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.

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The FXB decision may be the most striking, but it’s part of a quiet legal trend.

FXB’s story wasn’t unique.

The Medical Journal review uncovered five tribunal decisions since abortion was decriminalised nationwide. All involved women with cognitive impairment. And in all but one, tribunals ruled they had the capacity to consent.

GKB is a woman with intellectual disability living in supported accommodation. She had daily support and a guardian for broader health decisions. But the NSW tribunal found she understood what an abortion involved and allowed her the right to decide.

BSE was under guardianship in Queensland. The tribunal ruled a one-off choice about ending a pregnancy didn’t require full capacity across all aspects of life. Just a clear grasp of the procedure, its risks, and the alternative.

Even in C, a Western Australian case governed by stricter legal standards requiring “reasonable judgment”, the woman’s understanding met the threshold. Diagnosis didn’t disqualify her.

Only LKZ's case involved a woman who had lost capacity completely after a sudden brain injury. In that instance, there was no dispute about incapacity. But this was the exception.

The larger pattern is tribunals do listen. They treat capacity as decision-specific and functional. It’s not about whether a woman lives independently or holds a job. It’s about whether she can understand what abortion is, weigh up implications, and express a decision.

That’s reassuring. But the system is far from perfect.

These cases are buried deep in tribunal archives. They’re not well known, not indexed in a central place, and rarely cited. There is no body of case law and each is effectively unique. This makes it harder for everyone; doctors, support workers, families, and lawyers, to understand how real-world decisions are being made.

Even more important is the fact that behind each ruling is a deeper discomfort: Who gets to choose? 

Time and again, professionals step in. Guardians speak for people. Psychiatrists offer opinions not just on health, but morality.

The FXB case shows what’s at stake. More than 20 weeks pregnant, on a psychiatric ward, facing a late-term procedure, the Tribunal found she still had the right and capacity to decide.

It’s a reminder that autonomy doesn’t end with a diagnosis. And that respecting someone’s rights sometimes means trusting them to make decisions others wouldn’t.