Call the Midwife I want an Abortion ! - 3

The Supreme Court has issued its decision in the case of  Greater Glasgow Health Board v Doogan [2014] UKSC 68 which was an Appeal from the decision of the Inner House of the Court of Session [2013] ScotCS CSIH_36 itself an Appeal from the earlier Outer House decision [2012] ScotCS CSOH_32.   

I have Blogged about the cases in 2012 and 2013.  In brief Ms Doogan and Ms Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward and this change put the two midwives in a moral and legal dilemma that eventually led to the Supreme Court. 

They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) Abortion Act 1967 which says.

"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"

It is worth pointing out that the conscientious objection clause is not restricted to believers in religion, a Secular Pro-Life person is entitled to rely on s4(1) just as much as a religious person. 

The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion and the legal case at all Courts has revolved around the question of what "participate in any treatment" actually meant. 

The Supreme Court found against the Midwives and the Judgment was, ironically, delivered by Lady Hale.  I say "ironically" because on 13th June 2014 Lady Hale gave a speech to the Law Society of Ireland where she said 
"I am not sure that our law has yet found a reasonable accommodation of all these different strands [of religious freedom and conscientious objection]"

One thing is clear from the Doogan Judgment namely that the Supreme Court did not even try to find a "reasonable accomodation" and instead went out of its way to emasculate and limit the Conscience Clause in s4.  The Court in para 37 of its judgment accepted that the word "participate" can have a narrow or a wider meaning and then in para 38 plumped for the narrow meaning

37: The more difficult question is what is meant by "to participate in" the course of treatment in question. The employers accept that it could have a broad or a narrow meaning. On any view, it would not cover things done before the course of treatment began, such as making the booking before the first drug is administered. But a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to "actually taking part", that is actually performing the tasks involved in the course of treatment.

38: In my view, the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed. The focus of section 4 is on the acts made lawful by section 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. "Participate" in my view means taking part in a "hands-on" capacity.

My first objection to this is that there is absolutely no factual or legal basis on for the Court to decide that the "narrow interpretation" is more likely to have been "in the contemplation of Parliament". There appears to have been no reference made to the Parliamentary Debates as is allowed by the case of Pepper v Hart [1993] AC 593 and which would have revealed that the Abortion Act was only passed because of the conscience clause in s4 and assurances that there would be no compulsion regarding participation in Abortion 

There seemed no recognition that the  job of a Labour Ward Co-ordinator required a medical qualification and was carried out by these Midwives in their capacity as qualified Midwives so the comparison Lady Hale makes with cleaners etc is simply fatuous 

More worryingly the Judgment deals with 2 issues relating to Abortion but which were not part of the issues before the Court

In para 36 Lady Hale says that the Conscience Clause provisions in s4 do not cover a Doctor who is asked to sign an authorisation form to legalise an Abortion 

"In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an interpretation would not cover the doctors forming the opinions required by section 1 and signing the certificates to that effect" 

This is actually a complete misrepresentation of Lord Keiths remarks in Janaway where after discussing whether s4 applied to Doctors Certificates he said (very correctly) 

"I do not think it appropriate to express any opinion on the matter."

I rather wish Lady Hale had accepted the same degree of proper Judicial restraint in commenting on matters which were not specifically part of the issues in the case especially having regard to the fact that Doctors Organisations were not represented at the Supreme Court case and had not been forewarned that legal decisions might be made relating to them so that they could make representations if they wished.

In para 40 she says

"it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional's duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection."

Once again this was not an issue in the case, Doctors and Nurses Organisations were not forewarned that judgments might be made on this point so that they could be represented and make representations if they wished.  Also it is reading something into an Act of Parliament which has not been put in by Parliament.  

Those two elements of the Judgment are frankly disgraceful, Lady Hale and her fellow Judges stepping completely and unjustifiably outside their legitimate role and function as Judges and making judgments on issues which are not before them and on which the persons affected have not been allowed to make any representations.  Frankly what annoys me as a lawyer is the sheer lack of professional competence in the way the Judgment is reasoned and the way in which the scope of the judgment goes quite improperly beyond the parties and issues involved.

Two final and closing points on what is a depressing evening

In para 8 Lady Hale goes into depressing detail concerning various methods of Abortion provision and says, in passing.

"Feticide is also carried out where there is a risk of the foetus being born alive following the termination"

To which I can only respond "a risk" ? So she happily accepts that the purpose of the legislation is amongst other things to ensure that babies who might be born alive are prevented from being born alive.

In para 14 she looks at the organisation of the Labour Ward where the Midwives worked

"Since 2010, there have been about 6000 births a year at the Southern General Hospital and just under 60 terminations a year in the Labour Ward."

Therefore since Abortions are just 1% of the work in this ward it would not have caused Glasgow NHS any real difficulties to have "reasonably accommodated" the conscientious objections of these Midwives.

In conclusion the case is an overall disaster for good honourable pro-life Doctors and Nurses who may well find themselves either pushed out of medicine altogether or forced to accept that they can never progress and accept supervisory medical posts