Royal College of Nursing of the United Kingdom v Department of Health and Social Security
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilberforce,Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Roskill |
| Judgment Date | 05 February 1981 |
| Judgment citation (vLex) | [1981] UKHL J0205-3 |
| Date | 05 February 1981 |
| Court | House of Lords |
[1981] UKHL J0205-3
Lord Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Roskill
House of Lords
My Lords,
On 27th October 1967 Parliament passed the Abortion Act 1967. Its long title describes it as an Act "to amend and clarify the law relating to termination of pregnancy by registered medical practitioners".
Before the Act was passed it was an offence (sc. felony) for any person with intent to procure the miscarriage of any woman, whether she be or be not with child, unlawfully to administer to her or cause to be taken by her any poison or other noxious thing or unlawfully to use any instrument or other means whatsoever with the like intent. (Offences Against the Person Act 1861 section 58.) Further, the Infant Life (Preservation) Act 1922 created the offence of child destruction in relation to a child capable of being born alive. These provisions thus affected not only doctors, but nurses, midwives, pharmacists and others: they were in operation in 1967, subject only to the defence judicially given to the doctor in Rex v. Bourne [1939] 1 K.B. 687.
Section 1 of the Act of 1967 created a new defence, available to any person who might be liable under the existing law. It is available:
(i) " when a pregnancy is terminated by a registered medical practitioner"�these are the words of the Act.
(ii) when certain other conditions are satisfied, including the expressed opinion of two registered medical practitioners as to the risks (specified in paragraphs ( a) and ( b)) to mother, or child, or existing children, and the requirement that the treatment for the termination of pregnancy must be carried out in a National Health Service Hospital or other approved place.
The present case turns upon the meaning to be given to condition (i).
The issue relates to a non-surgical procedure of medical induction by the use of a drug called prostaglandin. This operates upon the mother's muscles so as to cause contractions (similar to those arising in normal labour) which expel the foetus from the womb. It is used during the second trimester. The question has been raised by the Royal College of Nursing as to the participation of nurses in this treatment, particularly since nurses can be called upon (subject to objections of conscience which are rarely invoked) to carry it out. They have felt, and express grave concern as to the legality of doing so and seek a declaration, that a circular issued by the Department of Health and Social Security, asserting the lawfulness of the nurses' participation, is wrong in law.
There is an agreed statement as to the nature of this treatment and the part in it played by the doctors and the nurses or midwives. Naturally this may vary somewhat from hospital to hospital, but, for the purpose of the present proceedings, the assumption has to be made of maximum nurse participation, i.e. that the nurse does everything which the doctor is not required to do. If that is not illegal, participation of a lesser degree must be permissible.
1. The first step is for a thin catheter to be inserted via the cervix into the womb so as to arrive at, or create, a space between the wall of the womb and the amniotic sac containing the foetus. This is necessarily done by a doctor. It may, sometimes, of itself bring on an abortion, in which case no problem arises: the pregnancy will have been terminated by the doctor. If it does not, all subsequent steps except number four may be carried out by a nurse or midwife. The significant steps are as follows�I am indebted to Brightman L.J. for their presentation:
2. The catheter (i.e. the end emerging from the vagina) is attached, probably via another tube, to a pump or to a gravity feed apparatus. The function of the pump or apparatus is to propel or feed the prostaglandin through the catheter into the womb. The necessary prostaglandin infusion is provided and put into the apparatus.
*3. The pump is switched on, or the drip valve is turned, thus causing the prostaglandin to enter the womb.
4. The doctor inserts a cannula into a vein.
*5. An oxytocin drip feed is linked up with the cannula. The necessary oxytocin (a drug designed to help the contractions) is supplied for the feed.
6. The patient's vital signs are monitored, so is the rate of drip or flow.
*7. The flow rates of both infusions are, as necessary, adjusted.
*8. Fresh supplies of both infusions are added as necessary.
9. The treatment is discontinued after discharge of the foetus, or expiry of a fixed period (normally 30 hours) after which the operation is considered to have failed.
The only steps in this process which can be considered to have a direct effect leading to abortion (abortifacient steps) are those asterisked. They are all carried out by the nurse, or midwife. As the agreed statement records "the causative factor in inducing � the termination of pregnancy is the effect of the administration of prostaglandin and/or oxytocin and not any mechanical effect from the insertion of the catheter or cannula".
All the above steps 2�9 are carried out in accordance with the doctor's instructions�which should, as regards important matters, be in writing. The doctor will moreover be on call, but may in fact never be called.
On these facts the question has to be answered: has the pregnancy been terminated by the doctor; or has it been terminated by the nurse; or has it been terminated by doctor and nurse? I am not surprised that the nurses feel anxiety as to this.
In attempting to answer it, I start from the point that in 1967�the date of the Act�the only methods used to produce abortions were surgical methods; of these there were several varieties, well enough known. One of these was by intra-amniotic injection�i.e. the direct injection of glucose or saline solutions into the amniotic sac. It was not ideal or, it appears, widely used. Parliament must have been aware of these methods and cannot have had in mind a process where abortifacient agents were administered by nurses. They did not exist. Parliament's concern must have been to prevent existing methods being carried out by unqualified persons and to insist that they should be carried out by doctors. For these reasons Parliament no doubt used the words, in section 1(1) "termination of pregnancy by a registered medical practitioner".
Extra-amniotic administration of prostaglandin was first reported in 1971, and was soon found to have advantages. It involves, or admits, as shown above, direct and significant participation by nurses in the abortifacient steps. Is it covered by the critical words?
In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question "What would Parliament have done in this current case�not being one in contemplation�if the facts had been before it" attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.
In my opinion this Act should be construed with caution. It is dealing with a controversial subject involving moral and social judgments on which opinions strongly differ. It is, if ever an Act was, one for interpreting in the spirit that only that which Parliament has authorised on a fair reading of the relevant sections should be held to be within it. The new (post-1967) method of medical induction is clearly not just a fresh species or example of something already authorised. The Act is not one for "purposive" or "liberal" or "equitable" construction. This is a case where the courts must hold that anything beyond the legislature's fairly expressed authority should be left for Parliament's fresh consideration.
Having regard particularly to the Act's antecedents and the state of affairs existing in 1967, which involved surgical action requiring to be confined to termination by doctors alone, I am unable to read the words "pregnancy terminated by a registered medical practitioner" as extended or extensible to cover cases where other persons, whether nurses, or midwives, or even lay persons, play a significant part in the process of termination. That a process in which they do so may be reliable, and an improvement upon existing surgical methods, may well be the case�we do not in fact even know this. It may be desirable that doctors' time should be spared from directly...
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