Wednesday 17 December 2014

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 


Paddy said...

Can this judgement be appealed to Europe?

Daniel Toye said...

Neil, the whole thing is depressing beyond words.

I just wanted to raise one point. I, too, had noticed the jaunty reference to foeticide and how the production of a live baby at the end of a process could be considered some kind of unthinkable disaster that must be mitigated against.

It made me think about what exactly is termination of pregnancy as authorised by the Act? Is the destruction of the foetus an actual legitimate end-point of the procedure as separate from terminating the pregnancy (I mean that literally: changing the woman's condition from pregnant to not pregnant). We all know the the destruction of the baby is the result of such action. We also all know that it is the desired result of all involved. It may even be a stopping point a step in it's own right during the procedure.

But is it legal end-point in itself? I'd be interested to hear your thoughts.

huchet said...

Forgive the reductio ad Hitlerum, but in Auschwitz those who herded Jews and others into the gas chambers, and those who inserted the gas, were clearly guilty. But how about those who "delegate, supervise and support" such staff? Were they not equally (perhaps more) guilty?

Neil Addison said...

Looking at the above comments

Fr Levi: Answer yes possibly regarding Article 9 however the problem is that the case turned on the construction of a specific British Statute and not on Human Rights issues so the ECHR might well decide that since there is no consensus in Europe on Abortion or Conscientious Objection to Abortion it is an issue lying within the "margin of Appreciation" where Countries are able to make their own different decisions

Daniel Toye Answer I don't really know since the issue as such has not arisen directly. My feeling is that it is implicit in an Abortion that its purpose is the destruction of the unborn child

Hutchet I agree and this is one of my many disagreements with Lady Hale and this decision. Applying the Lady Hale test Auschwitz only those actually putting in the Gas pellets into the Gas Chambers were guilty but those who organised the trains to Auschwitz or were Guards in the Watchtowers etc were not

Bell said...

If a midwife was required — not for the abortion delegation/supervision, or the procedure (killing process) itself — but for care of the mother ("do you want to see/hold your aborted child?", hand holding, etc.), 'delivering' the dead/aborted child, and 'cleaning-up' after an abortion (holding or waiting with still-alive aborted child until dead, and then dispose of it), is this necessarily complicity in killing?

Nicolas Bellord said...

This is an appalling judgement not just morally but thoroughly bad law.

A first point:

Lady Hale says: "11. "participating" meant actually taking part in that process. It did not have the extended meaning given to participation by the criminal law. "

The Abortion Act comes under the law relating to abortion which is still prima facie a criminal offence except when covered by this Act. Therefore surely 'participating' should be defined under the criminal law. Otherwise 'participating' in an illegal abortion is going to have a different meaning than under this Act or will an accessory to an illegal abortion be able to plead he was not participating in the light of this judgement?

Secondly para 24 seems to suggest that there are further possibilities before an employment tribunal. Is this realistic?

Thirdly: If the administrative procedures described in para 38 are not part of the treatment then are then not covered by the Act and therefore are illegal? It seems to me there is an illogicality here.

Fourthly: I suppose there is little hope of Parliament stating what it did mean when passing the conscientious clause but we should try and get clarification there.

I was recently at a conference organised by the solicitors Farrers. One of the subjects was the UN Declaration of Human Rights. A point was made that in 1945 duties were taken for granted and did not need specifying whereas now the culture has abandoned any idea of duty such as a duty to care for the unborn. We have come a long way in our Post-Christian society.

How the bureaucrats of Action T4 "Charitable Foundation for Cure and Institutional Care" in Berlin would have cheered this judgement!

huchet said...

I well remember from the '60s the discussions which preceded the Abortion Act. At that time I made it my business to get to know some leading members of the Abortion Law Reform Association, and I had the odd letter published. But I was a young man then, and there was no support -- so I could take it no further.

But I remember that the bishops were quite inactive, there was no organised Catholic 'movement' to oppose the Bill. I hope that our bishops will make a strong joint statement in response to this case. You have provided the ammunition.

Jim in Liverpool said...

I formed an opinion when I heard they were to take up to 6 months to decide, that they would be lobbied by the planners of euthanasia laws. No nurse or doctor will be able to object to taking any part directly or otherwise, when a person is about to be euthanased. Have a look at By Trust Betrayed: Patients, Physicians and the License to Kill in the Third Reich; Hugh Gallagher; HHolt&Co, New York (1990)

Bill said...

“Can. 871 If aborted fetuses are alive, they are to be baptized insofar as possible.”

Anonymous said...

What Christian heritage are we going to leave to our children - hope or a dystopian wilderness ?..... " People will not look forward to posterity, who never look backward to their ancestors " - Edmund Burke.