Legislative Assembly for the ACT: 1999 Week 9 Hansard (2 September) . . Page.. 2830 ..
MR OSBORNE (continuing):
Nevertheless, I think that the fact that the word "may" is in the legislation is irrelevant. It is irrelevant because we have moved away from the issue of whether abortion is accessible or not and we have moved away from whether some of us in this place think that people should have access or not. That fight was fought and lost or won by people last year. I was not able to implement what I wanted in relation to abortion. People still have access to abortion. It then got down to how much information was supplied. That, I think, is what was negotiated last year. I took my guidance on what information should be supplied not from Mr Humphries, not from Mr Moore, not from Mr Berry, not from the Catholic Church, not from the Right to Life Association, not from the Family Planning Clinic, but from the High Court of Australia - yes, that pro-life institution, that institution that is controlled by the Catholic Church.
We discussed this matter in the debate last year. We discussed the 1992 High Court ruling in the case of Rogers v. Whittaker. The decision that was handed down said that, to consent to any medical procedure, the patient must be fully informed. Let me read further. The joint ruling stated that a doctor has a duty to warn a patient of all risks inherent in the proposed treatment. In commenting on Rogers v. Whittaker, Mason CJ said:
There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill.
However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession...no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.
In Breen v. Williams in 1997, Justices McHugh and Gaudron jointly ruled:
Rogers v. Whittaker took away from the medical profession in this country the right to determine, in proceedings for negligence, what amounts to acceptable medical standards.
Both justices were Labor appointees, and Mary Gaudron is the only woman on the High Court. Chappell v. Hart in 1998 and Naxakis v. Western General Hospital in 1999 both supported the Rogers v. Whittaker ruling.
In 1993 a checklist of guidelines for informed consent was prepared by the National Health and Medical Research Council, including the following: