“depends on the clinical judgment of the medical practitioner”

In October 2001 the Family Planning Association was given leave for a judicial review of the Department of Health’s refusal to issue clear guidelines on how pregnancy terminations are provided under existing law. In October 2004 “three senior judges ordered the Department of Health to draw up guidelines on when abortions can be carried out under existing law.” And finally, today, the Department of Health announced they had, eventually, issued those guidelines.. in draft form.. “to health professionals and interested organisations for comment.” You’d almost think the Department of Health don’t know what the legal position is.. or don’t want to know.. Update Draft guidelines[pdf file]From the Department of Health’s statement

Q What happened after the Court of Appeal Order?

A The Department of Health and Social Services and Public Safety set up a Working Group with representatives from a wide range of professional and specialty backgrounds including nursing and midwifery, obstetrics and gynaecology, public health, psychiatry, clinical genetics, Family Planning doctors and General Practitioners to develop guidance on abortion in Northern Ireland.

The working group developed questionnaires for consultant obstetricians, midwives, GPs and Health and Social Services Trust Chief Executives in Northern Ireland to establish the level and extent of abortion services (including aftercare) available here and to capture views on what they felt should be included in guidance. Feedback from the questionnaires has been used to inform the guidance.

Q What is the current position with regards to abortion in Northern Ireland?

A The Abortion Act 1967 does not extend to Northern Ireland and the grounds on which abortions may be carried out in Northern Ireland are more restricted than those in Great Britain. Abortion law in Northern Ireland is contained in the Offences Against the Person Act 1861, the Criminal Justice Act (Northern Ireland) 1945, the Bourne Judgement case law (1939) and the common law.

Under the law of Northern Ireland, abortion is permitted here where it is necessary to save the life of the mother or where continuation of the pregnancy would involve risk of serious injury to her physical or mental health. The lawfulness of any proposed termination depends on the clinical judgment of the medical practitioner who is to carry out the termination. [added emphasis]

Perhaps the newly uber-empowered Human Rights Commission have a view…? or should the Abortion Act 1967, and the rights it gives directly to individual women, just be fast tracked in Northern Ireland well behind similar legislation in Britain?

Update The condensed version of the draft guidelines[pdf file]

2.6 For that reason, before it would be lawful to perform any operation in Northern Ireland for the termination of a pregnancy, there must either be (1) a threat to the life of the mother, or (2) a risk of real and serious adverse harm to her long term or permanent health. In any other circumstance it would be unlawful to perform such an operation.

While on Moral and Ethical issues

4. Moral/Ethical issues

4.1 Some staff may have a conscientious objection to termination of pregnancy on moral and/or religious grounds. No-one can compel staff to actively participate in performing a termination and the right to object on grounds of conscience should be recognised and respected except in circumstances where the woman’s life is in immediate danger and
emergency action needs to be taken. Health and Social Services Trusts should also have appropriate arrangements in place to accommodate such requests from staff. However staff with a conscientious objection cannot opt out of providing general care for women undergoing termination of pregnancy. The personal beliefs of staff should not prejudice patient care.

4.2 The General Medical Council’s (GMC’s) Good medical practice (May 2001) states that a doctor registered with the GMC is under a duty ‘to make sure that his/her personal beliefs do not prejudice his/her patients’ care.’ A breach of this duty would be a disciplinary offence. This guidance is publicly available on the GMC website – http://www.gmc-uk.org

4.3 The Nursing and Midwifery Council (NMC) Code of professional conduct: standards for conduct, performance and ethics (November 2004) refers to conscientious objection at paragraph 2.5 and indicates that, “you must report to a relevant person or authority, at the earliest possible time, any conscientious objection that may be relevant to your
professional practice. You must continue to provide care to the best of your ability until alternative arrangements are implemented.” This guidance is publicly available on the NMC website – www.nmc-uk.org/

4.4 The British Medical Association (BMA) has published guidance on the law and ethics of abortion in England Scotland and Wales and Northern Ireland. This guidance is publicly available on the BMA website – www.bma.org.uk/.

4.5 The BMA document advises that, “doctors with a conscientious objection to abortion should make their views known to the patient and enable the patient to see another doctor without delay if that is the patient’s wish.” It also states that, “general practitioners with a conscientious objection, who are working in a group practice, may ask
a partner to see patients seeking termination.” The doctor will, however, have responsibility for the woman’s care until someone else takes it over.

4.6 The Royal College of Obstetricians and Gynaecologists (RCOG) has also produced an evidence-based Clinical Guideline, The Care of Women Requesting Induced Abortion (September 2004). Section 3.4 of this guideline provides advice on professionals’ rights in relation to conscientious objection to abortion. This document is publicly available
on the RCOG website – www.rcog.org.uk/

, , ,

  • Whatever one’s view on abortion is, the cloud of uncertainty which has hung over this issue for so long is appalling. Meanwhile easyJet have been coining it, often at the expense of the very people in our society who can barely afford to put food on the table. And then we also have the people with little else to do with their time who have been intimidating anxious women away from the FPA lest they might actually get useful advice.

  • joeCanuck

    This is an area where the DOH working groups have no business to be in.
    Such a difficult and profound decision belongs only to the woman and her medical practitioner.
    The rest of us have no right to be there.

    I await the name calling.

  • Pete Baker

    “This is an area where the DOH working groups have no business to be in.”

    Indeed, Joe. But medical practitioners, unsure of their legal position, were denied – by the DoH – direct guidelines on their ability to make those necessary but difficult decisions.

    Now, it seems, those guidelines will be influenced by the comments from “health professionals and interested organisations”… not by the law.

  • joeCanuck

    ok PEte.
    I misunderstood the position.
    i should have read your post more closely.

  • McGrath

    Hope those guidelines and the committee to draft them didn’t cost a lot of money. Bit like going to an accountant for tax advise.

  • Pete Baker

    More like trying to dodge the order from the High Court, McGrath.

  • George

    And just who do you think has the nerve to fast track the 1967 Abortion Act Pete?

    Which parties would support such a move enough to petition London?

  • Pete Baker

    George

    I think you may be missing the point of that [legislative] link.

  • George

    Pete,
    I assume Westminster has to amend the legislation accordingly and I assume they aren’t going to open up that tin of worms unless they have to.

    Why on earth would Tony Blair, Gordon Brown or even David Cameron do that?

    Which parties in NI want it?

    You’ve thrown me about what the fast-tracking of Equality (Sexual Orientation) Act has to do with the political will to address abortion.

  • Pete Baker

    “I assume they aren’t going to open up that tin of worms unless they have to.”

    George

    The above encapsulates why they’ve continued to dither on this particular issue while pushing through another rights issue – ahead of the rest of Britain [hence the link, btw].

    In short – it’s nothing to do with the rights of anyone.. as the silence from the Human Rights Commission would seem to confirm.

  • George

    Pete,
    When I read your last sentence, I thought part of you actually thought Westminster might some day soon decide to push through legislation to bring Northern Ireland into line with the rest of the UK when it comes to abortion regardless of what the parties here thought.

    Maybe you could add a “Fast-track? Would they f**k?” to the end of your post to help those us who read it literally and missed the nuance.

  • Pete Baker

    No, George

    But you appear to still miss the nuance of one right being pushed through ahead of the rest of the legislation.. while another right being left to languish well behind the rest of the legislative body.

    Unless you don’t equate those rights?

    You see, it’s not a question of which right has primacy.. but one of which right is chosen to be enforced.

  • BeardyBoy

    Well isn’t this a first class opportunity for Stormont to do something the majority on all sides want – clearly set out the law and ban abortion completely

  • joeCanuck

    political parties should have no right to dictate to women how they take care of their reproductive health.

  • BeardyBoy

    Your right – but they should have a position on the sanctity of life – 2 people are involved here

  • George

    Pete,
    Actually, I was fully aware about which right was chosen to be enforced and was thinking that you thought Westminster might choose to enforce abortion legislation some time soon.

    Obviously, you don’t and while equating the two rights may be a noble idea, I just don’t see it happening.

    Abortion is a right out there on its own in Ireland, north or south. Politicians touch it at their peril.

    Hell, even the use of the word “right” will start an argument. Right of the unborn or right of the mother etc.

    I have been on this threadmill many times south of the border and have experienced first hand the heat this topic generates.

    Can you “practically” equate abortion rights with sexual orientation rights when one is generally accepted by the majority of the Northern Ireland populace and the other isn’t.

    Or do you think there is large constituency in NI that wants to change the abortion situation?

  • Splurge

    If memory serves me correctly, Sinn Fein supports abortion – if they’re asked by an obviously pro-abortion person. But if a pro-lifer asks they start to equivocate. Why does that not surprise me. And of course the SDLP is a member of the socialist group in European Parliament which also supports abortion.

  • Anon

    Sinn Fein have a funny compromise on abortion where they are against it, but don’t believe that they should interfere with a woman who choses to have one. Don’t know where SDLP or Alliance stand, while the unionists are anti.

    The hospitals themselves also can interfere and put in their own policies. For example, there is a perfectly good facility in NI to allow an HIV positive man to clean his sperm of the virus in order to have children. However, the department that own it refuse to allow it to be used on “ethical” grounds.

  • eranu

    with the medical knowledge we now have, its amazing that abortion is still allowed. we know that human life begins when the egg is fertilised and the cells begin to divide. this process continues for several months with limbs, eyes, fingers, organs slowly forming.

    how on earth can a date in this development be fixed where its ok to kill the baby before it, but not after it? think about it for a minute ! the fact that this date has been changed several times shows how wrong the idea is.

    people who have an abortion or doctors that perform one have murdered a human life. no amount of waffle and talk of womens rights can disguise this fact.

  • joeCanuck

    I cringe when I see the words in comments “pro-abortion”.
    I doubt that there are many people, myself included, who are pro-abotion.
    What many of us support is the right of women to make their own decisions.

  • eranu

    joe, leaving out the ‘womens rights’ and ‘own health’ type wording, how would you describe supporting women killing unborn babies?
    its an action not an abstract idea like ‘rights’. id like to see how this could be explained or supported in plain english. (if indeed thats what you support)

    ?

  • Pete Baker

    George

    I’m aware of the potential for more heat than light to emerge in a discussion of this issue, which was one of the reasons for focussing on the, at best, footdragging or, at worst, deliberately obstructive role played by the DoH.

    An additional point about the Sexual Orientations Act, though. It’s perhaps worthwhile considering how, in one case, a view based on a religious outlook is not considered a valid reason to object to a law.. while in the other case, another view based on a religious outlook, ably espoused by eranu, is to be actively incorporated in the official guidelines – on an issue that should, according to the legal position, be solely based on a clinical judgement.

    It doesn’t matter whether anyone actually agrees with either of those religious-based views. The difference is, or should be, striking.

  • joeCanuck

    Pete,

    Now I’m really confused.
    Are you saying that those “interested parties” are religious organizations?

  • Pete Baker

    Joe

    The Department’s statement doesn’t specify who those organisations “interested parties” are.

    But I was, in particular, referring to what the statement says about the draft guidelines –

    The draft guidelines do not propose to change the current law on abortion in Northern Ireland. They have been developed to offer clinical guidance to health professionals and cover issues such as conscientious objection, informed consent and good clinical practice.

  • eranu

    [no tangents – edited moderator]

  • George

    Pete,
    my understanding of this is that people cannot object to the law, as it currently stands, because of their religious outlook.

    The guidelines do not allow health professionals to refuse on grounds of conscience to carry out an abortion on a woman where it is necessary to save the life of the mother.

    From the guidelines:
    “No-one can compel staff to actively participate in performing a termination and the right to object on grounds of conscience should be recognised and respected “except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken.”

    The only argument I can see is whether this guideline includes “involve risk of serious injury to her physical or mental health”.

  • Pete Baker

    George

    The guidelines do cover a situation where

    (iii) a termination will therefore be lawful where the continuance of the pregnancy threatens the life of the mother, or would adversely affect her physical or mental health;

    And therefore the conscientious objectors will likely object in those circumstances too.

    Importantly, though, they have narrowed the definition of the conditions to be met by that “adverse effect”

    (iv) the adverse effect on her physical or mental health must be a ‘real and serious’ one, and must also be ‘permanent or long
    term’;

    It’s the grey areas, as opposed to when emergency action is needed, where the ability of a health professional to declare a “conscientious objection” will play a more important role in the access, or lack of it, for individual women to seek a termination of pregnancy.

  • George

    Pete,
    the guidelines you have updated clearly state on what grounds you can conscientiously object. They even link to the grounds you can object in the UK.

    The grounds for termination in the guidelines seem to be based on strong legal precedent. They cite the following:

    1994 case of Re A.M.N.H:
    pregnant woman was severely mentally handicapped and a ward of court. There was medical evidence that the continuation of the pregnancy would adversely affect the woman’s mental health.

    The judge held that abortion is lawful
    where the continuation of the pregnancy would adversely affect the mental or physical health of the mother. However, he said that the adverse effects must be real and serious.

    1995 case of Re S.J.B.
    seventeen-year-old severely handicapped girl who was made a ward of court. On the basis of
    medical evidence presented to the court, the judge held that a termination of the pregnancy would be lawful.

    The 1995 case of Re C.H.
    sixteen-yearold girl who was a ward of court. She stated that she wished to have her pregnancy terminated and threatened to commit suicide if she was forced to continue with her pregnancy. On the basis of medical evidence, the judge held that it would be lawful for the pregnancy to be terminated.

  • Pete Baker

    George

    “the guidelines you have updated clearly state on what grounds you can conscientiously object.”

    Only in the sense that they can object unless there is an immediate danger to the life of the woman involved. The rest of the guidance in that area is about how to pass the case onto someone else.

    It’s also worth pointing out that the guidelines also recommend that any assessment should include a second opinion by a doctor “who share[s] prior knowledge of the woman and her clinical circumstances”.

    As for strong legal precedent – as I said before, it’s in the grey areas were the guidelines, and any objecting on religious or other grounds, will affect access to a termination. Not the rather extreme cases cited.

  • George

    Pete,
    “it’s in the grey areas were the guidelines, and any objecting on religious or other grounds, will affect access to a termination. Not the rather extreme cases cited.”

    but would you not agree that the access is affected by the legal situation ?

    In other words, the guidelines are merely following what is the current legal position.

    In reality, it’s not the guidelines or the conscientious objection that are causing any restriction, it is the fact that the 1967 Abortion Act doesn’t apply to Northern Ireland.

    As you posted:
    “Under the law of Northern Ireland, abortion is permitted here where it is necessary to save the life of the mother or where continuation of the pregnancy would involve risk of serious injury to her physical or mental health.”

  • Pete Baker

    George

    We could dance on this pinhead all day and get nowhere.

    “In other words, the guidelines are merely following what is the current legal position.”

    Strangely, there is a rather obvious absentee in the list of the members of the Working Group – who drew up the guidelines.

    Given the dates of the actual Acts cited, it’s the interpretation of the current legal position that is key – in particular, what constitutes a risk to the physical or mental health of the woman concerned – and the additional restrictions placed on access by the Working Group will, undoubtedly, be challenged in court at some point.