On 22 November the Department of Health published the consultation Procedures for the Approval of Independent Sector Places for the Termination of Pregnancy but “due to an administrative error the deadline for responses is being extended from 17 January to 3 February 2014”. It has been reported that this administrative error extended to posting the consultation on a Government website without key interested parties being notified or a press notice being issued. Nevertheless, the consultation invites responses from: NHS Trusts, Foundation Trusts; Clinical Commissioning Groups (CCGs); Independent sector abortion providers; Royal Colleges; Professional bodies; other stakeholder and patient organisations that have an interest in the provision of abortion services.
In parallel with the Department of Health consultation on the revision of Required Standard Operating Procedures, (RSOPs), for independent clinics, other issues relevant to abortion have come into the public domain either as a result of internal action such as that by the Care Quality Commission or externally through media investigations. These are summarized in the following timeline:
– 1999: Previous update of Required Standard Operating Procedures, (RSOPs);
– July 2012: Evidence of pre-signing of abortion forms at 14 NHS clinics uncovered by Care Quality Commission ;
– July 2012: Publication of Interim RSOPs “to update requirements and take into account a number of regulatory changes, for example the introduction of the Health and Social Care Act 2008, which imposed additional regulations on providers. The independent sector providers for the termination of pregnancy agreed to comply with these and were re-approved to perform abortions until 28 February 2014.
DH committed to consult on a further updated set of RSOPs prior to considering re-approvals for a period of a further four years.
– 23 February 2012: Allegations of gender-specific abortions following “sting” operation by Daily Telegraph about which we posted;
– 22 November 2013: Consultation published on revised RSOPs which includes “additional amendments to the RSOPs, since the interim version was issued, to bring it in line with current policies and guidance.”;
– 15 January 2014: Consultation deadline extended to 3 February;
– 16 January 2014: Study of 2011 National Census data by The Independent has indicates gender-selective abortions have significantly shifted the natural sex ratio of some communities in England and Wales in favour of boys.
– 3 February 2014: End of Consultation
– February 2014: All current providers to be re-approved for an interim period of three months. During this time responses to this consultation will be considered and a final document against which all providers will be invited to re-apply for approval will be published.
– 31 May 2014: New four-year approval period to commence.
The consultation paper is clear that views are not sought on a number of issues:
– Whether the Secretary of State for Health should continue to approve independent sector places as legal powers to approve these places are already available within existing law;
– Any other aspect of abortion legislation. It is accepted Parliamentary practice that proposals for changes in the law on abortion come from back-bench members and that decisions are made on the basis of free votes.
– The ethics of abortion. Women should have access to legal and safe abortions in accordance with the provisions in the Abortion Act.
Caveats such as these sometimes do not deter respondees from raising issues outside the scope of a consultation but experience suggests that their time could be more profitably spent elsewhere.
Objections to new proposals
The Christian Medical Comment blog summarizes some of the objections to the suggestions within the consultation in its post Department of Health officials attempt to bring in nurse and home abortion through back door. These objections concern what procedures and practices might be inferred as being permissible within the wording of the new RSOPs that deal with nurse and home abortion, viz.
“RSOP 1 essentially says that it is not necessary for doctors to see the women in order to authorise abortions ‘in good faith’ – nurses or others can gather the information and all the doctors need do is sign.
‘We consider it good practice that one of the two certifying doctors has seen the woman, although this is not a legal requirement.
RSOP 2 is worded in such a way that it could allow nurses both to carry out surgical abortions and also to prescribe abortion drugs. This would appear to be against the letter and intention of the law.
‘The RMP is not required to personally perform every action. Certain actions may be undertaken by registered nurses or midwives (who are not RMPs) provided they are fully trained and the provider has agreed protocols in place.”
Other objections include provisions within RSOP 25 whereby babies up to 24 weeks who are being aborted do not need pain relief because they do not have the neural connections necessary to feel pain, a conclusion which is based upon a controversial report on fetal pain from the Royal College of Obstetricians and Gynaecologists.
Our earlier post Gender-specific abortion: the CPS Statement, whilst generally supportive of the position taken by the Crown Prosecution Service, noted that some unsatisfactory issues were raised: the “far from clear” guidance issued by the BMA in 2012; and the apparent widespread practice of the pre-signature of form HSA/1, and suggested that regardless of any action that might be pursued [regarding the two doctors caught in the Daily Telegraph “sting”], there is clearly a pressing need to address the above two issues.
It is therefore surprising to read on page 17 of the consultation’s Annex C: procedures for the approval of independent sector places for the termination of pregnancy
“The BMA’s guidance on “Law and Ethics of Abortion” and the Department of Health’s comprehensive reference guide to consent for examination or treatment (2009) also set out good practice in this area”,
in apparent contradiction of the assessment of the Director of Public Prosecution that its treatment of gender-specific abortion was “far from clear”. The proposed new RSOPs are likely to muddy the waters even further, but as Dr Saunders indicates, one outcome of this consultation might be a call for “a full and comprehensive enquiry into why the abortion law is apparently being reinterpreted and not upheld”.
Response to consultation
Those with an interest in this issue should either: respond online; or complete a response form and either email to Lisa.Westall@dh.gsi.gov.uk, or send to the Sexual Health Team, Room 124, Richmond House, 79 Whitehall, London SW1A 2NS. In all cases, the response must be received by 3 February 2014.
 Anyone with a significant interest in this area should have had an appropriate legislative scrutiny procedure in place that would have identified the posting of the Consultation on the government web site.
 Due to another “administrative error”, the date on the response form still indicates 17 January 2014.