ALRANZ has been told that the Medical Council of New Zealand (MCNZ) has caved in to anti-abortion pressure, and decided not to appeal a judge’s ruling that gives doctors the right to simply show you the door if you want an abortion.
Why, you might wonder, has the MCNZ decided to sell out the women of New Zealand? Because, it says, it can’t afford to defend them. ALRANZ is appalled that the rights of women patients to the full spectrum of care is now essentially in the hands of whichever group has the most money to mount an expensive legal attack, which is what has happened in this case.
If the MCNZ can’t afford to defend the women of New Zealand against anti-abortion attacks, Parliament needs to either provide the necessary funds (and encouragement) or strip the MCNZ of its statutory role over doctors. If this situation stands, it’s clear that while Parliament continues to do nothing about abortion – including spelling out that patients come first, not doctors – our rights are being sold off, piece by piece, to the highest bidder.
ALRANZ has called on the Minister of Health to investigate the handling of a matter that is of crucial importance to the women of New Zealand.
UPDATE 11:51 a.m.: Also, check out our media release on this issue and the New Zealand Herald’s story.
Read on to find out what happened in this case.
This is a complicated story that doesn’t fit easily into a sound-bite. And it comes in two parts. Part I is the most shocking, since it is all about the closed, secretive and shameful process that the MCNZ engaged in over this issue. It is that “process” part of the story that takes up the first section of this post. Part II, toward the end of this post, looks briefly at what revisions to the MCNZ’s guidelines the anti-abortion doctors wanted and what they appear to have succeeded in getting – and what that might mean for a woman near you. In the Appendices at the end, you’ll find a list of the anti-abortion doctors involved, a timeline of the story and some background information about the MCNZ. We also recommend you download a pdf of ALRANZ’s more detailed commentary on the MacKenzie ruling. This post also contains links to pdfs of the main documents discussed.
It’s important to chronicle this story, because so-called “conscientious objection” (or, from another perspective, “refusal to treat”) is one of the main lines of anti-abortion attack on reproductive rights, both here in Aotearoa/New Zealand and overseas.
Part I: Bad Process
This story begins in March 2009 when the MCNZ issued a draft statement on “Beliefs and Medical Practice” intended to guide doctors in how to deal with their personal and religious beliefs when treating patients. While statements and guidelines like this don’t have the power of a statute, they come pretty close. When finalised, this particular statement will set the standard by which a doctor’s conduct is measured by agencies such as the Health Practitioner’s Disciplinary Tribunal and the Health and Disability Commissioner.
Numerous organisations made submissions over the draft guidelines on Beliefs and Medical Practice, including ALRANZ. But, so far as we know, only one group actually got to negotiate – and in secret – with the MCNZ over the guidelines’ content, and that was a group of anti-abortion doctors who objected to what the guidelines had to say about abortion.
Even though ALRANZ had made a submission in good faith as an interested party, we heard nothing from the MCNZ about these negotiations, and didn’t find out about them till well after the fact. Four months after ALRANZ had made a submission on the draft guidelines, we wrote to the MCNZ asking when the next draft would be available, and was told this would be in a few months.
The next ALRANZ heard of the case was an article in a February 2010 NZ Herald article with the headline “Anti-abortion doctors challenge guidelines”. The MCNZ had intended to release revised guidelines in December, it later said, but under pressure from the anti-abortion doctors, (see the Appendices for a list of the doctors involved), had instead conducted secret negotiations, and failed to allow other groups access to any of those discussion or to any revised documents.
Why? According to a letter from the MCNZ to ALRANZ, the anti-abortion doctors “indicated that if Council attempted to distribute the statement in any form then they would file for an injunction. Council hoped to resolve the group’s concerns without the need to go to court, and so voluntarily agreed not to publish or distribute the statement to provide the doctors with an opportunity to outline the nature of their concerns, and of the changes sought.”
And what did the MCNZ gain from excluding the vast majority of doctors and health professionals who do not share the views of one group of anti-abortion doctors? Nothing! Again, according to a letter from the MCNZ to ALRANZ: “Unfortunately the changes proposed did not meet with the group’s expectations and Dr. Catherine Hallagan and others filed proceedings with the High Court”. According to the Herald, these were filed in the first half of February 2010.
We understand the difficulties dealing with anti-abortion advocates with deep pockets, but the process engaged in by the MCNZ in this case has breached open and transparent submission procedures, indeed it has undermined the integrity of the submissions procedure and, most likely, any legitimacy these guidelines will ever have. It is worth noting here that in a June 2010 performance review, a “lack of openness in much of the MCNZ’s work” was listed as a concern by the UK based reviewing agency, the Council for Healthcare Regulatory Excellence. The CHRE review stated: “The Council’s values include ‘openness and accountability’ but it is not apparent to us that there is indeed openness in all of the Council’s practices and procedures.” Unfortunately, though a statutory body, the MCNZ isn’t covered by the Official Information Act, but it is accountable to Parliament. (See Appendix 3 below for background information on the MCNZ.)
Meanwhile, all efforts at getting a copy of revised guidelines having failed, ALRANZ (and everyone else) was forced to wait until after the court case, which was heard on 1-2 November 2010. A month later, on 2 December, Justice MacKenzie issued a reserved judgment. When ALRANZ read that judgment, it was clear it couldn’t be fully interpreted without reference to the revised guidelines, so we again asked the MCNZ for a copy. Surely, with the case over, the MCNZ could oblige? No. The MCNZ responded that ALRANZ must obtain the revised guidelines from the Court. So, ALRANZ asked the Court and, finally in March of this year, was advised that Justice MacKenzie had granted the request for access, but that ALRANZ had to front up with $26.86 first.
We ask again, how can guidelines from a body charged with protecting patients’ rights be kept secret? (The guidelines cited in the case are dated October 2010 and were written after the court action began. Links to these documents are below.)
In a minute, we’ll briefly cover the content of what’s at issue, and what it means for patients’ rights. But first, let’s round off this Part I account of how the MCNZ sold out women.
ALRANZ was heartened to learn in February this year that the MCNZ had voted unanimously to lodge an appeal in the case.
But now the kicker: In response to a request for information about how that case was progressing, ALRANZ was told that just last week the MCNZ had withdrawn its appeal, citing as its reason a lack of funds for the case.
What does this mean, apart from the unavoidable conclusion that our rights as patients are in the hands of anti-abortionists with lots of money and lawyers? It means that the MCNZ will have to further amend its guidelines on “Beliefs and Medical Practice”, this time in accordance with MacKenzie’s judgment. (We understand an appeal by the anti-abortion group has also been withdrawn.) As the MCNZ proceeds, we can only hope it does a better job of taking into account voices other than those health professionals who oppose reproductive rights. But based on its actions so far, that seems unlikely.
Part II: What The Antis Want: Doctors First; Patients Second
Let us caveat this part of the discussion by pointing out that this was not written by a lawyer, and this is not a legal analysis. It is also a very truncated version of a complex issue. Rather than a blow-by-blow account here, we encourage you to take a look for yourself, and would welcome further analysis from any of our pro-choice readers. To repeat the link from above, ALRANZ’s more detailed commentary on the MacKenzie ruling is also available. (We will put this up as a separate post in the coming days.) Meanwhile, you can download pdfs of the following documents by clicking on these links:
MCNZ March 2009 Draft statement on “Beliefs and medical practice”
MCNZ October 2010 Draft statement on “Beliefs and medical practice”
MacKenzie’s December 2010 ruling in the case
Performance review of the Medical Council of New Zealand, June 2010
It is also important to make clear from the outset that the dispute over the MCNZ’s guidelines on “Beliefs and Medical Practice” is not about performing abortions, since the right of doctors and others to not be involved is clearly spelled out in the Contraception, Sterilisation and Abortion Act 1977, which states that:
46. Conscientious objection
(1) Notwithstanding anything in any other enactment, or any rule of law, or the terms of any oath or of any contract (whether of employment or otherwise), no medical practitioner, nurse, or other person shall be under any obligation—
(a) To perform or assist in the performance of an abortion or any operation undertaken or to be undertaken for the purpose of rendering the patient sterile:
(b) To fit or assist in the fitting, or supply or administer or assist in the supply or administering, of any contraceptive, or to offer or give any advice relating to contraception,—
if he objects to doing so on grounds of conscience.
Rather, this dispute is about what help a doctor is obliged to give a pregnant patient seeking an abortion, and how far that doctor is obliged to go in arranging for the patient’s case to be dealt with.
As MacKenzie saw it, the principal challenge by the anti-abortion doctors is to this part of the MCNZ’s proposed guidelines:
32. Your obligations under paragraph 28 of this statement mean that if you have a conscience objection to abortion and you are consulted by or on behalf of a pregnant woman who wishes to have an abortion, you must, if requested to do so by or on behalf of that woman, arrange for the woman’s case to be considered by another medical practitioner who is able to consider whether an abortion may lawfully be performed and take the appropriate steps required by the Contraception, Sterilisation and Abortion Act 1977.
Some anti-abortion doctors essentially want to be able to end their obligation to do anything much at all for an abortion-seeking patient, including not having to refer her to someone who will do something (the MCNZ argues doctors have an obligation to refer). Anti-abortion doctors argue that referring or arranging for her case to be dealt with falls under “assisting in the performance of an abortion”, and so they don’t have to do it if they have a conscientious objection.
MacKenzie agreed with them on some issues, not on others. The limited good news is that, according to this ruling, whatever their beliefs, doctors must at the very least inform a woman requesting an abortion that she can obtain the service elsewhere.
But that’s also part of the bad news. Because that is essentially all anti-abortion doctors must do, and it’s not much. MacKenzie puts it like this:
“If the conscience of the doctor would be infringed by arranging for the case to be considered and dealt with … the doctor may decline the patient’s request to do so. The doctor must in that event give the information required by s 174(2).”
s 174(2) refers to the Health Practitioners Competence Assurance Act 2003, which at (2) says: “the heath practitioner must inform the person who requests the service that he or she can obtain the service from another health practitioner or from a family planning clinic.”
MacKenzie goes on to argue that three paragraphs (27, 29, 32) in the MCNZ’s guidelines be revised in line with his interpretation of doctors’ duties.
Bottom line: Under this ruling, if you visit an anti-abortion doctor and want an abortion, that doctor doesn’t have to do anything for you other than hand you a Post-It note with the phone number of Family Planning and show you the door. You have to seek help, again, yourself. This means starting from scratch, making fresh appointments, further delaying your access to abortion care.
And how does that stack up against the MCNZ’s own statement, in “Good Medical Practice for Doctors”, that as a doctor you must “make the care of patients your first concern”? Well, except if your patient wants an abortion and you don’t agree. Then, some doctors get to put themselves first.
As this story shows, not only are the laws covering abortion in New Zealand outdated, they are also unclear and confused. And those who pay the price for this shameful affair will not be the doctors, but the women.
We also can’t help but wonder: if this were any other issue, would the Medical Council be so quick to back down and not stand by their own professional guidelines? Why, when it comes to abortion, women are not treated with the same standards of care and best medical practice as afforded to all other patients?
Appendix 1: Who Are The Doctors?
To support the ongoing action against the MCNZ, a group of anti-abortion doctors, along with other health professionals, registered themselves in November 2009 as an incorporated society called New Zealand Health Professionals Alliance Incorporated. (You can look up their details online at the Societies and Trusts register.) Among the members, according to the register, is Dr. Ate Moala, the doctor whom MP Tariana Turia tried this year to have appointed to the Abortion Supervisory Committee. As reported in ALRANZ’s February 2011 Newsletter, others include Dr Catherine Hallagan (the first plaintiff), Dr Gillian Penno (Paremata), Dr Kevin Fitzsimons (Wellington), Dr Leo Buchanan (Wellington), Dr Alistair & Mary McLean (Rotorua), Teresa McMenamin (Practice Nurse, Rotorua), Dr Clement Le Lievre (Ngongotaha), Dr Denise Aitken (Rotorua), Dr Neil Poskitt (Rotorua), Dr Sinéad Donnelly (Wellington), Dr Clare McKay (Wellington), Dr Michael Dunn (Upper Hutt), Dr Samantha Murton (Wellington), Dr Marleen Hart (Wellington), Mr Mark Sherwood (orthopoedic surgeon Wellington). Though not listed on the incorporated society documents, The New Zealand Herald reported that it believed Dr. Mary English, wife of current Finance Minister Bill English, was also part of this effort. ALRANZ has not confirmed this.
Appendix 2: Timeline
March 2009: Draft statement by MCNZ on Beliefs and Medical Practice released.
8 May 2009: ALRANZ makes submission on the March 2009 statement.
October 2009: ALRANZ asks when revised guidelines will appear and is told it will be in a few months. MCNZ later explains it hoped to have revised guidelines out by December 2009.
November 2009: MCNZ is contacted by a group of anti-abortion doctors indicating they plan to take action in the High Court seeking a judicial review of the guidelines. MCNZ is also advised that if it attempts to distribute the statement in any form, the anti-abortion group would file for an injunction. Over the following months, MCNZ engages in secret discussions with the anti-abortion group.
19 February 2010: News breaks in New Zealand Herald that a group of anti-abortion doctors has gone to court to challenge the guidelines. According to the Herald, the court action was filed the previous week.
In subsequent months, efforts by ALRANZ to get a copy of any revised guidelines are rebuffed.
1-2 November 2010: The case, Hallagan v. Medical Council of NZ, is heard at the High Court in Wellington before MacKenzie J.
2 December 2010: MacKenzie J issues his judgment in the case.
8 December 2010: ALRANZ asks MCNZ for a copy of the revised guidelines, given that the legal action is over. The MCNZ refuses, directing ALRANZ to the Courts.
15 Feb 2011: NZPA reports that the MCNZ will appeal the judgment. (ALRANZ subsequently learns that the anti-abortion doctors are also appealing.)
2 March 2011: ALRANZ is informed the judge has granted access to the guidelines, but it must pay $26.86 for a copy.
30 June 2011: ALRANZ writes to MCNZ asking for an update in the case, and is told that evidence briefs have been filed, but there is no other information available.
12 November 2011: ALRANZ writes to MCNZ again asking for an update of progress in the case.
14 November 2011: MCNZ tells ALRANZ “Unfortunately the Council withdrew its appeal last week. The reason for this is that we had a budgetary blow-out, and Council members decided that we could not afford to proceed.”
16 November 2011: ALRANZ is unofficially informed that an appeal planned by the anti-abortion doctors has also been withdrawn.
Appendix 3: The MCNZ
The primary purpose of the Medical Council of New Zealand is to promote and protect public health and safety.The Council has the following key functions:
setting standards and guidelines
recertifying and promoting lifelong learning for doctors
reviewing practising doctors if there is a concern about performance, professional conduct or health. (Source: MCNZ’s “Good Medical Practice: A Guide for Doctors”)
(ii) Make-up and Appointment of MCNZ
The MCNZ is an independent organisation, which is accountable to the New Zealand Parliament. It is funded by doctors’ practising certificates and registration application fees. The Council is made up of 12 members, eight of whom are doctors and four of whom are not doctors. Four of the doctor members are elected by the profession and the rest of the members are appointed by the Minister of Health. The New Zealand legislation (Health Practitioners Competence Assurance Act 2003) specifies that there should be a majority of doctors on the MCNZ. The Council has three standing committees: the Audit Committee, the Education Committee and the Health Committee. There are currently about 12,500 doctors registered with the MCNZ. (Source: Performance Review of MCNZ, June 2010)
I don’t see a doctor who refuses to perform an abortion as being obliged to find one who will say “yes” to the woman *in question* in the case *in question*. Some cases are always going to be more ethically troubling than others. Those who work in the real world understand that it’s a continuum, not a simple “pro-life/pro-choice question. A doctor who’s an absolute and universal “yes man” would be somewhat concerning in itself. Personally, I’d refer them to a pro-choice organization which provides referrals. The might be able to find her a doctor – or might not.
However, doctors DO have an obligation to share information in the furtherance of patient care. If the fellow doctor asks for information or records on the patient’s health background or current medical situation, for example, a doctor mush co-operate in providing such information.