Wednesday, 24 April 2013

Call the Midwife I want an Abortion ! - 2

As a follow up to my post on 7th march 2012 regarding the case of the Scottish Midwifes who did not want to supervise Abortions the earlier decision has now been overuled and their right to conscientious objection recognised in Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  

This a unanimous decision by three Judges of the Inner House of the Court of Session  (equivalent to the English Court of Appeal) and recognises in clear terms that the Conscientious Objection clause in s4 Abortion Act 1967 allows Medical staff to refuse to participate in ALL aspects of Abortion "treatment".

The Court rejected the Hospitals suggestion that s4 only covered participation in the immediate act of Abortion  and also rejected arguments based on inconvenience to the Hospital.  The Court recognised that Abortion is a uniquely controversial aspect of Medical practice and that the right of Conscientious Objection is "a right" which Hospitals have to accomodate regardless of any managerial inconvenience it may cause.

This covers a point I have been involved in as Director of the Thomas More Legal Centre where I have had to protect Nurses being pressurised to participate in Abortion especially the administration of Abortion inducing Drugs. Frequently Hospitals have suggested that s4 only applied to the actual giving of the Drugs but did not cover other aspects of Nursing work.  This Judgment vindicates the Nurses I have represented who have refused to participate in any aspect of Abortion "treatment"

Interestingly the Court also endorsed a South African Court decision Christian Education SA v Minister of Education (2001) 9 BHRC53 where the Judge had said
"believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. "
This case could therefore become an important decision in relation to issues of Religious Freedom extending beyond Abortion"

I am also pleased that the Judgment agreed with a criticism I had made of the earlier decision in my Blog last year when I said

"the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance."

In para 33 of the Judgment the court makes clear that even professional guidelines can be legally wrong and cannot overule statute, it says (my emphasis)

" Great respect should be given to the advice provided hitherto by the professional bodies, but prior practice does not necessarily dictate interpretation. Moreover, when the subject of the advice concerns a matter of law, there is always the possibility that the advice from the professional body is incorrect. .......It also proceeds on the basis that a midwife has a duty to be non-judgmental and that to be selective is unacceptable, but this ignores the fact that the Act allows a degree of selectivity to those with a conscientious objection"

Even though the Judgment is from a Scottish Court and Scotland is a different jurisdiction to England and Wales the judgment will apply in England and Wales.  The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions have been accepted without question in England and Wales and vice versa. 

The Inner House of the Court of Session is equivalent in status to the Court of Appeal and therefore this case will be treated south of the border on exactly the same basis as if it had been a decision of the Court of Appeal.In the judgment it is noticeable that much of the case law referred to was English but was treated as binding in Scotland because the Scottish Court was dealing with the same piece of legislation as the English Courts