Legislative Assembly for the ACT: 2002 Week 1 Hansard (12 December) . . Page.. 110..
MR BERRY (continuing):
In fact, the proposition that the High Court case justified legislation in relation to a woman who is considering abortion falls well short of credibility unless the case was a precursor to the legislation of information for all sorts of medical procedures, and it was not. An important feature of the case was mention of the duty of doctors to warn patients being subject to what is described as the therapeutic privilege. In other words, it seems quite clear that the High Court was expressing a view in relation to the warning of patients of risks, but at the same time recognising that doctors will and must provide information on the basis of the actual condition of the individual patient with whom they are dealing.
It follows that it is impossible to legislate a set standard of information which will suit all patients. This was highlighted when the advisory panel set up under the legislation described the inclusion of pictures of foetuses as possibly counterproductive. That a minister of the former government would then move to include images of foetuses as a requirement under the legislation demonstrates that proper information was forgotten in the pursuit of providing information which would be, on the one hand, possibly counterproductive for women forced to view it and, on the other, without any particular regard to the individuality of the person considering an abortion.
The Rogers v Whitaker decision goes to the requirement of medical practitioners to provide information to patients. I quote from that decision, for the information of members:
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to therapeutic privilege.
The second paragraph of the preamble goes to the acknowledgment of the criminal provisions of the Crimes Act which deal with abortions and related matters.
I do not need to go into great deal about the Crimes Act as I have already dealt with that in my move earlier this morning to repeal those offensive provisions in relation to abortion. I need to say, however, that the particular reference to the Crimes Act provisions is one that I find quite disturbing in that it seeks to confirm the relevance of the criminal sanctions under the provisions of that act.
As the debate developed around community disquiet and anger after the introduction of the bill, government media managers and strategists got to work to create the impression that the legislation was about providing information to women who were considering an abortion. Those of us who were there know differently. We know that the original aim, the genesis if you like, was about preventing access to abortion in the ACT and turning back the clock to the time when women were forced in their hundreds to go interstate to access the services.
So rattled was the then government and the original proponents by the angry community response that the early legislation was camouflaged to achieve similar aims by a different device, a device which had as its fundamental driver the objective of loading guilt,