Abortion “pills by post”: approval of procedure not unlawful – Court of Appeal

21 October 2020 by Rosalind English

Christian Concern, R (On the Application of) v Secretary of State for Health and Social Care [2020] EWCA Civ 1239 CA (King LJ, Nicola Davies LJ, Phillips LJ) 25/09/2020

The secretary of state had granted a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone, one of the two drugs required for a termination of pregnancy during the first 10 weeks. The appellants challenged this decision by way of judicial review, arguing, inter alia, that it was unlawful as being without the powers conferred by the Abortion Act 1967 (as amended).

Legal background

The 1967 Act sets out the legal framework under which abortions can be performed in England and Wales. Section 58 of the Offences Against the Person Act 1861 makes it a criminal offence to administer drugs or use instruments to procure an abortion. Section 59 of the same Act makes the supply of drugs, knowing that they are intended to be unlawfully used to procure the miscarriage of any woman, a criminal offence.

The Act excludes from criminal liability the termination of a pregnancy by a medical practitioner under certain circumstances including maximum term of twenty four weeks and risk to the woman. The Act also stipulates that treatment must be carried out in an approved place.

The procedure for an “early medical abortion”, which has developed since the 1967 Act, usually requires the taking of two medicines, mifepristone and misoprostol, either at a 24 to 48-hour interval or simultaneously. Mifepristone (the first pill) works by blocking the hormone progesterone which is necessary for the continuation of the pregnancy, misoprostol (the second pill) causes the uterus to contract which results in the loss of pregnancy in a similar way to a miscarriage.

There is no statutory requirement for a doctor to have seen or examined the pregnant woman. A remote consultation with doctor, nurse or midwife is sufficient.

Following the announcement of lockdown on 23 March 2020 the closure of abortion clinics up and down the country led to mounting concern about safety and the ability of women to access abortion services. For example, an open letter, signed by a large number of specialists in public health, calling for the ‘immediate introduction of telemedical abortion services,’ was sent to the Secretary of State on 28 March. The Secretary of State therefore made the Decision to grant the Approval on a temporary basis. This was published on 30 March 2020.

The rationale for this decision was that women seeking abortions would not be able to take Mifepristone and Misoprostol, either because they did not want to leave their homes, or, even if they had been willing to, would not be able to access treatment because clinics had closed. The result of this would have been:

• Women missing the 10-week deadline meaning that they would be having later terminations leading to greater health complications. The clinical risks of EMA are significantly less than abortions at later stages;
• There would be a build-up of desired abortion treatments swamping capacity when more women felt able to leave their homes; and,
• Women seeking to undertake illegal, unsafe abortions.
  It was felt at the time of the Decision that the risks far outweigh any risks posed by women taking both Mifepristone and Misoprostol at home following a remote consultation …

The Divisional Court refused permission to seek judicial review, and the appellants appealed this refusal.

Issues before the Court of Appeal

The appellants argued that the Divisional Court had erred in its analysis of “terminated by a registered medical practitioner” in Section 1(1) of the 1967 Act. The Divisional Court held that the appellant’s submission would suggest that every step of the termination must be carried out personally by an RMP which would be inconsistent with the decision of the majority in the Royal College of Nursing case  [1981] AC 800 (RCN).

The appellant also contended that any approval under section 1(3) of the 1967 Act did not alter the meaning of the requirement in section 1(1) that the pregnancy is terminated by an RMP. Where pregnancy is terminated by self-administration of a drug prescribed by a doctor, who may or may not have attended an e-consultation with the patient, and where the pill can be posted to the patient, the pregnancy, they argued, is not “terminated by a registered medical practitioner”.

The respondent maintained that medical science had developed since RCN was decided. At that time a surgical procedure was used for early medical abortions.

The process is now materially different in that no surgery is generally required, the treatment comprises the taking of medication. That said, the underlying principle set out in RCN, namely that the doctor is in charge in the sense identified in RCN is met in the altered procedure

The Court of Appeal agreed. The court in RCN was not laying down a fixed definition of treatment to apply in all cases and all circumstances. In each case context was vitally important.

Context must take account not only of developments in medical science and medical practice, but also of prevailing conditions in order to ensure that the purpose of the 1967 Act is met, so as to enable women to safely access regulated services and obtain legal terminations in safe surroundings.

The Court observed that under the 2020 approval the RMP remains in charge throughout the procedure, which has been altered to reflect the changing and challenging times. The approval is time limited, again a reflection of the particular circumstances which gave rise to the need for the same.

As far as the appellants’ contentions regarding the approved “place” for termination were concerned, the Court found that Parliament, in using the word “place”, did not stipulate where abortions must be carried out. It conferred on the Secretary of State the function of deciding whether a place or class of places was suitable. Any implied requirement that the class of place be safe and suitable would be for the permitted specified purpose, namely the taking of medication. For the reasons given, a woman’s home is suitable as such a “place”.

Furthermore, there was no ambiguity, obscurity or absurdity in the relevant sections of the 1967 Act such as would permit the Court to look at statements made in Parliament, in accordance with Pepper v Hart [1993] AC 593. The meaning was determined, namely that the RMP is in charge of the termination but it is not required to take part in every aspect of the process.

Thus the 2020 Approval clearly fell within the powers conferred on the Secretary of State by Parliament in the 1967 Act.

The appellants adduced evidence of a “mystery shopper” survey of the abortion providers’ “Pill by Post” service which was organised in June 2020. Women were asked to make 19 sets of calls to providers in June and July 2020. Each woman provided false information as to being pregnant, the date of her last period, her name, date of birth and contact details. False registration data was given when details of her GP surgery was requested. The only truthful data provided was the address to which the abortion pills should be posted.

The other evidence tendered was an internal NHS email dated 21 May 2020 which highlighted the Care Quality Commission’s concerns about the “escalating risks” associated with “Pills by Post” giving examples of incidents which are said to have led to patients’ deaths in May 2020.

Nicola Davies LJ found that the survey was a covert exercise under a false premise and using false information. No control group existed.

Neither the court nor the respondent were in a position to explore, still less assess, the validity of the information which this survey purports to provide. The late service and inherent unfairness of this “survey” provide no grounds upon which to admit this evidence.

As for the email of 21 May 2020 from a regional chief midwife, it identifiesd feedback from a CMO about issues linked to the Pills by Post termination service. Thirteen incidents were noted.

The email recognises the seriousness of the incidents. As a result, the decision has been made to keep the process under review and report any incidents to the regional chief midwife. The seriousness of a relatively small number of incidents has been acknowledged and acted upon. The court does not minimise the seriousness of any incident but of itself this email takes the issues in this appeal no further.

The Divisional Court had not erred in refusing to grant permission to seek judicial review of the secretary of state’s decision to grant a temporary approval during the COVID-19 pandemic of “the home of a pregnant woman” as a class of places for the taking of Mifepristone. The secretary of state had acted within the powers conferred by the Act.

Appeal dismissed.