Abortion Law Reform Act 2019

This Act is the Abortion Law Reform Act 2019.

This Act commences on the date of assent to this Act.

The purposes of the Act are—

to reform the law relating to terminations of pregnancies, and

Note.

Consequent on the enactment of this Act amendments were made to the Crimes Act 1900 to repeal the provisions of that Act relating to abortions and to abolish the common law offences relating to abortion.

to regulate the conduct of registered health practitioners in relation to terminations.

The Dictionary in Schedule 1 defines particular words used in this Act.

A person who is a prescribed health practitioner may perform a termination on a person who is not more than 22 weeks pregnant.

The prescribed health practitioner may perform the termination on the person only if the prescribed health practitioner has obtained informed consent to the termination from—

the person, or

if the person lacks the capacity to give informed consent to the termination, a person lawfully authorised to give consent on the person’s behalf.

However, subsection (2) does not apply if, in an emergency, it is not practicable to obtain the person’s informed consent.

In this section—

endorsed midwife means a midwife whose registration is endorsed under the Health Practitioner Regulation National Law (NSW), section 94.

prescribed health practitioner means the following—

a medical practitioner,

an endorsed midwife,

a nurse practitioner.

Nothing in this section—

permits a prescribed health practitioner to act outside the practitioner’s scope of practice, or

affects a prescribed health practitioner’s obligation to practice consistently with the practitioner’s relevant professional standards, or

affects the operation of the Poisons and Therapeutic Goods Act 1966, the Medicines, Poisons and Therapeutic Goods Act 2022 or any other law governing a prescribed health practitioner’s practice.

A specialist medical practitioner may perform a termination on a person who is more than 22 weeks pregnant if—

the specialist medical practitioner, after considering the matters mentioned in subsection (3) and any advice received under subsection (4), considers that, in all the circumstances, there are sufficient grounds for the termination to be performed, and

the specialist medical practitioner has consulted with another specialist medical practitioner who, after considering the matters mentioned in subsection (3), also considers that, in all the circumstances, there are sufficient grounds for the termination to be performed, and

the specialist medical practitioner has obtained informed consent to the termination from—

the person, or

if the person lacks the capacity to give informed consent to the termination, a person lawfully authorised to give consent on the person’s behalf, and

the termination is performed at—

a hospital controlled by a statutory health organisation, within the meaning of the Health Services Act 1997, or

an approved health facility.

To remove any doubt, subsection (1)(d) does not require that any ancillary services necessary to support the performance of a termination be carried out only at the hospital or approved health facility at which the termination is, or is to be, performed.

In considering whether a termination should be performed on a person under this section, a specialist medical practitioner must consider—

all relevant medical circumstances, and

the person’s current and future physical, psychological and social circumstances, and

the professional standards and guidelines that apply to the specialist medical practitioner in relation to the performance of the termination.

Without limiting subsection (3), the specialist medical practitioner may ask for advice about the proposed termination from a multi-disciplinary team or hospital advisory committee.

In an emergency, a medical practitioner, whether or not a specialist medical practitioner, may perform a termination on a person who is more than 22 weeks pregnant, without acting under subsections (1) and (3), if the medical practitioner considers it necessary to perform the termination to—

save the person’s life, or

save another foetus.

In this section—

ancillary services means—

tests or other medical procedures, or

the administration, prescription or supply of medication, or

another treatment or service prescribed by the regulations.

Note.

This section is intended to reflect the common law position on terminations at the time this Act was enacted, subject to the purposes and requirements of this Act.

Before performing a termination on a person under section 5, a registered health practitioner must—

assess whether or not it would be beneficial to discuss with the person accessing counselling about the proposed termination, and

if, in the registered health practitioner’s assessment, it would be beneficial and the person is interested in accessing counselling, provide all necessary information to the person about access to counselling, including publicly-funded counselling.

Before performing a termination on a person under section 6, a specialist medical practitioner must provide all necessary information to the person about access to counselling, including publicly-funded counselling.

A registered health practitioner may, in an emergency, perform a termination on a person without complying with subsection (1) or (2).

A person who is a medical practitioner, nurse, midwife, pharmacist or Aboriginal and Torres Strait Islander health practitioner, or another registered health practitioner prescribed by the regulations, may, in the practice of the person’s health profession, assist in the performance of a termination on a person by a medical practitioner or registered health practitioner.

However, subsection (1) does not apply in relation to a termination that the assisting registered health practitioner knows, or ought reasonably to know, is being performed other than as authorised under section 5 or 6.

A reference in this section to assisting in the performance of a termination includes dispensing, supplying or administering a termination drug on the instruction of the medical practitioner.

This section applies if—

a person (the first person) asks a registered health practitioner to—

perform a termination on another person, or

assist in the performance of a termination on another person, or

make a decision under section 6 whether a termination on another person should be performed, or

advise the first person about the performance of a termination on another person, and

the practitioner has a conscientious objection to the performance of the termination.

The registered health practitioner must, as soon as practicable after the first person makes the request, disclose the practitioner’s conscientious objection to the first person.

If the request by a person is for the registered health practitioner (the first practitioner) to perform a termination on the person, or to advise the person about the performance of a termination on the person, the practitioner must, without delay—

give information to the person on how to locate or contact a medical practitioner who, in the first practitioner’s reasonable belief, does not have a conscientious objection to the performance of the termination, or

transfer the person’s care to—

another registered health practitioner who, in the first practitioner’s reasonable belief, can provide the requested service and does not have a conscientious objection to the performance of the termination, or

a health service provider at which, in the first practitioner’s reasonable belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.

For the purposes of subsection (3)(a), the first practitioner is taken to have complied with the practitioner’s obligations under that paragraph if the practitioner gives the person information approved by the Secretary of the Ministry of Health for the purposes of that paragraph.

Note.

The information to be approved by the Secretary is to consist of contact details for a NSW Government service that provides information about a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations.

This section does not limit any duty owed by a registered health practitioner to provide a service in an emergency.

In considering a matter under an Act about a registered health practitioner’s professional conduct or performance, regard may be had to whether the practitioner—

performs a termination on a person other than as authorised under section 5 or 6, or

assists in the termination on a person other than as authorised under section 8, or

contravenes section 9.

The matters to which subsection (1) applies include matters arising in—

a notification under the Health Practitioner Regulation National Law (NSW), or

a complaint under the Health Care Complaints Act 1993.

This Act does not limit any duty a registered health practitioner has to comply with professional standards or guidelines that apply to health practitioners.

This section applies if a termination results in a person being born.

Nothing in this Act prevents the medical practitioner who performed the termination, or any other registered health practitioner present at the time the person is born, from exercising any duty to provide the person with medical care and treatment that is—

clinically safe, and

appropriate to the person’s medical condition.

Note.

See section 10(3), which provides that this Act does not limit a duty a registered health practitioner has to comply with professional standards or guidelines. See also section 14, which provides that the Secretary of the Ministry of Health may issue guidelines about the performance of terminations at approved health facilities and requires registered health practitioners performing terminations, or assisting in the performance of terminations, to act in accordance with the guidelines.

To avoid doubt, the duty owed by a registered health practitioner to provide medical care and treatment to a person born as a result of a termination is no different than the duty owed to provide medical care and treatment to a person born other than as a result of a termination.

Despite any other Act, a person who consents to, assists in, or performs a termination on themselves does not commit an offence.