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].
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:
- counselling must support women to come to their own decisions;
- support and advice must respect the personal views of the woman and enable her to make her own informed choices; and
- it is not unlawful to inform a woman of services available in other jurisdictions; but
- whether or not it is lawful to ‘promote or advocate’ the use of those services has not been tested in the courts .
Recent case law
As pointed out above, the guidance does not and cannot change the law. In Society for the Protection of Unborn Children, Re Judicial Review  NIQB 92 the earlier guidance had been found to be defective; and Girvan LJ made an order directing that it be withdrawn where it had been found to be misleading:
“Having regard to those aspects of the Guidance dealing with counselling and with conscientious objection which fail to give fully clear and accurate guidance the court concludes that it should order the withdrawal of the Guidance with a view to the Guidance being reconsidered by the Department taking account of the contents of this judgment” .
More fundamentally, in Northern Ireland Human Rights Commission, Re Judicial Review  NIQB 96, Horner J concluded that the current abortion law was in breach of Article 8 ECHR (private and family life) and incompatible with the Human Rights Act 1998 because it did not provide adequate protection for the human rights of pregnant women where there was a serious malformation of the foetus or a fatal foetal abnormality or where the pregnancy was the result of rape or incest. He subsequently made a declaration of incompatibility under the Human Rights Act 1998.
But, as we observed in an earlier post, a declaration of incompatibility does not strike down the offending law; and it remains for the Northern Ireland Executive and Assembly to make the necessary changes to make the law Convention-compliant. Moreover, the Attorney General, John Larkin QC, has expressed doubts about the compatibility of a criminal law exception for fatal foetal abnormality with the UN Convention on the Rights of Persons with Disabilities.
Some commentators have noted that the revised guidance emphasises the physical and mental health of the mother to a greater extent than did the version that it replaced; and instead of talking about the “mother” and “baby” it uses the less emotionally-loaded terms, “woman” and “fetus”. However, Sarah Ewart, who in 2013 was forced to leave Northern Ireland for a termination after being told her baby could not survive, insisted that the law still needed changing:
“New guidance may help some women, but it won’t help me and other women with fatal foetal diagnoses. When I met my consultant in 2013, already with a fatal foetal diagnosis and knowing that I needed a termination, she banged her files on the desk and said: ‘I’m not going to prison for anyone’. All the guidance in the world cannot change Northern Ireland’s nineteenth-century law and that is what is needed.”
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.