Abstract
Introduction
On occasion, psychiatrists in Australia and New Zealand may be asked to make an assessment of a woman regarding termination of pregnancy. Recent years have seen numerous developments around this issue, including: legislative reform in two states (Abortion Law Reform Act 2008 (Vic); Criminal Code (Medical Treatment) Amendment Act 2009 (Qld)); three high-profile court cases (State of Queensland v B [2008] QSC 231; R v Sood [2006] NSWSC 1141; R v Leach and Brennan [2010] QDC (Cairns) unreported 14 October Everson DCJ); a discussion paper recently released by our college (Buist et al., 2011); an ongoing review by the Royal College of Psychiatrists (Royal College of Psychiatrists, 2011); and ongoing debate on the issue in the pages of this journal (Morris and Orr, 2007; Romans-Clarkson, 1989; Ryan, 2008; Wainer, 2008). These developments suggest it is time that the role of psychiatrists in the termination of pregnancy is comprehensively reviewed. In this paper, we aim to provide practical guidance to meeting requests for assessment around induced abortion by reviewing the clinical and ethical aspects, and the legal situation in each Australasian jurisdiction.
There are no published data on how often psychiatrists are involved in terminations of pregnancy in Australasia or internationally. An unpublished survey of New South Wales consultation–liaison psychiatrists in 2004 found that 12 of the 25 respondents had been involved in the assessment of women requesting late terminations, suggesting at least some involvement by a significant proportion of that subspecialty (Morris K, unpublished data, 2004). In all likelihood, most, but not all involvement in Australasia is in the context of late termination, and therefore late termination will be the focus of our attention in this paper. However, there is considerable overlap of many of the clinical, ethical and legal issues in late and earlier induced abortion, so both are considered.
Late termination of pregnancy
Though it is a term in common use, ‘late termination’ lacks satisfactory definition. There is no agreed definition and no obvious clinical marker that would make for a good point of transition from early to late. No Australasian legislation uses the term ‘late termination’. Some jurisdictions do differentiate between abortions at different stages of gestation but, of those that do, these differentiations vary. Certainly there is no ethical consensus, with arguments ranging from those against the termination of a zygote (Noonan, 1970) to those defending the morality of infanticide (Tooley, 1972).
Notwithstanding the lack of legislative consistency around the definition of ‘late’ for the purposes of determining when an abortion is lawful, there is some evidence to suggest that 20 weeks gestation has become a commonly used point of distinction, even where the law does not identify this as a material point in time. The NSW Department of Health guidelines on termination of pregnancy, for instance, differentiate between the procedural requirements to be followed in abortions pre and post 20 weeks gestation (New South Wales Health Department, 2005). In addition to this, many jurisdictions require the notification of births (including ‘stillbirths’) after 20 weeks gestation and, in the case of stillbirths, the cause of fetal death (Births, Deaths and Marriages Registration Act 1995 (NSW), s.12; Births, Deaths and Marriages Registration Act 1996 (Vic), s.12; Births, Deaths and Marriages Act 1998 (WA), ss.11, 40, 44; Births, Deaths and Marriages Registration Act 1996 (SA), s.12).
In New Zealand, the Abortion Supervisory Committee collects statistics on all terminations performed each year. In 2009, 73 (0.4%) of the 17,550 terminations performed in New Zealand occurred after 20 weeks gestation (Abortion Supervisory Committee, 2010). There is no equivalent national data collection system in Australia and any report of the number of late terminations is an estimate. Using a combination of Medicare and National Hospital Morbidity Database data, Grayson and co-authors suggest that around 0.7% of Australian induced abortions occur after 20 weeks, though they suggest this is likely to be an underestimate (Grayson et al., 2005).
Very limited data are available on the reasons for late termination in Australasia. In South Australia in 2008, 1.7% of notified terminations were at or after 20 weeks gestation; of these, 56% were for fetal abnormalities (Chan et al., 2009). Similarly, in Victoria in 2008, 46% of 328 terminations at or after 20 weeks gestation were for reasons of ‘congenital abnormality’. The remaining 54% were classified as being for ‘maternal psychosocial indications’ (The Consultative Council on Obstetric Paediatric Mortality and Morbidity, 2011). Further breakdown of these 178 psychosocially motivated late terminations reveals that 67% were undertaken by women aged 24 years and under, 61% were undertaken for women whose place of residence was outside Victoria, and all took place in a private hospital or clinic.
Abortion law in Australia and New Zealand
No Australasian jurisdiction provides ‘abortion on demand’. In many jurisdictions, abortion remains a criminal offence with the result that doctors who perform an abortion may be prosecuted unless the abortion was lawful (Australian Capital Territory and Victoria are the exceptions). The parameters that define ‘lawful’ vary from jurisdiction to jurisdiction. In some jurisdictions, such as New South Wales, the courts have accepted that an abortion will not be unlawful where it is ‘necessary’ (the legal test for determining this is explained below), whilst in Queensland and Tasmania, a similar defence exists in the Criminal Code. In the remaining jurisdictions, Western Australia, South Australia, Northern Territory, Victoria and New Zealand, more comprehensive legislative reforms have been undertaken, including the introduction of time limits for particular classes of abortion and/or recognition of ‘fetal abnormality’ as a distinct ground for termination. However, despite these variations, there are also common features. In all of these jurisdictions, a doctor may need to consider the woman’s health, including her mental health, in determining whether an abortion is lawful. Although none of these laws expressly require the involvement of a psychiatrist in any procedure surrounding the termination of pregnancy, psychiatric opinion may be sought to help clarify the risk posed to the woman’s health by the continuation of the pregnancy.
We will examine each jurisdiction in turn. While some readers may wish to peruse all the relevant legislation, those interested only in their local provisions may skip directly to the section on their particular jurisdiction, though Queensland readers should read the New South Wales section first.
New South Wales
In New South Wales, it is an offence to ‘unlawfully procure a miscarriage’ or to ‘supply or procure a drug or instrument knowing that it is to be used unlawfully to procure a miscarriage’ (Crimes Act 1900 (NSW), ss.83, 84). However, courts have held that an abortion will not be unlawful if the common law defence of necessity applies. The defence would apply in the following circumstances.
Where the doctor honestly believed, on reasonable grounds, that the abortion was necessary to preserve the woman from a serious danger to her life or her physical or mental health which continuance of the pregnancy would entail, not being merely the normal dangers of pregnancy and childbirth (the necessity limb).
Where, in the circumstances, the danger of the operation was not out of proportion with the danger to be averted (the proportionality limb).
This test was first articulated in Australia by Menhennitt J in the Victorian case R v Davidson [1969] VR 667 (‘Davidson’), and was applied in New South Wales in R v Wald (1971) 3 DCR (NSW) 25 (‘Wald’). In Wald, Levine DCJ held that ‘reasonable grounds’ can arise from ‘any economic, social or medical ground or reason . . . [that] would result in a serious danger to [a woman’s] physical or mental health’ (Wald [1971] 3 DCR (NSW) 25 at 29). Levine DCJ also indicated that the doctor did not have to believe that the woman’s health was in serious danger at the time of the consultation, it would be sufficient that her health ‘could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy, if uninterrupted’. (Wald [1971] 3 DCR (NSW) 25 at 29) The Wald test has been subsequently considered and applied by New South Wales courts. In CES v Superclinics (Australia) Pty Ltd [1995] NSWSC 103 (‘Superclinics’), a case concerning the negligent failure of a medical practitioner to diagnose pregnancy, the court was required to consider whether a termination would have been lawful had the patient known she was pregnant. Although the trial judge held that the proposed termination would not have satisfied the test in Wald, this was overturned by a majority on appeal. In the course of his appellate judgement, Kirby P extended the period during which the danger to the woman’s health could be expected to arise from ‘some time during the pregnancy’ to ‘after the birth of the child’ and the ‘circumstances in which she will then probably find herself’ (Superclinics [1995] NSWSC 103 at [60]).
The Wald test has been recently applied in the prosecution of a doctor for unlawfully procuring a miscarriage. In R v Sood [2006] NSWSC 1141 (‘Sood’), the prosecution alleged that Dr Sood had unlawfully facilitated a termination of pregnancy by failing to investigate the grounds upon which a belief in the necessity of the termination could be formed. The prosecution further alleged that Dr Sood was legally responsible for the death of the child because it was born alive before succumbing. A jury convicted Dr Sood of unlawful abortion, although she was acquitted of manslaughter. Notably, the court affirmed Kirby P’s broad interpretation of the grounds for termination, observing that: ‘the focal point of [the] inquiry is the prediction of harm to the health (physical or mental) of the woman if termination is not performed. This is broad enough to include economic, social or medical factors, including matters that can arise after the birth of the child’ (Sood [2006] NSWSC 1141 at [22]).
During the course of this trial, it was also necessary for the judge to clarify some aspects of the test enunciated in Wald; in particular, whether each limb of the test was to be framed in terms of the (reasonably based) subjective belief of the doctor or in terms of the objective belief of the reasonable person in the doctor’s position. Simpson J held that the first limb (necessity) of the test is subjective, but the second limb (proportionality) is objective (R v Sood (Ruling No 3) [2006] NSWSC 762). This means that, to obtain a conviction for unlawful abortion in New South Wales, the prosecution would need to prove, beyond reasonable doubt, either that the doctor did not have an honest belief that the procedure was necessary to avert mental or physical harm to the woman; or, if the doctor did have that belief, that there were no reasonable grounds for it; or, that a reasonable person in the doctor’s position would have considered that the risk of termination was out of proportion to the risk to the mother of the continuation of the pregnancy (Sood [2006] NSWSC 1141 at [17]).
In New South Wales, the law with respect to abortion makes no distinction between late and early terminations of pregnancy, although as the Sood case illustrates, a negligently performed or unlawful abortion resulting in a live birth and subsequent death may expose a doctor to a charge of manslaughter.
Queensland and Tasmania
In Queensland (Criminal Code (Qld), s.224) and Tasmania (Criminal Code (Tas), ss.135, 136), abortion is a crime as it is in New South Wales, but both jurisdictions possess statutory variants of the defence of necessity. In Tasmania, the Criminal Code provides an exception for medical abortions where two doctors certify that continuation of the pregnancy ‘would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated’ and the woman has given informed consent (unless it is impracticable for her to do so). Doctors may take into account ‘any matter which they consider to be relevant’ when determining the level of risk involved in continuing or terminating a pregnancy (Criminal Code (Tas), s.164).
In Queensland, the legal situation is slightly more complex. Offences relating to unlawful abortion are contained in sections 224–226 of the Criminal Code (Qld) and section 282 contains a statutory defence for medical practitioners who, in good faith and with reasonable care and skill, provide surgical or medical treatment in order to preserve the mother’s life where the treatment provided is reasonable having regard to the patient’s state at the time and all the circumstances of the case. In the 1986 Queensland abortion case, Rlen [1986] 9 Qld Lawyer Rep 8 (‘Bayliss’), the court held that the common law defence of necessity as articulated in Davidson could be raised as a defence to a charge of unlawful abortion under section 224 and that the statutory defence contained in section 282 could be raised as a defence to a charge of killing an unborn child under section 313 (this could presumably encompass an abortion very late in pregnancy). However, as the court interpreted the scope of section 282 consistently with the test enunciated in Davidson, it is not clear that the distinction is of any practical relevance. As discussed above, New South Wales courts have (both before and since Bayliss) extended the common law test as applied in Davidson so a question remains as to whether these judicial developments represent the law in Queensland (Douglas, 2009). This could be of practical relevance to medical practitioners but, unfortunately, the question has not been settled.
There have, however, been recent developments concerning the construction of the offence of unlawful abortion in Queensland. The meaning of ‘noxious thing’ within section 225 was considered in R v Leach and Brennan [2010] QDC (Cairns) unreported 14 October Everson DCJ. Leach was charged under section 225 for procuring her own abortion by self-administration of an abortifacient drug (mifepristone or RU486) and her partner Brennan was charged with the supply of the drug under section 226. The prosecution conducted its case on the basis that mifepristone was a ‘noxious thing’ within the terms of the sections. However, the jury acquitted both defendants following a direction from the trial judge that ‘noxious’ was to be determined by reference to whether it was noxious to Leach as opposed to any fetus she may have been carrying (Carlisle, 2010).
The court’s interpretation of ‘noxious’ leaves open the possibility that miscarriages procured by RU486 do not fall within section 225 and are, therefore, not unlawful. However, it is important to note that the administration of a ‘noxious’ thing is only one of three ways in which an unlawful miscarriage may be procured under the relevant sections. Sections 224 and 225 also contemplate the procurement of a miscarriage by ‘any force of any kind’ or ‘any other means whatever’. Thus, there is an argument (not relied on in R v Leach and Brennan) that administration of the mifepristone is ‘any other means whatever’ of procuring an abortion and therefore unlawful unless the defence applies.
South Australia and Northern Territory
Abortion is also an offence in South Australia (Criminal Law Consolidation Act 1935 (SA), ss.81, 82), and the Northern Territory (Criminal Code (NT), s.208B-C).
In South Australia, abortion may be performed when two medical practitioners who have both examined the woman, form the opinion that:
continuance of the pregnancy would involve greater risk of injury to the physical or mental health of the woman, or involve greater risk to the life of the woman than termination than if the pregnancy were terminated; or
there is a substantial risk that the child, if born, would suffer from such physical or mental abnormality as to be seriously handicapped.
The terms ‘physical or mental abnormalities’ and ‘seriously handicapped’ have not been defined. However, when determining the risk to the woman’s life and physical or mental health, doctors may take into account ‘the pregnant woman’s actual or reasonably foreseeable environment’ (Criminal Law Consolidation Act 1935 (SA), s.82A). In addition to this, abortions may be performed without a concurring opinion where a doctor believes in good faith that a termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health of the pregnant woman. Abortions on any of the above grounds may be performed until the ‘child is capable of being born alive’ and although there is a statutory presumption that this occurs at 28 weeks gestation, this does not preclude a finding that the relevant point is reached at an earlier or later stage of gestation in any particular case. After 24 weeks and before 28 weeks, a hospital committee considers requests for termination (Skene, 2008). In circumstances where a ‘child is capable of being born alive’, feticide is only permitted when done in good faith to preserve the mother’s life (Criminal Law Consolidation Act 1935 (SA), s.82A).
The Northern Territory uses criteria very similar to the South Australian criteria to establish that an early abortion is lawful, but the criteria only operate until 14 weeks (Medical Services Act 1982 (NT), s.11). There is a further requirement that at least one of the medical practitioners required to form the relevant opinion must be a gynaecologist or obstetrician. After 14 weeks and up to 23 weeks the doctor must believe in good faith that an abortion is ‘immediately necessary to prevent serious harm to the [pregnant woman’s] physical or mental health’. After 23 weeks, an abortion is only lawful with a belief that an abortion is for the sole purpose of preserving the woman’s life. In all cases, there is a legislative requirement that ‘the appropriate person’ consents to the treatment. This is discussed in more detail below.
Western Australia
In Western Australia, abortion law was reformed in 1998 when the abortion offences were repealed and a new offence created (Criminal Code (WA), s.199). The new offence provides that an abortion is unlawful unless it is performed by a medical practitioner in good faith and with reasonable care and skill. Abortions must also be justified under the Health Act 1911 (WA), which sets out further requirements. Prior to 20 weeks gestation, abortion is lawful if the woman concerned has given informed consent or, if it is impracticable for her to do so, where serious danger to her physical or mental health will occur if the abortion is not performed or where the pregnancy is causing serious danger to her physical or mental health (Criminal Code (WA), s.199; Health Act 1911 (WA), s.334). After 20 weeks gestation, abortion is not lawful unless two practitioners from a ministerially appointed panel agree that the mother or the unborn child ‘has a severe medical condition that in the clinical judgment of those two medical practitioners justifies the procedure’ and the abortion is performed in an approved facility. The term ‘severe medical condition’ is not defined. A 2002 report revealed that until that time, no post-20 week abortions had been approved for social and/or psychiatric reasons (Anon, 2002). In fact, five applications for such an abortion had been rejected at the time of review. Nonetheless, the report stated that severe psychiatric disorders may fulfil the criteria.
Victoria
The Victorian Abortion Law Reform Act 2008 (Vic) decriminalised abortion in Victoria. Section 4 allows a registered medical practitioner to perform an abortion on a woman (of any age) who is not more than 24 weeks pregnant. After 24 weeks, an abortion may only be performed if a second medical practitioner is consulted and both reasonably believe abortion is ‘appropriate in all the circumstances’ (Victorian Abortion Law Reform Act 2008 (Vic), s.5). When considering the circumstances, the doctors must have regard to ‘all relevant medical circumstances’ and ‘the woman’s current and future physical, psychological and social circumstances’ (Victorian Abortion Law Reform Act 2008 (Vic), s.5). Although the Act does not make express provision for abortion on the grounds of fetal abnormality, the explanatory memorandum to the Bill noted that the term ‘all relevant medical circumstances is intended to ensure that the medical condition of the fetus and the woman are taken into account’ (Abortion Law Reform Bill 2008 (Vic) – Explanatory Memorandum: 2).
Australian Capital Territory
The Australian Capital Territory (ACT) has decriminalised abortion, so that abortion is not an offence in the ACT when performed by a doctor in an approved facility (Crimes (Abolition of Offence of Abortion) Act 2002 (ACT)). Thus, abortion is treated by law in the same way as any other medical procedure, subject to the requirements of the Health Act 1993 (ss.81, 82). Although there is no law specific to late terminations, the Crimes Act 1990 (ACT) contains the offence of ‘child destruction’. Section 42 of the Act provides that it is an offence to ‘unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive (a) prevent the child from being born alive; or (b) contribute to the child’s death’. Although this provision has not been tested in the context of post-viability abortions, there is an argument that the reference to ‘unlawfully’ in the section precludes it being used against doctors who are operating within the parameters of the Health Act 1993 (ACT).
New Zealand
In New Zealand, an abortion is not unlawful before 20 weeks if the medical practitioner believes any of the following (Crimes Act 1961 (NZ), s.187A):
the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman; or
there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped; or
the pregnancy is the result of incestuous sexual intercourse or due to abuse of a dependent; or
the pregnancy is the result of sexual intercourse that constitutes an offence against the Crimes Act; or
the woman or girl is ‘severely subnormal’ as defined by the Act.
After 20 weeks, an abortion is only lawful if the medical practitioner believes that the abortion is necessary to save the life of the woman, or to prevent serious permanent injury to her physical or mental health. Except in cases where the medical practitioner believes that an abortion is immediately necessary to save the woman’s life, abortions must first be authorised by two certifying consultants in accordance with the provisions of the New Zealand Contraception, Sterilisation and Abortion Act (1977).
Legal issues around consent
Also relevant to the legality of abortion is the issue of consent. In all jurisdictions, common law procedures around consent would need to be observed, but Tasmania and Western Australia place additional burdens on consent in regard to abortion. In Tasmania, ‘informed consent’ in relation to abortion is defined as: consent given by a woman after she has received counselling from her doctor about the medical risks associated with abortion or continuation of the pregnancy, and a referral to counselling about ‘other matters relating to termination of pregnancy and carrying a pregnancy to term’ (Criminal Code (Tas), s.164). In Western Australia, ‘informed consent’, in this context, means consent freely given by the woman where a medical practitioner (other than the practitioner who performs or assists in the performance of the abortion) has ‘properly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term’; has ‘offered her the opportunity of referral to appropriate and adequate counselling about matters relating to termination of pregnancy and carrying a pregnancy to term’; and ‘has informed her that appropriate and adequate counselling will be available to her should she wish it upon termination of the pregnancy or after carrying the pregnancy to term’ (Health Act 1911 (WA), s.334).
Children and adults who lack capacity raise special challenges with respect to consent to abortion. In jurisdictions where informed consent is a legislative requirement, minors may not be eligible to provide consent for themselves. The Tasmanian provisions do not specifically limit the age at which informed consent may be given. However, the Northern Territory (Medical Services Act 1982 (NT), s.11) and Western Australian provisions (Health Act 1911 (WA), s.334) both specify that a woman must be at least 16 years of age and, in the case of the Northern Territory, ‘otherwise capable in law’ to give informed consent to a termination. If these requirements cannot be met, the Northern Territory legislation provides that a ‘person having authority in law’ must give consent on behalf of the woman (Medical Services Act 1982 (NT), s.11). In Western Australia, a dependent minor (a woman under the age of 16 and being supported by a custodial parent) cannot give informed consent ‘unless a custodial parent of the woman has been informed that the performance of an abortion is being considered and has been given the opportunity to participate in a counselling process and in consultations between the woman and her medical practitioner as to whether the abortion is to be performed’. This requirement can, however, be dispensed with by court order (Health Act 1911 (WA), s.334).
In cases of legal incapacity (either by immaturity or incompetency), consent may also be obtained from a court exercising its parens patriae jurisdiction if the termination is in the person’s best interests. In some jurisdictions, guardianship and/or child welfare legislation may also provide a mechanism for obtaining the necessary consent where a woman/child is legally incapacitated. The precise details of these mechanisms are beyond the scope of this paper. Informed consent and capacity will be considered further when we address the role of the psychiatrist in late terminations.
Child destruction provisions
Jurisdictions other than Victoria, New South Wales and South Australia have separate offences relating to ‘killing an unborn child’, ‘causing the death of a child before birth’ or ‘child destruction’ (Criminal Code (Qld), s.313; Crimes Act 1900 (ACT), s.42; Criminal Code (NT), s.170; Criminal Code (Tas), s.165; Criminal Code (WA), s.290). As these provisions are untested in the context of medical termination of pregnancy, it is not entirely clear how these offences interact with the law of abortion in each jurisdiction in which they apply.
The role of the psychiatrist in termination of pregnancy
With the legal ground clarified, we can now examine the various tasks that the psychiatrist might perform around termination of pregnancy. These tasks include:
assessment and management of the woman’s mental health;
assessment of the woman’s capacity to consent to the termination;
assessment of the impact of having a termination or not having a termination upon the woman’s mental health;
assistance in determining the lawfulness of the proposed termination possibly with the completion of a relevant report;
support of the obstetric team providing terminations.
We will examine each area in turn.
Assessment and management of the woman’s mental health
This is the task the psychiatrist will be most familiar with. A patient who is considering a termination might be referred by the obstetric service with specific concerns about her mental state. These concerns could relate to depression, suicidality, psychosis, or, more commonly, distress.
Distress can be related to both the reason for termination (for example, an unplanned pregnancy with inadequate social supports, or a diagnosis of fetal abnormality) and adjustment to the idea of termination itself. Distress is to be expected in the setting of late terminations (Iles and Gath, 1993), which require induction of labour and sometimes feticide (Bourguignon et al., 1999).
The assessment will require a formulation of the patient’s problems. Key symptoms, such as suicidality, must be assessed with usual thoroughness, even if the patient identifies termination as the key to the resolution of her suicidality. Numerous interventions may be appropriate, including providing support, enlisting social supports, treatment of mental illness and, in rare cases, admission to a psychiatric facility.
Assessment of the woman’s capacity to consent to the termination
A request for an assessment of the patient’s capacity is often part of the referral. Rightly or wrongly, non-psychiatric practitioners tend to view psychiatrists as possessing unique expertise in assessing the capacity of patients to make decisions regarding medical interventions (Powell, 1997).
By law, adults are presumed to be competent unless there is evidence, such as impaired cognition or mental illness, that suggests otherwise (Tong and van Dyke, 1994). The common law formulation for decision-making capacity provides that a person will lack capacity if he or she is unable to comprehend and retain information which is material to the decision, in particular as to the consequences of the decision or unable to use and weigh the information as part of the process of making the decision (Hunter and New England Area Health Service v A [2009] NSWSC 761 at [25] (‘Hunter’)). Routine psychiatric assessment of capacity for termination of pregnancy is unnecessary. However, a referral to psychiatry could be made if there were specific concerns about a patient’s capacity that the treating team felt unable to address.
These concerns might relate to depression or severe distress, that have both been demonstrated to hamper the conditions needed for valid consent (Steinberg, 1997) and to impact upon decisions about pregnancy outcome and obstetric interventions (Coverdale et al., 1997). Valid consent also requires the absence of coercion (Hunter [2009] NSWSC 761 at [26]). Arguably, psychiatric consultation might also be useful if there are concerns about coercion, which might be the case if the woman and her partner or family have divergent views on continuation of the pregnancy.
If mental illness is impairing the patient’s decision-making capacity, there is likely to be a sense of urgency about restoring capacity as quickly as possible. This will be particularly pertinent if the patient presents well into the pregnancy and the time it might take to restore capacity will mean consideration of late termination should she competently request an abortion. The psychiatrist must carefully balance this urgency with the need for sound clinical care, and may need to advocate for the patient in her interactions with the obstetric team.
Assessment of the impact of having or not having a termination on the woman’s mental health
Whether requested explicitly or implied, a request to assess the woman’s likelihood of psychological sequelae, with or without termination, is going to be motivated largely by a concern to fulfil the particular jurisdiction’s requirements for a lawful termination.
Superficially at least, this seems a reasonable request and a task not dissimilar from assessments requested prior to medical or surgical interventions such as organ donation or transplant. In reality though, the prediction of future mental health or illness, even by psychiatrists, is inexact to say the least. Suicide, for example, remains a rare and unpredictable outcome, even among patients who are assessed as being at high risk (Hawton, 1987; Large et al., 2011); and most stressful life events are not followed by depression or anxiety (Freeman, 1998).
Moreover, the literature around psychological outcomes after termination provides little assistance in addressing the issue. There is, for example, inadequate evidence to suggest that termination is more likely to lead to psychiatric sequelae than continuation of pregnancy (Munk-Olsen et al., 2011). It is known for early terminations that short-term distress is common but it decreases with time (Morris and Orr, 2007). For late terminations the literature suggests that psychological distress (including depression, grief and symptoms of trauma) is common, generally decreases with time, but can persist for over 12 months (Morris and Orr, 2007).
In these assessments, the risk of psychological sequelae due to termination needs to be balanced against the risk of psychological sequelae due to the alternatives; for example, a perinatal death due to fetal abnormality or the ongoing care of an unwanted child and/or a child with a disability. Again, a balanced prediction of future mental health among these contingencies seems little more than augury.
Adding to these difficulties are the possible obstacles of developing a therapeutic alliance and gauging the relevance of reported symptoms in a mandated interview where the patient is likely to have some knowledge of the legal environment.
Last, interviews of this sort have the potential to undermine the resilience of women who are not depressed or lacking capacity, when arguably the psychosocial focus should be on providing emotional support. Notably, with respect to this last concern, it is usually possible to undertake an assessment, which also provides a helpful and supportive experience to the patient.
Assistance in determining the lawfulness of the proposed termination
Despite the difficulties in predicting psychological sequelae, the law in all jurisdictions, except the Australian Capital Territory, will, in certain circumstances, require the doctor who is to perform the abortion to form an opinion that continuation of the pregnancy will pose a serious threat to the mother’s health, which might include her mental health.
In situations where a termination is being considered for mental health reasons, psychiatrists are in a good position to assist that doctor in making that judgement, and their considered, good-faith opinion will provide evidence of that doctor’s consideration of the issues involved.
Situations where a termination of pregnancy is requested for reasons of fetal abnormality can be more complex. In cases in which the health of the fetus forms a distinct ground for termination, it is unlikely that a psychiatric opinion would be central to determinations of the lawfulness or otherwise of termination (although the other facets of their role might still be appreciated by the procuring doctor). Psychiatrists, though, are likely to be consulted where a healthy woman requests a termination of an abnormal fetus in a jurisdiction in which: there is no distinct legal basis for termination on the grounds of fetal abnormality; and a prediction of harm to maternal mental health can fulfil requirements for a lawful termination. These jurisdictions include New South Wales, Queensland, Tasmania, Victoria after 24 weeks, Northern Territory between 14 and 23 weeks and New Zealand after 20 weeks.
When asked to provide a report that might have relevance to an abortion’s legality, the psychiatrist has two choices: to focus on the other aspects of the role without commenting on whether the legal requirements have been fulfilled; or to highlight the current and reasonably anticipated future psychological morbidity in a manner that will assist the doctor who will perform the abortion in coming to a decision.
The choice of approach in this type of scenario is really one that each individual psychiatrist has to make. Some psychiatrists worry that in opting for the second choice, they are providing the expedient to legally procuring a termination, but notably, in our experience, the procuring doctor rarely expects a statement demonstrating that legal requirements have been specifically addressed.
Support of the obstetric team providing terminations
Many psychiatrists will be familiar with the task of supporting a team or system. Consultation–liaison work often involves the support of medical and surgical teams involved in complex medical decisions, which are characterised by their psychological and ethical complexity and the discomfort caused to the treating team. Termination of pregnancy and late terminations in particular, can be just these kinds of decisions.
Approaching the consultation request
Psychiatrists should be familiar with the law around terminations in their jurisdiction. They should also be conversant with any relevant health department policies or guidelines and in-house guidelines if employed within a hospital.
We have checked the relevant websites and telephoned the respective health departments across Australasia. It seems that in Australia, publications are only available in New South Wales and Western Australia (Government of Western Australia, 2003, 2007; New South Wales Health Department, 2005). A non-government New Zealand website, sponsored by a charitable company (which imports mifepristone), provides an outline of the legal and healthcare framework around terminations in New Zealand (Istar Ltd, 2007). In South Australia, there is a brief outline on the Health Department website (South Australian Department of Health, 2004) and some information on the Pregnancy Advisory Centre website (Government of South Australia, 2009). We were unable to locate any relevant documents for the Australian Capital Territory, the Northern Territory, Tasmania, Queensland, or Victoria.
Before seeing the patient, psychiatrists must clarify both the reason for consideration of termination and the specific questions the referring doctor would like addressed. If there is a concern about consent, it is necessary to determine the issues that have cast doubt upon the patient’s capacity. These may include issues as varied as the cognitive abilities of someone with mental retardation, concerns about coercion by her family or the perceived legal requirements of the particular jurisdiction.
It is useful to liaise, with the patient’s consent, with any other health professionals, such as social workers, genetic counsellors or neonatologists who have been involved in the patient’s care, as they can be a rich source of information.
Often, the request for this type of consultation comes with a degree of urgency, but it is important to try to avoid the temptation to see the patient without having covered this groundwork. There will be no significant clinical difference between seeing the patient within a few hours or within 48 hours. Having adequate time, information and an appropriate location is essential if an assessment is to be valid and in any way therapeutic.
The consultation should begin with an explanation of its purpose. Many patients view a psychiatric assessment as a necessary part of the process but others are extremely perplexed by the referral to a psychiatrist.
It is appropriate to see both the woman and her partner together. However, it is wise to see them separately also, at least for part of the interview, lest there are concerns about coercion, privacy or conflict.
Often the social worker and the obstetrician or fetal medicine specialist will see the woman after the termination (or a decision not to proceed to termination) and this support will provide sufficient follow-up. However, patients with significant psychiatric morbidity might benefit from formal psychiatric follow-up.
Conscientious objection
Finally, consideration needs to be given to the right to conscientious objection. Given the lack of ethical consensus around termination itself and the acceptability of termination at different gestations, it is not surprising that some clinicians, including psychiatrists, object to being involved.
Some jurisdictions contain provisions for conscientious objection in their legislation. The Victorian Act, for example, states that such a doctor should inform the pregnant woman, who is enquiring about or requesting termination, of their conscientious objection and refer her to another doctor in the same speciality, who does not have a conscientious objection to abortion (Abortion Law Reform Act 2008 (Vic), s.8).
If local legislation does not provide specifically for conscientious objection, most ethical frameworks generally consider non-involvement justifiable in ethically contentious issues such as termination, provided the situation is not an emergency (Medical Board of Australia, 2010).
The issue of conscientious objection does not end there. Some health care groups argued that the requirement of the Victorian legislation to refer to another doctor undermined their moral integrity and professional autonomy. The practical question then arises as to how women access their desired treatment, as well as the philosophical question as to what constitutes conscientious objection. This discussion, though, is beyond the scope of this article (Hill, 2010; Wicclair, 2009).
Conclusions
The psychiatric assessment of a pregnant woman who is requesting a termination can be daunting. It requires an understanding of the relevant legislation and a framework within which the psychiatrist can understand and delineate his or her various clinical roles. It also demands an ethical lens, with which to understand the impact of one’s own views on termination, and to consider other issues such as capacity.
Late terminations, in particular, arouse anxiety in staff and institutions. It is not surprising that in this climate, the procuring doctor might not feel equipped to make an accurate mental health assessment and might therefore ask a psychiatrist to do so. This is appropriate given the expertise of psychiatrists in conducting assessments that combine complex clinical, legal and ethical factors. Nevertheless, there are potential pitfalls to be aware of, including the difficulty of predicting future mental health, the limitations of the research on psychiatric sequelae of termination, and the lack of clarity about what a danger to mental health might encompass.
Hopefully the practical guidance provided by this paper will make these assessments less daunting, more fulfilling, and better able to meet the needs of both the pregnant woman (and her partner) and the referring doctor.
Footnotes
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.
Declaration of interest
The authors report no conflicts of interest. The authors alone are responsible for the content and writing of the paper.
Legislation cited
Abortion Law Reform Act 2008 (Vic)
Abortion Law Reform Bill 2008 (Vic) – Explanatory Memorandum
Births, Deaths and Marriages Act 1998 (WA)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Births, Deaths and Marriages Registration Act 1996 (SA)
Births, Deaths and Marriages Registration Act 1996 (Vic)
Contraception, Sterilisation and Abortion Act 1997 (NZ)
Crimes (Abolition of Offence of Abortion) Act 2002 (ACT)
Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW)
Crimes Act 1961 (NZ)
Criminal Code (Medical Treatment) Amendment Act 2009 (Qld)
Criminal Code (NT)
Criminal Code (Qld)
Criminal Code (Tas)
Criminal Code (WA)
Criminal Law Consolidation Act 1935 (SA)
Health Act 1911 (WA)
Health Act 1993 (ACT)
Medical Services Act 1982 (NT)
Cases cited
CES v Superclinics Australia Pty Ltd [1995] NSWSC 103 (‘Superclinics’)
Hunter and New England Area Health Service v A [2009] NSWSC 761 (‘Hunter’)
R v Bayliss and Cullen [1986] 9 Qld Lawyer Rep 8 (‘Bayliss’)
R v Davidson [1969] VR 667 (‘Davidson’)
R v Leach and Brennan [2010] QDC (Cairns) unreported 14 October Everson DCJ
R v Sood [2006] NSWSC 1141 (‘Sood’)
R v Sood (Ruling No 3) [2006] NSWSC 762
R v Wald [1971] 3 DCR (NSW) 25 (‘Wald’)
State of Queensland v B [2008] QSC 231