Termination of pregnancy in a minor - the clinical, criminal and civil considerations: Townsville Hospital and Health Service v R

In the recent case of Townsville Hospital and Health Service v R (by her litigation guardian)¹ (Re R), the Supreme Court of Queensland (the Court), under its parens patriae jurisdiction, was asked by Townsville Hospital and Health Service (the Hospital) to declare that the termination of R’s pregnancy was in her best interests or alternatively that R was Gillick competent for the purpose of providing consent to undergo termination of her pregnancy.

This article was originally published in the Lexis Nexis Health Law Bulletin Volume 31 No 2.

Facts

The respondent in the case, was R, a 16-year-old who presented to the emergency department at the applicant Hospital with abdominal pain. She was diagnosed with sepsis from a urinary tract infection and an ultrasound revealed she was approximately 22 + 4 weeks pregnant. R denied knowledge of the pregnancy and consistently expressed a preference for a late-stage termination as did R’s parents. R’s treating medical team supported her request for the late-stage termination having considered her current and future physical, psychological and social circumstances in accordance with the Termination of Pregnancy Act 2018 (Qld) (the ToP Act).

However, the Court’s intervention was sought because the applicant Hospital and treating team had concerns as to whether R was Gillick competent and therefore able to provide valid consent. Without informed and valid consent, there was a risk that performance of a termination of pregnancy, would be unlawful, either as an assault or a trespass to R.

Where a child is incapable of giving valid consent to medical treatment, their parents, as guardians, may be able to provide valid consent to most ordinary medical treatment for their child. Termination of pregnancy, however, is at present in Queensland considered a special category of medical treatment for which a parent’s consent is insufficient.²

Parens patriae jurisdiction

The Court’s jurisdiction to authorise such a procedure is derived from its wide powers under the 'patriae jurisdiction'. In Queensland v Nolan³ Justice Chesterman explained:

The parens patriae jurisdiction extended to R as a child under the age of 18, but not her unborn child.⁴ It permits the Court to make orders contrary to the wishes of the child’s parent and the child, if it is satisfied that it is in the best interests of the child to do so.⁵

However, the first point of determination for the Court before descending into consideration of R’s best interests was whether R was Gillick competent and therefore able to provide valid and informed consent herself.

Termination considered 'special medical procedure'

The test for whether a child has sufficient competence to consent to a medical procedure was developed in the UK House of Lords decision of Gillick v West Norfolk & Wisbech Area Health Authority (Gillick competence).⁶ The House of Lords determined that in some circumstances a minor could consent to treatment without requiring the consent of a parent. The test proposed by Lord Scarman, was:

This test was approved in Australia by the High Court in Dept of Health and Community Services (NT) v JWB and SMB (Marion’s case)⁸ where it was acknowledged that 'parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow and this rate of development depends on the individual child.'⁹

Marion’s case concerned an application by the parents of a severely intellectually disabled girl to have their daughter sterilised. The child’s intellectual disabilities were so severe that she was unable to understand the nature or implications of the procedure. The High Court held that the scope of parental authority did not extend to 'special medical procedures' such as sterilisation, and instead required court authority.

A 'special medical procedure' was defined in Marion’s case¹⁰ as:

1. one where there was a significant risk of the wrong decision being made, and
2. where the consequences of such a wrong decision are particularly grave.

As a result, where a child is found not to be Gillick competent, authority to perform the sterilisation procedure is required by a court exercising its parens patriae jurisdiction.

The definition of 'special medical procedure' and requirement for court authorisation was extended to termination of pregnancy in a minor in the Supreme Court case of Queensland v B¹¹ Justice Wilson held that consent could not be given by the respondent’s parents and that a decision to terminate a pregnancy in a minor fell outside the scope of parental authority and therefore could only be made by a court. In extending Marion’s case, Wilson J at [17] said:

This was then confirmed in the case of Central Queensland Hospital and Health Service v Q¹² where McMeekin J at [20] said:

These two cases effectively extended the ratio of Marion’s case and held that court approval was required for a termination of pregnancy in a minor who was not Gillick competent. Presently in Queensland, where a child is not Gillick competent, a court order is required to authorise the termination of a minor’s pregnancy. Parents are unable to consent.

This also aligns with the law in respect of termination of pregnancy in adults without capacity under the Guardianship and Administration Act 2000 (Qld) (the GAA). Termination of pregnancy cannot be consented to by a guardian and must be consented to by the Queensland Civil and Administrative Tribunal under s 71, Pt 3 of the GAA.

Although not considered in detail, the position with respect to termination as 'special medical procedure' outside of a parent’s authority to provide valid consent, was confirmed in Re R by Justice Hindman at [5]:

Gillick competence

In Queensland v B,¹³ Wilson J was satisfied that a 12-year-old of less than average intelligence and maturity could not fully understand the significance of a termination of pregnancy. In Central Queensland Hospital and Health Service v Q,¹⁴ McMeekin J was satisfied that a 12-year-old of typical maturity and without any intellectual impairment was also unable to fully understand the significance of a termination of pregnancy.

In Re R, when considering whether R was Gillick competent, the relevant principles discussed in the cases of Gillick and Marion’s case were considered.¹⁵

In Re R, Justice Hindman noted at [9]:

Her Honour had before her the treating practitioners’ detailed notes of their various interactions with R and two documents from R herself (a written note where she recorded the reasons why she did not want the baby and a more recent signed statement). Her Honour noted that what was more important (than her immature presentation initially) was whether, at the time of the application, she properly understood the options available to her and the risks associated with each of the options so that she could provide informed consent to the medical treatment.¹⁶

At [12] her Honour held in relation to R’s ability to weigh up the options:

R also gave oral evidence in court. Her Honour ultimately held that R was Gillick competent, at [13] stating:

The Court was therefore not tasked with deciding whether the termination of R’s pregnancy would be in her best interests. R was held to be Gillick competent and it was for her to decide whether she consented to the termination of her pregnancy, which was otherwise permissible under s 6 of the ToP Act.

The Termination of Pregnancy Act 2018 (Qld) and amendment to the Criminal Code (Qld)

The analogous cases of State of Queensland v B¹⁷ and Central Queensland Hospital and Health Service v Q¹⁸ were both decided prior to the enactment of the ToP Act and in the context of the now repealed ss 224, 225 and 226 of the Criminal Code (Qld) which criminalised various acts relating to the procuring of a termination. The judgments therefore involved detailed consideration of whether the termination was lawful under the Criminal Code at the time.

It was acknowledged that the Court could not authorise what would otherwise be criminal conduct and it would not be in the child’s best interests to subject her to an unlawful act, especially a criminal act.¹⁹ Similarly, a child’s consent, even if Gillick competent, could not make the procedure lawful.²⁰

In State of Queensland v B Wilson J at [6] said:

The legal framework for termination of pregnancy has substantially changed since those two cases. The enactment of the ToP Act on 3 December 2018 decriminalised termination of pregnancy in Queensland and repealed Criminal Code offence provisions related to terminations in ss 224, 225 and 226. There are now new offences relating to an unqualified person performing, or assisting in, a termination of pregnancy.²¹

Sections 5 and 6 of the ToP Act now govern the circumstances in which a medical practitioner may terminate a pregnancy. Section 6 of the ToP Act was the relevant provision in Re R as the pregnancy was greater than 22 weeks gestation. The section required that a medical practitioner considered 'in all the circumstances' that the termination should be performed and that they had consulted with another medical practitioner who agreed. The medical practitioner must consider all the women’s relevant medical circumstances and her current and future physical, psychological and social circumstances in their assessment.

An amended s 313 of the Criminal Code now provides that a person does not commit an offence by performing a termination or assisting in the performance of a termination, under the ToP Act.

In Re R, Hindman J at [3] said:

And at [5]:

Intersection of the Human Rights Act and Termination of Pregnancy Act

It was noted in Re R that Justice Hindman was addressed on human rights issues that arose in the matter. Her Honour did not record reasons or conclusions on any human rights issues. However, it is worth noting that the right to life under s 16 of the Human Rights Act (Qld) 2019, which is concerned with preventing arbitrary deprivation of life, must be read together with s 106 which states 'nothing in this Act affects any law relating to termination of pregnancy or the killing of an unborn child'. If a termination is carried out lawfully under the ToP Act, it seemingly cannot be contrary to s 16 of the Human Rights Act.

Conclusion

There was no doubt that the jurisdiction entitling the Court to intervene existed in Re R, as it did in the prior analogous cases of Central Queensland Hospital and Health Service v Q and Queensland v B. However, Re R was distinguished in respect to the need to intervene, given R was found to be Gillick competent. The Court held that 'If she is (Gillick competent), then it is not appropriate for the Court to exercise its parens patriae jurisdiction. The jurisdiction is properly exercised to protect children or others who are unable to look after their own interests.'²² [emphasis added]

Although Justice Hindman did not consider whether the late-stage termination of R’s pregnancy was in her best interests, the case does illustrate how the ToP Act has significantly simplified judicial consideration of termination of pregnancy. Following a finding that R had capacity to make her own decision, the Court was then not required to delve into whether the termination in itself was lawful as was the case in Central Queensland Hospital and Health Service v Q and State of Queensland v B.

In both of those cases, the Court was tasked with grappling with the criminal legality of the termination under the Criminal Code as a Court could not authorise what would otherwise be criminal conduct and similarly, a child’s consent, even if Gillick competent, could not make the procedure lawful.

The introduction of the ToP Act and the safe guarding provisions for termination after 22 weeks under s 6 (which requires two medical practitioners to agree) may also go part of the way to aiding a Court’s consideration of Gillick competence. Although R was 16 years of age and therefore almost certainly able to consent to simple medical treatment herself, a medical termination of a pregnancy at advanced gestation carries with it considerable risks both from a physical and psychological perspective and involves considerable complexity in weighing up alternate options.

The finding by the Court that R was Gillick competent and able to consent would have endured even in the face of parental opposition.

There may also be an increasing recognition of capacity of mature minors and recognition of autonomy by the Courts as our societal landscape evolves. This is no more apparent than in the context of gender affirming treatment where the Courts are currently grappling with evolving societal values, recognition of autonomy and competence in the context of both parental refusal and support.²³

It will be interesting to see more thorough judicial consideration of the exercise of the Court’s parens patriae jurisdiction in matters of termination in the years to come, particularly following the enactment of the ToP Act and the Human Rights Act. The ToP Act has simplified judicial consideration of termination considerably. Perhaps the next step will be peeling back the extension of 'special medical procedure' in Marion’s case from 'termination' and negating the requirement for court authorisation. If termination was not judicially accepted as a 'special health care', in cases such as Re R, even if R was not Gillick competent, her parents would have been able to consent on her behalf.

Could such decisions be placed back into parents’ hands (unless perhaps there is considerable disagreement between the minor in question, the parents or the treating medical team)? In Re R, all parties were in agreement after all.

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¹ [2022] QSC 251; BC202215401.
² Dept of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218, 239; 106 ALR 385; [1992] HCA 15; and State of Queensland v B [2008] QSC 231.
³ State of Queensland v Nolan [2002] 1 Qd R 454 at [7] per Chesterman J.
⁴ Above.
⁵ Declaration Regarding Medical Treatment for ‘A’, Re (2020) 6 QR 718; [2020] QSC 389; BC202013217.
⁶ Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 ; [1985] 3 All ER 402; 3 WLR 830.
⁷ Above n 6, at [1986] AC 188 –89, para A.
⁸ (1992) 175 CLR 218; 106 ALR 385; [1992] HCA 15.
⁹ Above n 8, at [19].
¹⁰ Above; and State of Queensland v B [2008] 2 Qd R 562; [2008] QSC 231; BC200808413 at [49].
¹¹ State of Queensland v B [2008] 2 Qd R 562; [2008] QSC 231; BC200808413.
¹² Central Queensland Hospital and Health Service v Q [2017] 1 Qd R 87; [2016] QSC 089; BC201602903.
¹³ Above n 11, at [16].
¹⁴ Above n 12 at [30]–[33].
¹⁵ Above n 1 at [6].
¹⁶ Above n 1 at [10].
¹⁷ Above n 11.
¹⁸ Above n 12.
¹⁹ Above n 12, at [34].
²⁰ Above n 12 at [36].
²¹ Section 319A of the Criminal Code Act 1899 (Qld).
²² Above n 1 at [6].
²³ See for example, S Read and A Linney 'Two years on from Re Imogen: a divergence in State and Federal precedent' (2022) 30(7) HLB 135.