Punished for trying to save a life

(First published in the Nelson Mail and Manawatu Standard, January 30.)

I recently re-read an account of a case in which a baby who survived an abortion was callously left to die. The story is no less shocking now than when it happened nearly 30 years ago.

It didn’t happen in China or North Korea or one of those other countries that we regard as placing a low value on human life. Neither did it happen in the squalid rooms of a back-street abortionist.

It happened in Southland Hospital and was subsequently held to be entirely legal. No action was taken against the doctors who presided over the abortion and decreed that the baby boy should be left to die.

In fact the only person penalised – and this is one of the most disgraceful aspects of the whole sordid business – was a courageous and principled paediatrician who was so appalled by what happened that he complained to the police.

For that breach of professional etiquette, Dr John McArthur was hauled before the Medical Practitioners Disciplinary Committee and subsequently found guilty of professional misconduct.

He was pilloried, in effect, for dobbing in two colleagues whom he sincerely believed had broken the law. He had committed the cardinal sin of breaching club rules.

What in most decent people’s eyes was an infinitely more offensive act – the deliberate withholding of treatment from a baby whom expert opinion held was perfectly capable of surviving – went unpunished.

The story of Dr McArthur’s treatment by the medical and legal establishments is a shameful saga of moral equivocation and ethical whitewashing. It’s impossible to read it without having your confidence in the integrity of official institutions and processes shaken.

It started when Dr McArthur, a paediatrician at Southland Hospital, returned from a clinic in Queenstown one afternoon in November 1985 to be told by a concerned nurse that a male baby had been aborted after 25 weeks’ gestation (it later turned out to be 29, or more than seven months) but had survived the procedure.

He found the infant alone in a back room of the neo-natal unit, lying unclothed in a cot, covered only by a sheet. “He was cold, blue and grunting vigorously, fighting for his life,” Dr McArthur later wrote.

No attempt had been made to give the baby warmth, fluids or oxygen. According to Dr McArthur, the doctor who performed the abortion had wanted the boy left in the delivery suite until dead.

A fellow paediatrician, asked by Dr McArthur for a second opinion on whether they should treat the baby, tersely announced that he was going home.

Dr McArthur took the boy into the intensive care unit, where his colour and muscle tone improved in response to treatment. But by this time he was suffering from severe respiratory distress, “greatly aggravated by the withholding of care”, and died the next morning.

The baby had spina bifida – which was the reason given for the abortion – and would have been paraplegic had he lived, but Dr McArthur believed he could have grown up to be of normal intelligence. An expert witness would later testify that he could have lived to 50.

It’s important to note that Dr McArthur was known for his opposition to abortion, which wouldn’t have endeared him to all his colleagues – least of all those who relied on abortion fees for part of their income. But in this case his personal stance on abortion was incidental; he was simply observing his professional obligation to save a life.

His subsequent complaint to the police alleged not only that his colleagues had failed to provide the necessaries of life, but that the abortion had been illegal in the first place.

Up to 20 weeks’ gestation, a baby can legally be aborted for foetal abnormality (such as spina bifida); but after that time, the only legal grounds for abortion are to save the life of the mother or to prevent serious and permanent injury to her physical or mental health. Dr McArthur claimed this latter justification was put forward only after the event. (I should make clear that it appeared the parents – or at least the father – did not want the baby, although this had no bearing on Dr McArthur’s obligation to save it.)

Space limitations prevent me from recounting in detail the subsequent proceedings and the legal arguments advanced for and against Dr McArthur. Suffice it to say that although the Invercargill police investigated conscientiously, the legal section at police national headquarters performed tortuous legal contortions in concluding that no offence had been committed – an opinion later backed, no more convincingly, by the then Solicitor-General.

The coroner kicked for touch too, as did a High Court judge who held that the child’s life was a matter for the doctors.

igh CiouyrHigh Court Reading Dr McArthur’s account nearly 30 years later, it’s hard to escape the conclusion that the authorities at the time – medical, judicial and political – wanted the case swept under the carpet. Memories of the divisive abortion debates of the 1970s were still fresh and there was no appetite for re-opening old wounds.

Not only would the case have been seen as an embarrassment, but some in the medical profession wanted to make an example of Dr McArthur for daring to upset the status quo.

The medical establishment appeared less concerned with the fact that a viable infant had been left to die of neglect – this in a public hospital – than with chastising Dr McArthur for disregarding the niceties of professional etiquette. Soon after, he left Southland and took up a position in Wellington.

He won a longer-term victory in 1993 when the Paediatric Society, at his instigation, introduced a policy emphasising that where there was any doubt about a premature baby’s viability, it should be treated. “The child’s welfare must be the paramount consideration.”

Dr McArthur was further vindicated in 1994 when Parliament passed a legal amendment making clear that doctors reporting suspected child abuse enjoyed absolute protection under the law, including from their own colleagues.

It’s a sad irony that in this case, the alleged abuse – albeit abuse by neglect – was perpetrated by medical professionals. But such incidents are an almost inevitable consequence of an abortion regime that encourages casual disregard for human life.  And the chilling reality is that we don’t how many other similar cases may have gone unrecorded.