Reproductive and Sexual Health Handbook

Legal issues related to reproductive and sexual health can be complex, and legislation and regulations often vary between different jurisdictions in Australia. This chapter addresses some of the more common legal issues relating to reproductive and sexual health that may be encountered in general practice and other clinical settings and presents a practical approach to these. It focuses in particular on legal issues regarding young people and those with intellectual disability, as well as legal issues related to abortion in Australia. Information provided here does not, however, substitute for legal advice. Clinicians should be familiar with the laws in their own state or territory (see Appendices) and their own organisation’s policies, and should contact their medical defence organisation for advice on specific issues. Discussing any challenging cases with a colleague within the bounds of patient confidentiality may also be useful.

The following issues are not discussed in this chapter but are covered in other chapters:

Sexual assault and domestic violence legal issues are discussed in Chapter 16: Management of Sexual Assault and Domestic Violence. Legal responsibilities pertaining to contact tracing for sexually transmissible infections and HIV are covered in Chapter 12: Sexually Transmissible Infections. The law

Clinicians are responsible for maintaining patient confidentiality and may face disciplinary action or a claim for damages if that confidence is breached. All clinicians must comply with the Commonwealth Privacy Act 1988; there are also state as well as relevant territory legislation relating to privacy and confidentiality. However, limits to confidentiality do apply in certain situations, for instance in a medical emergency, or if the clinician reasonably believes the patient may cause imminent and serious harm to themselves or an identifiable individual or group of persons. Where relevant and practical, it is important that clinicians ensure patients are made aware of these limits to confidentiality at the outset of any consultation.⁽¹⁾

A clinical record (health care record) should be available for every patient, and documentation in this record must provide an accurate description of interactions and contact between patients and clinicians. All information in a patient’s clinical record is confidential and subject to prevailing privacy laws and policies. Clinicians should only access a clinical record and use or disclose information contained in the record with the understanding and consent of the patient.  Any use or disclosure of personal health information should be related to the health service being

It is critical that patients are informed about any proposed treatment so that they are able to provide full and informed consent. The process of obtaining informed consent from patients should include an explanation of what the treatment involves, possible risks or side effects, and any alternative treatments available.

The Medical Board of Australia provides guidance to doctors about establishing and maintaining sexual boundaries in the doctor-patient relationship.⁽⁴⁾ This guidance is relevant to all clinicians and health professionals. Clinicians who breach these guidelines place their registration at risk and may be committing a criminal offence. Unwarranted examinations or inappropriate touching during a consultation may constitute sexual assault.

It is imperative that young people feel they are able to access reproductive and sexual health care. For general tips on how to manage consultations with young people, including conducting a risk assessment, see Young people in Chapter 1: Reproductive and Sexual Health Consultations in the Australian Setting. The following section discusses key issues relevant to working with young people, including consent to sex, consent to treatment, confidentiality, child protection, Medicare and health records.

Note: the terms ‘young person’ and ‘child’ have varying legal definitions in the different jurisdictions in Australia. For the purpose of this chapter, young person or people refers to anyone under 18 years.

Clinicians have a responsibility to assist people living with an intellectual disability to make their own decisions rather than making decisions for them. In the past decade, there has been a shift away from clinicians simply assessing a person’s capacity to consent to a particular treatment, examination or management strategy, to an approach of supporting informed decision-making. All people should be empowered to make informed decisions about their lives, including with regard to their reproductive and sexual health. Education and information are essential for all people to make healthy decisions, form positive relationships and reduce vulnerability.⁽²⁸⁾

 

All states and territories in Australia have different legislation pertaining to abortion, and the legality of this procedure depends on the particular requirements of the legislation in each jurisdiction. Abortion is legal in all states and territories under certain circumstances, as summarised in Appendix A. However, access to abortion services in Australia, both for medical and surgical abortions, is varied (also see Chapter 10: Pregnancy Options).

Children by Choice provide an overview of abortion laws and practices in each state and territory,⁽³²⁾ as summarised here and in Appendix A:

Queensland: Abortion was decriminalised in 2018. It is legal to 22 weeks, and legal post-22 weeks with two doctors’ approval. NSW: Abortion was decriminalised in 2019. The new legislation allows abortion up to 22 weeks gestation and after this time with the approval of two doctors. ACT: Abortion is legal and must be provided by a medical professional. Victoria: Abortion is legal to 24 weeks, and legal post-24 weeks with two doctors’ approval. South Australia: AAbortion is legal for up to 22 weeks and 6 days. Post-22 weeks and 6 days, abortion is legal if two doctors agree. Tasmania: Abortion is legal to 16 weeks, and legal

 

 State Legislation Legal position  NSW  The Abortion Law Reform Act 2019 Abortion was decriminalised in NSW in 2019. The new legislation allows abortion by medical practitioners up to 22 weeks. Terminations can be performed after 22 weeks gestation however, where not performed in an emergency, they should be by a specialist medical practitioner in a facility approved by the Health Secretary. There are additional conditions to this including ensuring there are sufficient grounds for the abortion (including consideration of relevant medical circumstances, current and future physical, psychological and social circumstances), the consultation of a second specialist medical practitioner who agrees, and the offering of counselling. A registered health practitioner with conscientious objection must disclose the objection to the person and refer on to a practitioner or service who does not have a conscientious objection. NSW Parliament has opposed the performance of termination of pregnancy for the sole purpose of sex selection. To comply with Abortion Reform Act 2019, the “Notification of termination of pregnancy” form should be submitted to NSW Health within 28 days of the abortion. ACT  Medical Practitioners (Maternal Health) Amendment Act 2002; Health (Patient Privacy) Amendment Bill 2015; Health (Improving Abortion Access) Amendment Bill 2018 In 2002 abortion was decriminalised and there are no pregnancy gestational limits. The Australian Medical Association. Guidelines for Doctors on Disclosing Medical Records to Third Parties. [Internet]. AMA; 2010 Sept [cited 2019]. Available from: https://ama.com.au/article/guidelines-doctors-disclosing-medical-records-third-parties-2010. NSW Health. Health Care Records – Documentation and Management. NSW Government; 2012. Office of the Australian Information Commissioner. Access your health information [internet]. Sydney: Australian Government; [updated 2019 Sept 6]. Available from: https://www.oaic.gov.au/privacy/health-information/access-your-health-information/. Medical Board of Australia. Sexual boundaries in the doctor-patient relationship [internet]. Australian Health Practitioner Regulation Agency; [updated 2020 July 20]. Available from: https://www.medicalboard.gov.au/codes-guidelines-policies/sexual-boundaries-guidelines.aspx. Fischer C, Waling A, Kerr L, Bellamy R, Ezer P, Mikolajczak G, et al. 6th National Survey of Australian Secondary Students and Sexual Health 2018. Bundoora: Australian Research Centre in Sex, Health & Society; 2019. Age of Consent: Issues for Youth Workers [internet]. The Shopfront – Youth Legal Centre; 2018 [updated 2018 Dec]. Available from: https://www.theshopfront.org/legal-information-for-youth-workers Australian Institute of Family Studies. Age of Consent Laws [internet]. Australian Government; 2021 [updated 2021 May; cited 2023 May 03]. Available from: https://aifs.gov.au/cfca/publications/age-consent-laws. NSW Health. NSW Health Sexual Health Services: Standard operating procedures for NSW Health [internet].  Available from: https://stipu.nsw.gov.au/sop/. NSW Health. Child wellbeing and child protection policies and procedures manual for NSW Health. NSW Government; 2013. Report No.: PD2013_007. [updated 2021 February 28] Available from: https://www1.health.nsw.gov.au/pds/ActivePDSDocuments/PD2013_007.pdf. Morgan S.