Mary Doogan and Connie Wood, the labour ward co-ordinators at the Southern General Hospital, Glasgow, who sought to assert their conscientious objection to supervising staff involved in abortions have won their appeal. In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board  ScotCS CSIH 36 (24 April 2013) an Extra Division of the Inner House (Mackay of Drumadoon, Dorrian & McEwan) overturned the decision of the Lord Ordinary [Lady Smith] dismissing their petition for judicial review and refusing the petitioners’ minute.
Ms Doogan and Mrs Wood (“the reclaimers”: you don’t appeal from the Outer House of the Court of Session – you reclaim) worked as midwives in the labour ward at the respondents’ Southern General Hospital as labour ward co-ordinators. Both are practising Roman Catholics who, when they started working in the labour ward, claimed conscientious objection to participation in termination of pregnancy pursuant to s 4 of the Abortion Act 1967. That was accepted and, as a result, they took no part in the treatment of certain patients in the labour ward. Previously, medical terminations of pregnancy had been carried out in the labour ward if the foetus was more advanced than 18 weeks; otherwise, they had taken place in the gynaecological ward. From 2007, however, all terminations took place in the labour ward and their number increased in 2010 with the closure of the Queen Mother’s Maternity Hospital.
The reclaimers initiated a formal grievance procedure in September 2009 in which they sought confirmation that, having expressed a conscientious objection to abortions, they would not be required to delegate, supervise and/or support other staff in the participation and provision of care to patients undergoing medical terminations at any stage in the process. The grievance was not upheld and they were refused permission to appeal to the Board on the grounds that
“… delegating to, supervising and /or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care and having the ability to provide leadership within the department is crucial to the roles and responsibilities of a Band 7 midwife, therefore this part of your grievance is not upheld.”
They sought judicial review on the basis that the decision was ultra vires, unreasonable, irrational and contravened of the Act. Principally, they sought declarator that their right of conscientious objection in terms of the Act
“… includes the entitlement to refuse to delegate, supervise and/or support staff in the participation in and provision of care to patients undergoing termination of pregnancy or feticide throughout the termination process”.
It was agreed that their duties as labour ward co-ordinators included the following:
(1) management of resources within the Labour Ward, including taking telephone calls from the Foetal Medicine Unit to arrange medical terminations of pregnancy;
(2) providing a detailed handover on every patient within the Labour Ward to the new labour ward co-ordinator coming on shift;
(3) appropriate allocation of staff to patients who are already in the ward at the start of the shift or who are admitted in the course of the shift;
(4) providing guidance, advice and support (including emotional support) to all midwives;
(5) accompanying the obstetricians on ward rounds;
(6) responding to requests for assistance, including responding to the nurse call system and the emergency pull;
(7) acting as the midwife’s first point of contact if the midwife is concerned about how a patient is progressing;
(8) ensuring that the midwives on duty receive break relief, which may mean that the labour ward co-ordinator provides the break relief herself;
(9) supporting and assisting medical interventions such as forceps deliveries;
(10) communicating with other professionals, e.g., paging anaesthetists;
(11) monitoring the progress of patients to ensure that any deviations from normal are escalated to the appropriate staff level, eg to an obstetrician;
(12) directly providing care in emergency situations;
(13) ensuring that the families of patients are provided with appropriate support.
During argument at the two hearings, the Board accepted that under item 8 they could not require the reclaimers personally to provide break relief which would involve them in having to step in and ensure the achievement of a termination of pregnancy: the reclaimers’ obligation would be to find somebody else to do so. So far as medical intervention was required (item 9) it was accepted that the reclaimers could not be required to be present during such intervention. It was further accepted that items 4 and 7 (supporting and advising midwives) would also be covered by the right of conscientious objection insofar as they might involve advising midwives about appropriate treatment:
“In fact, counsel for the respondents accepted that the performance of any of these 13 listed duties might involve participation in treatment authorised by the Act and as such be covered by the right of conscientious objection. Whether the performance of the duties did so would require to be addressed on a daily, task by task basis. That would require to be decided by management. There was, however, no expectation on the part of the respondents that the reclaimers would be required to deliver any direct patient care during the termination process itself.” (para 8).
The point at issue
The 1967 Act provides 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”.
Mary Doogan and Connie Wood maintained that the performance of any of the duties listed above in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment which is the subject of their conscientious objection. The Board maintained that their right of conscientious objection was limited to a right to refuse to participate only in any “direct involvement in the procedure of terminating pregnancy”.
The Lord Ordinary’s opinion and the reclaimers’ averments
In the Outer House the Lord Ordinary concluded that the word “treatment” in the phrase “participate in any treatment authorised by this Act” in section 4(1) was being used “to denote those activities which directly bring about the termination of the pregnancy.” (para ). As to “participate”, that connoted “taking part in” but did not extend to all those involved in the chain of causation (para ). Since the reclaimers were not being required to play any direct part in bringing about the termination of pregnancy, they were not being asked to “participate in any treatment authorised by this Act”. Their role was a supervisory and administrative one. The Lord Ordinary made two further observations in support of her conclusion:
- that the 1967 Act was concerned only with authorising acts that would previously have been criminal under the common law and that “not all involvement with terminations of pregnancy … was criminal prior to the authorisation that the Act conferred”; and
- that the right under section 4(1) was not unrestricted since, in her opinion, it did not extend to terminations authorised under section 1(1)(b) or (c) of the Act nor to an emergency situation where the woman’s life was at stake or there was the risk of grave injury to her health.
The reclaimers argued that the Lord Ordinary had been wrong to conclude that the right of conscientious objection did not include entitlement to refuse to delegate, supervise and/or support staff providing care to patients undergoing termination of pregnancy because they involved “participation in treatment” authorised by the Act: for example, monitoring the condition of the patient and the progress of the procedure the patient was undergoing, including whether the medication was having its intended effect. “Treatment”, they averred, included the whole medical or surgical process involved in termination, including pre- and post-operative care and care pre- and post-administration of abortifacients. Treatment as a whole was a team effort and supervision was a necessary element of that effort.
They accepted that section 4(2) overrode any conscientious objection and that they would be bound to participate in any treatment which was necessary to save the life of or to prevent grave permanent injury to the physical or mental health of a pregnant woman; but they averred that it was wrong for the respondents simply to consider the list of duties and concede a few. Instead:
“[they] should be given an exemption from duties which was co-extensive with the bounds of their beliefs. The issue was a subjective one to be determined according to the conscience of each individual. They should not [be] require[d] to carry out duties which were, or were liable to be, in conflict with their conscience. There was no scope in the Act for imposing duties which were in conflict with individual conscience. … [T]he question of whether any aspect of their work would in fact do so should be dictated by conscience and not be determined by an administrator” (para 13).
In short, their duties had to be regarded as an interconnected whole; and if they were required to carry out the tasks in question they would be participants, not passive bystanders.
The judgment of the Inner House
Delivering the opinion of the Court, Lady Dorrian noted that, in passing the Act, Parliament had tried to balance competing interests by liberalising the law but exempting from participation those with a genuine conscientious objection, qualified only by the need to participate if treatment was required to save the life of a pregnant woman or prevent grave permanent injury to her physical or mental health (para 14).
The Lord Ordinary had erred in stating that the right to conscientious objection did not extend to terminations carried out under section 4(1)(b) or (c) of the 1967 Act. She had also erred in concluding that the Act had no application to acts that had not been criminal before its passing, because section 1 contained an exhaustive statement of the circumstances in which either abortion or feticide were lawful and there was no residual category to which the common law applied.
“The categories which were envisaged in R v Bourne  1 KB 687 (in which a doctor carried out an abortion on a 14 year old girl and invited prosecution for clarification of whether there was in law a defence based on actions necessary to prevent grave injury to the mother) were all covered under section 4(1); the Act required that ‘any’ treatment for the termination of pregnancy had to be carried out in a hospital or approved place; and made provision for regulations requiring any medical practitioner terminating a pregnancy to give the requisite notice thereof. Section 5 provided that for the purposes of the law relating to abortion (defined in s 6 as including ‘any rule of law relating to the procurement of abortion’) ‘anything done with intent to procure a woman’s miscarriage … is unlawfully done unless authorised by section 1 of this Act’.” (para 16).
Lady Dorrian further noted that
“Even in a supervisory role, the labour ward co-ordinators were part of the team responsible for the overall treatment and care of the patient and would thus “participate in treatment authorised by the Act”. In any event, insofar as any of the items within their job descriptions involved them directly in treatment, they would also do so” (para 19).
In short, the Board’s decision letter of 14 June 2011, in referring to “direct 1:1 care”, assumed a definition of participating in treatment which was not in accordance with a plain reading of the Act (para 20).
- that the 1967 Act is exhaustive as to the circumstances in which abortion may lawfully be carried out (para 31);
- that, though the right of conscientious objection does not apply to a procedure carried out under section 1(1)(b) because the circumstances envisaged by section 1(1)(b) are part of the circumstances envisaged by section 4(2), the right does extend to section 1(1)(c) (para 32); and
- that Lord Keith’s statement in R v Salford Area Hospital Authority ex parte Janaway  1 AC 537 (which involved a claim by a secretary who was required to type appointment letters for patients seeking a termination) that to participate meant “actually taking part in treatment” was intended to distinguish participation in the ordinary sense of the word from the different forms of participation which can arise under the criminal law and to distinguish those who were involved in treatment in hospital from those who were not so involved (para 33).
“The duties of the reclaimers in this case are far removed from those of a secretary typing a letter of referral, and it has not been argued that their duties involve anything other than treatment in the proper sense. The reclaimers are, in the words used by Lord Keith in Janaway ‘actually taking part in treatment administered in hospital or other approved place in accordance with section 1(3), for the purpose of terminating pregnancy’ “ (para 36).
Finally, she pointed out that while the advice provided by the professional bodies, should be treated with respect “there is always the possibility that the advice from the professional body is incorrect” and that the advice of the Royal College of Midwives and the Nursing and Midwifery Council had been defective (para 33).
The appeal was allowed.
There are various points to be made about the judgment, the most important of which that it is not about the rights or wrongs of the current law on abortion; nor is it particularly about “religion”, because it is perfectly possible for a convinced atheist to have a deeply-rooted moral objection to participating in a termination of pregnancy. What it is about is the correct interpretation of s 4 of the 1967 Act.
On reading Lady Smith’s opinion in the Outer House the impression was that she gave undue weight to the judgment of the House of Lords in Janaway. Organising a labour ward in which terminations were carried out is far removed from typing appointment letters. In addition, it was pretty evident that Mary Doogan’s and Connie Wood’s duties had changed dramatically, at least from their point of view, when from 2007 onwards all terminations took place in the labour ward. (My own feeling was that they had been hard done by, to say the least.)
Lady Dorrian quoted with approval the dictum of Sachs J in Christian Education SA v Minister of Education (2001) 9 BHRC53 at para 35, as follows:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not … Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”.
Precisely: and in the case of participation in termination of pregnancy, the 1967 Act also seeks to avoid putting non-believers to “extremely painful and intensely burdensome choices”. But, of course, all cases of this nature are highly fact-sensitive and there is no predicting the outcome of any future dispute between an employer and employee about conscientious objection under s 4. It is also worth noting in passing that, from a Roman Catholic canon law perspective, given that the Inner House clearly identified their role in participation in abortions, Ms Doogan and Mrs Wood must have been in danger of excommunication latae sententiae.
Further, as Lady Dorrian pointed out, advice from professional bodies cannot displace statute law and has got to be correct. Or as we would sometimes mutter in despair when I was Clerk of Bills in the House of Commons and someone was being particularly obtuse about a statute, “RTBA” – “Read the bloody Act”.
Finally, will the Health Board seek to take the case to the Supreme Court?
[For a rather different view see Conscientious objection in Scotland: a worrying precedent on the RHM Blog.]