Gender-specific abortion: the CPS Statement

We covered gender-specific abortion and the case of the two doctors identified as a result of the Daily Telegraph “sting” in Gender-specific abortion: statistics, (12 September), and in Gender-specific abortion: law and ethics, (18 September).  The earlier post noted that on 5 September, the Crown Prosecution Service, (CPS), had issued a statement explaining the reasoning behind its decision not to prosecute the two doctors.  This stated that the Health Secretary had written to the Attorney General asking for clarification, and it had therefore been presented under the title “Current statement explaining the decision-making”, with the caveat “[t]his will be expanded upon in due course”.  This expanded explanation became available on the CPS blog on 7 October, and is summarized below.

Statement from Director of Public Prosecutions on abortion related cases

In comparison to the interim statement, which we suggested was “not a model of logic or clarity”, the new statement is more clearly thought out, and sets out in detail the relevant events, discusses the relevant legislation, giving an analysis of the two cases and the reasons for the CPS decision.  This includes:

The case against Dr S and Dr R: The facts of the two cases concerning the consultation with the same pregnant woman, (“E”), are addressed separately, reporting the doctors’ accounts of what was said and the medical conclusions drawn.  “E” claimed to be eight weeks pregnant and aware of the gender of the foetus as the result of an undocumented blood test taken in France.  Dr S said that she did not know of any non-invasive test that could identify gender at such an early stage of pregnancy.  However, important medical facts were that on a previous occasion in which she was pregnant with a girl, there had been a chromosomal abnormality and there was foetal loss at 22 weeks.

In the case of Dr R, there is evidence that another doctor in the same clinic, Dr K, pre-signed the form HSA/1, which was subsequently signed by Dr R. Dr K indicated on the form that he had not seen the patient. He signed as if he were the second doctor, but left the date blank.

Law and Guidance: This includes a discussion on: section 58 of the Offences Against the Person Act 1861; section 1 of the Abortion Act 1967; the guidance in BMA’s Handbook of Ethics and Law, published in February 2012, which it described as “far from clear”; the published Department on Health data on the number of abortions performed each year in England and Wales; the Code for Crown Prosecutors.

Analysis of the evidential stage – Dr S’s case: The statement summarized this as:

“The prosecution case would be that although Dr S did not authorise a termination on the basis of the gender of the foetus alone, she authorised it on the simple basis that E wanted an abortion and she, Dr S, was not going to ask E questions beyond whether E was sure about her decision. Even on this narrow basis the evidence is not strong and the prospects of conviction would not be high. But, on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.”

Analysis of the evidential stage – Dr R’s case: This concluded by stating:

“Ultimately the fact that Dr R never really probed E’s reasons and was prepared to put down a reason which he either knew to be false, or never tested, namely that E was too young for a pregnancy just tips the balance in making out the evidential stage of the code test. As with Dr S, the prosecution case would be that, although Dr R did not authorise a termination on the basis of the gender of the foetus alone, he authorised it on the simple basis that E wanted an abortion. But again it is obvious from this analysis that even on this narrow basis the evidence is not strong and the prospects of conviction would not be high. But, on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.”

Considerations of the public interest: These were summed up in the statements:

“ . . . . the question in this case is not whether a prosecution of Dr S and Dr R is required in the public interest on the basis that they authorised a gender-specific abortion. There might be powerful reasons for a prosecution in the public interest in such circumstances. But, for the reasons set out above, no prosecution could be brought on such a basis.

The question is whether a prosecution is required on the very different basis that Dr S and Dr R failed to carry out a sufficiently robust assessment of the risks to E’s health by continuation rather than termination of her pregnancy. In those circumstances, very different considerations apply.”

Comment

In our post of 19 September, we suggested that having reviewed the “law and guidance”, (i.e. essentially what was covered in the CPA’s recent statement), that the major problem with the CPS decision appeared to be the unclear presentation of its initial statement, rather than the substance of the decision itself.  We noted that not all would agree with our assessment, and that the Christian Legal Centre was considering a private prosecution of the two doctors and/or judicial review, once a further statement had been issued.

The additional facts now available provide stronger support for the action taken by the CPS.  In line with  its Code, the CPS analysed the evidence of the two doctors, considered it in relation to the relevant legislation, how their accounts might be challenged in court, and weighed up the public interest of a prosecution.  The statement concludes:

“as with the evidential stage of the Code test, the public interest in this case is finely balanced. But, if the narrow basis of any prosecution is kept firmly in mind, the public interest factors against prosecution outweigh those in favour. In reaching this conclusion, we fully consulted with the police who agreed with us about the public interest.”

Nevertheless, although the new information indicated that prosecution was not in the public interest, the statement noted that both doctors have been referred to the General Medical Council’s Interim Order Panel and each has conditions imposed on his/her registration. Since the GMC has no criminal powers, there will be those who question whether “it is more appropriate for a professional disciplinary body to evaluate the proper approach that doctors should take to assessing health risks, in circumstances in which that approach has not been prescribed in detailed professional guidance, than it is for a criminal court.”

Other unsatisfactory issues were raised in the Statement: the “far from clear” guidance issued by the BMA in 2012; and the widespread practice of the pre-signature of form HSA/1,

“which, on its face, permits a doctor to certify that he or she has formed an opinion about the patient’s reasons for wanting an abortion without either seeing or examining her”.

[…]

“soon after the investigation in these cases, much clearer guidance was issued by the Department of Health. But even the new guidance does not indicate that each doctor must see and examine the patient before forming a view, only that he or she must have “enough evidence of the woman’s circumstances to justify that they were able to form a good faith opinion that the ground for termination exists.”

Regardless of any legal action that might be pursued, there is clearly a pressing need to address the above two issues. We note that David Burrowes, (Enfield, Southgate) (Con), has secured a Westminster Hall debate for 9th October 2013 , 2:30pm – 4:00pm on “Policy on prosecution of offences contravening the Abortion Act 1967.” We will post a report on this debate later in the week.

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