British Pregnancy Advisory Service v Secetary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 18 March 2011 |
| Neutral Citation | [2011] EWHC 235 (Admin),[2011] EWHC 637 (Admin) |
| Docket Number | Case No: CO/4028/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2011 |
[2011] EWHC 235 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE ABORTION ACT 1967
Before : The Honourable Mr Justice Supperstone
Case No: CO/4028/2010
NATHALIE LIEVEN QC and RICHARD TURNEY (instructed by Messrs Reynolds Porter Chamberlain LLP) for the Claimants
JAMES EADIE QC and ELEANOR GREY (instructed by Department of Health) for the Defendants
GEMMA WHITE (instructed by Messrs Child & Child) for the Interveners, the Society for the Protection of Unborn Children
Hearing dates: 28 January and 4 February 2011
THE HON. MR JUSTICE SUPPERSTONE
Mr Justice Supperstone :
Introduction
In these proceedings the British Pregnancy Advisory Service, the Claimant, seeks a declaration that:
"…For the purposes of section 1 of the Abortion Act 1967, a pregnancy is 'terminated by a registered medical practitioner' where the registered medical practitioner prescribes an abortifacient drug with the intention of terminating a pregnancy and the administration of that drug to the pregnant woman is not 'any treatment for the termination of pregnancy'."
Abortion remains a controversial subject in respect of which there are differing deeply-held views. It is important to appreciate that the present claim is made under Part 8 of the Civil Procedure Rules 1998 because the Claimant seeks the court's decision on a question which does not involve a substantial dispute of fact, rather it involves statutory construction and a question of law.
The purpose of the Claimant's application is to establish that it would be lawful, under the Abortion Act 1967, to pilot and if successful adopt, subject to regulation, a process of providing "early medical abortion" ("EMA") whereby part of the treatment is self-administered by the woman at home.
The legislative framework
The Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990 ("the 1990 Act"), in particular by the addition of section 1(3A), reads, so far as is material, as follows:
" 1. Medical Termination of Pregnancy
(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion where a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of sub-section (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
(3) Except as provided by sub-section (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006 or the National Health Service (Scotland) Act 1978 or in a hospital vested in a Primary Care Trust or a National Health Service Trust or an NHS Foundation Trust or in a place approved for the purposes of this section by the Secretary of State.
(3A) The power under sub-section (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places.
(4) Sub-section (3) of this section, and so much of sub-section (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
…
4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection:
Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2) Nothing in sub-section (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
5. Supplementary provisions
(1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.
(2) For the purposes of the law relating to abortion, anything done with intent to procure a woman's miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if—
(a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purposes of procuring the miscarriage of that foetus, or
(b) any of the other grounds for termination of the pregnancy specified in that section applies.
6. Interpretation
In this Act, the following expressions have meanings hereby assigned to them:-
'The law relating to abortion' means sections 58 and 59 of the Offences Against the Person Act 1861, and any rule of law relating to the procurement of abortion."
The regulatory framework
The Abortion Act 1967 as amended ("the Act") provides that any treatment for the termination of pregnancy (whether surgical or medical) must be carried out in a hospital vested in the Secretary of State, an NHS Trust, Primary Care Trust (PCT) or Foundation Trust, or in a place approved for the purpose by the Secretary of State: section 1(3). The Secretary of State for Health is therefore responsible for approving independent sector service providers for the purpose of treatment for the termination of pregnancy. Independent sector providers, after having registered with the Care Quality Commission (CQC) and on receipt of approval from the Secretary of State for Health, can carry out abortions up to 24 weeks' gestation.
In England both NHS and independent sector healthcare providers are subject to the regulatory oversight of the CQC which was established by the Health and Social Care Act 2008 ("HSCA 2008"). The termination of pregnancy is prescribed as a "regulated activity" under section 8 of HSCA 2008. Under section 20 of HSCA 2008, the Secretary of State may issue regulations in relation to regulated activities. The Care Quality Commission (Registration) Regulations 2009 ("the 2009 Regulations") and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 ("the 2010 Regulations") have been made. Registered healthcare providers within the independent sector which undertake terminations of pregnancy are subject to regulation 20 of the 2009 Regulations. This sets out general provisions relating to the appropriate management of abortions. It does not specifically cover the issue of what techniques may be used to procure an abortion, or the subject of early medical abortion. There are no Regulations specifically governing the abortion practices of English NHS bodies, although both the NHS and the independent sector are subject to the general obligations set out in the 2010 Regulations, and the Abortion Regulations 1991 impose requirements on all practitioners carrying out terminations, as to the information which must be recorded by the practitioner.
Under section 35 of HSCA 2008, Regulations may provide that a contravention of or a failure to comply with any specified provision of the Regulations is an offence. Under Regulation 27 of the 2010 Regulations, a failure to comply with any of the provisions of Regulations 9 to 24 is an offence, triable summarily only. The CQC must have issued a warning notice, setting out a time for compliance, and that time must have expired, before it may prosecute. A fine of up to £50,000 may be levied: HSCA 2008, s.162(3)(b). An offence under the 2009 Regulations is triable summarily only. The penalty is a fine of up to Level 4 (currently £2,500): see Regulation 25. Breaches of Regulations made under section 20 may not be punishable by imprisonment or triable on indictment: HSCA 2008, s.35.
Other regulatory tools include the use of guidance issued by the CQC under section 23 of HSCA 2008 and the use of conditions of registration by the CQC: see s.12(3)....
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