The Royal College of Nursing of the United Kingdom (Plaintiff v The Department of Health and Social Security (Defendant
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BRIGHTMAN,SIR GEORGE BAKER |
| Judgment Date | 07 November 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1107-1 |
| Docket Number | 1980 R. No. 2242 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 1980 |
[1980] EWCA Civ J1107-1
The Master of the Rolls (Lord Denning)
Lord Justice Brightman and
Sir George Baker
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Mr. Justice Woolf)
MR. M. SPENCER (instructed by M. J. Scrivenger, Esq.) appeared on behalf of the Plaintiff (Appellant).
THE SOLICITOR-GENERAL (Sir Ian Percival, Q. C.) and MR. SIMON BROWN and MR. STEPHEN AITCHISON (instructed by the Treasury Solicitor) appeared on behalf of the Defendant (Respondent).
INTRODUCTION
Abortion is a controversial subject. The question for us to-day is this: 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 the doctor should do the actual act himself and not leave it to the nurses. The Department of Health take a different view. They say that a doctor can initiate the process and then go off and do other things, so long as he is "on call". The controversy is so acute that it has come before us for decision.
Throughout the discussion I am going to speak of the unborn child. The old common lawyers spoke of a child en ventre sa mère. Doctors speak of it as the foetus. In simple English it is an unborn child inside the mother's womb. Such a child was protected by the criminal law almost to the same extent as a new-born baby. If anyone terminated the pregnancy — and thus destroyed the unborn child — he or she was guilty of a felony and was liable to be kept in penal servitude for life, see section 58 of the 1861 Act, unless it was done to save the life of the mother, see Rex v. Bourne (1939) I King's Bench 687. Likewise anyone who assisted or participated in the abortion was guilty, including the mother herself. I have tried several cases of "back-street abortions" — where the mother died or was made seriously ill. I have passed severe sentences of imprisonment for the offence.
2. THE 1967 ACT
The approach to the subject was revolutionised by the Abortion Act 1967. It legalised abortion if it was done soas to avoid risk to the mother's health, physical or mental. This has been interpreted by some medical practitioners so loosely that abortion has become obtainable virtually on demand. Whenever a woman has an unwanted pregnancy, there are doctors who will say it involves a risk to her mental health. But the Act contains some safeguards. It provided that, in order for the abortion to be lawful, it was subject to three conditions. (1) The woman had to get two doctors to give a certificate. (2) The abortion had to be done in hospital. And (3) the pregnancy had to be "terminated by a registered medical practitioner". It is this last condition which comes up for consideration to-day. It arises because of the advance in medical science.
The material words of the 1967 Act are that:
"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 …"
AT the time that the Act was passed — and for five years afterwards — there was no difficulty of interpretation. All abortions then — at any rate when the mother was three months pregnant or more — were done by surgical methods. The knife with the cutting edge was operated by a registered medical practitioner. He used it to remove the unborn child. The knife was never handled by a nurse. She was not a registered medical practitioner.
3. MEDICAL INDUCTION
Since 1972 a new method has been used. It is called medical induction. It does not involve a knife. It started quite simply in ordinary full-time births — so as to induce labour a few hours early — to save the mother the stress ofwaiting — or for the convenience of doctors and staff. But it is now becoming much used to effect abortions — when the mother is pregnant for three months or more. It is done by pumping a chemical fluid into the mother's womb. It is called prostaglandin. This fluid so affects the muscles and shape of the mother's inside that it forces her into labour prematurely — so that the unborn child is expelled from the body — usually dead, but sometimes at the point of death.
There are two distinct stages in this process. The first stage is done by a doctor — a registered medical practitioner. The mother is taken from the ward to the operating theatre. She is given a general anaesthetic. The doctor inserts a fine catheter into her body so as to reach a particular part of her womb. But no fluid is pumped into her at that stage. She is then taken back to the ward. She is left there until she recovers from the anaesthetic. The doctor writes out a few notes telling the nurse what to do. He then goes off, saying: "Give me a call if there is any difficulty".
The second stage is done by the nurses. When the mother comes round from the anaesthetic, they get a flexible tube and connect up the catheter with a pump which is electrically driven: or with a dripping device. They then get the special fluid called prostaglandin. They have to see that it is of the right concentration. They have it in a bottle, and pump the fluid into the woman's body. They have to regulate the dose and control the intake — by speed and amount — as occasion requires. If need be, they have to get another bottle. They have to watch the woman and note her reactions: and take such steps as occasion requires. Labour is induced. The unborn child is expelled from the woman's body. The process may take18 hours, or even up to 30 hours. If the unborn child is not expelled by that time, the process is stopped. The child is allowed to live on — to await normal delivery later.
Here I would stop for a moment to point out that the first stage (done by the doctor) does nothing to terminate the pregnancy. The insertion of the catheter is only a preparatory act. It is the second stage (done by the nurses) which terminates the pregnancy. There is an agreed statement of fact which shows that thé causative factor is the administration of prostaglandin. This is the way in which it is put:
"It will be appreciated that in the medical induction process the causative factor in inducing the labour and hence 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. In that the nurse does, on the instructions of the doctor, commence or augment the flow of prostaglandin or oxytocin, and even sometimes effect the connection between the already inserted catheter and the prostin pump and the already intravenous cannual and the oxytocin infusion, her role in the process does include acts which have, and are intended to have, an abortifacient effect".
To take a parallel from the removal of an appendix. The anaesthetist makes all the oreparations, but the removal is done by the surgeon himself. So here, the doctor makes the preparations — inserting the catheter — but the pregnancy is terminated by the act — the continuous act — done by the nurses — from the moment that they start the pump or the drip to the moment when the baby is expelled.
4. THE ROYAL COLLEGE OBJECTION
I can quite understand that many nurses dislike having anything to do with these abortions. It is a soul-destroying task. The nurses are young women who are dedicated by their profession and training to do all they can to preserve life. Yet here they are called upon to destroy it. It is true that the statute gives them an escape clause. They can refuse to participate in any treatment to which they have a "conscientious objection", see section 4 of the 1967 Act. But the Report of Dame Elizabeth Lane and her colleagues shows that many nurses do not take advantage of this "escape clause". Because it means that other nurses will have to do this heart-rending task. And they feel it may be held against them by their superiors. So they take part in it — much against their will, see paragraphs 321 to 374 of Dame Elizabeth Lane's report.
It is against this background that the Royal College of Nursing ask the question: Is it lawful for nurses to be called upon to terminate pregnancy in this way? The Royal College says No. It is not lawful. It is not a nurse's job to terminate a pregnancy. The Department of Health say Yes. It is lawful. They have issued a circular in which they presume to lay down the law for the whole of the medical profession. They say that it is no offence if the pregnancy is terminated by a suitably qualified person in accordance with the written instructions of a registered medical practitioner. This is the wording of the circular:
"However, the Secretary of State is advised that the termination can properly be said to have been terminated by the registered medical practitioner provided it is decided upon by him, initiated by him, and that he remains throughoutresponsible for its overall conduct and control in the sense that any actions needed to bring it to conclusion are done by appropriately skilled staff acting on his specific instructions but not necessarily in his presence".
Note those words "not necessarily in his presence". They are crucial.
5. THE INTERPRETATION OF THE 1967 ACT
The lawfulness depends on the true interpretation of the statute: but, before going into it, I would say a word or two about the approach to it.
(i) Abortion is a subject on which many people feel strongly. In both directions. Many are for it. Many against it. Some object to it as the destruction of life. Others favour it as the right of the woman. Emotions run so high on both sides...
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