tag:blogger.com,1999:blog-28278152.post5613573430364812499..comments2023-09-24T08:22:14.199+01:00Comments on Joseph Shaw's Philosophy Blog: Referrals for AbortionsUnknownnoreply@blogger.comBlogger10125tag:blogger.com,1999:blog-28278152.post-11987425413675487872009-04-25T15:31:00.000+01:002009-04-25T15:31:00.000+01:00I say above that Dr Sapsford was wrong about the l...I say above that Dr Sapsford was wrong about the law. His mistake was, however, just regarding one word: he talked about the `NHS <I>Act</I>' when he meant the `NHS <I>Regulations</I> (2004)'. It certainly seems as though he is correct about the law here, notwithstanding the comments from the BMA and the GMC quoted above.<br /><br />Most GPs provide contraceptive services and Schedule 2 of the National Health Service (General Medical Services Contracts) Regulations 2004 (<A>http://www.opsi.gov.uk/si/si2004/20040291.htm</A>) has this to say at para 3:<br />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).<br />(2) The services referred to in sub-paragraph (1) are -<br />[. . .]<br />(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'.<br />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.Daniel Hillhttps://www.blogger.com/profile/07823511443088751096noreply@blogger.comtag:blogger.com,1999:blog-28278152.post-76597863494446960302007-06-01T16:43:00.000+01:002007-06-01T16:43:00.000+01:00Yes, Matt, it is true that the fallopian tube can ...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-90861792584616208242007-05-30T12:04:00.000+01:002007-05-30T12:04:00.000+01:00No essay from me, but I will say that it is morall...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.DrMatthewDoylehttps://www.blogger.com/profile/06631492275281667768noreply@blogger.comtag:blogger.com,1999:blog-28278152.post-17225636684379924532007-05-17T15:48:00.000+01:002007-05-17T15:48:00.000+01:00Jamie,Thanks very much on this. I fear that you ha...Jamie,<BR/><BR/>Thanks very much on this. I fear that you have too optimistic a reading of the<BR/>Janaway case.<BR/><BR/>With regard to your third point, you're right, of course, that there is a<BR/>difference between receiving dictation as a medical secretary and the doctor<BR/>dictating the letter. But the question is: is this difference underlying the<BR/>judgment? Alas, the ground on which Lord Keith held that Mrs Janaway was not<BR/>participating in the abortion was that she was not actually 'taking part in the<BR/>actual procedures undertaken at the hospital or other approved place with a<BR/>view to the termination of a pregnancy'. Counsel for Mrs Janaway had argued<BR/>that the CO clause in the Abortion Act covered 'taking part in any arrangements<BR/>preliminary to and intended to bring about medical or surgical measures aimed<BR/>at terminating a pregnancy', but the HoL expressly rejected this<BR/>interpretation. So it does seem to me clear that referring a patient to another<BR/>GP is not, in the eyes of the law, covered by the CO clause.<BR/><BR/>You're right (this now covers both your second and your third points) that Lord<BR/>Keith expressly reserves judgment on whether or not there is a legal duty to<BR/>sign the green form. He does, however, seem clear that the CO clause does not<BR/>provide exemption from it: 'The regulations do not appear to contemplate that<BR/>the signing of the certificate would form part of treatment for the termination<BR/>of pregnancy'. I think that the question of whether or not there is a legal<BR/>duty to sign the form is a separate one from whether or not the CO clause<BR/>applies, though I'm not quite sure of what the general legal duties are on GPs.<BR/>While you're technically correct that Lord Keith doesn't expressly state that<BR/>referral to another GP is not covered by the CO clause, his verdict that it<BR/>doesn't follows from the reasons he gave, and, since the reasons, as well as<BR/>the verdict on Janaway, were accepted by his peers, it follows that they are<BR/>binding as precedent for other courts.<BR/><BR/>At any rate, I think you'll agree that it's pretty clear how Lord Keith would<BR/>himself have decided had a case come his way of a doctor refusing to refer to<BR/>another GP. Incidentally, Lord Keith was also one of the judges in Bland.<BR/><BR/>I think that the most optimistic sign might be an appeal to the European Court<BR/>claiming that the GMC infringes one's right to practise one's religion.<BR/><BR/>Thanks for the discussion,<BR/><BR/>DanielAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-63098776205538488412007-05-17T15:46:00.000+01:002007-05-17T15:46:00.000+01:00Dear Daniel,I think you are seeking clarity where ...Dear Daniel,<BR/><BR/>I think you are seeking clarity where there is none. I am afraid it is not<BR/>only not certain but does not even "appear certain" what the law is here.<BR/><BR/>First point, the law is often illogical and absurd, alas, and still less<BR/>surely is it always moral.<BR/><BR/>Secondly, when a judge (particularly in the higher appellate courts)<BR/>declines to express an opinion on a point it is a signal that, not being<BR/>called upon to decide that particular point, he declines to do so until the<BR/>matter is expressly before him. This is because he does not wish to queer<BR/>the pitch for a later case by expressing any kind of provisional (and,<BR/>strictly speaking, irrelevant) opinion now, when the facts and evidence upon<BR/>which properly to consider the matter have not been made available.<BR/><BR/>Thirdly, there is a difference between receiving dictation as a medical<BR/>secretary and the doctor dictating the letter because the doctor is entitled<BR/>to, and must, use his professional clinical judgment before he dictates. He<BR/>might, for instance, decide that this is an ectopic pregnancy and that an<BR/>extraction would be both legal and moral and he could, in conscience, sign<BR/>the form himself. These issues are yet to be decided and Lord Keith has<BR/>expressly reserved the position by declining to give an opinion on<BR/>conscientious objection to either referral or signing the form. You are, of<BR/>course, right that they are very different in degree but nonetheless Lord<BR/>Keith has declined to decide upon either, the latter expressly so. Insofar<BR/>as he does comment, he simply says that it is not clear that there are<BR/>circumstances under which a doctor might be under any legal duty to sign the<BR/>form. That means that the issue of CO would not even arise if no duty<BR/>arises. That seems hopeful. However, matters have moved on since Jannaway<BR/>and, I think, have hardened with the new generation of judges who are likely<BR/>to be even more hostile to the pro-life cause. In which case, your<BR/>prognostication is probably right. But one cannot, at this stage, be certain<BR/>or even apparently certain.<BR/><BR/>Fourthly, it has become a recent characteristic for the BMA and even the GMC<BR/>to run ahead of the law. This, of itself, tends to shape the future<BR/>direction of the law because the courts tend to take notice of what the<BR/>doctors think is proper and ethical practice, as expressed through their<BR/>allegedly representative bodies, the GMC, the Royal Colleges and the BMA.<BR/>The courts then "canonize" such views in law. It is an unsatisfactory way to<BR/>govern clinical practice and is effectively a method of changing the law<BR/>without consulting parliament, the people or even the majority of doctors<BR/>and nurses. The BMA and GMC know this and are greatly enjoying their<BR/>new-found power and are flexing their muscles. Telling them not to do so is<BR/>likely to be met with a rebuff unless there is widespread protest.<BR/><BR/>So, whilst it does not at present appear illegal to refuse to refer, the law<BR/>is uncertain and you are probably right that eventually it is likely to go<BR/>against us. Unfortunately, the BMA and to a lesser extent the GMC will have<BR/>been in the vanguard of causing it to be so.<BR/><BR/>The most hopeful sign on the horizon is that junior doctors are refusing to<BR/>do abortions and a surprisingly large number want the law tightened up.<BR/><BR/>Jamie.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-2019195446019070912007-05-17T15:24:00.000+01:002007-05-17T15:24:00.000+01:00Dear James and Joe,James, you are quite right that...Dear James and Joe,<BR/><BR/>James, you are quite right that the question concerns what is meant by<BR/>"participate in any treatment authorised by this Act".<BR/><BR/>I quote from the leading judgment, of Lord Keith of Kinkel, in the case: 'the<BR/>word "participate" [...] in its ordinary and natural meaning referred to<BR/>actually taking part in treatment administered in a hospital or other approved<BR/>place [...] for the purpose of terminating a pregnancy'. This was the ground on<BR/>which Lord Keith held that Mrs Janaway was not participating in the abortion by<BR/>typing 'a letter which had to do with referring a pregnant patient for an<BR/>appointment with a consultant with a view to the latter forming an opinion as<BR/>to whether the pregnancy should be terminated'.<BR/><BR/>I note that if the courts hold that this is not participation then surely they<BR/>will hold that referring the patient to *another GP* is not participation.<BR/>Further, it seems extremely likely to me that if they held that typing the<BR/>letter was not participation that they would hold that dictating it would not<BR/>be participation either.<BR/><BR/>In my view the judgment is absurd: it has the consequence that a secretary that<BR/>types a letter for a woman that is 24 weeks pregnant is *not* participating in<BR/>a (legal) abortion, whereas a secretary that types a letter for a woman that is<BR/>25 weeks pregnant *is* participating in an (illegal) abortion. The reason why<BR/>this consequence is allowed to stand is that the latter case is a case under<BR/>the criminal law, under which 'participate' has a broader meaning. It was the<BR/>main (and surely correct) argument of counsel for Janaway that 'participate' in<BR/>the Abortion Act had to have the same meaning as 'participate' in the criminal<BR/>law. Sadly, their lordships unanimously disagreed. (In fairness to their<BR/>lordships, they may be right about the intentions of Parliament in this matter;<BR/>whether that is decisive is a difficult question in philosophy of law.)<BR/><BR/>Lord Keith also had some slightly obiter remarks about 'the green form' (now<BR/>'blue form A'): 'The regulations do not appear to contemplate that the signing<BR/>of the certificate would form part of treatment for the termination of<BR/>pregnancy [...]. It does not appear whether or not there are any circumstances<BR/>under which a doctor might be under any legal duty to sign a green form, so as<BR/>to place in difficulties one who had a conscientious objection to doing so.<BR/>[...] I do not think it appropriate to express any opinion on the matter.' So:<BR/>it *may* be that doctors don't have to sign this form referring patients to the<BR/>hospital for an abortion. This, however, is scant consolation: signing the form<BR/>is way down the list of wrongs for the GP. What we have been discussing is<BR/>whether it is morally acceptable for a GP to refer a pregnant woman to *another<BR/>GP*, who will then refer her to a consultant for an abortion. It would appear<BR/>certain that the clause of conscientious objection in the Abortion Act does not<BR/>in the eyes of the law cover this. And the fact that there is a possibility<BR/>that a doctor might be under a legal duty to sign the green form strongly<BR/>suggests that doctors may well be under a legal duty to perform the lesser evil<BR/>of referring a patient to another GP if they have a conscientious objection.<BR/>And that seems morally wrong.<BR/><BR/>Finally, Lord Keith notes that the clause of conscientious objection in the<BR/>Abortion Act does not cover treatment of a woman whose life or physical or<BR/>mental health is in grave danger.<BR/><BR/>In conclusion, to be honest, I think that the GMC and the BMA have got the law<BR/>on their side here. I have written to both: the BMA have replied saying that<BR/>they cannot really comment on legal matters, but expressing the view that a<BR/>doctor is obliged to make sure that his or her patient can see a doctor without<BR/>a conscientious objection; I have yet to hear from the GMC.<BR/><BR/>Hope that clarifies matters,<BR/><BR/>DanielAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-42586022734704709632007-05-17T14:49:00.000+01:002007-05-17T14:49:00.000+01:00Yep, Jannaway did indeed say that. No CO for medic...Yep, Jannaway did indeed say that. No CO for medical secretaries only those<BR/>asked to perform the procedure.<BR/><BR/>The conscience clause says this:<BR/><BR/>"§ 4 Conscientious objection to participation in treatment<BR/><BR/>(1) Subject to subsection (2) of this section, no person shall be under any<BR/>duty, whether by contract or by any statutory or other legal requirement, to<BR/>participate in any treatment authorised by this Act to which he has a<BR/>conscientious objection:<BR/><BR/>Provided that in any legal proceedings the burden of proof of conscientious<BR/>objection shall rest on the person claiming to rely on it.<BR/><BR/>(2) Nothing in subsection (1) of this section shall affect any duty to<BR/>participate in treatment which is necessary to save the life or to prevent<BR/>grave permanent injury to the physical or mental health of a pregnant woman.<BR/><BR/>(3) . . . "<BR/><BR/>The question, then, is what is meant by "participate in any treatment<BR/>authorised by this Act". Does this include "participation" to the extent of<BR/>making a referral. The BMA and GMC think so but my recollection of Jannaway<BR/>is that the matter is not really dealt with in the case. If that is correct<BR/>then the matter remains open and the GMC and BMA are running ahead of<BR/>themselves. Worryingly, that is nothing new. They both did the same on the<BR/>issue of ANH for the mentally incapacitated which led to the case of Leslie<BR/>Burke v GMC in which Munby J decided for Burke and the Court of Appeal for<BR/>the GMC. The GMC should avoid courting controversy but unfortunately it has<BR/>decided to take a more radical stance.<BR/><BR/>However, given the current climate, it is not improbable that if the matter<BR/>came before the courts , a court might decide that referring is not<BR/>"participating in the treatment" and thus falls outside the scope of the CO<BR/>clause.<BR/><BR/>However, a doctor being a professional who makes clinical judgments is in a<BR/>stronger position than a medical secretary who does not. One doctor may say<BR/>that an abortion is not "indicated" and another may say that it is. The<BR/>court has less scope to challenge a decision not to refer, on that basis.<BR/>Conversely, if a medical secretary is told "type that letter" and refuses<BR/>then she is in a more difficult position. It is harder to say to a clinician<BR/>that an abortion must be done (or a referral made).<BR/><BR/>That's my initial view.<BR/><BR/>Hope that helps.<BR/><BR/>Jamie.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-46499965143811721482007-05-16T14:24:00.000+01:002007-05-16T14:24:00.000+01:00Daniel Hill in reply to an email from Helen Watt.I...Daniel Hill in reply to an email from Helen Watt.<BR/><BR/>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.<BR/>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<BR/>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<BR/>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 <BR/>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<BR/>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.<BR/><BR/>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<BR/>that would actually sell him the weapons.<BR/><BR/><BR/>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.<BR/><BR/>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<BR/>comply with the doctor's professional obligations is likely to depend on the particular circumstances of the situation and the patient’ and that seems<BR/>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’.<BR/>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<BR/>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?’.<BR/><BR/>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<BR/>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.)<BR/><BR/><BR/>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.<BR/>It doesn’t say much, however, and<BR/>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.<BR/><BR/>The judgment is briefly discussed at<BR/>http://www.catholicdoctors.org.uk/CMQ/May_1992/Contents.htm#TO%20REFER%20OR%20NOT%20TO%20REFER, which contains this interesting couple of sentences:<BR/><BR/>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<BR/>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<BR/>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.<BR/><BR/>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<BR/>to see the essay ‘Conscientious Objection for Specific Professional Categories (Pharmacists, Judges, Administrators, Consultants, etc.)’ by Prof. dr hab Alicja Grzeúkowiak of The John Paul II Catholic University of Lublin, Poland,<BR/>at http://www.academiavita.org/italiano/AssembleaGenerale/2007/rel2007/eng/grzeskoviak-eng2007.pdf. This also discusses the Janaway case. (How could Janaway<BR/>afford to fight the case to the House of Lords without the RC Church or some similar body backing her?)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-28278152.post-18693664653933252672007-05-15T20:12:00.000+01:002007-05-15T20:12:00.000+01:00Very interesting indeed. I know that for practica...Very interesting indeed. I know that for practical purposes 'obs and gyny' have been off-limits to Catholics for a long time.<BR/><BR/>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.<BR/><BR/>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 <A HREF="http://catholicactionuk.blogspot.com/2007/05/hospital-of-st-john-st-elizabeth.html" REL="nofollow">here</A>.Joseph Shawhttps://www.blogger.com/profile/06587987442560784792noreply@blogger.comtag:blogger.com,1999:blog-28278152.post-83927188394065834312007-05-15T11:08:00.000+01:002007-05-15T11:08:00.000+01:00I have now read the comments of the House of Lords...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.Daniel Hillhttps://www.blogger.com/profile/07823511443088751096noreply@blogger.com