R British Pregnancy Advisory Service v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 05 June 2019 |
| Neutral Citation | [2019] EWHC 1397 (Admin) |
| Docket Number | Case No: CO/4271/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 June 2019 |
Neutral Citation Number: [2019] EWHC 1397 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/4271/2018
Jude Bunting (instructed by Reynolds Porter Chamberlain) for the Claimant
Galina Ward (instructed by Government Legal Dept.) for the Defendant
Hearing date: 14 May 2019
Approved Judgment
Introduction
The issue in this case is the correct interpretation of the words, “the pregnancy has not exceeded its twenty-fourth week” in s.1(1)(a) of the Abortion Act 1967 (“the 1967 Act”).
Section 1 of the 1967 Act provides, so far as is relevant:
“(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
…
(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.”
On 23 July 2018 Professor Dame Sally Davies, Chief Medical Officer, wrote to all doctors performing termination of pregnancy (“the Decision Letter”):
“ Clarification of time limit for termination of pregnancy performed under Grounds C and D of the Abortion Act 1967
I am writing to clarify the Department of Health and Social Care's interpretation of the legal time limit for termination of pregnancy performed under Grounds C or D of the Abortion Act 1967, which sets out that an abortion can legally be performed under these Grounds where ‘the pregnancy has not exceeded its twenty-fourth week’. The Department's legal advice is that the time limit for abortion performed under Grounds C or D equates to a pregnancy not exceeding 23 weeks and 6 days. The taking of the second abortion drug or surgical evacuation forms part of the treatment for termination of pregnancy and therefore all elements of treatment must be completed by 23 weeks and 6 days.
This advice is based on the fact that, clinically, a pregnancy is dated from the 1 st day of the woman's last menstrual period (LMP). As you will be aware, this day is counted as day 0 of her pregnancy. Therefore, when the woman reaches 23 weeks + 0 days she will have entered her 24 th week of pregnancy, which will run from 23 weeks + 0 days to 23 weeks + 6 days (7 completed days of pregnancy in total). Using this method of calculation, a woman will have exceeded her twenty-fourth week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24 th week of pregnancy. On the expiration of her 24 th week of pregnancy, she will have been pregnant for a total of 168 days; an abortion on the 169 th day (24 weeks + 0) would, in the view of DHSC's legal services, be unlawful.
To remove any ambiguity, HSA4 forms and other relevant documentation, including the Required Standard Operating Procedures for independent sector providers will be amended to clearly state that abortion under Grounds C or D can legally be performed up to and including 23 weeks and 6 days.”
The Claimant contends that a pregnancy reaches its twenty-fourth week on week 24 + 0 days and exceeds it on week 24 + 1 day, and that this accords with the Secretary of State's long-standing interpretation of s.1(1)(a) of the 1967 Act. Accordingly, the effect of the Secretary of State's ‘clarification’ is to remove a day from what the Claimant maintains is the well-established upper time limit for lawful abortions.
Legislative History
S.1(1) of the 1967 Act, when first enacted, did not include any time limit. S.5(1) stated, “Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)”. S.1(1) of the Infant Life (Preservation) Act 1929 (“the 1929 Act”) provides that it is an offence for a person to cause a child to die before it has an existence independent of its mother, with the intent to destroy the life of a child capable of being born alive. S.1(2) of the 1929 Act provides that “evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive”.
On 1 August 1991, s.37 of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) came into force. It introduced new sub-paragraphs to s.1(1) of the 1967 Act, including, at s.1(1)(a), the words, “not exceeded its twenty-fourth week”.
Factual Background
Professor Lesley Regan, President of the Royal College of Obstetricians and Gynaecologists (“RCOG”), explains in her witness statement that estimating the expected due date (“EDD”) based on the first day of the LMP was first developed by a 19 th century obstetrician, Franz Naegele, in 1812. This and other similar methods have been in use, worldwide, ever since. The first day of the LMP, which is the day that the LMP begins, is referred to as day 0.
The history of the Secretary of State's understanding of the correct interpretation of s.1(1)(a) is set out in the witness statement of Ms Andrea Duncan, Deputy Branch Head for the Healthy Behaviours Team in the Department for Health and Social Care (“the Department”). She has worked in the team who lead on abortion policy within the Department for around 20 years and has managed the team since around 2007.
Regulation 3 of the Abortion Regulations 1991 (“the 1991 Regulations”), which came into force at the same time as s.37 of the 1990 Act, requires any opinion to which s.1 of the 1967 Act refers to be certified and, in the case of a pregnancy, terminated in accordance with s.1(1) of the 1967 Act. When originally enacted it was mandatory that this certification was to be in the specified form set out in Part 1 of Schedule 1 to the 1991 Regulations (“the HSA1 form”). The HSA1 form sets out a number of grounds for abortion, including grounds C and D which states the requirement that “the pregnancy has not exceeded its 24 th week”, and does not refer to either 23 + 6 or 24 + 0.
Regulation 4 of the 1991 Regulations also requires a practitioner who terminates a pregnancy to notify the Chief Medical Officer (“the CMO”), providing such information as is specified in Schedule 2 to the 1991 Regulations. Initially, it was mandatory for this notification to be through a prescribed form (“the HSA4 form”) which as originally enacted also referred to the pregnancy exceeding its 24 th week, but did not refer to either 23 + 6 or 24 + 0.
Ms Duncan states (at para 8) that in order to make the HSA4 form easier to complete and to ensure that the 1991 Regulations complied with the Human Rights Act 1998, a consultation was launched in August 2000 proposing changes to the HSA4 form. The Department has been unable to locate a copy of the draft HSA4 form that was circulated with the consultation, however the consultation letter does not refer to 23 + 6 or 24 + 0. The letters setting out the response to the consultation from the CMOs for England and Wales do not refer to 24 + 0. However the HSA4 form included at the end of the letter from the CMO for Wales refers to 24 + 0, and the HSA4 forms (for both England and Wales) were subsequently updated to refer to 24 + 0. The form of the electronic Abortion Notification System (“ANS”) also refers to 24 + 0. Ms Duncan says that, “It is not clear why this reference to 24 + 0 was included and there is no evidence that clinical advice on this point was sought at this time. Neither the 1991 Regulations nor the amending Regulations enacted following the consultation (the Abortion (Amendment) (England) Regulations 2002 and Regulation 3 of the Abortion (Amendment) (Wales) Regulations 2002 (together ‘the 2002 Regulations’)) refer to either 23 + 6 or 24 + 0”.
Ms Duncan states (at para 9) that it was mandatory to use the HSA1 and HSA4 forms in England until 18 April 2002 and in Wales until 17 December 2002, the dates on which amendments pursuant to the 2002 Regulations came into effect. Following the amendments made by the 2002 Regulations, practitioners could provide the prescribed information by other prescribed methods, it being no longer mandatory to use the forms. The prescribed information includes the number of complete weeks of gestation.
In 2007 the House of Commons Science and Technology Committee (“the Committee”) held an inquiry into abortion and produced a report titled “Scientific Developments Relating to the Abortion Act 1967” (“the Report”). Paragraph 20 of the Report states, “The upper gestational limit on most abortions in the UK is 24 weeks 0 days”, citing at footnote 14 the evidence of Ms Paula Cohen, then assistant director of legal services in the Department of Health, for this statement. Ms Cohen's evidence, given on 24 October 2007, was in fact “The 24 th week is 23 weeks plus six; so 24 weeks plus one is over the legal time limit”. A note to her evidence states that “The Department has submitted a memorandum to correct this sentence”. The memorandum that was sent to the committee stated:
“I [Rt Hon Dawn Primarolo, Minister of State for Public Health] would also like to take this...
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R British Pregnancy Advisory Service v The Secretary of State for Health and Social Care
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