Mary Theresa Doogan+concepta Wood For Judicial Review Of A Decision Of The Greater Glasgow And Clyde Health Board
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2012] CSOH 32 |
| Published date | 29 February 2012 |
| Date | 29 February 2012 |
| Court | Court of Session |
| Docket Number | P876/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 32 | |
| P876/11 | OPINION OF LADY SMITH in the Petition of MARY TERESA DOOGAN and CONCEPTA WOOD Petitioners; for Judicial Review of a decision of Greater Glasgow and Clyde Health Board ________________ |
Petitioners: Johnston, Q.C.; Ms M Clark, advocate; Brodies LLP
Respondents: Napier, Q.C.; Olson, advocate; Health Services Central Legal Office
29 February 2012
INTRODUCTION
[1] The petitioners are both midwives. They are employed by the respondents to work at the Southern General Hospital, Glasgow. They worked in the labour ward there for many years. They are midwifery sisters who were working as "Labour Ward Co-ordinators" but the first petitioner has been absent from work due to ill health since 15 March 2010 and the second petitioner has been transferred to work in Maternity Assessment (Triage) due to the dispute with which this petition is concerned.
[2] The patients in labour wards are pregnant women. For many, the purpose of their being there is to achieve a joyful outcome - the birth of a live, healthy child. There are, however, others who, for a variety of reasons, do not seek to achieve the birth of a live child and are in the ward so that their pregnancy may be brought to an end, before term. The law recognises their right to pursue that purpose in certain circumstances.
[3] Where, in the case of a pregnancy which has not exceeded its twenty fourth week, two doctors are of the opinion that there is a risk of its continuance involving greater injury to the physical or mental health of the pregnant woman (or the existing children of her family), than if the pregnancy were terminated, or that she will suffer grave permanent injury to her physical or mental health if the pregnancy continues or continuation of the pregnancy will put her life at risk, it may be lawfully terminated.[1].
[4] Also, where two doctors are of the opinion that a child, if born, will suffer from such physical or mental abnormalities as to be "seriously handicapped"[2], the mother's pregnancy may be lawfully terminated.
[5] And, in a case of emergency, where termination of the pregnancy is immediately necessary to save the woman's life, it may proceed on the basis of the opinion of one doctor only[3].
[6] Terminations may be performed surgically or, as is the norm nowadays, by administering an abortifacient drug. The latter treatment is referred to in this case as "medical termination."
[7] Medical terminations have, for many years, taken place in the labour ward of the Southern General Hospital. Prior to 2007, medical terminations took place there only where the foetus was older than eighteen weeks. Otherwise, they took place in the gynaecological ward. From some point in 2007, matters changed so that all such terminations took place in the labour ward. In January 2010, the Queen Mother's Maternity Hospital in Glasgow closed. It had provided a Foetal Medicine Service which afforded centralised specialist diagnostic facilities including for the diagnosis of foetal abnormality. The Foetal Medicine Service was transferred to the Southern General Hospital when the Queen Mother's Hospital closed, giving rise to an increase in the number of termination cases being handled there. Thus, whilst some medical terminations had always taken place in the labour ward - and were doing so as at, for instance, 2005 - they increased in number in 2007 and then, again, in 2010.
[8] The petitioners are both Roman Catholics and object, on religious grounds, to participating in abortions. They are opposed to abortion. They believe that every foetus has a right to life. They believe that a disabled foetus has a right to life. They consider it abhorrent to be instructed to assist in or facilitate any action that will lead to termination of a woman's pregnancy. They do, however, recognise that they, in common with all midwives, have a duty to care for the pregnant woman as well as for her unborn child.
[9] A right of conscientious objection is implied into the petitioners' contracts of employment, by section 4(1) of the 1967 Act.
[10] The issue they raise is this: given that right of conscientious objection, are the respondents entitled to require them to delegate, supervise and support staff in the treatment of patients undergoing termination of pregnancy?
BACKGROUND
The Petitioners' Job
[11] The petitioners' job description is contained in a document which was signed by the first petitioner in November 2005 (7/1 of process) and specified the job purpose as being:
"The post holder is responsible for providing clinical leadership and operational management for delivery of the midwifery service within labour ward and obstetric theatre."
[12] The particularisation, in that document, of the tasks involved in the job demonstrates that it is a management and leadership role which requires delegation of direct patient care to midwives and the provision to them of supervision and support. The midwifery sisters working at the level of the petitioners are shown, diagrammatically, as being "line managers" to the midwives working at grades E/F and to nursing auxiliaries working at grade A. In signing the job description, the first petitioner confirmed that she was a "Registered Midwife on the NMC Register."
[13] I do not understand the second petitioner's job description to be any different from that of the first petitioner.
[14] "NMC" refers to the "National Midwifery Council". Only those who are also members of the Royal College of Nursing ("RCN") are on its register. The RCN guidelines on "Abortion Care" of 2008 (document 7/2) thus apply to registered midwives. They state:
"Conscientious objection
The Abortion Act 1967 provides a right of conscientious objection in Section 4 which allows nurses to decline to participate in abortion. This right is limited only to the active participation in an abortion where there is no emergency with regard to the physical or mental health of the pregnant woman."
[15] Similar NMC guidelines dated April 2008 (document 7/4) refer to the nurses and midwives having a right of conscientious objection under the 1967 Act and state:
"Nurses and midwives who do conscientiously object ....are reminded that they are accountable for whatever decision they make and could be called upon to justify their objection within the law.....
.............
Nurses and midwives do not have the right to refuse to take part in emergency treatment. In any emergency, they would be expected to provide care.
.............................
Nurses and midwives should give careful consideration when deciding whether or not to accept employment in an area that carries out treatment or procedures to which they object. If they raise a conscientious objection to being involved in certain aspects of care or treatment they must do so at the earliest possible time, in order for managers to arrange alternative arrangements...............
......................
The NMC expects all nurses and midwives to be non-judgmental when providing care."
[16] At part 4 of 7/1, the "Dimensions" of the job are set out:
| " |
|
o Exercise effective management of the department on shift basis, optimising the use of human resources, absence management and rostering to reflect activity requirements. This includes management/ supervisory responsibility for 8 -10 staff on each shift.
o Ensure effective management, security and safety of resources including supplies, pharmacy and equipment.
o Adhere to the organisation's standing financial instructions.
o Provide clinical leadership, guidance and support to staff and be responsible for ensuring their supervision, training and education.
o Direct/assist with the planning and delivery of clinical teaching of student midwives and nurses, qualified midwives and other learners.
o Consult with medical staff in identifying and solving problems in patient care which lie outwith the scope of autonomous midwifery practice.
o Keep abreast of new developments and act as midwife advisor.
o Collaborate with the senior midwife in the monitoring of staff performance appraisal/ PDP and continued professional development.
o Participate in the development and trial of new concepts, equipment and procedures in the ward/department for the improvement of patient care/service.
o Deputise for the Senior Midwife during periods of absence."
[17] The Senior Midwife's role is also managerial and senior to the midwifery sisters.
[18] At part 6 of 7/1, the "Key Result Areas" are set out:
| " | o Contribute, as part of the multidisciplinary team, to the development, implementation and maintenance of policies, procedures, standards and protocols of the ward and division, to ensure adherence to, and delivery of the highest level of patient care at all times |
o Be responsible for the assessment of individual care needs and the development, implementation and evaluation of programmes of care for women throughout the intrapartum episode, and when the woman requires high dependency care. Co-ordinate the input of other professionals to the woman's care.
o Supervise and support the midwifery team in their decision making in the care of intrapartum women, ensuring that any deviation from normal is promptly identified and acted upon.
o Frequently support and advise all levels of trainee obstetricians in their decision making and delivery of care to high risk cases falling outwith autonomous midwifery practice.
o Administer and manage complex treatment plans for women who are compromised.
o Be responsible for maintaining effective communication with patients, relatives, carers and other members of the multidisciplinary team to ensure that appropriate information is shared and...
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