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A tribunal found a woman with disability, FXB, could consent to a late-term abortion. Her psychiatrist disagreed. What does this say about how we judge capacity?

It was a late-stage pregnancy.

The woman, known only as FXB, was 19 weeks pregnant and an abortion would be a complex procedure. She was also a psychiatric inpatient. Her psychiatrist believed she lacked the capacity to consent to an abortion and recommended continuing the pregnancy. But her obstetrician and gynaecologist disagreed. So did the tribunal.

In a little-noticed decision, the NSW Civil and Administrative Tribunal ruled that FXB understood the nature and consequences of the procedure and was capable of choosing an abortion. Pointedly, the tribunal rejected the psychiatrist’s objections. It emphasised the woman expressed her consistent wish to proceed.

The case, caught-up in a web of legal argument, is critical for the people concerned. And, of the five cases reviewed in a recent Medical Journal of Australia article by Health Law Research Fellow Dr Julia Duffy, two involved NDIS participants. 

So FXB's case isn’t isolated. But this doesn't mean the details are easy to find. 

Duffy's article reviewed five similar rulings involving women with cognitive impairment seeking abortions. The conclusion? Women’s voices were heard in every case. In four out of five rulings, capacity was upheld, even when the women were under guardianship or had significant intellectual disabilities.

The cases make one thing clear: even amid medical or legal complexity, a woman’s right to choose can, and should, be respected.

Yet the FXB decision shows how contested - and fraught - that right still is. It also demonstrates how easily professionals, families, or systems can assume the authority to speak on someone else’s behalf.

Keep reading online for the full summary of the cases, what they reveal—and why these decisions are still so hard to find.