Motion For Review In Petition For Judicial Review By Mary Teresa Doogan+concepta Wood V. Nhs Greater Glasgow And Clyde Health Board
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Mackay of Drumadoon,Lord McEwan |
| Judgment Date | 24 April 2013 |
| Neutral Citation | [2013] CSIH 36 |
| Court | Court of Session |
| Date | 24 April 2013 |
| Published date | 24 April 2013 |
| Docket Number | P876/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Mackay of Drumadoon Lady Dorrian Lord McEwan | [2013] CSIH 36 P876/11 OPINION OF THE COURT delivered by LADY DORRIAN in the Petition of MARY TERESA DOOGAN and CONCEPTA WOOD Petitioners and Reclaimers; for Judicial Review of a decision of Greater Glasgow and Clyde Health Board _______________ |
Act: Petitioners: Moynihan QC, M H Clark, Advocate; Brodies LLP Alt: Respondents: Napier QC, Olson, Advocate; Health Services Central Legal Office
24 April 2013
The issues
[1] This appeal concerns the scope of the right of conscientious objection enjoyed by each of the reclaimers under section 4(1) of the Abortion Act 1967 ("the Act") in respect of their employment at the Southern General Hospital, Glasgow ("the SGH").
The respondents are the NHS Greater Glasgow Health Board, who manage the Southern General Hospital. The dispute between the parties concerns duties of the reclaimers which are broadly referred to as those of delegation, supervision and support. What that dispute might entail is discussed below. The reclaimers maintain that the performance of any of these duties in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment which is the subject of their conscientious objection. The respondents maintain that the right of conscientious objection which each reclaimer enjoys is limited to a right to refuse to participate only in any "direct involvement in the procedure of terminating pregnancy". At the outset of the hearing, both parties submitted that, despite the fact that there was a degree of factual dispute, the points of law which arose for decision before the Lord Ordinary, and now before us, did not require any evidential hearing. For the reclaimers, the fall-back position was that if the matters of law were not determined in their favour, then they could not be determined without a proof before answer
Legislation
[2] For present purposes, the relevant provisions of the Act are 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 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 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.
......
(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.
4. Conscientious objection to participation in treatment
(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 the person claiming to rely on it.
(2) Nothing in subsection (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.
(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.
5.- Supplementary provisions.
....
(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
[3] Section 2 of the Act makes provision for the certification of the medical opinion referred to in section 1, and for notification of terminations to be made to the Chief Medical Officer within the relevant jurisdiction.
Background
[4] The reclaimers are midwives who have worked for many years in the labour ward at the SGH. They are both employed there as Labour Ward Co-ordinators. They are both practising Roman Catholics who, on commencement of their employment in the labour ward, intimated a conscientious objection to participation in termination of pregnancy, according to the Act. As a result they were not expected to, and did not, participate in the treatment of certain patients in the labour ward.
[5] For many years medical terminations of pregnancy have been carried out in the labour ward, if the foetus was more advanced than 18 weeks. Otherwise they took place in the gynaecological ward. From some point in 2007 all such terminations have taken place in the labour ward. In about 2010, with the closure of the Queen Mother's Maternity Hospital in Glasgow, the Foetal Medicine Service, which provided centralised specialist diagnostic facilities, including the diagnosis of foetal abnormality, was transferred to the labour ward at the SGH. Thus the number of terminations of pregnancy carried out in the labour ward increased in 2007 and again in 2010. It is generally accepted that this was the case, although there is a dispute between the parties as to the extent to which the reclaimers were required, prior to 2007, to delegate, supervise or support staff engaged in the treatment or care of patients undergoing termination procedures.
[6] As a result of concerns over the increase in terminations, the reclaimers initiated a formal grievance procedure in September 2009 in which they sought confirmation that, having expressed a conscientious objection to the termination of pregnancy, they would not be required to delegate, supervise and/or support other staff in the participation and provision of care to patients undergoing medical termination of pregnancy, at any stage in the process. The grievance was not upheld and an appeal to the respondents' Board was refused in decision letters dated 14 June 2011, which each reclaimer received and which stated:
"It is the view of the Panel that delegating to, supervising and /or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care and having the ability to provide leadership within the department is crucial to the roles and responsibilities of a Band 7 midwife, therefore this part of your grievance is not upheld."
These letters did not in terms address the scope or application of section 4(1) of the Act. The reclaimers sought judicial review of that decision on the basis that it was ultra vires, unreasonable, irrational and in contravention of the Act. They sought various orders including declarator that their right of conscientious objection in terms of the Act
"..includes the entitlement to refuse to delegate, supervise and/or support staff in the participation in and provision of care to patients undergoing termination of pregnancy or feticide throughout the termination process"
[7] It is a matter of agreement that as averred by the respondents in Answer 4.10 the reclaimers are midwifery sisters whose role as "Labour Ward Co-ordinators" includes:
(1) management of resources within the Labour Ward, including taking telephone calls from the Foetal Medicine Unit to arrange medical terminations of pregnancy;
(2) providing a detailed handover on every patient within the Labour Ward to the new Labour Ward co-ordinator coming on shift;
(3) appropriate allocation of staff to patients who are already in the ward at the start of the shift or who are admitted in the course of the shift;
(4) providing guidance, advice and support (including emotional support) to all midwives;
(5) accompanying the obstetricians on ward rounds;
(6) responding to requests for assistance, including responding to the nurse call system and the emergency pull;
(7) acting as the midwife's first point of contact if the midwife is concerned about how a patient is progressing;
(8) ensuring that the midwives on duty receive break relief, which may mean that the Labour Ward co-ordinator provides the break relief herself;
(9) that if any medical intervention is required, for example instrumental delivery with forceps, , the Labour Ward co-ordinator will often have to be present to support and assist;
(10) communicating with other professionals, e.g., paging anaesthetists;
(11) monitoring the progress of patients to ensure that any deviations from normal are escalated to the appropriate staff level, e.g., an obstetrician;
(12) directly providing care in emergency situations;
(13) ensuring that the family are provided with appropriate support.
[8] During the course of argument before the Lord Ordinary, the respondents accepted that under item 8 they could not require the reclaimers personally to provide break relief which would involve them in having to step in and ensure the...
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