High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

The work of FPANI

The request for guidelines

"You asked about guidance for clinicians. No Departmental guidance in relation to abortion has been issued to clinicians here. Although Northern Ireland fellows and members of the Royal College of Obstetricians and Gynaecologists will have received copies of the guidelines to which you referred, these make clear that they have been developed in relation to abortion legislation in Great Britain and that the different issues surrounding induced abortion in countries with different legislation are not considered."

"We referred you to the RCOG Guideline No 7 on the The Care of Women Requesting Induced Abortion. We do not see any reason why the standards of good practice recommended by RCOG should not also be followed for abortions performed in Northern Ireland. We may not have been making ourselves clear, but we wanted to know if your Department expects or requires the NHS to adopt these standards."

On 15 August 2000 the Department replied referring to three cases decided in Northern Ireland (and about which I shall have something to say below). The Department suggested that the law on abortion in Northern Ireland was set out in these cases and that authoritative guidance on any outstanding legal issues could only be provided by a court of competent jurisdiction in Northern Ireland.

"We consider it essential that women in Northern Ireland facing unplanned pregnancy receive no less favourable treatment than their counterparts in Britain. We are concerned that this is not happening due to a lack of sufficient information in relation to what is "good practice" in this area, and what services are in fact available to women. We believe that there has been a continuing failure by the Department both before and after devolution, to provide proper standards and guidance in this area due to the absence of:

Clear guidance provided to healthcare professionals and the public at large about the circumstances under which terminations are legally available in Northern Ireland.

An effective system of monitoring to ensure that appropriate standards of health and social welfare services are provided in Northern Ireland for women in need of terminations.

In our experience, the absence of Departmental guidance results in serious inconsistencies in the provision of termination services across Northern Ireland, and between Northern Ireland and Britain. For example:

A woman refused a termination by a doctor perhaps unnecessarily concerned that his actions may be unlawful is forced to incur additional delay and expense travelling to England to receive the service. This additional delay brings with it an increased risk to the health of the mother. According to official statistics in 1999 only 32% of women from Northern Ireland accessing abortion in England had them performed under nine weeks compared to 42% of those resident in England and Wales.

Where GPs are willing to refer a patient for a termination many of them are unaware of where in Northern Ireland this service may be obtained

There may be many women in Northern Ireland who cannot afford the journey to England, and who therefore decide to continue with the pregnancy where it is in fact inappropriate, applying the test laid down by Lord Justice MacDermott in Re A for them to be required to do so.

It is impossible to quantify precisely the number of women who, discouraged by their GP from having an abortion in Northern Ireland as a result of an incorrect or overly restrictive interpretation of the law, and unable to afford the cost of travelling to England, seek to carry out the procedure without medical assistance. However a 1994 survey by Dr Colin Francome found that 11% of Northern Ireland GPs surveyed had treated patients suffering from the consequences of amateur abortions. Since the introduction of the 1967 Abortion Act there has (sic) been no known deaths in England, Scotland and Wales attributable to back-street abortions yet in Northern Ireland there have been five.

Many women are deterred from even seeking the advice of their GP because they have been misled by the widespread and common perception in Northern Ireland that abortion in Northern Ireland is in fact illegal.

The result of these inequalities is that abortion in Northern Ireland has become a class issue because it is available only to those who can afford it or who are sufficiently confident and articulate to be able to negotiate the enforcement of their strict legal rights in Northern Ireland.

Research among healthcare professionals has shown that the one situation in which terminations are readily available from clinicians in Northern Ireland is in the case of foetal abnormality. The provision of terminations in this situation is not covered by any court ruling to date, unless one takes MacNaghten J's reference in Bourne to "great mental anguish" to include the mental state of a woman carrying a foetus which is severely disabled. Despite this legal uncertainty, healthcare professionals in Northern Ireland grant terminations in cases of foetal abnormality as a matter of course. This is to be contrasted with a general reluctance in cases involving the health of the mother alone.

FPANI believes that the absence of a clear statutory regime along the lines of the 1967 Abortion Act governing the provision of terminations in Northern Ireland, and the history of intimidation of those who have sought to provide this service, make it essential for the Department to discharge its devolved functions in such a way as to promote consistent practice and increase legal certainty in this area.

We appreciate that you have inherited the current state of affairs, but we see devolution as an important and significant opportunity to clarify and rationalise the existing position. We should perhaps mention that from our discussions with some pro-life MLAs we believe that there is support even within that section of the community for greater legal clarity in this area.

…

We would be grateful to know if you are planning to change Departmental guidance or policy in this area in future, and, if so, on what basis, and within what timescale."

The Department replied to this letter on 26 February 2001. The reply was in virtually identical terms to that sent to Leigh Day & Co on 15 August 2000.

Obtaining an abortion in Northern Ireland

"Abortions are carried out for 'therapeutic reasons' which are generally accepted as being:

The woman has a serious medical or psychological problem which would jeopardise her life or health if the pregnancy were to continue.

The woman has severe learning difficulties.

Abnormality of the foetus is detected."

The report recorded that very few abortions were actually carried out in Northern Ireland – only 85 in the year 1996-7. A majority of the GPs questioned opposed the Abortion Act 1967 being extended to Northern Ireland. Some 54.5% described themselves as being broadly anti-abortion.

"The ambiguity of the law means that the availability and accessibility of abortion in Northern Ireland is determined by the moral views of individual doctors or by an unwillingness to test the law."

No evidence is contained in the fact sheet to support this statement. There is ample reference to conflicting views among medical practitioners and the public as to whether abortion should be more readily available but nothing other than assertion to sustain the charge that the law is ambiguous or, as it was described in another passage, "confused".

"Legislation for abortion law lies in the Offences against the Person Act 1861, which made it a criminal offence to unlawfully procure a miscarriage. This is supplemented by the Criminal Justice Act (NI) 1945 which makes it an offence to cause a child, then capable of being born alive, to die before it has an existence independent of its mother.

Therapeutic terminations are carried out in Northern Ireland on strictly medical grounds, eg to save the life of the mother. For this, the medical practitioners rely on case law for protection. Particular reliance is placed on the Bourne case (1938) in which a London obstetrician was acquitted of performing an illegal abortion on a 14-year-old rape victim.

The key word in the 1861 Act is unlawfully procuring a miscarriage, though this places the onus on doctors' judgment. Although in England and Wales also the relevant provisions of the 1861 Act still apply, that Act is modified by the Abortion Act 1967 which clearly sets out the circumstances in which a pregnancy may be terminated and, unlike Northern Ireland, the legislation itself provides protection for doctors.

You raised the possibility of arrangements being introduced to enable GP fund holders and their purchasing authorities in Northern Ireland to fund terminations of pregnancy carried out elsewhere in the United Kingdom. I understand that such arrangements would not be possible in the case of fund holders who, under the rules governing the operation of the Fundholding Scheme here, are specifically prohibited from purchasing treatment for their patients outside Northern Ireland which would be illegal in Northern Ireland, such as termination of pregnancy."

"The definition of what constitutes a medical abortion in Northern Ireland is unclear and I assume it is left to the discretion of the individual consultant who makes the decision to undertake the procedure."

The association's fact sheet had referred to the Department's definition of medical abortion as "the interruption of pregnancy for legally acceptable, medically approved indications". In support of her claim that this definition was "extremely vague", Ms Simpson referred to the letter quoted above. While I will return to this theme more fully below, it is worth observing here that this approach confuses the concept of definition with the prediction of whether a particular set of circumstances will come within the definition – hence, presumably, the reference in the consultant's letter to the discretion of the individual consultant. Of course the 'discretion' (although in this context, 'judgment' might be more appropriate) of the consultant is engaged but that is not because there is difficulty with the definition. The difficulty – if difficulty there be – will arise in deciding whether the particular facts of the individual case come within the definition. That, as we shall see, is essentially a matter for clinical judgment.

"The lack of clear guidance on the circumstances in which termination of pregnancy is lawful in Northern Ireland is therefore likely to cause a woman to fall between two stools; not only will she be unable to have the operation performed in Northern Ireland, but she will also be unable to receive NHS funding should she travel to England."

One is bound to observe, however, that the dilemma facing a woman from Northern Ireland described here does not arise from any lack of clarity about her legal situation; it stems from the difference in the law in the two jurisdictions.

"The existing statute law in Northern Ireland is unsatisfactory. It simply prohibits illegal abortions but does not specify the grounds on which abortions can be legally performed. There is a lack of clarity with regard to who should decide on abortions and on what grounds. High Court judges and the Standing Commission on Human Rights have commented critically on this uncertainty."

One may observe that the comment about the unsatisfactory nature of the law is related expressly to statute law, a situation which, if it existed, could only be cured by amending legislation. I shall deal with the second suggestion when I come to examine the current state of the law in Northern Ireland.

"We have no plans to extend the Abortion Act 1967 to Northern Ireland. However, legal experts, including the High Court judges, have criticised the current state of the law as unclear. It is important, especially for doctors and women, that the present uncertainty over the law in Northern Ireland is dispelled. As everyone knows, this is a controversial and sensitive issue and Ministers will wish to take a considered view before any decision on future action is taken."

Again, I will wish to deal with the suggestion that the law is unclear when I come to examine the current state of the law in Northern Ireland but, as I have already said, a clear distinction must be drawn between, on the one hand, the 'state of the law' where that phrase is used to connote the currently applicable legal principles and, on the other hand, difficulties that may arise in making a clinical judgment as to what those principles permit in a given situation. For reasons that I will give when I come to deal with the present law on abortion in Northern Ireland, it is my opinion that the legal principles are clear. The application of those principles to specific fact situations may indeed give rise to difficult and even controversial clinical decisions. It is entirely conceivable that such difficulties might be eased by a change in the law which, for instance, might stipulate the circumstances in which an abortion might legally be performed in Northern Ireland. This is not something that can be achieved by issuing guidelines on the current state of the law, however. Significantly, the Minister's reply implies that he had in contemplation a possible change in the law. His comment about the law being unclear should be seen in that context.

The medical profession

"In our experience doctors are well aware that they are operating within a grey and uncertain area in which their only guidance is provided by common law decisions which leave scope for considerable uncertainty and may have a chilling effect upon their willingness to provide advice or assistance to women needing terminations of pregnancy."

It is of course the case that in many areas of life the lawfulness of conduct is governed by the common law. Viewed in isolation this passage appears as a cri de coeur for legislation but the applicant has emphatically disavowed any aspiration to change the law by these proceedings.

"Since the Department believes that, under the law of Northern Ireland, the lawfulness of any proposed termination depends on the clinical judgment of the medical practitioner who is to carry out the termination, the Department can only contemplate the provision of a termination where a medical practitioner has advised, in good faith, that in his opinion, it is necessary to carry out the termination of the pregnancy to preserve the life of the woman, or where continuation of the pregnancy would involve risk of serious injury to her physical or mental health (as this has been interpreted by the courts). The Department believes that this consideration applies even in cases of foetal abnormality so that a woman could not be assured of a termination in every case of foetal abnormality in Northern Ireland. Inevitably, however, the practitioner himself remains responsible and answerable for his actions under the criminal law. While it can refer a practitioner to the relevant provisions of statute law, and to material case law, the Department is unable to give any advice or guidance which would assist a practitioner in deciding whether in a particular case it would be lawful for him to carry out the termination of a pregnancy."

This passage not only articulates the position of the Department but also illuminates the difference between the parties. On the one hand the applicant says that it is impossible to know whether the law will sanction abortion in a particular set of circumstances and guidance is needed. On the other hand the Department says that the law is clear and can be clearly understood by those who choose to inform themselves of it. The Department does not dispute that difficulties will arise in practice as to whether a particular case comes within the established principles but those, it says, are difficulties of clinical judgment.

"The advice which you were given at that meeting does not accord with the Department's understanding of the legal position. The Department's position is set out in its affidavit made in response to the judicial review application by the Family Planning Association. A copy of this affidavit is enclosed."

The affidavit referred to was that of Ms McCartney, part of which is set out above. There is no evidence of any response from Dr Dornan to that letter nor any suggestion that he had any difficulty in understanding the correct legal position as expounded in the affidavit.

The law on abortion in Northern Ireland

"'58. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable …"

Section 59 of the same Act provides: -

"59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable …"

Both these provisions remain in force in Northern Ireland. The procuring of a miscarriage by an unlawful means or the supply of the means by which an unlawful miscarriage is to be procured are criminal offences under our law.

"… any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life. Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."

"… but the words of that section [i.e. section 58 of the 1861 Act] are that any person who "unlawfully" uses an instrument with intent to procure miscarriage shall be guilty of felony. In my opinion the word "unlawfully" is not, in that section, a meaningless word. I think it imports the meaning expressed by the proviso in s. 1, sub-s. 1, of the Infant Life (Preservation) Act, 1929, and that s. 58 of the Offences Against the Person Act, 1861, must be read as if the words making it an offence to use an instrument with intent to procure a miscarriage were qualified by a similar proviso."

In other words a person who procures an abortion in good faith for the purpose of preserving the life of the mother shall not be guilty of an offence. On the issue of what is meant by "preserving the life of the mother" the judge said this to the jury: -

"… those words ought to be construed in a reasonable sense, and, if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother."

Mr Bourne was duly acquitted and the legal principles established by this case were applied in England and Wales until the enactment of the Abortion Act 1967 and continue to be applied in Northern Ireland.

"The law about the use of instruments to procure miscarriage is this: 'Such use of an instrument is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman.' When I say health I mean not only her physical health but also her mental health. But although I have said that 'it is unlawful unless,' I must emphasise and add that the burden of proving that it was not used in good faith is on the Crown."

"I am satisfied that the statutory phrase 'for the purpose only of preserving the life of the mother' does not relate only to some life threatening situation. Life in this context means the physical and mental health or well being of the mother and the doctor's act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and it will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child."

"Mr Weatherup QC … questioned the use of the words, "or well being" in this dictum and also submitted that the adverse effect must be permanent or at least long term, and certainly could not be short term. … I consider that MacDermott LJ did not intend to mean by, "or well being" to indicate that "life" meant something more than physical and mental health such as happiness and these words could have been omitted by him without detracting from what was being said; I would point out that these words were omitted at the end of the same sentence when he again referred to the mental health and physical health of the mother. I also accept that the adverse effect must be permanent or long term and cannot be short term; I consider that this is what MacDermott LJ was indicating when he spoke of a real and serious adverse effect which was sufficiently grave to warrant termination.

Mr Weatherup further submitted that the adverse effect must be a probable rather than a possible risk if the pregnancy is not terminated; Mr Toner took much the same approach when he submitted that there must be a serious risk of a long term adverse effect. I consider that, as indicated by MacDermott LJ, the seriousness of the perceived adverse effect cannot be separated from the chance of that effect occurring; in most cases the adverse effect would need to be a probable risk of non-termination but a possible risk might be sufficient if the imminent death of the mother was the risk in question."

•    Operations in Northern Ireland for the termination of pregnancies are unlawful unless performed in good faith for the purpose of preserving the life of the mother;

•    The 'life' of the mother in this context has been interpreted by the courts as including her physical and mental health;

•    A termination will therefore be lawful where the continuance of the pregnancy threatens the life of the mother, or would adversely affect her mental or physical health;

•    The adverse effect on her mental or physical health must be a 'real and serious' one, and must also be 'permanent or long term';

•    In most cases the risk of the adverse effect occurring would need to be a probability, but a possibility might be regarded as sufficient if the imminent death of the mother was the potentially adverse effect;

•    It will always be a question of fact and degree whether the perceived effect of a non-termination is sufficiently grave to warrant terminating the pregnancy in a particular case.

Comparison of the law on abortion in Northern Ireland with that in Great Britain

"(1)   Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."

The need to investigate

The Department's statutory duty

"It shall be the duty of the Ministry—

(a) to provide or secure the provision of integrated health services in Northern Ireland designed to promote the physical and mental health of the people of Northern Ireland through the prevention, diagnosis and treatment of illness;

(b) to provide or secure the provision of personal social services in Northern Ireland designed to promote the social welfare of the people of Northern Ireland;

and the Ministry shall so discharge its duty as to secure the effective co-ordination of health and personal social services."

"The Ministry may disseminate, by whatever means it thinks fit, information relating to the promotion and maintenance of health and the prevention of illness."

"In the exercise of its functions under Article 4( b ) the Ministry shall make available advice, guidance and assistance, to such extent as it considers necessary, and for that purpose shall make such arrangements and provide or secure the provision of such facilities (including the provision or arranging for the provision of residential or other accommodation, home help and laundry facilities) as it considers suitable and adequate."

If the Ministry is satisfied, after such investigation as it thinks fit, that any list prepared under this Order—

(a)   of medical practitioners undertaking to provide general medical services; or

…

(e)   of persons undertaking to provide any other services;

is not such as to secure the adequate provision of the services in question, or that for any other reason any considerable number of persons are not receiving satisfactory services under the arrangements in force under this Order, the Ministry may authorise a Health and Social Services Board to make such other arrangements as the Ministry may approve, or may itself make such other arrangements as appear to the Ministry to be necessary."

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act."

Section 7 (3) is also relevant in this context. It is in these terms: -

"If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act."

"For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."

"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

"The court must confine itself, as far as possible, to an examination of the concrete case before it. It is accordingly not called upon to review the system of the domestic law in abstracto, but to determine whether the manner in which this system was applied to or affected the applicants gave rise to any violations of the Convention. So there is no 'actio popularis' permitting individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention."

Conclusion