Consultation Response
The Limited Circumstances for a Lawful Termination of Pregnancy in Northern Ireland Response to the draft guidance document for health and social care professionals on law and clinical practice.
July 2013
Evangelical Alliance Better Together
The Evangelical Alliance, formed in 1846, is the largest body serving the two million evangelical Christians in the UK. We have a membership of denominations, churches, organisations and individuals. In the UK we work across 79 denominations, 3,300 churches, 750 organisations and thousands of individual members. We are a founding member of the World Evangelical Alliance, a global network of more than 600 million evangelical Christians. Our Northern Ireland office was established in 1987 and for the last 25 years we have been contributing to public life here. Our 2 main objectives are Unity and Advocacy - bringing Christians together and providing a voice to government, media and the public square.
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Existing Law Firstly we celebrate and commend the law in Northern Ireland as a world-leading example of the difficult and delicate balance which must be struck between protecting the life of the mother and her unborn child. We welcome these efforts by the Department to provide clarity on the law and practical guidance for clinicians and health and social care professionals. The introduction (1.2) states that all health and social care professionals should be aware of the law. This should is not strong enough. It is vital that medical staff are trained on an ongoing basis about the unique law on terminations within Northern Ireland (as compared to GB and ROI). Attention should particularly be drawn to the following facts:-
In Northern Ireland a termination of pregnancy can only be lawful 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 ‘long term or permanent’ (2.7 ii).
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Foetal abnormality is not recognised as grounds for a termination of pregnancy in Northern Ireland (2.7 iv).
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Anyone who unlawfully performs a termination of pregnancy is liable to criminal prosecution with a maximum penalty of life imprisonment (2.13).
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Health and social care professionals have a legal duty to refuse to participate in, and must report, any procedure that would not be legal in Northern Ireland…if that person fails to do so without reasonable excuse, he or she may be liable to a maximum penalty of 10 years imprisonment (2.7 iii).
This knowledge will protect medical staff from inadvertently committing a serious criminal offence and safeguard the lives of expectant mothers and unborn children. Armed with certainty medical staff can continue to provide the best possible care within the parameters of the law. We would recommend regular training on the law for all relevant medical staff as part of continuous professional development. It may also be useful to have a quickreference one page summary of the law that could be easily referred to or even displayed (in a sensitive staff-only area) in places like midwifery units and GP surgeries.
Paragraph 1.2 also states that medical staff; must also comply with the guidance from their respective regulatory body. It must be noted that many health and social care professionals are trained in other jurisdictions where the laws on terminations are different. Some regulatory bodies, colleges and fellowships are UK-wide and operate policies which are not compatible with the law on terminations in Northern Ireland. It needs to be made clear that when a conflict occurs on this issue, between the guidance from a regulatory body and the law in Northern Ireland, the law must take precedence. Again a quick-reference one page summary of the law may be helpful for staff who have studied, qualified or practiced in another jurisdiction. We welcome the emphasis given to the fact that the circumstances in which a termination is lawful in Northern Ireland are highly exceptional, very strict and narrow and very limited (1.3). It is vital that exceptional cases do not make the rule. This exceptionality of termination must be maintained legally and as an integral part of medical training, hospital culture and practice. This is especially true in the face of trends in other jurisdictions to normalise terminations as a healthy reproductive ‘right’ for women. The latest UK Government’s figures for abortion in England and Wales clearly show that there are an incredibly small number of medical reasons to carry out a termination to protect the woman’s physical health. We note the fact that this guidance cannot, and does not, make any change to the law of Northern Ireland (1.9). Paragraph 2.8 sates; the possibility of an adverse effect may be sufficient grounds (for a termination) and in most other cases the risk of the adverse effect would need to be more likely than not. The words used here are quite vague and part of this may be intentional to allow for a range of medical situations. However, the phrases possibility of an adverse effect and more likely than not are problematic. A possibility is very different to a probability (more likely than not) and a probability is very different from the eventual criminal burden of proof of ‘beyond reasonable doubt’ that would be applied if a case ever came to Court. We are not suggesting that the criminal burden of proof be applied at the moment when a medical decision is being made but the language needs to be much more robust here to be in line with the legal position. Similarly paragraph 2.11 uses the phrase reasonable grounds. It may be useful for the concept of reasonable grounds to be elaborated on further.
Clinical Assessment As already noted this guidance cannot and does not change the law surrounding termination in Northern Ireland. While we welcome this fact, a natural consequence is that this guidance amounts to best practice procedures (3.1) rather than a legally binding statutory instrument. This is not a criticism, merely an observation but it may have some consequence if the guidance is not followed. It may already be compulsory for relevant medical staff to adhere to any best practice guidance documents published by the Department as part of their job description through their employment contract. If this is not the case perhaps an arrangement along these lines could strike the balance between guidance that is not legally binding on the one hand and enforcement of best practice on the other. The best practice outlined for two doctors with the appropriate skills and experience (3.2) to undertake a clinical assessment on the necessity of a termination seems appropriate. We note that in exceptional circumstances such as an imminent death emergency (3.4) it may be appropriate for a single doctor to make the decision. In the case where the threat is to the mental health of the woman (3.5 – 3.8) there are several considerations:-
It seems that in this guidance on clinical assessment, the threat to the woman’s mental health will be considered solely in terms of continuation of the pregnancy (3.6). A woman, for whom the continuation of a pregnancy is likely to cause an adverse effect on her mental health that is real and serious and long term or permanent must be in an extremely vulnerable state. Surely any assessment must also consider the impact the decision to have a termination would have on the same woman’s mental health. For such a woman, is a termination really likely to ease or resolve her mental health issues? Is it wise or medically sound to use termination as ‘treatment’ for a mental health issue? Could the permanence of the decision to terminate an unborn child have even greater adverse effects which are real and serious and long term and permanent compared to say having the child given for adoption at birth?
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Where an assessment deems that it would be lawful for the woman to have a termination, the woman should be advised of the potential mental health consequences of both having or not having a termination and offered counselling at this point before she gives her consent.
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Given the gravity of the decision involved, and the flagrant abuse of the grounds of mental health in England and Wales 1 , it is important to have strong safeguards in this area. The recommendation that a Consultant Psychiatrist should be involved where a mental health assessment is required (3.6) seems appropriate. Obviously representative medical bodies and individual consultants will be able to contribute more specifically on this point in terms of operational matters. Issues such as additional capacity and resources would need to be addressed. However, as termination cases under this ground are highly exceptional (1.3) to everyday practice it would therefore be hoped that additional capacity for psychiatric services could addressed. One suggestion however is whether in some instances a GP or other medical practitioner, who has full knowledge of the woman’s mental health history, would be better placed to help make the decision?
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Also worth considering is whether in cases concerning mental health, the psychiatric assessment should be carried out by 2 psychiatric consultants in addition to another doctor?
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As noted above, a termination will not mark the sudden end of any underlying mental health issues. If the risk posed to the woman’s mental health before a termination was real and serious, long term or permanent, then it is imperative that she is provided with longer-term mental health care regardless of whether or not she chooses to have a termination.
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Again given the irreversible consequences and the extreme vulnerability of the woman involved it seems appropriate to employ consultant psychiatrists with specialisations when assessing adolescents and those with learning disabilities.
Conscientious Objection There needs to be more clarity in the wording of this clause. For instance, it is not clear what is meant by no-one is required to participate in a procedure that he or she may consider unlawful (4.1). This is confusing and should be removed or clarified. Lawfulness is separate to the issue of conscientious objection which hinges on moral or ethical grounds rather than legality. If someone believes the termination to be unlawful they are already compelled not to participate and to report this by law (2.7 iii).
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Lastest UK figures show that 98% of abortions were carried out under the grounds of mental health.
The right to conscientious objection must extend beyond immediate participation in the termination procedure. For instance it should cover social workers who are assigned to make arrangements for termination for those women who are wards of court and, subject to the final guidance, psychiatrists who may not wish to make mental health assessments in such circumstances. This right must always be exercised with responsibility and sensitivity to the woman involved. The issue of conscientious objection may disproportionately affect staff such as nurses and midwives who are often acting on decisions made by more senior medical practitioners. Senior staff should make clear to all staff involved the right to conscientious objection before each termination procedure. This may help to avoid a culture developing where there is an unhealthy pressure to conform and a fear that conscientiously objecting is going against senior staff. Where a healthcare professional has no choice in being part of the termination procedure, as in the emergency situation outlined in 4.2, that person should be offered support/chaplaincy/counselling services as soon as practically possible after the procedure.
Provision of counselling services There are several points to consider when it comes to the provision of counselling services:-
(5.4) Health and social care professionals should ensure that women have access to counselling. How will this be arranged? Can a woman choose the counselling provider? How will health and social care professionals signpost women to counselling services? Is there an up-to-date contact list that the Department or each Trust uses to offer these services? How does a counselling service be added to such an ‘approved’ list? Could a mechanism be put in place to help mediate, signpost and smooth the transition between health and social care professionals and counsellors and vice versa?
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(5.6) How will Trusts ensure that counsellors are familiar with and understand the law? It may be useful if the Department or Trusts produced a leaflet for counsellors which summarises the law or provided training sessions on the law?
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(5.6) We welcome the Department’s efforts to protect women from emotional or moral pressure to give or refuse her consent to treatment that is lawful and clinically appropriate. Each women should be fully advised of the law and the legal reasons why in her circumstances a termination is permitted before giving her consent. She should also be advised of the potential physical and psychological consequences of having, or not having, a termination.
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(5.7 -5.8) It is important that non-medically qualified counsellors do not try to make medical decisions but also that non-counselling qualified medical staff do not take on the role of counsellor.
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There must be independence and a separation between the provider of the termination and those who provide counselling. Private clinics which provide both services while standing to gain financially are clearly operating within a conflict of interests. However, this separation of termination-provider from counsellor must have a statutory framework and is not best served as part of a best-practice guidance document.
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(5.9) This is vital. It is important that the law on terminations here is upheld by counselling services, complemented and not contradicted. It may be useful for the counsellor (with the woman’s consent) to be provided with a brief document, signed by the two doctors, confirming that a termination is lawful (except in emergency cases). This would perhaps give the counsellor the legal and medical reasons why a termination is lawfully permitted. At this point, the counsellor would then be permitted to discuss termination and be able to provide each woman with the best possible care and support in light of the options available to her.
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(5.10) Is there any structured way to help counsellors to be aware of and inform women. There needs to clear and consistent signposting for women to help them access the best support services for themselves.
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(5.11 – 5.13) Aside from the provision of information we understand anecdotally that some service providers may in fact go a stage further and arrange for terminations to be carried out outside of Northern Ireland. This is clearly not within the letter or spirit of the law here in Northern Ireland and it must be made clear that such activity could constitute a criminal offence in this jurisdiction.
One other issue around counselling - The Family Planning Association claim that their unplanned pregnancy counselling service is the only impartial non-judgemental and non-directive service in Northern Ireland (link to website). Yet they have an active campaign (link to website) to extend more liberal abortion laws to Northern
Ireland. While we respect any organisation’s right to lobby for a change in the law it seems highly misleading to publicly lobbying one particular view while simultaneously claiming to be the only impartial counselling service in Northern Ireland. There are questions as to how much public funding and profile should be given to an organisation which publicly opposes the Department’s policy. There are many other counselling organisations which are motivated by other beliefs including the Christian faith and publicly state their desire to protect the life of the mother and unborn child. However these organisations would also claim to offer an impartial non-judgemental and non-directive service, where each women ultimately makes her own decision. Our concern is that there is a perception that some organisations are seen as more neutral than others. We would strongly question this myth of neutrality. The FPA is calling for change because it is motivated by particular beliefs just as other organisations are motivated by other beliefs or faith. There must be transparency from those who provide counselling services and fairness from the Department when it comes to signposting and service provision.
Counselling women who meet requirements of the NI legal framework (5.14) The wording she should be advised that she may seek counselling, if she wishes, before she decides whether to consent to the procedure should be changed. It would be better to proactively signpost the woman towards a range of counselling services. The woman will still decide if she wishes to seek counselling or not, but access could be made easier for her at this potentially vulnerable time. (5.15) In order to avoid inaccurate or incomplete accounts of the woman’s medical condition it may be appropriate as outlined above for the counsellor, with the woman’s consent, to be provided with written reasons for the lawfulness and medical conditions behind the termination. This information would be highly confidential but would mean that the counsellor will not be relying on the woman for accuracy and the woman will not the pressure of relaying detailed medical information while perhaps in a vulnerable or emotional state.
Aftercare services (5.16 – 5.18) should be offered post-termination follow-up/counselling – There needs to be a mapping and signposting exercise so that woman can be offered the most appropriate aftercare services. The Department and Trusts must be aware of those who operate in this area in order to provide the best information. There needs to be clarity on how a counselling organisation can be placed on the Trust’s list of contacts for these situations. Would the Department be willing to provide best practice training for counselling and after-care providers?
Ensuring appropriate consent (6.7) It is important that the woman is fully informed of the legal and medical reasons why in her circumstances a termination is permitted before giving her consent. She should also be advised of the potential physical and psychological consequences of having a termination and of not having a termination together with all alternatives. (6.8) Where the woman has the time to consider the decision to have a termination of pregnancy she should be sign-posted to counselling and Chaplin services. This is in addition to receiving the relevant ongoing psychiatric or medical care which her condition requires. (6.9) Consent of minors when it comes to lawful terminations raises the issue of Gillick competency and the Fraser Guidelines. In the grey area described in (5.12) there are additional legal issues to be considered if a counsellor takes upon themselves the decision to make a judgement on the competency of any minor.
Consideration of sexual offences This is obviously a very sensitive area and specialist pastoral care and legal training for some relevant professionals may be useful. The criminal law is clear in relation to the necessity to report a suspicion of a serious sexual offence. The guidance should also make clear that pregnancy as a result of a sexual offence is not grounds for a termination in Northern Ireland.
Alternative options It is absolutely vital that where a woman seeks a termination of pregnancy but does not meet the criteria she should be treated sensitively (8.1). The legal position should be clearly explained to her. The reasons why she is seeking a termination should be discussed and then all appropriate alternatives explored. Where appropriate, the inclusion of family members at this point could provide a longer term and sustainable support for the woman. Adoption is transformational – giving new life and making new family. Current figures show that there is actually a surplus of adoptive parents cleared and ready to adopt over and above children to be adopted (thought there are still system issues in matching up appropriate adopters and adoptees). Adoption and fostering should be raised as potentially very positive options for both the woman and unborn child in very difficult circumstances. Where a lack of support is anticipated (8.2) and/or difficulties are foreseen by the woman (8.3) it is important that counselling be offered at this point. We welcome the reference to organisations that can offer support and advice (8.4). Again it is important that these organisations are mapped and given the support and profile required to assist women in these circumstances. We also welcome the reference to Chaplaincy services and wish to add our commendation to the vital pastoral care offered freely to everyone.
Accountability and information Collection We welcome the collection of data on the number of terminations being carried out lawfully in Northern Ireland. This information is important to continue to best protect the lives of women and unborn children for years to come. We wonder however if this best practice guidance is the correct framework to underpin a data collection system. It may be better to consider a more robust statutory framework for the system which can be upheld by law. (9.4) The system will collect information‌ This is too vague. The system will only be as good as the people who put the information into it. There needs to be clear coding of the grounds for termination so that unlawful or unethical practices cannot be hidden within legitimate figures. Given the exceptional nature of terminations of pregnancy there should be additional safeguards in place so that integrity of regulation and data collection is protected.
The information should be collected in a standardised format across the Trusts and private sector. It should be collected contemporaneously and directly from the decision-makers, ie the two doctors who undertook the clinical assessment. The reasons for termination should be recorded together with the options discussed and the woman’s consent noted. It would seem sensible for the protection of all involved, and given the exception nature of terminations for both doctors to be required to sign the form attesting to it’s accuracy. Access to the imputing of data into this system should perhaps be restricted. We agree that confidentiality and anonymised information surrounding the woman is vitally important (9.5). However the anonymised statistical information should be collected, published and made available to the public each year. (9.6) All health and social care medical professionals working in Northern Ireland should be aware of the contents of this document‌ We are not convinced that should be aware is robust enough. It might be better to state that the Department will commit to provide training on the contents of this document for all relevant staff. We also have concerns about those clinics which operate outside of the accountability of the Department. Outside of the DHSSPSNI there must be regulation, accountability, auditing and a requirement to provide anonymised data by private health-care providers, charities and clinics who have the potential to provide or facilitate terminations for pregnant women.
Omissions There are important several issues which were not addressed in the guidance:1. New abortificant drugs can be bought on the internet and taken at home with increasing ease. Are these substances legal here? If not is there an issue in terms of detection and enforcement? Aside from the criminal implications, there is a clear public health issue, the drugs could be dangerous to the woman taking them. There must be some guidance for health and social care professionals who come into contact with women who have taken such substances. 2. The case law cited seems to involve particularly vulnerable women who are young, often wards of court and/or disabled. Taking a broader look at these instances, is there more preventative work to be undertaken on relationships
and sex education, grooming and risk-taking behaviour with these at-risk young women? (Perhaps tying into Barnardo’s Safe Choices, Youth Link and other organisations) Are there any special measures or pathways of support that can be offered immediately when a pregnant woman is identified as particularly vulnerable?
3. Fathers – The physical biology of pregnancy means that the issue of termination will be focussed on women and the unborn child. It is obvious that this document will do the same. However, there are only 2 mentions of partners in the document and no mention of men or fathers. This is reflective of a broader trend where termination of pregnancy is considered as an issue of women’s rights and reproductive health. This further divorces men from any rights or responsibility when it comes to the termination of pregnancy or even fatherhood. Again basic biology dictates that men are central to pregnancy. A non-judgemental but proactive approach should be adopted to identify if the father even knows about the pregnancy and if he is supportive where the women is seeking a termination. There are broader rights and responsibilities which must be better balanced if we are to properly consider this issue. Terminations of pregnancy affect everyone in society and it is important that potential fathers are not ignored in the decision-making around terminations.
Finally we would ask the Department to pro-actively counter the narrative often propagated that Northern Ireland is a rural backwater which is falling behind in reproductive health or human rights. This is part of a larger myth of progress - that every change is for the better. The UK Government’s figures for abortion in England and Wales which show that since the 1967 Act around 8 million terminations have occurred. Currently for every four children born one has been terminated. These are not the marks of a more progressive civilised society. A better measure is how we treat the most vulnerable and there is none more so than the unborn child 2 . We are delighted that Northern Ireland has robust laws around the protection of the life of the mother and the unborn child. Our law underpins the value of life, family and community. This, together with our excellent record of maternal health should be celebrated as an example of world-leading relational policy.
2 There is perhaps a broader move towards the views we uphold in Northern Ireland. The European case of C-34/10 Oliver Brustle v Greenpeace e.V has the potential for profoundly positive consequences for legal protection and dignity of the human embryo. Also the UK Government recently consulted and voiced concern on the discrimination of aborting handicapped unborn children.
For further information please contact: David Smyth Public Policy Officer Email: d.smyth@eauk.org Tel: 028 9029 2266 Evangelical Alliance Northern Ireland Downview House, 440 Shore Road Newtownabbey, BT37 9RU www.eauk.org/northern-ireland