Module 1: Consultation – communication and decision making

2. Abortion in Aotearoa New Zealand

Meeting Te Tiriti obligations to Māori

The NZCSRH recognises and respects Te Tiriti o Waitangi as Aotearoa New Zealand’s founding document, which captures the fundamental relationship between the Crown and Iwi. In doing so, we commit to the intent of Te Tiriti o Waitangi that established Iwi Māori as equal partners alongside the Crown and its agencies. We prioritise health gain for Māori based on the rights that Māori hold as tangata whenua. A major objective during the development of this abortion training programme has been to identify ways to meet Tiriti obligations when providing abortion health care.

Understanding Te Tiriti o Waitangi

Recent teachings on Te Tiriti have moved away from the three “Ps” (partnership, participation and protection) to a broader and deeper understanding of what Te Tiriti o Waitangi means in both historic and contemporary settings. This is influenced by the Waitangi Tribunal findings of Wai 2575 and its recommendations for achieving equitable health in Aotearoa. NZCSRH expects health care practitioners to have up to date knowledge of the interpretation of the articles of Te Tiriti o Waitangi. When health care practitioners understand how pre-colonial Māori lived, the influence of colonisation and the tools/laws that were used to systematically dilute mātauranga Māori (Māori knowledge), it is easier to understand why there are such disparities and inequities in health in Aotearoa New Zealand. This is particularly important in relation to pre-colonial and post-colonial attitudes to abortion and its impact on Māori. Understanding Te Tiriti o Waitangi and applying this to our individual roles is central to achieving health equity.

The impact of Wai 2575

The Waitangi Tribunal report Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, Waitangi Tribunal 2019) found that the existing primary healthcare framework did not meet the Crown’s obligations under Te Tiriti o Waitangi and was failing Māori, who experience severe health inequities. One of the primary purposes of the Pae Ora (Healthy Futures) Act 2022 is to strive to eliminate this health inequity and to protect, promote and improve the health of all New Zealanders.

The Waitangi Tribunal recommended the use of five principles derived from Te Tiriti when working to fulfil the health care rights of Māori, expanded on below (from the Manatu Hauora Ministry of Health Te Tiriti o Waitangi Framework):

• Tino rangatiratanga: The guarantee of tino rangatiratanga, which provides for Māori self-determination and mana motuhake in the design, delivery, and monitoring of health and disability services.
• Equity: The principle of equity, which requires the Crown to commit to achieving equitable health outcomes for Māori.
• Active protection: The principle of active protection, which requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for Māori. This includes ensuring that it, its agents, and its Treaty partner are well informed on the extent, and nature, of both Māori health outcomes and efforts to achieve Māori health equity.
• Options: The principle of options, which requires the Crown to provide for and properly resource kaupapa Māori health and disability services. Furthermore, the Crown is obliged to ensure that all health and disability services are provided in a culturally appropriate way that recognises and supports the expression of hauora Māori models of care.
• Partnership: The principle of partnership, which requires the Crown and Māori to work in partnership in the governance, design, delivery, and monitoring of health and disability services. Māori must be co-designers, with the Crown, of the primary health system for Māori.

The New Zealand Aotearoa Abortion Clinical Guideline outlines the following actions to take to meet Tiriti obligations in abortion care:

• Tino rangatiratanga (Article 2 – Mana motuhake, self-determination) - Health practitioners support the right of Māori to undergo an abortion, conceptualising the person’s decision to have an abortion as a continuation of a much older, Māori collective-endorsed practice of determining one’s own health and wellbeing and that of the whānau.
• Equity (Article 3 – Oritetanga, Māori health equity, justice and action) - Health practitioners can contribute to equitable abortion health outcomes for Māori by ensuring that at a minimum abortion outcomes match those of other New Zealanders. Equitable abortion outcomes will be achieved when the guideline recommendations are implemented in ways that give effect to the principles of Te Tiriti o Waitangi, and relevant professional competencies and Ngā Paerewa are met.
• Active protection (Article 4 – Te Ritenga, right to beliefs and values) - Health practitioners share evidence-based information about abortion so that Māori can make decisions and prepare themselves to uphold their tikanga or cultural practice (eg, karakia, rongoā, support person, container for and a location to place products of conception).
• Options – Health practitioners ensure that Māori process are able to uphold their tikanga or cultural practice throughout the abortion process, whether the abortion takes place at a kaupapa Māori or a mainstream service. The process must complement a Māori person’s mana or inherent authority and dignity, support their tikanga or cultural practice, and be culturally safe as defined by Māori.
• Partnership (Article 1 – Kāwanatanga, governance) – Health practitioners work in partnership with Māori, including a person’s whānau if requested, before, during and following an abortion. A partnered approach to the process and decision-making ensures Māori can enact their rangatiratanga or self-determine their futures while exercising mana motuhake or authority over their bodies and reproductive health.

Mana whenua status

Mana whenua refers to the mana upheld by local Māori people who have historic and territorial rights over the land in a particular area and is derived through whakapapa links to that area. It differs from tangata whenua (people of the land, indigenous people) in that is refers to the people who have local tribal or sub tribal authority.

It is important to understand who holds mana whenua status in your area when planning and providing any health service in Aotearoa New Zealand. Mana whenua have a special cultural and spiritual relationship with the environment and so may be able to provide advice or support in some instances.

Legislation and abortion in Aotearoa New Zealand

The Abortion Legislation Act (2020)

The Abortion Legislation Act (2020) came into force on 24 March, 2020. This Act amended earlier legislation for abortion provision contained within the Contraception, Sterilisation, and Abortion Act 1977 and the Crimes Act 1961. Before 2020, abortions had to be carried out on licensed premises, and the person requesting an abortion was required to obtain authorisation for the procedure from two certifying consultants. Part 1, Section 8 of the Abortion Legislation Act (2020) replaced several earlier sections of the Contraception, Sterilisation, and Abortion Act 1977, including those directly related to provision of abortion services as shown below. A qualified health practitioner is defined within the Act as a health practitioner who is acting in accordance with the Health Practitioners Competence Assurance Act 2003.

Above: The start of Part 1, Section 8 of the The Abortion Legislation Act (2020). Part 1 contains amendments to the Contraception, Sterilisation, and Abortion Act 1977, including the replacement sections 10 and 11 as shown in the grey box. Read the full Act here .

There is no definition of ‘woman’ within the Abortion Legislation Act 2020 and other legislation relevant to the provision of abortion services in Aotearoa New Zealand, despite the term being used frequently and throughout. The Ministry of Health has stated that is guided by the Women’s Health Strategy (https://www.health.govt.nz/new-zealand-health-system/setting-direction-our-new-health-system/womens-health-strategy) as part of the Pae Ora – Healthy Futures Strategies in its interpretation of the use of ‘woman’. The Women’s Health Strategy acknowledges that:

Registered health practitioners can perform surgical abortions or prescribe medicines for medical abortions if it is a health service permitted within their scope of practice and the practitioner holds a current practicing certificate. Abortion is within scope of practice for doctors, midwives, nurse practitioners and registered nurses.

Safe Areas

An amendment to the Contraception, Sterilisation, and Abortion Act 1977, the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022 , allows for the creation of a “Safe Area” up to 150 metres around premises which provide abortion services. These zones are created to protect the safety, well-being, privacy and dignity of people seeking abortion services from harrassment by anti-abortion protestors. Once a Safe Area is established, people engaging in prohibited behaviours can be fined up to $1,000.

Below: Prohibited behaviours in a Safe Area. Section 13A of the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022 :

The Minister of Health, in consultation with the Minister of Justice, can recommend that a safe area be created on request by a facility. Abortion service providers are able to apply for a safe zone. For further information on safe zones and the application process please refer to the Ministry website (details here). Providers who would like to apply for a safe area should email AbortionServices@health.govt.nz for an application form.

Conscientious objection

Section 14 of the Contraception, Sterilisation, and Abortion Act 1977 was also replaced as part of the Abortion Legislation Act 2020 and provides clear guidance around management of conscientious objection. If a health practitioner has a conscientious objection to providing abortion services, they must inform the patient at the earliest opportunity:

• Of their conscientious objection; and
• How to access the contact details of another person who is the closest provider of the service requested.

Health practitioners have a legal duty to provide prompt and appropriate medical assistance to any person in a medical emergency, including abortion.

Age of consent for abortion services

There is no lower legal age limit for having an abortion in Aotearoa New Zealand. Abortion services for under 16 year olds are governed by the Care of Children Act 2004 .

The Care of Children Act 2004 Section 38 states:

Gillick competence is where a young person who is under the age of 16 years is judged as being able to make a decision about the provision of medical services without their parents’ input if he or she fully understands the medical treatment that is proposed. Gillick competence originated in the UK in 1985 and has been adopted in varying degrees by other Commonwealth countries. In Aotearoa New Zealand, Gillick competence is most obviously seen as reflected in the Health and Disability Services (Safety) Act 2001 . In abortion care it is relevant to contraception provision as there is no lower limit to age of consent. The Fraser guidelines are used to decide if child can consent to contraceptive or sexual health advice and treatment.

Notification

To comply with the amendments to the Contraception, Sterilisation, and Abortion Act 1977 abortion service providers must submit a notification to the Ministry of Health within one month of the abortion. The Ministry of Health collates the national data on abortions and uses this to report on issues such as timely and equitable access to abortion services. Abortion providers must also submit an annual report on their abortion services by 31 March each year: further information and assistance with the reporting process can be found here including links to ‘Learn Online’ training webinars on the abortion notification and annual reporting processes.

The MOH Abortion Services work programme produces annual reports describing abortion services (the most recent report can be accessed here). Before the Abortion Legislation Act 2020 was passed, the Abortion Supervisory Committee (Ministry of Justice) produced annual reports, which can be accessed here .

Unapproved use of medicines (Section 25)

Unapproved (off-label) medicines have not been assessed by Medsafe for quality, efficacy or safety of use for a specific therapeutic indication. However, under Section 25 of the Medicines Act 1981, unapproved medicines can be prescribed by authorised healthcare providers in New Zealand provided the Code of Health and Disability Services Consumers’ Rights has been applied. People have the right to be fully informed about unapproved medicines and any safety concerns, including in writing (if requested), prior to consenting to their use for EMA. Verbal informed consent is sufficient and should be documented in the patient notes. It is not necessary to obtain written consent.

Patient rights

All New Zealanders have ten basic rights when accessing healthcare; these are described in the Code of Health and Disability Services Consumers’ Rights (see below). New Zealand also supports the UN Declaration on the Rights of Indigenous Peoples and is a signatory to the Convention on the Rights of Persons with Disabilities.

The Code of Health and Disability Services Consumers’ Rights 1996 outlines these ten basic rights of all healthcare users, and abortion care providers should ensure these are met with all patients:

• The right to be treated with respect
• The right to be treated fairly
• The right to dignity and independence
• The right to have good care and support that fits your needs
• The right to be told things in a way that you understand
• The right to be told everything you need to know about your care and support
• The right to make choices about your care and support
• The right to have support
• The right to decide if you want to be part of training, teaching or research
• The right to make a complaint

All people presenting for abortion care bring a history of their own life experience with them. These experiences may impact on their choice to have an abortion, their comfort around this decision, who they wish to support them, and their choice of type of abortion and type of analgesia/anaesthesia. It is important as the health practitioner providing the abortion that you ensure you allow the person to navigate their care in a supported unjudged way. This requires culturally safe care and reflection on your own biases, explicit and implicit, to ensure that these do not affect the consultation.

There has been considerable stigma surrounding abortion in the past, and negative attitudes are still prevalent in some parts of Aotearoa New Zealand society today. Abortion service providers need to be confident that they can provide individualised care without judgement, treating each person fairly, and with respect. If safe access to the facility may be affected by anti-abortion protestors, abortion care providers can now apply to have a Safe Area enforced under the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022 .

Professional standards and guidelines

The New Zealand Aotearoa Abortion Clinical Guideline (2021), available to download here , provides summary guidelines and recommendations for best practice abortion care. All abortion service providers need to be familiar with the clinical guidance in this document, and its recommendations regarding Te Tiriti, health equity and abortion provision. It has been prepared for use alongside Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 . The New Zealand Aotearoa Abortion Clinical Guideline is licensed under the Creative Commons Attribution 4.0 International licence, and the summary recommendations are reproduced or linked to throughout these training modules.

In late February, 2022, the updated Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 came into effect, combining four previous sets of Standards, including the Interim Standards for Abortion Services in New Zealand, and reflecting a shift towards more person- and whānau-centred health and disability services. Overnight inpatient abortion services are required to comply with the Ngā Paerewa Standard, as are all inpatient hospital services, providers of fertility services, primary maternity centres, hospices, age-related residential care, residential addiction, mental health, and disability services. The Ministry of Health’s website describes Ngā Paerewa as also fit for use by abortion service providers in New Zealand Aotearoa. The New Zealand Aotearoa Clinical Guideline suggests that community-based abortion providers, while not required to comply, could consider adopting the Ngā Paerewa Standard as it fits to their setting, as it provides a current best practice framework.

Resources currently available from the Ministry of Health for implementation of Ngā Paerewa include a short HealthCERT eLearning module available at LearnOnline (Compliance with Te Tiriti o Waitangi requirements in Ngā Paerewa), which focuses on meeting Te Tiriti requirements, and a presentation detailing sector specific guidance for abortion providers.

The Ministry of Health has sponsored access to Ngā Paerewa, at the Standards New Zealand website (under copyright license LN001406), which permits personal use of the PDF version free of charge, to view or print a single copy. It is expected that trainees on this course will have their own copy of the Standard and become familiar with its contents.

Impact of telehealth; advantages and disadvantages

Telehealth is the use of information or communication technologies to deliver health services to patients.

The New Zealand Telehealth Forum and Resource Centre has guidance and resources for people who want to set up, improve or use a telehealth service within New Zealand. Their website maintains a list of sources of regulations, standards, and guidelines on the role of telehealth in New Zealand, including professional body guidance statements. Statements on telehealth by the Medical Council of New Zealand (MCNZ), The Royal New Zealand College of General Practitioners, Allied Health Aotearoa New Zealand and the Nurse Executives of New Zealand Inc. among others, can be accessed from this website .

The required standards of care for telehealth are the same as those for in-person consultations. This should include 24-hour support of the patient and confirmed availability of local support and emergency services.

The advantages of telehealth for some people seeking abortion include convenience, improved access, e.g. for those in isolated locations, and confidentiality, e.g. for people concerned about engaging with their local service due to privacy concerns.

However, all abortion providers using telehealth need to be aware of its limitations to ensure that they do not attempt to provide a service that puts patients’ safety at risk. In particular they need to be mindful of the inherent risks in providing treatment when an in-person examination of the patient is not possible, including:

• Assessing psychological state without the cues obtained in a face-to-face interview
• Assessment of physical health
• Assessment of gestational age

When delivering abortion by telehealth, a physical examination to estimate gestational age is not possible. There is evidence that if a person is sure of their LMP or conception date, it will be unlikely that they are more than seven days out on their estimation . Confirming gestational age by ultrasound is often still possible when delivering abortion by telehealth. Most people can access a local imaging service even if there is not a local abortion provider. However, there will be situations where confirming gestational age by ultrasound is difficult or impossible, which may significantly delay the abortion care.

Therefore, if ultrasound or an in-person face-to-face consultation is a significant barrier to a person obtaining an abortion, the practitioner may deliver abortion to a person who is sure that their gestational age is less than 63 days without ultrasound or physical examination .

Concerning prescribing or supplying of medicines, the MCNZ guidance on Telehealth, 2020 (Standard 16) states that “ Before prescribing any medicine for the first time to a patient, an in-person consultation is recommended practice. If, in the circumstances you are unable to see the patient in person, consider a telehealth consultation with the patient or discuss the patient’s treatment with another New Zealand registered health practitioner who can verify the patient’s medical history and identity ”. If the clinical situation is urgent, it also states that it may be reasonable to provide a prescription “ provided that you obtain the relevant medical history and inform the patient’s regular doctor as soon as possible ”.

While prescription of EMA medicines via telehealth could meet an urgent clinical need, it is not always possible to notify the patient’s own doctor for confidentiality reasons. Providers are advised to document the reason(s) for not informing the patient’s own doctor in their clinical notes.

Further reading and resources:

The Ministry of Health has developed an e-learning module, “Changes to the abortion law”, about recent changes to the abortion laws in Aotearoa New Zealand and what they mean for health practitioners. This course takes between 10–20 minutes to complete and is available through the Ministry of Health’s Learn Online platform. It contains information about abortions pre- and post- 20 weeks, self-referral, employer obligations, counselling and reporting. The LearnOnline website requires an account, log-in and agreement to a privacy policy for access, then use this link for the Abortion Services Main Page which has a further link to the e-learning module.

Aiken, A.R.A., Lohr, P.A., Lord, J., Ghosh, N., Starling, J. (2021). Effectiveness, safety and acceptability of no-test medical abortion (termination of pregnancy) provided via telemedicine: a national cohort study. BJOG 128: 1464-1474. https://doi.org/10.1111/1471-0528.16668

Kaneshiro, B., Edelman, A., Sneeringer, R.K., Ponce de Leon, R.G. (2011). Expanding medical abortion: can medical abortion be effectively provided without the routine use of ultrasound? Contraception 83:194-201. https://doi.org/10.1016/j.contraception.2010.07.023

Additional resources not already available in main text:

• Ministry of Health Abortion Services Aotearoa New Zealand: 2020 Annual report 2021
• Abortion Supervisory Committee annual reports
• Ministry of Health Abortion reporting information for health practitioners
• Ministry of Health Ngā Paerewa webpages
  • eLearning module “ Compliance with Te Tiriti o Waitangi requirements in Ngā Paerewa ”
  • Presentation for abortion service providers
• Health New Zealand - Te Whatu Ora Abortion services https://www.tewhatuora.govt.nz/for-the-health-sector/abortion-services/

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