Department of Health announce new guidelines on abortion in N Ireland

Good Friday this year was on March 25. March 25 is also Lady Day, the Feast of the Assumption, when Gabriel appeared to the Virgin Mary to tell her that she was with child. So you might well think it a strange, tactless, day for the Department of Health to announce new guidelines on abortion in N Ireland.

Perhaps they thought it was a a good day to slip out news, perhaps the commemorations of the Rising would overshadow the guidelines; if so, the announcement didn’t escape the BBC who reported it on their website the following day (here), and included initial comments from Dr Fiona Bloomer and Ms Bernie Smyth.

The guidelines come with an introduction from the Minister. Mr Simon Hamilton, the Health Minister, noted that the document had been agreed with the Executive, and that the document would be circulated to staff. He noted that there has been no change in the law, and:

This Guidance takes account of the issues raised in my Department’s public consultation in 2013 on this subject and also reflects the considered opinions of health professionals working in this area. The new Guidance is very much the product of the views of those working in this difficult area. 

I know that this is an area of public policy where people hold differing views. My focus is on ensuring that health professionals who have to deal with extremely difficult cases have the clarity around the law that they have been asking me for.

Being from the Health Department rather than the Justice Department, the document is written in language accessible to medical professionals.

There is an introduction to the law in N Ireland, and the meaning of the ‘life’ of the mother which is based on the Bourne case and others. ‘Life’ in this context does not mean simply being ‘alive’, rather it extends to include her physical and mental health. The guidance notes that it is unlawful here to abort a foetus with a fatal abnormality when that is the only ground for abortion, but the impact of this abnormality on the mother may be a factor to be taken into account.

The guidance recommends that two medical practitioners should assess the mother, though in an emergency this may not be possible. While there is no statutory provision for conscious objection, the guidance makes it clear that employers should aim to accommodate such staff, but that this must not endanger the mother. This reflects guidance from the General Medical Council and the Nursing and Midwifery Code of Professional Practice.

It is lawful to inform a woman about the provision of abortion services outside N Ireland; whether it is lawful to ‘advocate or promote’ such services is uncertain, for this has never been tested in the Courts here. When does ‘advice’ become ‘advocation or promotion’? This is an area which it might take legislation to further clarify.

Rather clearer is when a woman presents in N Ireland after an abortion, either from self-administered pills bought off the internet, or after an abortion in a ‘legal’ jurisdiction; heath professionals should offer the appropriate aftercare.

There can be a conflict between confidentiality and the legal requirement of disclosure. Guidance notes that the first duty of care is to the woman. There may be a public health interest, to protect others from the harms of an illegal procedure, which would support disclosure.

I have not seen to date any comments from professionals whose practice could encompass abortion. To me, as an outside observer, the clarity of information is commendable. Still, the legal constraints on abortion in N Ireland remain; the law is unchanged, and this guidance cannot change it. And if there is conflict between the guidance and the law, the law will prevail. And the Courts do not offer justice but law.

Addendum: Radio 4 carried a programme about abortion on Wednesday morning; it very briefly discusses the guidelines. It’s available here.

  • Brendan Heading

    Rather than being insensitive I think the announcement was timed as you note to coincide with the Rising commemorations and thus avoid a lot of publicity. You wonder, though, why it took so long ..

  • Brian Walker

    In his Irish Times column Eamonn McCann compares the new with the old guidelines and concludes that “the direction of travel is clear.”

    “It is in relation to the abortion pill that the most significant changes are urged.

    The guidance notes that health and social care professionals are required under law to pass on to the police any evidence they may gather of an unlawful abortion having taken place.

    However, it goes on to say: “The health and social care professional need not give that information if they have a reasonable excuse for not doing so; the discharge of their professional duties in relation to patient confidentiality may amount to such a reasonable excuse.”

    It notes of abortions procured with the pill that, “In many situations, the symptoms will be indistinguishable from a natural miscarriage.” In other words, women who present at a hospital with complications arising from an abortion procured with the pill – a highly unusual circumstance – can be confident that no one will be able to tell that she’s had an abortion. “Don’t ask, don’t tell.”

    .. The courts could reject the new guidance. The position of the judiciary, however, appears to have been set out in a ruling last November in the High Court in Belfast in a case brought by the Northern Ireland Human Rights Commission arguing that existing law was incompatible with the European Convention on Human Rights.”

  • AndyB

    March 25th is indeed Lady Day, but it’s not the Feast of the Assumption – that is the day when Catholics believe Mary was taken into heaven, and is celebrated on 15th August. I would, though, go with burying the news as Brendan suggests, especially at the end of the Assembly term.

    Back to the point of the piece – apart from the change in practice with regard to the reporting of the use of an abortifacient pill, I don’t see this passing muster in the courts. It’ll be back before the NI courts before we know it, and the next Health Minister will have to pick up the pieces.

  • Korhomme

    Doh! You are quite correct. Lady Day is the Feast of the Annunciation which is what I meant.

  • Korhomme

    I don’t want to be seen as an apologist for the Department, but the guidelines can only refer to the present law, the law as it is today.

    The lack of any reference to Mr Justice Horner’s judgement was also noted by others:

  • Brendan Heading

    I don’t think it’s a matter of the courts rejecting guidance (the issuance of guidance is the outcome of an earlier court order), but noting that the guidance does not address the finding a few months back that the NI law is inconsistent with human rights law. That matter can only be addressed by legislation – or through case law.

  • eireanne3

    too little, too late –