Michaelmas Term [2014] UKSC 68 On appeal from: [2013] CSIH 36

JUDGMENT
Greater Glasgow Health Board (Appellant) v
Doogan and another (Respondents) (Scotland)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
Wednesday 17 December 2014
Heard on 11 November 2014
Appellant Respondents
Brian Napier QC Gerry Moynihan QC
Hugh Olson Marie Clark
(Instructed by NHS
Scotland
)
(Instructed by Brodies
LLP
)
Interveners (Royal College
of Midwives and British
Pregnancy Advisory
Service)
Karon Monaghan QC
Barbara Hewson
(Instructed by Thompsons
Solicitors
)
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LADY HALE: (with whom Lord Wilson, Lord Reed, Lord Hughes and Lord
Hodge agree)
1. The Abortion Act 1967 provides a comprehensive code of the circumstances
in which it is lawful to bring about the termination of a pregnancy in England,
Wales and Scotland. It enlarged and replaced the limited circumstances in
which this was recognised as lawful by the common law. It also regulated the
procedure. Other than in an emergency, two doctors must be of the opinion
that the grounds for bringing about a termination exist and the termination
must take place either in a National Health Service Hospital or in a clinic
approved for the purpose. While the Bill was going through Parliament, a
clause protecting the right of conscientious objection to taking part in an
abortion was introduced. This case is about the precise scope of that right.
The relevant legislation
2. As originally enacted, section 1 of the 1967 Act read thus:
“(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 continuance of the pregnancy would involve
risk to the life of the pregnant woman, or of injury to the
physical or mental health of the pregnant woman or any
existing children of her family, greater than if the
pregnancy were terminated; or
(b) 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.
(2) In determining whether the continuance of a pregnancy
would involve such risk of injury to health as is mentioned in
paragraph (a) of subsection (1) of this section, account may be
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taken of the pregnant woman’s actual or reasonably foreseeable
environment.
(3) Except as provided by subsection (4) of this section, any
treatment for the termination of pregnancy must be carried out
in a hospital vested in the Minister of Health or the Secretary
of State under the National Health Service Acts, or in a place
for the time being approved for the purposes of this section by
the said Minister or the Secretary of State.
(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.”
3. Section 5 of the Act also provided:
“(1) Nothing in this Act shall affect the provisions of the Infant
Life (Preservation) Act 1929 (protecting the life of the viable
foetus).
(2) For the purposes of the law relating to abortion, anything
done with intent to procure the miscarriage of a woman is
unlawfully done unless authorised by section 1 of this Act.”
4. The Human Fertilisation and Embryology Act 1990 modified the
circumstances in which abortion is lawful in two ways. It substituted the
following for paragraphs (a) and (b) of section 1(1) of the 1967 Act:
“(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
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(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.”
5. Section 5 was also amended to read as follows:
(1) No offence under the Infant Life (Preservation) Act 1929
shall be committed by a registered medical practitioner who
terminates a pregnancy in accordance with the provisions of
this Act.
(2) For the purpose 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 and, in the case of a woman carrying
more than one foetus, anything done with intent to procure her
miscarriage of any foetus is authorised by that section if –
(a) the ground for termination of the pregnancy
specified in subsection 1(d) of that section applies in
relation to any foetus and the thing is done for the
purpose of procuring the miscarriage of that foetus, or
(b) any of the other grounds for termination of the
pregnancy specified in that section applies.”
6. The broad effect, therefore, was to introduce a limit of twenty four weeks’
gestation for abortions carried out on ground (a), which is far and away the
most common of the four grounds (see para 13 below), but to remove the
limit provided by the Infant Life (Preservation) Act 1929 for abortions carried
out on grounds (b), (c) or (d). It also introduced the possibility of selective
Page 5
abortion, where a woman is carrying more than one foetus, either in order to
abort a foetus which may be seriously handicapped or because the reduction
in the number of foetuses she is carrying is justified on one of the other
grounds.
7. Section 1(3) has also been amended, and a new section 1(3A) added, by the
1990 and other legislation and now reads as follows:
“(3) Except as provided by subsection (4) of this section, any
treatment for the termination of pregnancy must be carried out
in a hospital vested in the Secretary of State for the purposes of
his functions under the National Health Service Act 2006 or the
National Health Service (Scotland) Act 1978 or in a hospital
vested in a Primary Care Trust or a National Health Service
trust or an NHS foundation trust or in a place approved for the
purposes of this section by the Secretary of State.
(3A) The power under subsection (3) of this section to approve
a place includes power, in relation to treatment consisting
primarily in the use of such medication as may be specified in
the approval and carried out in such manner as may be so
specified, to approve a class of places.”
8. Section 1(3A) reflects a change in the methods by which abortions are
generally performed. When the 1967 Act was passed, pregnancies were
terminated by surgical procedures to remove the foetus from the uterus. Now
they are mostly terminated by the administration of drugs which prematurely
induce labour. Current practice is that a patient is given an anti-progestogenic
steroid in tablet form followed some 48 hours later by a prostaglandin in
pessary form. The patient then undergoes a labour and delivers the foetus,
placenta and membrane in the normal way unless surgical intervention is
required. Selective reduction in the number of foetuses carried is performed
by what is known as feticide, killing one of those foetuses in the womb.
Feticide is also carried out where there is a risk of the foetus being born alive
following the termination.
9. The change from surgical operations to medical methods of induction of
labour led to the first of two cases under the 1967 Act to reach the House of
Lords. In Royal College of Nursing of the United Kingdom v Department of
Health and Social Security [1981] AC 800, the issue was pithily explained
by Lord Denning MR in the Court of Appeal:
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“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 a doctor should do the actual act himself and
not leave it to the nurses. The Department of Health and Social
Security take a different view. They say that the doctor can
initiate the process and then go off and do other things, so long
as he is ‘on call’.” (p 802)
The majority of the House of Lords (Lord Diplock, Lord Keith of Kinkel and
Lord Roskill) held that “when a pregnancy is terminated” in section 1(1) of
the 1967 Act meant the whole process of treatment designed to bring that
about, and not just the actual ending of the pregnancy. Furthermore, that
process was carried out “by a registered medical practitioner” when it was a
team effort carried out under his direction, with the doctor performing those
tasks that are reserved to a doctor and the nurses and others carrying out those
tasks which they are qualified to perform.
10. One reason for reaching that conclusion was that the Act uses the words
“termination” and “treatment” apparently interchangeably. In particular, the
“conscience clause” in section 4 is headed “Conscientious objection to
participation in treatment” and reads:
“(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
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the burden of proof imposed upon him by subsection (1) of this
section.”
It is common ground in this case that subsection (3) was enacted because of
the requirement of corroboration in civil proceedings in Scotland which has
since been abolished.
11. It will immediately be apparent that the question in this case, and the only
question, is the meaning of the words “to participate in any treatment
authorised by this Act to which he has a conscientious objection”. That
question was addressed by the House of Lords in R v Salford Health
Authority, Ex p Janaway [1989] AC 537, a case which all parties accept was
rightly decided. Mrs Janaway was a secretary and receptionist in a health
centre, who objected to typing a letter from a GP at the health centre referring
a patient to a hospital consultant with a view to a possible termination. It was
held that “any treatment authorised by this Act” meant the process of
treatment in hospital for the termination of pregnancy and “participating”
meant actually taking part in that process. It did not have the extended
meaning given to participation by the criminal law. The House was not
concerned, as we are in this case, with what those words mean in the context
of hospital treatment.
How this claim came about
12. The petitioners are both experienced midwives employed at the Southern
General Hospital in Glasgow. The job which they both held now has the title
Labour Ward Co-ordinator. Miss Doogan has worked predominantly in the
Labour Ward since 1988, but has been absent through ill-health since March
2010. Mrs Wood worked in the Labour Ward from 1992 until March 2010
when she transferred to work in maternity assessment. Both are practising
Roman Catholics who believe that human life is sacred from the moment of
conception and that termination of pregnancy is a grave offence against
human life. They also believe that any involvement in the process of
termination renders them accomplices to and culpable for that grave offence.
Each informed their employer, the Greater Glasgow Health Board, of their
conscientious objection to taking part in the termination of pregnancy when
they began work in the Labour Ward in 1988 and 1992 respectively.
13. Maternity services in Glasgow used to be provided in three hospitals, but in
2004 it was decided to close one of them down. Maternity facilities at the
remaining two hospitals, the Southern General Hospital and the Princess
Royal Maternity Hospital, were extended and refurbished. The first babies
Page 8
were born in the new maternity unit at the Southern General Hospital in
December 2009. The Fetal Medicine Unit at the closed hospital was
transferred to the Southern General Hospital. The vast majority of abortions
performed in the United Kingdom are performed on ground (a) (98% in
England and Wales and 98.7% in Scotland in the year to 31st December
2012). All medical terminations of pregnancy on that ground at the Southern
General Hospital (which by definition are now under 24 weeks’ gestation)
take place in the Gynaecology Ward, not the Labour Ward.
14. Medical terminations (after 12 weeks’ gestation) on the remaining grounds,
that is on grounds (b), (c) and (d) in section 1(1) and in the emergencies
provided for by section 1(4), take place in the Labour Ward. These are a tiny
proportion of all terminations and a tiny proportion of the work of the Labour
Ward. Since 2010, there have been about 6000 births a year at the Southern
General Hospital and just under 60 terminations a year in the Labour Ward.
The majority of these are because of foetal abnormalities (ground (d)) and
are particularly distressing for everyone concerned, because these were often
wanted babies who may have to be aborted at a late stage of gestation.
15. The practice since 2010 has been that where a foetal abnormality is detected
the patient will be transferred to the Fetal Medicine Unit, where she will be
counselled about the test results and the options available to her. If she
decides on termination, the Fetal Medicine Unit will liaise with the Labour
Ward to decide upon a suitable time for her admission and will administer
the first dose of medication to induce labour. She will return to the Fetal
Medicine Unit 48 hours later. They will contact the Labour Ward to make
sure that there is suitable accommodation available and escort her round to
the Labour Ward where the remainder of the process will take place. The aim
is for no more than one medical termination a day to be scheduled in the
ward. Other scheduled work in the Labour Ward includes elective caesarean
sections and inductions of labour. Unscheduled work includes normal
spontaneous labours or foetal losses and emergency operations. Scheduling
the Labour Ward workload is the job of the Labour Ward Co-ordinator.
16. When a patient undergoing a termination is admitted to the Labour Ward, a
midwife will be assigned to give her one to one care. This will involve all the
usual care of a patient in labour and giving birth – monitoring her condition
and stage of labour, pain relief, toileting, delivering the foetus and placenta,
supporting the patient and her family through an emotional and upsetting
experience, and making the arrangements for the baby once delivered. These
will depend upon the family’s wishes, but may include helping them with,
for example, taking photographs and making funeral arrangements.
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17. Terminations where there are medical rather than foetal abnormality issues
will generally only reach the Labour Ward because its high dependency care
is required and this is rare. Between 2006 and 2010, feticide was carried out
in the ultra-sound department at Southern General Hospital and the Labour
Ward Co-ordinator would assign a midwife to take care of the patient there.
Since 2010, feticide has been carried out in the Fetal Medicine Unit which
has its own midwifery staff and the Labour Ward Co-ordinator is no longer
involved.
18. The Labour Ward has midwifery staff in bands 5, 6 and 7. Midwives in each
band may be assigned to looking after a particular patient. They have to
update the Labour Ward Co-ordinator and to seek her guidance, advice and
support where appropriate. There is always a band 7 Labour Ward Coordinator on duty. The parties have agreed a detailed list of 13 tasks included
in her role, covering the management of resources within the ward, booking
in patients from the Fetal Medicine Unit, allocating staff to patients,
providing guidance, advice, and support to midwives, and on occasions
taking a direct part in patient care. It will be helpful to return to that list after
the applicable principles have been decided (see para 39 below).
19. These proceedings came about because the petitioners became concerned that
the reorganisation of maternity services would result in an increased number
of abortions being carried out on the Labour Ward. Up until then it had been
possible to “work around” their conscientious objections to playing any part
at all in these procedures, by getting someone else to do the tasks which might
otherwise have fallen to them. They sought assurances from management that
their objections would continue to be respected and accommodated. Being
dissatisfied with what they were told, they first raised an informal grievance
in September 2009, which was completed in March 2010. They then began
the formal grievance procedure, which went through three stages until their
grievance was finally rejected at Board level in June 2011. By that stage the
outstanding issue was their continued objection to “delegating, supervising
and/or supporting staff to participate in and provide care to patients
throughout the termination process”. The hospital took the view that this did
not constitute providing one to one care to patients and that the petitioners
could be required to do it.
20. The petitioners then brought judicial review proceedings challenging the
decision letters received as a result of the grievance procedure. They were
unsuccessful before the Lord Ordinary, Lady Smith, but successful before an
Extra Division of the Inner House (Lord Mackay of Drumadoon, Lady
Dorrian, and Lord McEwan). The Inner House granted a declarator that:
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“the petitioners’ entitlement to conscientious objection to
participation in treatment for termination of pregnancy and
feticide all in terms of section 4(1) of the Abortion Act 1967
includes the entitlement to refuse to delegate, supervise and/or
support staff in the provision of care to patients undergoing
termination of pregnancy or feticide throughout the termination
process save as required of the petitioners in terms of section
4(2) of the said Act”.
21. The Opinion of the Court, delivered by Lady Dorrian, expanded upon this at
para 38:
“The right is given because it is recognised that the process of
abortion is felt by many people to be morally repugnant. As
Lord Diplock observed in the RCN case, it is a matter on which
many people have strong moral and religious convictions, and
the right of conscientious objection is given out of respect for
those convictions and not for any other reason. It is in keeping
with the reason for the exemption that the wide interpretation
which we favour should be given to it. It is consistent with the
reasoning which allowed such an objection in the first place
that it should extend to any involvement in the process of
treatment, the object of which is to terminate a pregnancy.”
(emphasis supplied)
22. The employers appeal to this Court.
Two distractions
23. There was some discussion, at an earlier stage in these proceedings, of the
relevance of the petitioners’ rights under article 9 of the European
Convention on Human Rights. This protects the “right to freedom of thought,
conscience and religion,” including the freedom “to manifest his religion or
belief, in worship, teaching, practice and observance”. It is our duty, under
section 3(1) of the Human Rights Act 1998, to read and give effect to
legislation, whenever it was passed, in a way which is compatible with the
Convention rights, so far as it is possible to do so. However, the article 9 right
is a qualified right, which may be subject to “such limitations as are
prescribed by law and necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others”. Refusing for religious
reasons to perform some of the duties of a job is likely (following the decision
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of the European Court of Human Rights in Eweida v United Kingdom (2013)
57 EHRR 213) to be held to be a manifestation of a religious belief. There
would remain difficult questions of whether the restrictions placed by the
employers upon the exercise of that right were a proportionate means of
pursuing a legitimate aim. The answers would be context specific and would
not necessarily point to either a wide or a narrow reading of section 4 of the
1967 Act.
24. The better course, therefore, is for this court to decide what that section means
according to the ordinary principles of statutory construction. That will then
set a limit to what an employer may lawfully require of his employees. But a
state employer has also to respect his employees’ Convention rights. And the
Equality Act 2010 requires that any employer refrain from direct or
unjustified indirect discrimination against his employees on the ground of
their religion or belief. So, even if not protected by the conscience clause in
section 4, the petitioners may still claim that, either under the Human Rights
Act or under the Equality Act, their employers should have made reasonable
adjustments to the requirements of the job in order to cater for their religious
beliefs. This will, to some extent at least, depend upon issues of practicability
which are much better suited to resolution in the employment tribunal
proceedings (currently sisted pending the resolution of this case) than in
judicial review proceedings such as these.
25. It is also not for this court to speculate upon the broader consequences of
taking a wide or a narrow view of the meaning of section 4. On the one hand,
the interveners have argued that to give a broad scope to the right of
conscientious objection will put at risk the provision of a safe and accessible
abortion service, available to all pregnant women who need and want it, in
accordance both with the purpose of the 1967 Act and with a number of
international instruments dealing with women’s reproductive rights.
Furthermore, it may encourage other employers to adopt the policy adopted
by the British Pregnancy Advisory Service, of refusing to employ anyone
who has any conscientious objection to abortion (on the basis that the lack of
such objection is a genuine occupational qualification for the jobs they
offer).This reduces the job opportunities available to highly skilled and
experienced midwives whose objections may not be as extensive as those of
these petitioners.
26. Coming as they do from the Royal College of Midwives and the British
Pregnancy Advisory Service, such views are obviously worthy of respect. On
the other hand, the petitioners argue that to adopt a narrow interpretation of
their right of conscientious objection will unreasonably restrict, not only what
they say is a fundamental right, but also the job opportunities which will be
available to them. Both sides, in other words, argue that adopting a wide or a
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narrow interpretation of section 4 will restrict the job opportunities of
qualified midwives and other health care professionals and workers and in
doing so may put at risk the accessibility of the service.
27. We do not have the evidence with which to resolve those arguments. We can
agree with Lord Diplock, in the Royal College of Nursing case (p 827D), that
the policy of the 1967 Act was clear. It was to broaden the grounds upon
which an abortion might lawfully be obtained and to ensure that abortion was
carried out with all proper skill and in hygienic conditions. For my part, I
would agree with the interveners that the policy was also to provide such a
service within the National Health Service, as well as in approved clinics in
the private or voluntary sectors. The mischief, also acknowledged by Lord
Diplock, was the unsatisfactory and uncertain state of the previous law, which
led to many women seeking the services of “back-street” abortionists, which
were often unsafe and, whether safe or unsafe, were offered by people who
were at constant risk of prosecution and, as Lord Diplock put it, “figured so
commonly in the calendars of assizes in the days when I was trying crime”
(p 825F). The conscience clause was the quid pro quo for a law designed to
enable the health care profession to offer a lawful, safe and accessible service
to women who would previously have had to go elsewhere. But we are not
equipped to gauge what effect either a wide or a narrow construction of the
conscience clause would have upon the delivery of that service, which may
well differ from place to place. Our only safe course is to make the best sense
we can of what the section actually says.
The construction of section 4
28. We have been presented with a spectrum of constructions of “participating in
any treatment authorised by this Act to which he has a conscientious
objection”. This must be read together with section 1 of the Act, which
prescribes the conditions under which a pregnancy may lawfully be
terminated. As was pointed out in the Royal College of Nursing case,
although section 1(1) does not use the term “treatment” at all, the termination
of pregnancy must be the treatment referred to in section 4.
29. However, no-one suggests that the conscience clause is limited to the actual
ending of the pregnancy, that is, when the pregnancy comes to an end because
the woman has been delivered of the foetus. In a surgical termination of
pregnancy, the events are simultaneous, but in a medical termination, they
are not. In a medical termination, it would make no sense to make lawful the
ending of the pregnancy without also making lawful the prescribing and
administration of the drugs which bring that termination about. Rather, at one
end of the spectrum, the Royal College of Midwives argue that the “treatment
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authorised by this Act” is limited to the treatment which actually causes the
termination, that is, the administration of the drugs which induce premature
labour. It does not extend to the care of the woman during labour, or to the
delivery of the foetus, placenta and membrane, or to anything that happens
after that.
30. This may be a little narrower than the guidance given by the Royal College
in their 1997 position paper on conscientious objection. This states that “[t]he
RCM believes that the interpretation of the conscientious objection clause
should only include direct involvement in the procedure of terminating
pregnancy” and “[t]he RCM is of the opinion that the conscientious objection
clause solely covers being directly involved in the procedures a woman
undergoes during the termination of pregnancy whether surgically or
medically induced”.
31. At the other end of the spectrum, the petitioners argue that they have the right
to object to any involvement with patients in connection with the termination
of pregnancy to which they personally have a conscientious objection. The
exercise of conscience is an internal matter which each person must work out
for herself. It is bound to be subjective. In their case, as practising Roman
Catholics, their objections extend to receiving and dealing with the initial
telephone call booking the patient into the Labour Ward, to the admission of
the patient, to assigning the midwife to look after the patient, to the
supervision of the staff looking after the patient, both before and after the
procedure, as well as to the direct provision of any care for those patients,
apart from that which they are required to perform under section 4(2).
32. The appellant employers argue for an interpretation in between the other two.
“Treatment authorised by this Act” begins with the administration of the
drugs and ends with the “expulsion of the products of conception – foetus,
placenta and membrane, from the womb”. So the conscience clause does not
cover making bookings or aftercare for patients who have undergone a
termination. Nor does it cover fetching the drug before it is administered.
“Participating” is limited to direct participation in the treatment involved. It
does not cover administrative and managerial tasks, such as allocating ward
resources and assigning staff. Nor does it cover supervisory duties which are
concerned with ensuring that general nursing care of an appropriate standard
is provided to women undergoing a termination.
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Discussion
33. This is, as already stated, a pure question of statutory construction. Section
4(1) of the 1967 Act refers to “treatment authorised by this Act” but section
1(1) does not in so many words refer to “treatment” at all. Nevertheless, the
section is headed “Medical termination of pregnancy”. Section 1(1) makes
lawful the termination of a pregnancy by a registered medical practitioner in
certain circumstances. Section 1(4) also refers to the termination of a
pregnancy by a registered medical practitioner and modifies the
circumstances in which it is lawful. Section 1(3) refers to “any treatment for
the termination of a pregnancy”. Hence, as the House of Lords decided in the
Royal College of Nursing case, what is authorised by the Act is the whole
course of medical treatment bringing about the ending of the pregnancy. By
virtue of section 5(2), any other conduct which is prohibited by sections 58
and 59 of the Offences against the Persons Act 1861 in England and Wales
or by any rule of law in Scotland remains a criminal offence.
34. Thus I would agree with the appellants that the course of treatment to which
the petitioners may object is the whole course of medical treatment bringing
about the termination of the pregnancy. It begins with the administration of
the drugs designed to induce labour and normally ends with the ending of the
pregnancy by delivery of the foetus, placenta and membrane. It would also,
in my view, include the medical and nursing care which is connected with
the process of undergoing labour and giving birth, – the monitoring of the
progress of labour, the administration of pain relief, the giving of advice and
support to the patient who is going through it all, the delivery of the foetus,
which may require the assistance of forceps or an episiotomy, or in some
cases an emergency Caesarian section, and the disposal of the foetus, placenta
and membrane. In some cases, there may be specific aftercare which is
required as a result of the process of giving birth, such as the repair of an
episiotomy. But the ordinary nursing and pastoral care of a patient who has
just given birth was not unlawful before the 1967 Act and thus was not made
lawful by it.
35. These conclusions are supported by the exception in section 4(2), which
provides that the right of conscientious objection does not 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. One
would expect this duty to cover any medical and nursing care during the
process of termination and delivery which was necessary for those purposes.
36. In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an
interpretation would not cover the doctors forming the opinions required by
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section 1 and signing the certificates to that effect (provided for in the
Regulations made under section 2(1)(a) of the Act). These certificates have
to be given before the “treatment for the termination of pregnancy” begins. It
is in any event hard to see them as part of the treatment process. They are a
necessary precondition to it. It follows that they are not covered by the
conscience clause in section 4(1). Nevertheless, we understand that the
contractual arrangements made by the NHS with GPs, and the employment
contracts made with hospital doctors, do in practice contain such clauses.
37. The more difficult question is what is meant by “to participate in” the course
of treatment in question. The employers accept that it could have a broad or
a narrow meaning. On any view, it would not cover things done before the
course of treatment began, such as making the booking before the first drug
is administered. But a broad meaning might cover things done in connection
with that treatment after it had begun, such as assigning staff to work with
the patient, supervising and supporting such staff, and keeping a managerial
eye on all the patients in the ward, including any undergoing a termination.
A narrow meaning would restrict it to “actually taking part”, that is actually
performing the tasks involved in the course of treatment.
38. In my view, the narrow meaning is more likely to have been in the
contemplation of Parliament when the Act was passed. The focus of section
4 is on the acts made lawful by section 1. It is unlikely that, in enacting the
conscience clause, Parliament had in mind the host of ancillary,
administrative and managerial tasks that might be associated with those acts.
Parliament will not have had in mind the hospital managers who decide to
offer an abortion service, the administrators who decide how best that service
can be organised within the hospital (for example, by assigning some
terminations to the Labour Ward, some to the Fetal Medicine Unit and some
to the Gynaecology Ward), the caterers who provide the patients with food,
and the cleaners who provide them with a safe and hygienic environment.
Yet all may be said in some way to be facilitating the carrying out of the
treatment involved. The managerial and supervisory tasks carried out by the
Labour Ward Co-ordinators are closer to these roles than they are to the role
of providing the treatment which brings about the termination of the
pregnancy. “Participate” in my view means taking part in a “hands-on”
capacity.
39. It is helpful to test these principles against the agreed list of the tasks included
in the petitioners’ role as Labour Ward Co-ordinators:
(1) management of resources within the Labour Ward, including taking
telephone calls from the Fetal Medicine Unit to arrange medical terminations
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of pregnancy; this is not covered by the conscience clause as interpreted
above;
(2) providing a detailed handover within the Labour Ward to the new Labour
Ward Co-ordinator coming on shift; this is not covered by the conscience
clause as interpreted above (but a way round would be to refer to the allocated
midwife for details);
(3) appropriate allocation of staff to patients who are already on the ward at
the start of the shift or who are admitted in the course of the shift; this is not
covered by the conscience clause as interpreted above;
(4) providing guidance, advice and support (including emotional support) to
all midwives; this is only covered insofar as it relates to guidance, advice and
support directly connected with the care of a particular patient undergoing a
termination, such as whether to administer another round of drugs, as
opposed to the ordinary monitoring of any patient on the ward;
(5) accompanying the obstetricians on ward rounds; this would not be
covered by the conscience clause as interpreted above, except to the patients
undergoing terminations; but there would be little that a midwife with
conscience objections could contribute to such a ward round for patients
undergoing a termination;
(6) responding to requests for assistance, including responding to the nurse
call system and the emergency pull; responding by itself is not covered; it
would depend upon the assistance requested whether it was part of the
treatment for a termination;
(7) acting as the midwife’s first point of contact, if the midwife is concerned
about how a patient is progressing; in itself, this is not covered; but the
assistance required may be, depending upon what it is; and if assistance is
required with the course of treatment leading to a termination, the Labour
Ward Co-ordinator should refer to someone else who does not share her
conscientious objection to assisting;
(8) ensuring that midwives on duty receive break relief, which may mean that
the Labour Ward Co-ordinator provides the break relief herself; ensuring
break relief is not covered but providing it oneself is covered;
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(9) being present to support and assist if medical intervention is required, for
example, instrumental delivery with forceps; this is covered by the
conscience clause as interpreted above;
(10) communicating with other professionals, eg paging anaesthetists; this is
a managerial task which is not covered by the conscience clause as
interpreted above;
(11) monitoring the progress of patients to ensure that any deviations from
normal are escalated to the appropriate staff level, eg an obstetrician;
responding to and passing on the judgment of the treating midwife is an
administrative task not covered by the conscience clause as interpreted
above; however, forming the judgment personally would be taking part in the
treatment;
(12) directly providing care in emergency situations; this is covered by the
conscience clause, unless falling within section 4(2) as it normally would;
(13) ensuring that the family are provided with appropriate support; this is
not covered by the conscience clause as interpreted above. It is not treatment
authorised by the Act as it has never been unlawful. However, as with helping
with arrangements after the baby is delivered, it may be reasonable to expect
an employer to accommodate an employee’s objections, in the interests of
providing the family with the most effective service.
40. Whatever the outcome of the objectors’ stance, it is a feature of conscience
clauses generally within the health care profession that the conscientious
objector be under an obligation to refer the case to a professional who does
not share that objection. This is a necessary corollary of the professional’s
duty of care towards the patient. Once she has assumed care of the patient,
she needs a good reason for failing to provide that care. But when
conscientious objection is the reason, another health care professional should
be found who does not share the objection.
41. I would therefore allow this appeal and set aside the declarator made in the
Inner House. I would invite further submissions on quite what, if any, order
or declarator should replace it.