Doogan v Greater Glasgow and Clyde Health Board

JurisdictionScotland
JudgeLady Hale,Lord Wilson,Lord Reed,Lord Hughes,Lord Hodge
Judgment Date17 December 2014
Neutral Citation[2014] UKSC 68
Date17 December 2014
CourtSupreme Court (Scotland)
Docket NumberNo 2

[2014] UKSC 68

THE SUPREME COURT

Michaelmas Term

On appeal from: [2013] CSIH 36

before

Lady Hale, Deputy President

Lord Wilson

Lord Reed

Lord Hughes

Lord Hodge

Greater Glasgow Health Board
(Appellant)
and
Doogan and another
(Respondents) (Scotland)

Appellant

Brian Napier QC Hugh Olson

(Instructed by NHS Scotland)

Respondents

Gerry Moynihan QC Marie Clark

(Instructed by Brodies LLP)

Interveners (Royal College of Midwives and British Pregnancy Advisory Service)

Karon Monaghan QC Barbara Hewson

(Instructed by Thompsons Solicitors)

Heard on 11 November 2014

Lady Hale

(with whom Lord Wilson, Lord Reed, Lord HughesandLord Hodgeagree)

1

The Abortion Act 1967 provides a comprehensive code of the circumstances in which it is lawful to bring about the termination of a pregnancy in England, Wales and Scotland. It enlarged and replaced the limited circumstances in which this was recognised as lawful by the common law. It also regulated the procedure. Other than in an emergency, two doctors must be of the opinion that the grounds for bringing about a termination exist and the termination must take place either in a National Health Service Hospital or in a clinic approved for the purpose. While the Bill was going through Parliament, a clause protecting the right of conscientious objection to taking part in an abortion was introduced. This case is about the precise scope of that right.

The relevant legislation
2

As originally enacted, section 1 of the 1967 Act read thus:

"(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when 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 continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or

(b) 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) of subsection (1) of this section, account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the National Health Service Acts, or in a place for the time being approved for the purposes of this section by the said Minister or the Secretary of State.

(4) Subsection (3) of this section, and so much of subsection (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."

3

Section 5 of the Act also provided:

"(1) Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus).

(2) For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act."

4

The Human Fertilisation and Embryology Act 1990 modified the circumstances in which abortion is lawful in two ways. It substituted the following for paragraphs (a) and (b) of section 1(1) of the 1967 Act:

"(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."

5

Section 5 was also amended to read as follows:

(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 purpose 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 purpose 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

The broad effect, therefore, was to introduce a limit of twenty four weeks' gestation for abortions carried out on ground (a), which is far and away the most common of the four grounds (see para 13 below), but to remove the limit provided by the Infant Life (Preservation) Act 1929 for abortions carried out on grounds (b), (c) or (d). It also introduced the possibility of selective abortion, where a woman is carrying more than one foetus, either in order to abort a foetus which may be seriously handicapped or because the reduction in the number of foetuses she is carrying is justified on one of the other grounds.

7

Section 1(3) has also been amended, and a new section 1(3A) added, by the 1990 and other legislation and now reads as follows:

"(3) Except as provided by subsection (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 subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medication as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places."

8

Section 1(3A) reflects a change in the methods by which abortions are generally performed. When the 1967 Act was passed, pregnancies were terminated by surgical procedures to remove the foetus from the uterus. Now they are mostly terminated by the administration of drugs which prematurely induce labour. Current practice is that a patient is given an anti-progestogenic steroid in tablet form followed some 48 hours later by a prostaglandin in pessary form. The patient then undergoes a labour and delivers the foetus, placenta and membrane in the normal way unless surgical intervention is required. Selective reduction in the number of foetuses carried is performed by what is known as feticide, killing one of those foetuses in the womb. Feticide is also carried out where there is a risk of the foetus being born alive following the termination.

9

The change from surgical operations to medical methods of induction of labour led to the first of two cases under the 1967 Act to reach the House of Lords. In Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, the issue was pithily explained by Lord Denning MR in the Court of Appeal:

"when a pregnancy is terminated by medical induction, who should do the actual act of termination? Should it be done by a doctor? Or can he leave it to the nurses? The Royal College of Nursing say that a doctor should do the actual act himself and not leave it to the nurses. The Department of Health and Social Security take a different view. They say that the doctor can initiate the process and then go off and do other things, so long as he is 'on call'." (p 802)

The majority of the House of Lords (Lord Diplock, Lord Keith of Kinkel and Lord Roskill) held that "when a pregnancy is terminated" in section 1(1) of the 1967 Act meant the whole process of treatment designed to bring that about, and not just the actual ending of the pregnancy. Furthermore, that process was carried out "by a registered medical practitioner" when it was a team effort carried out under his direction, with the doctor performing those tasks that are reserved to a doctor and the nurses and others carrying out those tasks which they are qualified to perform.

10

One reason for reaching that conclusion was that the Act uses the words "termination" and "treatment" apparently interchangeably. In particular, the "conscience clause" in section 4 is headed "Conscientious objection to participation in treatment" and reads:

"(1) Subject to subsection (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...

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