SUMMARY OF CTOP ACT 1996 & 2004 CTOP AMENDMENT ACTWidespread abuses in Red

• WHEN?

• Section 2(1) - The law permits termination as follows:

• Trimester 1 (up to 12 weeks): On demand, with informed consent

• Trimester 2 (13 to 20 weeks): One medical practitioner, if1. risk of injury to w’s health2. substantial risk foetus abnormality3. rape or incest4. social/economic circumstances of w

• Trimester 3 (after 20th week): Two Med Practs, or 1 + midwife1. endanger w’s life2. severe malformation of foetus3. risk of injury to foetus

• Many abortionists conduct 2nd Trimester abortions according to the rules for 1st Trimester

• WHO?

• Section 2(2) – Who may perform an abortion?

• 1st Trimester: Med practitioner or reg midwife/nurse (reg nurse/reg midwife =

nurse/midwife who has undergone prescribed training)

• 2nd & 3rd Trimester: Med practitioner

• It is very common for 2nd Trimester abortions to be carried out by midwives/nurses with no medical practitioner being involved

• Sometimes the same applies to 3rd Trimester eg Rose Clinic, Durban (Osler case)

• WHERE?

• Section 3: Where may an abortion be performed?

• Only at a facility designated by the Minister of Health (1996)

• (2004): 10 conditions: 1. access to Staff2. Theatre3. Surgical equipment4. drugs5. emergency resuscitation and centre6. transport for emergency transfer7. clinical observation/access to in-patient8. infection control9. safe waste disposal10. telephone

• Plus: Approval by MEC, except that facilities with 24-hour maternity service may do 1st trimester terminations without approval

• It is too early to say to what extent these new rules are being complied with. The 2004 Act came into force in February 2005.

• What is for sure is that some GPs for many years have broken the law, and continue to do so, by conducting abortions at their surgeries. Under the new Act this is a criminal offence.

• Counselling

• Section 4: “The State shall promote the provision of non-mandatory and non-directive counselling, before and after the termination of a pregnancy.”

• The Regulations add that

Counselling must include ‘at the least’ sufficient information to assist a woman to make an ‘informed choice’, and must cover:

1. Alternatives to TOP2. Risks and procedure of TOP3. Contraceptive measures for the future

By and large, this is completely ignored!

“Informed Consent” (Section 5)

This is a term of art used in the 1996 CTOP Act and in the National Health Act. It is well known to the law and its meaning was recently affirmed in the second Christian Lawyers Association case (judgment May 2005):

"It must be clearly shown that the risk was known, that it was realised, thatit was voluntary undertaken. Knowledge, appreciation, consent - theseare the essential elements.

The requirement of "knowledge" means that the woman who consents to the termination of a pregnancy must have full knowledge "of the nature and extent of the harm or risk".

The requirement of "appreciation" implies more than mere knowledge. The woman who gives consent to the termination of her pregnancy "must also comprehend and understand the nature and extent of the harm or risk,"

The last requirement of "consent" means that the woman must "in fact subjectively consent" to the harm or risk associated with the termination of her pregnancy and her consent "must be comprehensive" in that it must "extend to the entire transaction, inclusive of its sequences".

The mandatory requirement of informed consent is totally ignored; there are no criminal sanctions. Nobody cares !

Sections 6 & 10 – The obligations on doctors and nurses to inform of rights and not to obstruct an abortion:

Section 6 says no more and no less than a woman requesting a TOP shall be informed of her rights ‘under the Act’. Regulation 9 goes further and adds that she shall be told

‘of the locality of facilities for TOPs.’

( NB NB Section 10 criminalises certain conduct including:

‘preventing the lawful termination of a pregnancy or obstructing access to a TOP facility’

The pro-choice lobby actively intimidate health workers by saying that the section 10 clause could catch a doctor or nurse who refuses to do an abortion. Legally this is NONSENSE – the clause is designed to criminalise demonstrators who blockade clinics not health workers who work inside! )

Therefore a health worker cannot be in breach of the law if he/she:

1. Explains what the law says about TOPs.2. Tells the woman where facilities are available.

Section 10 – other Criminal sanctions:

• It is a criminal offence for anyone to perform a TOPAt an unauthorised facility

This catches the GP doing it in his surgery (2004 Act only)

• It is a criminal offence for any person (other than a medical practitioner), including a registered midwife or registered nurse, to perform a 2nd or 3rd trimester TOP.

• It is a criminal offence for any person, other than a medical practitioner, registered midwife or registered nurse who has completed the prescribed training course, to perform a 1st trimester TOP.

A glaring lacuna in the Act is that a medical practitioner who performs a TOP when the law does not permit it (eg 2nd trimester without statutory reason, or 3rd trimester without a second opinion) is not criminalised!

However if he allows his staff to commit offences he is equally guilty.

Failure to keep proper records is not an offence in itself.

THE STATE VS ROSE CLINIC, DURBAN

As a result of the DFL civil case brought on behalf of the schoolgirl who was the victim of a 28 week TOP (arranged by her school behind the parents’ back), the Police have investigated this clinic and charged the medical Practitioner i/c, his 2 receptionists and midwife with:

1. Some 1400 offences of 2nd/3rd trimester TOPs carried out by the midwife alone. The clinic adopted the policy of ‘up to 20 weeks we can help you’. No counselling, no attempt to obtain ‘informed consent’, no doctor – just a midwife plus the pills! As the schoolgirl shows, 20 weeks was often stretched well into the 3 rd trimester.

2. Some 1400 offences of fraud relating to the false records submitted in respect of these cases.

3. Some 1400 offences under the Drugs and Medicines legislation relating to the illegal use of Misoprostil.

4. One offence of CULPABLE HOMOCIDE in respect of the Osler 28 weekabortion resulting in a premature birth, and death after 4 hours.

To our knowledge this is the first prosecution in 10 years.