Doctors fail to report rape of developmentally disabled Australian woman

Julia Medew
August 28, 2008
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A MELBOURNE abortion specialist was one of several health professionals who did not report the rape of a severely intellectually disabled woman when the perpetrator was insisting on the termination of her pregnancy, a tribunal has heard.

Dr Patricia Moore, an expert called into review the case of a late-term abortion performed without legal consent, yesterday expressed shock that so many people who assessed the woman's pregnancy did not act on the fact she had been raped.

"There was obviously evidence of sexual abuse that was not investigated by many people before the final episode," she said. "I started to wonder if a special procedure had not been performed if any of the professionals would have addressed the issue of sexual assault."

Dr Moore made the comments at a Medical Practitioners Board hearing into alleged professional misconduct by Mark Schulberg, the doctor who did the disabled woman's abortion in March 2005.
It is alleged Dr Schulberg performed the termination at 25 weeks without gaining legal consent through the Victorian Civil and Administrative Tribunal, a legal requirement for an adult who is intellectually disabled.

It is alleged he did not contact police about the pregnancy when he should have known she was incapable of consenting to sexual intercourse. The woman's father, who helped organise the abortion, was convicted of the rape this year and sentenced to a minimum of seven years' jail.

The board heard the woman's father met at least one other doctor and social workers to discuss the termination of her pregnancy before he met Dr Schulberg at his Croydon clinic.
None of the health professionals took any action to find out who had raped the woman, despite some of them acknowledging that she was unable to consent to sexual intercourse, the board heard.

"All of the people who came into contact with the family gave emotive descriptions about her parents and how lovely they were," Dr Moore said.

"If a risk assessment was performed, there would have been quite a bit of concern about the possible perpetrator, given that one might be concerned that that person consenting (to the abortion) had a vested interest in lying."

Dr Moore said although it was difficult to make an "absolute judgement" of Dr Schulberg's actions, she believed his peers and the general community would expect him to know the laws surrounding consent for such a procedure.

Aside from this ignorance, she believed Dr Schulberg acted in good faith and upheld professional standards by gaining the consent of the woman's parents.

When asked if Dr Schulberg should have been wondering about the credibility of the woman's parents, Dr Moore said it was a big leap for any practitioner to think incest had occurred.
She said a practitioner must form the view a person purporting to give consent was the appropriate person before a procedure was done.

In a statement to the board, Dr Schulberg said he planned on contacting the police, but the board heard the police contacted him first after hearing the allegations from another person.
On the basis of this statement, Dr Moore said she was satisfied Dr Schulberg was going to act professionally in his management of the crime.

Dr Moore said if the case had have gone to VCAT and she was asked to give medical evidence about whether the abortion should have proceeded, she would have recommended it go ahead.
Dr Schulberg will give evidence at the hearing, which has been adjourned.