Last Tuesday (13 March), I attended the Right to Life (RTL) v Abortion Supervisory Committee (ASC) case at the Supreme Court in Wellington. For some background information, see this post from last week (there is a link in that post to a timeline of the case, which has so far lasted seven years).
As someone who wasn’t at any of the previous hearings, I will write about my impressions of the case, which may be slightly different from those who have followed the case over the past few years.
The case was heard starting at 10am and finishing at 4.55pm. On the bench were Chief Justice Sian Elias and Justices McGrath, Blanchard, Tipping and Young. Lead counsel for RTL was Peter McKenzie, QC, and for the ASC was Cheryl Gwyn from Crown Law.
McKenzie was the first to address the court, and he did so for a very long time, making points that were often unclear.
McKenzie told the court that the right of a child to be born must prevail unless there is a good reason for “termination of life”, a point that Justice Elias said she didn’t understand, as this is effectively the case under current abortion law (abortion is illegal under the Crimes Act except in particular circumstances). In fact, the judges on a number of occasions had to ask McKenzie what his point was, so it wasn’t just me who didn’t always get what he was talking about! In regard to RTL’s presumption that the right of the unborn child be at the forefront of every consideration, this was questioned by at least one of the judges and by counsel for the ASC. McKenzie referred a number of times to the full title of the Contraception Sterilisation and Abortion Act 1977 (Full title: An Act to specify the circumstances in which contraceptives and information relating to contraception may be supplied and given to young persons, to define the circumstances under which sterilisations may be undertaken, and to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child). Incidentally, this is the only reference to “the unborn child” in the Act.
Early on, one of the judges expressed concern that RTL would have the ASC conduct a quasi-criminal investigation in checking if each certifying consultant was observing the law. Throughout the hearing, McKenzie dodged around this line of questioning, on more than one occasion seemingly irritating some of the judges by his inability to give direct answers.
When asked by another judge for some specific examples of how the ASC should monitor certifying consultants, McKenzie said that the ASC could require the certifying consultants to report the diagnosis and severity of the condition for each abortion approved on mental health grounds. He seemed insistent that there needed to be a severe condition, while Justice Elias pointed out that the mental health grounds in the first 20 weeks refer to a “serious danger to mental health” not necessarily a diagnosis of a “serious condition”. What I understood from RTL’s submission here is that for RTL it isn’t enough that a certifying consultant find that there is serious danger to a woman’s mental health because of the distress she is experiencing, but that there needs to be a diagnosis of a serious condition. What conditions would count? And would certifying consultants be expected to refer a woman to a psychologist or psychiatrist for diagnosis? It may also pay to bear in mind that there is already a much higher threshold of risk required for an abortion on mental health grounds beyond the 20-week limit. Also worthy of note here is the fact that certifying consultants do generally provide diagnoses, and these diagnoses have in recent times become more specific following guidelines for making a decision based on mental health grounds provided by a psychiatrist (Dr Simpson) whose advice was sought by the ASC. So, the ASC asked certifying consultants to change the way they deal with diagnoses and the certifying consultants did. It would seem to me then that the ASC is carrying out its statutory role just fine.
Some of the judges were concerned that RTL are asking the ASC to second-guess the clinician’s decision. One judge acknowledged that while it is understandable that the ASC might wish to look more globally at the decisions being made, he has “anxiety” about the idea of looking at individual cases. RTL’s response to this is that the ASC have an “auditing and monitoring” role. To do so, they should be able to call for individual records, with identifying information removed.
One of the functions of the ASC that RTL focused on throughout the hearing was the reappointment of certifying consultants, and their opinion that checking a certifying consultant’s records could help the ASC determine whether that consultant is acting in accord with the tenor of the act. They pointed out that when renewing the licence of an institution, the ASC must review the institution’s compliance with NZ abortion law, to which one of the judges commented that it might well be deliberate that the Act does not treat institutions and certifying consultants in the same way.
Again, things kept coming back to how the ASC can be assessing certifying consultants’ performance without second-guessing their clinical judgement in each case. RTL argue that certifying consultants are “gatekeepers” and need to be honest. While clinical decisions are theirs to make, the ASC can review them (again, how this can be done without second-guessing the clinical decision was never made clear. And round and round we go, for a couple of hours…)
RTL brought up a recent case in the UK where doctors were accused of approving abortions on sex selection grounds, arguing that if a similar think happened here, the ASC should be able to investigate the conduct of the certifying consultants. A couple of the judges, and later the ASC, expressed the view that this would surely be a police matter. RTL seemed dissatisfied with the suggestion that police would need to be involved, and talked about situations in which there might be insufficient evidence for investigation by the Police or by the Health and Disability Commissioner. Are they saying the ASC could refuse to renew a certifying consultant’s licence on grounds that are insufficient for police or Health and Disability Commissioner investigation?
There was some consideration of the distinction between records and reports, and at least one of the judges thought that it seemed probable that this was a deliberate distinction that could mean the ASC can’t ask for records, even if anonymised. Certifying consultants have a duty to “keep records” and “submit reports”, not “submit records”. RTL’s response to this was to suggest that in calling for a report from certifying consultants, the ASC could require diagnoses be included. Again, it is hard to understand how the ASC could make a decision regarding a certifying consultant’s reappointment based on a list of diagnoses without revisiting and second-guessing the clinical judgement in coming to each of those diagnoses. Unless there is a suggestion of bad faith, the ASC would need to accept the clinical judgment of the consultant in each case. Again, if there is a suggestion of bad faith, this becomes a criminal matter due to the inclusion of abortion in the Crimes Act.
Also, as one judge reminded that court, in every case of approved abortion, a consultant has had their opinion reinforced by a second consultant. So by second-guessing a clinical decision, the ASC would be questioning the clinical judgement of two medical practitioners.
Gwyn, counsel for the ASC, emphasised in her response that the ASC has a “general” supervisory responsibility. She also argued that there are other mechanisms in place to deal with disciplinary matters involving medical practitioners, and it is not the place of the ASC to determine the legality of certain abortions or to decide if a certifying consultant is committing a criminal act or an act requiring disciplinary action.
There was some discussion about how, if RTL’s interpretation of the role of the ASC is right, a certifying consultant would be able to justify her or his decisions? Gwyn pointed out that this would require records from both certifying consultants, the woman’s GP if she or he was not a certifying consultant, and potentially the questioning of the woman herself. And the committee doesn’t have the power to do this. Considerable reference was made to the case of Wall v. Livingstone, a 1982 Court of Appeal case, in which it was ruled that in effect the decision of the certifying consultant must be respected when acting in good faith.
Justice Elias commented towards the end of the hearing that she found it strange that Justice Miller would question (in the High Court decision) the number of unlawful abortions, when all that is required to make an abortion lawful is for it to be approved by two certifying consultants (and performed in a legal manner). To question the lawfulness of abortions performed under mental health grounds is therefore to accuse certifying consultants of operating in bad faith. Which, when it comes down to it, is exactly what RTL are doing. Given that much of this case at this stage is about questioning the role of certifying consultants, and how certifying consultants are or are not carrying out that role in a lawful fashion, it seemed a bit remiss that the certifying consultants didn’t have their own representative sitting alongside the ASC’s representation.
At the end of the day, the judges reserved their finding. Those with more knowledge than me about the history of the case think it is possible that the bench might rule that the case should never have even gone to the Appeal Court and hence not to the Supreme Court. Regardless of this, all that is left is to wait for the decision to be released. From everything I saw and heard on Tuesday, I would say I am quietly optimistic.