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“Juries are loth to convict in such cases and appear to be impressed by the argument usually advanced by counsel for the defence that, as it was at the solicitation of the woman that the offence was convicted, she is the princ.i.p.al offender, and they adopt the view that unless she also is charged it would be unfair to convict the abortionist. The fact that if the woman was charged she could not be called as a witness, and that, without her evidence, there would be no case, does not appear to weigh with them.”
It would therefore appear that legalized exemption of the woman would not be a remedy.
The very serious statement has been made that–
“In many cases professional abortionists have the a.s.sistance of one particular doctor who attends their patients when medical skill becomes necessary. The doctor either treats the patient successfully or sends her to hospital on his own personal note, and in neither case does the ident.i.ty of the abortionist come to light.
There is reason to believe that in many such cases the a.s.sistance of the doctor is given knowingly and in collaboration with the abortionist contrary to the rule laid down in Sydney Smith’s ‘Forensic Medicine,’ 3rd edition, page 362, that ‘It is no part of a doctor’s duty to act as a detective, but it is equally certain that it is no part of his duty to act as a screen for the professional abortionist.'”
The Committee would earnestly draw the attention of the responsible medical authorities to the suggestion that there are even a few members of the profession who are prepared to “cover” the abortionist when difficulties arise.
It is quite well realized that there are many occasions on which the general pract.i.tioner quite innocently comes in contact with these cases: that is an entirely different matter.
It is a further complaint of the police that they are hampered by the fact that rarely are they notified of a case of criminal abortion until the woman’s condition is so critical that it is impossible to obtain a statement from her, and if she dies the evidence she might have given is lost. Without such evidence there is little chance of successfully prosecuting the abortionist.
To overcome this difficulty it has been advocated that, where a patient is admitted to hospital and is suspected to be suffering from the effects of criminal abortion, it should be the duty of the responsible medical officer of the hospital to notify the police forthwith and supply all the information in his possession.
This suggestion, however, involving as it does the confidential relationship between doctor and patient, is open to serious objections.
It is proposed to consider the position of the medical pract.i.tioner in relation to criminal abortion more fully in a subsequent section.
Finally, it is evident that the general public as represented by some members of juries do not regard this crime with the same seriousness as does the law.
A heavy responsibility rests on the public in allowing the present position to continue.
The Committee cannot but take a serious view of the repeatedly demonstrated difficulties in securing convictions, even in the face of apparently conclusive evidence, of persons charged with inducing abortion, and consider that the time has arrived when careful consideration should be given to the condition of the law relating to such crimes and to what steps are necessary to discourage effectively their practice. With that object in view the Committee respectfully and earnestly directs the attention of the Government to the position that has arisen, and the serious social, physical, and moral consequences which are likely to follow if effective steps are not taken to enforce the clear intention of the law.
_The Position of the Medical Pract.i.tioner in Relation to Criminal Abortion._–The duties and responsibilities of medical pract.i.tioners in connection with cases in which the performance of an illegal operation is suspected or known to have occurred are of great public importance.
Two main questions arise–(1) The duty of a doctor before the death of a patient or in a case where a fatal result is not expected, and (2) his duty in a case where the patient has died.
Concerning the first issue there are very conflicting opinions.
As already pointed out, it has been urged by the Police Department that in every case where a patient is admitted to a hospital and is suspected to be suffering from the effects of induced abortion or attempted abortion it should be the duty of the Medical Superintendent or Senior Medical Officer of the hospital to notify the police forthwith, and supply all information in his possession which would a.s.sist in establishing the ident.i.ty of the offender and bringing him to justice.
The widely accepted view of the medical profession, supported by high legal authority, is that the bond of professional secrecy as between doctor and patient is so important that it would be entirely wrong for a doctor, without the patient’s consent, to give information to the police before her death.
It has been insisted that, were it to be compulsory for the doctor to notify the police on the strength of information obtained in his professional capacity, patients would refrain from obtaining the necessary medical help under these circ.u.mstances, thus accentuating the problem of deaths from abortion rather than limiting it.
It has been stated that already in one centre a disinclination to enter hospital has been expressed by patients because they feared that the police would be informed.
It is agreed, however, that the doctor should attempt to persuade the patient, especially if her condition is serious, to make a statement to the police.
The actual legal position in New Zealand was made quite clear by the law officer of the Crown when asked by the New Zealand Obstetrical Society in 1932 for an opinion.
This opinion, as published in the _New Zealand Medical Journal_ (Obstetrical Section), 29th October, 1932, was as follows:–
“A doctor is under no legal obligation to inform the police as to the cause of the illness of a person which has been due to an illegal operation, either in a case where the patient recovers or in a case where the patient dies. He is, of course, under an obligation to insert in the certificate of death which he furnishes under the Births and Deaths Registration Act, 1924, the cause of death, both primary and secondary. In that certificate, where the death was the consequence of an illegal operation, he should insert the nature of the operation as the primary cause of death. He need not, of course, describe it as an illegal operation, but he would describe the type of operation and the reason why such operation was the primary cause of death–_e.g._, owing to incompetence or ignorance, if that be the case.
“In giving this ruling I am, of course, referring merely to the legal obligation–_i.e._, the duties imposed according to law.
Speaking generally, there is a moral duty on every person having knowledge of a serious crime which is an offence against morality as well as against law, to a.s.sist the police as far as possible in its detection and suppression. The confidence of a patient may be a legitimate ground for excluding that duty in some, or even in most, of the cases of this kind. But no doubt there are certain cases where the duty is clear. Instances are the case of a young and inexperienced woman who has reluctantly submitted to the operation at the hands of a person who is known as a practised abortionist, or where the operation has been done by violence and against the will of the subject. These, however, are questions of morality upon which varying opinions may be held, and upon which I do not desire to be taken as expressing a final opinion.”
This legal opinion has not been challenged, though it has been criticised.
Although the Committee appreciates the difficulties under which the police are working, the evidence of other witnesses has led them to agree that any extension in the direction of compulsory notification to the police before death, and against the patient’s wish, is open to serious objections and is therefore not advisable.
Regarding the second issue, there is general agreement that there is a duty on the doctor to a.s.sist the police, and that this should be done by withholding a certificate of death and informing the Coroner.
The position has been more clearly defined as a result of a recent amendment to section 41 of the Births and Deaths Registration Act, as contained in section 12 of the Statutes Amendment Act, 1936:–
“12. (1) On the death of any person who has been attended during his last illness by a registered medical pract.i.tioner, that pract.i.tioner shall forthwith sign and deliver to the Registrar of the district in which the death occurred a certificate, on the printed form to be supplied for that purpose by the Registrar-General, stating to the best of his knowledge and belief the causes of death, both primary and secondary, the duration of the last illness of the deceased, the date on which he last saw the deceased alive, and such other particulars as may be required by the Registrar-General, and the particulars stated therein shall be entered in the register together with the name of the certifying medical pract.i.tioner.
“(2) The medical pract.i.tioner shall at the same time sign and deliver to the undertaker or other person having charge of the burial a notice on the printed form to be supplied for that purpose by the Registrar-General to the effect that he has furnished a certificate under the last preceding subsection to the Registrar.
“(3) In any case where, in the opinion of the medical pract.i.tioner, the death has occurred under any circ.u.mstances of suspicion, the pract.i.tioner shall forthwith report the case to the Coroner.
“(4) Every medical pract.i.tioner required to give a certificate and a notice as aforesaid, or to report to the Coroner as provided by the last preceding subsection, who refuses or neglects to do so is liable to a fine not exceeding five pounds.”
Recently a consultation on this matter was held between the Minister of Health and members of the Council of the New Zealand Branch of the British Medical a.s.sociation.
The a.s.sociation expressed the opinion that the resolutions of the Royal College of Physicians (England), which were laid down as a result of a similar controversy in Great Britain, const.i.tuted the most satisfactory guide in these difficult and responsible situations, and informed the Minister that steps would be taken to make the position clear to all its members. The resolutions are as follows:–
“The College is of opinion–
“1. That a moral obligation rests upon every medical pract.i.tioner to respect the confidence of his patient; and that without her consent he is not justified in disclosing information obtained in the course of his professional attendance on her.
“2. That every medical pract.i.tioner who is convinced that criminal abortion has been practised on his patient should urge her, especially when she is likely to die, to make a statement which may be taken as evidence against the person who has performed the operation, provided always that her chances of recovery are not thereby prejudiced.
“3. That in the event of her refusal to make such a statement he is under no legal obligation (so the college is advised) to take further action, but he should continue to attend the patient to the best of his ability.
“4. That before taking any action which may lead to legal proceedings, a medical pract.i.tioner will be wise to obtain the best medical and legal advice available, both to ensure that the patient’s statement may have value as legal evidence and to safeguard his own interest since in the present state of the law there is no certainty that he will be protected against subsequent litigation.
“5. That if the patient should die he should refuse to give a certificate of the cause of death, and should communicate with the Coroner.
“The college has been advised to the following effect:–
“1. That the medical pract.i.tioner is under no legal obligation either to urge the patient to make a statement, or, if she refuses to do so, to take any further action.
“2. That when a patient who is dangerously ill consents to give evidence, her statement may be taken in any of the following ways.”
[The procedure employed in taking this statement is then specified.]
The Committee is also of the opinion that if the medical profession closely follows this guidance and that of the amended section 41 of the Births and Deaths Registration Act, the public interests will best be served.
SUMMARY AND CONCLUSIONS.