NHS SCOTLAND
Judicial Review – Abortion Act 1967
Ranald Macdonald, legal adviser to the NHS Central Legal Office at NHS National Services Scotland, discusses an important legal ruling.
having their intended effect. It is not she who attends directly on the woman under- going termination of pregnancy on a one- to-one basis during the procedure.
It would not cover those who, though causally connected, do not take part in the objectionable activity (administering the treatment which terminates the pregnancy).
Moving to the question of whether or not Article 9 of the Convention requires a broader meaning to be adopted, Lady Smith was not satisfied that it does.
I
n a judgement issued on 24 February 2012, Lady Anne Smith, an Outer House Judge in the Court of Session in Edinburgh, refused a petition from two midwives who considered that they were entitled to be re- lieved of their employer’s duties to require them to delegate, supervise and support staff in the treatment of patients undergo- ing termination of pregnancy.
The case turns on the interpretation of Sec- tion 4(1) of the Abortion Act 1967. Where, in the case of a pregnancy which has not exceeded its 24th week, two doctors are of the opinion that there is a risk of its con- tinuance 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 termi- nated, or that she will suffer grave perma- nent 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.
The petitioners are both Roman Catholics and object, on religious grounds, to partici- pating in abortions. They do, however, rec- ognise that they, in common with all mid- wives, have a duty to care for the pregnant woman as well as for her unborn child. The issue they raise is this: given that right of conscientious objection, is the employer entitled to require them to delegate, super-
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vise and support staff in the treatment of patients undergoing termination of preg- nancy?
The petitioners believe that pregnancy ought not to be terminated by human in- tervention. It is, for them, a question of conscience. They are, accordingly, entitled to exercise the right of conscientious objec- tion conferred by section 4(1) of the 1967 Act. Also, their Article 9 rights are engaged.
Section 4(1) does not afford persons such as the petitioners, an absolute and unre- stricted right of conscientious objection. There is no right to conscientious objec- tion in an emergency. That is, where what is at stake is the woman’s life or the risk of grave injury to her health, Parliament did not, it seems, intend that there should be any right of conscientious objection at all.
They are not being asked to play any di- rect part in bringing about terminations of pregnancy. That is plain from their own description of the duties to which they ob- ject, from their job description. The role of Labour Ward Co-ordinator is a supervisory and administrative one. It is not she who authorises the termination. It is not she who gives the woman the Mifepristone at the outpatient clinic. It is not she who administers the Misoprostol pessaries or monitors whether or not the pessaries are
Article 9(1) does not require that people should be allowed to manifest their reli- gion in any manner of their choosing. What constitutes interference with the manifes- tation of religious belief depends on all the circumstances of the case, including the ex- tent to which the individual could reasona- bly expect to be at liberty to manifest those beliefs in practice. Here, the petitioners are being protected from having any direct involvement with the procedure to which they object. Nothing they have to do as part of their duties terminates a woman’s preg- nancy. They are sufficiently removed from direct involvement. Further, they know- ingly accepted that these duties were to be part of their job.
They can be taken to have known that their professional body, the RCN, takes the view that the right of conscientious objection is limited and extends only to active partici- pation in the termination. Lady Smith does not conclude that the existence of their sec- tion 4(1) rights is, in all the circumstances, a special feature of such weight as to show that their Article 9 rights are being inter- fered with.
Judicial review – Doogan and Wood – Greater Glasgow Health Board [2012] CSOH 32
Ranald Macdonald TELL US WHAT YOU THINK
opinion@nationalhealthexecutive.com
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