State Of Queensland V. B (2008

State of Queensland v B [2008] QSC 231 was a case heard in the Supreme Court of

Queensland by Justice Wilson. The jurisdiction of the court appealed to was that of

parens patriae 1 .

In this case, B is a 12-year- old girl who is 18 months pregnant. She is a patient at a

public hospital conducted by the applicant, the State of Queensland, who sought the

Court’s authorisation for abortion, having assessed that the pregnancy was a danger to

B’s mental health. Administration of the drug misoprostol, instead of a surgical

procedure, was the proposed method for abortion.

Two legal issues faced the court, including: 1) whether authority over consent for the

abortion lay with the child, the parents, or the court; and 2) whether termination

of the

pregnancy was lawful.

Regarding the first issue, Justice Wilson concluded that the child could not consent to

her own abortion, as she was of below average intelligence, based on evidence from

the girl’s father, one obstetrician, and one psychiatrist, and as such she cannot be said

to fully understand the situation and therefore cannot make the decision 2 .

Justice

Wilson also concluded that the parents could not give consent to the abortion, having

considered the ratio in Marion’s case, which ruled that the consent for sterilisation of

intellectually disabled children was outside the scope of parental authority. While that

case dealt with a similar circumstance (i.e. dealing with incompetent children) it was

different in that Marion’s case concerned sterilisation, while this case concerned

abortion. Nevertheless, Justice Wilson adopted the ratio taken by Marion’s case

reasoning that, just like with the decision to sterilise, B’s parents also risk making the

wrong decisions in regards to the abortion which may result in particularly grave

1 State of Queensland v B [2008] QSC 231, [2]

2 B’s case, [16]

3 Khai Der Lau (470348206)

consequences against the child’s best interest. Consequently, the decision over the

abortion lay with the court, to decide, as a reasonable parent would, the best course of

action to take that suits the interests of B 3

.

Regarding the second issue, Sections 282 and 286 of the Criminal Code Act 1899

were consulted. Section 282 concerned criminal responsibility for performing surgical

operations. Having been advised that there are legitimate reasons against the use of

surgical abortion, Justice Wilson ruled this section to be irrelevant to this case 4 .

Therefore, the reasoning used to answer this second issue was based on Section 286,

which outlined the duty of a child carer as including the responsibility of taking

precautions to avoid endangering the child’s health. Section 286 also defined the

phrase “person who has care of a child”. The judge viewed that “child’s health”

included mental health, and that the definition of “person who has care of a child” was

capable of including the doctors who had care of B 5 . Consequently, Justice Wilson

held that ordering the abortion would be lawful 6 .

As a result, two orders were delivered, including: 1) that it was sensible to abort B’s

pregnancy by medical abortion to avoid endangering her health; and 2) that the said

treatment was allowed to be carried out by the doctors and allowed to be received by

the child 7