Legal Immunity for Certifying Consultants Under NZ Law

Early in 1982, a hospital doctor, discovering that one of his patients was to have an abortion, and knowing that there was no medical justification, went to Court to challenge the authorisation.
  • He testified that as there was no medical or legal criteria that applied, the certificates had been issued in 'bad faith.'
  • Justice Speight stated that it amounted to a difference of clinical opinion and refused to allow the remedy.
  • The abortion was carried out.
  • Dr Wall decided to appeal against the decision.
  • A complaint was laid against Dr Wall's actions with the Medical Practitioner's disciplinary Committee and they found him guilty.
  • The Court of Appeal dismissed the case, leaving no legal standing for the unborn child, and immunity for certifying consultants.
In the dying days of 1981, a fifteen-year-old was admitted to Taranaki Base Hospital in New Plymouth. She had been referred there with symptoms of recent origin together with a background history of a heart murmur. The doctor attending her found the heart murmur had no medical significance but he did find something else. Tests confirmed that his patient was expecting a baby.

The doctor discussed his finding with the young girl. She accepted the situation and told him she intended to place her baby for adoption. She explained that she was not ready to take on the responsibilities of motherhood and wanted to finish her schooling. She told the doctor there were many couples able to love and adopt her baby.

When he asked if she had or would consider an abortion, she told him that this would be “killing the baby” which she would not consider.

When her parents were told about the pregnancy, they were upset but they accepted the situation along with the offer of support which the doctor told them was available. The girl was discharged from hospital on the understanding that there would be a follow-up from the doctor as well as from the hospital’s social worker.

Within days a request was made on behalf of the young girl, through the family doctor, for a referral to two certifying consultants. Following a brief interview with the consultants, the abortion was authorised. Certificates were issued on the grounds that the young girl had a serious danger to her mental health.1

The Issue

When the hospital doctor who had attended the young girl realised what had happened, he felt that he could not let the matter pass. He believed there was no medical jusitifcation for taking the life of this patient’s unborn child and he was also concerned about the wellbeing of the girl. From his detailed assessment, he believed her interests would be jeopardised if she were to go ahead with this abortion.

He believed there was no medical jusitifcation for taking the life of this patient’s unborn child and he was also concerned about the wellbeing of the girl.
The doctor realised that the only way he would be able to stop the abortion proceeding would be through the courts where certificates authorising abortion could be challenged. This raised a dilemma for him because there were a number of matters to be considered.

The first of these considerations related to the medical profession’s traditional ethical code. This code expressly stated, “I will respect the secrets which are confided in me” and it also stated, “I will maintain the utmost respect for human life from the time of conception; even under threat, I will not use my medical knowledge contrary to the laws of humanity.”

Melvyn Wall knew these principles were the cornerstone of ethical practice and were the very basis of the trust and respect accorded his profession. He could see that in this particular case he could not honour one of these principles without dishonouring the other. He had to decide which principle carried the greatest weight.

He was concerned that the young girl’s name should not be revealed to the public. A victim of circumstances already, Dr Wall believed it would be untenable that she be subjected to public scrutiny. He concluded however, there were sufficient safeguards against this possibility, including the fact that she was a minor and her name would automatically be suppressed.

The other matter he had to take into consideration was that he could lay himself open to charges of professional misconduct if he were to give details about his patient to the court. He could be charged, he could be penalised and he could not ignore the possibility of deregistration by the Medical Council. To some extent his decision was determined by his background.

The Doctor
By the time he was eight or nine, Melvyn Wall had already decided he wanted to be a doctor.
Six months before the Second World War ended, Melvyn Wall was born in a nursing home near London. He was the second of five children. His father was the well-known English comedian Max Wall. His mother, Marian Polacheck, had been a well-known prima ballerina before her marriage. She came from an aristocratic Jewish family in Hungary. Many members of her family had fled their homes in Hungary to live in the United States. By the time he was eight or nine, Melvyn Wall had already decided he wanted to be a doctor.

By the time he was twelve, his parents were divorced and his mother was faced with the financial difficulties in trying to bring up five children alone. At seventeen he left the Queen Elizabeth Grammar School in Barnet, near Hertfordshire. He started work as an insurance clerk and then by turns was a dish washer, a van driver for a florist, a general orderly in a hospital and finally a technician in a pharmaceutical company. But he had not given up his intention of becoming a doctor and he kept on studying towards that objective.

In 1966 he won a scholarship to study medicine at a Commonwealth university. Each year three such scholarships were awarded by the Draper’s Company, one of the old Guild’s of London. In 1967 Melvyn Wall enrolled at the University of Western Australia in Perth where six years later he graduated as a Bachelor of Medicine and Surgery. This was followed by specialist training in Australia, New Zealand and Ireland for a Fellowship of the Royal Australasian College of Physicians. By January 1980, he had been appointed as a paediatrician at Taranaki Base Hospital in New Plymouth.
He was to comment that every Jew is intimately touched by the Holocaust.

In his final year at medical school in Perth, Melvyn met a young Catholic girl called Jenny Meehan. Three months later they were married and so another strand in his life had been put into place. He was to discover that Jews and Catholics had a great deal in common especially as he was to say, “in coming down to those issues of the sanctity of life and the sanctity of the family.”

The Case
In an affidavit he alleged that the certificates had been issued by the certifying consultants in “bad faith”.
The course Melvyn Wall would follow in those early days of 1982 had largely been determined by this background. On 7 January 1982, a motion was filed in the High Court seeking an order that the abortion certificate issued on behalf of the young girl who had been his patient, should be suspended thus preventing the performance of the abortion.

In an affidavit he alleged that there was absolutely no medical or legal criteria upon which the abortion could be authorised and that the certificates had been issued by the certifying consultants in “bad faith”. That same day in a closed court, Mr Justice Bisson made an ex-parte order restraining the performance of the abortion pending a more considered judgement on the substantive questions to be properly argued.

On 19 January, the case of Wall v Livingston and Roborgh came before the High Court in Auckland. On the bench was Mr Justice Speight. In an oral judgement handed down that day, the Judge said of Dr Wall, “I say at once that he is obviously a man of good standing, not to be categorised as an interfering bystander. But apart from his position of superior knowledge of fact and medical procedure, he is in the position of a member of the public . . . he does not have locus standi. Nor in my view could it be advanced that the unborn child has standing. For certain purposes the unborn child has contingent rights in property and similar matters, but...
"...from the procedural point of view the child has no standing..."

"We are considering more fundamental matters...the continuation of life or its termination. It is a difficult concept to say as I do, that the unborn child has rights, which in the concept of the preamble to the Act and Section 182 et seq. of the Crimes Act 1961, must be the right to life, and yet from the procedural point of view say that the child has no standing i.e. that no voice can be heard arguing for that right.” 2

Mr Justice Speight went on to say, “This is novel territory and in my view Parliament has grappled with an acute social and moral problem by enacting a comprehensive code legislating on all matters. It has been recognised, after litigation and commission’s of enquiry, over a period of years, that there are circumstances where termination of pregnancy may be required, and it has been enacted that an objective assessment is called for based on (a) medical assessment, and (b) practical urgency. It is implicit in the necessary consideration of the criteria that the right of the unborn child is at the forefront of clinical consideration — there is presumption in its favour. This novel forum has been created for a crucial assessment.”3

In considering the provisions of the Contraception Sterilisation & Abortion (CS&A) Act Justice Speight said, “In my view whatever may be the situation of an unborn child to bring a suit in respect of other rights, it can be construed from the pattern of the Act that this was intended to be a comprehensive code to control the circumstances under which the right of an unborn child should be assessed and pronounced upon, after weighing as well, the position of the mother. The background of the legislation indicates that Parliament wished to delegate the decision making process exclusively to an expert panel.”4

The Decision
On this basis the Judge concluded, “It is inimical to such a legislative pattern that the process of judicial review should co-exist.

The Judge decided that the law, as set out in the CS&A Act, should be defined by Parliament, not the Courts.

"I add that even were there locus standi [the right to bring an action] in Dr Wall, the remedy sought is discretionary and it would not be granted in this case on what the papers reveal. The allegations here are based on Dr Wall’s belief that the consultation was brief and that the opinions of the consultants on this matter, where medical judgement is crucial, were not in accord with his opinion as to correct statutory criteria. On this skimpy material he alleges bad faith.

"In the general run of cases, such as this... the discretion of the court will almost inevitably be to refuse the remedy, and in this case I so
"Were one to exercise this discretion at the suit of an outsider, the purposes of the Act in obtaining prompt and well informed judgements from qualified persons to whom the decision making process has been entrusted, would be frustrated to the point of making statute unworkable. In extreme cases of blatant bad faith, and probably only at the suit of the Attorney-General, the remedy may lie, but in the general run of cases, such as this, advanced on the basis of differences of clinical opinion, the discretion of the court will almost inevitably be to refuse the remedy, and in this case I so refuse.” 5

Within forty-eight hours the abortion had been carried out and for Dr Wall it was a tragic event. Adding to what he saw as the irony of that day, a tiny premature baby died in his hospital’s Newborn Intensive Care Unit. This was a baby for whom the hospital team had exerted all their efforts because this particular baby was wanted.

Having weighed up the matter with his lawyer, Quinton Reeves, it was decided to appeal against the decision handed down in the Auckland High Court. Nine months were to elapse before the matter came before the Court of Appeal but in the meantime, the medical profession was called to pass judgement on the action taken by Dr Wall.

Complaint against Dr Wall
It was 12 May when the Women’s National Abortion Action Committee (WONAAC) laid a complaint with the Medical Practitioners Disciplinary Committee about Dr Wall’s actions. Their complaint was heard by the committee which comprised Dr D. Richwhite, Sir Randall Elliot and Sir Leonard Thornton together with the legal assessor and the secretary of the N.Z. Medical Association. Wellington lawyer Ms Ruth Charters, appeared on behalf of WONAAC. 6

After inquiring into the complaint which had been laid by WONAAC and hearing evidence from Dr Wall, the Disciplinary Committee prepared its findings. They said that in the process of making his challenge to the courts Dr Wall had, “filed an affidavit, exhibited other documents which disclosed wide ranging details not only of the patient and her pregnancy, but also of other members of her family. “Such,” they said, “are strictly privileged.”7

The Disciplinary Committee found Dr Wall guilty of professional misconduct and ordered he be censured and fined.
In commenting on the disclosures Dr Wall had made, the committee went on to say, “In making the disclosures that he did, he (Dr Wall) was in contravention of the ethical code and the degree of detail supplied by him in his affidavit and annexures was excessive.” The committee went on to find Dr Wall guilty of professional misconduct and ordered:

(a) That he be censured

(b) That he pay the sum of $1,506.82 in respect of the costs of and incidental to the inquiry.8

Where Mr Justice Speight had found that the material provided by Dr Wall was “skimpy”, the Disciplinary Committee concluded it was “excessive”. Clearly there was no way he could have acted in attempting to save the life of the unborn child which would have satisfied both the court and his profession’s disciplinary committee.

There was to follow a spontaneous public response. Ordinary citizens could see the empass to which the medical profession had brought itself in claiming to stand by its ethical principles when it was obvious it had closed its collective eyes to the killing of children before birth. Letters began to pour in to Dr Wall from around the country. He received a thousand letters of support from individuals and groups together with $12,000 in donations which covered his court costs. This indication of spontaneous public support helped to sustain him through the experience of being indicted for professional misconduct.

He was asked sometime later why he had been so sensitive to the profession’s response. He was to reply, “I suppose it was naive because intellectually I knew it had gone out the window, but underneath I hoped, that even if they didn’t agree with me, they would at least see that I had adopted the only stance that should be expected from a doctor.”9

The Appeal
Dr Wall went on to appeal against the decision of the disciplinary committee and this matter came before the Medical Council on 6 December. This council confirmed the finding of professional misconduct but revoked the censure which had been imposed by the Medical Practitioners Disciplinary Committee. They went on to confirm that the $1,506 costs imposed by that committee should be paid and in addition he was charged $500 for the costs of his appeal to the Medical Council.10

On 21-22 November, the case of Wall versus Livingston and Roborgh was argued in the Court of Appeal. This building is situated directly across the road from Parliament, where five years earlier New Zealand’s politicians, in that historic all night debate, had attempted to put into place measures that would protect the lives of unborn children. This was to be the landmark judicial testing of that law. The three judges on the bench were Woodhouse J., Richardson J. and Ongley J. In a rather gentlemanly, matter-of-fact manner they discussed issues of life and death.

“The abortion was performed, but the issues raised in the application are by no means dead.
Dr Wall was represented by Wellington Q.C. George Barton, who opened his case by saying, “The abortion was performed, but the issues raised in the application are by no means dead.” He went on to examine all of the relevant sections of New Zealand’s abortion laws and maintained that nothing in these statutes would preclude a judicial review where proper cause existed.

He said, “Where the issues raised depend upon the fundamental values of society, such as the right to life, it is of paramount importance that the law, which is the very guardian that society has created to protect those values in its name, should not abdicate its function.”

Mr Barton went on to say that if the decisions of certifying consultants were to be beyond review by the courts then it would be possible for such a consultant to act in bad faith knowing that his decision was not able to be challenged. “The court should not decide a priori [before the fact] that the decision-making process under the Act should be exempt from its jurisdiction of review.” He added with compelling force. “If that process is beyond the reach of the courts, who will guard the guardians?”11

Privileges of Sanctuary
In developing this point Mr Barton made a passing comment that if such a situation did exist, then for all practical purposes, abortion in New Zealand would resemble an Alsatia. As he moved on with his presentation he was interrupted by Mr Justice Richardson who asked what was meant by an Alsatia.

In thoughtful deliberative tones, Mr Barton explained that Alsatia was a term used to describe a district in London between Fleet Street and the Thames. This was an area, he pointed out, which had once possessed certain privileges of sanctuary dating back to the early thirteenth century.

It became a notorious thieves' sanctuary where rogues could gather unhindered by the law and was finally abolished by an Act of Parliament in 1697.

However it continued to exist as an area where the writ of law did not reach and so acquired a mischievous character. Mr Barton pointed out that for a long time, people could escape the processes of the law if they moved into Alsatia.

The two certifying consultants who had authorised the abortion were represented by senior counsel. Mr I.A. Borrin was present to argue on behalf of Dr Derek Livingston, and Mr John Upton to argue on behalf of Dr Leon Roborgh.

In presenting his submission, Mr Borrin said that the C.S. & A. Act aimed to rule out situations where anyone could challenge the decisions of certifying consultants. He said. “There is no room for engrafting on legislation any rights which are not already either expressly or by necessary implication contained in it. In the face of such detail the only conceivable explanation of the legislation’s silence on the question of whether an individual could represent the interests of the unborn child is that it is not intended to confer any such rights.” 12
...the law does not allow for any review of the decision by certifying consultants whether the doctors concerned acted in good faith or bad faith.

Dr Roborgh’s lawyer, Mr Upton added that the law did not allow for any review of the decision by certifying consultants whether the doctors concerned acted in good faith or bad faith. He went on to say that the unborn child had no right to apply for a review of public administration, “and if it did have such a right it would be illusory and ineffective.” 13

“The rules simply do not recognise or allow for unborn children to bring an action of the present type,” said Mr Upton. “If they are to have such a right, it is a matter for Parliament and not the courts to remedy.”14

Much was said on the question of Dr Wall’s standing to bring a case on behalf of an unborn child. In the Auckland High Court hearing Speight J. had ruled that Dr Wall did not have the necessary standing to bring such a case. His ruling was submitted to be valid by Mr Borrin and Mr Upton but it was challenged by Mr Barton.

He pointed out that Justice Speight accepted Dr Wall was not an interfering by-stander but only regarded him in the same light as a member of the public. He said, “That classification flies in the face of realities.” He developed the point that no one was in a better position to know the facts of the case than Dr Wall who was the girl’s doctor during her pregnancy. He added that Dr Wall had retained a continuing professional obligation to the patient and his responsibility extended towards her unborn child who was also his patient.15

Rights of the Unborn Child
In discussing the rights of the child Mr Barton argued, “once it is predicated [established] that abortion should only be authorised ‘after having full regard to the rights of the unborn child’, as is recognised in the long title to the Act, it follows that the Court should entertain proceedings brought on behalf of the unborn child to ensure that a decision to end the life of that unborn child has been taken in accordance with the law.”

If no one had the necessary standing to act on behalf of the child, it would mean that the child’s right to be born could be taken away without it having a voice in court to protest.
Having argued that the law regarded the unborn as having rights, Mr Barton went on to highlight the situation that would exist should there be no right to review a certifying consultant’s decision and no one had the necessary standing to act on behalf of the child. It would mean that the child’s right to be born could be taken away without it having a voice in court to protest. 16

The Court of Appeal’s judgement which was delivered by its President Mr Justice Woodhouse, was handed down on 20 December. Melvyn Wall’s appeal was dismissed. The Court confirmed that “no legal statutory right in the unborn child can be spelled out of the Act now under consideration which in itself would enable a direct claim of standing. That being the case neither Dr Wall nor anybody else could possibly claim to represent the interests of the unborn child.”17

On the question of judicial review of any decision to abort an unborn child the judgement stated, “we do not think it can possibly have been Parliament’s intention that upon such a delicate matter as this the courts could freely take under review the conclusions reached by the professional men so exclusively entrusted with the statutory responsibilities (i.e. certifying consultants).”18

In reaching their conclusions the three judges found “that deliberate absence of any review process inside the Act itself is probably founded upon three considerations.

First, special attention has been given in the Act to the preservation of anonymity of the woman patient.

  • Secondly, the whole process of authorisation appears designed to place fairly and squarely upon the medical profession, as represented in any particular case by the certifying consultants, a responsibility to make decisions which will depend so much upon medical assessment, pure and simple.

  • And thirdly, there are the adverse medical implications which could arise from the passage of time should such a determination be easily open to review.”18
  • Immunity
    It was Dr Roborgh’s lawyer John Upton who had pointed out to the court that the question of good or bad faith on the part of the certifying consultant was irrelevant as far as the law was concerned where their decisions were beyond review.
    ...the question of good or bad faith on the part of the certifying consultant is irrelevant as far as the law is concerned...
    Consultants possessed the privilege of sanctuary and this immunity was confirmed by the Court of Appeal. Abortion had become an area where the writ of law did not reach.

      i.e., consultants could not be prosecuted.
    Doctors can escape the processes of the laws on abortion once they become certifying consultants.
    For all practical purposes the abortion laws of New Zealand — laws which had been brought into being in the face of such agonising difficulties — now resembled an Alsatia. Doctors could escape the processes of the laws on abortion once they became certifying consultants.

    1 Melvyn Wall. “A Case for the Unborn Child in N.Z. Law”, Address delivered in Melbourne, August 1983.
    2 Speight J. Oral decision, 19 Jan. 1982 in Auckland High Court in case Wall v Livingston and Roborgh. A. No. 1/82
    3 Ibid
    4 Ibid
    5 Ibid
    6 Medical Practitioners Disciplinary Committee Inquiry into complaint of professional misconduct against Melvyn Lee Maxwell Wall dated 19 May 1982
    7 Ibid
    8 Ibid
    9 The Advocate Magazine, 25 Aug. 1983, “A Jewish witness to the new holocaust”
    10 Order of the Medical Council of N.Z. dated 6 Dec. 1982 in the matter of a complaint against Melvyn Lee Maxwell Wall.
    11 G. Barton, Submission to the N.Z. Court of Appeal on 22 Nov. 1982 in case of Wall v Livingston and Roborgh
    12 Dominion, 24 Nov. 1982, “Act aimed at outsiders”
    13 Ibid. Humanity, Dec. 1982, “Child dies but issues still alive”
    14 Evening Post, 24 Nov. 1982 “Unborn child cannot challenge abortion”
    15 G. Barton, see ref 11
    16 Ibid
    17 Woodhouse J. Judgement of the N.Z. Court of Appeal, 20. Dec.1982, in the case Wall v Livingston and Roborgh C.A. 4/82
    18 Ibid

    Source: "The Right to Live" -Marilyn Pryor, Chapter 26 — A Doctor Carries the Banner Into the Courts