This information is for health practitioners and services that provide termination of pregnancy.
What changes are being made to Queensland’s termination of pregnancy laws?
The Termination of Pregnancy Act 2018 ('the Act'):
- modernises Queensland’s termination of pregnancy laws.
- ensures women have reasonable and safe access to terminations of pregnancy.
- regulates the conduct of registered health practitioners in relation to terminations.
Key provisions within the Act include:
- Offences in sections 224, 225 and 226 of the Criminal Code have been repealed.
- Registered medical practitioners may perform a lawful termination of pregnancy on request up to a gestational limit of 22 weeks.
- For a woman who is more than 22 weeks pregnant, a termination may be performed by a medical practitioner if at least 2 medical practitioners consider that, in all the circumstances, the termination should be performed.
- A medical practitioner, nurse, midwife, pharmacist, or Aboriginal and Torres Strait Islander health practitioner may assist in a termination within their scope of practice.
- Where a health practitioner conscientiously objects to termination of pregnancy, they must disclose their objection and refer the woman on to a health practitioner or service who they believe can provide the requested service and does not hold a conscientious objection.
- Safe access zones are established around premises that provide terminations of pregnancy to protect the safety and wellbeing and respect the privacy and dignity of women, staff and others who need to access the premises.
Will decriminalising termination of pregnancy lead to more terminations being performed?
The majority—approximately 95%—of surgical terminations of pregnancy occur in the private and non-government sector in licensed day procedure clinics or private hospitals. This is expected to continue.
Some healthcare facilities may provide a limited number of appointments for terminations. Priority appointments for terminations will be given to women with complex health care needs and no ability to have a termination in the private sector where most terminations are performed.
Evidence from other Australian jurisdictions and internationally suggests the number of terminations of pregnancy being performed is unlikely to increase.
Under what circumstances is a termination of pregnancy allowed to be performed?
A woman may request a termination, for any reason, without disclosing the reason to the doctor, up to a gestational limit of 22 weeks.
For a woman who is more than 22 weeks pregnant, a termination may be performed by a medical practitioner if they consider that in all the circumstances, the termination should be performed and they have consulted with another medical practitioner who also considers that, in all the circumstances, the termination should be performed.
Both medical practitioners must consider:
- All relevant medical circumstances.
- The woman’s current and future physical, psychological and social circumstances.
- The professional standards and guidelines that apply to the practitioner in relation to the performance of the termination.
Why is the gestational limit set at 22 weeks?
The gestational limit is set at 22 weeks because:
- 22 weeks represents the stage immediately before the ‘threshold of viability’ under current clinical practice.
- The limit is consistent with the Department of Health’s Clinical Services Capability Framework, which requires terminations after 22 weeks to be referred to hospitals.
- Foetal anomalies are usually diagnosed at the 18–20 weeks morphology scan. Additional testing may be required at times and the results may take days or even weeks.
What is conscientious objection?
Conscientious objection occurs when a registered health practitioner refuses to perform, or assist in, a lawful treatment or procedure because it conflicts with his or her own personal beliefs, values or moral concerns.
What are the requirements for conscientious objection?
The Act recognises that health practitioners have and may exercise the right to freedom of thought, conscience and religion, and seeks to balance this against the rights of a woman—particularly the right to health including reproductive health and autonomy.
Conscientious objection applies to registered healthcare practitioners who may be required to participate in a termination of pregnancy procedure. For example, medical practitioners, anaesthetists, nurses, midwives, pharmacists, or Aboriginal and Torres Strait Islander health practitioners.
The conscientious objection provision does not extend to administrative, managerial or other tasks ancillary to the provision of termination healthcare; or to hospitals, institutions or services. Conscientious objection only applies to individual health practitioners working in a facility, not to whole facilities.
The conscientious objection provision does not limit any duty owed by the registered health practitioner to provide a service (including performing or assisting in performing a termination) in an emergency.
How will the conscientious objection requirements operate?
The requirements will apply to registered health practitioners asked to:
- perform or assist in the performance of a termination of pregnancy
- decide if a termination of pregnancy should be performed after 22 weeks; or
- provide advice on the performance of a termination of pregnancy.
If the request is from a woman asking the health practitioner to perform, or advise on, the performance of a termination, the practitioner must refer the woman or transfer her care to another health practitioner or health service provider who, in the first practitioner’s belief, can provide the service and does not hold a conscientious objection.
This obligation is consistent with codes of conduct and guidelines for health practitioners and with the Queensland clinical guideline.
Registered health practitioners requested to advise on a termination of pregnancy are bound by this obligation even if they are not qualified to perform or assist. For example, a psychologist asked to advice on a termination would be bound by the requirement to inform and refer.
What is the penalty for non-compliance with the conscientious objection provisions?
The same professional and legal consequences that apply to health practitioners performing other medical procedures will apply to the performance of a termination.
Non-compliance with the conscientious objection provision may result in a complaint to the Office of the Health Ombudsman (OHO) by the woman and/or or any other person, such as a family member. The OHO will assess the complaint and decide if a matter requires further action. This will apply where, for example, a practitioner fails to advise the patient that they have a conscientious objection, or where a practitioner fails to follow the process for a termination of pregnancy after 22 weeks.
The action taken will vary depending on the facts and circumstances of each individual case including the nature and extent of the harm caused to the patient. Possible outcomes could include a caution or reprimand, an undertaking from the practitioner to comply with the law in the future or conditions on their registration such as completing training or working under supervision.
Note: Conscientious objection does not apply where a medical practitioner makes a decision not to perform a termination of pregnancy after 22 weeks based on their clinical judgement.
Who may perform, and who may assist in performing a termination?
A registered medical practitioner may perform a lawful surgical or medical termination of pregnancy on a woman in accordance with the legislation.
A registered medical practitioner, nurse, midwife, pharmacist, or Aboriginal and Torres Strait Islander health practitioner may assist in a termination within their scope of practice.
Aboriginal and Torres Strait Islander health practitioners may assist in providing culturally safe and appropriate advice and support to Aboriginal and Torres Strait Islander women in rural and remote areas.
Why were safe access zones established for termination of pregnancy services premises?
The Act establishes safe access zones around premises that provide terminations to protect the safety and wellbeing and respect the privacy and dignity of women, staff and others who need to access the premises.
What type of conduct is prohibited in a safe access zone?
It is an offence to engage in prohibited conduct inside a safe access zone. What constitutes prohibited conduct is a question of fact and will be determined depending on the circumstances of each case.
Any person who engages in prohibited conduct relating to terminations within this zone can receive a maximum penalty of 20 penalty units or 1-year imprisonment.
What requirements are included in the legislation regarding consent?
Informed consent is required for all medical treatments including termination of pregnancy.
Adults with impaired capacity
Termination of pregnancy for an adult with impaired capacity is a special health care matter under the Guardianship and Administration Act 2000. The Act amends the Guardianship and Administration Act. For an adult who does not have the capacity to consent to medical treatment, termination of pregnancy decisions are required to be consented to by the Queensland Civil and Administrative Tribunal. The Supreme Court of Queensland, exercising its parens patriae jurisdiction, may also authorise a termination in such circumstances.
Most minors, around the age of 14 and above, can consider the implications of health decisions. This is known as 'Gillick competence'.
Minors can consent to medical treatment, such as termination of pregnancy, if they have the capacity to do so.
For a young person who does not have capacity to consent to medical treatment, only the Supreme Court may authorise the termination of pregnancy. A parent/guardian cannot give consent.
Will all women, particularly those who reside in regional, rural and remote areas of Queensland, have access to safe termination of pregnancy services?
Hospital and Health Services (HHSs) have developed implementation plans in partnership with local agencies (where fitting) addressing appropriate pathways for access to termination of pregnancy services with a focus on women who face significant barrier to access due to economic, geographic or social circumstances.
Where appropriate, HHSs are progressing a relationship with local private and not-for-profit providers and pregnancy advisory services to facilitate access to medical and surgical termination of pregnancy services.
The Patient Travel Subsidy Scheme (PTSS) provides financial assistance to eligible patients who are required to travel for specialist health services not available locally. For the purposes of termination of pregnancy, the procedure will be managed under Schedule 1 of the Guidelines – Obstetrics and Gynaecology (even if the pathway is through a sexual health clinic).
How is data collected on termination of pregnancy?
Termination of pregnancy data is collected through 2 sources:
- Perinatal Data Collection (PDC)
- Queensland Hospital Admitted Patient Data Collection (QHAPDC).
Does a termination of pregnancy stillbirth/neonatal death have to be reported in RiskMan?
Section 29 (3), of the Hospital and Health Boards Regulation 2012 does not require ALL stillbirths to be reported in RiskMan.
The act of termination (medical or surgical) is a deliberate one. That is, it is an intended act, therefore, not required to be reported in RiskMan.
Only those stillbirths that are considered clinical incidents as defined in the Best practice guide to clinical incident management, i.e. where the stillbirth was not reasonably expected as an outcome of healthcare) must be reported to the Department of Health through the clinical incident management system.
Are there any changes to the Births, Deaths and Marriages Registration Act?
There have been no amendments to the Births, Deaths and Marriages Registration Act 2003 (BDMR Act) because of the Act.