Monday, May 14, 2007

Referrals for Abortions

Dr Ian Sapsford, a Torquay GP, has written letters to several Christian periodicals, asserting that 'The National Health Services Act imposes on Christian doctors an obligation to sin against God while at work'. He explains:
We breach this law if we fail to provide a pregnant woman with an abortifacient pill, or refuse to refer her for an abortion (or to another doctor whom [sic] we know will do so).
The National Health Service Act 1977 Section 29 says:
(1) It is every Area Health Authority's duty, in accordance with regulations, to arrange as respects their area with medical practitioners to provide personal medical services for all persons in the area who wish to take advantage of the arrangements.
(2) Regulations may provide for the definition of the personal medical services to be provided and for securing that the arrangements will be such that all persons availing themselves of those services will receive adequate personal care and attendance, and the regulations shall include provision
(a) for the preparation and publication of lists of medical practitioners who undertake to provide general medical services;
(b) for conferring a right on any person to choose, in accordance with the prescribed procedure, the medical practitioner by whom he is to be attended, subject to the consent of the practitioner so chosen

There does not seem to be anything contrary to this in the National Health Service Reform and Health Care Professions Act 2002 or the National Health Service Act 2006. It seems that Dr Sapsford is wrong in thinking that this is the law.

In fact, there is an explicit exception for those with conscientious objections in the Abortion Act 1967

§ 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.

Nevertheless, the GMC adds (and this may be what is worrying Dr Sapsford):

  1. If carrying out a particular procedure or giving advice about it conflicts with your religious or moral beliefs, and this conflict might affect the treatment or advice you provide, you must explain this to the patient and tell them they have the right to see another doctor. You must be satisfied that the patient has sufficient information to enable them to exercise that right. If it is not practical for a patient to arrange to see another doctor, you must ensure that arrangements are made for another suitably qualified colleague to take over your role.

This is what the BMA says:

Doctors with a conscientious objection to abortion should make their views known to the patient and enable the patient to see another doctor without delay if that is the patient's wish.

A spokesman for the Department of Health quoted in The Daily Mail for 3rd May 2007 said: "If GPs feel their beliefs might affect the treatment, this must be explained to the patient who should be told of their right to see another doctor."

What does 'ensure that arrangements are made' mean? And what does 'enable' mean? Is it permissible to ensure that arrangements are made for a patient seeking an abortion to be seen by a doctor that will grant her what she seeks? If it is immoral to sell guns to drunks would it be permissible to ensure that arrangements are made for the drunks to see a gunsmith without scruples? Would it be permissible merely to inform the drunk of the whereabouts of a gunsmith without scruples? Would it be permissible merely to inform the drunk that he could go elsewhere? I guess as follows: no, no, no, yes.

I was interested to read about the case of Janaway v Salford Health Authority in 1988 when a doctor's secretary (Janaway, a Roman Catholic) was sacked for refusing to type a letter of referral. The courts held that ‘the task asked of Janaway did not constitute participation in the actual abortion procedure’. (I can see that the case is referred to in a 1988 edition of Law and Justice: The Christian Law Review by one David Poole, but that is all I know about it.) Is typing a letter of referral permissible? I'm inclined to think not; one is co-operating in evil, albeit without intending that the evil be done. Those Germans that typed letters about the movement of Jews in WWII may not have committed a legal offence, but surely they are morally guilty of aiding and abetting a terrible crime?

One final point: I think that it is impermissible to perform an abortion even to save the mother's life. Is it then morally permissible to be a doctor? I regretfully think not: in becoming a doctor (at least of a certain sort: obs and gyny, and perhaps even a GP) one would be accepting a duty that one couldn't morally discharge. Of course, it is (thankfully) very rare that such a duty would arise, but surely it is immoral to accept a duty knowing one could not discharge it?

10 comments:

Daniel Hill said...

I have now read the comments of the House of Lords on the Janaway case, and they hold that the Abortion Act 1967 affords an opt-out only as regards the actual abortion treatment itself in the hospital theatre and not as regards preliminaries, such as referrals, typing letters, and even perhaps signing of forms. Whether or not their lordships are right in their interpretation of the intentions of Parliament, it is regrettable that legal protection is not afforded for those that have a conscientious objection to any participation in preliminaries to the actual operation. It would seem to me that if the actual operation is wrong, so is partaking in preliminaries for it, even without the intention that they be preliminaries for it.

Joseph Shaw said...

Very interesting indeed. I know that for practical purposes 'obs and gyny' have been off-limits to Catholics for a long time.

The precise interpretation of illicit cooperation in abortion is something there must be stuff about, and I'll try and look it up. One way of taking the GMC and BMA guidelines would be as this: you mustn't allow the patient to think that, if you refuse to do something on grounds of conscience, this is refusal on clinical grounds. Normally, if your GP won't send you on to a hospital or a specialist for some procedure, that's the end of the matter: this is the GP's role. But in cases of conscience, it is different, and they want you to flag that up.

That's not to say that the situation is unproblematic. It is the business of referral to abortionists which has been key the huge row about the Catholic hospital of St John and St Elizabeth in London: see here.

Daniel Hill said...

Daniel Hill in reply to an email from Helen Watt.

I have had a reply to my question from the BMA: they have been very helpful but it seems clear that, as you suggested, legality here falls outside their sphere of sovereignty. I’ve had no reply yet from the GMC or the Department of Health, but I fear that the clause in the GMC’s guidelines (paragraph 8 in your e-mail below) ‘you must ensure that arrangements are made for another suitably qualified colleague to take over your role’ puts an end to the discussion.
While it’s true that this applies only if ‘it is not practical for a patient to arrange to see another doctor’; this condition must arise from time to time (else why should it be included?), and I don’t think it would be morally acceptable to sign up to the GMC’s regulations knowing that one couldn’t obey
them in that circumstance (unless one knew somehow that it wouldn’t arise for one, e.g. if one had a specialist practice). You suggested that the regulations could be fulfilled by referring the patient to another pro-life doctor. It is
not clear to me, however, that this is morally unproblematic: one is merely transferring the burden of decision to one’s colleague, who is then in exactly the same situation (except that I don’t think he could refer back). Somewhere
along the line the patient will get an abortion (or go over time and then sue) and then one’s referral will be a part of the causal chain leading to the abortion, material co-operation. To use your own example, I don’t think it’d be
morally OK to pass the buck in that way if a patient came seeking euthanasia, though my intuitions are clouded here by the (current) illegality of the act.

I don’t think it’d be morally acceptable for a gunsmith to refuse to sell a drunk a gun but instead knowingly to direct him to another gunsmith whose slightly looser morals would allow him in turn to point the drunk to a third gunsmith
that would actually sell him the weapons.


I’ve come round to your view, therefore, that saying ‘Dr X does abortions’ is, in the circumstances, impermissible (just as would be saying ‘Joe Bloggs sells guns to drunks’). But I’d be surprised if merely saying ‘You have the right to a second opinion’ would, in general, suffice to meet the GMC’s guidelines.

While I await the GMC’s reply on this point, the BMA said to me ‘Whether simply informing the patient of their right to see another doctor is sufficient to
comply with the doctor's professional obligations is likely to depend on the particular circumstances of the situation and the patient’ and that seems
correct. Further, the GMC says in the guidelines ‘You must be satisfied that the patient has sufficient information to enable them to exercise that right’.
Is giving them the information permissible if one knows that among the information one gives (a list of other doctors) will be information that will enable the patient to get what she seeks? (And can one give a blanket reference
of the type ‘To whom it may concern, please look after this patient’?) If not, one would therefore have, to satisfy the guidelines, to ask the patient ‘do you have sufficient information to exercise your right to see another doctor?’.

Maybe even asking this question is, in the circumstances, impermissible, but what if the patient says ‘no’? In that case, one has to give them the information after all. And I do think the spirit, if not the letter, of the regulations is that the patient must have enough information to see a doctor
with fewer scruples. And I think the GMC would have a reasonable point that one shouldn’t sign up to the regulations if one is unwilling to follow their spirit. (I’m also certain that a tribunal at the GMC, and a court, if the patient sued, would rule against the conscientious doctor.)


I have now read the judgement of the House of Lords on the Janaway case, which my wife retrieved from www.lawtel.com for me.
It doesn’t say much, however, and
what it does say is that the ‘conscience clause’ of the Abortion Act 1967 applies only to the actual abortive operation itself, not the preliminaries.

The judgment is briefly discussed at
http://www.catholicdoctors.org.uk/CMQ/May_1992/Contents.htm#TO%20REFER%20OR%20NOT%20TO%20REFER, which contains this interesting couple of sentences:

The opinion of an eminent barrister with long experience in thico-legal matters is that the doctor may, and professionally should, inform the woman that she has a right to approach another doctor, without specifying anyone, to see if
that doctor will assist her in her desire. ne view of a moral theologian, provided by the Bishop's [sic] Joint Committee on Bio-Ethical Issues, is that
doctors with conscientious beliefs should not have scruples about referring patients to another doctor as it is the patient who in fact makes the decision.

I take it that the Bishops’ Joint Committee didn’t accept the verdict of this ‘moral theologian’. Yet I also don’t know if the ‘eminent barrister’ has really specified enough to keep the GMC happy here either. You may also be interested
to see the essay ‘Conscientious Objection for Specific Professional Categories (Pharmacists, Judges, Administrators, Consultants, etc.)’ by Prof. dr hab Alicja Grze├║kowiak of The John Paul II Catholic University of Lublin, Poland,
at http://www.academiavita.org/italiano/AssembleaGenerale/2007/rel2007/eng/grzeskoviak-eng2007.pdf. This also discusses the Janaway case. (How could Janaway
afford to fight the case to the House of Lords without the RC Church or some similar body backing her?)

James Bogle said...

Yep, Jannaway did indeed say that. No CO for medical secretaries only those
asked to perform the procedure.

The conscience clause says this:

"§ 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) . . . "

The question, then, is what is meant by "participate in any treatment
authorised by this Act". Does this include "participation" to the extent of
making a referral. The BMA and GMC think so but my recollection of Jannaway
is that the matter is not really dealt with in the case. If that is correct
then the matter remains open and the GMC and BMA are running ahead of
themselves. Worryingly, that is nothing new. They both did the same on the
issue of ANH for the mentally incapacitated which led to the case of Leslie
Burke v GMC in which Munby J decided for Burke and the Court of Appeal for
the GMC. The GMC should avoid courting controversy but unfortunately it has
decided to take a more radical stance.

However, given the current climate, it is not improbable that if the matter
came before the courts , a court might decide that referring is not
"participating in the treatment" and thus falls outside the scope of the CO
clause.

However, a doctor being a professional who makes clinical judgments is in a
stronger position than a medical secretary who does not. One doctor may say
that an abortion is not "indicated" and another may say that it is. The
court has less scope to challenge a decision not to refer, on that basis.
Conversely, if a medical secretary is told "type that letter" and refuses
then she is in a more difficult position. It is harder to say to a clinician
that an abortion must be done (or a referral made).

That's my initial view.

Hope that helps.

Jamie.

Daniel Hill said...

Dear James and Joe,

James, you are quite right that the question concerns what is meant by
"participate in any treatment authorised by this Act".

I quote from the leading judgment, of Lord Keith of Kinkel, in the case: 'the
word "participate" [...] in its ordinary and natural meaning referred to
actually taking part in treatment administered in a hospital or other approved
place [...] for the purpose of terminating a pregnancy'. This was the ground on
which Lord Keith held that Mrs Janaway was not participating in the abortion by
typing 'a letter which had to do with referring a pregnant patient for an
appointment with a consultant with a view to the latter forming an opinion as
to whether the pregnancy should be terminated'.

I note that if the courts hold that this is not participation then surely they
will hold that referring the patient to *another GP* is not participation.
Further, it seems extremely likely to me that if they held that typing the
letter was not participation that they would hold that dictating it would not
be participation either.

In my view the judgment is absurd: it has the consequence that a secretary that
types a letter for a woman that is 24 weeks pregnant is *not* participating in
a (legal) abortion, whereas a secretary that types a letter for a woman that is
25 weeks pregnant *is* participating in an (illegal) abortion. The reason why
this consequence is allowed to stand is that the latter case is a case under
the criminal law, under which 'participate' has a broader meaning. It was the
main (and surely correct) argument of counsel for Janaway that 'participate' in
the Abortion Act had to have the same meaning as 'participate' in the criminal
law. Sadly, their lordships unanimously disagreed. (In fairness to their
lordships, they may be right about the intentions of Parliament in this matter;
whether that is decisive is a difficult question in philosophy of law.)

Lord Keith also had some slightly obiter remarks about 'the green form' (now
'blue form A'): 'The regulations do not appear to contemplate that the signing
of the certificate would form part of treatment for the termination of
pregnancy [...]. It does not appear whether or not there are any circumstances
under which a doctor might be under any legal duty to sign a green form, so as
to place in difficulties one who had a conscientious objection to doing so.
[...] I do not think it appropriate to express any opinion on the matter.' So:
it *may* be that doctors don't have to sign this form referring patients to the
hospital for an abortion. This, however, is scant consolation: signing the form
is way down the list of wrongs for the GP. What we have been discussing is
whether it is morally acceptable for a GP to refer a pregnant woman to *another
GP*, who will then refer her to a consultant for an abortion. It would appear
certain that the clause of conscientious objection in the Abortion Act does not
in the eyes of the law cover this. And the fact that there is a possibility
that a doctor might be under a legal duty to sign the green form strongly
suggests that doctors may well be under a legal duty to perform the lesser evil
of referring a patient to another GP if they have a conscientious objection.
And that seems morally wrong.

Finally, Lord Keith notes that the clause of conscientious objection in the
Abortion Act does not cover treatment of a woman whose life or physical or
mental health is in grave danger.

In conclusion, to be honest, I think that the GMC and the BMA have got the law
on their side here. I have written to both: the BMA have replied saying that
they cannot really comment on legal matters, but expressing the view that a
doctor is obliged to make sure that his or her patient can see a doctor without
a conscientious objection; I have yet to hear from the GMC.

Hope that clarifies matters,

Daniel

James Bogle said...

Dear Daniel,

I think you are seeking clarity where there is none. I am afraid it is not
only not certain but does not even "appear certain" what the law is here.

First point, the law is often illogical and absurd, alas, and still less
surely is it always moral.

Secondly, when a judge (particularly in the higher appellate courts)
declines to express an opinion on a point it is a signal that, not being
called upon to decide that particular point, he declines to do so until the
matter is expressly before him. This is because he does not wish to queer
the pitch for a later case by expressing any kind of provisional (and,
strictly speaking, irrelevant) opinion now, when the facts and evidence upon
which properly to consider the matter have not been made available.

Thirdly, there is a difference between receiving dictation as a medical
secretary and the doctor dictating the letter because the doctor is entitled
to, and must, use his professional clinical judgment before he dictates. He
might, for instance, decide that this is an ectopic pregnancy and that an
extraction would be both legal and moral and he could, in conscience, sign
the form himself. These issues are yet to be decided and Lord Keith has
expressly reserved the position by declining to give an opinion on
conscientious objection to either referral or signing the form. You are, of
course, right that they are very different in degree but nonetheless Lord
Keith has declined to decide upon either, the latter expressly so. Insofar
as he does comment, he simply says that it is not clear that there are
circumstances under which a doctor might be under any legal duty to sign the
form. That means that the issue of CO would not even arise if no duty
arises. That seems hopeful. However, matters have moved on since Jannaway
and, I think, have hardened with the new generation of judges who are likely
to be even more hostile to the pro-life cause. In which case, your
prognostication is probably right. But one cannot, at this stage, be certain
or even apparently certain.

Fourthly, it has become a recent characteristic for the BMA and even the GMC
to run ahead of the law. This, of itself, tends to shape the future
direction of the law because the courts tend to take notice of what the
doctors think is proper and ethical practice, as expressed through their
allegedly representative bodies, the GMC, the Royal Colleges and the BMA.
The courts then "canonize" such views in law. It is an unsatisfactory way to
govern clinical practice and is effectively a method of changing the law
without consulting parliament, the people or even the majority of doctors
and nurses. The BMA and GMC know this and are greatly enjoying their
new-found power and are flexing their muscles. Telling them not to do so is
likely to be met with a rebuff unless there is widespread protest.

So, whilst it does not at present appear illegal to refuse to refer, the law
is uncertain and you are probably right that eventually it is likely to go
against us. Unfortunately, the BMA and to a lesser extent the GMC will have
been in the vanguard of causing it to be so.

The most hopeful sign on the horizon is that junior doctors are refusing to
do abortions and a surprisingly large number want the law tightened up.

Jamie.

Daniel Hill said...

Jamie,

Thanks very much on this. I fear that you have too optimistic a reading of the
Janaway case.

With regard to your third point, you're right, of course, that there is a
difference between receiving dictation as a medical secretary and the doctor
dictating the letter. But the question is: is this difference underlying the
judgment? Alas, the ground on which Lord Keith held that Mrs Janaway was not
participating in the abortion was that she was not actually 'taking part in the
actual procedures undertaken at the hospital or other approved place with a
view to the termination of a pregnancy'. Counsel for Mrs Janaway had argued
that the CO clause in the Abortion Act covered 'taking part in any arrangements
preliminary to and intended to bring about medical or surgical measures aimed
at terminating a pregnancy', but the HoL expressly rejected this
interpretation. So it does seem to me clear that referring a patient to another
GP is not, in the eyes of the law, covered by the CO clause.

You're right (this now covers both your second and your third points) that Lord
Keith expressly reserves judgment on whether or not there is a legal duty to
sign the green form. He does, however, seem clear that the CO clause does not
provide exemption from it: 'The regulations do not appear to contemplate that
the signing of the certificate would form part of treatment for the termination
of pregnancy'. I think that the question of whether or not there is a legal
duty to sign the form is a separate one from whether or not the CO clause
applies, though I'm not quite sure of what the general legal duties are on GPs.
While you're technically correct that Lord Keith doesn't expressly state that
referral to another GP is not covered by the CO clause, his verdict that it
doesn't follows from the reasons he gave, and, since the reasons, as well as
the verdict on Janaway, were accepted by his peers, it follows that they are
binding as precedent for other courts.

At any rate, I think you'll agree that it's pretty clear how Lord Keith would
himself have decided had a case come his way of a doctor refusing to refer to
another GP. Incidentally, Lord Keith was also one of the judges in Bland.

I think that the most optimistic sign might be an appeal to the European Court
claiming that the GMC infringes one's right to practise one's religion.

Thanks for the discussion,

Daniel

Matt Doyle said...

No essay from me, but I will say that it is morally permissible (and the church would agree) for an ectopic pregnancy abortion to be performed to save the mother's life. Removing a piece of fallopian tube which will not result in a viable pregnancy cannot be construed as abortion at all: the intention is to save the mother's life and not to destroy a foetus.

Joseph Shaw said...

Yes, Matt, it is true that the fallopian tube can be removed in such a case, with the non-viable foetus inside it. This is not the issue in the referals we're talking about.

Daniel Hill said...

I say above that Dr Sapsford was wrong about the law. His mistake was, however, just regarding one word: he talked about the `NHS Act' when he meant the `NHS Regulations (2004)'. It certainly seems as though he is correct about the law here, notwithstanding the comments from the BMA and the GMC quoted above.

Most GPs provide contraceptive services and Schedule 2 of the National Health Service (General Medical Services Contracts) Regulations 2004 (http://www.opsi.gov.uk/si/si2004/20040291.htm) has this to say at para 3:
3.(1) A contractor whose contract includes the provision of contraceptive services shall make available to all its patients who request such services the services described in sub-paragraph (2).
(2) The services referred to in sub-paragraph (1) are -
[. . .]
(e) the provision of advice and referral in cases of unplanned or unwanted pregnancy, including advice about the availability of free pregnancy testing in the practice area and, where appropriate, where the contractor has a conscientious objection to the termination of pregnancy, prompt referral to another provider of primary medical services who does not have such conscientious objections'.
It might be thought that the fact that a GP does not have to provide contraceptive services solves the problem here. But it does not, as s. 15(5)(b) of the Act says that it is a duty of the NHS contractor to provide for the 'referral of the patient for other services under the Act'. So it seems as though GPs are under a legal duty either to refer women onto an abortion provider or to refer them on to another GP that is prepared so to refer them.