On 21 June this year I wrote to Mr Niall Dickson, Chief Executive of the General Medical Council, to point out that in the light of a recent court judgement, their guidance on doctors’ involvement in abortion was now out of step with the law.
I asked him if they intended to revise it.
After follow up letters and phone calls I eventually received a reply from Ms Sharon Burton, Head of Standards and Ethics Section, on 19 August.
She defended the current GMC guidance, arguing that the section I had queried was in the annex to the guidance and not the guidance itself; and that the court judgement I had referred to was the subject of an appeal to the Supreme Court.
I have published both letters below without further comment.
Doctors wishing not to be involved in abortion on conscience grounds, and concerned about their standing with the GMC and under the law, should be aware of this correspondence and of the fact that the scope of the conscience clause in the Abortion Act 1967 is a matter of some controversy.
My letter to the GMC (21 June 2013)
Dear Mr Dickson,
I’m writing to enquire whether the General Medical Council intends to revise its guidance on ‘Personal Beliefs and Medical Practice’ in the light of the recent Glasgow appeal court ruling on participation in abortion and, if so, what the timescales for the revision are.
You will be aware that two Roman Catholic midwives won a landmark legal battle in April to avoid taking any part in abortion procedures.
Mary Doogan, 58, and Concepta Wood, 52, had lost a previous case against NHS Greater Glasgow and Clyde (GGC) when the court ruled that their human rights had not been violated as they were not directly involved in terminations.
However appeal judges ruled their right to conscientious objection means they can refuse to delegate, supervise or support staff involved in abortions.
The judgment is significant and has relevance also to doctors.
As you will know the Abortion Act 1967 gives healthcare professionals the right to conscientiously object to ‘participate’ in abortion but the scope of the word ‘participate’ has been the matter of some legal dispute.
But Lady Dorrian, who heard the recent challenge with Lord Mackay of Drumadoon and Lord McEwan, said: ‘In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.’
She said the conscientious objection in the legislation is given ‘not because the acts in question were previously, or may have been, illegal’ but ‘because it is recognised that the process of abortion is felt by many people to be morally repugnant’.
She added: ‘It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’
In the earlier judgement Lady Smith had said that since the midwives were not covered by the conscience clause as ‘they (were) not being asked to play any direct role in bringing about terminations of pregnancy’.
But this has now been overturned.
The GMC guidance, which interestingly came into force earlier in the very week of the judgement, is at odds with this ruling. It currently reads:
‘In England, Wales and Scotland the right to refuse to participate in terminations of pregnancy (other than where the termination is necessary to save the life of, or prevent grave injury to, the pregnant woman), is protected by law under section 4(1) of the Act. This right is limited to refusal to participate in the procedure(s) itself and not to pre- or post-treatment care, advice or management, see the Janaway case: Janaway v Salford Area Health Authority  1AC 537′
In para 33 of the Judgment the court makes clear that professional guidelines can be legally wrong and cannot overrule statute, it says:
‘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’.
Because this Judgment is from a Scottish Court (and Scotland is a different jurisdiction to England and Wales) it is not strictly binding on an English Court. However it will nonetheless have significant persuasive force in England.
The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and when Scottish Courts have adjudicated on such ‘cross border’ legislation in the past their decisions have been taken very seriously in England and Wales and vice versa.
We have been concerned for some time that the GMC was over-interpreting the law in a grey area in issuing its guidance. But this latest judgement has clarified the law in a way that now makes that virtually certain.
Christian Medical Fellowship has over 4,000 doctors and 1,000 medical students as members and the vast majority would have a moral objection to participation in abortion. Many other doctors share these views.
I trust that the GMC will move swiftly to review and revise their guidance so that doctors with a conscientious objection to abortion are clear where they now stand.
As I said above I would most grateful for an indication of your plans for review along with timescales so that I can keep our members informed about this important development which has practical implications for many of them.
Christian Medical Fellowship
Reply from Sharon Burton, Head of Standards and Ethics Section, GMC (21 August 2013)
Thank you for your letter about the decision of the court in the case of Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board  CSIH 36.
We have, of course, been following this case with interest and have read the judgment with some care. We agree that the judgment gives a wider meaning to 'participate in terminations of pregnancy' than the determination in the Janaway case in 1989. However, we are not persuaded that this position is in conflict with the GMC's guidance in Personal Beliefs in Medical Practice (2013).
In that guidance we make clear that we do not wish to preclude doctors from practising in accordance with their values and beliefs, and we do not limit the exercise of conscientious objections, except where that would not be lawful; result in treating patients unfairly; deny patients access to treatment or cause them distress.
In our view, this guidance is consistent with the Doogan and Wood judgment - our guidance allows doctors to exercise a conscientious objection to any part of the procedure, where the objective is the termination of a pregnancy.
You refer to the brief reference to the Janaway judgment in the Legal Annex to our guidance. This section is not part of the guidance. As we state at the beginning of the Annex:
This annex is for reference only. It is not intended to be a comprehensive statement of the law or list of relevant legislation and case law, nor is it a substitute for up-to-date legal advice.
As we understand the current position, it is more than possible that Greater Glasgow and Clyde Health Board will appeal the decision of the Court of Session. In view of the terms of our guidance, and the caveats expressed in our legal annex, we do not think it is necessary to make any changes to our document at this stage.
Thank you for raising the issue with us. I hope this makes clear our position.
Head of Standards and Ethics Section