Ed Madden, BL, looks at a recent Northern Ireland High Court case in which the Court was asked to quash the publication of a guidance document on abortion
On March 13, 2009 the Northern Ireland Department of Health, Social Services and Public Safety (“the Department”) published a document entitled Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland (“the Guidance”).
Following its publication, the Society for the Protection of Unborn Children (“the Society”) brought Judicial Review proceedings in the High Court in which it sought a declaration that the Department’s decision to publish the Guidance was unlawful. The Court was requested to order the Department to publicly rescind the Guidance and remove it from its website.
Unlike the rest of the United Kingdom, where abortion is dealt with under the 1967 Abortion Act, in Northern Ireland termination of pregnancy is dealt with under Sections 58 and 59 of the Offences against the Person Act 1861 and Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945.
In essence, if a person who procures an abortion acts in good faith for the purpose of preserving the life of the mother no offence is committed. In this context, preservation of the life of the mother includes preservation of her long-term physical and mental health.
One of the clauses of the Guidance to which the Society took objection was Section 4 dealing with conscientious objection to abortion on the part of staff. In this regard, the Guidance provided as follows:
“4.1 Although there is no legal right to refuse to take part in the termination of pregnancy some staff may have a conscientious objection to termination of pregnancy on moral and/or religious grounds. No one should compel staff to actively participate in the assessment or in performing a termination…
The right to object on grounds of conscience should be recognised and respected – except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken. Health and Social Care Trusts should have appropriate arrangements in place to accommodate such requests from staff.
However, staff with a conscientious objection cannot opt out of providing general care for women undergoing a termination of pregnancy. The personal beliefs of staff should not prejudice general patient care.
4.2 Where a woman presents herself to her GP for advice or assessment in relation to a termination of pregnancy and that GP has conscientious objection, he/she should have in place arrangements with practice colleagues, another GP practice or a health social care trust to whom the woman can be referred.
4.3 The General Medical Council (GMC’s) Good Medical Practice (November 2006) states that:
‘If carrying out a particular procedure or giving advice about it conflicts with your religious or moral beliefs, and this conflict might affect the treatment or advice you provide, you must explain this to the patient and tell them that they have the right to see another doctor.
‘You must be satisfied that the patient has sufficient information to enable them to exercise that right. If it is not practical for a patient to arrange to see another doctor, you must ensure that arrangements are made for another suitably qualified colleague to take over your role.’
The GMC has also published guidance on Personal Beliefs and Medical Practice (March 2008) which expands on the principles set out in its core guidance Good Medical Practice 2006…”
Giving his judgment in the case, Lord Justice Girvan said that clause 4.1 required amendment to deal with the words “although there is no legal right to refuse to take part in the termination of pregnancy.” A member of staff may have a legal right to refuse to take part in such a procedure. This may arise, for example, in the following circumstances.
1. If he/she considers reasonably, and in good faith, that an abortion procedure is illegal because the continuation of the pregnancy does not present a risk to the life or long term health of the mother;
2. If under the express terms of his or her contract of employment he/she is entitled to refuse to participate;
3. If it would infringe his/her rights under Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion).
Section 4.1 provided for the right to object on grounds of conscience “except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken”.
It was not clear whether this related only to a situation in which the actual life of the mother was in danger, or whether it extended to a situation where, in the absence of an abortion, there would be serious adverse effects of a permanent or long term nature in relation to her physical or mental health. If the Guidance was to be clear this needed to be spelt out.
The judge said that there are those who in conscience object to abortion where the mother’s life is not in danger. They take the view that in weighing up the ethical and religious dilemmas of destroying the life of the unborn child, or destroying the long-term health of the mother, the decision should be in favour of the unborn child. It was not clear what guidance Section 4.1 was purporting to give on this issue.
Section 4.2 as worded was open to the interpretation that if a woman presented to a general practitioner asking for advice about a termination, in a situation where there was no question of a danger to her life or long-term health, a general practitioner with a conscientious objection to abortion should have in place arrangements for onward referral.
The Guidance did not grapple with the problem of a woman wanting an abortion in a situation which was not permissible under Northern Ireland law. It used language “much too ambiguous” and left GPs unclear as to what was expected of them.
A GP should not be expected to have a legal training in construing documents. The Guidance should speak to healthcare workers, not to trained lawyers. It should be absolutely clear; otherwise it was not guidance but “a trap to the unwary”.
The judge said that where a patient presented with a medical problem that indicated a risk to life or long-term health from continued pregnancy, a general practitioner who objected to abortion on conscientious grounds remained obliged to take steps to ensure that the woman’s medical condition was properly catered for.
She ought to be referred to appropriate clinicians. The general practitioner who failed to take steps to ensure her proper treatment would be in breach of his duty of care and of his duty to act consistently with the GMC Guidance on proper practice.
There may be situations where, for example, a patient has been advised by her obstetrician to have a termination and in considering whether to consent, seeks advice from her GP.
In such a situation the GP’s conscientious objection to abortion may be such that he could not give her dispassionate advice. In this regard, the GMC advice on good medical practice accurately reflected the GP’s obligations as set out in Section 4.3 of the Guidance.
The Court ordered the withdrawal of the document with a view to its reconsideration by the Department taking account of the contents of the judgment on the issue of conscientious objection, and on one other issue dealing with counselling.
Reference:  NIQB 92