and demands for

a commission of enquiry

• Where does the buck stop?

THE FINAL CONCLUSION

The current medico-legal shambles

exists because successive

Queensland governments have

lacked the balls to address a

controversial problem