Right to Life New Zealand Inc. v. Abortion Supervisory Committee

This case is an appeal from the Court of Appeal’s decision of [2011] NZCA 246. 

Under the Contraception, Sterlisation and Abortion Act 1997 (the Act), a woman in New Zealand is eligible for an abortion if two certifying consultants agree the pregnancy will seriously harm that woman’s physical or mental health.  The Abortion Supervisory Committee (the Committee) is responsible for keeping under review the operation and effect of the Act’s abortion provisions, and it must do what is reasonable and practicable to ensure the consistent administration of abortion law throughout New Zealand.  To fulfil its responsibilities, the Committee may make general inquiries with consultants about their decision-making process when authorising or refusing abortions.

The appellant, the Right to Life New Zealand Inc (ROLNZ) argued that the Committee had misinterpreted its statutory powers by believing it had no authority to investigate or inquire into a consultant’s decision in any individual case.  ROLNZ asserted that such an inquiry is necessary for the Committee to ascertain whether consultants are authorising abortions too liberally and in contravention of the Act.

The majority of the Court found that the Committee must not inquire into or investigate a consultant’s decision in an individual case where such an inquiry would tend to question a decision that was actually made in a particular case. Rather, the Committee’s powers of inquiry were limited to asking a consultant how he or she approached the decision-making process generally, e.g. over the whole of the consultant’s workload.

The Court reasoned that if the Committee was empowered to inquire into the individual decisions of consultations, the Committee would essentially be reviewing the consultant’s medical judgments. Such a review would be beyond the expertise of the Committee and contrary to the Act, which provides that the question of whether an abortion should take place is a medical judgment to be made exclusively by medical practitioners. Moreover, the Committee does not have powers under the Act to access the patient’s medical record or personal information and therefore could not properly review a consultant’s decision.

“[40] … Individual decisions are a matter of medical judgment and expertise in the particular case and not to be questioned, whether before or after the decision has been acted on. Moreover, as counsel for the Committee submitted, it would usually not be possible to reach a properly informed judgment on an individual decision without full access to the medical records (that not being within the power of the Committee as explained in the next para) and also full access to the patient whose identity and confidentiality the Act sets out to protect. Such an investigation would ordinarily require the Committee to look into the propriety of a consultant’s assessment in a particular case. That is not the function of the Committee under the Act, nor does it have conferred on it the full range of powers which it would need to be able to exercise for the purpose, such as the ability to call participants before it to question them.”

“[41] … Significantly, the Committee has no power to call for submission of case records, even in an anonymised form.  If it were intended to permit the Committee to seek a report about the diagnosis made or the conclusion reached in a particular case, one would expect to find that expressly spelled out, along with appropriate safeguards for the position of the consultant whose clinical judgment was under investigation.”

“[45] As we have said, the Committee can made generalized inquiries, including the seeking of information from consultants about how they are undertaking, across their caseload, under the Act the making of diagnoses of the mental health of women presenting for abortion authorizations. The Committee could, for example, ask about the use of particular diagnostic criteria or techniques by a consultant across the run of his or her caseload.  If such generalized inquiries were to reveal matters which led the Committee to believe that a consultant held views on abortion, which are incompatible with the tenor of the Act, it could be expected to consider whether to renew his or her appointment and, in an extreme case, it might well think it appropriate to exercise its discretion to make an immediate revocation of an existing appointment.”