MINISTER FOR HEALTH

MEDICAL SERVICES AMENDMENTMENT BILL 2006

SERIAL NO. 70

GENERAL OUTLINE

The reform of the Criminal Code provides an opportunity for the provisions relating to medical termination of pregnancy to be removed from criminal legislation, and placed into health legislation.  The purpose of the Bill is to place the substance of section 174 of the Criminal Code in the Medical Services Act, clarify the provision by more structured drafting, and remove the requirement for an obstetrician/gynaecologist to perform medical terminations.

The Medical Services Amendment Bill contains the redrafted section 174 of the Criminal Code. That section provides for lawful termination of pregnancy procedures to be carried out in a hospital.  It sets the standards of care required for the medical procedures involving termination of pregnancy. In recognition of modern medical practice, it also amends the existing section by removing a requirement for a specialist obstetrician or gynaecologist to perform this procedure.

NOTES ON CLAUSES

PART 1		PRELIMINARY MATTERS

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Medical Services Amendment Act 2006.

Clause 2.	Commencement

This clause explains that this Act will commence immediately after commencement of the Criminal Reform Amendment Act (No. 2) 2006.  

Clause 3.	Act amended

This clause states that the Act amends the Medical Services Act.

Clause 4.	New section 11

This clause inserts a new section 11 into the Medical Services Act.

Subclause (1) 
This subclause provides for lawful termination of pregnancy in 
non-emergency circumstances.  It allows a medical practitioner, after examining a woman and reasonably believing her to be not more than 14 weeks pregnant, to perform provide medical treatment intending to procure a miscarriage, where the practitioner and another medical practitioner are of the opinion that the continuance of the pregnancy would involve greater risk of injury to the woman, physical or mental, than if the pregnancy were terminated, or there is a substantial risk that the child may be born seriously handicapped.  The practitioner must obtain the consent of the appropriate person to carry out the treatment, and it must be undertaken in a hospital, within the first 14 weeks of pregnancy.  

Subclause (2)
This subclause requires that, where reasonably practicable, at least one of the two medical practitioners required to provide an opinion in relation to the need for a medical termination within the first 14 weeks of pregnancy must be that of a gynecologist or obstetrician.  In any case, there is still a requirement for two medical practitioners to be of the opinion that in all the circumstances set out in clause (1) the medical termination is necessary.  

Subclause (3) 
This subclause sets out the circumstances where it is lawful for a medical practitioner to provide emergency treatment intending it to procure the miscarriage of a woman who is not more than 23 weeks pregnant, where the medical practitioner is of the opinion that the termination of the pregnancy is immediately necessary to prevent serious harm occurring to the woman’s physical or mental health, then with the appropriate consent, the practitioner may give medical treatment to terminate the pregnancy.

Subclause (4) 
This sub-clause provides that it is lawful for a medical practitioner to give medical treatment intending it to procure a miscarriage of a woman, if the treatment is given in good faith for the purpose only of preserving her life. 

Subclause (4)
This sub-clause sets out the requirements for consent.  Where a woman is at least 16 years of age and capable in law of consenting to a medical treatment, the woman’s consent is the appropriate consent.  Where the woman is under 16 years of age, the consent of both parents, or legal guardian is required.  If a woman is over 16 but incapable in law of giving consent, then the practitioner must obtain consent from a legal guardian.

Subclause (5)
This sub-clause makes it clear that there is no duty for any person to procure or assist in medical termination, or associated procedures.

Subclause (6)
This subclause requires that medical practitioners carrying out the treatment for medical termination are required to act with professional care and according to law.  

Subclause (7) provides definitions of “medical treatment” to include surgery, and “woman” to include any female.