Ruling to shift abortions interstate

QUEENSLAND women facing medical abortions will have to go interstate because the state's biggest hospital has scrapped its service.

QUEENSLAND women facing the trauma of a medical abortion will have to cross the border for the procedure because the state's biggest hospital has scrapped its service, forcing the state government to review its controversial laws on abortion.

The move by Royal Brisbane Women's Hospital was made on the basis of advice from the Queensland Solicitor-General, sought after the prosecution in Cairns of a couple for illegally procuring a drug-induced abortion.

Separately, the hospital wanted to clarify a ruling by a Supreme Court judge suggesting that doctors were at risk of committing a criminal offence for performing medical abortions.

Queensland Deputy Premier Paul Lucas last night said the government was now looking at legislative changes on abortion "with a view to clarifying the law generally, not to increase or decrease the number of terminations in Queensland".

This represents an important shift in the government's position, coming only a day after Premier Anna Bligh insisted that she had no plans for abortion law reform.

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists revealed yesterday it had independent legal advice backing the Royal Brisbane Women's Hospital position, and urged the state government to repeal controversial sections of the Queensland criminal code at the centre of uncertainty over the abortion law.

Sources familiar with the hospital's obstetrics service said about 80 medical abortions were performed annually, mainly using the drug misoprostol. Mostly, these were for pregnancies involving severe birth defects.

The hospital suspended its medical abortion program on Wednesday after senior medical staff were briefed on the legal advice from the Office of the Queensland Solicitor-General.

In a move that will revive memories of the Bjelke-Petersen era, when Queensland women seeking abortions routinely crossed the border at Tweed Heads to be treated, a senior source at the hospital said patients would be referred interstate, most likely to NSW.

It was not clear last night whether the NSW government had been consulted.

"They will continue to be looked after, but what we will have to do is send them down to somewhere else, probably in NSW," the hospital source told The Australian.

"We won't leave them with no one and no referral. We will make sure they are referred somewhere, it just won't be here."

The hospital's decision follows that of obstetrician Caroline de Costa to suspend her pioneering program in Cairns using the abortion pill RU486 over the filing of criminal charges in March against 19-year-old Tegan Simone Leach and her boyfriend, Sergie Brennan, for allegedly procuring an abortion using illegally imported RU486 and misoprostol, the drug featured in the legal advice to the RBWH.

In Queensland, public hospitals use misoprostol in so-called "therapeutic" abortions for women who suffer health complications that would make giving birth life-threatening, or who are found to be carrying a severely deformed fetus. Those seeking an elective abortion are generally referred to the limited number of private clinics operating in Brisbane and some regional centres.

Last September, Queensland Supreme Court judge Margaret Wilson ordered doctors in an undisclosed public hospital to perform an abortion on a 12-year-old girl using misoprostol. The child was 18 weeks pregnant.

In her ruling, Justice Wilson addressed the complicated legal situation that allows women to access abortion services when the procedure is explicitly banned by state criminal law. Like NSW, Queensland is one of the few states to retain criminal sanctions against abortion.

Crucially, section 282 of the Queensland Criminal Code allows doctors to lawfully perform a "surgical" abortion to preserve the life of the mother, and a court in a 1986 decision interpreted this provision broadly to create a central plank of the case law on abortion.

But Justice Wilson found section 282 did not apply in the girl's case because there were "sound medical reasons for not performing a surgical procedure".

The ruling, coupled with the prosecution in Cairns, prompted doctors in RBWH's busy obstetrics unit to have the hospital clarify its legal position.

"Up until recently, we felt we were being lawful ... because we relied on section 282 of the Criminal Code," the source said.

"But that protection seemed to be drawn into question by the judgment last September.

"We always felt we could use medical and surgical (means) together lawfully, and we didn't have to be literal about it. But recent events made us feel that it was no longer safe to assume that a surgical procedure is the same as a medical procedure."

Mr Lucas, in a statement to The Australian, said Queensland Health was speaking with RBWH obstetricians and gynaecologists "urgently to clarify any concerns they might have".

He said the government was also seeking to clarify the position with section 282. "I am not aware of any investigation or prosecution being contemplated against any Queensland Health doctors," he said.

"Section 282 of the Criminal Code provides a defence for medical practitioners performing any surgical procedures performed with care and skill.

"It does not make specifically clear that medical procedures performed with care and skill are similarly treated. The government is currently examining clarification of this provision.

"This would impact on medical treatment generally.

"Section 282 of the Criminal Code does not refer to abortion.

"Any legislative change would be considered with a view to clarifying the law generally, not to increase or decrease the number of terminations in Queensland."

The national president of the College of Obstetricians and Gynaecologists, Ted Weaver, last week advised doctors performing abortions in Queensland they "may be at risk under law of committing a criminal offence".

This was especially, but not exclusively, the case with those offering medical terminations using RU486.

Dr Weaver said a colleague of Professor de Costa had obtained legal advice from his indemnity insurer that, in the event of a criminal charge being filed over use of that drug, the insurance cover might not apply.

"Whether you continue to provide these services or not is a matter for your individual judgment," he wrote. "However, I do think as practising fellows (of the college) you need to be aware of these legal opinions, and of the potential publicity and scrutiny that will be given to termination of pregnancy services with this impending court case in Cairns."

Dr Weaver said last night the college had asked the Queensland Attorney-General, Cameron Dick, to provide written advice backing his verbal assertion that there was "no problem" for the continued operation of abortion services in Queensland.

"Mr Dick hasn't provided that advice to us in writing and we haven't had any certainty from the Queensland government that we would be immune from prosecution," he told The Australian.