Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board  CSIH 36 – read judgment here
The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions.
The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.
The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.
The appeal turned on the interpretation of s.4 of the Abortion Act 1967, which reads as follows:
4. Conscientious objection to participation in treatment
(1) Subject to subsection (2) of this section, 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: Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.
Lady Smith had concluded that the phrase ‘participate in any treatment’ in s.4(1) referred only to activities which directly bring about the termination of a pregnancy, and therefore did not include supervisory or administrative roles such as those of Mrs Wood and Mrs Doogan in their position as Labour Ward Co-ordinators. In support of this she had considered that:
- Before the Abortion Act the crime of intentional procurement of abortion was subject to a common law exception where the purpose of a termination was preservation of the life or health of the mother. Therefore the Act was concerned only with authorising action which would otherwise be criminal, and there were some abortions which did not require the Act’s authorisation and were not subject to the right of conscientious objection.
- The right under s.4(1) of the Act was not unrestricted, and did not apply in emergency situations or to terminations carried out under s.1(1)(b) or (c) (i.e. where necessary to prevent grave permanent injury to the mother, or where continuance of the pregnancy would involve risk to the life of the mother greater than if the pregnancy were terminated).
The Inner House dealt with these two points fairly shortly. They held that the only lawful way in which an abortion may be carried out is under a procedure authorised by s.1 of the Act; anything else done to intentionally terminate a pregnancy is unlawful (as confirmed in s.5). They also held that the right of conscientious objection is qualified only by s.4(2), which is essentially the same as s.1(1)(b) and “denotes something in the nature of an emergency; a situation where, unless the termination is carried out, the mother will die.” Other than this, there is a right to refuse to take part in any abortion, including those carried out under s.1(1)(c).
The Court then went on to hold that, following the decisions of the House of Lords in Royal College of Nursing v. Department of Health , and R v. Salford Area Hospital Authority ex p. Janaway, the correct interpretation of ‘treatment’ for the purposes of the Act is not simply the abortion procedure itself, but also the whole process of treatment given for that purpose, including any pre- or post-procedure care. Thus the right to conscientiously object to participation in any treatment was similarly broad, and included any delegation, supervision or support.
The Health Board had put forward a practical argument against this broader approach, suggesting that an interpretation of ‘participate’ which included indirect involvement in abortion would be more difficult to manage than a narrower interpretation. However, the Court took the opposite view, finding that if ‘participation’ were defined according to whether the person was taking part ‘directly’ or ‘indirectly’ this would actually mean more complexity and uncertainty. In the Court’s opinion,taking the Health Board’s approach would mean that:
[The] right to conscientious objection would require to be assessed on a task by task basis. That in itself might not be easy to manage. Moreover, it is debatable whether safety would be compromised more by what the [midwives] propose than by a system which places on those who may already be struggling with their conscience the additional burden of having to assess whether each task comes within the scope of their conscientious objection and of having to re-state that objection, possibly on a daily basis.
On the other hand, if the broader interpretation of s.4 were applied:
…the matter would be clear from the outset and management structures and protocols could be devised (as seem to have been possible to some extent previously) to deal with the situation, in respect of procedures which are, for the most part, elective ones…A person with a conscientious objection is not to be under any duty to participate; it would seem to be consistent with that to expect the management of the conscientious objection to be a matter for the employer not the employee.
Overall, the Court held that a broad interpretation of the right to conscientious objection was a “common sense approach“. More than that, it was more in keeping with the intention of the Act. As the Court explained:
The conscientious objection in section 4 is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it.
Before the Outer House the midwives had run an argument based on Article 9 of the ECHR, which protects freedom of thought, conscience and religion. However, this does not appear to have been pursued in the Inner House because there was no need for a general balancing of religious freedom against legal requirements in a case such as this where there was a specific provision dealing with conscientious objection.
As the Court explained:
By giving an exemption to those with a conscientious objection, the state has avoided conflict between the law and religious beliefs. Conscience and belief took precedence over law by the exemption from duty and section 4(1) should be interpreted in such a way as to allow the reclaimers to be true to their beliefs while remaining respectful of the law.
Although the Article 9 point was not explored in any great detail in this appeal, the ruling is relevant to the emerging debate about the relationship between the right to freedom of religion and the right to freedom of conscience, which arose in the dissenting opinion in the recent Eweida, Ladele, Chaplin and McFarlane cases before the European Court (see our analysis here).
The judgment is likely to have a more immediate impact on the various medical and nursing professional bodies’ published guidance on the Abortion Act. The Health Board had argued that one reason for adopting a narrow interpretation of s.4(1) was that the RCM and other professional bodies had taken a more restrictive approach for many years. However, the Court gave this pretty short shrift:
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. The RCM advice, for example…refers to the Janaway case and proceeds on the basis that in that case participation was defined as meaning “actually taking part in treatment designed to terminate pregnancy”, without recognising the context in which the word “actually” was included. It is not consistent with the approach of Nolan J subsequently approved by Balcome LJ and Lord Keith. It makes no reference at all to the RCN case. 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.
The RCM guidance will need to change, therefore, to reflect the clarification of the law in this judgment. So too will the NMC guidance and the GMC guidance, which with somewhat unfortunate timing had been updated, but still containing the wrong interpretation of the law, only a couple of days before this judgment was handed down.
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