The impact of 2012 investigations into abortion services on current abortion practice

1. The impact of 2012 investigations into abortion services on current abortion practice Jayne Kavanagh November 2012

4. Content • Spring 2012 investigation of abortion services • Interpreting abortion law • Implications for practice

5. Is abortion for sex selection illegal in the UK?

6. February 2012: Telegraph sex selection ‘sting’ • Scotland Yard launches investigation into doctors who agreed to illegal abortions of baby girls

7. Reaction of Health Secretary Andrew Lansley

8. Health Secretary Andrew Lansley

9. Health Secretary Andrew Lansley • Shocked to read reports that abortion clinics have been behaving in this way

10. Health professionals must not think they know better than the law • Doctors are wilfully ‘flouting’ the law • Carrying out an abortion on the grounds of gender alone is morally repugnant

11. March 2012: CQC ordered to undertake spot checks on abortion providers

12. Reaction of Andrew Lansley to CQC findings • Pre-signed abortion forms (HSA1 certificate) found in some clinics

14. I am shocked and appalled to learn that some clinics…may be allowing doctors to pre-sign abortion certificates • This is contrary to the spirit of the Abortion Act

15. Reaction of Professional bodies • GMC • DH • RCOG

16. GMC • Suspended / placed restrictions on doctors • suspected to have authorised abortions for reason of sex • involved in the ‘pre-signing’ of abortion forms

17. GMC ebulletin March 2012 • Abortions provided solely on grounds of the sex of the foetus are not legal in the UK • We have launched investigations into the fitness to practise of the doctors involved • We also want to remind all doctors that they must work within the law

18. Feb 2012 DH letter • Sex selection is not one of the lawful grounds for termination Chief Medical Officer, Professor Dame Sally C Davies

19. Feb 2012 RCOG statement • “Sex selection is illegal in this country and abortion based on the baby’s gender for non-medical purposes is unlawful

20. Many statements about legality of abortion practice • Doctors carrying out abortions for reasons of ‘sex selection’ were acting illegally

21. Is abortion for sex selection illegal in the UK?

22. Is abortion for rape illegal in the UK?

23. Is abortion for breaking up with your boyfriend illegal in the UK?

24. Abortion for sex selection is illegal in the UK • Abortion for rape is illegal in the UK • Abortion for breaking up with your boyfriend is illegal in the UK

25. What makes an abortion illegal in the UK?

26. What makes an abortion illegal in the UK? • It is doctors’ opinion that makes an abortion lawful or unlawful • British law does not specify specific circumstances on which abortion should be legal / illegal • It leaves a judgement as to legality to the authorising doctors

27. Abortion Act 1967 • No offence if two registered medical practitioners are of the opinion, formed in good faith that the same grounds of the act have been met

28. Grounds for an abortion • That the pregnancy has not exceeded its 24th 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

29. Britain’s abortion law • The grounds under which abortion is legally permissible are deliberately left broad, and open to the clinician’s discretion

30. British law does not specify specific circumstances on which abortion should be legal / illegal • Misleading to say abortion for sex selection is illegal

31. Could an abortion for sex selection be legal?

32. Imagine a woman… • …whose husband beats her and tells her that she will be subject to far worse violence if she gives birth to a daughter • …with two female children who comes from an ethnic group which places a very high value on sons. She and her husband live with her in-laws, who threaten to throw them out if she gives birth to another daughter Sally Sheldon, Professor of Law, Kent University

33. “A doctor who authorises a termination in such circumstances could make a strong legal case that she had acted in good faith to preserve the mental health of her patient” Sally Sheldon, Professor of Law, Kent University

34. BPAS - The British abortion law: challenging current myths and misconceptions • If two doctors believe in good faith that a woman who gives birth to a baby of a particular sex will suffer violence or psychological damage because of that, there is no legal reason why that abortion could not be authorised

35. How do we establish that an opinion is formed in good faith?

36. How do we establish that an opinion is formed in good faith? • 1974 successful prosecution for ‘unlawful procurement of miscarriage’ • Dr did not gather sufficient information to form a good faith opinion • regarding the balance of risks between termination and continuation of pregnancy • Dr took £150 and tried to conceal the fact that he had performed an abortion

37. Paton v BPAS [1978] • ‘[n]ot only would it be a bold and brave judge who would seek to interfere with the discretion of doctors acting under the [Abortion] Act, but I think he would really be a foolish judge who would attempt to do any such thing, unless possibly, there is clear bad faith and an obvious attempt to perpetrate a criminal offence.’ Sir George Baker

38. How do we establish that an opinion is formed in good faith? • Gather sufficient information • Get the paperwork right

39. March 2012: CQC ordered to undertake spot checks on abortion providers

40. ‘Pre-signed’ HSA1 form controversy • Implication that doctors were failing in their professional conduct if they had not physically seen the woman for whom they were authorising an abortion

41. ‘Pre-signed’ HSA1 form controversy • No legal requirement for doctor to see a woman in order to form an opinion in good faith • Form makes clear that doctors can authorise an abortion without seeing the woman

42. Ex BPAS Medical Director: letter to GMC • Confusion, uncertainty and variations in the interpretation of the legal requirements and the practice in the HSA1 form process • I am of the opinion that individual doctors should not be severely punished by the GMC or subject to criminal prosecution when they were following the common practice in an area where there has always been great uncertainty

43. Letter from Consultant to RCOG justifying pre-signing • Any pregnancy below 24 weeks can be said to meet clause c of the act (when the woman requests an abortion) • And because we know the system, the nurses working practice and governance processes within our Service we can sign “in good faith”

44. Current evidence • Physically, abortion carries less risk of maternal mortality and morbidity than childbirth • Less likely to have psychological sequelae if abort an unwanted pregnancy than carrying it to term • Thus it can be argued that any abortion carried out under Ground C would always be lawful

45. House of Commons Science and TechnologyCommittee Report 2007 • We found strong evidence that ground C is always met for first trimester abortions

46. House of Commons Science and TechnologyCommittee Report 2007 • The DH has ruled that both doctors are able to sign the HSA forms without seeing the patient, so long as they believe, in good faith, that the woman meets the legal grounds for abortion on the basis of the clinical notes

47. Feb 2012 DH letter • "[the] certification takes place in the light of their clinical judgement of all the particular circumstances of the individual case" Chief Medical Officer, Professor Dame Sally C Davies

48. The law is unclear • No requirement to see a woman before signing HSA1 However professional guidance produced in 2012 seem to require at least: • Review of notes before signing • No pre-signing

49. Content • Spring 2012 investigation of abortion services • Interpreting abortion law • Implications for practice

50. Implications for practice • Do you need to apply more scrutiny to the reasons for a woman’s request for abortion and your own acceptance of those reasons? • How much information do you need to gather to form a good faith opinion? • Can doctors rely on information gathered by nurses to make good faith decisions