Termination of pregnancy: Two decisions

Amendment: The entry below refers to the primary decision in DXI, however there was an appeal giving rise to a different outcome:  Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624.


DXI [2016] NSWCATGD 4 saw an application by an obstetrician for consent to special medical treatment, being the termination of pregnancy of a 19 year old Aboriginal woman who suffered an intellectual disability.

The applicant doctor said that DXI was at risk of eclamptic seizures, cerebral haemorrhage or a stroke if her pregnancy was not terminated. The doctor also said that DXI’s intellectual disability prevented her clinicians from being able to assess whether she fully understood the implications of her medical illness, and why her pregnancy should not continue. According to Dr SDP, Miss DXI would not consent to the termination of her pregnancy unless this was immediately life-threatening.

The court dismissed the application at [83], saying:

The Tribunal dismissed the application lodged by Dr SDP in which he requested the Tribunal to consent to special medical treatment, being the termination of Miss DXI’s pregnancy. The Tribunal was not satisfied that Miss DXI is incapable of understanding the general nature and the effect of the proposed treatment. Accordingly, the Tribunal could not be satisfied that Miss DXI is a person to whom Part 5 of the Guardianship Act applied, and hence the Tribunal lacked the jurisdiction to make the order sought in these proceedings.

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