Catholic Medical Quarterly Volume 65(1) February 2015


Dr Ian Jessiman,
Former Master of the Guild of Catholic Doctors (CMA(UK)) and retired GP

Access the full text of the Supreme Court Judgement by clicking here

Ian JessimanIn coming to their judgment the Court accepted without comment that abortion is a procedure which should be available in maternity wards regardless of the extreme inappropriateness of such an arrangement from the point of view of the two different groups of patients concerned (see para 14).

For the Court (at 11), the question to be addressed was the meaning of the words ‘to participate in any treatment authorised by this act to which he has a conscientious objection.’

In essence the Supreme Court took a narrow view of participation in treatment. Their conclusion seems to be based on the premise that the abortion process begins precisely when the [first] dose of medication is administered. On this basis they appear to have concluded that the doctor initiating the treatment and his prescription are not part of the process. This is clearly contrary to common sense. On any normal understanding a sine qua non is an inescapable part of the process in question. Treatment authorised by the Act ‘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.’(34) The Court seemingly ascribes the responsibility for the procurement of a medical abortion to the person(s) who hands the patient the relevant pill(s) but not the doctor who writes the order or prescription.

“‘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.”(9) The DHSS had claimed that the doctor ‘can initiate the process and then go off and do other things so long as he is still on call.’

The implication of the Court ruling is that by signing the authorising form, or even prescribing the abortifacient, the doctor is not taking part in the ‘whole process of treatment’. However, it would seem plain from the paragraph quoted (10) from the ‘conscience clause’ at section 4 (2) of the Act that the duty to participate to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman would extend to the doctor as being the essential factor in prescribing the necessary measures.

At the Nuremberg trials responsibility was considered to lie with those who ordered and authorised the events that took place as well as with those who ran the gas chambers. Equally, in medical practice, if something goes wrong the doctor who prescribed the process will be held liable, not the nurse (unless there were specific negligence). At (36) the Court argue that forming the opinions and signing the certificates (section 2(1)(a) of the Act) are a necessary precondition to the treatment but [find it] “hard to see them as part of the treatment process”. However, as there is no doubt that, as the process cannot go ahead under the Act without it, the doctors who sign the necessary form also bear some responsibility.

It should be noted that any doctor, in order to sign such a form, has to be of the opinion formed in good faith that a termination is appropriate. The form also makes it clear that it must be signed before the commencement of the treatment. Their excerpt from the Act (at 3) also states that anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section I of the Act (i.e. by the signing of such a form).

The Court seems to be trying to wash its hands of the effect of their ruling on the provision of the relevant service under the NHS, though they arrive at a conclusion which favours the employers. (27) “We do not have the evidence on which to resolve these arguments” about “what effect either a wide or 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 outstanding issue (19) was their continued objection to ‘delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process.’”

The two midwives point out that the exemption for the senior midwives in the labour ward is fine on paper but useless in practice, so that no practising Catholic could in future be a senior midwife. It will eventually mean that no Catholic patient will be able to opt for a Catholic midwife.

The court has also asserted that a conscientious objector is under an obligation to refer the case to a professional who does not share that objection (40). In fact, the requirement heretofore (from the GMC, for example) has been to facilitate matters so that the patient can find themselves another doctor.

The judgement is of grave concern. At a time when there is a shortage of doctors and nurses it is doubly regrettable that these swingeing rulings should be set to exclude another cohort of possible recruits to Midwifery, Obstetrics and Gynaecology.