As we noted in Sunday’s round-up, on Good Friday the Northern Ireland Department of Health, Social Services and Public Safety published new Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland. It makes it clear at the outset that the guidance “cannot, and does not, make any change to the law of Northern Ireland. In the event of any conflict between this guidance and the law, the latter will always prevail” [1.9: emphasis in original].

The guidance

Briefly, the guidance points out that termination of pregnancy is governed by ss 58 and 59 of the Offences Against the Person Act 1861 and s 25 of the Criminal Justice Act (Northern Ireland) 1945 and summarises the current law as follows:

“2.8 i. In Northern Ireland termination of pregnancy is lawful if performed in good faith only for the purpose of preserving the life of the woman. The ‘life’ of the woman in this context has been interpreted by the courts as including her physical and mental health;

ii. A termination of pregnancy can therefore be lawful only where the continuance of the pregnancy threatens the life of the woman, or would adversely affect her physical or mental health in a manner that is ‘real and serious’ and ‘permanent or long term’.

iii. In any other circumstance it would be unlawful to perform such a procedure.” [2.8].

2.9 Fetal abnormality, including an abnormality which inevitably means that the fetus will not survive, is not in itself grounds for a termination of pregnancy in Northern Ireland. However, the impact of fetal abnormality on a woman’s physical or mental health may be a factor to be taken into account when a health professional makes an assessment of a woman’s clinical condition and recommends options for her ongoing care” [their spelling of ‘foetus’].

The guidance then goes on to discuss the meaning of the term ‘capable of being born alive’:

“2.10 If a medical practitioner concludes that a pregnant woman, carrying a fetus that is capable of being born alive, needs treatment that will result in harm to her fetus, then the practitioner should attempt to protect both the woman and the fetus where possible. However, the primary consideration must always be the prevention of real and serious harm to the long-term physical or mental health of the pregnant woman.

2.11 In relation to fetal viability, section 25 (2) of the Criminal Justice Act (NI) 1945 states that a fetus with a gestational age of 28 weeks is presumed to be capable of being born alive. Medical advances since this Act mean that a fetus can often survive earlier in gestation.

2.12 Viability in Great Britain is currently set in legislation at 24 weeks. While the relevant legislation has no force in Northern Ireland, the fact that a fetus may be viable at 24 weeks has implications for neonatal care and medical practice. Medical practitioners must consider whether a fetus is able to survive outside the womb when deciding upon the treatment that is most appropriate for a pregnant woman. This may include recommendation for a termination of pregnancy.

2.13 In a situation where treatment is necessary to prevent real and serious harm to the woman’s long-term physical or mental health, and a health and social care professional has assessed that the fetus could survive outside the womb, then steps must be taken to try to preserve its life.

2.14 Health and social care professionals must be clear that the law in Northern Ireland requires the life of the pregnant woman to be the priority. There is no upper gestational age limit as to when a pregnancy may be terminated if a medical practitioner decides in good faith that continuance of the pregnancy threatens the life of the woman, or would adversely affect her physical or mental health in a manner that is ‘real and serious’ and ‘permanent or long term’.”

Further, the guidance points out that:

• where practicable, two doctors with the appropriate competence, knowledge and experience should undertake the clinical assessment [3.3], though the law in Northern Ireland does not compel a doctor to seek the clinical views of a second doctor [3.5] and in an emergency it is understood that it may not be possible to obtain one [3.6];

• all clinical decisions should be properly recorded [3.7];

• though there is no statutory right to conscientious objection to termination of pregnancy on moral and/or religious grounds, any such objection should, so far as practicable, be recognised and respected [4.2];

• a clinician may not refuse to participate in a termination of pregnancy on grounds of conscience where the life of the woman is in danger and treatment is needed without delay to save her life unless another competent, appropriately qualified and experienced professional is immediately available and willing to act [4.3]; and

• because clinicians have a duty of care to their patients, failure to act may lead to prosecution – and on a charge of manslaughter by gross negligence a defence of conscientious objection would be unlikely to succeed [4.5 & 4.6].

As to advice and support:

Nor was her consultant’s remark about prison mere posturing: earlier this year, a 21-year-old woman from County Down appeared in court in Belfast charged under the Offences Against the Person Act 1861 with taking abortion pills to induce a termination, for which the maximum sentence is life imprisonment.

Declaration of incompatibility notwithstanding, whether there is any political will to change the law remains to be seen.