Doctor has no status to prevent abortion — Court

Press, 20 January 1982, Page 6

Doctor has no status to prevent abortion — Court

PA Auckland A New Plymouth doctor yesterday failed in a bid to stop a girl from going ahead with an abortion.

A High Court Judge declined after an all-day hearing at Auckland to interfere with the course of a case in which an abortidn had been approved for the girl, aged 15.

An interim order suspending the abortion certificate was granted by Mr Justice Bisson in an ex parte hearing at Hamilton earlier this month.

Mr Justice'Speight yesterday heard the application by a Taranaki Hospital Board pediatrician. Dr Melvin Wall, to review the abortion certificate granted by two New Plymouth doctors who act as certifying consultants. Dr D. H. Livingston and Dr L. J. Roborgh.

His Honour said that he saw the Contraception.’ Sterilisation and Abortion Act as a “comprehensive code” which did not give the High Court the right to review decisions made by certifying consultants.

Dr Wall was represented by Mr Q. StL. Reeves, with him Mr B. C. Bresnahan.

Dr Livingston was represented by Dr G. L. McLeod, with him Miss Elizabeth Longworth, and Dr Roborgh was represented By Mr J. 0. Upton.

Mr Brosnahan said that it must be determined whether Dr Wall had the standing ,to take the proceedings, but he could be deemed to be a guardian-ad-litem, or the unborn child could be added to the proceedings as a second applicant. There were precedents in law for an unborn child to be a party in court proceedings. There were various avenues open to the unborn child to protect its rights.

Mr Reeves said that the sole question was whether Dr Wall was a person who had the standing to bring the application before the court. Dr Wall had said in his affidavit that he had confirmed the pregnancy and that he had personal knowledge of the case, being an expert in pediatrics. From his knowledge of the case he believed there could be no

justification for the certifying consultants issuing a certificate to abort the unborn child on what he believed was the ground on which it was issued — of a possible danger to the girl's mental health. “I confess I am concerned that he has the sufficient status, but the question arises: who has the sufficient status?" Mr Reeves said. “The doctor is saying that he believes the certificates have been issued in bad faith. It may be that they turn out to be perfectly reasonable, but he is saying, ‘I believe, that if no-one else will challenge them. I must.’ . “What we are asking for is an inquiry, a review, of the decision of these two ; certifying consultants, to see if the proper grounds do exist.” '■ While Dr Wall might not have the status, the unborn child did have the status to be heard by the Court. If certifying consultants were unchallenged, “we are just going to have chaos," Mr Reeves said.

Although it was public knowledge that abortion rates had not declined, the purpose of the act was to exercise some control. It would be hypocritical if Parliamentarians had said they would put some control on the statutes but that noone was able to challenge it, Mr Reeves said.

Mr Upton said that Dr Wall had no standing in the case and that the act was an exhaustive code which gave no private individual a right of action such as that before the Court.

“It is alleged in the statement of claim that the applicant has standing on behalf of the unborn child and in respect of his own regard for the health and well-being of the girl,” he said. “I submit that Dr Wall’s own rights are not threatened or impugned in any way; that his? personal and property rights are not at stake or in iss|e in any way; and he has no public law remedy, no administrative llw remedy in the present case. “Dr Wall-' said he has status ‘on behalf of the unborn child,’ but there is no way, under .the Contracep-

tion. Sterilisation and Abortion Act that Dr Wall could represent an unborn child. “I concede without hesitation that the unborn child has rights under the Contraception. Sterilisation and Abortion Act," Mr Upton said. "Those rights are not specifically defined but by process of analysis I submit that, vis-a-vis the certifying consultants, the unborn child’s rights are firstly that he (the consultant) will act in good faith, and secondly that he will act in pursuance of the powers conferred on him by the act — in other words he must have some material on which he can properly form an opinion.” Dr McLeod said the proper procedure for a “concerned medical man" would have been to take the case to the Abortion Supervisory Committee which was set up under the act.

The girl was aged 15, at the beginning of the childbearing age, and although it was not a carte blanche, the legislation had at least specified that the age of the mother should be taken into acount.

Delivering his judgment His Honour said that the act protected not only the rights of the mother, but also the rights of the unborn child that nature intended — the anticipation of survival. The act said that a woman could submit herself for an abortion with immunity from prosecution and it also provided immunity for the operating surgeon. A person not aggrieved and who took an action such as that before the Court was sometimes referred to by the derogatory expression of “interfering bystander.” It was not possible to come to that conclusion about Dr Wall.

“He is obviously a conscientious and wellmotivated medical practitioner, but in the context of these proceedings he is a member of the public and does not claim to be aggrieved in any other way but for concern for the unborn child. j

“Nor in my view could it be advanced — and I. am most confident on this point — that the unborn child has standing,". His Honour said.