“the court concludes that it should order the withdrawal of the Guidance”

The Northern Ireland Health Department’s guidance to health professionals on termination of pregnancy, the law and clinical practice in Northern Ireland [pdf file], only emerged after a tortuous process. Firstly the Department, after a lengthy court battle, had to be instructed by a High Court ruling to produce the guidance. Then, after taking three years to produce, the NI Assembly rejected the guidelines leaving the Department to redraft them. New draft guidelines emerged for consultation in July 2008 and were finally published in March this year. Today, as the BBC reports, Lord Justice Girvan ruled, on the basis of two out of eight contested issues, that the guidance should be withdrawn. From the ruling

[48] As appears from the decision in the ABTA case guidance of this kind contains nothing which affects existing or future rights. There is no need for it to be quashed. An order directing that the Guidance be withdrawn must be the appropriate relief in the circumstances where it has been found to be misleading. Having regard to those aspects of the Guidance dealing with counselling and with conscientious objection which fail to give fully clear and accurate guidance the court concludes that it should order the withdrawal of the Guidance with a view to the Guidance being reconsidered by the Department taking account of the contents of this judgment.

Some specifics from the ruling

Conclusions on the issue

[44] Section 4.1 of the Guidance clearly requires amendment to deal with the words “although there is no legal right to refuse to take part in the termination of pregnancy.” A member of staff may have a legal right to refuse to take part in a procedure. This may arise in at least the following circumstances. Firstly, this can arise if the member of staff considers reasonably and in good faith that an abortion procedure is illegal because the continuation of the pregnancy does not present a risk to the life or long term health of the mother. Secondly, it can arise if under the express terms of his or her contract he or she is entitled to refuse to participate a contract of employment could be so drawn to cover the question. Thirdly, it may be that a member of staff could succeed in a particular case in establishing that to require him to assist in the procedure would infringe his Article 9 rights. This may depend on the express terms of his contract which may require him to participate. If it does a question may arise as to whether the imposition of such an obligation itself infringes the Article 9 rights of the member of staff.

[45] Section 4.1 recognises the right to object on grounds of conscience to be recognised and respected “except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken”. It is not clear whether this relates only to a situation in which the actual life of the mother is at stake or whether it extends to the situation where, in the absence of an abortion, there will be serious adverse effects of a permanent or long term nature in relation to her physical or mental health. If the Guidance is to be clear this requires to be spelt out. There are those who in conscience object to the abortion of an unborn child where the mother’s actual life is not at stake. They take the view that in weighing up the ethical and religious dilemmas of destroying the life of the unborn child or destroying not the life but the long term health of the mother the decision should be in favour of the unborn child. It is not clear what guidance paragraph 4.1 is purporting to give on this question. Restricting the conscientious objection exception to a situation where the mother’s actual life is at stake would protect the right of conscientious objection in relation to an abortion causing the death of the unborn baby where the mother’s long term health is at danger but not her life.

[46] Section 4.2 as worded is open to the interpretation that if a woman presents to a general practitioner asking for advice about a termination even where there is no question of a danger to her long term health or life a general practitioner with a conscientious objection to abortion should have in place arrangements for onward referral. This links into the problem identified in relation to the counselling provisions of the Guidance and it requires reconsideration. The Guidance does not grapple with the problem of a woman wanting an abortion in a situation which is not permissible under Northern Ireland law. It uses language much too ambiguous and leaves GPs unclear as to what is expected of them. While Mr Hanna’s argument as to how it should be read may have some force, a GP should not be expected to have a legal training in construing documents. The Guidance should speak to health care workers not to trained lawyers. Nor does it fall to be construed like a legal contract. It falls to be construed as guidance. Hence it should be absolutely clear. Otherwise it is not guidance but a trap to the unwary.

[47] Clearly if a patient presents with a medical problem that indicates a risk to life or long term health from continued pregnancy a general practitioner who objects to abortion on conscientious grounds remains obliged to take steps to ensure that her medical condition is properly catered for. It would appear obviously necessary for her to be referred to the appropriate clinicians. The general practitioner who failed to take steps to ensure her proper treatment would be in breach of his duties of care and his duty to act consistently with the GMC’s Guidance on proper practice. There may be situations where, for example, a patient has been advised by her obstetrician to have a termination and in considering whether to consent she seeks advice from her GP. In such a situation the GP’s conscientious objection to abortion may be such that he could not give her dispassionate advice. The GMC’s advice on good medical practice accurately reflects his obligations as set out in Section 4.3 of the Guidance.

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